' MIAN FASIH-UL-MULK, J.---Noorza Ali, petitioner in C.R. No.2026 of 2010; Ziarat Gul, petitioner in C.R.
No. 2027 of 2010 and the Chief Administrator Auqaf, petitioner in Civil Revisions No.233 and No.239 of 2001 have questioned the legality and propriety of the impugned judgments of the two Courts below dated 30-7-2010 and 6-12-2010 passed by learned Civil Judge-XVI, Peshawar and learned/ Additional District Judge-V, Peshawar respectively.
2. All the four petitions arise out of one and the same judgment of the learned appellate Court; hence the same are proposed to be disposed of through this single judgment in C.R. No.2026 of 2011.
3. These revision petitions were admitted to consider the question as to whether the property forming subject matter of dispute is the ownership of Auqaf Department or Cantonment Board.
4. Brief facts of the case are that petitioners Noorza Ali and Ziarat Gul brought suits against the Cantonment Board, Peshawar and Chief Administrator Auqaf, KPK, Peshawar for mandatory and perpetual injunction against defendant No.1 (Executive Officer, Cantonment Board, Peshawar) not to interfere in the suit shops, situated at Hazrat Jee Baba, Shoba Bazar, Peshawar which are in their possession as tenants under the Auqaf Department.
5. Both the defendants i.e. Cantonment Board as well as the Auqaf Department contested the suit by filing written statements. Defendant No.2, i.e Auqaf Department admitted the claim of petitioners. According to them vide Notification dated 23-10-1985, the property in question was declared as waqf property and given in control and management of the Department. They further admitted the status of petitioners as tenants in the suit shop on payment of rent to. The Department, with which the Cantonment Board authorities have no concern. On the other hand, defendant No.1 i.e. Cantonment Board denied the claim of petitioners and submitted that the property in question is ownership of Cantonment Board and petitioners with collusion of defendant No.2 have brought the suit.
6. The trial Court framed six issues in the case, whereafter the petitioners produced Rehman Gul, Assistant Manager Auqaf, Peshawar as P.W.1, who produced the Notification dated 23-10-1985 (Exh.P.W.1/1) vide which the property in question had come under the control of Auqaf Department.
He also produced 'Fard Numberwar' of Moza Chawni for the years 1963-1964 (Exh.P.W.1/2). The rent agreements between petitioners and Auqaf Department were produced and exhibited as Exh.P.W.1/3 along with rent deposit receipts issued to petitioners. Petitioners recorded their statements through special attorney Taj Muhammad (P.W.2), who stated that the shops in question were given to petitioners on rent since the year 1994 and that the suits were filed for the reasons that the Cantonment Board wanted to dispossess petitioners from the suit shops. Petitioners also produced Muhammad Amin as P.W.3 in support of their claim, who deposed that petitioners are running their business in Shoba Bazar since 1984 and that the shops in question are on rent with them since the year 1994, the rent of which is being paid by them to the Auqaf Department.
7. Defendant No.1 (Cantonment Board) produced Anwar Khan, Land Superintendent, Cantonment Board, Peshawar as DW-1, who produced extract from GLR (Exh.DW1/1) and stated that Serial No.420 is the ownership of Government under the control and administration of Cantonment Board, the total area of which is 2.512 acres. He also disclosed that the suit property is still a vacant plot, which has been illegally occupied by petitioners with the collusion of Auqaf Department.
8. Defendant No.2 (Chief Administrator Auqaf) produced Sher Afzal, .Assistant, who stated that his Department mould rely on the statement of Rehman Gul, Assistant Manager Auqaf, Peshawar, whose statement has been recorded as P.W. I.
9. Learned trial Court vide impugned judgment dismissed the suits of petitioners on the ground that as per notification, Exh.P.W.1/1, the Auqaf Department had notified 09 kanals 8 1/2 marlas of land as Waqf property out of total area of 405 kanals 03 marlas but it has not been proved on record that the suit shops are situated in the notified waqf property; that no agreement is available on record prior to the year 1994; that rent agreements (Exh.P.W.1/3) does not show any description of the shops and plaintiff/petitioners have, therefore, failed to establish that suit shops were under the control of Auqaf Department and were given on rent to them.
10. Petitioners, feeling aggrieved of the above judgment, preferred appeals before the appellate Court, whereas the Auqaf Department also filed cross-objections. The appellate Court, however, concurred with the findings of trial Court and dismissed the appeals as well as cross objections vide impugned judgment.
11. Learned counsel for the tenant/petitioners submitted that the learned Courts below have totally misread the evidence on record because when the property in question was declared as Waqf Property vide notification dated 23-10-1985 and respondent No.2/Auqaf Department took over its administration, control and management, then there is no occasion for respondent No. 1/Cantonment Board to interfere with the same and dispossess the petitioners from suit shops in violation of the provisions of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 or section 17 of the Cantonment Rent Restriction Act, 1963,, who are lawful tenants of respondent No.2. Further stated that if respondent No.1 has any claim over the suit shops, he should have sought relief from a competent Court of law and he could not have dispossessed the petitioners in such a manner, when no notice of dispossession allegedly issued by respondent No.1 was even brought on record. That the witness of respondent No.1 has clearly admitted that respondent No.1 has no proof regarding the illegal occupation of property over the suit shops except the so called G.L.R., wherein the property is shown to be a vacant plot and which is still so. The impugned judgments were also attacked for want of non-availability of any order of the trial Court for consolidation of suits. The learned counsel, therefore, prayed that the impugned judgments are liable to be set aside and petitioners are entitled to restoration of possession of the suit shops, who have been forcibly dispossessed by respondent No.1 quite against the set procedure laid down by relevant law. Reliance was placed on the judgments of Sardar Muhammad Ramzan v. Muhammad Yahya Khan (2000 CLC 296), Anjuman-e-Islamia, Sialkot through Khawaja Mahmood Ahmad v. Hail Muhammad Younas and 3 others (PLD 1997 Lahore 153), Chaudhry Muhammad Sharif through legal heirs and 13 others v. Hassan Din and 12 others (1999 YLR 1163), Abdur Rahim v. Muhammad Tahir Khan and others (2010 MLD 1230), Nhor Muhammad and 5 others v. Additional District Judge, Ferozewala and 2 others (2002 YLR 3744) and Sikandar and 2 others v. Muhammad Ayub and 5 others (PLD 1991 Supreme Court 1041).
12. Learned counsel for Auqaf Department/petitioners argued that both the Courts below have not appreciated the available record produced by the officials of the Auqaf Department in its true perspective and therefore have drawn an erroneous conclusion liable to be rectified by this Court; that observations of the two Courts below in respect ownership/title of Auqaf Department in respect of the suit shops are based upon mere presumption and assumption, hence not sustainable in the eyes of law; that the controversy of ownership/title of the suit shops has already been settled down by the Auqaf Department with the Cantonment Board authority on the basis of Writ. Petition No.332 of 1985, which was withdrawn on the strength of compromise; that suit property in which the shops in question are located has already been notified Waqaf Property vide revised notification dated 23-10-1985 but the trial Court did not advance any solid reasons for dismissal of suits of tenant/petitioners whereas the learned appellate Court too has not properly considered the cross-objections of Department/petitioners, therefore, the impugned judgments are liable to be set aside.
13. Learned counsel for respondent No.1 submitted that the property in question is not part of that property, the administration and control of which was given to Auqaf Department, hence both the Courts below have rightly turned down the plea of petitioners, as they were required to have established their claim and could not take benefit of weaknesses of the evidence of respondent No.
1. According to him, the concurrent findings of facts arrived at by the two Courts below cannot be disturbed in revisional jurisdiction of this Court. He, in support of his contentions, placed reliance on the cases of Mst. Bibi Baghdiya v. Abdullah Khan and others (2012 CLC 165), Province of the, Punjab through Secretary Irrigation Department v. Ch. Mehrai Din and. Co. (2003 CLC 504), and Moulvi Muhammad Azeem v. Alhai Mehmood Khan Bangish and another (2010 SCMR 817).
14. Perusal of the record would reveal that the Chief Administrator. Of Auqaf, in exercise of powers conferred by subsection (1) of section 7 of the North-West Frontier Province Waqf Properties Ordinance, 1979, vide notification dated 11-6-1981 took over and assumed the administrative control, management and maintenance of the waqf property measuring 12 kanals and 10 Marlas, situated at Shoba Bazar, near Habib Hotel, Peshawar which, as per khasra girdawari for Kharif 1976 and onward, was in possession of one, Mst. Sherin and Muzaffar Shah.
15. The Cantonment Board, Peshawar filed Writ Petition No.332 of 1985, wherein it was stated that the property comprising survey Nos.421 and 422, partly including a graveyard, was not waqf property but is under the management and control of Cantonment Board. During pendency of said writ petition, a meeting was held on 21-12-1986 in the office of Chief Administrator Auqaf attended by Cantonment Executive Officer, Peshawar, wherein it was agreed that only actual area of graveyard as delineated on the attached plan in red colour i.e. 1.177 acres should be taken over by the Auqaf Department and that an amended notification in this regard will be issued. The above writ petition was therefore, disposed of in terms of the compromise between the two Departments and an amended notification dated 23-11-1985 was issued by the Chief Administrator, Auqaf wherein property measuring 9 kanals 8 1/2 marlas out of total area of 405 kanals and 3 marlas comprised in khasra Nos.126 and 127 Survey Nos.421/422, attached to the Shrine of Hazrat Khawaja Sajjad Hussain Pir Bukhari Baba at Shoba Bazar near Habib Hotel, Peshawar Cantt., was declared to be waqf property under the administration and control of Auqaf Department. The said settlement was given effect by the Cantonment Board in the G.L.R. Also.
16. It appears that the persons, in whose possession the above property was before its declaration to be waqf property, had filed a petition under section 11 of Waqf Property Ordinance, 1979 before the District Judge, Peshawar but the same was dismissed vide order dated 20-4-2000 and ownership of Auqaf Department over the same was acknowledged.
17: As per statement of previous and enhanced rent of waqf properties Bukhari Baba Peshawar Cantt., attached with the petitions by Auqaf Department, the names of petitioners appear at S. Nos.
35 and 84 as tenants.
18. As per Exh.P.W.1/2, fard numberwar for the years 1963-1964, khasra No.126 has been shown to be the property of Government consisting of 15 kanals 04 marlas, wherein 10 kanals 12 marlas was 'ghair-mumkin godam etc., 1 kanals 18 marlas as 'ghair-mumkin' ziarat Khawaja Hussain Pir Bukhari, and 2 kanals 14 marlas 'ghair mumkin' ziarat Hazrat Ji Sahib.
19. There thus remains no dispute that property measuring 9 kanals 8-1/2 marlas out of total area of 405 kanals and 3 marlas in khasra Nos.126 and 127, Survey Nos.421/422, is a waqf property under the control of Auqaf Department.
20. On the other hand, stance of Cantonment Board is that the suit property is part of survey No.420, the total area of which is 2.512 acres. However, DW-1 (witness of Cantonment Board) has stated in his statement that the said property is still a vacant plot. No other evidence has been produced by the Cantonment Board to draw a correct conclusion that the suit shops are situated in Survey No.420 and not Survey Nos.421/422, the ownership of which is with the Auqaf Department.
21. In view of the above, there arises a serious question of ownership, which according to the Auqaf Department is under their control whereas the Cantonment Board also asserts its title over the same. Both the parties in support of their claims have placed reliance on certain documents. The learned Courts below though has stated that petitioners have failed to show that the suit property falls within that area of waqf property, which was given to Auqaf Department but at the same time it is equally true that the Cantonment Board has also failed to establish its title over the same and both the Courts below have, therefore, committed an error by not resolving such an important question involved in the case.
22. Anyhow, one thing is very much evident from record that petitioners were paying rent of the suit shops to Auqaf Department and in case of any dispute between the two Departments, petitioners were required to have been dealt with in accordance with law, being in possession of the suit shops as tenants and not as trespassers, paying rent to the Auqaf Department. The Cantonment Board authorities could not have dispossessed petitioners without having recourse to the proper procedure laid down for dispossession of tenants, particularly when the operation of impugned judgments was suspended by this Court and during such period, they were forcibly dispossessed.
23. This Court can, however, not decide the question of ownership/title because of deficient record produced by both the parties qua their respective claims. In the circumstances, remand of the case is inevitable for deciding the question of title between the parties.
24. Resultantly, all the revision petitions are accepted, the impugned judgments and decrees of the Courts below are set aside and the cases are remanded to the trial. Court for deciding the question of title by giving full opportunity to the parties to establish it through cogent evidence.
25. As the tenant/petitioners have been dispossessed from the suit shops during pendency of the revision petitions, therefore, respondent No. 1/Cantonment Board is directed to forthwith restore possession of the suit shops to the tenant/petitioners till decision of the suits by the trial Court. The contempt of Court applications submitted by the tenant/petitioners for violation of the status quo order, in view of direction to respondent 'No.1 for restoration of possession, are hereby dismissed.
There shall be no order as to costs.