' This appeal has arisen out of a petition filed by the respondent. In the Court of the District Judge, Lahore, under section 7 of the West Pakistan Waqf Properties Ordinance, 1961, challenging the Notification No, 3 (536) Auqaf-60 dated 18th April, 1961 issued by the Chief Administrator of Auqaf under section 6 of the Ordinance, whereby he assumed the administrative control and management of
(i) An area of 19 Marlas containing Chilla, Hazrat Mian Mir Sahib, Masjid, Graves, shops and houses bearing property No. 138, situated in Anarkali, Lahore, and
(ii) Subscription and offering made to the said Cbilla/Masjid.
1
2. The respondents' case is that no part of the property in dispute is waqf and that he and his ancestors held it as owners thereof. It was denied that the respondent or for that matter any of his predecessorsin interest acted as Mutwalli. It was pleaded that the Chilla-Gah consisted of a small underground cellar measuring 6 x 7 Sq. Ft. Existence of the mosque was also denied and it was contended that there were only two graves, which were of the respondent's ancestors and no sanctity was attached thereto and offerings made by the public. As an alternative relief, the respondent claimed acquisition of title through adverse possession. The validity of the Ordinance was also challenged by him.
3. The appellant resisted the petition and asserted that the property in dispute is a Waqf property, within the meanings of section 2 (d) of the Ordinance. The pleadings of the parties gave rise to the following issues :-
(i) Whether the property in dispute is not waqf Property ? 0. P. P.
(ii) If Issue No. 1 is proved against the petitioner, has his possession been adverse for more than 12 years ? If so, what is its effect ? O. P. P.
(iii) Whether the West Pakistan Waqf Properties Ordinance, whereby the property in dispute was taken over by the respondent is ultra vires?
4. In support of his petition, in addition to his own testimony the respondent relied on the deposition of six witnesses and produced a large number of documents, to establish that all along he as well as his predecessors-in-interest have been dealing with the property in dispute as owner thereof, and that it was never treated as a waqf property. In rebuttal the appellant examined only one witness, namely Abdul Ghani and produced copy of the High Court's judgment dated 5th June, 1934.
5. One appreciation of the evidence produced by the parties. The learned District Judge maintained, that the property in dispute was not covered by the definition of the term `Wagf property" as embodied in section 2 (d) of the Ordinance. He held that there was no evidence suggestive of permanent dedication of the property and that it was also not satisfactorily proved there was a public mosque or otherwise the disputed property acquired the character of "Waqf property". In the opinion of the learned District Judge, even if Hazrat Mian Mir Sahib performed Chilla in the property, that by itself, in the absence of the proof of the permanent dedication did not convert it into a Waqf. On the basis of the oral and documentary evidence,.The learned District Judge came to the conclusion that the respondent as well as the Lahore Corporation and so also during the litigation relating to it, the property in question all along was treated as respondent's private property. In view of his these findings. Issue No, I was answered in favour of the respondent.
However, the findings on the remaining two issues were returned against him. The material issue having been answered in favour of the respondent, the learned District Judge by his order dated 16th April. 1970 allowed the petition and granted the declaration prayed by him.
6. This appeal is accompanied by an application under Order XLI, rule 27, C. P. C. For permission to produce by way of additional evidence, nine documents. Out of these, two documents are the water bills for the years 1951-52 and 1953-54, in respect of the property in dispute. The - other six documents are, the copies of the 'misle hagiat' for the years 1868, 1891-92, 1913-14, 1924-25, and " {{URDU TEXT}} village Lahore, for the years 1941-42 and 1957-58. Last in the list is the copy of the High Court's judgment dated 5th June, 1934, which at the appellant's instance has already exhibited as R. I. The two water bills have been issued by the Lahore Municipal Corporation in the name of "Mosque c/o Sh. Muhammad Hayat, Sh. Muhammad Jehangir, Kutchery Road, Lahore."
' In the copy of the 'Misle Haqiat' for the year 1968, the site bearing Survey No, 1986, measuring 17 Marlas is shown as "Ghair Mumkin" Takia mah chah". In the ownership column figures the name of Mahboob Shah, `Gaddi Nashin' Dargah Hazrat Mian Mir Sahib. In the cultivator's column, the entry is "maqbooza Alif Shah Jharookash". In the other copies of the `misle haqiat' in all the relevant columns, there is the entry of `abadi deh'.
7. It is discernible from the record that the respondent closed his evidence on 11th December, 1963 and the case was adjourned to 14th January, 1964 for the appellant's evidence. However, despite several adjournments allowed to him, the appellant, could examine only one witness on 5th June, 1968, on which date the learned District Judge, closed his remaining evidence but he was allowed to put in documents, if permitted by law and the case was adjourned to 21st September, 1968 for arguments. The appellant challenged this order through C. R. No, 601/1968 which was dismissed by this Court on 16th September, 1968. Thereafter, on 21st September, 1968 the appellant moved an application before the learned District Judge, that during the handing over the file of the case by the Department to different counsel, some important documents were lost, which were being traced out and if not found, fresh copies thereof would have to be obtained. The documents now sought to be produced as additional evidence were placed on the file along with this application and a prayer was made for grant of time to file more documents. The averments made in the application were not supported by an affidavit. The learned District Judge by his order dated 23rd November, 1968 allowed the appellant to tender in evidence only the copy of the High Court's judgment dated 5th June, 1934 but declined to grant permission for production of the remaining documents. Against this order, the appellant filed C. R. No, 268/69 which was dismissed by Waheeduddin, C. J. On 29th April, 1969 with the observations that the question of production of other two documents i. e. The Corporation's water bills and `Misle Haqiat' could be agitated at the appellate stage after the case was finally decided by the learned District Judge. It is on the strength of initiated proceedings to acquire the property, which were abandoned on the respondent's move that it was a Waqf.
8. On behalf of the respondent his learned his learned counsel argued that there is absolutely no evidence of the user of the property from time immemorial for a religious, charitable or pious purposes or that of its dedication, to make it a Waqf property. He referred to the oral and documentary evidence to urge that at least from the year 1877 onward the respondent or for that matter his predecessors-in-interest have been mortgaging the property ; leasing it out, making constructional changes therein and dealing with it as its owner. It was contended that very cogent evidence is needed for extermination of secular character of the property, but the entire evidence produced by the appellant consists of statement of one witness who has been disbelieved by the learned District Judge and a copy of the High Court's judgment dated 5th June, 1934, which instead of sup poring the Auqaf Department, establishes the respondent's possessory title. The learned counsel also referred to the Urdu Journal, "Naqoosh, Lahore Number" published in February 1962 which contains the history of Lahore City, and Urdu translation by Hazrat Shah Mir Qadri, of "{{URDU TEXT}} written by Sultan Mahmood Dara Shakoh, to point out that is replete with many inaccuracies.
9. I have examined the record and gone through , the evidence, led by both the parties. The respondent examined six witnesses, namely Rehmat Ullah Ansari (P. W. 1), Syed Feroze Hussan Shah (P. W. 2), Ejaz-ud-Din Ahmed (P. W. 3), Abdul Ghani (P. W. 4), Ghulam Muhammad Butt (P. W. 5) and Capt. Muhabat Khan (P. W. 6). He also appeared as his own witness (P. W. 1) stated that respondent is the owner of the property in dispute ; his father inherited it from his ancestors ; there is no mosque in the property. In cross-examination he deposed that there is a narrow passage from Anarkali leading towards Chilla but asserted that there is no question of anybody's saying 'Fatah' at the Chilla. According to P. W. 2, who is a retired Director of Excise and Taxation Department, two or three shops adjacent to Bible Society were under the control of the respondent and he saw it as such since 1928-29. P. W. 3 deposed that the respondent is the owner of six or seven shops and a three-storeyed house in Anarkali Bazar, and that in 1932 he remained his tenant in the second floor of the house. He admitted existence of the Chilla and described its measurement as about 2 x 3 feet, but stated that he never saw any offerings being made or the lights burning at the Chilla. P. W.
4 is the executant of the rent deed dated 31st October, 1942 (Exh. P. 3) whereby a shop in property No, 138 Anarkali Lahore, was leased out to him by the respondent. It is in his testimony that the respondent and his father, namely Muhammad Hayat have been leasing out the shops comprising part of the property in dispute to various tenants. He did not deny that there is space with an area of 2x 3 feet, in the property, below the ground level which is known as Chilla of Mian Mir Sahib. He further stated that there are two or three graves in the property which are, that of the respondent's ancestors. P. W. 5 proved the execution of the rent deed dated 18th October, 1920 (Exh. P. W. 5/1) executed by one Ishar Das in favour of the respondent's father in respect of a shop in Anarkali Bazar, Lahore, on the ground floor of his residential house and stated that he has been seeing the building in dispute for the last fifty years or so. He deposed that the building was owned by the father of the respondent and several persons occupied it as tenants under him. Though he stated that there is a mosque towards the south of the property in question, yet deposed that nobody ever said `Azan' therein. In cross examination he stated that there is a Chilla of Hazrat Mian Mir Sahib, in the property but denied that the respondent or his father were the Mutwalli of the Chilla and asserted that they iived in the property as its owner. The respondent's last witness Capt.
Mohabat Khan (P. W. 6) stated that he knew the respondent since 1953 and the property in dispute belongs to him ; there is no mosque in it, he never heard any `Azan' being said : there is a Tehkhana in the property, but it is not accessable to public. The respondent while appearing as his own witness supported the contents of the petition and corroborated the version given by his witnesses.
10. In addition to the oral evidence the res.Pondent relied on a mass of documentary evidence. He produced 44 rent deeds which relate to the period from the year 1918 to 1943 and have been exhibited as P. W. 7/37, P. W. 7/38 (1918), P. W. 7/40 to P. W. 7/42 (1919), P. W. 7/43 to P. W. 7/46 and P.
W. 5/1 (1920), P. W. 7/47 and P. W. 7/48 (1921), P. W. 7/49 (1922), P. W. 7/50 (1923), P. W. 7/51 and P. W.
7/53 (1925), P. W. 7/54(1926), P. W. 7/56 (1927), P. Ws 7/57, 7/6u and 7/61 (1928), P. Ws, 7/59, 7/63 (1928-30) Exhs. P. 1 and P. 2 (1934), P. W. 7/16 (1937) P. Ws. 7/17, 7/69 to 7/72 and 7/75 to 7/78 (1940) P.
Ws. 718, 7/79, 7/80 and 7/84 (1941), P. W. 7/86 (1942), P. Ws. 7/19 to 7/21 (1943). These rent deeds were executed by various tenants either in favour of the respondent or his father, in respect of different tenements of the property in dispute. Exhs. P. Ws. 7/68, 7/22, 7/23 and 7/98 are the copies of the assessm ent record of the Municipal Corporation, Lahore for the years 1940, 1946, 1953 and 1955-56 respectively. The name of the respondent figures in these documents, in the column regarding ownership. Exh. P. W. 7/36 is a copy of for the year 1917-18 maintained by the Lahore Corporation, for the property bearing Survey No, 3225 and 3226 Anarkali, Lahore. This record also shows the respondent as owner thereof. He also relied on two mortgage deeds dated 30th April, 1877 Exh. P. W.
7/15 and 19th March, 1879 Exh. P. W. 7/24. Pir Buksh and Umar Buksh sons of Alif Shah, are the executants of these deeds. The document Exh. P. W. 7/15 was executed by them in favour of one Mobay son of Mohan Ram regarding two shops and a verandah in Anarkali and whereas under the second deed they mortgaged two shops situated in Anarkali to one Kalu son of Bassa. It may be observed that Pir Buksh is the maternal father of the respondent's mother namely Mst. Shehzadi Begum. The respondent also produced an agreement dated 3rd January, 1952 to mortgage property No, 138 Anarkali, Lahore in favour of one Nawab Din, which was followed by registered mortgage deed dated 8th February, 1952, Exh. P. W. 7/96. He further, tendered in evidence, copies of the Lahore Municipal Corporation's resolution dated 18th December, 1905 (P. W. 7/28) and dated 15th April 1907 (Exh. P. W. 7/30) and so also building plan sanctioned in his name on 18th May, 1957 (P. W. 7/99). P. W. 7/29 is the sanction given to the respondent by Municipal Corporation, Lahore on 9th March, 1907 for construction of a thara in front of his house in Anarkali. Exh. P. W. 7/116 is the copy of the judgment dated 4th July, 1929 passed by the Senior Civil Judge, Lahore. In addition to this documentary evidence the respondent produced a few other documents as well comprising letters etc. Issued to him by the various Departments, electricity hills, water rate bills and receipts evidencing the payments to the Municipality, Lahore.
11. The appellant's entire case hinges on section 2(d) of the Ordinance which in so far as it is relevant for the purposes of this case is reproduced below :- "(d) `Waqf property' means property of any kind permanently dedicated by a person professing Islam for any purpose recognised by Islam as religious pious or charitable, but does not include property of any Waqf such as is described in section 3 of the Mussalman Waqf Validating Act, 1913, under which any benefit is for the time being claimable for himself by the persons by whom the Waqf was created or by any member of his family or descendants.
' Explanation 1.-If a property has been used from time immemorial for any purpose recognised by Islam as religious, pious or charitable, then in spite of there being no evidence of express dedication, such property shall be deemed to be Waqf property.
' Explanation 2.-Explanation 3.-Explanation 4.-Explanation 5.- ' Explanation 6 -Property pemanently dedicated for the purposes of a mosque, Takia, Khankah, Durgah, or other shrine shall be 'deemed to be Waqf property."
' Thus under the interpretation clause a Waqf may be created, by an owner of a property professing Islam, through its permanent dedication. In the absence of evidence of express dedication, waqf of a property may be inferred from its long user for religious, pious or charitable purposes. The learned counsel for the appellant had to concede that there is no evidence of express dedication. His main stress, however, was on the use of the property as a Chilla, Hazrat Mian Mir Sahib and mosque from the time immemorial. So far as the evidence on the user of the property is concerned no doubt P. W. 1, P. W. 3, P. W. 4 and P.W. 5 did not deny the existence of an under ground small cellar called Chilla Hazrat Mian Mir Sahib within the precincts of the property, but it is evident from the testimony of P. W. 1 and P. W. 6 and that of the respondent that this cellar is not open to public. No doubt Abdul Ghani (R. W. 1) the appellant's solitary witness has whole- heartedly supported the appellant but he migrated to Lahore from Amratsar after the creation of Pakistan, and thus could not have personal knowledge of the pre-Partition status of the property.
His evidence does not inspire confidence and was rightly discarded by the learned District Judge.
In any case his evidence cannot be preferred to that of the witnesses examined by the respondent who hail from the same locality where the property in dispute is situated. P. W. 1, P. W. 2 and P. W. 3 categorically stated that there is no mosque in the property. P. W. 5 however, admitted that there is a mosque but deposed that he has never seen anyone saying prayer or `Azan' in it. According to the respondent, there is only a `Chaubutra' for offering prayers by his family and that the two graves are that of his ancestors.
15. There is a lot of unimpeachable documentary evidence on the record, to establish that at least for the last over 85 years, before the issue of the impugned notification, the respondent and his predecessors-in-interest have been dealing with the property as a private property and holding out themselves as its owner. The mortgage deeds Exh. P. W. 7/15 and Exh. P. W. 7/24 were executed on 30th April, 1877 and 19th March, 1879 by Pir Bakshand Umar Baksh. Again in {{URDU TEXT}}jai" of Lahore City for the year 1890 Exh. P. W. 7/25, the name of Umar Baksh son of Alaf Shah is shown in the column concerning ownership. The copy of the judgment Exh. P. W. 7/116 indicates that the property was sold by the respondent's mother, Shehzadi Begum to Hakim Muhammad Sharif and others who filed a suit for possession against her and also impleaded the respondent's father as a tenant, as he was in its physical possession. The suit was decreed on 7th April 1929 but the appeal filed by the respondent's father was accepted by the High Court by its judgment dated 5th June, 1934 Exh. R. 1 and the suit dismissed. The copy of the Lahore Corporation's resolution dated 18th December, 1905 Exh. P. W. 7/28 shows that Muhammad Hayat made constructional changes in the property. In pursuance of P. W. 7/29 and P. W. 7/30 dated 9th March, 1907 and 15th April, 1907 with the permission of the Corporation, he built a 'Thara' and a projection respectively, in front of his house in Anarkali. Exh. P. W. 7/99 shows that the respondent got a building plan sanctioned on 18th May, 1957. The forty-for rent deeds covering the period from 1918 to 1943, coupled with other evidence unmistakably prove that the respondent and his father have been letting out the property and successfully litigating with the tenants, in the capacity of owner. There is nothing on the record to show that they granted tenancies and mortgaged the property as Mutwalle or were guilty of malfeasance or misfeasance. In fact the appellant has not brought on the record any evidence to prove that they were ever appointed as Mutwali or de facto acted as such. It is also significant that in the record of the Lahore Municipal Corporation, copies Exhs. P. W. 7/68, P. W. 7/22, P. W. 7/23, P. W. 7/98 and P. W. 7/38, which relate to the period from 1917.18 to 1955-56. The respondent or his father have been mentioned as owner of the property. There are some other documents also on the file, indicative of the secular character of the property. On the basis of the oral and documentary evidence, the respondent has sufficiently proved that the property in dispute is a private propel uty and that it did not acquire the attributes of waqf property.
16. It can be gathered from "{{URDU TEXT}}hat Hazrat Mir Mian Sahib expired in the year 1635 A. D., and even if the Saint used the cellar for Chilla, I agree with learned District Judge that such user by itself would not confer status of Waqf, on the property in dispute. There is absolutely no evidence that after the death of Hazrat Mian Mir Sahib, this place continued to be held in reverence by the public at large and visited by them. It was for the Auqaf Department to have led evidence in rebuttal and proved by cogent and reliable evidence that by virtue of its long use, the site developed into a religious institution, has denuded of its secular character, and became a Waqf property. Direct evidence of constitution of Waqf by long user of the property of this nature, could have been produced. But there is no such evidence on the record. In Shafiq-ud-Din and others v.
Mahboob Elahi and others (I). Shadi Lal, C. J. Speaking for the D. B. Held that description of certain property in settlement papers as `Takia' does not prover it to be a Waqf. In Deputy Administrator Evacuee Trust Property v., A. R. Chaudhary (2). I maintained that mere entry "Waqf Ahl-i-Hanood" in the record-ofrights is not sufficient to establish that the property is an evacuee trust property. Thus even if the "Mille Haqiat" for the year 1868 is admitted in evidence, the entry of 'Takla' embodied in it, per se would not be sufficient to prove the Waqf. In Sain Maule Shah v. Ghane Shah (3). Privy Council characterised `Takia' as a place where a "Dervesh" resides before his pious life and teachings attract public notice, whereas according to the (1957 Ed.) the word Chilla means {{URDU TEXT}}- - The term `Chilla' is thus not synonymous with "Takia". It is noteworthy that within a period of nine years from the preparation of the `misle haqiat', Pir Baksh and Umar Baksh, by means of registered deed dated 30th April, 1877, Exh. P.W. 7/15 mortgaged with possession, two shops.
17. The appellants has also failed to prove that there is a public mosque in the property. The respondent has stated that there exists only a "Chabutra" for private worship of his family. Even if there is a mosque at the site, in the absence of any reliable evidence, that the worship was performed therein by the public, such mosque would not be suggestive of its dedication to God Almighty for its appropriation as a Waqf property. In Musahab Khan and others v. Raj Kumar Bakshi and others (4) it has been laid down that mere construction of a mosque in a private house does not make it a mosque in the sense of a public place of worship. I do not think that in the circumstances of the case, the entry in the two water bills, can be of any help to the appellant. As already observed there is absolutely no evidence of dedication of the property by its owner as a Waqf property and the appellant's learned counsel merely advocated its long user within the meaning of Explanation 1 to clause (d) of section 2 of the Ordinance as proof of constitution of waqf. In Zafar Hussain v. Mian Muhammad Ghias Ud Din (5). Din Muhammad, J., who delivered judgment for the D. B. On consideration of some case-law on the subject observed :- "Under Muhamedan Law followed by the Hanfi sect even if no particular formality need be observed to make a Waqf complete, there must be unmistakable proof available that the owner made a clear declaration dedicating the property definitely and permanently to God. Even an owner's unexpressed intention to dedicate property cannot have the effect of a formal dedication.
In the absence of any such intention or declaration, no waqf can be said to have been created. It is true that a waqf can be created by user but that user too must be preceded by an intention on the part of the owner to create a waqf. If no such intention is established, user alone will not be sufficient to divest the property of its private character." {{FOOT NOTE}}
(1) AIR 1930 Lah. 714 (2) 1981 CLC 1006
(3) A 1 R 1938 P C 202 (4) AIR 1938 Oudh 238 (5) AIR 1937 Lah. 552 {{FOOT NOTE}} It seems to me that by addition of Explanation I to clause (d), the position in law has not in any manner been changed or the principle of Hanafi Law, referred to in this ruling departed from. What the Explanation, lays down is, that in the absence of evidence of express dedication, implied dedication may be inferred from long user of the property for the objects attributable to Waqf. This would not render proving the intention of the owner, to create a waqf, as an act of superarogation.
Clause (d) encompasses the definition of the term "Waqf property" as recognised by tenets of Islamic Law. The Explanation cannot be deemed to have traveled beyond the principal clause to which it is appended. The appellant, however, has not produced any direct or indirect evidence worth the name, reflecting the intention of the owner of the property to dedicate it.
18. 1 also find that the contention of the appellant's learned counsel, that at one stage the property was intended to be acquired by the Education Department but was dropped on account of its being a Waqf property, has remained unproved and even otherwise, when looked in broad spectrum of the evidence of the respondent, this assertion pales into insignificance.
19. It is in evidence that the property consists of houses and shops which have remained in possession of the respondent and his predecessors-in-interest. These different parcles of the property have been utilized for secular purposes and are capable of being put to distinct enjoyment. The case set up by the Auqaf Department at the most would entitle them to lay hand on the cellar and the portion styled by them as a mosque. It is difficult to visualise as to how the inclusion of the entire property in the impugned notification, can be justified.
20. The only point left to determine is the evaluation of the evidential value of the works relied upon by the learned counsel for the parties. It is correct that the to some extent supports the department's claim as to the use of the `Chabutra' as a mosque and the underground cellar by Hazrat Mian Mir Sahib as a Chills. Section 57 of the Evidence Act, empowers the Court to seek aid from appropriate works and to take judicial notice of the matters of public history, F literature, Science and Art of sufficient Notoriety, by reference to authentic books of reference. But the question whether a property has been permanently dedicated and by its long user became a waqf, is however a question of fact, which has got to be proved by cogent evidence. The book referred to by the appellant's learned counsel was. Published by the "Punjabi Adabi Academy, Lahore" and is based on the original work of Noor Ahmed Chishti published in 1854, which was cited in Masjid Wazir Khan's case, reported as Farzaad Ali and others v. Zafar All (1) but was excluded from consideration by the Punjab Chief Court and it was held that :- "We are inclined to think that the use of the historical works to establish title to the property cannot be justified on the strength of section 57, Evidence Act. The question of title between the trustee of a mosque, though an old and historical institution, and a private person cannot, in or opinion, be deemed to be a "matter of public history" within the meaning of the said section." {{FOOT NOTE}}
(1) AIR 1918 Lab. 388 {{FOOT NOTE}} ' This judgment was followed by another Division Bench in Sanat Singh v. B. Rallia Ram and others (1). Respectfully agreeing with the view taken in these precedents I feel, that resort to the book cited on behalf of the appellant, is not permissible. The case of a party must stand or fall on the basis of the evidence produced by him.
21. For the foregoing reasons the impugned order is upheld ; the appeal fails and is hereby dismissed without any order as to costs. {{FOOT NOTE}}
(1) AIR 1930 Lab. 744 {{FOOT NOTE}}