ZAFAR IQBAL CHAUDHRY, J. --- Briefly stated the facts giving rise to the present F.A.O. Are that the appellant claimed to be owner in possession of the land measuring 5 kanals and 3 merles bearing Khasra No. 1723 Khewat No. 3 Khatoni No. 12 situated in revenue estate Tawaleywali, Tehsil Pindi Bhattian, District Hafizabad as per revenue record-of-rights for the years 1998 & 1999 as he had purchased the same from one Rab Nawaz through sale-deed dated 02.03.1988 and Mutation No. 379, dated 22.09.1988 was sanctioned in his favour. He further alleged that he constructed his residence and installed a tube-well at the above-said land. One Syed Shabbir Hussain got mad who was family member of the appellant and after death in the year 1993 he was buried in the above-said land. It is also claimed that the property in dispute was never dedicated by him and no document is available in the revenue record whereas in all the documents produced before the Trial Court, the ownership lies with the appellant. However, the Chief Administrator Auqaf on 19.11.2003 issued the following Notification and order:- NOTIFICATION No. SOP-1 (133) A/95, Dated Lahore the 19th November, 2003 Darbar Hazrat Sayed Shabir Hussain Shah situated in the revenue estate of Tivaleywali Tehsil Pindi Bhattian District Hafizabad and the attached property as described in the schedule below.--- SCHEDULE (1)n Khanghah Hazrat Sayed Shabir Hussain Shah one Room, Warrandah (Langer Khana) water Pump and Shahadat Ghah measuring 5 Kanals, 3 Marlas bearing Khasra No. 1723, Khewat No. 3 Khatoni No. 12 in the revenue estate Mauzia Tawaleywali Tehsil Pindi Bhattian District Hafizabad ling to Register Haqdaran Zameen for the year 1998-99.
(2) Income from cash boxes.
(3) Offerings and subscriptions made to the said shrine,.
(4) Credit balance, if any of the said shrine.
(Muhammad Javaid Iqbal Awan) Chief Administrator Auqaf Punjab, Lahore.
No. SOP-1 (133) A/95 Dated Lahore the 19th November, 2003
Whereas by Notification No..SOP-1 (133)A/95, dated 19th November, 2003 the administration, control, management & maintenance of the waqf in the schedule of the Notification vests in the Chief Administrator of Auqaf, Punjab, Lahore.
And whereas, it is 'considered expedient that a Manager be appointed to be the Incharge of the said waqf to manage and maintain same.
Now, therefore, I hereby appoint the ManagerWal Properties, Hafizabad, and direct that he shall maintain the same in accordance with the orders and direction issued by me from time to time. (Muhammad Javaid Iqbal Awan) Chief Administrator Auqaf, Punjab, Lahore.
No. SOP-1 (133) A/95 Dated Lahore the 19th November, 2003
2. Upon the divergent pleading of the parties the Trial Court framed the following issues:-
(1) Whether the property is not a WAQF property? OPP
(2) Whether notification dated 19.11.2003 is illegal, without jurisdiction and ineffective upon the rights of the petitioner? OPP
(3) Relief".
3. The appellant produced Patwari Haiqa, as PW- 1, while himself appeared as PW-2,and also produced Exh. P/1 to Exh. P/9 whereas respondent produced RW-1, Manager Auqaf, and RW-212 Abbas All; Kanoongo, Auqaf Department, and the disputed notification was not produced in the evidence.
'
4. The learned Trial Court . After hearing the parties partly accepted the petition of the appellant and notification to the extent of 3 kanals of the land ,was declared illegal, void against the law and facts and ineffective against the rights of the petitioner and the notificatiori to the extent of 2 kanals, 3 marlas of land was declared as Waqf property vide judgment dated 01.07.2006..
5. Having felt aggrieved upon the judgment dated 01.07.2006 the appellant filed the present F.A.O. And the learned counsel for the appellant contended that there has been misreading as well as non-reading of the evidence by the Trial Court, the evidence of PW-1 and PW-2 have been completely misread, the provisions of. Section 2 of the Punjab Waqf Properties Ordinance, 1979 have been misinterpreted, there is no evidence on record to establish that the property was a dedicated Waqf, the notification was never published in the official Gazette as also required in Section 7 of Punjab Waqf Properties Ordinance, 1979 in which it has been stated by the legislature in the second proviso of Section 7 which is reproduced as under:- 11ND PROVISO OF SECTION 7: The notification shall be served upon the management or the mutawalli and also affixed on some prominent part of the property which is sought to be taken over."
The learned counsel for the appellant also relied upon PLD 1991 SC 596 "Chief Administrator Auqaf, Punjab, Lahore v. Koura alias Karam Ilahi and another", PLD 2007 Lah. 583 "Moueen-ud-Din and 8 others v. Administrator General of Auqaf, Pakistan, Islamabad and another" PLJ 1977 SC 496 "Muhammad Ishaq v. Chief Administrator Auqaf, Punjab".
6. The learned counsel for the respondents has defended the impugned judgment but is unable to prove the disputed land as Waqf property.
7. The foremost pivotal question for the adjudication is "whether the disputed land is a Waqf property or not". The learned Trial Court dismissed the petition to the extent of 2 kanals & 3 marlas by referring to explanation 5 of Section 2 of the Punjab Waqf Properties Ordinance, 1979 and held that 2 'canals, 3 marlas land is a Waqf property and, therefore, the appellant claimed it. To be a private property. Section 2(e) of the Punjab Waqf Properties Ordinance, 1979 reads as under:- "Waqf Property" means property of any kind permanently dedicated by a person professing Islam for any purpose recognized by Islam as religious, pious or charitable, but does not include property of any Waqf such as is described in Section 3 of the Musalman Waqf Validating' Act, 1913 (VI of 1913), under which any benefit is for the time being claimable for himself by the person by whom the Waqf was created or by any member of his family of descendants."
The ingredients, which determine the status of property as Waqf and laid down in this definition are, a permanent dedication and that too for a religious, pious or. Charitable purpose. If these ingredients are missing or not provided, the property cannot be declared as Waqf property.
8. The most important document to determine the status of the property as waqf as required by taw, the deed of dedication by virtue of which permanent dedication has been made for a religious or pious purpose. There is no such document on record as such on the touch stone of definition of Section 2(e) of the Punjab Waqf Properties Ordinance, 1979 the property cannot be termed as Waqf because the, disputed property was not permanently dedicated for a religious or pious purpose. I am fortified in this context from a judgment reported in PLD 1991 SC 596 "Chief Administrator Auqaf Punjab v. Kurra alias Karam Ilahi and another".
9. Therefore, this appeal is allowed the impugned notification dated 19.11.2003 regarding 5 kanals, 3 merles land is declared as illegal,, void against the law and ineffective upon the rights of the, appellant and the impugned judgment passed by the, learned Trial Court dated 01.07.2006 is also set aside as prayed. No order as to costs. :