1. ' This judgment shall dispose of these nine first appeals namely, F. A.
0. No, 146 of 1983 to 154 of 1983, filed by the Chief Administrator of Auqaf against the respondents calling in question the order dated 16th June, 1983 of the learned District Judge, Jhang whereby the applications submitted under section l l of the Auqaf (Federal Control) Act, 1976, challenging the taking over of the Administration and control of the property known as Khanqah of Pir Bhatta, Chiniot, District Jhang, were accepted and it was declared that the property in dispute was not at all a Waqf property arid that the impugned notifications issued by the appellant are ultra vires, illegal and ineffective as against the rights of the respondents.
2. The facts necessary for the disposal of these appeals are that the then Administrator-General of Auqaf issued Notification No, 2/4/AGA/77 (64), dated 26th July, 1977 under section 7 of the Auqaf Federal Control Act, taking over the administration and control of the property known as Khanqah Pir Bhatta situated in Chiniot City, District Jhang, measuring 13 Marlas bearing field No, 790 and comprising 17 shops and one house erected thereon. Under this notification, the administration and control of the cash box placed at the shrine and offerings made therein were also taken over by the then Administrator-General Auqaf. This notification was challenged by the respondents by filing separate applications. During the pendency of these applications, the appellant vide Notification No, SO-1 (323) Auqaf] 70, dated 11th April, 1982 amended the Notification, dated 26th July, 1977 so as to increase the area in the previous notification from 13 Marlas to 1 Kanal and the previous Khasra number was substituted to Khasra No, 6793-min and 2787 of Kheveat No, 1125 entered in the Jamabandi for the year 1924-25. The number of shops was increased from 17 to 19 in the amended notification. This amended notification was also assailed by filing amended applications.
2. ' The contention of the respondents, excepting Ghulam Muhammad and Muradan respondents in F.
3. A. Os. Nos. 151/83 and 148/83, respectively, was that the property over which the shops and houses stand constructed was never a Waqf property or a property attached to the shrine of Pir Bhatta, but was a private property and the same remained changing hands from one person to another and that the respondents have raised the constructions spending huge amounts from their own pockets after purchasing the open site of the respective shops and houses from the original Mirasi owners much before the issuance of the said notification. They, thus, invoked the protection of the principle contained in section 41 of the Transfer of Property Act. In the alternative, it was claimed that as they and their predecessors-in-interest have been in possession of these properties for a period of more than 12 years, in denial of the Waqf nature of the property, they have become owners of their respective properties by adverse possession. It was further asserted that in the year 1972 also the predecessor-in-office of the appellant had issued a notification under section 7 of the Act but on a representation of the respondents that the properties were not Waqf properties, the notification was withdrawn and, therefore, the appellant was now estopped by his conduct from issuing a similar notification again. Ghulam Muhammad and Muradan respondents in the aforenoted two appeals, took an additional plea that the shops in their respective possession were evacuee properties as were owned by Chanan Das evacuee, and that they have purchased the same from the transferees to whom the said evacuee property was transferred under the Displaced Persons (Compensation and Rehabilitation) Act, 1958.
4. ' The appellant, who was respondent before the learned District Judge, resisted the applications by asserting that the applications were barred by time ; that the respondents were estopped by their own conduct to file the petitions and that the properties in dispute being Waqf properties, the impugned notification was issued with lawful authority and was thus legal, valid and binding.
5. ' The learned District Judge framed as many as nine issues arising out of the pleadings of the parties and after recording evidence produced by the parties, the applications filed by the respondents were accepted and the impugned notifications were held to be ultra vires, illegal and invalid.
6. ' Before proceeding further, it will be appropriate to give a summary of the evidence produced by the parties. I may mention here that the evidence produced by the appellant and the respondents in all these petitions is one and the same. The appellant produced Jamabandi for the year 1880 (Exh. R. 1) where against Khasra No, 790 the entry in the column titled {{URDU TEXT}} reads "13 Marlas Khanqah Pir Bhatta". In the column of ownership, the entry reads .)_,Sra....4-.4.5 c-)l.: and in the column of cultivation, the entry reads {{URDU TEXT}} The notification, dated 26th July, 1977 (Exh. R. 2) and notification, dated 11th April, 1982 (Exh. R. 4) i. e. The two impugned notifications were also produced. In addition to the above documents, judgment of the District Judge, Lyallpur (now Faisalabad), dated 22nd July, 1926 (Exh. R. 3) was also produced. The oral evidence produced on behalf of the appellant coasists of the statement of the only witness, named, Muhammad Arif Hamid (R. W. 1). He stated that the possession of the property in dispute was taken over in pursuance to the notification, dated 26th July, 1977 on 30th October, 1977 and that the tenants in the said property, which is a Waqf property, are paying rent to the Auqaf Department. In cross- examination, he deposed that the grave of Pir Bhatta is in an area of 12 or 2 Marlas within the boundary walls and that houses have been constructed around it. He further deposed that he could not say whether or not the shops etc. Were 100 years old and that he was not aware as to who had dedicated the said property. He added that in the revenue record name of Pir Bhatta has been mentioned and that besides this he was not aware as to who was the Waqif. He further deposed that he was not aware that the respondents had been treating the property in dispute as their personal property and have been openly using it as such for the last about 50 years. He, however, denied the suggestion that the property was not Waqf property. It is pertinent to note that in the evidence produced there is nothing even remotely to show that the members of the public offer Fateha or present offerings Nazrana at the grave of Pir Bhatta or that it was or is customary at the shrine to observe annual Urs ceremony of the Saint or to perform other rites or ceremonies as are usually held at the shrines.
7. ' As against the above-noted evidence, the respondents produced title deeds through which they had purchased their respective properties ; sanction letters of the Municipal Committee for the construction raised and the receipts of the taxes paid etc. In their oral evidence, the case sought to be made out was that the properties in dispute were not attached to the Mazar of Pir Bhatta ; that the grave was Katcha one and is surrounded and has been bounded by Katcha fourwalls ; that no religious instructions are imparted at the grave ; neither there is any Piri or Muridi practised nor any Nazrana is offered nor any Urs is celebrated. The properties in question were purchased from or exchanged with Maula Bakhsh Mirasi. It was denied that Mazar of Pir Bhatta was located in these properties. It was also denied that there was any Khanqah but is a Katcha grave. Muhammad Hanif (P. W. 3) respondent in F.A.O. No, 147 of 1983 in his statement deposed that on asking from the Mirasis he was told that the grave was of their Pir, and that he was not told by the Mirasis that they were Jaroobkash of the Khanqah and that they had no connection except that of Jaroobkash. He denied the suggestion that majority of the citizens of Chiniot are the devotees of Pir Bhatta.
8. ' In the petition, subject-matter of F. A.
0. No, 149/83, Sultan All (P.W. 3) appeared and deposed that the property subject-matter of the petition was of Maula Bakhsh Mirasi who was owner in possession from the time of his forefathers and that his father had received this property in exchange from Maula Bakhsh. In cross- examination, he deposed that Maula Bakhsh who was owner since the time of Ranjeet Singh, belonged to his family. He added that he has been seeing this grave since the time of his coming to age and that the said old grave was not a Mazar though this grave is of Pir Bhatta. He denied the suggestions that Mirasis are devotees of Pir Bhatta or that Mirasis came to Chiniot alongwith Pir Bhatta or that people of his caste were Jaroobkash of the said grave and that they were in possession of the property in question on the said basis. In cross-examination, he further deposed that they had not enquired from Maula Bakhsh whether there was any civil suit filed in respect of the property in question. He admitted that Chiragh, Hayat, Ramzan sons of Roshan caste Mirasi were maternal-uncles of his father. He also stated that he was not aware that his father knew that Sheikh Muhammad Waris had filed a suit against the aforesaid Chiragh, etc. He denied the suggestion that he had heard from aforesaid Chiragh etc. That the property was Waqf property. He added that it was incorrect that sufficient income accrues at the Khanqah; ' In the petition subject-matter of F. A.
0. 152/83, Farid Hussain petitioner 'respondent appeared as P. W. 6 and deposed amongst other things that he and his ancestors were in possession of the property in dispute for more than hundred years as owners, that the structure was raised by his ancestors who had been openly selling, mortgaging and renting the property in question. He also deposed that the grave is within a Katcha/Pacca fourwalls, neither any Urs is celebrated nor any offering is made by anyone. He admitted that Ahmad is his phoophizad whereas Maula Bakhsh was the son of his paternal-uncle.
9. He further admitted that Ramzan was his father while Chiragh and Hayat were his uncles and all the three were the sons of Roshan. He, however, did not have the knowledge of the fact that a suit was filed by one Hanif Muhammad Waris against his father and uncles. He also denied the suggestion that his family was the Jaroobkash of the Khanqah.
10. ' Learned counsel for the appellant fairly and candidly conceded that the appellant does not claim any right over or against the superstructures raised by the respondent. Thus, the superstructures existing on the site are not in dispute. Learned counsel for the appellant also conceded that the claim of the Auqaf Department over the entire one Kanal mentioned in the latest notification cannot be supported as in the Jamabandi for the year 1880 entry of Khanqah against 13 Marlas only was recorded, Out of these 13 Marlas, four Marlas went in possession of Hindus since 1901 and thus only 9 Marlas were left with the Mirasis as noted in the judgment, dated 22nd July, 1926. Out of these 9 Marlas, the grave of Pir Bhatta within the fourwalls and the passage at its side, both, after spot measurements carried out during arguments, were reported to have covered an area of 3 Marlas. Thus, the claim of the Auqaf Department at best can extend to six Marlas. Learned counsel for the appellant was, however, not in a position to specify these six Marlas to which the Auqaf Department could possibly lay claim as the site appertaining or consecrated to the tomb. The claim of the appellant is based on the Jamabandi for the year 1880 and the judgment, dated 22nd July, 1926 (Exh. R. 3) of the learned District Judge Lyallpur (now Faisalabad) delivered in the case of Hafiz Muhammad Waris v. Chiragh and others. In this judgment, the learned District Judge observed that though in the year 1880 an area measuring 13 Marlas was shown as Khanqah but in 1901 some of its area went under the possession of Hindus and out of it 9 Marlas were left in possession of the respondents in the said case. This judgment was passed in a suit for perpetual injunction filed by one Hafiz Muhammad Waris against Chiragh and others and a declaration was granted to the effect that the site in dispute lying vacant around the tomb of Pir Bhatta appertains thereto and being a consecrated property dedicated to the aforesaid shrine, is not liable to be used by the respondents as their personal property. Moreover, in respect of relief of the pulling down the Kotha constructed on the one side of the grave prayed for in the suit, it was observed by the learned District Judge that the claim, so far as the Kotha was concerned, was barred by time under Article 120 of the Limitation Act and that the right of the Muhammadans was infringed as long ago as 1901 and they had only six years to have their right established. It was also observed in the judgment that the then vacant site around the Khanqah appertains to Khanqah and is dedicated to that institution though it was not a public graveyard. This declaration was made in the year 1926. It is pertinent to note that in the present proceedings the appellant failed to produce any oral or documentary evidence e. g. Revenue record to show the treatment or user of the vacant site around the tomb or the grave by the Mirasis or by the Muhammadan public, since 1926.
11. ' The respondents in their evidence, which stands unrebutted, claimed that neither anyone dedicated any property for any religious purpose nor the property in question was or has been used for any religious purpose, nor any religious institution was brought into existence for imparting religious instructions. The case of the respondents is that even Piri or Muridee was never practised, offerings are not made at the grave, that Mirasis were not the Jaroobkash (servants charged with the duty of maintaining cleanliness) of the tomb, that Maula Bakhsh and other Mirasis were dealing with the property as owners and have been selling, mortgaging and renting out the property openly and in defiance to any so-called religious institution. It is also important to note that nothing was brought out in the evidence to show that the property in question devolved on any one as.
12. Sajjadanashin, Chela, Khalifa or Murid at any point of time or the same devolved from such a Sajjadanashin etc. To another successively. On the other hand, it appears from the evidence that the property in question devolved on all the heirs of Chiragh, Hayat, Ramzan sons of Roshan and others on their death and they have been treating the property as their personal property. It is not disputed that the site in question is not a public graveyar though there is the grave of Pir Bhatta and may be some time, yet the graves were not preserved and the land which was recorded as Khanqah land in 1880 did not remain so attached. From 13 Marlas, it was reduced to 9 Marlas as the 4 Marlas came to. Be possessed by Hindus since 1901. The position as found on physical measurement today is that another six Marlas of land have been disposed of and no longer stand attached to the grave of Pir Bhatta. At the same time the fact cannot be lost sight of that vide decree, dated 22nd July, 1926, Chiragh, Hayat and Ramzan sons of Roshan were restrained through permanent injunction from treating the 9 Marlas as their personal property. Farid respondent in F.A.O. No, 152 of 1983 is son of Ramzan but the others, namely, Ahmad father of Sultan All respondent in F. A.
0. No, 149 of 1983 and Maula Bakhsh predecessor-in-interest of other respondent, though are related to aforesaid Chiragh etc. But there is nothing in the record to suggest that they had succeeded them or were not in possession of their respective properties in their own right. In these circumstances, the question that has to be determined is whether the entry recorded in Jamabandi for the year 1880 and the judgment, dated 22nd July, 1926 sufficiently establish the permanent dedication or the use of the site in question from time immemorial for any purpose recognized by Islam as religious, pious or charitable, in spite of there being no evidence of express dedication.
13. ' As regards the judgment and decree, dated 22nd July, 1926, it has to be kept in mind that under section 43 read with section 11 of the Evidence Act, the said judgment may be relevant in order to show the nature of the claim made in the previous suit. In the case of Gopi Raman Roy v. Atal Singh (1), the Judicial Committee observed that "the Evidence Act does not make finding of fact arrived at on the evidence before the Court in one case evidence of that fact in another case". In the case of Muneswa ri v. Jogal Mohini (2) with reference to evidentiary value of a judgment not inter-parties, the learned Judges observed that, "A judgment which is not inter-parties, if admissible at all is admissible only as showing that certain observations were made or certain facts found in a certain judgment but not admissible as evidence of the truth of the facts found or observations made". The general rule with regard to relevancy of judgments is that a person is not affected by a judgment passed in litigation t which he was no party. Res inter alias judicata nullum inter alias prejudicium facts (A matter adjudicated upon between one set of person does not in any way prejudice any other set of persons). To this general rule, judgments in rem which are subject-matter of section 41 form the first and the judgments relating to matters of public nature with which section 42 of the Evidence Act deals, the second exception. The latte judgments, are sometimes regarded as species of judgments in rem but are more usually considered as in the nature of, though stronger than, reputation (see Phipson, Evidence, 7th Edition page 413). Th judgment, dated 22nd July, 1926 (Exh. R. 3) thus is admissible to show the nature of the claim made in the previous suit and the public nature of the right asserted and recognized. From the judgment (Exh. R. 3) and the Jamabandi (Exh. R. 1) it follows that in the year 1880 Khasra No, 790 measuring 13 Marlas came under Khanqah. This Khasra number was part of the Shamilat Deh which was in possession of the owners of the village. In 1901, four Marlas came under possession of Hindus, how and by what method, whether these Hindus were owners in the village and they had retrieved the said area being owners in the village is not known. It also follows that neither Pir Bhatta nor the Mirasis were the owners in the village nor had any right in the Shamilat Deh but as they had occupied the said area of the Shamilat and had established a Khanqah, they were continuing their possession. When was Pir Bhatta buried in the said site, is also not known, but the "Tomb" finds its mention in the judgment, dated 22nd July, 1926. It also follows that the aforesaid Chiragh etc. Used to treat the land around the tomb as personal property and the said treatment was challenged and it was held that the land around the tomb having been consecrated cannot be treated as personal property. Now, two questions arise, (a) whether the Khanqah developed into shrine as a religious institution and (b) whether the persons presently in occupation can be deprived of their rights, the site having been consecrated by its attachment to Khanqah at one point of time.
14. ' In order to answer the questions, it is necessary to understand the real meaning and the connotation of the term `Khanqah'. Amir Ali in his book on Muhammadan Law Volume I Ch. X "Public and Quasi
(I) AIR 1929 P C 99 (2) AIR 1952 Cal. 368 ' Public Waqfs" pointed out that the Khanqabs sprung out in the Sub- I continent, in the following manner :- "A Darwesh or a person who, by leading a pious life, has won the esteem and veneration of the neighbourhood, or a Sufi of a particular sanctity has settled down in some locality. So long as he has not attained sufficient importance, his place of abode is called a Takia. But when he is a man of importance or has attained sufficient eminence, it is designated as Astana. His pious life and religious ministration attract public notice, disciples gather round him, and a place is constructed for their judgment. And the humble Takia grows into a Khanqah. After the death of the holy personage the spot where he is buried becomes a shrine and an object of pilgrimage not only for his disciples but for people of distant parts, both Muhammadans and Hindus, and is designated either as a Dargah or Astana or Rouza."
15. ' In Rashid-ud-Daula v. Chief Administrator of Auqaf (1) after quoting the above passage learned Judges observed that- "A Khanqah is thus a place where religious devotees are lodged and fed during the period they are congregated therefor religious instructions and devotional exercises. Ameer Ali includes these as well as Rouzas and Darghas in the same category of subjects of Wakf as Mosques and Imambaras in which 'the rich and the poor, the affluent and the indigent, are equally entitled to participate'.
16. These, it would appear, thus stand on the same footing mosques, Mussalas (prayer grounds), graveyards and Imambaras. Accordingly, if such an institution is intended to be visited by any member of the public, who feels attracted towards joining in the instructions or devotional exercises, or to perform pilgrimages to such a place, then the institution would become a public Wakf in the same way as a mosque would become a public Wakf, if once it is established that prayers are habitually offered therein by the public with Azan and Ikamat. If a Pir's tomb or Dargah is thus accessable to the public at large without any restriction then proof of such user would establish the nature of the institution. It may also be mentioned here that it is customary at a shrine to observe the annual 'Urs' ceremonies of the Saint, celebrate the birthday of the Holy Prophet (peace be upon him) perform other rites and ceremonies, have recitations from the Holy Quran, offer Fateha and also recite Na'ats or Qawwalis in some shrines. This does not, however, mean that there cannot be a private shrine where only the members of a particular family or sect are entitled to congregate or to offer Fateha but this will depend on the proof of its user or upon the interpretation of the term of the dedication, if any.
17. ' There can be no doubt that a shrine may be a. Valid object of Wakaf, for, the offering of Fateh at the tomb of one's ancestor or a saint is permissible, vide Piran v. Abdul Karim (2) and Khawaja Md.
18. Hamid v. Mian Mahmud and others. In the latter case there was no formal dedication or any direct evidence of the creation of a Waqf but the Judicial Committee held that since 'the tomb and its adjuncts have been used and recognized for upwards of half a century as a place of pilgrimage and as the home and centre of the religious and educa-
(1) PLD 1971 SC 401 (2) I L R 19 Cal. 203 ' tional community founded by the saint' it would be reasonable 'to infer a dedication."
19. The evidence in the present case at best shows that a Khanqah came into being as was so recorded in the Jamabandi of the year 1880 in the land o the Shamilat Deh but there is nothing on record to show that it developed or at best was continued as an institution to which public felt attracted towards joining in the instructions or devotional exercise or it was customary at the tomb to observe the annual Urs of the Pir, perform othe rites and ceremonies, offer Fateha and also recite Na'ats or Qawwalis or to offer Nazarans. The fact that 4 marlas of land was retrieved by the Hindus goes against the Wakf nature of the property. Had the property been permanently dedicated as "Wakf" or had it achieved the status of 'Wak property" by immemorial use a part could not have been retrieved by th Hindus and the entries in the columns of ownership as well as cultivation of c the Jamabandi 1880 would have been different. Moreover, what appears from the record is that Pir Bhatta was buried in the land of Shamilat Deb and people of the Mirasi sect occupied initially 13 marlas out of which 4 marlas they lost somewhere in 1901 and on rest of the 9 mar/as they maintained their adverse possession as against the owners of Shamilat Deh. Out of these 9 marlas, 3 marlas are under the tomb and the passage but the rest i. e. 6 marlas was partly disposed of. The land which was one tim recorded as appertaining to the Khanqah was dealt with as personal property, it never went into the hands of any Sajjadanashin, Chella or Khalifa as Wakf property, but it devolved on the heirs of the persons in possession as their personal property. This was going on despite the judgment, dated 22nd July, 1926 since before and after the said judgment. At this stage, reference may be made to the case of Ali Muhammad Khan v. All Akbar Khan (1). The facts noted in the report are that :- "Mian Muhammad Khan, a Pir of the Chishti sect, lived in the dependant's village, Bassi Nau, in the Hoshiarpur District. The second defendant was married to one of his daughters, and the plaintiff is the son of another daughter. The Pir died in May, 1914 at Bassi Nau, and was buried in a grave belonging to the defendants in the neighbouring village of Kakkon. On the 23rd June, 1914 the fortieth day after his death, a large number of persons including his disciples and representatives of the leading shrines of the Chishti sect assembled at the tomb, and the plaintiff was installed by a majority of the congregation as Sajadda Nashin. The plaintiff claims that the defendants dedicated 16 kanals of land to the shrine as Wakf and he has brought the present action for a permanent injunction restraining the defendants from interfering with the shrine and with his management thereof."
20. ' In the background of above-stated facts the question that was argued was that the land on which the tomb of the Saint was erected was a trust property. In the case it was admitted that the owners did not expressly dedicate the land under or around the tomb to the religious use and the question arose whether a presumption of implied dedication arises from the fact that the Saint was buried there and that Urs had since been held at the tomb four or
(1) I L R 4 Lah. 133 ' five times on his death anniversary. The learned Judges answered the question as under :- "Mr. Tek Chand for the appellant is unable to cite any authority to support the contention that the mere burial of a saintly person in a plot of land has the effect of converting that land into trust property, and we do not think that the circumstance that Urs was held for a few years without any demur by the defendants materially advances the case for the plaintiff. It must be remembered that the deceased was the father-in-law of the second defendant, and there is nothing improbable in the theory that he himself buried the saint in the land of which he was a part proprietor. Be that as it may, the onus was clearly upon the plaintiff to establish a dedication, express or implied, to public religious uses, and we do consider that he has failed to discharge that onus."
21. In the present case, the Saint was buried in the land of Shamilat Deh and the people of Mirasi sect occupied the land adverse to the rights of the owners and the land thus occupied was throughout treated as personal property adverse to the rights of the original owners as well as that of the tomb. The Mirasis who occupied and dealt with the land were not shown to have been ever appointed as Mutawalli, Sajjadanashin or to have occupied the same in that capacity. Again, the land in question was admittedly not used as graveyard of Muslims so that it may attain the status of Wakf property. On account of burial of a saint or some other person b D itself without express or implied dedication and without proof of immemorial user for any religious purpose, the site in question cannot be treated as Wakf property. Moreover, the appellant is not in a position to specify the 6 marlas over which the claim is being extended. In these circumstances, the respondents cannot be deprived of the rights vesting in them. I have, therefore, no hesitation in upholding the judgment passed by the learned District Judge. The appeals, therefore, fail and are hereby dismissed, leaving the parties to bear their own costs.