' MAULVI ANWARUL HAQ, J.---According to the contents of this writ petition, petitioner No,2 (Chief Administrator of Auqaf Punjab Zone, Lahore) issued a Notification on 28-1-1970 under section 6 of the West Pakistan Waqf Property Ordinance, 1961. This Notification was published in official Gazette on 11-4-1970. (Copy Annex-A). The private respondents filed a suit against the petitioner, which was decreed by the learned Trial Court on 13-5-1976. It was held that the property stated to be taken over under the said Notification is not a Waqf property and is a private property of the private respondents. First appeal filed by petitioner No,2 was dismissed by the learned District Judge, Sargodha on 5-11-1977. A Review application was filed, which was also dismissed by the learned District Judge on 6-7-1978. All these three orders have been questioned by filing this writ petition primarily on the ground that the said judgments/orders are without jurisdiction as only District Judge has jurisdiction to decide the said question under section 7 of the said Ordinance, 1961.
2. This writ petition in the first instance was allowed ex parte on 14-12-1995. Judgment was set aside on an application of private respondents on 16-5-1997. Then it was heard and allowed on 26-9- 2000. Private respondents filed CA No, 1476 of 2000, which was allowed by Hon'ble Supreme Court of Pakistan on 8-12-2006. The case was remanded back to this Court to hear the matter after adverting to the objections as to the maintainability of writ petition as also considering the earlier judgments passed by the Civil Court and also to hear the Evacuee Property Trust Board.
3. Notice was issued to the said Board and its learned counsel has put in appearance.
4. The learned counsel for petitioners contends that the Provisions of section 7 of West Pakistan Waqf Properties Ordinance, 1961 are absolutely clear and leave no manner of doubt that only way in whichthe Notification issued under section 6 can be questioned and the only authority which is competent to decide as to whether the property is Waqf or not is District Judge as is mentioned in section 7 of the said Ordinance. He has also brought to my notice judgment, dated 22-9-2004 passed by learned Additional District Judge, Sargodha, whereby an application filed under section 7 of the said Ordinance has, in fact, been dismissed by the said learned Judge. According to the learned counsel the property being Muslim Waqf, Chairman of Evacuee Trust Properties Board
(ETPB) would be having jurisdiction.
5. The learned counsel for private respondents contends that the Notification was issued with reference to a judgment of Hon'ble Supreme Court of Pakistan, dated 12-11-1963 reported as PLD 1964 SC 229 (Ahmed Ali v. Rehabilitation Authorities). However, the Supreme Court practically allowed Review Application No,11 of 1964 on 16-10-1964 (Annex-R) having determination of nature of property open. Thereafter a suit was filed and it was decreed on 14-11-1968 (Annex R-2) holding that the property was not Waqf. The learned District Judge dismissed the first appeal on 14-4-1967 (Annex R-3) while R.S.A. No,576 of 1969 was dismissed for non-prosecution on 29-11-1993. His precise contention is that long before issuance of the said Notification (Annex-A) the Civil Court had declared that. The property was not Waqf and was evacuee private property. According to him the Civil Court has ample jurisdiction. He cites the case of Chief Administrator Auqaf, Sindh, Thandi Sarak, Hyderabad and another v. Mst. Masooma (PO) 2001 SC 75).
6. On the other hand, Mian Qamar Uz Zaman, Advocate, for ETPB, contends that the property having been held to be evacuee property exclusive jurisdiction to decide the matter vests in the Chairman of the Board under section 8 of the Evacuee Trust Properties (Management and Disposal) Act, 1975 and in fact a reference stands filed and is being considered.
7. I have gone through the copies available on record and appended with his W.P. There is no manner of doubt in my mind that although CRP No, 11 of 1964 for review of judgment, dated 12-11- 1963 passed in C.A. No,65 of 1962 was dismissed on 16-10-1964, but the determination of nature of property was left open and it was observed that the Review Petitioners could resort to such remedy for establishing the fact as they were advised. It was pursuant to this order that a civil suit was filed on 13-5-1965, which was ultimately decreed by the learned Senior Civil Judge, Sargodha on 14-11- 1969 (Annex R-2) and it was held that the suit-land is an evacuee property and stood lawfully transferred to the private respondents. This judgment was upheld in First Appeal by learned District Judge, Sargodha on 14-4-1969. While R.S.A. No, 576of 1969 (Annex.R-4) was dismissed for non- prosecution on 29-11-1993. It was with reference to the said earlier judgment that the suit as well as the appeal was decided vide impugned decree and order. Even, otherwise, it is matter of record that the said Notification was never placed on record. Be that as it may the judgment in case cited above (PLD 2001 SC 75) fully supports the contention of Ch. Riyasat Ali, Advocate, counsel for private respondents that the civil Court had jurisdiction to decide the nature of property i,e, whether it is a Waqf or not. The judgment of learned District Judge dismissing the first appeal was not questioned by filing any R.S.A. Or civil revision as the case may be. A review application was filed. To my mind grounds for reconsideration were not mentioned therein and it was rightly dismissed by the learned District Judge.
8. This leaves the question of jurisdiction of the Chairman. A reading of section 8 of Evacuee Properties (Management and Disposal) Act, 1975 would show that where a question arises whether an evacuee property is attached to a charitable, religious or educational trust or institution it shall be decided by the Chairman. It will thus be seen that the Chairman would be having jurisdiction regarding a property with reference whereto there is no dispute that it is evacuee and the only dispute is whether the evacuee property is attached to the said trust or institution. The petitioners are claiming the property to be part of Muslim Waqf and thus the dispute cannot be decided by the said Chairman. It could have only been decided rather had already been decided by a Civil Court; whereas the question arising between the private respondents on the one hand and ETPB on the other as there is no dispute qua the said two parties that the property was evacuee would be preferable to the Chairman ETPB and to be decided in accordance with law. The WP is, accordingly dismissed without any order as to costs.