Haji GHULAM RASOOL AND OTHERS vs THE CHIEF ADMINISTRATOR OF AUQAF, WEST PAKISTAN

1. HAMOODUR RAHMAN, C. J.-These appeals, by special leave, arise out of a judgment of a Division Bench of the erstwhile High Court of West Pakistan, Lahore, whereby 45 appeals under section 8 of the West Pakistan Waqf Properties Ordinance, 1961, were jointly heard and dismissed.

2. These appeals in the High Court arose out of proceedings initiated by the present appellants under section 7 of the West Pakistan Waqf Properties Ordinance, 1959, claiming to be members of the body of Mujawaran of the shrine of Hazrat Data Ganj Bakhsh Sahib of Lahore, for a declaration that certain properties sought to be taken over by the Chief Administrator of Auqafs, West Pakistan, by a notification of the 11th of January 1960, were not Waqf properties or in the alternative were Waqf properties within the limits and subject to the rights of the appellants as claimed by them in their respective petitions. This notification was in the following terms:- "No, 3(1)-Auqaf-60-I, A. H. Qureshi, C. S. P., Administrator of Waqfs, West Pakistan, in exercise of the powers conferred on me by section 6 of the West Pakistan Waqf Properties Ordinance, 1959, hereby take over and assume the administration, control, management and maintenance of the waqf properties attached to the shrine of Hazrat Data Ganj Bakhsh Sahib of Lahore and described in the Schedule annexed hereto.

3. SCHEDULE (1)Village Shish Mahal, Tehsil and District Lahore (according to the jamabandi 1957-58)- Fields Nos, 2345, 2349, 2369, 2370, 2371, 2372, 2366, 2367, 2368, 2363, 2364, 2365, 2373, 3890, 2458, 2472, 2481, 2496, 2499, 2693/2, 2694, 2735, 2478, 2143, 2485, 2486, 2463, 2470, 2471, 2483, 2473, 2484, 2459, 2480, 2474, 2460, 2487, 2488, 2449, 2450, 2451, 2448, 5058, 2344, 2343, 2346, 2347, 2350, 2351, 2352, 2353, 2354, 2355, 2356, 2357, 2358, 2359, 2360, 2361, 2362, 2501/2, 2475, 2479, 2482 measuring 76 kanals 18 marlas and 205 sq. ft. including 34 houses and 52 shops. Village Lahore Khas (according to the khasra imarti, 1957-58)- Fields Nos, 2244 to 2280, 2282 to 2290, 2293 to 2302, 2305to 2323, 2327, 2328, 2334, 2335, 2348 to 2350, 2353 to 2355, 2358, 2359, 2362 to 2373 measuring 31 kanals, 2 marlas and 41 sq. ft. including 46 houses, 12 shops, shrine of Hazrat Data Ganj Bakhsh Sahib, Mosque and 12 houses with shops.

4. (3)Village Katarband, Tehsil and District Lahore (according to the jamabandi, 1957-58)- Fields Nos, 57, 62, 490 to 498, 556, 556/1, 557, 558, 559 568 to 574, 616, 617, 628, 630, 633, 634, 635, 636, 643, 644, measuring 268 kanals and 15 marlas.

5. (4)One double-storeyed house No, 110, in Tibbi Bazar, Lahore.

6. (5)Income from boxes placed at the shrine of Hazrat Data Gunj Bakhsh Sahib and offerings and subscriptions made to the shrine."

7. During the pendency of these proceedings under section 7 of the Ordinance of 1959 the Administrator of Waqfs issued two further notifications, one on the 31st of October 1960, for taking over further 46 kanals and 16 marlas of land in Awan Dhaiwala, Tehsil and District Lahore and 18 kanals in village Rasulpur, Tehsil Sheikhupura.

8. This notification is quoted below:- "No, 8584-Auqaf-60-I, A.H. Qureshi, C.S.P., Chief Adminis-trator of Auqaf, West Pakistan in exercise of the powers conferred on me by section 6 of the West Pakistan Waqf Properties Ordinance, 1959, hereby make the following amendment in the Schedule appended to my Notification No, 3 (1)- Auqaf 60, dated the 11th January 1960, (hereinafter referred to as the said notification namely):- Amendment In the Schedule of the said notification the following items shall be added as items Nos, 6 and 7:- (6)Land measuring 46 kanals and 16 marlas bearing Khata No, 331/1143 situated in village Awan Dhaiwala, Tehsil and District Lahore.

9. (7)Land measuring 18 kanals bearing Khata No, 68/164, situated in village Rasulpur, Tehsil and District Sheikhupura. A. H. QURESHI Chief Administrator of Auqaf, West Pakistan."

10. On the 28th of November 1961, the last notification was issued correcting the last item of the notification of the 30th of October 1960, and adding thereto another item of property consisting of 12 kanals and 13 marlas in Khewat No, 67, situated in village Rasulpur, Tehsil Shandara District Sheikhupura. This notification is also set out below:- "No, 3(1)-Auqaf-60-I, A. H. Qureshi, C. S. P., Chief Admin-istrator of Auqaf, West Pakistan, in exercise of the powers conferred on me by section 6 of the West Pakistan Wakf Properties Ordinance, 1961, hereby make the following amendments in the Notification No, 8584-Auqaf-60, dated the 31st October 1960, hereinafter referred to as the said notification), regarding Darbar Data Ganj Bakhsh Sahib, Lahore, and Wakf properties attached thereto. namely:-- Amendments

(1) For the existing item No, 7 of the said notification the following new item should be substituted, namely:-- "(7) Land measuring 18 'canals and 15 marlas bearing Khata No, 68/164, situated in village Rasulpur, Tehsil Shandara, District Sheikhupura."

(2) The following item shall be added as item No, 8 with said notification:-- "(8) Land measuring 12 kanals and 13 marlas bearing Khewat No, 67, situated in village Rasulpur, Tehsil Shandara, District Sheikhupura." A. H. QURESHI, Chief Administrator of Auqaf, West Pakistan."

11. Amended petitions were filed to challenge these latter notifications as well and the District Judge ultimately consolidated all these petitions and dealt with the case as challenging all the above- mentioned three notifications.

12. The Petition No, 15 of 1960, out of which Civil Appeal No, 127 of 1969, arises in this Court was filed in a representative capacity by the appellants who claimed to represent each of the three patties into which the entire body of Mujawaran was said to have been divided, namely; patti Khair Din, patti Qutab Din and patti Alauddin. The appellant Haji Ghulam Rasul claims to represent patti Khair Din, Fateh All @ Fateh Din represents patti Qutab Din and Muhammad Siddiq represents patti Alauddin.

13. In this Court also a complete paper book has been prepared only in Civil Appeal No, 127 of 1969. the appellants in all the other Appeals Nos, 128 to 167 of 1969, filed a consolidated token paper book, because, their Advocate-on-Record was, it appears, instructed to inform this Court that the appellants in these appeals would at the time of the final hearing of the cases "withdraw all their appeals, as their interest is adequately safeguarded in Civil Appeal No, 127 of 1969 (Haji Ghulam Rasul's case)." No formal application for withdrawal has yet been filed but arguments have been presented before us only in Civil Appeal No, 127 of 1969. This judgment will, therefore, govern all the appeals as they raise common questions of law and fact.

14. Learned counsel appearing in support of this appeal has at the very outset made it clear that he will not contend that the mosque, the shrine, the graveyard and the periphery of the shrine are not waqf properties, but will press the appeal with regard to the right to Rasumaat, or performance of ceremonies, the offerings in boxes kept at the shrine and the other immovable properties sought to be taken over by the Chief Administrator of Auqafs. He has also adopted the arguments regarding the Wes of the Ordinances advanced in Civil Appeal No, 13 of 1965 (Pir Rashid-ul-Daula v. The Chief Administrator of Auqafs), which was heard first and has been disposed of by a separate judgment.

15. The history of this shrine, as far as it can be gathered from Muhammad Latif's History of Lahore published in 1892 A. D. and another book of undoubted authenticity, which has been relied upon by both sides, called the "Tehqiqat-e-Chisti", published originally in 1864 A. D., is that the holy saint Hazrat Data Ganj Bakhsh Sahib came to Lahore in or about 431 Hijri and having lived for 34 or 36 years at Lahore died between 465 and 468 Hijri (1072-75 A. D.). In this period he had acquired great fame and came to be recognised as the Kutub-al-Aqtab. He had during this period many disciples who came to him for religious instructions. He had built a Khanqah and a mosque in his own life- time and the present mosque, which was rebuilt in 1279 A. D., it is said, stands on the same site.

16. It is reported in the Tehqiqat-e-Chishti that the Kibla of the original mosque built by Hazrat Data Ganj Bakhsh Sahib did not face due west but was turned slightly towards the north. Some people took objection to this. On learning of this objection the holy Saint himself one day led the prayers and after that asked those people who had raised objections to see if the Kibla was wrongly placed. When they looked at it they found it directly in line with the holy Ka'aba. This was considered to be his first mud jaza and indicates that so far as the mosque and the Khanqah are concerned there can be no manner of doubt that these existed from his life-time. The Tehqiqat-e- Chishti also mentions that in 1864 A.D. there was still a graveyard all around the place although some of the maqbaras were destroyed by Ranjit Singh.

17. This Khanqah was situated outside Bhati Gate facing west and the door of the Khanqah was south facing behind the mosque. The mausoleum of the holy Saint, according to this book, was constructed by Sultan Ibrahim, a successor of Masud Ghaznavi, the son of Mahmud Ghaznavi, in whose time the holy Saint came to Lahore.

18. Hazrat Khawaja Moinuddin Chishti, the renowned Saint of Ajmer Sharif, it is said, before being sent to Ajmer, did chilla in the Khanqah of Hazrat Data Ganj Bakhsh Sahib. His hujra is still being maintained there and many people offer prayers around it.

19. According to Muhammad Latif's History of Lahore the floor of the entrance to the mausoleum and the door-frames as well as the platforms on the right and left of it were built by Emperor Akbar. In fact, it is said that the white marble constructions at the shrine and the mosque are the munificences of the Moghal Emperors. Ranjit Singh himself later came to hold the shrine in great reverence and made many offerings at the shrine. He contributed Rs, 1,000 on the occasion of each Urs of the holy Saint. Maharani Chandar Kaur wife of Maharaja Kharak Singh built a vaulted chamber in the mausoleum in 1895, where holy Quran is recited day and night.

20. There are also, according to the Tehqiqat-e-Chishti, other constructions in the periphery of the shrine which appear to have been made by other devotees of the shrine. There were also other royal gifts given to the shrine from time to time of wells and villages in the vicinity of the Khanqah, which were made Muafi. It also appears from the Tehqiqat-e-Chishti that a well, called Muhammad Khan Tangsalwala, which was then near the Medical College, was given as Nazar to the Khanqah by Ranjit Singh who had also given as such Nazar two or four other wells. These were, during the construction of the Cantonment of Anarkali by the British taken over but in lieu thereof the British gave 5 times the area of land taken over on the other side of Ravi river. Originally, this land was also Muafi but later the British withdrew the exemption due to the non-cooperation of the Zamindars.

21. This brief history of the shrine does not lend any support to the contention of the learned counsel that all the immovable properties now recorded in the name of the Data Darbar, came from the family of the ancestors of the Mujawaran. Indeed there is no evidence to show as to which, if any, of the said properties came from this family. The appellants themselves only claim that the properties were gifted to them and not to the shrine.

22. Hazrat Data Ganj Bakhah Sahib, it appears, had left no descendant of his own, but one, Rai Raju, who was then Naib Hakim of Lahore, became a disciple and embraced Islam. He was given the name of Sheikh Hindi by Data Sahib and became the first Khadim of the shrine. His descendants now claim that they have the right by succession from Sheikh Hindi to be the Khadims or Mujawars of this shrine. Up to the 12th generation from Sheikh Hindi one of them used to sit at the shrine and was sometimes even called Sajjada Nashin but really there was never any Mutawalli or Sajjada Nashin, so far as this particular shrine is concerned. The functions of the Mutawalli or Sajjada Nashin were, however, performed by the Mujawaran. According to the Tehqiqati-e-Chishti, the Mujawaran, male or female, as a body, equally shared among themselves the income of the lands gifted to the shrine as also the income from offerings. They acquired this right from birth and all, who were present in Lahore, were entitled to share in this income. Only those who went away from Lahore or resided at some other place were disqualified for the time being, for, on return to Lahore he or she again became entitled to share in the income. The Mujawaran had also sitting places reserved for them in the periphery of the shrine and every one sat there with a cloth in front of him and the rule was that if any one gave anything to a particular Mujawar personally apart from the Chharhawah at the shrine, that became the personal property of that individual Mujawar. In the Chharhawah however, every body shared equally. According to the Tehqiqat-e-Chishti, Sanads of royal grants were issued but they are no longer available.

23. Learned counsel for the appellants contends that whatever might be the position of a Mujawar under the Shariat law, according to the practice prevailing at this shrine from the time immemorial they performed the same functions as Sajjada. Nashins and, therefore, their office is a religious office and the incomes from the offerings and the lands, even if dedicated to the shrine, are their legitimate personal properties as a necessary concommitant of their religious office.

24. On the other hand, it is contended by the learned counsel for the respondent that the office of Mujawar as an integral part of a dargah is not known to Mohammadan Law. A Mujawar, according to him, is only a servant of a shrine or mosque and ' he cannot claim any right to perform any religious function. Mujawaran, therefore, according to him, can have no claim to the offerings made at a Dargah.

25. In support of this Contention reliance is placed on a decision of Tyabji, J. in the case of Mahomed Oosman and others v. Razak Salemahomed Vanjara and others . The learned Judge, after an elaborate examination of the text of the holy Quran and the general principles of Muslim Jurisprudence, came to the conclusion that Mujawars are merely servants or sweepers of a shrine.

26. They cannot claim to act as intermediaries or intercessors between God and man, or even between a devotee and a Pir. According to him, apart from intercession, whatever services are performed by Mujawars are ordinary services, "rather amenities" expected from every Muslim, and from the performance of such acts of "religious courtesy" no one can be excluded or restrained.

27. The right to do such acts cannot be claimed as the special privilege and function of any individual or family. In any event, they cannot claim any right once they have ceased to perform any service at the shrine and certainly they can take no share in the offerings made at the shrine, because, the placing of a box for offerings (Ghalla) at a shrine was "prima facie an invitation to the visitors to discharge, by immediate action", part of his duty of charity, a necessary step in becoming of the just. "The offering", he maintained, "proceeds from a trust that it will be utilised for the institution itself, or for lending God a good deed, i,e, putting the offerings to fitting charitable uses."

28. It would perhaps be appropriate to deal with this point at this stage in order to clear the ground for the consideration of other points. Whatever might be the true legal position of a Mujawar under Islamic law we think it must be conceded that no matter by what name or appellation the holder of a particular office is called, one must look to the substance of the acts actually performed by him and not merely to the form or name and gather as far as possible from the evidence in the case as to what are the real functions in fact performed by such a person, whether they are called Majawars or Sajjada Nashins or mutawallis. If they are, in fact, performing functions, which are normally performed by Sajjada Nashins on mutawallis, then it ought, in our opinion, to make no difference,merely because they are not given that appellation but are described in some other way. Even Tyabji, J. in the above-cited case conceded that where there is clear proof of long user, the position might well be different.

29. In Faizee's Book on "The Outlines of Muhammadan Law" it is also conceded that the claim to the office by hereditary succession may be recognised if it is established by long user, for, the strict principles of Shariat are in practice "often fused with and give way to immemorial custom." In our judgment in the case of Pir Rashid-ud-Daula also we have accepted the position that in this sub- continent the principle, hithertofore adopted, is to recognize the practice prevailing at a particular shrine. Thus in the case of Syed Altaf Hussain and others v. Diwan All Rasul All Khan and others the1 2 Judicial Committee gave a share even to the Khadims of the Darbar at Ajmer Sharif on the basis of the practice prevailing at that shrine.

30. There is, of course, in the present case, no evidence of the terms of the original dedications, if any, of the royal grants or Nazars to the shrine of Hazrat Data Ganj Bakhsh Sahib from the Moghal Emperors and the Sikh rulers of this part of the country, for, the Sanads are no longer available, but the practice, according to the Tehqiqat-e-Chishti, was clearly to the effect that from time immemorial the Mujawaran of this particular shrine have been managing and controlling the affairs of the shrine and its properties as also appropriating the income from its properties and the offerings made at the shrine. The position, according to this evidence of immemorial user, therefore, is that they Mujawaran) have been, as a matter of fact, acting as the Mutawallis or the Sajjada Nashins and not only performing the functions of management, control and supervision but also the rasumaat or religious functions connected with the shrine. We have already pointed out that even when the Tehqiqat-e-Chishti was written in 64 the practice had become a settled practice, so far as this shrine was concerned, for the Mujawaran to perform all the functions, religious as well as non-religious, in connection with this shrine. On this basis we are not in a position to say that they had acquired no right at all qua Mujawaran. If the original Sanads were available, we might have known as to who were appointed as Mutawallis or what were the terms of the dedication under the Sanads. We have, therefore, in the absence of such evidence no alternative but to accept the evidence of user.

31. There is, as earlier indicated, no dispute in this case that the mosque, the shrine, the graveyard and the periphery of the shrine are Waqf of a public nature. The only dispute is with regard to -

(1) the rights of the appellants in landed properties other than the mosque, the shrine, the graveyard and the periphery of the shrine, (2)the income from boxes, (3)the right to perform Rasumaat.

32. (4)the right to burial in the graveyard, and (5)the taking over of a sum of Rs, 12,561-8-0 found in a Potla or bag at the time when the Administrator took over the management and control of the shrine.

33. Apart from these, learned counsel appearing for the appellants has also attacked the vires of the Ordinance but for the reasons already given by us in our judgment in the case of Pir Rashid-ud- Daula we hold as follows :- (1)That the validity of the Ordinance is not now open to challenge; (2)that the notifications have been validated by the West Pakistan Waqf Properties Ordinance, 1961;

(3) that the income from offerings in boxes kept at the shrine could be validly made a Waqf under the Mohamadan Law and were, in any event, validly made a Waqf under Explanation 4 to section 2 of the Ordinance of 1959 as validated by the Ordinance of 1961. They became Waqf from the date of the notifications; (4)that since according to the practice prevailing in this shrine from time immemorial the pre- notification income from the other immovable properties and offerings in boxes kept at the shrine were appropriated as the personal property of the Mujawaran, they should be treated as such ; (5)that the Mujawaran also acquired the right by immo-morial user of performing the Rasumaats and other religious ceremonies connected with this shrine provided that the performance of such functions does not amount to misuse of the Waqf properties; and (6)that under the Waqf Properties Ordinance the Chief Administrator of Auqafs had no right to deprive them of this privilege of performing such Rasumaats and other religious ceremonies, although he had the discretion to contribute or not to contribute towards the expenses thereof and the right to regulate the same.

34. It follows from this that the taking over of the amount of Rs, 12,561-8-0 in cash found in a Potla or bag was illegal, as it was a part of the pre-notification offerings which had already been appropriated by the Mujawaran. This amount should be returned to the Mujawaran.

35. As regards the silver ornaments, linen, silk, etc., we would follow the decision of the Judicial Committee in the case of Syed Altaf Hussain Shah and hold that if they were ornaments in the shape of utensils, such as Atar Daan, Gulab Paash, etc., or articles, such as Ghilafs, Kabar-Poshes, canopies, etc. then they should be treated as Waqf Property belonging to the shrine and not as the personal properties of the Mujawaran but if there be any items of purely personal use presented to the shrine by way of offerings then they should be returned to the Mujawaran.

36. The only question now left to be considered is regarding the immovable properties outside the periphery of the shrine.

37. These properties consist of :-- (1)Lands measuring 31 kanals 2 marlas and 41 square feet in village Lahore Khas including 46 houses, 12 shops, Hamoodur shrine of Hazrat Data Ganj Bakhsh Sahib, mosque and 12 Rahman, C! houses with shops: (2)lands measuring 76 kanals, 18 marlas and 205 sq. ft. in village Shish Mahal, Tehsil and District Lahore, including 34 houses and 52 shops; (3)lands measuring 268 kanals and 15 marlas in village Katarband, Tehsil and District Lahore.

38. (4)one double-storeyed house No, 110 in Tibbi Bazar, Lahore; (5)land measuring 46 kanals and 16 marlas bearing Khata No, 531/1143, situated in village Awan Dhaiwala, Tehsil and District Lahore; (6)land measuring 18 kanals and 15 marlas bearing Khata No, 68/164, situated in village Rasulpur, Tehsil Shandara, District Sheikhupura; and (7)land measuring 12 kanals and 13 marlas bearing Khewat No, 68 in village Rasulpur, Tehsil Shandara, District Sheikhupura.

39. The appellants do not claim these properties to be the personal properties of any individual Mujawar, but they claim these properties as the joint properties of the entire community of Mujawars, somewhat in the nature of a joint Hindu family. They allege that since they were descended from Rai Raju, who was a Hindu, before becoming a disciple of Hazrat Data Ganj Bakhsh Sahib, they had, as a special custom, continued to remain as a joint family. It is partinent to note, however, that this family does not bear the other usual characteristics of a joint Hindu family, for, it has no Katta nor are females excluded from sharing the income of the joint family nor do the members of the so-called joint family bring their earnings into any common pool. (The evidence discloses that some of the Mujawaran have independent businesses of their own). No evidence has also been led to show as to which, if any, of these properties came to this joint family from the common ancestor Rai Raju alias Sheikh Hindi or as to how immovable properties gifted by Ranjit Singh and others came to be included among the joint family properties.

40. We might indicate here that we are assuming for the purposes of this case that the Mujawaran are the descendants of Rai Ruju as this is supported by the lineage given in Tahqiqat-e-Chishti and the Shajrae-Nasab filed in this case. No evidence has been led in rebuttal on this question from the side of the respondent.

41. This case of joint ownership has, no doubt, been set up in view of the entries contained in the revenue records for the years 1856 (Exh. P. 30) and 1868 (Exh. P. 215) wherein all the pro-perties had been recorded as being in the ownership of the "Mujawaran of Hazrat Data Ganj Bakhsh Sahib" as "Maqbooza Malikan". But these entries by themselves do not necessarily establish the ownership of the Mujawaran. These entries are not inconsistent with the status of the Mujawaran being only that of curators or trustees of these properties in the same way as a mutawalli might be recorded in the ownership column as the owner of a waqf property. This is also not inconsistent with the subsequent history of these khasras which shows that between 1868 and the settlement of 1891-92, after the body of Mujawaran bad been divided into three patties ; namely, Patti Khair Din, Patti Alauddin and Patti Qutub Din, the lands were also divided between these three patties according to their respective possession, as would appear from the copies of their applications (Exhs. P./10-12) and the register of mutations (Exh. P. 210).

42. There is, no doubt, evidence that an individual Mujawar also sold, leased out or mortgaged one or the other of the properties in his possession from time to time but it is not understood as to how one could validly enter into such a transaction without the consent of his other co-Mujawars unless these were transactions only in respect of the possessory right. There is, however, no entry anywhere in the revenue records or mutation registers about such transactions or any entry to show that the heirs of any of the Mujawars were at any time brought on to the record as owners.

43. The description given in the owner's column has all along shown that only a floating body of persons, known as the Mujawaran of the shrine of Hazrat Data Ganj Bakhsh Sahib, were owners of these lands even though there are mutation entries of gifts of lands by other persons to the shrine or to the Mujawars as a body. There is no entry, however, of any gift or transfer of any land to any Mujawar in his individual capacity.

44. In this state of the evidence it is not possible to hold that any of the properties sought to be taken over by the impugned notifications was the self-acquired property of any of the Mujawars or any of their ancestors. It is not surprising, therefore, that three of the Mujawars acting as the general attorneys of the entire body of Mujawaran at the time of the settlement of 1892 made a declaration that all the lands recorded in the three patties were not lands owned by the respective patties in possession thereof but that, in fact, all the lands were owned by the shrine of Hazrat Data Ganj Bakhsh Sahib and, therefore, all these lands should be recorded in the ownership of the shrine and that the possession of each patti should be entered in the column of cultivator. The mutation in support of the lands of village Lahore khas was attested on the 24th of August 1892 and bears No, 183 (Exh. P./216). Mutation in respect of village Shish Mahal was attested on the same date and bears No, 204 (Exh. P./210). In respect of the lands of village Katarband a mutation to the same effect was attested on the 21st of February 1892, by mutation No, 33 (Exh. P. W. 83/6). Ever since then, so far as the lands are concerned, these mutations have been continued and the impugned Notifications have been issued on the basis of the revenue records.

45. On account of these mutations the Courts below have taken the view that the lands sought to be taken over were waqf properties and were not the personal properties of the Mujawaran. The concurrent finding of the Courts below, however, is that the structures on these lands were all built by the Mujawaran out of their own personal funds and, therefore, they cannot be taken over. There is no appeal from this finding by the Chief Administrator of Auqafs. So far, therefore, as the structures on these lands are concerned the matter is now concluded. They are the personal properties of the Mujawaran.

46. Learned counsel appearing for the appellants has, however, contended that the Courts below were wrong in taking the view that the appellants or any of the present Mujawars were estopped from challenging the waqf nature of the properties by reason of the acknowledgement of the so-called general attorneys. The Power of Attorney, it is said, (Exh. P. 63/3) did not give them any power to compromise or to make any such acknowledgement but a reference to the said Power of Attorney would show that very wide powers were given to the constituted attorneys to do almost "anything on our behalf" i. e. on behalf of the grantors including the power "to appear in civil, revenue and original Courts from the beginning to the High Court and Chief Court, Punjab, Commissioner's Court, Punjab, and to settle with defendants in the Courts regarding cases which were filed on us or depositing of the money in the Court or deciding, concerning such issues or domestic arbitration or striking any compromise or engagement of lawyers or barristers to appear in Court or to change a building into new design or purchasing or selling of any plot of land or taking possession of property by redemption or taking some money for making the repairs of the khanqah from money- lenders etc. etc."

47. It would thus appear that the power was a general power and in no way restricted the authority of the Attorneys. The acknowledgement, therefore, which was on behalf of the entire body of Mujawars, that the lands belonged to the shrine of Hazrat Data Ganj Bakhsh Sahib and not to the patties as recorded in the earlier revenue records, would be binding on all the then Mujawars and their successors-in-interest.

48. Learned counsel does not agree that this could raise any estoppel against the present Mujawars in view of the fact that no one other than the Mujawars themselves had altered his position to his disadvantage as a result of this acknowledgement. In support of this contention reliance has been placed on the decision of the Judicial Committee in the case of The Palestine Kunat Am Bank Co- operative Society Limited v. The Government of Palestine and others . It is true that to raise an estoppel there must be something in the nature of a representation by the party against whom it is pleaded as a result of which the party to whom it is made has been induced to take a particular course of conduct, but here the question raised is not strictly one of estoppel. The question is whether the Mujawars having acknowledged that the properties in their possession were the properties of Hazrat Data Ganj Bakhsh Sahib can now be allowed to resile from that position? The High Court has taken the view that this acknowledgement constituted a representation to the world that the properties belonged to the holy shrine and, therefore, the principle of estoppel was also applicable. But it is not necessary for us to go so far. The question before us is whether the Mujawaran having admitted through their constituted attorneys that the properties belonged to the holy shrine and allowed that position to remain unchanged from 1892 up to the present time, can now be believed when they say that they did so under some erroneous impression or that the admission does not represent the true state of facts ?

49. Learned counsel appearing for the respondent has, on the other hand, argued that the acknowledgement of the constituted Attorneys was sufficient to estop the Mujawaran from setting up a different case, for, it was a representation on the basis of which the lands so recorded continued to remain Muafi or exempt from land revenue. If the lands were not the lands of the holy shrine then it is quite possible that land revenue may have been imposed. Furthermore the Chief Administrator of Auqafs has also acted on the basis of the representations contained in the revenue records. Had these properties not been recorded as being in the ownership of the shrine he would not have taken over their control and Management. The principle of estoppel under section 115 of the Evidence Act was, therefore, fully attracted and was rightly applied by the Courts below. In any event, after the admission, which had been allowed to remain unaltered for nearly 79 years, the Majawaran should not now be allowed to take up a different position at this stage.

50. It is nowhere alleged that the Mujawars were unaware of the fact that in the various settlements from 1891-92 the lands had consistently been recorded as being in the ownership of the shrine. If that did not represent the true state of affairs or the constituted attorneys had acted in excess of their authority, the Majawaran should have taken steps to have these entries corrected. Since they have not done so, they cannot now be permitted to deny that these were not the properties of the shrine.

51. It is true that entries in the mutation registers are by themselves not conclusive evidence of the facts which they purport to record but they are, nevertheless, not an "unimportant part of the testimony as to a fact which is available", as observed by the Judicial Committee in the case of Nageshar Baksh Singh v. Mt. Ganesh . The weight and importance to be attached to them, is in no way, diminished by the fact that they have been allowed by those who were going to be adversely affected by them to remain unaltered for such a large number of years, even though they were3 4 aware of the entries in the records.

52. The doctrine of estoppel is not confined to the matters dealt with under section 115 of the Evidence Act, for, as pointed out E by Garth, C. J. in the case of Ganges Manufacturing Co. v. Sourajmull "estoppels in the sense in which the term is used in the English legal phraseology are matters of infinite variety and are by no means confined to the subjects dealt with in Chapter VIII of the Evidence Act". It has been defined in Halsbury's Laws of England (2nd Edn.), Vol. 13, "as a disability whereby a party is precluded from alleging or proving in legal proceedings that a fact is otherwise than it has been made to appear by the matter giving rise to that disability". It is in this sense that it has of been held that even as a rule of evidence or pleading a party should not be allowed to approbate and reprobate. This principle was acted upon by the Judicial Committee in the case of Lakshmana Goundan v. Subramania Aiyar where it was held that if a person had "held out and represented to the Hindu public that the temple was a public temple" he cannot resile from that position. Similarly in the case of Jai Dayal v. Dewan Ram Sarn Das the Lahore High Court also held that "where a person with full knowledge of the facts in unmistakable terms admitted the wakf nature of a house, he cannot subsequently be allowed to resile from that position". Is not the position the same in this case? In our opinion, since the appellants with full knowledge of the facts requested the revenue authorities to correct the records by entering therein the true position and have since allowed that position to remain unchanged for nearly 80 years they are now debarred from setting up a different case and should, at any rate, not be believed when they say that that is not the true position. The properties being properties of the shrine were clearly wakf properties and since the shrine, in this case, was a public institution, its properties also were public wakf.

53. Lastly it is contended by the learned counsel appearing for the appellants that even if these acknowledgments constituted an estoppel it was only with regard to the items of properties mentioned in these mutations and did not extend to the properties which were subsequently acquired. If there are any properties which have been subsequently acquired and have not been recorded in the ownership of the shrine of Hazrat Data Ganj Bakhsh Sahib, we would agree with the learned counsel that such properties cannot be taken over but we have no evidence before us that any of the items of properties mentioned in the impugned notifications were acquired by, and are still recorded in the ownership of, the Mujawaran. If the Mujawaran can point out any such properties they will have to be excluded but in the absence of any evidence of any of such item of property being so recorded we see no reason to disagree with the Courts below that the properties mentioned in the notifications were all properties which had been consistently recorded during the various settlements since 1891-92 as being in the ownership of the shrine of Hazrat Data Ganj Bakhsh Sahib. Such properties cannot, therefore, be treated as the personal properties of the Mujawars.

54. Having said this, however, we must make it clear that so far as the right to the possession of these properties is concerned, the evidence, both documentary and oral, is that these properties have all along been in the possession of the Mujawaran right from the beginning. This evidence has not been rebutted in any way. It cannot, therefore, be denied that the Mujawaran have acquired by prescription the right to possess and cultivate these lands. They have openly and as of right possessed these lands, cultivated them, let them out and even constructed buildings on them at their own expense. They have been recorded since 1892 as in possession "without rent on account of service of shrine". This is a valuable right of which they cannot be deprived. All that the Chief Administrator of Auqafs can do is to take rent from them or terminate their right to possession by appropriate legal proceedings for their ejectment. If the Management and control of a waqf property is taken over by the Administrator of Auqafs it does not mean that such taking over automatically extinguishes the tenancy rights or the right to possession of persons settled on the lands. If the Administrator seeks to eject such persons he must proceed in accordance with law.5 6 7 We, accordingly, uphold the declaration granted by the Courts below that the immovable properties mentioned in the impugned notifications minus the structures thereon are Waqf properties and their control and Management could lawfully be taken over by the Chief Administrator of Auqafs under the West Pakistan Waqf Properties Ordinance but subject to the limitations herein before mentioned in this judgment.

55. It remains only to deal with the question of the right to burial in the graveyard claimed by the Majawaran. As stated earlier, the learned counsel appearing on their behalf has not contended that the graveyard is not a public waqf, but it is only claimed that the Mujawaran have a right to burial in the graveyard in accordance with the practice followed in this shrine. This question is really of academic importance now, for the graveyard within the periphery of the shrine is practically full and there is room only for 2/3 more graves. In these circumstances, we do not wish to say anything, one way or the other, with regard to this right, except to point out that in a graveyard, which is a public waqf, no such exclusive or pre- G ferential right can be claimed. The right must, of necessity, be a common right subject to availability of space.

56. In the result, therefore, all these appeals are disposed of in terms of this judgment but since success is divided we leave the parties to bear their own costs.

57. Before we part with this case, we would like to place on record that at one stage there was a talk of a compromise in this matter. Under its terms, as then stated, it was proposed to give to the Mujawaran some Government lands on the Ravi Road in lieu of the lands which they now occupy, on a reasonable rent. The majority of the Mujawaran were agreeable to this. The judgment in these appeals was, accordingly, kept pending to enable the parties to complete the negotiations.

58. Ultimately, however, we were informed, that the Government was only prepared to give alternative lands to the persons occupying some 12 kanals of lands in the immediate vicinity of the Darbar and not to the others. The talks of compromise, accordingly, fell through, but we would again urge upon the Government to consider the possibility of giving alternative land at a reasonable rent to the Mujawaran sought to be displaced from their present holdings, if ever it is decided to do so, in order to help them rehabilitate themselves after the loss of the substantial income that they would have otherwise earned out of the offerings at the Darbar. I L R 1938 Bom. 184 AIR 1938 P C 1 PLD 1948 P C 78 AIR 1920 P C 46 I L R 5 Cal. 669 AIR 1924 P C 44 AIR 1938 Lah. 686