' This R. S. A. Has arisen out of a suit filed by the appellants for declaration that the entry in column No, 5 of the record of rights for the year 1917-18, maintained by the L.M. C/respondent No, 1, showing the property in dispute, comprising two shops as a 'Waqf' AhI-e-Islam, is illegal, void and ineffective on their rights therein. As consequential relief, the appellants further prayed that the entry be ordered to be cancelled and the respondents restrained from setting up any title or claim to the property adverse to them.
2. The appellants' case is that the land underneath the shops bearing Khasra Nos. 591/364, 223-min situate in Changer Mohallah, Urdu Bazar, Lahore was purchased by their father namely Abdul Aziz from the Provincial Government by means of sale dated 25th August, 1902 Exh. P. 1 ; he constructed the shops, was owner thereof and on his death which took place on 24th December, 1910, the property devolved on them as sole heirs of the deceased. That in February, 1968 they wanted to dispose of this property and for that purpose they got an advertisement published in a daily newspaper. It was then that through some of the intending purchasers, they came to know of the entry in dispute.
3. In the written statement the Corporation categorically stated that the entry in question related to some other property and that they never treated the property in dispute as a waqf. However, the other respondents contested the suit and pleaded that the property is attached to a mosque and from times immemorial is being used as a waqf.
4. The learned trial Court found that there was no evidence of dedication and the waqf was not proved. The oral evidence led by the respondents in support of their contention, was discarded. The learned trial Court further maintained that in the year 1917-18 to which period the entry relates, the appellants were minors. Neither their father Abdul Aziz constituted any waqf nor the minors could have done so. The oral evidence led by the respondents showing that the income of the shops was spent on the mosque was not considered sufficient for establishing the waqf. On the basis of these findings issue No, 1, to the effect as to whether or not the property belonged to the appellants and they were in possession thereof, was answered by the learned trial Court in their favour. However, on the point of limitation, the Court was of the view that as the appellant's grievance was directed against the entry pertaining to the year 1917-18, the suit brought by them in the year 1970 was barred by time and thus dismissed the same.
5. The appellants preferred an appeal and the learned Additional District Judge, who heard it came to the conclusion that the property had been treated as waqf since long and also entered so in the record since 1917-18. He further made reference to the document Exh. D. 1 executed by Abdul Karim the husband of appellant No, 2, for the sale of a house in favour of Anjuman Masjid- Farooqia/respondent No,
3. This document contains an averment that he would hand over to the Anjuman, the possession of the shop occupied by him, which was waqf in the name of, the mosque. The learned Additional District Judge, thus, reversed the findings of the trial Court on issue No,
1. However, on the question of limitation, the view taken by the learned trial Court was upheld, and it was maintained that the property being waqf, would not be deemed to be in possession of the appellants and that as the cause of action accrued to them in the year 1917-18 when the entry was made, the suit was barred by time. The appeal thus failed. They have now come to this Court in second appeal.
6. I have heard the learned counsel for the parties at some length. I am inclined to agree with the learned trial Court that there is no evidence of dedication of the property. On the other hand there is enough material on the file to establish that in the year 1902, Abdul Aziz deceased vide sale deed Exh. P. 1 purchased the vacant site of the shops from the Provincial Government and raised the construction. It is borne out from the copy of the death register Exh. P. 6, that he died on 24th December, 1910. The entries in the birth register, Exh. P. 4 show that his elder daughter was born on 24th October, 1906. As per Exh. P. 5, the date of birth of his younger daughter is 15th April, 1909. The questioned entry in the Municipal record was made in the year 1917-18. Both the appellants were then minors. The learned counsel for the respondents failed to lay hand on any evidence showing that there was any dedication of the property by the deceased. As regards the appellants, they were then minors, there was thus no question of creation of any waqf by them. In Zafar Hussain v.
Mian Muhammad Ghiasud Din it has been laid down :- "Under Muhammadan Law followed by the "Hanafi" sect to which the parties belong, even if no formality need be observed to make a waqf complete, there must be unmistakable proof available that the owner made a clear declaration dedicating the property definitely and permanently to God. Even an owner's unexpressed intention to dedicate property cannot have the effect of a formal dedication. In the absence of any such intention or declaration, no wag f can be said to have been created. It is true that a waqf can be created by user but that user too must be preceded by an intention on the part of the owner to create a wag f. If no such intention is established, user alone will not be sufficient to divest the property of its private character."
' The respondents' learned counsel has failed to point out any cogent evidence, leading to the inference, that Abdul Aziz or for that matter the appellants at any stage, expressed their intention, to dedicate the property to the mosque.
7. The learned counsel, however, argued that the shops are part of the Mosque; and income thereof was spent for its objects. He heavily relied on The Chief Administrator of Auqaf v. Pir Rashid-ud- Daula, for the proposition that for establishing the existence of a waqf direct, evidence of its creation is not essential. Its existence may be inferred from Ion user. Reference was also made by1 2 him to Saira v. Settlement Authorities to explain the ingredients of waqf under Muhammadan Law.
The learned counsel further endeavoured to make some capital out of the admission made by Abdul Karim (P. W. 3) in Exh. D.
1. He, thus, supported the reasoning which prevailed with the learned first Appellant Court.
8. The finding on the question as to whether or not the appellants are owners in possession of the property, is a finding of fact and in this behalf, the learned first Appellate Court, has reversed the trial Court's decision. In order to evaluate the reasoning which influenced the conflicting decision of the learned Courts below on issue No, 1, I have gone through the entir record. There is no reliable evidence that the two shops are part of the Mosque or these stood appropriated as a waqf, on account of long user. It is correct that the respondent's witnesses namely Muhammad Rama (D. W.
1), Abdul Karim 'D. W. 2) and Abdul Hamid (D. W. 3) deposed that the shops belong to the Mosque and Abdul Rahim husband of appellant No, 1 who was also Imam Masjid, used to collect the rent and spent th same for the purposes of the mosque. These assertions, however, are no enough to rebut the appellants' evidence. There should be no doubt that the site of the shops was purchased by Hafiz Abdul Aziz from the Provincial Government, in the year 1902 vide sale deed Exh. P. 1 and he constructed th shops. The map annexed with and referred to in Exh. P. 1, unequivocally demonstrates that the Mosque was already in existence, on the eastern side of the site. It is thus, obvious, that at one stage the property belonged to Hafiz Abdul Aziz, and unless there is a clear proof that during his lifetime, he dedicated the same to the Mosque, on his death, it would essentially devolve on the appellants as his sole heirs.
9. It is not the respondents' case that the Waqf was constituted by the appellants. Admittedly they were minors when their father died. The witnesses examined by the respondents were born long after the death of Abdul Aziz, nay even after 1917-18 when the entry in dispute was made.
Muhammad Siddiq (D. W. 4) has deposed that the shops are being managed by Anjuman Masjid- e-Farooqia, but it is in his statement that this Anjuman came into existence in the year 1969.
10. It is noteworthy that out of the two shops one is occupied by Mumtaz Khan (P. W. 1) aged 70 years for the last about 19 years and whereas the other shop is in possession of Abdul Karim (P. W.
3), who as already observed is husband of appellant No,
2. Mumtaz Khan has stated that the property belongs to the appellants and that the male members of their family used to collect the rent from him. The statements of Iftikhar Ahmad who is the son of appellant No, 1 and Abdul Karim indicate that the mosque was got constructed by Badar Din, who was a "Hakeem" by profession.
The duties of "Pesh Imam" were performed by him and then by his son Abdul Aziz. The husbands of appellants Nos. 1 and 2 namely. Abdur Rahim and Abdul Karim P.W. Are real brothers. They are the sons of Amir Alam. After the death of Abdul Aziz for some time, Amir Alam acted as Imam Masjid and thereafter Abdur Rahim, who died shortly before the institution of the suit, discharged the functions of the Imam. Thus the "Imamitt" remained within the appellants family. If at all Abdur Rahim, out of religious zeal spent some income for the property, c in connection with the Mosque, as he decidedly was not the owner, such, diversion of income, cannot have the effect of making the property as a waqf: In Chief Administrator of Auqaf's rase, it is observed:-- if......The uncertainty about the exact date of the setting up of the shrine would not be material in case it is found that the shrine and the property attached thereto is waqf property because it is a principle of law in force for many a decade that it is not absolutely necessary that the writing by which a waqf was created should exist or that there should be direct evidence about the creation of a waqf and its terms, and that a waqf may be created by user. I am doubtful of the correctness of the expression that a waqf may be created by user and in my view the proper way of expressing the point is that the creation of a waqf may be established by immemorial user of the property as waqf. It is hardly open to question that if any property has been used as waqf property from times3 immemorial, a Court of law would be justified in drawing an inference that a valid waqf had been created."
' There is hardly any evidence in this case that from times immemorial, the shops are being used for objects of the mosque, and the appellants were party to such user. I have also examined Saira v. Settlement Authorities, there is nothing in this precedent, which may be of any avail to the respondents.
11. It is to be seen that the learned trial Court, while evaluating th oral evidence on issue No, 1, had the opportunity to consider the demeanou of the witnesses. Its findings, in this behalf, have been reversed by the learned Additional District Judge, without discussing the evidence. Indeed his decision is largely influenced by the entry in dispute. He completely ignored that according to the L.
M. C. The entry relates to some other property. His wholesome reliance on this entry is misconceived. As held in Broom's Legal Maxims at page 108, "a matter, the validity of which is at issue in legal proceedings, cannot be set up as a bar thereto."
12. It remains to be seen as to what is evidential value of the admission of Abdul Karim, embodied in the agreement Exh. D. I. As already stated, this document relates to the sale of a house but towards its end there is mention of one shop as being a waqf property. This agreement was executed on 7th May, 1969 and the appellants are not signatory thereto. Abdul Karim is not a party to the suit.
Generally the statements of persons, who are strangers to the suit, cam% be categorized as admissions. Even otherwise, it is well settled that admissions are not conclusive and may be shown to be wrong. While appearing in the witness box Abdul Karim, has' deposed that it was because of his ignorance that he considered the property as a waqf. The so-called admission thus stands explained and is denuded of its evidentiary value. It is to be noticed that Exh. D.1 makes mention of only one shop. The inferential finding resting on Exh. D. 1 is not available in respect of the other shop.
The view taken by the learned Additional District Judge in reversing the finding of the trial Court on issue No, 1 is palpably wrong. The appellants succeeded in proving that the property in dispute belonged to them. The collection of the rent by them through the male members of their family, also proves their possession. In this view of the matter, the findings recorded by the learned trial Court on this issue must prevail and are accordingly restored.
13. As regards the limitation, it has been found that the appellants ar in possession of the property.
Thus, they were not bound to sue on every denial of their title and could file a declaratory suit at their option. Reference in this connection may be made to Muhammad Bakhsh v. G Umar. The suit filed by the appellants was, therefore, within time. The findings recorded by the Courts below on issue No, 2 are erroneous and thus reversed.
14. As a result of this discussion, this second appeal is accepted, the impugned judgment and decree set aside and the appellants' suit decreed in their favour with costs.
AI R 1937 Lah. 552 FL D 1961 Lah.193 PLD 1973 Lah. 327 PLD 1952 Lah. 307