' KHIZAR HAYAT, J.-- This Regular First Appeal has been filed on behalf of Sufi Abdul Hamid (who died during its pendency) against the order of learned District Judge, Rahimyar Khan, dated 19-2- 1962 whereby he refused to enhance the amount of compensation in a reference made to him under section 18 of Land Acquisition Act, against the award dated 19-2-1962 delivered by the Collector, Land Acquisition, Rahimyar Khan.
2. The relevant facts giving rise to this appeal briefly are that 98 Acres 4 Kanals 8 Marlas of land was acquired for Model Town Scheme, Tehsil Khanpur, District Rahimyar Khan, which included 24 Acres 4 Kanals 16 Marlas of land belonging to the appellant. The Collector, Land Acquisition, Rahimyar Khan, awarded compensation to the appellant at the rate of Rs.4,500 per Acre in addition to 15% charges over and above the assessed value for compulsory acquisition plus cost of 34 trees and 2 wells which amounted to Rs.1,25,637/11. The Collector claimed that while assessing the rate of compensation he kept in mind the land's agricultural character, its situation besides the market value prevalent in those days. The appellant, however, feeling dissatisfied, applied to the Collector that since the price assessed by him was very low, therefore, a reference under section 18 of the Land Acquisition Act be made to the Civil Court for determination of the correct compen sation. In the application he mentioned that the land in dispute belonged to Madarsa Tajvidul Quran, Khanpur, and its branch at Khairpur, of which he was the Mutawalli. The Collector accordingly made the reference to learned District Judge who tried the reference and examined 6 witnesses on behalf of the appellant, namely, Khalilur Rahman (A.W.1), Karim Bakhsh (A.W.2), Sultan Mahmood (A.W.3), Atta Muhammad (A.W.4), Atta Muhammad Patwari Halqa Khanpur (A.W.6) besides the appellant who appeared as A .W.5. Four witnesses, namely, Talib Hussain (R.W.1), Munshi Bashir Ahmad Patwari (R.W.2). Atta Muhammad Patwari Halqa Khanpur (R.W.3) and Fazal Din (R.W.4) appeared on behalf of the respondent (Collector).
3. Sufi Abdul Hamid, while appearing as A.W. 5 stated that the land in dispute was purchased by his father and was dedicated to Madarsa Tajvidul Quran, Khanpur, and its branch at Khairpur.
According to the arrangement, half of its produce used to be utilized by the Waqf and other half by the Mutawalli (appellant). In his supplementary statement dated 23-11-1964, he stated that the land in question belonged to him which had been acquired under the award against which he filed the reference in his capacity as its "Mutawalli". He stated that the land was situated within the urban area of Khanpur along with the roadside adjacent to Tehsil Courts and Government offices and he used to receive Rs.75 per Kanal per annum as its income. The land was acquired for residential purposes and the land adjacent to the disputed land was auctioned by the Improvement Trust at the rate of Rs.6,000 per Kanal. He stated that he objected to the acquisition of land on the ground that it was Waqf property and had prayed that alternate land be given so that the purpose of Waqf is not frustrated.
4. Learned District Judge reviewing the evidence adduced by the parties, observed that the land in dispute at the time of acquisition was agricultural land which had been acquired for residential scheme. He had held that the Acquisition Collector kept in mind all the consider ations like; the purpose for which the land was acquired; the situation of the land and the rate prevalent in those days, while awarding the compensation. The land transferred through mutations Exh.R.5 and R.6 situated close to the land of the appellant was sold at the rate of Rs.3,200 and Rs.3,600 per Acre, therefore, according to learned District Judge, the compensation awarded at the rate of Rs.4,500 per Acre plus 15% compulsory acquisition charges was quite fair. Consequently, he dismissed the reference and approved the award delivered by the Collector. Feeling aggrieved of this finding of learned District Judge the appellant preferred this appeal which was filed in this Court on 22-7- 1965 by Sufi Abdul Hamid. The appellant died on 9-3-1968. Abdul Waheed Khan, his son, made application under Order XXII, rule 3, C.P.C. for bringing on record the successor of the appellant. In that application he stated that his father had been prosecuting the appeal in his capacity as Mutawalli of Madarsa Tajvidul Quran and that he (the applicant) succeeded him as Mutawalli of the said Institution being his son. It was also mentioned that other legal heirs of the deceased, had no interest or title in the disputed property, therefore, he be substituted as appellant and be allowed to prosecute the appeal on behalf of Madarsa Tajvidul Quran. This application was allowed on 26-3-1969 by a learned Division Bench of this Court with the following remarks:- "The application is allowed subject to all just exceptions and the petitioner, Abdul Hamid (Waheed)
Khan, is permitted to prosecute the appeal."
' Abdul Waheed Khan also died on 26-3-1979, whose legal representatives then applied on 19-12- 1981 (C.M.No.696 of 1981) for being impleaded but the respondents opposed this application on the ground that office of Mutawalli of an institution (Madarsa Tajvidul Quran) is not hereditary and in the event of death of Mutawalli he could not be represented by his legal heirs, therefore, due to the death of the original appellant (Sufi Abdul Hamid) the appeal had abated. On this point the arguments were heard by a learned Division Bench of this Court on 19-12-1982. It was argued on behalf of successors of Abdul Waheed Khan that the appeal did not abate because the proceedings under section 18 of the Land Acquisition Act, were immune from the provisions of O.XXII, C.P.C. Reliance was placed on Muhammad Saeed v. Government of West Pakistan PLD 1968 Lah . 1176 in this regard. However, learned Division Bench found that the dictum laid down in the above precedent did not cover "appeals" for section 54 of Land Acquisition Act specifically made the provisions of the Code of Civil Procedure applicable to the 'appeals' and accordingly announced that the appeal was disposed of as having abated. At the time of dictating the judgment, it was felt that the provisions of Law Reforms Ordinance, 1972, which had done away with the provisions of abatement, earlier available in the Code of Civil Procedure, were not taken note of at the time of arguments because Abdul Waheed Khan had died in 1979 long after coming into force of aforesaid amendment in law, therefore, the matter was ordered to be reheard.. It is in this background that we have reheard this appeal.
5. Learned counsel for the appellant submitted that Sufi Abdul Hamid died on 9-3-1968 and application on behalf of his son Abdul Waheed Khan for being impleaded as appellant was made on 7-6-1968 within statutory period of 90 days which was allowed on 26-3-1969, therefore, the appeal had not abated within the meaning of Order XXII, rule 3, C.P.C. He further submitted that Abdul Waheed Khan died in the year 1979 after Law Reforms Ordinance, 1972, came into force which has done away with the penalty of abatement due to failure to bring on record legal representatives of a party so this appeal is alive and should be decided on merits. On facts, he submitted that the land in dispute is admittedly situated within the municipal limits of Khanpur town which had been acquired for residential purposes, there fore, the assessment of compensation should not have been based on five years' average sale price of agricultural land, rather it should have been assessed on the basis of the market value of residential plots prevailing in those days. He has specifically referred to the evidence of Sultan Mahmood (A.W.3) and Karim Bakhsh (A.W.4) who stated that the residential plots were sold at the relevant time at the rate of Rs.4,000 to Rs.5,000 per Kanal.
7. Learned counsel for the respondent while replying the argument of the appellant's counsel mainly dwelt on the legal aspect of abatement of the appeal after the death of the original appellant Sufi Abdul Hamid as his successor-in-office has neither been appointed nor brought on record till today which should ordinarily have been done within the statutory period of 90 days becaue the Mutawalli appellant died long before the enforcement of Law Reforms Ordinance, 1972.
He argued that late Sufi Abdul Hamid was Mutawalli of the land in dispute dedicated by his father to Madarsa Tajvidul Quran and filed the appeal in his capacity as such. He went on arguing that since the office of Mutawalli is not heritable, therefore, Abdul Waheed Khan could not claim to be Mutawalli of the disputed property just because he was legal heir of Mutawalli. Therefore, he urged that the application made by him under Order XXII, rule 3, C.P.C., though within 90 days, for being substituted as appellant was not maintainable in the absence of any proof that he was appointed Mutawalli in place of his father according to the arrange ment stated in the Waqfnama or declared by the Waqif (dedicator), at the time of creating the Waqf.
8. We have considered the argument of learned counsel and also perused the record. The property in dispute is admittedly a Waqf property created by Muhammad Alam Khan father of late Sufi Abdul Hamid (appellant) which was managed by the appellant as Mutawalli. The question is whether his son Abdul Waheed Khan who requested through C.M. No.172-68/BWP to be substituted as heir of appellant could be impleaded as Mutawalli after latter's death? We are alive to the fact that this application was allowed by a learned Division Bench of this Court on 26-3-1969 but it was "subject to all just exceptions", therefore to our mind it is open for this Court to consider if that application was proper and could be granted under the law? The answer to the problem of appointment and succession of Mutawalli is available in paragraphs 204 and 206 of Principles of Mahomedan Law by D.F. Mulla, which are reproduced below for convenience of reference.
204. Appointment of Mutawalli.-- (1) The founder of the Waqf has power to appoint the first Mutawalli, and to lay down a scheme for the administration of the trust and for succession to the office of Mutawalli. He may nominate the successors by name, or indicate the class together with their qualifications, from whom the Mutawalli may be appointed, and may invest the mutawalli with power to nominate a successor after his death or relinquishment of office.
(2) If any person appointed as Mutawalli dies, or refuses to act in the trust, or is removed by the Court, or if the office of Mutawalli otherwise becomes vacant, and there is no provision in the deed of Waqf regarding succession to the office, a new Mutawalli may be appointed:-
(a) by the founder of the Wakf;
(b) by his executor (if any);
(c) if there be no executor, the Mutawalli for the time being may, subject to the provisions of section 205 below, appoint a successor on his death-bed;
(d) if no such appointment is made, the Court may appoint a Mutawalli. In making the appointment the Court will have regard to the following rules:-
(i) the Court should not disregard the directions of the founder except for the manifest benefit of the endowment;
(ii) the Court should not appoint a stranger, so long as there is any member of the founder's family in exis tence qualified to hold the office;
(iii) where there is a contest between a lineal descendant of the founder and one who is not a lineal descendant, the Court is not bound to appoint the lineal descen dant, but has a discretion in the matter, and may in the exercise of that discretion appoint the other claimant to be Mutawalli.
206. Office of Mutawalli not hereditary.-- The Mahomedan Law does not recognise any right of inheritance to the office of Mutawalli. But the Office may become hereditary by custom, in which case the custom should be followed.
9. There is nothing on record to show that Muhammad Alam Khan (Waqf) expressed that the property dedicated by him shall be managed always by his lineal descendants. No custom has been proved either. It is also not stated that the appellant (Mutawalli) before his death had appointed Abdul Waheed Khan as his successor-in-office. In these circumstances, after the death of Sufi Abdul Hamid, his son, namely, Abdul Waheed Khan could not claim to be the Mutawalli of the Waqf property merely on the strength of his being an heir of Sufi Abdul Hamid as enjoined by paragraph 206 quoted above. Likewise, after the death of Abdul Waheed Khan and till today no proof has been furnished to show that the applicants Muhammad Sarfaraz and others in C.M.
No.696-81/BWP filed on 19-12-1981 have succeeded as Mutawalli of the Waqf. No Waqfnama has been produced. In the circumstances, we have no alternative but to hold that after the death of Sufi Abdul Hamid neither anybody succeeded him as Mutawalli nor anybody properly appointed as his successor-in-office was brought on record as his legal representative within 90 days of his death which took place on 9-3-1968. Therefore, the law prevalent in the year 1968 shall have to be applied. Consequently, in view of Order XXII, rules 3 and 4, C.P.C. the appeal has abated.
10. As for the merits, late Sufi Abdul Hamid while appearing as A.W.5 admitted that the disputed land was agricultural land. A.Ws.3 and 4 stated that residential plots were sold at the rate of Rs.4,000 to Rs.5,000 per Kanal during the days of acquisition. On the other hand, Talib Hussain Patwari (R.W.1) stated that price of agricultural land calculated on the basis of five years average price was Rs.1,281. Muhammad Bashir and Atta Muhammad, Patwaris, (R.Ws.2/3) stated that in those days the agricultural land situated close to the land of the appellant was sold at Rs.3,500 to Rs.3,600 per Acre. Having considered the material on the file, we find that the land in dispute is of the kind and quality of land sold in mutations Exhs.R.5 and R.6 which fetched a price of Rs.3,500 to Rs.3,600 per Acre. Since the appellant's land was acquired for residential scheme, therefore, its value appears to have been assessed still at a higher rate i.e. Rs.4,500 per Acre. In these circumstances, we are satisfied that the compensation awarded is not inadequate, rather it is a bit favourable. The decision of learned District Judge that it was not a fit case for enhancement of the compensation appears to us as correct.
11. This appeal is accordingly disposed of.