The dispute between the parties is with regard to property No. B-II-16-S--13-W, Langrianwali, Gujranwala. According to the petitioner, it was being used as a mosque and on its decay it wa3 pulled down and a new mosque with 15 shops built at the site. The shops were then let out to the tenants including the contesting respondents.
2. The Chief Administrator of Auqaf, however, took over the manage--ment and control of the property with 15 shops vide notification dated 18th October, 1960. Another notification amending the previous one was issued in 1973. According to the contesting respondents, this was about the shops in their possession. It is admitted that no petition under section 7 of the West Pakistan Waqf Properties Ordinance, 1959 was filed by the petitioners. The period of limitation is 30 days from the date of notification. It is also admitted that the contesting respondent had been paying rent for the shops in their possession to the Chief Administrator of Auqaf from 1960 to 1969.
3. The contesting respondents and some others thereafter filed a Civil Suit No. 181/69 in 1969 against the Chief Administrator of Auqaf for a declaration and injunction alleging that the shops belong to them as they had constructed them at their own cost. The main question that arose for consideration was whether the civil Court had no jurisdiction in the matter, in view of sections 9, 15 and 17 of the West Pakistan 'A'aqf Properties Ordinance, 1959, which barred any suit. The following findings of the Court may be reproduced :- "A plain reading of which shows that the illegality of the act of assuming control over Jamia Masjid, Gali Langarian Wali, Gujranwala, along--with 15 shops bearing property No. B1I-16-S-13 cannot be questioned in any civil or revenue Court or any other authority. With this discussion, it is held that this Court has no jurisdiction to try this suit under section 17 of the West Pakistan Waqf Properties Ordinance, 1961.
It is further held that in the presence of the Notification Exh. P. 27 the plaintiffs could not be transferred the property which had already been assumed control of by the Auqaf Department, without first getting it released by the District Court. In these circumstances, no illegality having been established in the acquisition of the property the mosque alongwith the shops which are the subject-matter of this dispute are the part of the waqf property and as such the Auqaf Department has got every right to demand rents from the plaintiffs."
The trial Court dismissed the suit on 9th July, 1971.
4. Only 7 out of the 12 plaintiffs filed an appeal. During its pendency, the Auqaf Department filed a notification dated 13th July, 1978, stating that it had withdrawn the notification taking over the property in 1960. The Additional District Judge vide his order dated 23rd September, 1978, accepted the appeal and set aside the order of the trial Court. The entire order may be reproduced for reference "The respondents' counsel vide his statement dated 9-9-1978 has already withdrawn the impugned notification and the only controversy between the parties was whether the appeal was to be accepted or rejected. I have heard arguments of the learned counsel representing the appellants.
(2) Since the suit of the plaintiff-appellants was dismissed by the lower Court, unless it is decreed, they will remain non-suited and the impugned notification shall remain valid. In these circumstances, the appeal is accepted, the impugned judgment and decree are set aside, suit of the plaintiff appellants is decreed as prayed for defendant --respondents. Parties are left to bear their own costs."
5. It is contended by the learned counsel that firstly the appellate Court erred in law in omitting to implead the mosque or the persons to whom the same bad been delivered by the Auqaf Department after issuance of the notification dated 13th July, 1978. He has also taken strong exception to the slipshod perfunctory order of the learned District Judge by which he decided inter alia the following Issues as concerned the title of the property etc. : - "(5) Whether plaintiffs are the owners of the shops in dispute ? O. P. P.
(6) Whether the acquisition of the property of the `Masjad' (B-II-16S-13) is illegal and void ? O. P. P.
(7) Whether the shops in dispute are the part and parcel of the `Masjad' (B-II-16S-13) and were rightly acquired by the Department under the notification dated 18-10-1960 ? O. P. D.
(8) Whether the notices of demand of rent issued by the defendants being malicious are illegal ? O.
P. P."
He has referred to Annex. `D', whereby the possession of the property was delivered to various persons, including Muhammad Yaqoob, through whom the present petition has been filed, to show that had the petitioner been asked to implead the mosque or persons to whom possession had been delivered there could be no difficulty to do so.
6. The learned counsel for the contesting respondents submitted that the petitioner has no locus standi to file the present writ petition as it was registered as a body on a date after the appeal was decided or the possession delivered. He, however, admitted that Haji Muhammad Yaqoob was one of the persons to whom the possession had been delivered. He further stated that the property in question was not a mosque but evacuee property and the same had been transferred to 'the contesting respondents by the competent Settlement Authority. The learned counsel pointed out that the property on which the 15 shops had been built had not been taken over in the first notification.
7. He, however, conceded that no petition under section 7(1) of the West Pakistan Waqf Properties Ordinance, 1959 had been filed and neither the managing body of the mosque nor even the Imam Masjid, or any other persons, whom they thought could look after the interest of the mosque, were impleaded as party in appea'. Before the District Judge, after Auqaf Department withdrew. In this view of the matter, the petitioner who was one of the - persons to whom possession had been delivered does have a locus standi to look after the interest of the mosque. Further, as he has also been appointed as a Treasurer of the petitioner Organization which even though constituted later, his locus standi cannot be challenged.
8. The next point emphatically raised by the learned counsel for the contesting respondents was that the property in question is not a mosque or a waqf property and that the same having already been transferred to his clients, it could neither be subject-matter of dispute between the parties nor could the petitioner come to this Court. The learned counsel, however, lost sight of the fact that the same questions had been decided by the civil Court in favour of the Chief Administrator of Auqaf. Consequently, they fell to be reconsidered by the District Judge in appeal, if he had to proceed on merit. He did not apply his mind to any one of those as said in paras. 4 and 5 above.
Further, the suit had been dismissed on the ground that it was barred by section 17 of the West Pakistan Waqf Properties Ordinance which reads as under :- "Protection of action taken under this Ordinance.-No suit, prosecution or other legal proceedings shall be instituted against any person for anything which is in good faith done or intended to be done under this Ordinance or the rules made thereunder."
9. The first step to be taken by the appellate Court was, therefore, to see if the suit was maintainable at all, in case he was to decide the appeal on merit and in the absence of mosque or any person to represent it and look after its interest. The learned District Judge did not revert to that question. Had he decided that the suit was maintainable, he should have, there After, referred to the other issues including Issues Nos. 5 to 8 as framed, by the trial Court. In that situation, he could either decide the case himself or send it back to the trial Court for further proceedings. Again, he could not have done all that without impleading the mosque through somebody as it concerned the proprietary rights, taken over as a mosque property, by the Chief Administrator of Auqaf. The contention of the learned counsel for the respondents therefore, has no force.
10. The learned counsel then insisted to go through all the documents filed by him with his written statement, as well as those filed by the petitioner, to show that the property in question was evacuee in nature and that his clients had become its owners in view of the transfer deeds issued in their favour. Firstly, the respondents ought to have brought all the evidence in that regard to his notice before the District Judge could accept appeal on merit. He did not revert to any evidence whatever to upset the findings of the trial Court. The District Judge appears not to have been concerned whether the facts and the evidence on record could justify the acceptance of the appeal and decreeing the suit as prayed. His anxiety was how to make inoperative the judgment of the trial Court which proceeded primarily to hold that the civil Court had no jurisdiction. This hindrance also did not engage his mind though that was the first hurdle to be surmounted.
11. However, prima facie, the decision of this petition is not dependent on the question whether the property is Waqf or stands transferred to respondents. The question involved is whether the District Judge could upset the decree of the trial Court and allow the appeal before him without impleading the mosqbe and without considering the questions of jurisdiction and other facts. In any case, in order to save time and satisfy the learned counsel for the respondents,went through the same. 'The position however, remains still the same that this Court cannot go beyond the scope of the litigation out of which the impugned order arose. Thus the only thing the learned counsel for respondents can do is to defend the order of the learned District Judge. That involves only those questions that have been dealt with above. Rather, the position being taken on behalf of the respondents supports the petitioner that despite the findings of the trial Court and evidence on record, the District Judge failed to revert to those aspects before pronouncing on merit of the case.
This Court, therefore, will not sift all that evidence.
12. It will be seen that the respondents had filed a civil suit to see a declaration about the title of a property which had been taken over by the Chief Administrator of Auqaf under section 6 of the West Pakistan Waq Properties Ordinance, 1959. That Ordinance provides an exclusive procedu for redress of any grievance that may be there. It lays down a period of , one month to challenge the notification taking over any such property.Admittedly, the respondents did not challenge the original notification of 1960. Rather, they went on paying rent for about 9 years. It is, thereafter, that they filed the civil suit. As said above, section 17 of the above Ordinance bars any other remedy and ousts the jurisdiction of the civil Court. The District Judge, therefore, unlawfully assumed jurisdiction to decide the appeal on merits.
13. In any case, even if the disputed shops had been taken over b the Chief Administrator of Auqaf by way of notification in the year 1973 the respondents did not at all challenge the same under section 7(1) of the Waqf Properties Ordinance. No other remedy was resorted to. In this view of the matter, the Notification taking over the property in 1973, if I was so, became final and could not have been challenged by the respondent on any ground whatever.
14. The last point concerns the effect of withdrawal by the Chief Administrator of Auqaf of his Notification taking over the property. The learned District Judge thought that in view of the withdrawal of the notifica--petition he had to accept the appeal and set aside the decree of the learned Civil Judge so as to wipe off its effect. This was, however, not necessary. The withdrawal of the notification meant the release of the property without affecting its status, whatever it was. The suit of the respondents had been dismissed as the civil Court had no jurisdiction. If that position was uphel by the Appellate Court, the finding on title of the property by the civil; Court would not operate. Thus the only decision that the District Judge had to give first of all was about the maintainability of the suit. It was thereafter that he could have gone into merit to accept the appeal.Alternatively he could treat the appeal as infructuous as the property was no longer with the Chief Administrator of Auqaf, who had released it. in view of the above, the impugned order passed by the Additional District Judge is declared to be without lawful authority and of no legal effect. The parties shall, however, bear their own costs.