' The propriety and the validity of the judgment dated 30-7-1984 pronounced by the learned District Judge, Bahawalnagar, has been questioned in this appeal, who had dismissed the application of the appellants moved under Section 7 of the West Pakistan Waqf Properties Ordinance, 1961.
2. The facts leading to the instant appeal in substance, are that the land measuring 88 Kanals situate in Chak No.272/HR, District Bahawalnagar, was allotted to Hashmat Ali in lieu of land held by his predecessor Gulab Khan in village Mona Kalan Tehsil and District Hoshiarpur, India, Gulab Khan was the original owner of the landed property in India. He temporarily alienated the same in favour of Anwar Shah. After the demise of Anwar Shah, it was given to Bholay Shah, a Gaddi Nasheen, and the said Bholay Shah is alleged to have donated this land again to Gulab Khan and since then it was being inherited by the heirs of Gulab Khan. After the death of Gulab Khan, Pir Bakhsh his son inherited this property and a dispute regarding this property was settled by the Collector Hoshiarpur on 1-10-1917 in favour of Hashmat Ali son of Pir Bakhsh.
3. Hashmat Ali filed his claim and consequently he was confirmed the land in dispute in Chak No.272/HR District Bahawalnagar. Out of the said land, he alienated about 9 kanals of land in favour of Faqir Muhammad and Muhammad Akram petitioners Nos.5 and 6.
4. The Chief Administrator Auqaf Punjab, Lahore, assumed the administration, control, management and maintenance of this property by means of Notification No.SOP-1/(195) Auqaf/75, dated 7-10-1976 issued under Section 6 of the West Pakistan Waqf Properties Ordinance 1961. The appellants filed an application under Section 7 of the said Act, for a declaration to the effect that the land in dispute was not a Waqf property and the said Notification was illegal, void and inoperative on the rights of the appellants.
5. The application was contested and a number of pleas were raised by the respondents which are apparent from the following issues:-
(1) Whether the petition is timebarred? OPR
(2) Whether the suit is not maintainable in view of preliminary objection No.2 in the written statement ?OPR
(3) Whether the suit is bad for non-joinder of necessary party? OPR
(4) Whether the petitioners have no locus standi for the petition? OPR
(5) Whether the petitioners are owners of the suit property? OPP
(6) Whether the Notification dated 7-10-1976 issued by Chief Administrator, Auqaf Punjab respondent No.1 is illegal, void and ineffective on the rights of the petitioners on the grounds mentioned in the petition? OPP
(7) Relief.
' The learned District Judge, Bahawalnagar,held that the petition was within time and the impugned Notification was perfectly in order. He dismissed the petition of the appellants with costs which has given rise to this appeal.
6. In this appeal, it is to be determined whether the land allotted in lieu of the land left in India was the property of Gulab Khan or his successors-in-interest or it had been dedicated for any religious, pious or charitable purpose. Shaukat Ali AW-3 who is the attorney of appellants Nos.1 to 4 has.Deposed that Gulab Khan, the grand-father of Hashmat Ali, held land in village Mona Kalan, District Hoshiarpur, East Punjab, who had reserved 24 Kanals and 6 Marlas of land for meeting the expenses of Takia Sain Anwar Shah in the village and after the death of Sain Anwar Shah, Bholay Shah succeeded him who returned this land to Gulab Khan. He has added that after the death of Gulab Khan, this land was inherited by Pir Bakhsh, who expired in 1917 and after his death one Murad Ali Shah instituted a suit against Hashmat Ali that the land belonged to Takia Sain Anwar Shah and it was decided in favour of Hashmat Ali in the year 1917. He has added that the land was confirmed in favour of Hashmat Ali and it was known as Takia Anwar Shah. When subjected to cross-examination, he has admitted that in the revenue papers, the land was in the name of Gulab Khan but its usufruct used to be enjoyed by Sain Anwar Shah and Gulab Khan was a disciple of Sain Anwar Shah. He has also stated that Gulab Khan had given this land to Sain Anwar Shah and it was returned to him orally. He has also conceded the fact that Hashmat Ali had submitted a claim for verification which was not verified and it was verified by the Central Record Office by mentioning Takia Sain Anwar Shah in the verified claim.
7. Tufail Muhammad P.W.1 has narrated the facts as stated by Shaukat Ali A.W.3. He admitted it as correct that the land was shown in the revenue papers in the name of Takia Anwar Shah. He posed ignorance about the fact as to where the income of this land used to be spent. He has added that the claim submitted by Hashmat Ali was not verified but it was verified in the name of Takia Anwar Shah. Similar is the statement of Muhammad Aslam P.W.2. He happens to be the nephew of Hashmat Ali.
8. Muhammad Arif, District Khatib, Auqaf Department, Bahawalnagar, figured in the witness-box as D.W.1 who has deposed that the claim was verfied in the name of Takia Sain Anwar Shah and the Auqaf Department took possession of the same in 1976.
9. The appellants have submitted certain documents in support of their stand. Exh.A.1 goes to prove that the land in dispute had been dedicated to Takia Sain Anwar Shah but it was being managed by -Hashmat Ali. Exh.A.2 is the judgment of A.Langley, Collector Hoshiarpur, which shows that there was a dispute between Murad Ali and Hashmat Ali regarding the management of the property given to Takia Sain Anwar Shah aid Hashmat Ali was allowed to manage this property. This document clarifies that Hashmat All did not claim this property in his private capacity but he only sought its management. In Exh.A.3 the land of Mohan Lai, a non-Muslim, was allotted to Hashmat Ali and Muhammad Ali. Exh.A.4 is the copy of RL-II which shows that the claim was verified in the name of Takia Sain Anwar Shah after due investigation. Copy of mutation No.254 Exh.A.5 reveals that a part of the land was sold in favour of Muhammad Sarwar. Copies of Khasra Girdawari Exh.A.6 to Exh.A.10 indicate that this land was being cultivated by different persons. Exh.A.12 is the copy of Notification by means of which the Auqaf Department had assumed the management, control, administration and maintenance of the disputed land. Exh.A.13 is the copy of Register Haqdaran wherein Mst. Daulat Bibi and others have been entered as owners and Muhammad Rafiq as its cultivator.
10. The respondents also tendered in evidence certain documents which are material to the instant controversy. Exh.R.1 is the copy of the Fard Baddar which manifests that the name of Hashmat Ali and others were mentioned in RL-II by this correction, the words Hashamt Ali Mohtmim Takia Sain Anwar Shah" were inserted. Exh.R.2 is the copy of Register Haqdaran of Village Mona Kalan, District Hoshiarpur, for the year 1944-45. It shows that 13 Kanals and 7 Marlas of land being to Shamlat Deh and in the column of cultivation "Takla Sain Anwar All Shah managed by Sain Murud Shah" has been mentioned therein. Hashmat All son of Pir Bakhsh is stated to be Ghair Maurusi in Khatoni No. 1414 of Khewat No.282. In Khatoni Nos. 1120 and 1121, Hashmat Ali is entered as Ghair Maurusi and in the owner's column No.3, Takia Sain Anwar Shah has been mentioned. The same entry persists in Khatoni No.1122, Khewat No.196 which measures 5 Kanals and 2 Marlas. This document falsifies the stand of the petitioners-appellants that Hashmat Ali was the occupancy tenant of this land and he should have been treated as a full owner according to para 31 of the Rehabilitation Settlement Scheme. Exh.R.3 is the copy of Register Haqdaran but its entry has been corrected and Hashmat Ali has been entered as Mohtmim Takia Sain Anwar Shah therein. The pedigree table Exh.R.4 indicates that the land left in India by Gulab Khan belonged to Takia Sain Anwar Shah.
11. In section 2 of the Punjab Waqf Properties Ordinance, 1961, Waqf Property 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 is described in section 3 of the Mussalman Waqf for the time being claimable for himself by the person by whom the Waqf was created or by any members of his family or descendants. The explanation in the section provides that the property allotted in lieu or in exchange of Waqf property left in India shall be deemed to be Waqf property. In Mahomedan Law, Takia which is known as the resting place of saint can be the object of a valid endowment of Waqf. From the evidence on the file, it is apparent that the land in dispute had been permanently dedicated for a charitable purpose to Takia Sain Anwar Shah and it could not be alienated in favour of Gulab Khan again. But from the evidence, it transpires that Gulab Khan or their progeny had assumed, the management of this property on behalf of Takia Sain Anwar Shah and they were not the owners of this property. A part of this property has been alienated. In Ghulam Qutabuddin and 2 others v. Chief Administrator Auqaf, Punjab and another PLD 1981 Lah. 722 such a sale was held to be void and ineffective as the property was not shown to be the personal property of a Sajjadanashin.
12. The learned counsel for the appellants has referred to Syed Faiz Ali Shah v. Chief Administrator of Auqaf PLD 1982 Baghdad ul Jadid 15 and has contended that this property had never been dedicated to Takia Sain Anwar Shah and in this manner, no notification in respect thereof could be issued by the respondents. In the said precedent, it was not proved that the property had been dedicated for any religious or pious purpose. But in the instant case, it has been found that the property left in India had been dedicated for religious, pious and charitable purpose. I, therefore, see no merit in this appeal and dismiss the same with costs.