MUHAMMAD GHAZANFAR KHAN, J.---This judgment shall dispose of C.R. No.355-D of 2012, filed by Rajab Ali Shah etc and C.R. No.57-D of 2014, preferred by Syed Ejaz Hussain Shah as the dispute between the parties is with regard to one and the same property.
2. Brief facts giving rise to the instant controversy are that the petitioners-plaintiffs Rajah. Ali Shah and one other instituted a declaratory suit against the Revenue Officer etc in the Court of Senior Civil Judge, D.I.Khan in respect of property, detail whereof has been mentioned in the heading of plaint. Respondents appeared in the Court and submitted their written statement. Subsequently, on the application of respondent No.5 (petitioner in C.R. No.57- D of 2014), he was arrayed in the panel of defendants, pursuant to which an amended plaint was filed. Respondent No.5 also filed his written statement and out of divergent pleadings of the parties the learned trial Court framed as many as ten issues including the relief, whereafter the parties adduced evidence of their choice.
The learned trial Court vide judgment and decree dated 20.12.2010 dismissed the petitioners' suit with certain observation, which prompted the parties to prefer separate appeals before the appellate Court, which were dismissed by learned Additional District Judge-III, D.I.Khan on 09.7.2012.
Hence, the present revision petitions.
3. Arguments heard and record perused.
4. Perusal of record would show that the petitioners have challenged entry in the revenue record regarding suit property to the extent of word "Khangah Pir Qamar Sultan" and also sought declaration that this entry be substituted with ownership of Pir Qamar Sultan. Petitioners further contended that being legal heirs of said Pir Qamar Sultan Shah, they are entitled for its inheritance.
In first suit, the petitioner did not array respondent No.5 Ejaz Hussain Shah as party to the proceedings, however, subsequently, his name was added and he submitted written statement.
5. The entire record produced by the petitioner during pendency of the suit negates the version of petitioners. Though the petitioners have succeeded to prove that they are legal heirs of Pir Qamar Sultan, but rest of their claim is belied by the plethora of revenue record placed on the file. So much so, the plaintiffs-petitioners' witness namely Rajab Ali Shah, who appeared as PW-5, has categorically stated that:-
6. Now the shrine of Pir Qamar Sultan Shah is situated in Umar Khel Pacca whereas shrine of Pir Qamar Shah is situated in Bannu. As is evident from the plaint that the plaintiffs-petitioners have tried to establish that Pir Qamar Sultan Shah buried at Pir Qamar Sultan, D.I.Khan and Pir Qamar Shah buried in Bannu are the one and the same person and the petitioners are his legal heirs, however, the admission of PW-5 is sufficient to hold that both the personalities are separate and the petitioners have failed to prove their case as they have advanced in their case. The.Only bone of contention between the parties is that whether the suit property is a Waqf property or is ownership of predecessor of the petitioners. As has been discussed above, that entire record produced by the petitioners to prove their stance negates their version. Waqf property, as defined by section 2(e) of N.-W.F.P. Waqf Properties Ordinance, 1979, defines the "Waqf property" means property of any kind permanently dedicated by a person professing Islam for any purpose recognized 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 (VI of 1913), undcr which any benefit is for the time being claimable for himself by the person by whom the Waqf was created or by any member of his family or descendants. In explanation No.1, it is categorically stated that "If a property has been used from time immemorial for any purpose recognized 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". In explanation No.5, it is expressly provided that "Property permanently dedicated for the purposes of a Mosque, Takia, Khankah, Dargah, or other shrine, shall be deemed to be waqf property". Section 7 of the Act ibid empowers the Chief Administrator to take Over the waqf property by a notification. In the present case, the Administrator has never taken any step to take over the property in accord with provisions of section 7 of the Act ibid. It is admittedly in the possession of respondent No.5 since his forefathers.
Respondent No.5 has proved that he is Mutawali of the impugned Dargah since his forefathers.
Respondent No.5 has also produced tax exemption certifizates which were exhibited without any objection which too is a proof in negation of claim of the petitioners.
7. For what has been discussed above, it is established on the record that respondent No.5 is in possession of the suit property as Mutawali/Mujawar from time immemorial and none including Auqaf Department has ever objected to his possession, so, the judgments and decrees of both the Courts below are correct, based on proper appreciation of evidence and law on the subject, however, the observation of both the Courts below regarding management of the suit property by Auqaf Department seems to be erroneous and based on wrong assumption of law as there is no bar contained in any law that the waqf property that too a privately created waqf cannot be managed by a private person. So, with this modification, judgments and decrees of Courts below are upheld. However, the decision regarding taking over of the charge of waqf property by Auqaf Department is set aside.##T## revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.