This appeal is directed against the order of the learned District Judge, Multan dated 24th January.
1981 allowing the application made against taking over control of the property in dispute by the Auqaf Department.
2. By notification dated 19th June, 1976 the Chief Administrator of Auqaf, Punjab, Lahore took over and assumed the administration, control, management and maintenance of the shrine of Hazrat Habeeb Shah Sahib situated in mauza Taraf Jumma Khalsa, Tehsil and District Multan alongwith the properties mentioned in the schedule appended with the notification, and declared them the Waqf properties. T-U cash-box offerings, subscriptions made to the said shrine were also taken over.
3. Ghulam Haider, now dead and represented by respondents 1 to 5 as his heirs and legal representatives, disputed the notification and made a petition before the learned District Judge, Multan under section 7 of the West Pakistan Waqf Properties Ordinance (XXVIII of 1961) stating that the properties were privately owned by his father Nazar Ali, and the same devolved on him from his forefathers since more than one hundred years. He averred that the notification was based on mala fides, as it was made under persuation of some miscreants who felt jealous of the Mandi Moveshian started by him on a portion of the property in dispute although earlier a complete enquiry had been made and the Auqaf Department by the letter dated 22nd August, 1972 declared it to be the petitioner's personal property. On his death, the legal representatives of Ghulam Haider prosecuted the petition on the same lines and maintained that the properties in dispute belonged to them. The petition was oppos--ed by the Department and it was persistently asserted that the properties were Waqf and the notification was properly made and the control rightly assumed.
4. The pleadings of the parties gave rise to the following issues :-
(1) Has the petitioner any cause of action to file this petition ? O. P. P: (1.-A) Whether the petition is not within time ?
(1-B) Whether the petition is not properly valued for the purpose of court-fee and jurisdiction ?
(2) Is the Administrator Auqaf, Multan Zone, Multan (respondent No. 2) an unnecessary party to this petition ? O. P. R.
(3) Is this petition not maintainable in its present form ? O. P. R.
(4) Has original petition not been attested according to law ? O. P. R.
(5) Is the property in dispute not a waqf property ?
(6) Is the notification No. D. W. P. 1 (297) August, 1972 dated 19th June, 1976 illegal, void, mala fide, collusive and inoperative?
(7) Relief.
5. The parties produced their evidence, both oral as well as docu--mentary. The petitioners- respondents produced Shaukat Hayat Drafts--man P. W. 1: who proved the site plan Exh. A/1 prepared by him. Their counsel vide his statement dated 25th May, 1977 tendered in evidence the fard intikhab haqdaran Exh. A/2. Fard intikhab for the year 1960-61 Exh. 9/3, ford haqiat in respect of the III Consolidation Exb. A/4, the one in respect of the IV Consolidation Exh. A/5, Jamabandi for 1925-26 Exh. A/6 Jamabandi for 1929-30 Exh. A/7, Jamabandi for 1937r38 Exh. A/8, Jamabandi for 1941-42 Exh. A/9, Jamabandi for 1945-46 Exh. A/10 Jamabandi for 1952-53 Exh. A/11, Jamabandi for 1956-57 Exb. A/12, Jamabandi for 1960-61 Exh. A/13, copies of the register of house-tax for the year 1968-69 Exh. A/ 14 to A/ 16, property-tax for the year 1975-76 Exhs. A/17, A/18 and A/19 copy of the sale-deed Exh. A/20 and other sale-deeds A/21, A/22, A/23 and A/24 copy of the order dated. 22nd August,.1972 passed by the Chief Administrator Exh. A/25, house-tax for the year 1963-64 Exh. A/28, house-tax for 1947 Exh. A/29, copy of the Wajibul-Arz Exh. A/30, property-tax deposits Exhs. A/31, A/32, A/33 and A/34. Pehlwan Khan son of Ghulam Haider one of the petitioners --respondents appeared as P. W. 2 and gave the complete history of the pro--perties and deposed that the same were notably being used as their self owned properties. A few more documents like Exhs. A/36 to Exh. A/41 were also produced on record. They are the copy of a plaint Exh. A/36, copy of the judgment dated 21st October, 1974 Exh. A/37, copy of the plaint Exh. A/38, copy of the judgment dated 15th December, 1969 Exh. A/39, copy of the Capital Gains-Tax Register Exh. A/40, and a copy of mutation No. 470 dated 19th March, 1898 Exh. A/41, Original challan forms in respect of deposits are marked A to Q.
6. In rebuttal the appellants produced Baqa Muhammad Naib Sadar Qanungo R. W. 1 to prove the excerpt Exh. R/ 1 which related to the period from 1857-58 to 1960-61. His report was Exh. R/2 and the Jama--dandi for the year 1960-61 was Exh. R/3. He also admitted to have pre--pared the excerpt Exh. A/35 and proved it as correct. Allah Ditta R. W. 2 being. The record-keeper of the Commissioner's Office, Multan stated that the letter No. 82 dated 16th August, 1860, No. 107 dated 14th August, 1860 and the order dated 15th June, 1960 were not available. The appellant's counsel tendered in evidence a copy of the Misal Haqiat Exh. R/4, a copy of another Misal Haqiat Exh. R/5 and still another. Exh. R/6. Copy of a notice Exh. R/7 and a copy of the Jamabandi 1893-94 Exh. R/a.
Muhammad Latif R. W.
3. An Ex-Rent Collector stated that he had been realising rent and certified receipts Exh. R/9 to Exh. R/42. Ghulam Rasool Rent Collector R. W. 4 also collected rents from different occupants of the pro--perty in dispute. The receipts being certified copies Exhs. R/43 to R/62 were placed on record. Muhammad Umar R. W. 5 a photographer took snaps which were Exhs.
R/63 to R/65 and their negatives were Exhs. R/66 to R/68.
7. The trial Court gave a complete picture of the evidence led by the parties and allowed the petition. Issues 1-B, 2 to 4 were decided against the appellants because they were not pressed.
Issue No. 1-A was also decided against the appellants and the petition was found to be instituted within limitation. In respect of issues 1, 5 and 6 a detailed discussion was made by the trial Court and the same were decided in favour of the petitioners-respondents. In view of the revenue record, it was held that the shrine of Hazcat Shah Habeeb Sahib situated in Taraf Jumma Khalsa, Tehsil and District Multan had no connection with the disputed property and that it was not made out that the said property was dedicated as Waqf by the Hazrat or any of his disciples for religious, pious or charitable purposes, or that it was acquired from the income of the Waqf property.
8. However, their is no direct evidence on record that the property in dispute was once dedicated or ever since attached to the shrine of Hazrat Shah Habeeb Sahib as alleged in the disputed notification. The excerpt Exh. A/ 35 which is an admitted document has given the picture of the property falling in the hands of Ghulam Hussain. He is shown as chela of one Turrab Shah but this description without any evidence, does not lead to show that the property was either Waqf or was treated as such. Ghulam Hussain later became traceless and in his absence Gaman Khan entered into possession. Soon after Nazar Ali known as balka of Gaman occupied the land. The said Nazar Ali was the father of Ghulam Haider who is now represented by the present respondents as his heirs. Nazar Ali continued in possession as an owner from the year 1895-96 to the year 1921-22.
Afterwards upto the year 1960-61 Ghulam Haider remained continuously in possession. There has been very 7little indication that the shrine of Hazrat Habeeb Shah Sahib is detailed, in the notification in dispute was connected with this property. From the entire excerpt it however transpires that an area of 1, kanal 13 marlas shown under the graveyard continued changing position and the same was consequently increased to 2 kanals 3 marlas and shown as Maqbooza Ahle Islam, but such user would not make out that the area -was turned into a waqf. In. The revenue record the property in dispute was situated at Chah Habib hah which was definitely a different portion of the pro--perty not attached to the shrine. The property was being treated as personal property and was at one time mutated in favour of Nazar Ali, the grand-father of the respondents vide mutation No. 470 (EXb. A/41). The copies of the house-tax assessment Exh.. A/14 to A/16 and those of the property-tax Exhs. A/17 to A/19, Exhs. A/28 and A/29 and the receipts Exhs.
A/31 to A/34 as well as the receipts marked A and Q relating to House-tax have made out that the property was owned by Ghulam Haider, The gift-deed (Exh. A/20) and the copies of the sale-deeds Exhs. A/21 to A/24 indicated that a portion of the property was alienated by Ghulam Haider. Copy of the plaint Exh. A/36, of the judgment Exh. A/37, and also the copy of the plaint Exh. A/38, and copy of the judgment Exh. A/39 were produced to show that the land in dispute had been put to litigation and the same was always treated as personal pro--perty. So much so an enquiry was earlier held by the Department and according to Exh. A/25 it was taken as personal property of the respondents.
9. The material placed on record by the appellant did not in any manner establish that it was a Waqf property. Exh. R/I is the same excerpt which is Exh. A/35 produced by the respondents. That does not help the appellant. The copies of the revenue record also did no A present a different picture from what was given in the excerpt Exh. R 1. Realisation of rent vide Exh. R/9 to Exh. R/42 and the others Exh. R/43 to Exh. R/62 after the issue of the notification does not make the property Waqf.
In the same way the photographs and their negatives did serve as evidence in support of the notification. The learned trial Court was, therefore, justified in holding that the land in dispute was not Waqf property.
For the foregoing reasons there is no force in the appeal and the, same is dismissed, however, with no order as to costs.