' ABDUL HAMEED DOGAR, J.--- This petition is filed by petitioner Chief Administrator Auqaf Punjab against the judgment, dated 26-8-2002 passed by learned Judge in Chambers of Lahore High Court, Lahore whereby F.A.O. No,109 filed by him was dismissed, however, he was held entitled to recover ground rent-regarding the said Waqf land underneath the shops and to take other steps in accordance with law.
2. Briefly, stated facts giving rise to the filing of instant petition are that land measuring 2 Kanals, 7 Marlas and 3 sq. Ft. Was purchased by Haji Muhammad Ashraf predecessor-in-interest of respondents, his father and brothers from Dewan Ghulam Qutubuddin vide registered sale-deed dated 15-4-1961 for a consideration of Rs,80,000 which was incorporated in 'the Revenue Record vide Mutation No,534 attested on 18-6-1961, thereafter under private partition effected vide Mutation No,1642 attested on 20-9-1963 the disputed land came to the share of Haji Muhammad Ashraf predecessor-in-interests of respondents where he constructed 72 shops after the sanction of Municipal Committee. The property of the above said vendor was taken over by the petitioner vide Notification dated 17-1-1960 which was amended by Notification dated 8-9-1969, yet another Notification was issued on 17-12-1969, all these Notifications were challenged by vendor Dewan Ghulam Qutubuddin but without any success. Later on vide Notification dated 19-9-1972 published in the Gazette dated 28-9-1972 `Teh Zamini Rights' were taken over by the petitioner as a Waqf property belonging to the shrine of Hazrat Baba Farid Sahib of Pakpattan Sharif. This Notification was challenged by respondents through application under section 7 of the West Pakistan Waqf Properties Ordinance, 1961 which was dismissed by learned District Judge, Sahiwal on 18-5-1977. This order was challenged by respondents before learned Lahore High Court through F.A.O. No,136 of 1977 and during pendency of appeal it was ordered that respondents are entitled to receive rent from their tenants subject to deposit of Teh Zamini rent with the petitioner. In the meanwhile another.
' Notification dated 15-10-1977 was issued whereby the structure was also taken over by the petitioner. This Notification was published in the Gazette of Pakistan Extraordinary on 12-3-1978. Thereafter F.A.O. No,136 of 1977 was withdrawn and application under section 11 of the Auqaf (Federal Control) Act, 1976 was filed on 10- 4-1978 before learned District Judge, Sahiwal. Wherein petitioner filed written statement raising objection to the maintainability of the suit being barred by time and that the matter of the land underneath the structure stood decided. The learned trial Court allowed the application of respondents vide judgment, dated 5-4-1982. Feeling aggrieved petitioner filed F.A.O No,109 of 1986 before learned Lahore High Court, Lahore which was dismissed vide impugned judgment as stated above.
3. We have heard Messrs Riaz Kiyani, learned Advocate Supreme Court for the petitioner and Ashtar Ausaf Ali, learned Advocate Supreme Court for the respondents at length and have gone through the record and proceedings of the case in minute particulars.
4. Learned counsel for the petitioners vehemently contended that learned High Court has not appreciated the facts of the case in its true perspective which resulted in miscarriage of justice. He further contended that petition filed by respondents was barred by time. According to him, Notification in dispute was published on 15- 10-1977 whereas the petition was filed on 9-4-1978 beyond the period of 30 days as such was hit by the principles of limitation. He further contended that through Notification dated 19-9-1972 Teh Zamini Rights' and through amended Notification dated 15-10-1977 the land under the shops along with complete structure raised on the land was taken over by the petitioner. He contended that since a building exists on the land before its purchase by the respondents which was demolished and the amount spent in raising structure on the property belonging to another cannot subsequently accrue any right or title on the same.
5.On the other hand learned counsel appearing for respondents controverted the above contentions and supported the impugned judgment. He contended that the petition filed by respondents before learned District Judge, Sahiwal was within time. He contended that notification was published on 12-3-1978 and respondents applied for the copy of Notification on 30-3-1978 which was supplied on the same day. Then he filed application under section 11 of the Auqaf (Federal Control) Act, 1976 before Additional Sessions Judge, Sahiwal on 9-4- 1978, as such the same was within time. He further contended that superstructure on the plot in question cannot be treated as Waqf property as the structure was raised to the knowledge of the petitioner and the amended Notification was issued with mala fide and there exists no ground to hold that superstructure on the land was Waqf property. In support of his contentions he placed reliance on the case of Chief Administrator of Auqaf, Punjab, Lahore v. Mian Ghulam Fareed and others 1993 SCMR 643 and Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan PLD 1971 SC 376.
6. Admittedly Notification dated 15-10-1977 was published on 12-3-1978 and respondents challenged the same on 9-4-1978. Mr. Muhammad Siddique, an officer of Printing Corporation of Pakistan who appeared as P.W.1 stated the reasons for delay in the publication of the Notification was that the Corporation was called upon by the Federal Government to publish the Gazette pertaining to the elections. P.W.2 Akbar Ali, Record keeper of petitioner stated that the Notification was received on 18-3-1978. In view of this fact of the matter it was held that the petition was within time. According to the Revenue Record the disputed land was in the ownership of Dewan Ghulam Qutabuddin or in the earlier records of his father which was purchased by the respondents. .Petitioner has failed to rebut the plea of the respondent about ignorance of nature of land or that it was ever used for any Waqf purposes. It was held in the case of Haji Ghulam Rasool and others referred (supra) that the structures are not Waqf properties while the other immovable properties were such properties. It was also held in the case of Mian Ghulam Fareed (supra) that disputed land was Waqf but structures thereon. Were not Waqf and Auqaf Department was entitled to recover rent from disputed land which was Waqf property. In view of above, we are of the view that the impugned judgment is well in accordance with law and does not warrants interference by this Court. Accordingly, the petition being devoid of force is dismissed and leave to appeal refused.