1. SHAFWR RAHMAN, J.-Leave to appeal was granted in the case to re-examine the voluminous documentary evidence ranging from the year 1856, to resolve the conflicting views of the learned Single Judge and the Letters Patent Bench, on important questions of law.
2. In the West Pakistan Gazette (Extraordinary) dated 2-1-1961 there appeared at pages 397 and 398 the following notification (reproduced in extenso)- "Office of the Chief Administrator of Auqaf, West Pakistan NOTIFICATION Dated, Lahore, the 30th December, 1960.
3. No. 3(3)-Auqaf-60.-I, A. H. Quraishi, C. S. P., Chief Administrator of Auqaf, West Pakistan, in exercise of the powers conferred on me by section 6 of the West Pakistan Waqf Properties Ordinance, 1959, hereby take over and assume the administration, control, management and maintenance of the Waqf properties attached to the Shrine of Hazrat Shah Sadiq Nihang Sahib in Village Shah Sadiq Nihang, Tebsil Shorkot District Jhang as described in the Schedule annexed hereto :- SCHEDULE
(1) Agricultural land measuring 1,760 acres situated in village Shah Sadiq Nihang, Tehsil Shorkot, District Jhang, bearing Khewat No. 1 and 1; 2 shares of Khewat Nos. 2 and 3 including Abadi Deh which contains the Shrine of Hazrat Shah Sadiq Nihang graveyard, Masjid, Langer-Khana, Bara- Dari, Hujras, Guest House under construction, Residential Bungalow, Flour Mill and Livestock Farm.
(2) Income from the box placed at the shrine and offerings and subscriptions made at the shrine.
(3) Agricultural land measuring 572 acres situated in village Qaim Bharwana, Tehsil Shorkot, District Jhang, bearing Khewat No. 71.
(4) Agricultural land measuring 135 acres situated in village Julla Bhawana, Tebsil Shorkot, District Jhang, bearing Khewat No. 44, including Shamlat Deh.
(5) Agricultural land measuring 192 acres situated in village Farid Mahmud Kathia, Tehsil Shorkot, District Jhang, bearing Khewat No. 108.
(6) Agricultural land measuring 2378 acres situated in village Kakuwala, Tehsil Shorkot, District Jhang, bearing No. 1.
(7) Agricultural land measuring 789 acres situated in village Dogar Malang, Tehsil Shorkot District Jhang, bearing Khewat No. 1.
(8) Agricultural land measuring 12 acres situated in village Kaluwala Tehsil Shorkot, District Jhang, bearing Khewat No. 19.
(9) Agricultural land measuring I acre in village Aputh Jajiana, Tehsil Shorkot, District Jhang.
(10) Agricultural land measuring 7 acres situated in Chak No. 496, Tehsil Shorkot, District Jhang.
(11) 1/2 share of Agricultural land measuring 494 Kanals situated in village Ghaman Mari, Tehsil Shorkot, District Jhang, bearing Khewat No. 33.
(12) Agricultural land measuring 23 acres in village Sadan Nekokara Tehsil Shorkot, District Jhang.
(13) Agricultutal land measuring 6 acres situated in village Kulachi Fuja Dhara, Tehsil Shorkot, District Jhang.
(14) 1/2 share of agricultural land measuring 50 Kanals and 2 Marlas situated in Kot Mirza, Tehsil Shorkot District Jhang bearing Kh-5.
(15) Agricultural land measuring I acre situated in village Maharam Sial, Tehsil Shorkot, District Jhang, bearing Khewat No. 51.
(16) 1/15th share of agricultural land measuring 22 Kanals situated in village Allah Yar Joyia, Tehsil Shorkot, District Jhang, bearing No. 53.
(17) Agricultural land measuring 396 acres situated in village Kot Diwan, Tehsil and District Jhang, bearing Khawat No. 147.
(18) 1/4th share of land measuring 22 Kanals and 5 Marlas situated in Civil Station Jhang bearing Khewat No. 186.
(19) Bara-Dari in an area of 1 Kanal and 16 Marlas situated in village Hasnana, Tehsil and District Jhang bearing Khewat No. 776.
(20) Agricultural land measuring 13 Kanals and 18 Marlas situated in village Qadriwala Chak Pucca Tehsil and District Jhang bearing Khewat Nos. 205, 206 and 207.
(21) Agricultural land measuring 7 acres situated in Chak No. 267, Tehsil Toba Tek Singh, District Lyallpur, bearing Khewat No. 267.
(22) Agricultural land measuring 28 acres situated in Chak No. 745, Tehsil Toba Tek Singh, District Lyallpur (full share).
(23) Agricultural land measuring 1002 Kanals and 12 Marlas situated in Chak No. 350, Tehsil Toba Tek Singh, District Lyallpur bearing Khewat No. 3.
4. A. H. Quraishi, Chief Administrator Auqaf, West Pakistan."
5. The appellants, Muhammad Khurshid and his four sons, filed in the Court of District Judge Jhang, a joint petition under section 7 of the West Pakistan Wakf Properties Ordinance, 1959 (hereinafter referred to as the Ordinance of 1959) claiming that excepting properties mentioned at Serial Nos. 2, 15 and 20 of the Notification, all others were their personal properties and not Waqf and the Notification in so far as it treated those properties as Waqf properties was `.`illegal, unjust and ultra vires of the Chief Administrator of Auqaf. Their claim was based on the following facts :- "(i) Nobody ever created the Waqf of these properties, nor they were Waqf by user and there are no beneficiaries of the Waqf alleged by the respondent.
(ii) The Chief Land Commissioner had by his order dated 17-5-1960 repelled the contention that the disputed property was, Waqf "had recognised the ownership of the appellants, ordered resumption of the excess area accordingly and" and distributed among the tenants in conformity with sections 16 and 19 of "Land Reforms Regulation and the appellant No. 1 was adjudged entitled to compensation therefor.
(iii) the properties mentioned at serial Nos. 9, 10, 21 and 23 in the notification were jointly owned by the appellants with their other relatives and this fact of joint ownership was altogether ignored.
(iv) The property mentioned at serial No. 22 of the notification was acquired by appellant No. 1 from the Government in 1945 in lieu of his service in the course of recruitment."
6. The respondent contested this petition and took up the following objections :- "(i) All the properties listed in the notification were Waqf properties.
(ii) The learned Chief Land Commissioner is not the competent Court to decide as to whether the property in dispute is a Waqf property or not and nor he has decided this issue.
(iii) The jointness of the properties and the interest of other relatives in it was denied."
7. The trial commenced with only the following two issues :--
(1) Whether the property detailed in the petition is not Waqf property?
(2) Relief.
8. At the conclusion of the trial, after hearing arguments in the case, the learned District Judge reframed the issues as hereunder- "(1) Whether petitioner No. 1, submitted LC-1 and LC-2, Forms as owner of the properties in dispute?
(2) Whether the Land Commissioners allowed petitioner No. 1, to retain only provisionally 36000 Units out of the property in dispute?
(3) Whether the excess area taken by the Land Commissioner from petitioner No. 1, was to be distributed among the tenants, if so, whether it has any effect on the application?
(4) Whether petitioner No. 1, was held entitled to compensation in lieu of excess area taken from him, if so, what is its effect?
(5) Whether the property in dispute is not Waqf?
(6) Whether the property in dispute is not Waqf by virtue of the order of the Land Commissioner, dated 17-5-1960, and the petitioner is full owner thereof?
(7) Whether the Chief Land Commissioner was competent to decide that the property in dispute was not Waqf and has he so decided it?
(8) Whether the impugned notification dated 30-12-1960 is ultra vires, null and void in view of the order of the Chief Land Commissioner dated 17-5-1960?
(9) Whether the properties mentioned in the Notification at Serial Nos. 9, 10, 21 and 23 are jointly owned by the petitioner with his relatives, if so;,,what is its effect?
(10) Whether the petitioner owns only 1/8th share in property No. 18, mentioned in the Notification, if so whether the respondent cannot assume 1/4th 9f it?
(11) Whether the property mentioned at serial No. 22, of the Notifica--tion is the self-acquitted property of petitioner No. 1?
(12) Whether petitioner No. 1, did not apply to file this application as next friend of minor petitioners Nos. 2 to 5, if so, what is its effect?
(13) Whether the petitioners are debarred from questioning the legality of issuing the Notification in dispute?
(14) Relief."
9. The District Judge, on the first four issues recorded a finding in the affirmative so far as the factual aspect was concerned but on the legal plane held that such adjudication by the Chief Land Commissioner, did not in any manner affect the powers of the respondent. All the properties listed in the Notification except those at serial Nos. 9, 10, 18, 21, 22 and 23 were held to be Waqf properties.
10. On these findings, the appellants were allowed relief in respect of these six properties. As regards the rest of the notified properties their claim was dismissed by the District Judge by his judgment dated 9-3-1968.
11. Only the appellants felt aggrieved by this judgment and they filed First Appeal in the High Court.
12. The learned Single Judge allowed their claim on the findings and the grounds appearing hereunder (reproduced from Letter Patent Appeal Judgment) :- "(a) That in view of the statutory presumption of truth arising under section 44 of the Punjab Land Revenue Act of 1887, full effect should be given to the entries appearing in the revenue records like the Mist-e-Bandobast, Misl-e-Haqiyat, Jamabandis, Shart Wajib-ul-Arz and the Shajra-e-Nasb etc., which consistently show the properties to be the personal and private properties of the Sajadahnashin for the time being, except for items Nos. 15 and 20 the Notification which are described as being attached to .The shrine;
(6) that there is no evidence of dedication of any of these properties either directly for purposes connected with the shrine of Hazrat Shah Sadiq Nihang, or for any other allied religious or charitable purpose; on the contrary, there is evidence of direct secular acquisi--tion of these properties by the various Sajadahnashins ;
(c) that the mere fact that these properties have devolved from Sajadah--nashin to Chela for twelve generations is not conclusive of the Waqf nature thereof, as the Faqir Jalalis constitute a distinct family with a special custom of its own in regard to succession or inheri--tance from Guru to Chela, more or less like certain religious sects, e.g. the Udasis, as prevailing among the Hindus ;
(d) that the successive Sajadahnashins have dealt with these properties as their own by making alienations by way of gifts, sales and mortgages, thus showing that they had absolute control over them;
(e) that there is no evidence of user of these properties from time immemorial as Waqf properties, nor is there any specific or cogent evidence to show that the income from these properties has been utilised, in any substantial measure for the purposes of the shrine; ( f ) that even where the land was described as Muafi for the Khanqah it did n9t mean that the corpus of the property was dedicated to the shrine, for the reason that the assignment was limited to land revenue;
(g) that the successive Sajadahnashins have been men of the world, hankering after and obtaining honorific positions of importance and status under the Governments of the day, thus showing that they were capable of acquiring property by their own exertions and for their own benefit;
(h) that apart from the conclusions emerging as a result of the detailed examination of the history of each item of property, the Chief Administrator was estopped from treating these properties as Waqf properties for the reason that on the 14th of March, 1952 an order (Exh. P. 118) was made by the Nazim-e-Auqaf under the Punjab Muslim Auqaf Survey Act (XXXVI of 1950) holding that the properties now in dispute were not Waqf properties and were, therefore, not to be registered as such under the aforesaid Act which, though repealed, continues to be operative in respect of any order made, or thing done, thereunder;
(i) that the Chief Administrator could not, in law, ignore the order made by the Chief Land Commissioner (Exh. P. 131) on the 17th of May, 1960 under Martial Law Regulation No. 64 holding that the properties in dispute were the personal properties of Faqir Muhammad Khurshid, unless and until the Chief Administrator had got the revenue entries corrected from a competent Court as permitted by the Chief Land Commissioner, and
(j) that paragraph 28-A added to Martial Law Regulation No. 64, on the 18th of October, 1961 with retrospective effect, and the Notifica--tion (Exh. R. 42) issued thereunder by the Land Commission on the 27th of March, 1962, did not make any difference in the matter, as the said Notification exempted from the operation of Martial Law Regulation No. 64 only such properties as were attached to the shrine of Hazrat Shah Sadiq Nihang, with the result that the question of the nature of these properties still remained subject to determination either by the Chief Land Commissioner or by a competent Court as directed by him."
13. On these findings, the learned Single Judge by his judgment dated 1-6-1970 held only the mosque and the shrine to be the Waqf properties and all the other properties were held to be non-Waqf properties. The appeal was allowed in these terms.
14. The Chief Administration of Auqaf filed a Letters Patent Appeal. The Letters Patent Bench first took note of the fact that property at Serial No. 8 had been deleted from the impugned Notification by the Chief Administrator in 1966. Besides, six properties, those at Serials Nos. 9, 10, 18, 21, 22 and 23 were no longer in dispute as the Chief Administrator had not filed appeal against the declaration granted by the learned District Judge in favour of the appellants before us. That appeal was, therefore, held confined to the thirteen items of property mentioned at serial Nos. 1 (minus the shrine and the mosque), 3 to 7, 11 to 14, 16, 17 and 19. - Certain preliminary objections raised at the hearing by the appellants were attended to first by the Letters Patent Bench. The first was that in view of the finality attaching to the decision in appeal under section 10 of the Ordinance, any further appeal under clause 10 of the Letters Patent was not competent. The next objection was that certain inadmissible documents were allowed to be brought on the record by the learned District Judge, and those should be excluded from consideration. Finally, the prayer made by the Chief Administrator (in C. M. 2016 of 1971) for bringing on record more documents as additional evidence before the Letters Patent Bench should be disallowed as "it has been made at a belated stage with the sole purpose of filing in the gaps in his evidence and not for the purpose of enabling the Court to pronounce judgment in this cause"
15. As regards the competency of the Letters Patent Appeal before it, the Appeal Bench after reviewing the precedents on the subject on the subcon--tinent came to the conclusion as hereunder : - "The long chain of authorities, mentioned above, leaves no doubt that the superior Courts in Pakistan have not subscribed to the view taken by the Supreme Court of India regarding the nature of an appeal under clause 10 of the Letters Patent. On the contrary, they have insisted that the appeal provided under the said clause is to be regarded as being merely in the nature of a special provision calculated to bring about the final determination of the matter by the High Court, and that the finality attaching to the appellate decision of the High Court under different provisions appearing in several statutes really refers to the final decision thus rendered by the Letters Patent Bench. We are not persuaded that any justification exists for us to depart from the accepted view in this regard."
16. The objection was taken to the admissibility of the following documents produced before the District Judge and admitted in evidence by him :-
(1) Exh. R-I.-Certified copy of the statement made by Faqir Muhammad Rashid in a civil suit "Zafar Ali v. Faqir Muhammad Rashid decided by Civil Judge Jhang on 7-11-1914.
(2) Exh. R-17.-Certified copy of will made by Faqir Muhammad Panah in favour of Faqir Muhammad Rashid.
(3) Exh. R-20.-Certified copy of order, dated the 18th March, 1905 made by the District Magistrate of Jhang in proceedings under section 145, Cr. P. C. Between one Muhammad Ali and Faqir Muhammad Rashid in respect of the Gaddi of Shah Sadiq Nihang.
(4) Exh. R-2l.-Certified copy of the current history of village Shah Sadiq Nihang filed in Case No. 3 decided on 28-7-1981 Karam Hussain v. Fagir Nusrat Ali etc. of village Chak Naurang Shah.
(5) Exh. R-22.-Certified copy of a copy of the remarks by the officer incharge of Settlement operations of the village of Shah Sadiq Nihang filed in the aforementioned case.
(6) Exh. R-25.-Certified copy of an application, dated 19th of January, 1950 submitted by Faqir Muhammad Khursheed in connection with the assessment of agricultural income-tax in which he drew a distinction between the Waqf property held by him as the Sajjadah-nashin and his private property held jointly with his brother Faqir Muhammad Sharif.
(7) Exh. R-26.--Certified copy of the statement made by Faqir Muhammad Xhursheed before the Tehsildar on 12th of May, 1950.
(8) Exh. R-27.-Certified copy of a registered will made by Faqir Muhammad Rashid on 12th of January, 1925.
(9) Exh. R-28.-Certified copy of a Mazhar Nama, dated 2nd November, 1881.
(10) Exh. R-29.-Certified copy of statement made by Faqir Nusrat Ali on the 20th June, 1891 in proceedings before Colonization Officer, Haveli Project.
17. The Letters Patent Bench, after examining these documents and the lave concerning their relevance and admissibility held that documents exhibited as R-20, R-21, R-22 and R-29 were inadmissible and the others admissible.
18. The third preliminary objection was overruled holding that the Letters Patent Bench was possessed of the power under Rule 27 of Order XLI Civil Procedure Code, that the mutations of purchases gifts and inheritance of the private property of Faqir Muhammad Rashid clearly fell within the ambit of the relevant clause of Rule 27 of Order XLI of the Civil Procedure Code. The finding recorded on this objection was "we consider that we would not be acting correctly if we fail to invoke the powers available to us under clause (b) aforesaid, for the purpose of admitting these documents as additional evidence in the case". An opportunity was, therefore, afforded to the Chief Administrator to lead additional evidence and in turn to the appellants to lead evidence in rebuttal.
19. In his reply dated 30-5-1964 Faqir Muhammad Khursheed denied having filed the aforesaid application or to have made that statement. As the original official record was not available, the certified copies were proved to the satisfaction of the Letters Patent Bench. The objection to the admissibility and weight of these admissions is not so much on account of want of proof as on the ground of non-compliance with section 145, Evidence Act. The requirement of section 145, Evidence Act has been authoritatively interpreted by this Court in Sikandar Hayat v. Fazal Karim (PLD 1971 SC 730approving the law laid down in Firm Malik Das Raj Faqir Chand (AIR 1946 Lah. 65in the following words :-- "Where a party has gone into the witness-box on the point in issue and in the witness-box has made a statement inconsistent with the! Admission or the statement made in the witness-box involves the denial of the previous admission, or runs counter to that admission, then the previous admission cannot be used as legal evidence in the case against that party unless the attention of the witness during cross-examination was drawn to that statement and he was con--fronted with the specific portions of that statement were sought to be used as admissions. Without complying with the procedure laid down in section 145, the admissions contained in the previous statement cannot be used as legal evidence against that party."
20. In this case the examination of witnesses had closed and even the arguments bad been heard when certain documents including these were sought to be put in as additional evidence. The stage of cross-examination was over. The attention of Faqir Khursheed, the maker of these admis- -sions, was drawn to it and he was asked to admit or deny it and in the process he had the fullest opportunity to explain it. He chose to deny it. The respondent proceeded to prove it. There was substantial compliance with the law. Its object was served. No prejudice to the maker of these admissions was caused by adoption of such a procedure. Besides, these admissions or such admissions outside the pleading, whether written, oral, implied from conduct or assumed, are not conclusive of the matter admitted. They only lend further strength and weight to the conclusion already and, independently of it, drawn, or estop the maker thereof from challenging its correctness.
21. As regards the entries of the Revenue record and the presumption attaching to it under section 44, mention has already been made of the decision of the Privy Council in Mst. Wallan's case and the procedure for preparation of the record. In the case of Makhdum Hasan Baksh v. Llahi Bakhsh and others ((1913) 48 P R 27the Privy Council held that the entries of the Settlement Record showing "Ghair Mumkin Qabristan" in the possession of Mohammadans and owned by Makhdum Hasan Bakbsh must be presumed to be true under section 44 of the Punjab Land Revenue Act and that in it Makhdum Hasan Baksh was properly entered as owner, he being trustee and custodian of the shrine of the Saint Mai Pak Daman, and being or claiming to be the recognized head of the Mohammadan community in Multan, but that he had no private rights of ownership over any part of the graveyard. This was followed in Miran Baksh and another v. Ghulam Nabi (AIR 1933 Lah.
22. 725in the words that follow :- "The mare fact that in the Revenue Records the names of the Gaddi--nashins have been shown in the column of `owner' cannot be attached much significance. It must be remembered that the fact that the incumbent is only a `trustee' and not an owner in the true sense of the terms is not ordinarily of importance for the purposes of the Revenue Records and it is not unusual to find such entries in the case of persons who are mere custodians or trustees."
23. In the case of Raghunath Das AIR 1934 Lah. 449 the rationale for such a principle of interpretation was provided in the following words- "At page 143 of the paper book there is an extract from the Khewat Kbatauni papers attached to the Settlement Record of 1884 relating to Mauza Pur Miran. This relates to the second regular settlement and the name of Bhagwan Das is undoubtedly entered in the column of owner. But this entry, having regard to the history of the institution as disclosed by the evidence on the record is not of much importance. The Revenue Authorities can only function through a human agency. They cannot enter into any transaction with a legal entity like an idol installed in a Thakardwara. The name of the Mahant or trustee is therefore, generally entered in the column of owner, so that the Revenue Authorities may have dealings with him in all those matters which concern the Thakard-- wara or the religious institution in question."
24. Besides, the subtle distinction indicated by the appellant himself in his admissions, reproduced above about the two types of the entries, suggests that consistently with the existence of such a Wakf the entries in the ownership column can be understood and explained as that of a mere trustee.
25. The previous litigation over the property referred to for drawing support for the case of the appellant are proceedings on applications filed under section 92 of the Civil Procedure Code. In the year 1931, it appears that Faqir Muhammad Riaz Hussain and 3 others had filed an application before the Deputy Commissioner, Jhang, under section 92 of the Civil Procedure Code seeking permission to bring a suit for the removal of Faqir Muhammad Rashid as Gaddinashin of the shrine of Shah Sadiq Nihang. The Collector on this application passed the following order on 21-10-1931-- "There is nothing on the record to show that the shrine constitutes an express or constructive trust for a religious or charitable purpose, that the respondent leads an immoral life or that he has been guilty of waste and extravagance matrimony among the Mussalmans is a sacred institution, which is enjoined by the Prophet of Islam for every Muslim who can afford to marry. Any custom placing a ban on the marriage of the custodian for the time being is improper and immoral whereas be the case of a religious institution of Muslims. The fact that the. Respondent has married does not involve his removal. In these circumstances I dismiss the applica--tion."
26. Next, in the year 1937 Allah Bakhsh and Allah Ditta filed an applica--tion under section 92 of the C. P.
27. C. Against Mian Muhammad Khursheed. This application was entrusted to one Malik Abdul Quddus Janjua whose report on the subject has been exhibited as Exh. P. 106 and is dated 2-6-1937. The report held that it was not shown that the Gaddi was Wakf or that the petitioners had a locus standi to make any such application.
28. Apart from the fact that such report or refusal of permission does not by itself conclusively prove the fact or bar subsequent proceedings by a statutory functionary such a plea goes against the claim of the appellants themselves. Their case is that in fact some of the items of the property, though not all, are public Wakf by user. These adjudica--tions on the other hand hold that no part of the property not even the Khanqah and building appurtenant to it is Wakf by user. This evidence was sought to be utilized to show that the revenue record has been interpreted and, understood in the past by those who were entrusted with the duties of preparing and implementing it more in favour of the claim of the appellants than in favour of the claim of the respondents. The Sajjadahnashins were taken to be the full owners of all the property and that according to the learned counsel for the appellants, was rightly done.
29. The other such evidence comprises the record prepared at the settle--ment or in acquisition proceedings or adjudication between tenant and the landlord. Exhibit P. 119 prepared on 4-2-1904 deals with compensa--tion for land acquired for Farid Mahmud Minor Dhaular Rajbaha land on two wells was utilized and all of it was taken to be the ownership of Fakir Nusrat Ali and he was held entitled to the compensation for it which was at Rs. 250.6.3.
30. The third is a report of the Extra-Assistant Settlement Officer dated 2-3-1927 whereby a recommendation was made to the Settlement Officer for enhancing by 3 % on the previous average Jama. In the report or recommendation it was stated that the land is owned exclusively by one landlord with the exception of a little portion. This according to the learned counsel has reference to the Sajjadahnashin and he was treated as an owner.
31. There is an appellate order (Exh. P. 108) by which the attestation of 10a mutation by Chela Muhammad Rashid by registered deed was. Challenged on the ground that he was not the owner and could not alienate. The Collector rejected the appeal observing that he was the owner of the property so recorded. The appellant therein was referred to the Civil Court if he disputed the entries of the Revenue record.
32. Finally, there is a proceeding for the ejectment of a tenant instituted by Faqir Muhammad Khursheed, appellant, and the order passed in it (Exh. P. 43) shows that tenant pleaded Wakf and absence of relationship of landlord and tenant. The Revenue Court held him to be owner and ordered his eviction from major portion of the land though not from the whole of it.
33. These orders have a limited value and do not in any way control or foreclose the determination of the questions of title raised on a petition under section 7 of the Ordinance 1961 before a forum having exclusive' and final jurisdiction in the matter.
34. Having considered all aspects of the case, as argued before us, we find no merit in the appeal, which is dismissed leaving the parties, in the circumstances of the case, to their own costs.