MUHAMMAD FAHEEM WALI, J.- Appellants have filed this appeal under Section 12 of the Khyber Pakhtunkhwa Waqf Properties Ordinance, 1979, wherein they have called in question the vises of Judgment dated 21.09.2015, passed by the learned District Judge D.I.Khan, whereby the suit/application of respondents, filed under Section 11 of the ibid Ordinance, stood decreed against appellants.
2. Facts forming factual canvas of the instant appeal are that predecessor of respondents filed petition under Section 11 of the Khyber Pakhtunkhwa Waqf Properties Ordinance, 1979, before the learned. District Judge D.I.Khan claiming therein that the suit property, as described in the petition, is the ownership of respondents and is not a waqf property, therefore, notification No.16969-74/Aug dated 21.08.1999, published in the official gazette on 22.08.2001 regarding taking over the control and management of the suit property, is liable to be cancelled. Appellants (then adversaries) filed their written statement, whereafter, learned trial Court framed issues and recorded evidence of parties. Initially, the suit stood dismissed vide Judgment dated 14.06.2021, however in appeal (RFA No.37/2006) this Court vide judgment dated 11.03.2011 remanded the case back for denovo trial and decision on merits according to law. After the remand, the suit was again dismissed by the learned District Judge D.I.Khan vide Judgment dated 25.07.2011 and in R.F.A. No.248/2011 this Court again remanded the case back to the learned trial Court vide Judgment dated 16.02.2015 with certain directions. Accordingly, on receiving the case file, the learned trial court framed additional issues.
Having recorded the evidence of parties, after framing additional issues, the learned District Judge D.I.Khan, allowed and decreed the suit of respondents vide Judgment & Decree dated 21.09.2015.
Hence, the instant appeal has been preferred by the appellants.
3. Arguments of the learned counsel for parties heard and record gone through with their valuable assistance but for the sake of brevity, without reproducing the arguments of the counsels, same will be adequately dealt with at appropriate stages in this judgment.
4. A meticulous sifting of the record shows that respondents, aggrieved of the Notification dated 22.08.2001 issued under Section 7 of the Khyber Pakhtunkhwa Waqf Properties Ordinance, 1979 (the Ordinance), whereby the control, management and maintenance of the suit chunk was notified to be taken by the Chief Administrator, filed petition under Section 11 of the Ordinance before the learned district Judge D.I.Khan calling in question the vires of the said notification on the ground that the property is not a waqf property rather he is recorded owner of the same.
5. Now the moot question before this court is the status of land in question, that whether the same is a waqf property or personal belonging of the respondents. In this context the "waqf property", as defined in clause (e) of Section 2 of the Ordinance, 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 described in section 3 of the Musalman Waqf Validating Act, 1913 (VI of 1913), under 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 this regard, further examples have been envisaged under Section 2 of the Ordinance, which read as under: Explanation:-I. 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:-II. Property allotted in lieu or in exchange of waqf property left in India shall be deemed to be waqf property.
Explanation:-III. Property of any kind acquired with the sale proceeds or in exchange of or from the income arising out of waqf property or from subscriptions raised for any purpose recognised by Islam as religious, pious or charitable shall be deemed to be waqf property.
Explanation:-IV. The income from boxes placed at a shrine and offerings, subscriptions or articles of any kind, description or use presented to a shrine or to any person at the premises of a shrine, shall be deemed to be waqf property.
Explanation:-V. Property permanently dedicated for the purposes of a mosque, takia, khankah, dargah, or other shrine shall be deemed to be waqf property.
Explanation:-VI. Relief of the poor and the orphan, education, worship, medical relief, maintenance of shrines or the advancement of any other object of charitable, religious or pious nature or of general public utility shall be deemed to be charitable purposes
6. The record of rights for the year 1906-07 (Ex.P.W.1/1) as well as Misal-e-Haqiyat for the year 1906- 07 (Ex.P.W.1/3) reveals the entry in ownership column as, and this entry clearly indicates that there was a Khanqah and Mehmood was its Mujawar and manager. This entry exists in the register of rights for the year 1968-69 (Ex.P. W.1/2), 1984-85 (Ex.P.W.1/4). 1996-97 (Ex.P.W.1/5). The entry of Khanqah under the management of Mehmood is recuring in Jamabandis forthe year 1901-02, 1906-07, 1911-12, 1918-19, 1920-21, 1926-27, 1928-29, 2931-32, 1934-35, 1942-43, 1951-52, 1956-57, 1968- 69, and 1976-77 which have been made available on the file as Ex.P.W.3/D-1 to Ex.P.W.3/D-14. In view of the record of rights, it has become crystal clear that the property in dispute has been coming as `Khanqah Pir Haji Ilyas' since at least 1901. Thus, according to supra Explanation-I and Explanation- V, the property in question, being a Khanqah as recorded in the record of rights, fall within the purview of Section 2(e) of the Ordinance to be a Waqf property.
7. The learned counsel for respondents vehemently argued that the statutory requirement to serve the notice of Section 7 of the Ordinance upon the respondents is missing in the instant case which invalidates the impugned notification. True, it is the mandate of Section 7 of the Ordinance that a copy of the notification shall be served upon the management, mutawalli or any other person having interest in the waqf property and shall also be affixed on some conspicuous part of the property sought to be taken over. The purpose of notice to the management or mutawalli is in-fact informative so that the management/mutawalli get acquainted with the fact that henceforward the property is to be managed and controlled by the Chief Administrator; and if such management has any reservations, it may avail the remedy available to it under Section 11 of the Ordinance within the given timeframe. Provisions of Section 7 & 11 of the Ordinance are reproduced hereunder for the sake of ready reference:
7. Chief Administrator may take over waqf property by notification: (1) Notwithstanding anything to the contrary contained in any other law for the time being in force, or in any custom or usage, or any decree, judgment or order of any court or other authority, or in any proceeding pending before any other authority, the Chief Administrator may, by notification, take over and assume the administrative control, management and maintenance of waqf property.
A copy of the notification shall be served upon the management, mutawalli or any other person having interest in the waqf property and shall also be affixed on some conspicuous part of the property sought to be taken over.
Provided that, during the life time of a person dedicating a waqf property, the Chief Administrator shall not take over and assume the administration, control, management and maintenance of such waqf property, except with the consent of each person and on such terms and conditions as may be agreed upon between such person and the Chief Administrator.
Explanation.--For the purposes of this section, "control" and "management" shall include control over the performance and management of religious, spiritual, cultural and other services and ceremonies (Rasoomat) at or in a waqf property.
(2) No person shall perform services or ceremonies (Rasoomat) referred to in sub-section (1) except with the prior permission of the Chief Administrator and in accordance with such directions as may be given by him
11. Petition to District Court against notification: (1) Any person claiming any interest in any waqf property in respect of which a notification has been issued under section 7 may, within thirty days of the publication of such notification, petition to the District Court within whose jurisdiction the waqf property or any part thereof is situated, for a declaration: I. that the property is not waqf property;
2. that the property is waqf property within limits stated in the petition: Provided that, notwithstanding anything contained in any law for the time being in force, or in any custom or usage, or in any decree, judgment or order of any court or other authority, or in any proceeding pending before any court or other authority, no such petition shall lie in respect of any interest in the income, offerings, subscriptions or articles referred to in Explanation IV to clause (e) of section 2, or the services or ceremonies (Rasoomat) mentioned in section 7.
(2) The District Court may, for reasons to be recorded, refuse to issue any process for compelling the attendance of any witness for the purpose of examination or the production of any document or other thing if it considers that it has been made for the purpose of vacation or delay.
8. However, in the peculiar facts of the instant case, it is an admitted position that previously, upon issuance of notification under Section 7 of the Ordinance on 21.08.1999, the respondents challenged the same through suit of the nature on 01.02.2000, but as the same was not yet published in the official gazette, therefore, the suit of respondents stood dismissed on 04.07.2000 and then in appeal, their suit was returned being pre-mature vide order dated 14.09.2001 of this Court. Filing of previous suit followed by appeal against the impugned notification undoubtably proves the factum of knowledge of respondents regarding issuance of the impugned notification.
9. The case law so relied upon by the learned District Judge D.I.Khan is inapplicable to the facts & circumstances of the present case. In the cases of "Muhammad Ishaq Vs. Chief Administrator of Auqaf, Punjab" (PLD 1977 Supreme Court 639) and Chief Administrator Auqaf Vs. Allah Bakhsh
(decd) through LRs and another (2011 SCMR 235), the core issue was the limitation of petition under Section 11 of the Ordinance and the effect of non-issuance of mandatory notice under Section 7 of the Act to the management/ mutawalli over such limitation, whereas, in the present case no question of limitation is involved. As discussed above, the respondent was in the knowledge of Notification of taking over control of property, prior to its publication in the official gazette. The Notification was published in the official gazette on 22.08.2001 whereas, the present suit was filed on 19.09.2001 i.e. well within the period of 30 days. It is to be reiterated here, being relevant, that previous filing of petition u/s 11 of the Ordinance; and then its dismissal as well as dismissal of appeal being premature constitutes notice under Section 7 of the Ordinance to the respondents which enabled respondents to file present petition within the provided limitation period. Findings of the learned trial court as to the lack of notice under Section 7 of the Ordinance are based on misconception and therefore the same cannot be sustained. Non-issuance of such notice to the respondents though affects the Limitation for filing petition but the same in no way, ipso-facto, turn the status of a waqf property into a private owned land. Nothing was available before the learned Court below to make a belief that the property in question was not a waqf property; whereas, record of rights suggests it to be a Khanqah, and thus it fall within the ambit of waqf properties .
10. As far the requirement of Notice under Section 8 of the Ordinance is concerned, suffice it to say that the case of respondents does not fall within the contemplation of Section 8 as the respondents are recorded Mujawar/ Manager of Khanqah Pir Haji Ilyas, whereas, notice under Section 8 of the Ordinance deals in eviction of persons wrongfully in possession of waqf properties and empowers the Administrator to evict him with the use of such forces as may be necessary, after being given a reasonable opportunity of showing cause with a period of not less than thirty days of the service of such notice on him. Appeal against any action taken under Section 8 of the Ordinance lies to the Chief Administrator under Section 10. The instant suit being filed under Section 11 of the Ordinance has only nexus with Section 7 and nothing to do with the provisions of Section 8 or 10 of the Ordinance. Thus, there is no need of any finding pertaining to notice under Section 8 ibid.
11. The contention of respondents that their predecessor made the property cultivable and therefore, Nautor Mutation No.208 was attested on 25.09.1900 in favour of Mahmood and thereby he became Adna Maalik and the said mutation was not given effect in the record of rights.
However, this plea of the respondents is contradictory as Nautor mutation is normally attested in favour of a cultivator or occupier, who makes the land cultivable, and an owner, already having proprietary rights, does not need a Nautor mutation to turn his possessory rights into Adna Maalik.
If respondents were owners, as they claimed in their petition as well as statement recorded as PW- 4, then what prompted them to get the proprietary rights through Nautor mutation. This contradictory stance by itself negates the claim of respondents.
12. In view of the above discussion, the entire tenor of the reasoning given by the learned trial court in allowing the petition of respondents was that no notice was served upon them. Consequently, this Court finds that the impugned judgment of the learned Court below is unsustainable and is accordingly set aside. As a result, the appeal is allowed and suit/petition filed by respondents before the learned District Judge stands dismissed. Listed CMA has become infructuous and disposed of accordingly. Parties are, however, left to bear their own cost.