' NISAR HUSSAIN KHAN, J.- Petitioners have challenged the judgment of learned Civil Judge, Nowshera dated 26.6.2008 and that of Appellate Court dated 2.3.2009 whereby their suit for declaration of their status as "Sajadah Nasheen" of shrine of "Nanga Baba Jee", being his descendants, was concurrently dismissed.
2. Learned counsel for petitioners argued that petitioners are descendants of "Nanga Baba Jee", so they are entitled to manage, control and supervise the affairs of shrine of "Nanga Baba Jee" as "Sajadah Nasheen". He maintained that petitioners Nos.5 to 11 are the owners of the property who dedicated the same to "Nanga Baba Jee" for the shrine, so on the principle of inheritance none else, including the respondents/ defendants, are entitled to hold the mantle of "Sajadah Nasheen" except petitioners. Both the learned lower courts have returned their findings by 'misreading and non-reading of evidence, as such are liable to be set aside. Placed reliance on Alhaj Diwan Bukhtiar Said Muhammad V. Diwan Maudood Masood (2006 YLR 2517).
3. Learned counsel for respondents argued that respondents are the descendants of Ghulam Muhammad alias Muhammad who accompanied with Hazrat Ghulam Nabi alias "Nanga Baba Jee" and both settled in Akbarpura where they led a devoted pious life in preaching the sobriety and blessing of eternal life of Islam which attracted so many people who became their followers and disciples. "Nanga .Baba Jee" died in 1965, whereas Ghulam Muhammad alias Muhammad, his Deputy (Khalifah) died in 1966 and both were buried in the same shrine, side by side. After their death, respondents assumed the charge of shrine which was bestowed and acceded to by followers and disciples of 'Nanga Baba Jee' and till date they are holding the same status. He referred to different excerpts of the evidence and contended that the suit of the petitioners has rightly been dismissed by both the courts. Placed reliance on Abid Arif Nomani and others v. Chief Administrator, Auqaf, Punjab and others 2004 SCM R 1050.
4. I have heard learned counsel for the parties and have also gone through the record with their valuable assistance.
5. Cursory survey of the evidence is reflective of the fact that Hazrat Ghulam Nabi alias "Nanga Baba Jee" and his Deputy (Khalifah) Ghulam Muhammad alias Muhammad both belonged to Punjab wherefrom they travelled to Akbarpura, District Nowshera. Both of them were of noble souls and led simple, sober and devoted life for religion and to Almighty Allah. They have been preaching the teaching of Islam by their words and particularly by their acts of worship to God and simple selfless life which earned for them respect in the society. It was an era in which deception was a rare phenomenon. Since they were sincere, honest and truthful devotees of Allah, so the people did follow their preaching and sought their guidance. It is well celebrated saying that one can deceive all the people for sometime, some people for all the times but cannot deceive all the people for all the time. It was their consistent and well embedded devotion for their religion and Almighty Allah and services to the masses which earned for them a highest status of respect in the society. It was the same reason that though they were strangers but were accepted by altogether a different society and land was also dedicated for their abode which later turned into their shrine.
6. Preponderance of evidence suggests that on the death of Ghulam Nabi alias "Nanga Baba lee", his Deputy/Khalifah Ghulam Muhammad alias Muhammad took over the charge and started providing services to the masses which were acknowledged by the followers and disciples of "Nanga Baba Jee" on the same place/hospice. It appears that after a year of the death of "Nanga Baba ice", Ghulam Muhammad alias Muhammad, the predecessor of defendants/respondents, also passed away who was buried beside the grave of "Nanga Baba lee". The defendants/ respondents, being the descendants of Ghulam Muhammad alias Muhammad, were residing in the same abode and continued as such to render religious services to the masses as well as to the shrine/ mausoleum of "Nanga Baba ice". Since the death of "Nanga Baba lee" in 1965 and that of Ghulam Muhammad alias Muhammad in 1966, till eruption of instant dispute, which too has been raised by the L.Rs of donors and descendants of collaterals of "Nanga Baba Jee", none else had ever objected on their status and quality of their services. Though there was no testamentary document on behalf or in favour of the defendants/respondents or their predecessor but it was a tacit and implied grant on behalf of original spiritual leaders/saint followed by acknowledgment by the masses, his followers and the disciples. It appears that in 1999, petitioners/plaintiffs tried to take over the charge of shrine and assume the mantle of "Sajadah Nasheen" which was strongly resisted by the defendants/respondents on which Sher Bahadar and Ali Bahadar filed application before the Deputy Commissioner Nowshera which was entrusted to Resident Magistrate Pabbi for enquiry. The learned Resident Magistrate after exhaustive enquiry submitted report that Ghulam Qamar Din etc, respondents herein, had since long been custodian of the said shrine and have been arranging annual Urs of "Nanga Baba Jee". The said report of the Resident Magistrate goes a long way to establish that shrine of "Nanga Baba Jee", had all along been in control of the defendants/respondents who had been performing religious duties and rendering services to the followers and disciples of "Nanga Baba Jee", when they were permanently lodged within the precinct of the shrine.
7. It is also borne out from the record that plaintiffs/petitioners are still settled in District Attock, Tehsil Hassan Abdal, Village Bhai, while respondents/defendants are settled in the shrine of "Nanga Baba Jee", in Akbarpura, Tehsil and District Nowshera. Their record of education, electoral Rolls, National Identity Cards and all other allied and ancillary documents are indicative of the fact that they are settled in Dargah "Nanga Baba Jee", Akbarpura, Tehsil and District Nowshera since their birth. This factum could not be dislodged by the plaintiffs.
8. In view of this factual position, the only question to be resolved is that whether once declared "Waqf" can be 'subsequently revoked by descendents of donor and whether office of Sajadah Nasheen/Mutawali of a shrine may devolve on the legal heirs of the spiritual leader/ saint or after him, his Sajadah Nasheen. These questions have remained a matter of discussion before the courts, since long, in the subcontinent.
9. There is no codified law on the subject with regard to the management of shrine or for the office of Sajadah Nasheen. It has been based on different pronouncements of the superior courts since pre-partition and the customs and the usage have been made basis of decision for the definition and concept or status of the shrine and office of the Mutawali or Sajadah Nasheen. In terms of Para-173 of the Muhammadan Law of D.F. Mulla, Waqf is a permanent dedication of a property by a 'person professing Islam for any purpose recognised by Islamic law as religious., pious or charitable and in terms of Para-174, it must be permanent. If a land has been used from a time immemorial for religious purpose including any mosque or burial ground or for the maintenance of mosque, it would oe waqf by users though there is no express dedication oral or documentary. Once it is used by raising mosque or graveyard that waqf or dedication cannot be revoked. Only testamentary waqf can be revoked by the dedicator and that too during his life time and not later than that.
Whereas in the instant case, Waqf dedicator has died long long ago who has never revoked nor tried to retake or vacate his property.
10. The subject matter is not property, but shrine and its administration is in dispute. The person who manages the shrine of a spiritual leader cannot be termed as Mutawali in its legal parlance.
Rather he has been recognized as Sajadah Nasheen because office of Mutawali has altogether distinct character and implications. While Sajadah Nasheen being at higher pedestal not only administers, manages and controls the affairs of the shrine but necessarily has to perform religious. Duties and renders spiritual services for the satisfaction of hearts and souls of the followers and disciples of spiritual leaders/saints buried in the shrine. The mantle of Sajadah Nasheen cannot be bestowed on any one as a hereditary entitlement nor is governed by rule of primogeniture. It can only be earned and assumed. By the one who proves himself capable of holding the same in esteemed satisfaction of the followers. If masses and the followers don't accept a person as Sajadah Nasheen, he cannot impose himself on the said office against their will. Some how or the other, affairs of the shrine arid its celebrations for all practical purposes are dependent upon the faith of the followers. In absence of the followers there would be no shrine, no Sajadah Nasheen and no dispute. Because due to the people offering alms, there is an element of income which in turn is used for celebrations of Urs, Dua and other religious and spiritual rites which is a matter of common knowledge. It follows that the followers and disciples of the principal saint accept and acknowledge that person as Sajadah Nasheen who is capable of that office having spotless high character of morality, with observance of religious tenets and rites and devoted faithfully to Allah Almighty with deep rooted respect for the principal saint. It may be bestowed on the basis of usage and customs amongst the descendants of the principal saint or the Sajadah Nasheen who is clothed with such ,qualifications but it is not necessarily a rule of thumb. Any one else, out of the descendant's' line, may be appointed for the said office.
11. In the instant case, soon after the death of "Nanga Baba Jee", affairs of his shrine were taken over, supervised, managed and controlled by Ghulam Muhammad alias Muhammad, the predecessor of the respondents. And after death of Muhammad, respondents assumed the same office which is a tacit and implied acknowledgement of their status as Sajadah Nasheen of the shrine of the "Nanga Baba Jee". They are holding the mantle of Sajadah Nasheen since the death of their predecessor in 1966 till date without interruption and are regularly performing their duties.
There is no legal impediment in their holding the office of Sajadah Nasheen nor the petitioners could point out any violation of their Fundamental rights or right accrued by any statute which may require interference of this court.
12. Both the courts below have properly appreciated the evidence and non-suited the petitioners after rendering an exhaustive well reasoned findings on the point of facts as well as law. There is no misreading or non-reading of evidence which may be interfered with in exercise of revisional jurisdiction.
13. Thus for the foregoing reasons, this petition being bereft of E merits stands dismissed with no order as to costs.