' EJAZ AFZAL KHAN, J.---The facts leading fo the institution of the present appeal are that the appellant instituted a suit for specific performance of contract on 23-5-1988 in respect of khasra No, 557 measuring 9 kanals, 9 marlas situated in Mauza Korey in the Court of Civil Judge. The respondents on being served admitted the claim of the appellant. The learned trial Judge decreed the suit of the appellant vide order dated 2-7-1988. The decree above mentioned was questioned through various applications filed under section 12(2) of the C.P.C. But they ended in withdrawal.
One of the orders permitting withdrawal of such application was questioned before the High Court through a revision petition but that too ended in withdrawal. Since according to the entries made in the record of rights the property was a part and parcel of the mosque, the Lahore High Court on being apprised about the decree proceeded to exercise Suo Motu Jurisdiction under section 115 of the C.P.C. After examining the record and hearing the parties, the learned Judge of the High Court held as under:-- "Once it is established that the land was owned by the mosque, then even if the entire contents of the plaint are admitted to be correct that is to say that the entire proprietary body of the village orally agreed to sell the land through respondents Nos,2 and 3 to respondent No,1, is admitted to be correct, the suit could not have been decreed. The reason for this observation is that the mosque in Islamic Law is waqf and the suit land being a property of a waqf could not have been sold even by the authorized trustees, without the leave of the court. Reference be made to the case of Zahid Farooq and another v. Anjuman Jamia Masjid and 4 others (1995 SCM R 1584). In the said case a plot belonging to a mosque was sold by its Mutwali and it was proved on record that the plot was sold with the consent of the entire administration Committee of the mosque and that the proceeds were spent on the mosque. The sale was held to be void by this court. The Supreme Court of Pakistan upheld the rule that a Mutwali whether the waqf be public or private cannot transfer the waqf property without the sanction of the Qazi, with the following observations occurring in para 12 of the judgment at page 1590 of the report:-
(12) The rule of 'Islamic Law' is of great antiquity and, as we shall venture to show it stems directly from the consequences of the creation of waqf and can be supported on first principles as also on the authority of the Holy Quran. Relevant it would be to reproduce, the following excerpts occurring in paras 13 and 16 of the said judgment:-
(13) The effect of a consecration or waqf of a property by the owner is to extinguish absolutely and for ever all his rights therein. The act of consecration, which is irrevocable in its character, transfer the property for ever into the legal ownership of the Almighty Allah for the benefit of his creatures.
On general principle, only the person in whom the ownership of the property vests can lawfully deal with it. And, as the waqf property vests in the Almighty Allah. He alone can deal with it. It follows logically that the Mutwali, whose status, in the relation to the waqf property is no more than that of Manager or Superintendent, even though he be the waqif, cannot in any way deal with it. But the Almighty Allah may like any other owner, deal with the waqf property through his delegates.
(16) What imparts significance to this trust theory, in the context of waqf property, is the fact that as in the case of legal sovereignty, so in the case of waqf property, the entire body politic, that is the State, becomes a trustee and it is the State, through its State functionaries, that has to discharge the functions in regard to waqf properties on behalf of Almighty Allah. The Kazi is one of the State functionaries one of the persons in authority within the meaning of the. Holy Quran V.4:60. The reason why it was the Kazi who was entrusted with the function of dealing with waqf properties was that function is judicial function and the kazi was, therefore, the most appropriate State functionary to be entrusted with its performance. Thus the Islamic Law seems to proceed on the basis that it is the kazi as delegate of Almighty Allah who has to perform the function of its carrying the waqf into execution and to deal with the waqf property".
2. Learned counsel appearing on behalf of the appellant while assailing the above mentioned finding submitted that the property in dispute was not dedicated to the mosque by the owners of the village but only its usufructs were allowed to be retained by the mosque for the maintenance of its Imam and other employees. The moment, the learned counsel submitted, the property became barren and thus of no use to the mosque, it was retrieved by the owners, with consensus. Mosque or its administration, the learned counsel submitted, cannot assert any right over that property, therefore, a decree passed by the trial Judge against the respondents sued in their representative capacity could not have been reversed by the High Court in the exercise of its Suo Motu Jurisdiction especially when it attained finality on withdrawal of a revision petition questioning withdrawal of an application filed under section 12(2), C.P.0
3. Syed Sharifuddin Pirzada. Learned Senior Advocate Supreme Court appearing on behalf of Ch. Mukhtar Ahmed who was impleaded as respondent on the strength of an order dated 18-3-2003 of this Court pursuant to C.M.A. No, 399 of 2003 contended that respondent is a bona fide purchaser and as such his rights are protected. He next contended that where a portion of the village common land has once been dedicated by general consent to a particular use, it could be resumed with the will of the majority. The learned counsel to support his contention referred to a book of Customary Law for the Punjab by Sir W.H. Rattigan, K.C.". The learned counsel by referring to its latest edition contended that a grant of land to a man in consideration of his acting as Imam of a village is only in the nature of a special grant which is tenable during the pleasure of grantors, therefore, mosque or anybody on its behalf cannot claim its ownership. The learned counsel by referring to the cases of "Anjuman Masjid-i-Farooqia and 3 others v. Mst. Fazal Begum and 3 others"
(1991 SCM R 2112) and "N. S. Rajabadar Mudaliar v. M. S. Vadivelu Mudaliar and others" (AIR 1970 SC 1839), contended that an income of a property dedicated for the benefit of a mosque does not become ownership of the mosque together with the property, simply because its income at some stage of time was dedicated for the benefit of the mosque.
4. Learned counsel appearing on behalf of respondent No,5 contended that the suit property ever since 1891-92 stood vested in the mosque as is evident from the entry made in proprietary column of the record of rights for the years 1891-92. Not only that he added, these entries have been repeated throughout. These entries, according to, the learned counsel, bear ample testimony to the fact that the original settlers of the village had not only dedicated this property to the mosque but had also forsaken their rights whatever they had in that. This property, the learned counsel submitted being a waqf to all intents and purposes, cannot be resumed or retrieved on any pretext.
5. We have gone through the entire record carefully and considered the submissions of the learned counsel for the parties.
6. A perusal of the record of rights for the years 1891-92 prepared during the first settlement operation shows that the property in dispute was recorded as ownership of the mosque. These entries have been repeated throughout without their being any change. Yes, it is a village common property but the village proprietary body dedicated it to the mosque. At no point of time, any member of the village proprietary body interfered with the rights of the mosque. It is, therefore, a waqf to all intents and purposes. Its long, continuous and uninterrupted use as waqf, leaves no doubt that it is waqf out and out. Reference to the case of "Zahid Farooq and another v. Anjuman Jamia Masjid and 4 others" (1995 SCM R 1584) which has been extensively quoted in the impugned judgment may well be referred to in this behalf. Once the nature of a property as waqf is established, no back door intrusion into the same by a former owner can be allowed to resume, retrieve or reclaim it under any law worth the name. Reference to the Customary Law cited above and the judgments rendered in the cases of Anjuman Masjid Farooqia and 3 others v. Mst. Fazal Begum and 3 others 1991 SCM R 2112 and "N.S. Rajabadar Mudaliar v. M. S. Vadivelu Mudaliar and others" (AIR 1970 SC 1839) would therefore have no perceptible relevance to the case in hand.
7. Suing respondents in representative capacity is also open to a serious doubt when strict compliance with the provisions of the C.P.C. Dealing with a suit of such nature does not appear to have been proved oh the record.
8. The argument that many applications under section 12(2) of the C.P.C. Questioning such decree were filed but they ended in withdrawal, cannot change the nature of the property which is essentially waqf and has been established as such by an overwhelming evidence on the record.
Similarly the argument that the decree thus passed by the trial Court attained finality when a revision petition questioning withdrawal of an application under section 12(2) of the C.P.C. Was dismissed as withdrawn is also devoid of force as no decisive finding on any of the issues raised in this case has been given by the High Court in the aforesaid order. The plea of bona fide purchaser set up by the added respondent also appears to be legless when it doesn't satisfy the conditions laid down in this behalf by section 41 of the Transfer of Property Act.
9. When considered against this background, we have no doubt in our mind that the finding of the High Court, being in accordance with law and the revenue record is not open to any exception.
10. For the reasons discussed above, this appeal being without merit is dismissed.