' ABDUL AZIZ KUNDI, J.--- This judgment shall also dispose of C.R.No,166 of 2008.
2. Governor of N.-W.F.P. On 23rd May, 1950 issued the following Notification:-- "Charitable Institutions. Notification.
' 23rd May, 1950.
' No,689-90-C.1. The Governor, North-West Frontier Province, in exercise of the powers conferred upon him under section 3 of the North-West Frontier Province Charitable Institutions Act, 1949 is hereby pleased to take over and assume the administration, control, management and maintenance of the following Auqaf:--
(I) II III. Mosque Khawaja Maroof Khan, Kucha Sheikh-ul-Islam, Mohallah Ganj, Peshawar City consists of: --
(2) `Kotis', one "Tanoor" within two outlets, ten shops, one garage, and one "Hamam" bounded in the North by the Road leading to Tehsil Gorkhatri, in the South by Kucha Sheikh-ul-Islam, in the East by the Road leading to Ganj Mohallah and in the West by the houses of Fida. Muhammad, Tila Muhammad."
3. Section 3, The N.-W.F.P. Charitable Institutions Act, 1949 (Act No,VIII of 1949), reads as under:-- "Assuming the Control of charitable institutions--
3. (i) The Provincial Government may, by general or special order published in the official Gazette, by location or description, name or otherwise of any charitable institution or property, or class of such institutions or property, take over and assume the administration, control, management and maintenance of the charitable institution or the property so specified.
(ii) The Provincial Government shall from the date of the publication of an order under the last preceding subsection, be solely Incharge of the administration, control, maintenance and management of the charitable institution of the property so specified."
4. Under section 5, Act (ibid), a petition against any such assumption under section 3 aforestated by a person in possession of or claiming any interest in the property lay before the Administrator or any other officer authorized by the Provincial Government in this behalf within one month of the publication of the order under section 3, who was required to decide the same under subsection
(iii) after holding enquiry and recording such evidence as the petitioners or the Government may produce in the case.
' Under subsection (iv) of section 5, Act ibid, an order passed under subsection (iii) was appealable within 15 days before the Court of Judicial Commissioner, N.-W.F.P., whose decision was final.
5. Vide Ordinance XXI of 1959 "West Pakistan Waqf Properties Ordinance, 1959 was promulgated.
Section 20 whereof dealing with the repeal and savings is reproduced:- "20. Repeal and savings-(1) Government may, by notification, repeal all or any of the following enactments with effect from such date or dates as may be specified in that behalf:--
(a) .
(b)The North-West Frontier Province Charitable Institutions Act, 1949;
(c) .
(d).
(e) .
(2) Notwithstanding the repeal of the enactments mentioned in subsection (1), everything done, action taken, obligation, liability, penalty or punishment incurred, inquiry or proceedings commenced, officer appointed or person authorized, jurisdiction or powers conferred, rule made and order issued under any of the provisions of the said enactments shall, if not inconsistent with the provisions of this Ordinance be continued and, so far as may be, be deemed to have been respectively done, taken, incurred commenced, appointed, authorized, conferred, made and issued under this Ordinance.
(3) If any petition is pending with the Administrator under section 5 of the North-West Frontier Province Charitable Institutions Act 1949, it shall be transferred by him for disposal to the District Court within whose jurisdiction a part of the Waqf Property is situated. "
6. This was followed by Ordinance, XXVIII of 1961 "West Pakistan Waqf Properties Ordinance, 1961 (Gazette of West Pakistan), Extraordinary, 23rd October, 1961).
' Vide section 22(1) (f) "The West Pakistan Waqf Properties Ordinance, 1959, was repealed.
7. Act LVI of 1976 "Auqaf (Federal Control Act) 1976 was promulgated vide Gazette of Pakistan, Extraordinary, Part-I, 31st August, 1976. Section 26 whereof deals with the repeal and saving. Thus "The West Pakistan Waqf Properties Ordinance, 1961" was repealed.
8. Auqaf (Federal Control Act) 1976 was repealed by "The North-West Frontier Province Waqf Properties Ordinance, 1979 (Ordinance IX of 1976) (Gazette of N.-W.F.P., Extraordinary, 11th April, 1979, section 26 whereof reads as under:-- "26. Continuance of actions, etc., taken under Act LVI of 1976.---Everything done or purporting to have been done, action taken, liability or penalty incurred or proceeding commenced, officer appointed or person authorized or power conferred, rule made or notification or order issued under the Auqaf (Federal Control) Act, 1976 (LVI of 1976) since repealed, shall, so far as it is not inconsistent with the provisions of this Ordinance, continue in force, and so far as may be deemed to have been done, taken incurred, commenced, appointed, authorized conferred, made or issued under this Ordinance.
9. Per averments in the plaint dated 2-5-1991, plaintiffs-petitioners allege that suit property detailed in the plaint was mortgaged by Qazi Muhammad Akbar, predecessor of private defendants Nos.4 to 8, with Syed Haider Shah through a registered mortgaged deed on 5-5-1927; that Syed Haider Shah mortgagee has since died and survived by them, thus they came into possession of the said property as mortgagees, which was demolished 21 years preceding May, 1991 and a house and three shops constructed on site of the demolished property and they have been in full enjoyment of the said property without any let or hindrance by any one; that Sher Muhammad defendant No,3 was inducted as a tenant by them in the newly constructed house and two shops on payment of Rs,200 PM, who had been paying them rent through defendant No,9 Syed Hadi Hussain Shah; that the tenant-defendant No,3 secretly, collusively and in order to harm the plaintiffs-petitioners executed an agreement of tenancy with official defendants Nos.1 and 2 and thereafter started avoiding payment of rent to them; that defendants No,1 and 2 also served a notice upon defendant No,9 to prove title over the property; that since defendants Nos.1 to 3 are denying the rights of the plaintiffs-petitioners, hence the said suit.
10. It appears that this suit was yet pending, when official defendant No,8 (Administrator Auqaf) vide its Notice No,1019/B-2 dated 23-4-1992 purporting to be under section 8, N.-W.F.P. Waqf Properties Ordinance, 1979 directed defendant No,10 Riaz All Shah that he is in unauthorized possession of Auqaf shop adjacent to Mosque Khawaja Maroof, Peshawar City, therefore should vacate the same within 30 days, failing which he will be ejected under the law and that in case he is interested in retention of the shop, then he should execute a lease agreement with the Auqaf Department.
11. This prompted the plaintiff-petitioners to file yet another suit on 19-5-1992 seeking declaration of title as time-barred mortgagees and also challenging the notice being No,1019/B-2 dated 23-4- 1992.
12. Both the suits remained pending for sufficient long time and even part of evidence of the plaintiff-petitioners had been recorded, when ultimately in the mid of the proceedings, official defendants-respondents pressed into service the question of jurisdiction of civil Courts and thus trial Court through impugned order/judgment dated 8-5-2007, passed separately in both the suits ordered return of the plaints to the plaintiffs-petitioners, where against their appeals were also dismissed by Additional District Judge-IV, Peshawar on 6-11-2007.
13. The two Courts below have ordered return of the plaints by holding that the dispute falls within the jurisdiction of District Courts under section 11, N.-W.F.P. Waqf Properties Ordinance, 1979.
14. Arguments heard. Record perused.
15. Learned counsel for the plaintiffs-petitioners argued that the two Courts below have fallen into errors of facts and law; that plaintiffs have never challenged the Notification dated 23-5-1950, wherein administration control, management and maintenance of the properties of Auqaf fully detailed by description was taken over, while the one in dispute in the two suits is totally distinct and was in the shape of a seria, fully described in the registered mortgage deed dated 5-5-1927 as aweeta' ; that right from its mortgage, the original mortgagee Syed Haider Shah and after his death his successors had been in uninterrupted possession and enjoyment of the same and non- including Auqaf Department had ever put challenge to their title and possession, so much so that in the year 1969 the same was demolished and re-constructed after obtaining necessary permission for demolition and re-construction from the then Municipal Committee, Peshawar; that the provisions of section 11, N.-W.F.P. Waqf Properties Ordinance, 1979 are not attracted to the case and that the dispute can only be resolved by civil Court, more particularly when plaintiffs- petitioners also claim title as against private defendants-respondents, on the basis of time barred mortgage. The learned counsel further argued that even that bar of jurisdiction under section 21 Ordinance ibid is not attracted and further that issues regarding jurisdiction had been already framed and were on trial, which could only be decided after recording of evidence of both the parties.
16. As against that, learned counsel representing the Auqaf Department argued that suits of plaintiffs- petitioners were hit by sections 11 and 21 of Ordinance (ibid) and that the two Courts below have rightly ordered return of the plaints. Accordingly, it was argued that the impugned judgments be maintained and revision petitions be dismissed.
17. A look at the plaints in both the suits would show that plaintiffs-petitioners have put no challenge to the notification dated 23-5-1950, rather their case is that the disputed property is distinct than the one subject matter of the notification. Even the appellate Court has held so in the light of the description of the property in the notification in question. Auqaf Department did not lay its hands upon the disputed property for sufficient long time of the issuance of the notification dated 23-5-1950 and allowed the plaintiffs-petitioners not only to enjoy it but also demolish and re-construct it. It was for the first time somewhere in the year 1989, when the Auqaf Department managed the attornment of one of the tenants of the disputed property in the favour and then the dispute between the parties arose, which resulted into present litigation.
18. Section 11 of N.-W.F.P. Waqf Properties Ordinance, 1979 reads as under:-- "11 Petition to District Court against notification.---(1) Any person claiming any interest, in any Waqf property in respect of which a notification has been issued under section 7 may, within thirty days of the publication of such notification petition the District Court within whose jurisdiction the Waqf property or any part thereof is situated for a declaration:--
(a) that the property is not Waqf property;
(b) that the property is Waqf property within the limits stated in the petition: ' Provided that, notwithstanding anything contained in any law for the time being in force, or in any custom or usage, or in any decree, judgment, or order of any Court or other authority, or in any proceeding pending before any Court or other authority no such petition shall lie in respect of any interest in the income, offerings, subscription or articles, referred to in Explanation 4 to clause (e) of section 2, or the services or ceremonies (Rasoomat) mentioned in section 7.
(2) The District Court may, for reason to be recorded, refuse to issue any process for compelling the attendance of any witness for the purpose of examination or the production of any document or other thing if it considers that it has been made for the purpose of vexation or delay."
19. Similarly section 21 of the Ordinance ibid reads as under:--- "21. Bar of Jurisdiction.---Save as expressly provided in this Ordinance, no civil or Revenue Court or any other authority, shall have jurisdiction:--
(a) to question the legality of anything done under this Ordinance by or at the instance of the Chief Administrator; or
(b) in respect of any matter which the Chief Administrator is empowered by or under this Ordinance to determine or settle; or
(c) to grant an injunction or other order in relation to any proceedings before the Chief Administrator under this Ordinance or anything done intended to be done by or at the instance of the Chief Administrator under this Ordinance.
20. When looked into the light of aforesaid two provisions of law, the two plaints in both the suits are prima facie not hit by either of the aforestated provisions. In both the suits issue regarding jurisdiction of civil Courts was already under trial and the most appropriate course for the trial Court, in the circumstances of the cases was to have allowed the parties to adduce their respective evidence on all contested issues and then decide the same including the one of jurisdiction. If on conclusion of trial plaintiffs-petitioners prove their allegation of the disputed property not a part of the notification dated 23-5-1950, or a Waqf property, then surely it would be the civil Court to decide the matter.
21. In a somewhat similar situation, question of jurisdiction of civil Courts came up for consideration in the case of "Chief Administrator, Auqaf v. Sakina Bibi and others" reported as 2005 M LD 318, where it was held as under by Lahore High Court:- "(a) Punjab Waqf Properties Ordinance (IV of 1979)--- ----Ss. 11 & 21...Specific Relief Act (I of 1877), S.42---Declaration with consequential. Relief--- Jurisdiction---Plaintiff's suit was concurrently decreed against Auqaf Department---Department had relied upon notification of taking over of property and pleaded bar of jurisdiction---Suit property was found different than the property notified---Property in question was thus, not taken over by the department---Civil Court had jurisdiction to take cognizance of the matter.
' Zafar-ul-Ahsan v. The Republic of Pakistan through Cabinet Secretary Government of Pakistan PLD 1960 SC 113 re."
' Likewise in the case of "Samiullah and Naveedullah v. Fazale Malik and Administrator, Auqaf Department Peshawar" reported as PLD 1996 SC 827 it was held as under by august apex Court:--- "(a) Waqf Properties Ordinance (N.-W.F.P. Ordinance I of 1979)--- ----S.21---Bar of jurisdiction of civil Courts under section 21-- Filing of written statement and recording of evidence would be a sine qua non for determination of allegations as to whether orders under Ordinance were in according with or are even mala fide---Remand order passed by High Court in exercise of its revisional jurisdiction under section 115. C.P.C. In revision filed to challenge concurrent orders of lower Courts which dismissed suit by applying bar of jurisdiction under section 21, would be perfectly valid and would warrant no interference by Supreme Court.
(c) Jurisdiction-- ' ----Bar of jurisdiction of civil Courts---Even where jurisdiction of civil Courts is barred and conferred upon special Tribunals, civil Courts being Courts of ultimate jurisdiction would be competent to examine acts of such fora to see whether their acts are in accordance with law or are illegal or even mala fide."
' Again in the case of "Chief Administrator, Auqaf, Sindh, Thandi Sarak, Hyderabad and another v.
Mst. Masooma", reported as PLD 2001 SC 75, it was held as under:- "(a) West Pakistan Waqf Properties Ordinance (XXVIII of 1961)--- ' ----Ss.2(d) & 6---Waqf Property---Onus of proof---Essential elements---Scope---Burden to prove a property as Waqf property is upon the Authorities and the same can be done by showing either dedication of the property as Waqf or use of the property from time immemorial for religious and charitable purpose, or acquisition of the property from income of Waqf property.
(b) West Pakistan Waqf Properties Ordinance (XXVIII of 1961)--- ' ----S.6---Chief Administrator of Auqaf, jurisdiction of---Scope--- Chief Administrator, under the provisions of S. 6 of West Pakistan Waqf Properties Ordinance, 1961, can take over and assume administration, control, management and maintenance only of a Waqf Property.
(c) West Pakistan Waqf Properties Ordinance (XXVIII of 1961)--- ' ----Ss. 2(d) & 6---Waqf property, notification of---Scope---Mere facts that a party had paid rent for a short period to the Authorities erroneously, would not make a property as Waqf property--- Such property could not have been notified to be the Waqf property under S.6 of West Pakistan Waqf Properties Ordinance, 1961.
(d) West Pakistan Waqf Properties Ordinance (XXVIII of 1961)--- ----Ss. 2(d), 67 & 17---Constitution of Pakistan (1973), Art.185(3)---Waqf property, notification of--- Jurisdiction of Civil Court---Failure to pursue remedy as provided under S.7, West Pakistan Waqf Properties Ordinance 1961-Effect--- Disputed property was originally property of Provincial Government and the plaintiffs had been erroneously paying rent to the Authorities, considering the same as Waqf property--- Suit was decreed in favour of the plaintiffs by the Civil Court and the decision was upheld by High Court---Authorities objected to the exercise of jurisdiction by Civil Court--Validity---Authorities were not vested with the powers to take over property other than Waqf property under the provisions of West Pakistan Waqf Properties Ordinance, 1961---Where the property was not a Waqf property, it was not necessary for the plaintiff to pursue the remedy as provided under S.7 of West Pakistan Waqf Properties Ordinance, 1961---Civil Court being not barred under S.17 of West Pakistan Waqf Properties Ordinance, 1961 from entertaining the suit leave to appeal was refused by Supreme Court.
22. When looked into in the light of the law so settled, the impugned judgments and orders, passed by the two Courts below appear to be result of illegal and irregular exercise of jurisdiction vested in them. Thus, I am left with no option but to set aside the impugned judgments and orders of both the Courts in both the suits by accepting these revision petitions and send the cases back to the trial Court for proceeding with the same from the stage at which the plaints were ordered to be returned to the plaintiffs-petitioners, record evidence of the parties and then decide both the suits strictly in accordance with law and on merits, without being influenced by any observations/findings made in this judgment by this Court.
23. Since these are very old cases of the year 1991-92, therefore, they be treated as target cases and be taken up on day to day basis and positively concluded in the shortest possible time, but not later than four months from 20-4-2010, on which date the parties are directed to appear before the trial Court and the trial Court shall, on conclusion of the trial, within the period aforestated intimate the result thereof to the Additional Registrar (Judicial) of this Court. Costs shall follow the events.