' SYED HAMID ALI SHAH, J.--- Civil Revision No,242 of 1997, titled as "Mst. Karam Noor and others v.
Mst. Amna Begum and others" was disposed of along with Writ Petition No,1226 of 1995 through consolidated judgment, dated 19-2-2003, whereby learned Court affirmed and upheld the judgment and decree of the lower Appellate Court, dated 16-5-1997. Learned Appellate Court accepted the appeal and found that the suit is barred by limitation and observed that plaintiff failed to prove or establish that will deed as well as sale-deed are void documents.
' Instant application under section 12(2), C.P.C. Moved on behalf of Masjid-e-Ahle Hadees, it's President and General Secretary, assails the judgments and decrees dated 19-2-2003 and 16-5- 1997, passed by this Court and learned lower Appellate Court respectively.
2. Synoptical background of the instant controversy, is that Fazal Din son of Qadir Bukhsh owned and possessed a three storeyed constructed house with shops adjacent to it, in Mohallah Shah Nazar, Rawalpindi. He in his life time executed a will and got it registered on 8-12-2003 (Exh.P.5), wherein he declared that his property (now the suit property) will vest, after his death, in the ownership of Masjid-Ahle Hadees, situated in Mohallah Shah Nazar, which was constructed by late Haji Karim Bakhsh. According to the express terms of the deed the wife of donor Mst. Noor was to utilize the income and rent of property for herself during her life but was not vested with the power to mortgage or sell the suit property. Abdul Ahad (Mutawalli) was conferred power to mortgage or sell the property and utilize the proceeds, thereof for the improvement of mosque according to his desire, after the death of Mst. Noor. Both Fazal Din and Mst. Noor died in the year 1937. Anjuman- eAhle Hadees took over the possession of the suit property after the death of Mst. Noor. The Anjuman through its President (Hakim Moulvi Abdur Rehman) and two members (Muhammad Hussain and Munshi Azizuddin), on the basis of resolution of general body, sold the suit property (the house and shops) to two brothers namely Mirza Muhammad Zaman and Muhammad Ramzan vide a registered sale-deed (Exh.P.4) dated 20-7-1940. Legal heirs of Lal Din (respondents Nos.1 to 10) assailed the will as well as sale-deed and all subsequent decrees and family settlement, in the civil suit. It was asserted in the suit that plaintiff is sole legal heir of Mst. Hassan Jan, the sister of Fazal Din. She looked after her brother during his life time and in lieu thereof Hassan Din gifted the suit property to her. Defendants contested the suit, controverted the assertions of the plaint and raised various preliminary objections. Learned trial Court, on conclusion of trial, decreed the suit in favour of the plaintiffs to the extent of house (House No,199-AA) and the same was dismissed to the extent of shops (Shops Nos.197, 198 and 200), vide judgment and decree dated 8-1-1997. Both the sides filed the appeals and assailed the judgment and decree. The appeal of respondents Nos.11 to 25 titled as "Mst. Amina Begum and others v. Mst. Karam Noor and others" was accepted while appeal of respondents Nos.1 to 10 titled as "Mst. Karam Noor v. Mst. Amina Begum and others" was dismissed vide consolidated judgment and decree dated 16-5-1997. Respondents Nos.1 to 10 filed revision (Civil Revision No,242 of 1997) and assailed the findings of Courts below. The orders passed, in the parallel proceedings i,e, ejectment petition under Rent Restriction Ordinance, were assailed in Writ Petition No,1226 of 1995. Revision petition as well as the writ petition was dismissed through a consolidated judgment dated 19-2-2003. The leave to appeal was refused by the Honourable apex Court through a common judgment dated 6-5-2003.
3. Masjid Ahl-e-Hadees, Jamia Masjid Road, Rawalpindi statedly registered body (applicant No,1 herein) claims that Fazal Din declared the will in respect of suit property in its favour and not in favour of Anjuman-e-Ahle Hadees. The parties litigated upto Honourable Supreme Court, without impleading the applicants as party in the lis. The applicants being necessary as well as proper party remained unrepresented. The applicants filed objections in the proceedings for the execution of decree, which respondents Nos.11 to 25 filed against respondents Nos.1 to 10. The executing Court issued warrants of possession and possession of the house was delivered through bailiff. They (respondents Nos.11 to 25) were however in possession of the shops. Through instant application under section 12(2), the applicants seek that judgments and decrees be set aside on the grounds that the judgments have been procured through misrepresentation and fraud.
4. Learned counsel for the applicants contended that the impugned judgments and decrees, which respondents Nos.11 to 25 have procured, are the result of fraud and misrepresentation. Learned counsel contended that will dated 8-12-1923 (Exh.P.5) reflects that property was bequeathed in favour of Masjid Ahl-e-Hades constructed by Haji Karim Bakhsh. Moulvi Abdul Ahad was authorized to deal with the property, mortgage or sell the same and utilize proceeds thereof for Masjid Ahl- eHadees. The sale-deed (Exh.P.4) was executed on behalf of Anjuman-eAhl-e-Hadees through Moulvi Abdur Rehman and two other members who were never conferred, any power under the deed of gift/trust to mortgage or sell the property. Learned counsel referred to Para.207 of Mahomedan Law by D.F. Mulla and submitted that Mutawalli has no power to sell the property of trust, if the deed does not expressly provide for sale of the property. Learned counsel added that Mutawalli can alienate trust property with the permission of the Court only. He emphasized that Moulvi Abdur Rehman, Muhammad Hussain and Munshi Azizuddin being office-bearers of Anjuman-e-Ahl-e-Hadees sold the property which was never bequeathed in favour of Anjuman- e-Ahl-eHadees. The property was bequeathed to Masjid Ahl-e-Hadees and Moulvi Abdul Ahad was only authorized to sell or mortgage the same. Sale by a person without any express authority in trust deed, is illegal and void transaction. Learned counsel supported this contention by referring to the case of "Zahid Farooq v. Anjuman-e-Islamia 1995 SCM R 1584. Learned counsel contended that Court was misled by respondents Nos.11 to 25 that Moulvi Abdur Rehman was Mutawali and was empowered to sell or mortgage the property. Learned counsel submitted that Anjuman-e-Ahl-e- Hadees sold the property statedly on the basis of resolution of house in its meeting dated 6-7-1940.
The minutes of the meeting were never brought on record. Learned counsel contended that trust/gift/will was created in favour of Masjid Ahl-e-Hadees, but both the sides kept Masjid Ahl-e- Hadees out of litigation. The applicants were neither impleaded as party nor they were informed of the litigation between respondents Nos.1 to 10 on one hand and 11 to 25 on the other hand. The property was delegated in favour of Masjid Ahl-e-Hadees and any judgment passed in its absence is ineffective and liable to be set aside. Learned counsel contended that mosque is recognized by Muslim jurists as a juristic person and a valid gift can be made in favour of mosque. Learned counsel. Referred to the case of Maula Bux v. Hafiz-udDin and others AIR 1926 (94) IC 7 to support this contention. While referring to the case of Masjid Shahid Ganj and others v. Shiromani Gurdwara Pabandhak Committee, Amritsar and another 1967 I.A. 251, it was contended that neither adverse possession can be claimed against a Waqf property nor it can be alienated without permission of the Court. Learned counsel contended that a person who is adversely affected by a judgment of a Court, can file application under section 12(2), C.P.C. Even though he was not a party to the proceedings. Learned counsel contended that language employed in section 12(2) is "person" and not judgment-debtor or successor-in-interest of judgment-debtor. Learned counsel in support of this contention, relied upon the case of Khawaja Muhammad Yousuf v. Federal Government through Secretary, Ministry of Kashmir Affairs and Northern Areas and others 1999 SCM R 1516.
Learned counsel summed up his arguments with the party, the decree can be challenged by such party either by filing objections against the decree or through an application under section 12(2) on having the knowledge of the decree. Learned counsel in this regard has referred to the case of Allah Ditta v. Ahmed Ali Shah and others 2003 SCM R 1202.
' Learned counsel for the respondents contended that the will was executed on 8-12-1923 and the same was registered on 9-12-1923. According to deed of will, the property of Fazal Din was gifted to Masjid Ahl-e-Hadees which was to vest in mosque after the death of donee and his wife Mst. Noor.
The donor and his wife died in the year 1937 and soon after their death, the property was taken over by Anjuman-e-Ahl-e-Hadees. It remained in the use and occupation of Anjuman without any adverse claim of anyone. It was sold in pursuance of the decision of General Body in the year 1940 to Muhammad Zaman and Muhammad Ramzan, predecessors-in-interest of respondents Nos.11 to
25. The applicants never agitated against the taking over the property by Anjuman. Learned counsel contended that application has been filed on behalf of Masjid Ahl-e-Hadees, which is not a juristic person. Learned counsel referred to the meaning of term "person" from Black's Law Dictionary, wherein "person" is defined as natural person and it includes firm, organizations, partnerships, associations, corporations, trusts or receivers. Religious institutions, according to learned counsel, do not fall within the definition of person. While 'placing reliance on the cases of Mosque known as Masjid Shahid Ganj and others v. Shiromani Gurdwara Parbandhak Committee, Amritsar and another AIR 1940 PC 116 and Masjid Shahid Ganj and others v. Shirornani Gurdwara Pabandhak Committee, Amritsar and another 1998 S.D. 66, it was contended that Masjid Ahl-e- Hadees is not a juristic person. Learned counsel went on to argue that registered sale-deed reflects that possession of the house and shops were delivered at the spot. The delivery of possession stands proved through consent decree, dated 11-4-1987. The property remained in possession of respondents Nos.11 to 25 from 1940 till 2003. Silence of the applicants for considerable long period speaks about the ingenuineness of the claim of the applicants. While relying upon the case of Pir Bukhsh represented by his Legal Heirs and others v. Chairman Allotment Committee and others PLD 1987 SC 145, it was submitted that when status of a property is decided in a judgment, it is a judgment in rem. Adds further that successors of a party are equally bound by decree passed in favour of their predecessor. Learned counsel supported this contention by referring to the case of Province of Punjab through Board of Revenue, ,Lahore and 2 others v. Muhammad Hussain and 4 others 1988 CLC 514. Learned counsel contended that sale-deed has been declared valid by all the Courts including Honourable apex Court, therefore, findings are not open to exception in an application under section 12(2), C.P.C. Learned counsel vehemently argued that section 12(2), C.P.C.
Is applicable where fraud or misrepresentation is made during proceedings of the suit in the Court and, not with regard to anything which is done outside the Court Learned counsel in support of his contention has referred to the cases of Mst. Hamida Begum v. Muhammad Saleem 1988 CLC 2456, Begum Anwari Khanum Sheikh v. Messrs Passcon (Pvt.) Ltd. And another 1993 M LD 1555 and Lodhran Cotton Ginners (Pvt.) Ltd. v. Zaffar Saleem and Brothers (Pvt.) Ltd. And another 1992 CLC 980.
5. Heard learned counsel for the parties and record perused.
6. It is reflected from the title of this petition under section 12(2), C.P.C. That it has been filed on behalf of Masjid Ahl-e-Hadees, Jamia Masjid Road, Rawalpindi through Naseem Ullah Sheikh, General Secretary of Muntazima Committee. The other two applicants are/were President and General Secretary of the Committee. The applicants have placed on record any evidence or other documents including the registration certificate to prove that Masjid Ahl-e-Hadees is a registered body. Deed of will -dated 18-12-1923 (Exh.P.5) simply mentions the gift of the property of donor in favour of Masjid Ahl-e-Hadees, which was once constructed by Haji Karim Bukhsh at Mohallah Shah Nazar in Rawalpindi. It has not been asserted in the application that Managing Committee (Muntazima Committee), which has filed instant application, is successor-in-office of original trustee Moulvi Abdul Ahad or Masjid Ahl-e-Hadees. There is no evidence on record to show that the applicants are successors of Moulvi Abdul Ahad or his subsequent successors. The applicants have failed to establish the status of Masjid Ahl-e-Hadees as registered body. The petition is silent and any proof is lacking to show, how applicants Nos.2 and 3 have derived authority to manage the affairs of mosque.
'Mst. Begum Noor died in the year 1937 and after her death Anjuman-e-Ahl-e-Hadees took over the property of the donor. The applicants have themselves admitted in para.2 of the application under reference that after demise of Mst. Begum Noor. Anjuman took over the possession of the property and started receiving rent from predecessor of respondents Nos.1 to 10. There is nothing on record to show that applicants have ever agitated or claimed the possession of this property at any forum. They remained aloof while Anjuman-e-Ahl-e-Hadees kept on managing the affairs of the gifted property since 1937. The property was sold in the year 1940 to predecessor of respondents Nos.11 to 25. The applicants have not explained the reasons for their inability to manage the property for a considerable long time. The rights of the applicants in the suit property, if any, stood extinguished on the principle of waiver and estoppel.
7. I will now revert to the second objection of the applicants that dedicated property cannot be sold by Mutawalli, unless with the permission of the Court. A Mutawalli can sell the dedicated property, if such power is conferred upon him expressly in the deed of Waqf. Reference in this respect can be made to para.207 of Mahomedan Law. The deed of will (Exh.P.5) expressly provides that Moulvi Abdul Ahad B will be empowered to sell or mortgage the property according to his desire and can utilize the proceeds thereof for improvement and benefit of the mosque. The deed expressly confers powers upon Moulvi Abdul Ahad (named trustee in the will) to sell or mortgage the Waqf property. The only condition which has been imposed in the will, is that proceeds will be utilized for the improvement and benefit of the mosque. Moulvi Abdul Ahad died in the year 1938. Power of sale or mortgage passed on to Mutawali who succeeded him.
8. The office of Mutawalli cannot remain vacant. According to para.203 of Mahomedan Law by D.F.
Mulla, any other person can be appointed as Mutawalli, if the incumbent had not appointed his successor in his life time. In the instant case neither the founder has nominated the successor of Moulvi Abdul Ahad nor Moulvi Abdul Ahad has nominated anyone as his successor Anjuman-e- Ahl-e-Hadees, through its office bearers, took over Mutwalliship by congregation. Such appointment is valid. As authority for this proposition, reference can be made to the cases, of Piran v. Abdool Karim (1891) 19 Cal. 203, Dilawar Hussain v. Subhan Khan (31) A.O. 375, Ghulam Muhammad v. Abdul Rashid (1933) 14 Lah. 558 and Khagum Khan v. Mohd. Ali Sahib (55) A. Andh.
Pra.
209.
9. The utilization of the property of donor for the purpose of Masjid Ahl-e-Hades through Anjuman- e-Ahl-e-Hadees constitutes a valid Waqf under para.188 of Mahomedan Law which reads:--- para.188. Wakf by immemorial user.--- If land has been used from time immemorial for a religious purpose, e.g. For a mosque or a burial ground or for the maintenance of a mosque then the land is by user Wakf although there is no evidence of an express dedication."
10. The property utilized for religious purpose for the time immemorial can be treated as Waqf by user and Court can infer that property/building used for the purpose of mosque etc. Does not stand merely by leave and licence of the owner of the site but the land itself is dedicated property and site is concerted land and is no longer property of the original owner. Reference in this regard can be made to the case of Miru v. Ram Gopal AIR 1935 All.
891. The dedicated property remained in the use of Anjuman Ahl-e-Hadees and for Masjid Ahl- eljadees for a considerable long period being Waqf by user. The property remained validly in the hands of Anuman-e-Ahl-e-Hadees Office-bearers of Anjuman found that mosque is in dilapidated condition requires reconstruction, sold the Waqf property and utilized its proceeds on the reconstruction of the mosque. The sale transaction which was completed as far back as in the year 1940, cannot be set at naught after 63 years. Moreso, when applicants have failed to justify unreasonable delay in taking an action at the relevant time. The applicants have to establish that Muntazima Committee of Masjid Ahl-e-Hadees is the successor of Moulvi Abdul Ahad and the property was dedicated to it by the founder/donor. The ,sale proceeds were utilized in the year 1940, for the reconstruction of mosque. The utilization of proceeds, was according to the desire of the founder as expressly mentioned in the deed.
11. Adverting to the competence and maintainability of the instant application. The validity of judgment or decree can be challenged through application under section 12(2), C.P.C., on the plea of fraud or misrepresentation. The application lies in the cases, where the fraud has been practised or played on the Court in obtaining the impugned judgment. The applicants have not pleaded collusion between the respondents Nos.1 to 10 on one hand and respondents Nos.11 to 25 on the other hand Mst. Hassan Jan claimed that she was real, sister of Fazal Din and suit property was gifted to her by the owner in his life time. She challenged the will as well as sale in favour of Mirza Muhammad Zaman and Mirza Muhammad Khan (predecessors of respondents Nos.11 to 25). Issues Nos.6 to 11 encompss the controversy inter se the contesting parties, which are reproduced hereunder:--- "(6) Whether Ghulam Din made a gift of the suit property in favour of Mst. Hussan Jan as alleged in para. No,1 of the plaint?
(7) Whether Fazal Din deceased made a registered deed dated 8-12-1923 in respect of the suit property in favour of Jamia Masjid Ahl-e-Hadees as alleged in para. No,1 of the written statement?
(8) Whether the suit property was in possession of Mst. Hussan Jan till her death on 4-1-1991?
(9) Whether Mst. Hussan Jan filed a suit for recovery of the house out of the suit property as alleged in para. No,2 of the plaint?
(10) Whether the mosque sold the suit property in favour of Mirza Muhammad Khan and Mirza Muhammad Ramzan, predecessorin-interest of the defendants Nos.1 to 15 against the law and the rights of the plaintiffs?
(11) Whether the sale made by Fazal Din in favour of Jamia Masjid Ahl-e-Hadees regarding the suit property during the year 1923 and sale-deed dated 20-7-1940 is illegal, fictitious and ineffective and inoperative on the rights of the plaintiffs?"
' These issues (reproduced as above) restrict the dispute to the extent of contesting parties. The applicants' claim that property was dedicated to Masjid Ahl-e-Hadees and so was the stance of Anjuman-e-Ahl-e-Hadees. Revision Petition No,242 of 1997 was decided through impugned judgment, dated 19-2-2003 on three (3) points, which are:---
(i) Whether Mst. Hussan Jan or Lal Din who claim to be real sister and brother, were related to Fazal Din?
(ii) Whether Fazal Din made gift in favour of Mst. Hussan Jan?
(iii) Whether bequeathed property can be transferred by Mutawalli of mosque?
' It was concluded in the judgment that respondents Nos.1 to 10 failed to prove points Nos.1 and 2.
The Court, however, found that Mutwalli was empowered by the deed -of Wakf to sell the property.
Honorable apex Court while refusing to grant leave to appeal (Civil Petition No,501 of 2003) observed in the judgment dated 6-5-2003 that findings recorded in Civil Revision No,242 of 1997 on the above noted points are absolutely correct and no interference is warranted.
12. The issue raised by the applicants in this application is that the property was dedicated to Masjid Ahl-e-Hadees which has no concern with Anjuman-e-Ahl-e-Hadees. Anjuman-e-Ahl-e- Hadees and Moulvi Abdur Rehman had no power to sell the property of Masjid Ahl-eHadees. These issues were neither raised in the suit nor the Courts passed any judgment or observation in this regard. A judgment or decree can be assailed invoking provisions of section 12(2), C.P.C. Which has been obtained by practising fraud or misrepresentation in the course of proceedings. An issue or dispute which was outside the proceedings and was not considered remotely in the impugned judgment, decree or order, cannot be raised through invoking the provisions of section 12(2), C .P. C .
13. For the foregoing, the application in hand is not competent has no merit and is accordingly dismissed with no orders as to the costs.