' SH. ABDUR RASHID, J.---The petitioner through this petition seeks reversal of the judgment and decree passed by the learned Additional District Judge, Pakpattan in appeal on 8-5-1996, whereby the petitioner's suit for declaration and injunction decreed by the trial Court on 19-7-1993 was dismissed and further seeks the restoration of the judgment and decree passed by the learned trial Court.
2. The facts leading to this revision petition are that the petitioner had filed suit seeking a declaration and injunction that he is legally entitled Gaddi Nashin and Sajjada Nashin of Darbar Baba Farid Ganj Shakar (Rahmat Ullah Alaiha) and Maulana Badarud-Din Ishaq (Rahmat Ullah alaiha) and therefore, can rightly conduct all affairs and ceremonies (Rasoomaat) related to the said offices. As a consequential relief the petitioner sought an injunction that the defendant be restrained from calling himself/being called or pretending to be the Gaddi Nashin or Sajj'cla Nashin of the exalted Darbar or performing any function of ceremonies (Rasoomaat) relating to the said offices or interfering with the official function of the plaintiff/petitioner and further be also permanently restrained from making or using the title of Gaddi/ Sajjada Nashin. The facts giving rise to the filing of the suit by the petitioner/plaintiff as emanating from his pleadings are that the shrine of Hazrat Baba Farid-ud-Din Ganj Shakar (Rahmat Ullah Alaiha) is situated in District Pak Pattan. Dewan Allah Jiwaya was Gaddi/Sajjada Nashin of the Hazrat Baba Farid-ud-Din Ganj Shakar (Rahmat Ullah Alaiha) and Hazrat Maulana Badarud-Din Ishaq (Rahmat Ullah Alaiha) who on 24-7-1884 by his will/Khalafat Nama appointed Dewan Said Muhammad, father of the petitioner/plaintiff as Gaddi Nashin and Sajjada Nashin of the said shrine. The father of the plaintiff vide will/Khalafat Nama dated 18-3-1933 appointed Dewan Qutab-ud-Din, brother of the petitioner, as Gaddi/ Sajjada Nashin of the shrine who was performing the sacred ceremonies of the holy shrine and often associated the petitioner with him. As such the petitioner was well acquainted with all the ceremonies of the holy shrine; that the petitioner at the behest of the last Dewan performed all the welfare and improvement work related to the shrine. The respondent/defendant during lifetime of the petitioner's brother last Dewan in the year 1981 started claiming himself to be Gaddi/Sajjada Nashin and attempted to perform Rasoomaat and' the last Dewan vide publication in the "Daily Nawa-I-Waqt" and the "Daily Mashriq" dated 13-9-1981 disqualified and proscribed him from performing the said ceremonies and thereafter the petitioner on behalf of his brother/last Dewan had been performing all the ceremonies; that in the year 1973 last Dewan late Ghulam Qutab-ud-Din proceeded for performing Hajj and he got appointed the petitioner by Auqaf Department Multan Zone Multan for performing the ceremonies related to the shrine vide letter No,MZ/MY/16/UF/638 dated 22-1-1973. No other person was allowed to perform the ceremonies relating to the above shrine because the late Dewan used to consider the petitioner as his valid successor to the Gaddi; that on behalf of the Dewan the petitioner effected several improvements in the building of the shrine. He constructed the roof of the mosque "Aulia" in 1969; verandah for women in the year 1976; got carried out marble work in and out of the shrine; got shelves and almirahs made for "Bashishti Gate" for protection of the Holy Quran; got constructed Guest Rooms in 1974 and since then the petitioner is distributing "Langar Tuaam" to the visitors day and night from his own expenses. All these jobs were done with the consent and desire of the late Dewan; that the petitioner has been performing "Rasam-e-Chiraghan" since 1974 and has been making arrangements for the "Sehar" and "Iftar" during Ramazan-ulMubarik in the mosque attached to the shrine; that the late Dewan had told his believers to make "Baait" at the hands of the petitioner as he considered him as successor of Hazrat Baba Farid-ud-Din Ganj Shakar (Rahmat Ullah Alaiha) and the petitioner had undertaken journeys to various European countries for the preaching of religion of Islam and message of Hazrat Baba Farid-ud-Din Ganj Shakar (Rahmat Ullah Alaiha) and that the petitioner for all intents and purposes is entitled to hold the office of Gaddi/ Sajjada Nashin of the shrine and that the respondent/defendant has no legal status to claim the said office.
3. The respondent/defendant resisted the petitioner's suit and all his claims to the office of Sajjada/Gaddi Nashin were repudiated. It had been pleaded in the written statement that Diwan Ghulam Qutab-ud-Din, the last Sajjada Nashin of the holy shrine of Hazrat Baba Farid-udDin Ganj Shakkar (Rahmat Ullah Alaiha) and Hazrat Maulana Baha-ud-Din (Rahmat Ullah Alaiha) had appointed him as Sajjada/Gaddi Nashin of the said shrine vide proclamation in the "Daily Nawa- iWaqt" dated 13-11-1980; that the petitioners/plaintiffs had neither attended funeral ceremony/Qul ceremony nor chehlum ceremony of the late Dewan Qutab-ud-Din; that his appointment as Gaddi/Sajjada Nashin of the holy shrine was held in the presence of Ex-Governor of Punjab Makhdoom Sajjad Hussain Qureshi (Sajjada Nashin of the holy shrine of Hazrat Baha-ud-Din Zakria (Rahmat Ullah Alaiha) and ex-Federal Minsiter Mian Ghulam Ahmad Manika which was widely publicized through T.V. And Radio Pakistan; that the late Dewan/father of the respondent/defendant had never removed him from the office of Sajjada/Gaddi Nashin and the news item dated 13-9-1981 appeared in the "Daily Mashriq" and the "Daily Nawa-i-Waqt" were manipulated by the petitioner-plaintiff. It had also been pleaded that the petitioner/plaintiff had obviously been inimical and at dagger drawn with the late Dewan/father of the respondent/defendant till his death and they were locked in litigation and as such there was no occasion for appointment of the plaintiff /petitioner as Sajjada/Gaddi Nashin of the holy shrine; that the petitioner/plaintiff had manipulated permission of Auqaf Department to perform ceremonies in shrine in 1973 when the late Sajjada Nashin/father of the respondent-defendnat along with the respondent/defendant proceeded for Hajj and that he returned from Saudi Arabia earlier than the date when any ceremony at the shrine was due to be performed and thus the petitioner/ plaintiff did not perform any ceremony at the shrine; that the petitioner-plaintiff had participated in the Dastar ceremony of the respondent/defendant conducted in the premises of the holy shrine in the presence of the national dignitaries and was estopped to assert that the respondent was removed from the office of the Gaddi of the holy shrine by the late Dewan and that once he was appointed as Gaddi/ Sajjada Nashin to the holy shrine, he could not have been removed from the said office by any subsequent act and that the late Sajjada Nashin at the time of his death had also reiterated the status of the respondent as his successor in the presence of family members.
4. The learned trial Court, on the pleadings of the parties, framed the following issues:--
(1) Whether the plaintiff has no locus standi to file the present suit? OPD
(2) Whether the plaintiff has no cause of action? OPD
(3) Whether plaintiff is entitled to a decree as prayed for.
(4) Relief.
5. At the trial the petitioner/plaintiff produced Mian Imam Ali (P.W.1), Nazir Ahmad (P.W.2), Muhammad Irshad Ahmad (P.W.3) Tahir Masood (P.W.4), Tariq Masood (P.W.5), himself appeared as P.W.6, Muhammad Bahsir (P.W.7), Qazi Ghulam Akber Farooqi alias Qaiser Farooqi (P.W.8), Mian Hassan Din (P.W.9), Muhammad Boota (P.W.10), Muhammad Munir (P.W.11), Mahboob Ali (P.W.12), Allah Ditta (P.W.13), Muhammad Ishaq Mughal (P.W.14), Muhammad Rauf (P.W.15) and himself again appeared as P.W.16 and brought on record documents Exhs.P.1 to P.11 and closed his evidence.
6. The plaintiff in his evidence tried to prove that the defendant/respondent was removed as Sajjada /Gaddi Nashin by the late Dewan through advertisement in the "Daily Nawa-e-Waqt" and the "Daily Mashriq"; that he never participated in any ceremonies of the Darbar and took no interest in the affairs and welfare of the Darbar; that the petitioner/plaintiff during his lifetime had been associated by the late Dewan and had been participating in the ceremonies and remained associated with the development and welfare of the Darbar; that Auqaf department had permitted him to act as Sajjada Nashin in the absence of the late Dewan and performed the ceremonies and that defendant/respondent by his conduct was disqualified to hold the office whereas the petitioner/plaintiff was fully qualified to hold the same.
7. The respondent/defendant in his evidence examined Munir Hussain (D.W.1), Muhammad Masood (D.W.2), Ramzan (D.W.3), Sabir Hussain (D.W.4), Altaf Ahmad Khan (D.W.5), Muhammad Sharif Shah (D.W.6), Ahmad Hassan (D.W.7), Fateh Muhammad (D.W.8), Muhammad Yar Daha (D.W.9), Badar Mueen-ud-Din (D.W.10), Ghulam Farid (D.W.11), Mian Manzoor Ahmad Maneka (D.W.12), Muhammad Tahir Sabri (D.W.13), Falak Sher (D.W.14), Syed Shamsher Ali Shah (D.W.15), Muhammad Rafiq (D.W.16), Muhammad Yar (D.W.17) Khadim Hussain (D. W. 18), Diwan Maudood Masood himself appeared as (D.W.19), Pir Ghulam Farid Chishti (D.W.20), Ahmad. Hassan Chishti (D.W.21) and defendant-petitioner brought on record documents Exh.D.1 to Exh.D.12 and mark 'A' and 'B'.
8. The crux of the evidence of the respondent/defendant is that he was nominated as Sajjada/Gaddi Nashin by the late Dewan during his lifetime and that upon his demise he was installed as Sajjada/.Gaddi Nashin by the national dignitaries and that on the visit of President and the Prime Minister of Pakistan to the Darbar he had also acted in the said capacity which had been recorded in the shape of video cassettes and that the petitioner/plaintiff and his late father were locked in civil and criminal litigation and because of said enmity and acrimony there was no reason for the late Dewan to nominate or accept the petitioner/plaintiff as Gaddi/ Sajjada Nashin and that there was no occasion or justification for the late Dewan to remove the respondent/defendant from the said office.
9. The learned trial Court upon conclusion of the trial decreed the suit of the petitioner/plaintiff.
Feeling aggrieved the respondent/defendant Dewan Maudood Masood filed an appeal, which came up for hearing before the learned Additional District Judge, Sahiwal. It may be noted here that during proceedings of the said appeal Dewan Azmat Said Muhammad, a brother of Dewan Maudood Masood, filed an application under Order I, rule 10, C.P.C. For being impleaded as a party.
He pleaded that he was a son of late Dewan Qutab-ud-din and prayed that late Dewan during his life time had held Dewan Maudood Masood respondent/defendant disqualified to hold the office of Sajjada Nashin and had nominated him in the year 1986 Sajjada Nashin and that both the contenders to the office of Sajjada/Gaddi Nashin of the Darbar by their conduct were disqualified to hold the said office and he being a validly nominated successor of the late Dewan was entitled to hold the same; that the petitioner/plaintiff while instituting the suit did not implead him as a party and that he being a necessary party had a right to contest the suit and he prayed that the judgment and decree of the trial Court be set aside and the case be remanded to the learned trial Court for afresh decision after impleading him as a party in the suit filed by the plaintiff.
10. After hearing the parties the learned Additional District Judge, Sahiwal vide the impugned judgment dated 8-5-1996 accepted the appeal of respondent-defendant and set aside tie judgment and decree of the trial Court and also rejected the application under Order I, rule 10, C.P.C. Filed by Dewan Azmat Said Muhammad.
11. Feeling aggrieved by the said impugned judgment Dewan Bakhtiar Said Muhammad petitioner/plaintiff has filed Civil Revision No,349 of 2004. Dewan Azmat Said Muhammad has also filed Civil Revision No,350 of 2004 calling in question the impugned judgment whereby his application under Order I, rule 10, C.P.C. Has been dismissed. Both these petitions are being disposed of together by this single judgment.
12. During pendency of these civil revisions, Dewan Bakhtair Said Muhammad petitioner/plaintiff has filed application bearing C.M. No,1480-C of 2001 under Order XLI, rule 27, C.P.C. Praying for producing the additional evidence in the shape of various documents detailed below:--
(1) Notification No,SO(J-III)HD-9-32/2001 dated 1-4-2001 for appointment of District and Sessions Judge for judicial enquiry into incident dated 26-3-2001 at Mazar Sharif.
(2) Letter of Secretary Auqaf dated 13-8-2001.
(3) Enquiry report.
(4) F.I.R. 117 of 2001 under section 322, P.P.C. Police Station, City Pakpattan.
(5) Reply of the respondent to the application and annexed documents.
(6) Judgment dated 7-3-2002 in Writ Petition No,16974 of 2001. ' to illustrate the petitioner's evidence already produced which had been resisted by the respondent/defendant Dewan Maudood Masood. However, the genuineness of the documents sought to be produced in additional evidence has not been challenged but only objection had been raised regarding their receipt as additional evidence.
13. During course of arguments the petition for production of additional evidence has not been seriously challenged. All the documents which are sought to be placed on the record are public documents and a judgment of this Court. The genuineness of all these documents is not controverted. These documents only aim at showing that the ceremonies at the Darbar were not held in proper order but were mismanaged while the respondent/defendant was incharge of them.
These documents are relevant for just determination of the issues involved in this case.
' Therefore, these documents deserve to be placed on the file to be read in evidence to reach a just finding.
14. Learned counsel for the petitioner in support of his contention has raised the following points:--
(a) the devolution of the office of Sajjada Nashin depends in the first instance upon Waqf Nama/trust deed but no such deed has been produced in the absence of which the issue is to be determined according to the usage, tradition proved to have prevailed with regard to the appointment of Sajjada Nashin in respect of the Darbar;
(b) that Hazrat Baba Farid-ud-Din Ganj Shakar (Rehmat Ullah Alaiha) himself nominated three Gaddi Nashins: Shah Badaruddin and Shah Allaud Din at Pakpattan Sharif and Sh. Badaruddin. The custom of succession of shrine of Hazrat Baba Farid-ud-Din Ganj Shakar (Rahmat Ullah Alaiha) was that Sajjada Nashin holding office was competent to nominate his successor during lifetime provided that the nominee was agnate and Murid. Succession as per Mohammadan Law or rule of primogeniture is not applied to Darbar of Hazrat Baba Farid-udDin Ganj Shakar (Rehmat Ullah Alaiha);
(c) that the office of Gaddi/ Sajjada Nashin is not governed by Mohammadan Law of Succession.
Therefore, ceremony of Dastar Bandi will only show a person to be successor of the deceased and would not confer the title of Gaddi Nashin;
(d) that the last incumbent Dewan Ghulam Qutab-ud-Din used to consider the plaintiff/petitioner a rightful and perspective Gaddi Nashin and in 1973 the plaintiff/ petitioner performed ceremonies with permission of Auqaf Department vide letter Exh.p.1 as deposed by P. W.1 District Manager Auqaf and this fact was not categorically denied by the defendant or any of his witnesses;
(e) that the defendant has adopted two different and conflicting instances; first that he went to the Holy Macca with Ghulam Qutab-ud-Din for performance of Hajj and second that the incumbent Dewan and the defendant returned earlier and performed ceremonies but these stances have not been substantiated by any documentary evidence;
(t) that all the witnesses of the defendant have deposed the events which took place after death of the late incumbent and did not state about events that took place during lifetime of the late Dewan and only the latter would be relevant to determine the entitlement and suitability of the new Sajjada/Gaddi Nashin;
(g) that the defendant/respondent was considered to be inefficient and incompetent to act as Sajjada Nashin and the letters Exh.p.1 and Exh.P.2 and Mark-A clearly support the said factum, that no objection was raised when these documents were produced and now the defendant is estopped to raise any objection regarding their truthfulness and that the said documents were got published to get the public acquainted with the fact that the nomination of the defendant as Gaddi/ Sajjada Nashin had been cancelled;
(h) that during lifetime of the late incumbent the plaintiff/petitioner made many improvements and undertook construction work of Darbar and the said fact clearly supports the version of the plaintiff that the late Sajjada /Gaddi Nashin used to consider the plaintiff a fit person to be a Gaddi Nashin;
(i) that the defendant claims this office on the basis of Exh.D.1 but this document is rebutted by Exhs.P.I and P.II whereby nomination of defendant as Sajjada/Gaddi Nashin was cancelled and further the defendant/respondent deposed that Exh.D.1 was executed by the late Dewan at his death bed in presence of D.W.2 and D.W.14 who are close relatives of the defendant and their evidence being interested and of partisan in nature cannot be relied upon;
(j) that Muhammad Masood D.W.2 deposed that a written will was executed in favour of the defendant but no such will has been produced by the defendant/respondent on the file;
(k) That Ahmad Hassan Chishti, D.W.21 deposed that death bed nomination was stated first to him by late Dewan Ghulam Qutab-udDin and then to the relatives but the facts being very crucial to the fact in issue despite being in knowledge of the defendant was not pleaded in the statement and as such could not be taken into consideration;
(1) that the version of the defendant was that he many a times performed ceremonies but he has not shown any permission got from Auqaf Department under section 7 of the Auqaf Act and that no other tangible material has been brought on the file to support the fact that he performed ceremonies during lifetime of the late Dewan;
(m) that the version of the defendant that in the presence of the son no one can be appointed as Sajjada Nashin is disputed by the fact that brothers were also appointed as Gaddi Nashin. It is for the sitting Gaddi Nashin to appoint his successor expressly or by implication;
(n) that the defendant produced video cassettes to show that on visit of the President and Prime Minister of Pakistan the defendant acted as Gaddi Nashin. The mere presence of the defendant at the Darbar along with the said dignitaries does not prove the capacity in which he was present in these ceremonies;
(o) that the documents Exhs.D.6 to D.10 pertain to alleged criminal and civil litigation between the petitioner and the late Dewan but these documents were not confronted to the plaintiff/ petitioner when he appeared in evidence; therefore, they cannot be used as evidence against him; and ' That the judgment of the learned trial Court took into account the entire oral as well as documentary evidence produced by both the parties and its findings are well reasoned whereas the judgment and decree of the learned Additional District Judge, only took into account the statements of the plaintiff as well as defendant in deciding the will and ignored all The other evidence and circumstances brought on the file by the plaintiff/petitioner which makes the said judgment legally untenable and that the learned Additional District Judge has mixed up the question of Matwaliship and succession to the office of Sajjada Nashin and the findings of the learned trial Court as contained in Para. 26 of the judgment have been completely ignored and by comparison the judgment of the learned trial Court is more reasoned and plausible and as such to be maintained.
15. The learned counsel for Dewan Syed Maudood Masood while supporting the judgment of the learned Additional District Judge has raised the following contentions:--
(a) that the office of Sajjada/Gaddi Nashin is not the subject-matter of jurisprudence and does not concern any principle of law ennunciated by the Holy Quran and Sunnah but he is head of a Khanqah, a Mohammadan institution developed in the Sub-Continent in many respects analogous to a math where Hindu religious institution is given. Mulla in his Principles of Mohammadan Law points out that a Sajjada Nashin may or may not combine the duties of a Matwali which is essentially a secular office;
(b) that the office of Matwli is a recognized office in relation to Waqfs both in Muslim Laws and the Law of Waqfs applicable in the. Sub-Continent. Matwali is a Manager of a Waqf property and has an interest in such an office and a civil suit under section 9, C.P.C. And one for declaration under section 42 of the Specific Relief Act is competent. However, no suit for establishing a mere dignity or honour even though connected with an office is maintainable. Sajjada Nashin is an office of dignity and honour bestowed by the followers of a spiritual leader and not by Courts and a suit in respect of its entitlement is not maintainable;
(c) that often a Sajjada Nashin combines in himself the office of Matwali also or as a superior he controls the functions of Mutawali. In both cases the Sajjada Nashin has a vested interest in the properties attached to the Waqf and draws financial benefits from certain earnings of the Waqf. In such cases his entitlement as Sajjada Nashin comes within the purview of section 42 of the Specific Relief Act. The cases decided by the Courts in the Sub-Continent and in the Privy Council concerning the office of Sajjada Nashin are invariably those where Sajjada Nashin was either himself a Matwali or had a right or interest in the office. All these matters were determined with reference to the custom of a particular institution (Khanqah, Darbar, Gaddi etc.) and not with reference to the principles of Shariah. The above state of law underwent radical change firstly by the advent of successive Shariat laws which brought the subject of Waqf under the rule of Muslim Law which does not contemplate Khanqahs and Gaddi Nashin;
(d) that the late Dewan expired in 1986 when the Punjab Waqf Properties Ordinance (No,IV) of 1979 was operating. Section 7 of this Ordinance provides for the taking over Waqf property by the Chief Administrator of Auqaf and the properties taken over under previous Waqf laws were saved and governed by the Succession Laws. This section added two explanations: The first laid down the control and management of the Waqf property including control and management of religious, spiritual, cultural and other services and Rasoomat at or in the Waqf property while the second explanation stipulated that no person shall perform services or Rasoomat except with the prior permission of the Chief Administrator;
(e) that in accordance with the state of law now prevailing, the administration of the Waqf is now in the hand of Chief Administrator Auqaf and Rasoomat and religious rites observed are also controlled by that office. In other words the functions of a Matwali and of the performance of religious Rasoomat are now controlled by the Administrator Auqaf or his appointee and Sajjada Nashin is now mere office of dignity having no legal support or position and no claim for this office is legally maintainable as for the Rasoomat etc. The same can be performed only with the prior permission of the Chief Administrator. It is not the petitioner/plaintiff's case that he has such an approval nor is the suit directed against the officials of the Auqaf Department;
(t) that the respondent/defendant has performed the Rasoomat and other religious rights and functions with the approval of the Chief Administrator of Auqaf ever since the death of the late Diwan in the year 1986 except when he was stopped for this purpose by the order dated 13-8-2001 which was set aside by this Court on 7-3-2002 in Writ Petition No,16974 of 2001;
(g) that the devotees and the concerned people have accepted the respondent as their Sajjada Nashin ever since 1986 and it was precisely for that reason that he was appointed by the Auqaf Department to perform the Rasoomat also and that in view of section 7 of the Ordinance of 1979 the suit of the petitioner/plaintiff's not maintainable; and
(h) That the office of Sajjada Nashin at Pakpattan is governed by the custom and the custom of the Gaddi was that the predecessor Sajjada Nashin appointed by will his successor. The trial Court having found that there was no will to support plaintiff's claim the suit was liable to be dismissed.
16. Regarding Civil Revision No,1215 of 1996 (presently Civil Revision No,350 of 2001) filed by Dewan Azmat Said Muhammad, it has been argued by the learned counsel for the respondent that he was not a party to the original suit; that he did not make any application for impleadment during the entire pendency of the suit; that he applied for being impleaded only at the stage of appeal; that his claim is belated; that he appeared in the suit as a witness but never made a claim to Sajjada Nashini, therefore, he was estopped to make this claim at a belated stage and his revision petition merited dismissal.
17. During course of arguments besides the above contentions raised by the petitioners and respondents the following questions had also arisen:--
(i) "Whether office of Sajjada Nashin is recognized in Islam?
(ii) Whether a suit to seek a declaration of appointment as Sajjada Nashin is competent under section 42 of the Specific Relief Act?
(iii) Whether in view of the provisions of section 7 of the Punjab Waqf Ordinance, 1979 read with other relevant provisions on the subject, any other person or authority including the Court can recognize a person to be competent to act as a Sajjada Nashin?
(iv) Whether usage and custom can be relied upon to determine the status of a Sajjada Nashin?
18. Office of Sajjada Nashin is well recognized in Islam as is clear from the perusal of the provisions of Para.220 of Mulla's Muhammadan Law, which is reproduced as under:-- "220-A Sajjada Nashin is the head of a Khankah, a Muhammadan institution analogous in many respects to a math where Hindu religious instruction is given. He is the teacher of religious doctrine and rules of life and the manager of the institution and the administrator of its charities, and has, ordinarily speaking, a larger right in the surplus income than a Mutawali. But this does not mean that in every case the whole income from a Khankah is at the disposal of a Sajjada Nashin. At certain Shrines the members of the founder's family other than the Sajjada Nashin are entitled to share in the surplus offerings which remain after payment of expenses.
' The Khankahs exist in all parts of India and Pakistan, so far as can be gathered from the works relating to them, have come into existence under the following circumstances: A dervish or a Sufi of a particular sanctity has settled in some locality; so long as he has not attained sufficient importance, his place of abode is called a Takia or Astana according to his position in public estimation. His previous life and teachings attract public notice, disciplines gather round him, and a place is constructed for their lodgment and the humble Takia grows into Khankah. After his death his grave becomes a shrine and an object to pilgrimage not only for his disciplines, but for people of distance parts both Hindus and Muhammadans. The process of development indicated here is observable in the very Khankah, which forms the subject of dispute in the present case.
' The word "Sajjadanashin" (spiritual superior) is derived from Sajjada, that is, the carpet used by Muhammadan for prayer, and nashin, that is, sitting. The Sajjadanashin takes precedents on the carpet during prayers. The office of a Mutawali is a secular office, that of a Sajjadanashin is a spiritual office, and he has certain spiritual functions to perform. Sajjadanashins are not necessarily mutawalis of the properties of the institution. The office of mutawali may be in another person. A Sajjadanashin was said in this case to resemble a Mahant of a Hindu Math. A Sajjadanshin of a Khankah enjoys the unique position of being a spiritual preceptor and a mutawali. Differences between a Sajjadanshin and a Mutawali were pointed out in various judgments. The founder is generally the first sajjadnashin and after his death the spiritual line is continued by a succession of Sajjadanashin. In the absence of a direction in the wakafnama the succession to the office of Sajjadanashin is regulated by custom. One custom is that the "Bhek" or order i.e, an electoral body consisting of fakers and murids, install a competent person generally a son of nominee of the late Sajjadanshin. In a case before the Privy Council the "Bhek" delegated their power to elect a Sajjadanshin and it was held that the appointment of the Sajjadanashin made in this manner was valid. If the Court is appointing a Sajjadanashin it should take account of the spiritual tradition and appoint if possible a descendant of the founder.
' The status of a Sajjadanashin is higher than that of a Mutawali. He is the head of the institution and has a right to exercise supervision over the Mutawali's management. But the Sajjadanashin may be a Mutawali and in that case, with reference to the waqf property he is in no better position than a Mutawali. He has no power to borrow money for the purpose of carrying out the incur debts, with the sanction of the Court, for the preservation of the waqf property. The Court may remove a Sajjadanshin for misconduct and when framing a scheme may separate the offices of Sajjadanashin and Mutawali. A minor cannot be appointed a Sajjadanashin. If land purchased by the founder of a hankah has been held by the Sajjadanashin for several generations it is presumed to be waqf and it may be shown that the grant was a personal gift to the Saiiadanashin even though his descendants make provisions out of the income for the upkeep of the Khankah.
Property given for the upkeep of buildings and schools connected with a Khankah cannot be attached in execution of a personal decree against the Sajjadanashin.
"Pakistan" It has been held that a Khankah is essentially private property in the sense of an institution managed by the members of the founder's family, so that the rights of managing the property receiving offerings, Initiating and instructing disciplines and holding urs, etc. Devolve upon particular persons, generally the Mutawali, of members of the founder's family.
' When a Muslim dedicates property to a particular Gaddi (and does not transfer it to a trustee for a public purpose) there being a dedication for a religious or charitable purpose the property becomes waqf in accordance with the definition of Waqf in the Mussalman Waqf Validating Act, the West Pakistan Waqf in commentaries on Muslim Law. The property, therefore, becomes waqf and the Gaddinashin is only the mutawali of it.
19. It can hence be said that office of a Sajjada Nashin of a Khankah is fully recognized in Islam. The only difference is that a Sajjada Nashin can be Mutawali as well as Sajjada Nashin whereas a Mutawali may not be a Sajjada Nashin, as a Mutawali can only be a Manager and not a spiritual guide. In case of the Darbar in question ceremony of opening of "Bahishiti Darwaza" and other spiritual ceremonies during whole of the year has to be performed by the Sajjadanashin and not the Auqaf Department. Therefore, merely because the Shrine has been taken, over by the Auqaf Department it does not mean that office of Sajjadanashin has become extinct or subordinate to the Administrator Auqaf whose status will be just that of a Mutawali.
20. It may be mentioned here that even now the keys of "Khana Kaaba" are to be kept by the Hashmits' and it is they who are to open the door of Kaaba-Tulla on the day of "Gussal". The tradition also shows that a spiritual privilege is recognized in Saudi Arabia. Similar is the position regarding Rauza-e-Athar of Holy Prophet (may peace be upon him), which is situate in "Masjid-e- Nabvi" doors whereof are also to be opened by privileged persons whose nature of privilge is that of Sajjadanashin, therefore, the above referred tradition provides a support that office of Sajjadanashin is well recognized in Islam.
21. The privilege of Sajjadanashin does fall within the definition of a right/legal status which could be recognized and enforced by a Civil Court, as per provisions of section 9 of C.P.C. As a person who is holder of the privilege/status mentioned above, can file a suit under section 42 of Specific Relief Act as privilege falls within the definition of "legal character". Hence, the suit filed by the petitioner is competent under section 42 of the Specific Relief Act.
22. As regards the method of determination/appointment of Sajjadanashin it is well established proposition of law that factum of appointment can be determined on the basis of evidence produced in Court, which can be a written will besides conduct of treatment of the deceased Sajjadanashin during his lifetime, which will make it clear that who is the person who was nominated/appointed to act as Sajjadanashin after his death. It is to be noted that probability is a piece of evidence and can be relied upon as an item to prove a fact as held in cases of The State v.
Habib-urRehman PLD 1983 SC 286 and Said Wali v. Yaqoob Khan and another PLD 1983 SC 440. In the case in hand as there is no written deed appointing a particular person as Sajjadanashin it is the custom or usage, which is to determine that who is person to act as next Sajjadanashin and this finding can be recorded by the Court, on the basis of evidence. It may be submitted that usage and custom is well recognized spice of law under the jurisprudence besides laws made by legislature and the precedents.
23. Power of "Control" under the West Pakistan Waqf Properties Ordinance, 1961, which has now been substituted in Ordinance of 1979, does not authorized Chief Administrative Auqaf to prohibit the use of waqf place for spiritual ceremonies. It is, therefore, clear that Auqaf authority has no jurisdiction to appoint or interfere the appointment of Gaddinashin as held in cases of Mian Ahmad Ali and others v. Rehabilitation Authority and others PLD 1964 SC 229; Altaf Husain v. Chief Settlement Commissioner and others PLD 1965 SC 68 and Sheikh Inayatullah and others v. M.A.
Khan and others PLD 1964 SC 126.
24. The devolution of the office of Sajjada Nashin firstly depends upon the provisions of Waqfnama or trust deed of F the incumbent but in the present case no Waqfnama had been produced in the evidence by either of the parties, therefore, in its absence the order of devolution will be regulated by the customs and usages which prevailed with regard to the K particulars of endowment. PLD 1970 Lahore 728 it has been laid down that succession of the office of the Sajjada Nashin does not depend on the ordinary law of property and no right of inheritance is attached to this office.
Succession to the office depends on the rule, if any made by the founder. Where the rules are not expressed through deed of endowment they may be deduced from the usages that governs the particular institution but ordinarily the general usage is for the last incumbent to nominate his successor. This principle was further supported in AIR 1938 Privy Council 2002; AIR 1933 Lahore 905 and ILR 19 Calcutta 203. In the instant suit the petitioner/plaintiff pleads that succession to the shrine of Hazrat Baba Farid is governed by custom and usages in the absence of will but the defendant/ respondent extends three versions firstly that incumbent Sajjada Nashin has right to nominate his successor failing which the successions depends upon the rule of election when the descendants of Hazrat Alauddin Maoj Darya, the Mureeds and the followers etc. Assemble to elect a suitable person as Sajjada Nashin, Thirdly, the office of Sajjada Nashin is governed by Muhammadan Law and on the death of incumbent Gaddi Nashin his elder son becomes entitled to adorn the said office.
25. The office of Sajjada Nashin is a spiritual one and it is logical that the incumbent Sajjada Nashin should have the authorities to select a man as his successor who after him can best look after the work of the office. He also has the power of taking measure, which is Chief Emblem of religious distinction. In ILR 19 Calcutta 203, P.C. it has been observed that nomination by the last Sajjada Nashin was supposed to carry the guarantee that the nominee knows the precepts, which he is to communicate to the disciples. In fact Hazrat Baba Farid himself had nominated three Gaddi Nashins namely Shah Badaruddin, Shah Allauddin at Pakpattan Sharif and Sh. Baharuddin of Hansi.
It has also been held in ILR 22 Calcutta 324 P.C. that custom of succession relating to the shrine of Hazrat Baba Farid was that Sajjada Nashin in the office was competent to nominate his successor during his lifetime provided the nominee was an agnate and Mureed. Thus it is almost the settled principle that the office of the Gaddi Nashin/ Sajjada Nashin of Baba Farid is governed by custom and usage that perspective Gaddi Nashin is appointed by incumbent Gaddi Nashin through written will or oral or implied. Muhammadan Law of Inheritance or the Law' of Primogeniture does govern the said office. Furthermore the descendants of Alauddin Maoj Darya or their followers are not entitled to make the nomination of the perspective Gaddi Nashin and lastly Dastar Bandi is no root to the title to the Gaddi Nashin rather it is merely an installation ceremony.
26. In the instant case the question as to who out of the petitioner/plaintiff or respondent/defendant has a better claim established through evidence on the record to the appointment and nomination of Gaddi Nashin of Darbar. The petitioner/plaintiff bases his title on the oral and implied nomination by late Qutabuddin, the late Dewan that he used to consider him as rightful and legal perspective Gaddi Nashin; that he performed ceremonies in the year 1973 with the consent of incumbent Gaddi Nashin after getting permission of the Auqaf Department vide letter Exh.P.1 which has been proved by the District Manager Auqaf Department P.W.1, who deposed that late Ghulam Qutabuddin left for Haj in 1973 and the petitioner/plaintiff was appointed to perform the ceremony during that year. It has been made clear in letter Exh.P.1 that no one except the petitioner/plaintiff was entitled to perform the ceremonies. The contention of the respondent/defendant that the petitioner did not perform the ceremonies in that year because the late Dewan returned earlier and himself performed the ceremonies is not supported by any cogent material. The issuance of Exh.P.1 by the competent authority authorizing the petitioner/plaintiff to perform ceremonies stands un-rebutted and no cogent evidence has been brought on the file to prove that petitioner/plaintiff did not perform ceremonies in the year 1973. The contention of the respondent/ defendant that he left with late Dewan for Haj in 1973 is also not proved by any evidence.
27. It is claim of the petitioner/plaintiff that he had effected various improvements in the premises of Darbar during lifetime of the late Dewan according to his desire has not been denied by the respondent. The improvements made by the petitioner/ plaintiff in the premises of the Darbar during lifetime of late Dewan clearly show that he was taking interest in improving the affairs of Darbar to the liking of the late Sajjada Nashin who considered him a proper person to succeed him.
Another contention of the petitioner/plaintiff is that the late Dewan considered the respondent/ defendant inefficient and incompetent for the appointment to the office of Gaddi Nashin and to support the said factum Exhs.P.1 and P.2 and Mark "A" had been produced on the file. These documents were purported to be issued by late Dewan stating that the respondent/defendant was inefficient and incompetent, disobedient and so his earlier nomination to the office of Sajjada Nashin was cancelled and had further expressed his desire to subsequently appoint his successors from his other sons. The respondent/defendant has raised objections that the said documents had not been properly produced and there was no such evidence. It is to be noted that the claim of respondent/defendant is based on a similar publication produced by him as Exh.D.1 whereby he was nominated as a Sajjada Nashin by the late Dewan. If the document Exh.D.1 is sufficient to show the nomination of respondent/defendant as Sajjada Nashin. Similarly documents Exhs.P.1, P.2. And Mark "A" would also be sufficient to cancel his such nomination on the premise of his incompetency and inefficiency. In fact the petitioner/plaintiff intended to examine P.W.3 to support the said documents but he was dropped on the statement of the counsel for the defendant that such documents could be exhibited in the statement of the counsel for the plaintiff. When these documents were exhibited in the statement of the petitioner's counsel then no objection was raised to that. Therefore, now the respondent is estopped to raise any objection to the admissibility in evidence of these documents which now stand validly exhibited and proved on the file. These documents clearly show that the nomination to the office of Sajjada Nashin which the respondent/defendant claims through Exh.D.1 has been duly cancelled.
28. The contention of the respondent/ defendant that the nomination to the office of Sajjada Nashin once made by Exh.D.1 by the late Dewan cannot be cancelled subsequently is devoid of substance because an incompetent Sajjada Nashin during his lifetime can always change his will or cancel the nomination made by him. No legal impediment is attached to the said acts of late incumbent.
29. Another basis for claim of respondent/defendant is that his father late Dewan had revalidated his nomination Exh.D.1 in the death bed in the presence of Pir Masood Chishti, Muhammad Hussain Chishti, Falak Sher Chishti and Shahid Ali Shah. Muhammad Masood Chishti D.W.2 is maternal uncle of defendant and he considered the defendant as a son. He had strained relation with the petitioner/ plaintiff. He deposed that the defendant being elder son of the late Dewan was entitled to the office of Sajjada Nashin and the petitioner being brother of the late Dewan could not appointment to the said office. He deposed that defendant was nominated by a will. However, no such will had been produced in the evidence. Falak Sher, D.W.14 is son-in-law of the late Dewan and brother-in-law of the respondent/defendant. He too deposed about the entitlement of the defendant to the office of Sajjada Nashin which again is not a valid legal proposition for appointment to the office of Sajjada Nashin. Shahid Ali, D.W.21 is the general attorney who pursued the suit on behalf of respondent/ defendant. He deposed that the late Dewan appointed the defendant as his successor on his death bed firstly in his view and then he called the other relatives. However, all these facts had never been urged in the written statement and is a distinct deviation from the pleaded stance of respondent/ defendant. Thus the stance of the defendant that he was nominated as a Sajjada Nashin through Exh.D.1 stands repudiated by documents Exhs.P.l, P.2 and Mark "A" and that he was nominated as a Sajjada Nashin by the late Dewan at his death bed is replete with doubts and as such cannot be believed.
30. The defendant has also pleaded that he used to perform the ceremonies in the lifetime of the late Dewan. According to section 7 of the Auqaf Act, 1979 the Auqaf Department permits a person to perform services or ceremony relating to any Darbar. No such authority letter allowing the defendant to perform the services or ceremony relating to Darbar had been produced. On the contrary the petitioner/ plaintiff has produced a document Exh.P.1 whereby he had permitted to perform the ceremony in the year 1973 in the absence of late Dewan when he left for Haj. The defendant has also not brought on the file that in which year and what ceremonies he had been performing during the lifetime of the late Dewan. In fact some time he used to accompany the late Dewan at the time of performance of the ceremonies which would not mean that he had been performing the said ceremonies because along with late Dewan at the time of performing the ceremonies other relatives including the petitioner/plaintiff also participated.
31. After the death of late Dewan the petitioner/plaintiff took part in Dastar Bandi and he accepted the defendant as Dewan at the time of visit of late General Muhammad Zia-ul-Haq President of Pakistan, Muhammad Khan Janejo Prime Minister of Pakistan and Government of Punjab in the year 1988 to support the said factum the defendant has produced video cassette Exh.D.4 and Exh.P.W.4/10. It has been further pleaded that the defendant-respondent distributed Chadar, Langar/ Toaam to guests and he had put Chadar on the back of President of Pakistan in his capacity as Sajjada Nashin and the plaintiff/petitioner was present and he did not object to that an now he was estopped to deny the said status of the defendant.
32. It is to be noted that the video cassette relating to the ceremonies which took place after the demise of late Dewan in which all the close relatives were present. The Dastar Bandi of respondent/defendant was held as elder son being successor of the person of late Dewan and not as his Sajjada Nashin because it is customary that after the death of a person Dastar Bandi of his elder son is held who then assume the role of head of the family which is quite distinct from the office of Sajjada /Gaddi Nashin. The head of the family only looks after the affairs of the family whereas. Sajjada/ Gaddi Nashin is a spiritual office who has to look after the affairs of the Darbar, welfare of the Murecds and providing guidance to them in religious and temporal matters.
33. The upshot of the above discussion is that the petitioner/plaintiff had been performing the ceremonies with the consent of the incumbent Dewan had been making improvements in Darbar, arrangements for Toaam during the month of Ramzan for the followers, the nomination of the defendant and his subsequent cancellation make out a reasonably valid case in favour of the petitioner/plaintiff.
34. The learned trial Court had fully discussed the entire evidence in its right perspective whereas the learned appellate Court while setting aside the trial Courts judgment only discussed and relied upon the solitary statement of Dewan Bakhtiar Said Muhammad P.W.6 and P.W.16, Dewan Maudood Masood D.W.19 and did not advert to the other evidence on the record in determining the suitability of the person who is to hold the office of Sajjada Nashin. The well reasoned finding of the facts reached at by the learned trial Court with full discussion of fact has been set aside by the learned first appellate Court on the basis of conjectures and surmises. Therefore, considering the law reported as PLD 1981 SC 302. I find that the judgment of the trial Court is comprehensive and better reasoned as compared to the judgment of the first appellate Court.
35. During hearing of this petition the petitioner had brought on the file official document A.1 and enquiry report A.2 and an F.I.R. A.3 which show that the respondent defendant had not been diligent in the performance of his duties and functions as a Sajjada Nashin and had mismanaged the affairs which resulted in grave incident in which lot many disciples lost their lives. These documents are additional factors which pointed out to the inefficiency and incompetency of the respondent/defendant as stipulated in documents Exh.P.1, Exh.P.2 and Mark "A" by the late Dewan while cancelling his earlier nomination for office.
36. During the course of hearing of first appeal in the Court of learned Addl. District Judge Pakpattan, Dewan Azmat Said Muhammad the younger son of late Dewan Qutabuddin moved an application under Order I, rule 10 read with Order XLI rules, 32, 23-A and sections 151, 107, C.P.c. To the effect that late Dewan Qutabuddin had cancelled the nomination of his elder brother Dewan Maudood Masood as Sajjada Nashin in the year 1979; that in their family in the presence of sons a brother could not be appointed as a Sajjada Nashin and as such claim of Dewan Bakhtiar Said Muhammad to the office of Sajjada Nashin was legally untenable; that he was locked in litigation with the late Dewan and was not qualified to be appointed to the said office and that the decree of the learned trial Court in favour of Dewan Bakhtiar Said Muhammad was legally untenable; that the petitioner was a necessary party in the matter in issue and both Dewan Bakhtiar Said Muhammad and Dewan Maudood Masood deliberately did not implead him in the suit proceedings and he prayed to be impleaded as a party. Both Dewan Maudood Masood and Dewan Bakhtiar Said Muhammad resisted the petitioner's said application and refuted his claim of being a necessary party.
37. The claim of Dewan Azmat Said Muhammad is that appointment of Gaddi Nashin/ Sajjada Nashin to the shrine of Hazrat Baba Fariduddin Gunj Shakar (Rahmatullah Alaiha) was through custom by which a person to be appointed as to agnate a disciple and the appointment was to be made by will and according to the case of both the parties they have no will in their favour and the petitioner Dewan Azmat Said Muhammad being in possession of a will dated 31-1-1986 of late Dewan appointed him Sajjada Nashin was entitled to be arrayed as party to the suit proceedings and the matter needs to be remanded to the learned trial Court for decision afresh after impleading him as a party.
38. On the contrary the case of both Dewan Bakhtiar Said Muhammad and as well as Dewan Maudood Masood is that the will dated 3-1-1986 being relied upon by Dewan Azmat Said Muhammad is a forged and fictitious document and that the present suit had been filed on 1986 and was decided on 19-7-1993 and that Dewan Azmat Said Muhammad had appeared before the Court as D.W. In favour of Dewan Maudood Masood on 25-10-1989 for evidence which could not be recorded due to absence of the parties' counsel and in case he was in possession of any will he would have sought to be impleaded as a party and would have himself claimed to be a Sajjada Nashin and that he is estoppel to make any such claim after lapse of so many years.
39. Admittedly, the petitioner Dewan Azmat Said Muhammad is younger brother of Dewan Maudood Masood. He also appeared in evidence as D.W. On 25-10-1989 in favour of his elder brother. He was thus aware of the suit proceeding. If he was in possession of any will in his favour or if he had any claim to the office of Sajjada Nashin then it is not understandable why he remained silent for such, a long period when the suit remained pending before the trial Court for almost six years. If he was in possession of any will in his favour he would have made it known to every one and would not have remained silent after the same had been allegedly made in his favour.
Therefore, the learned first appellate Court had rightly dismissed his petition dated 6-9-1995 under Order I, rule 10 read with sections 151, 107 and Order XLI, rule 33 read with rule 23-A, C.P.C. I feel no force in the petitioner's contention and as such his revision petition is dismissed.
40. In view of the above discussion I find that the judgment dated 8-5-1996 of the learned Additional District Judge is legally not maintainable and as such is set aside and the judgment of the learned trial Court dated 19-7-1993 is very well reasoned and proceeds on the appreciation and review of the entire evidence, whereby the suit of Dewan Bakhtiar Said Muhammad is decreed is restored.