This judgment will decide two appeals, under section 8' of the West Pakistan Waqf Properties Ordinance, 1961 (Ordinance XXVIII of 1961), which have been brought to question the judgment of the District Judge, Sialkot, by which the lands described in paragraph 7 of the judgment were declared to be not wakf property, but other lands, namely, plots of land bearing Khatoni Nos. 32, 33 and 34 of Khewat No. 2, Khatoni Nos. 270, 377/2 and 378, all of Khewat No. 61, Khatoni No. 507 of Khewat No. 123, Khatoni Nos. 2437 to 2439, Khatoni Nos. 2442 and 2444 to 2446, and Khatoni Nos.
2446/1, 2447 and 2448 of Khewat No. 352 (hereinafter referred to as the disputed lands) were declared to be wakf property within the meaning of the aforesaid Ordinance. The judgment has been questioned in separate appeals both by the Chief Administrator of Auqaf as well as by the holders of the Khatonis, namely, Ghulam Mustafa and others. An application is also on record whereby the Chief Administrator of Auqaf has prayed for admission of further and additional evidence under Order XLI, rule 27, C. P. C., this evidence being oral statements of -the resi--dents of Sath Reh, Tehsil Pasroor, District Sialkot (where all these lands are situated) to prove that by immemorial user the lands in question have been treated as wakf properties. However, in my opinion, this application is not maintainable as there is sufficient documentary evidence on record to enable this Court to pronounce its judgment. Accordingly, I would reject this application.
2. The arguments before me have proceeded mainly in F. A. O. No. 39 of 1962 brought by Ghulam Mustafa and others to question the judgment of the District Judge declaring the Khatoni numbers mentioned above as wakf properties. Before proceeding with the arguments, both the learned Advocates made the following joint statement
(1) The only evidence to be taken into consideration is R. W. 1/1, which are Revenue Records in 14 sheets and that in these also the portions which are relevant are marked in red as A, B, C, D, E, F, G, G/1, H, J, K, L, M, N, O and P.
(2) There is another document, Wajib-ul-Arz, which is brought on record by consent of the learned Advocates and is exhibited as High Court Exh. No. 1 and the relevant portion therein is marked as "A".
(3) Mr. Gul Muhammad agrees that in the two cases occupancy rights, if there were any, vesting in the petitioners---appellants, could not be taken over under section 6 of the West Pakistan Waqf Properties Ordinance, 1961."
3. The question, therefore, which is in controversy and which has to be settled, is whether the Chief Administrator of Auqaf was competent to take over Malikana rights, in other words right to receive rent payable to the landlords, with regard to the disputed lands and this question has to be decided in accordance with the portions marked as "A", "B", "C", "D", "E", "F", "G", "G/1", "H", "J", "K", L", "M"
"N", "O" and "P" in Exh. R. W. 1/1 which are reproduced as under:- "A"
Another relevant exhibit is High Court Exh. 1, the relevant portion of which, marked as "A", is reproduced as under The entries in Exh. R. W. 1/1 establish that the disputed lands were included in "Shamilat Deh". Thus, in R. W. 1/1/A, there are two entries, one of which shows that the holder is permanent occupancy tenant and that his possession of the land is permanent together with Dharamshala. This entry need not concern us in the present proceedings, but following this entry is the entry R. W. 1/1/B which relates to the disputed lands and which it is stated that the ancestors of the appellants in F.
A. O. 39 of 1962 held permanent occupancy of the disputed lands together with permanent possession of the Jama Masjid and that the owners, namely, the proprietary body of the village, had waived the right to receive Malikana in consideration of the service to be rendered by the holders of the disputed land to the mosque. To the same effect are the entries marked "A" "B" "C" "D"
"E", "F", "G". "G/1", "H", "J", "K", "L", "M", "N", "O", and "P". In the Wajib-ul-Arz, High Court Exh. 1, it is stated that no Malikana shall be receivable from Baba Buda Singh Bedi and from the ancestors of the appellants in F. A. O. No. 39 of 1962 so long as they continued to render services respectively to the Dharamshala and the mosque.
4. Exhibit R. W. 1/1, including the portions marked "A", "B", "C", "D", "E", "F", "G", "G/1", "H", "J", "K", "L", "M", "N", "O", and "P", together with Wajib-ul-Arz, High Court Exh. 1, are ancient revenue records and carry with them the presumption of correctness. These entries establish that the ancestors of the appellants in F. A. O. 39 of 1962 were permanent occupancy tenants. With regard to the occupancy rights, Mr. Gul Muhammad Khan, who represented the Chief Administrator of Auqaf before me, agreed that these rights of occupancy under section 6 of the Punjab Tenancy Act, 1887, were not the subject- matter of waqf and, therefore, could not be acquired under the West Pakistan Waqf Properties Ordinance, 1961. His main contention was that Malikana rights, that is, right to receive rent, come within the ambit of this Ordinance, and, therefore, could rightfully be taken over by the Chief Administrator of Auqaf. It may here be stated that at the outset of the discussion before me, there was considerable controversy between the learned Advocates of the parties as to whether the appellants in F. A. O. No. 39 of 1962 or their ancestors were permanent occupancy tenants under section 5 or under section 6 or under section 8 of the Punjab Tenancy Act. Ultimately, Raja Said Akbar, the learned Advocate for these appellants, took his stand under section 8 according to which any person may establish a right of occupancy on any ground other than the grounds specified in section 5, 6, or 7 of this Act. Now, as regards the occupancy tenancy under section 8 the rule is, as laid down in 1918 Punjab Records No. 5 (Revenue), that one way of establishing occupancy rights under section 8 of the Punjab Tenancy Act is by proving a promise never to eject.
Such promise need not necessarily be explicit but may be implied and proved by evidence of the intentions of the parties as shown by their action, nor does it mean a promise not to eject under all circumstances whatsoever but a promise not to eject to qasur, i.e. Till commission of a fault against his tenure, as defined by Sir M. Fenton in his judgment in Chaudhry v. Jassa, Revenue Revision No. 204 of 1911-12. (printed at the end of this judg--ment). The revenue entries referred to above bring out one fact very prominently, that i3, the appellants in F. A. O. 39 of 1962 and/or their ancestors were permanent occupancy tenants and were not to be ejected from the disputed lands nor was Malikana to be received from them with regard to these lands, so long as they continued to render services to the mosque. Thus, the appellants and/or their ancestors' permanent occupancy tenancy is established. The only question now is whether the Malikana rights were the subject-matter of any waqf and accordingly could be taken over or assumed by the Chief Administrator of Auqaf. In my opinion, the Malikana rights could not be treated as waqf' property.
The revenue entries clearly show that the promise of the proprietary body not to receive Malikana was in consideration of services to be rendered to the mosque. This fact is narrated in all the revenue entries which have been referred to above. In Wajib-ul-Arz, High Court Exh. 1, also it is clearly stated that Malikana or rent was not pay by the ancestors of the appellants in F. A. O. 39 of 1962 so long a they continued to render services to the mosque, and if the ceased to render these services, the proprietary body by majority of its members will be competent to require payment of Malikana. Now, a waqf under Muslim law should show a permanent dedication of property for religious purposes. To my mind, the entries do not show that Malikana rights were ever permanently dedicated as waqf property for the maintenance of the mosque. The tenor of these entries is that the ancestors of the appellant were not to pay Malikana or rent on account of remuneration for services rendered to the mosque. The remuneration there--fore, was in the shape of waiver of tire right to receive Malikana or rent during the continuance of these services. On these facts themselves it is not difficult to reach the conclusion that Malikana rights were not the subject- matter of waqf. However, under Muslim Law it is doubtful whether Malikana rights could at all be dedicated by way of waqf. The concept of waqf in Muslim Law permits dedication of the corpus ("ASI") as waqf but not the income from the fruit of the property (See Amir A.I's Mohammadan Law, Volume If, 1892 Edition, Chapter 7). To the same effect are the decisions in Shah Wajihuddin Ashraf v. Shah Murtaza Ashraf and others (AIR 1930 Oudh 32) and Ahmad Ashraf and others v. Murtaza Ashraf and others (AIR 1935 Oudh 299). In the first case it was held that mere fact that the income arising out of the property has been appropriated for the upkeep of a mosque is not sufficient proof that the property is endowed property. In the same decision it was further held that the user may be evidence of a dedication the origin of which is unknown, but it cannot be substituted for it, and what is required is an indication that the wakf has divested himself of his proprietary interest in the subject of wakf and, further, the mere fact that a property is set apart for meeting the expenses of a Dargah will not make it wakf property wren the right to assume possession and divide it according to the ancestral shares is reserved in a family agree--ment. This rule was subsequently followed in the second decision of the Oudh Chief Court, namely, Ahmad Ashraf and others v.
Murtaza Ashraf and others. I have reproduced above the relevant portions of Wajib-ul-Arz, High Court Exh. 1, which clearly and specifically states that Malikana or rent will not be payable by the ancestors of the appellants in F. A. O. 39 of 1962 so long as they continued to render services to the mosque, and that if these services ceased, the proprietary body by majority would decide the question with regard to the liability for payment of Malikana. Thus, what seems to have happened is that the appellants and their ancestors in F. A. O. 39 of 1962 were paid remuneration for services rendered or to be rendered by them to the mosque in consideration of waiver of the proprietary body of the village of the right to receive Malikana. In other words Malikana was set apart for the upkeep of the mosque and this fact by itself, according to the Oudh decisions, did not make the disputed lands as waqf lands.
5. Mr. Gul Muhammad Khan referred me to a passage at page 230 in Minhaj et Talibin, which is a Manual of Muslim Law according to Shafii School. The portion relied upon by Mr. Gul Muhammad Khan reads as follows "On the other hand the validity of a foundation is admitted that consists of buildings and plantations on another's land leased for that object."
Now, the present cases are to be decided according to the Hanafi School, but I am prepared to assume for the purpose of this case, that rules of Shaffi School may be invoked for limited purposes to ascertain the meaning of a particular rule of Shara. But the passage on which Mr. Gul Muhammad Khan relies does not support his contention that the income, as distinguished from the corpus, is capable of being dedicated as waqf property. It is a well-established concept, both in Islamic Jurisprudence as' well as in other systems of law, that the lease hold rights may constitute property or corpus, or "AS I". But leasehold rights are not income. The income would be the rent and the above passage in Minhaj et Talibin does not lay down the rule that income, or lease money, could be dedicated as waqf property.
6. Another aspect of the case which should be taken note of is that the Punjab Tenancy Act, 1887 was amended by Act VII of 1952, by which section 114 was added to the Act under which it was provided that on the coming into force of the Amending Act the occupancy rights in respect of the lands other than lands owned by the Government or by an evacuee, shall be extinguished and the land comprised in such tenancy shall vest in the occupancy tenant on conditions and on payment of compensation fixed in subsections (2) to (7) of section 114. Mr. Gut Muhammad Khan contended that no compensation had been paid by the appellants in F. A. O. No. 39 of 1962 and that the time for such payment having expired, their permanent occupancy tenancy could not be deemed to have extinguished. But Raja Said Akbar brought to my notice the West Pakistan Ordinance No. XXXI of 1969, promulgated by the Government of West Pakistan on 5th November 1969. Under section 3 of this Ordinance, the time for payment of compensation for acquisition of proprietary rights in the land, as required by section 114 of the Punjab Tenancy Act, 1887, has now been fixed at one year from the date of the publication of this Ordi--nance in the official Gazette. Thus, even this last contention of Mr. Gul Muhammad Khan has no force. If compensation is at all payable by the appellants in F. A. O. No. 39 of 1962, then they can still do so as the period of one year fixed by Ordinance No. XXXI of 1969 has not so far expired.
7. In the result, for reasons mentioned above, F. A. O. No. 39 of 1962 is accepted and it is declared that the disputed lands or the Malikana rights therein are not waqf properties and could not be taken over or assumed by the Chief Adminis--trator of Auqaf. For the same reasons, the connected appeal, namely, F. A. O. 49 of 1962, is dismissed. The parties, however, are left to bear their own costs.