This first Appeal under section 8 of the Waqf Properties Ordinance, is directed against the order of the learned District Judge, Bahawalpur, dated 11-3-1972 passed on an application presented before him by the present appellants under section 7 of the Waqf Property Ordinance, 1961.
2. Facts briefly stated arc that the appellants, displaced persons from Alwar Estate (India) were allotted land in lieu of the land abandoned by them there, at Khata No.100 of R.L.II (Ex.P 1) in village Baqirpur tehsil and district Bahawalpur. This comprises of Killa Nos.17, 24, 25 of Block No.180/6; 19, 20, 21, 22 of Block No.180/10, 4, 5, 6/A of Block No.180/7 and 1, 2, 9 of Block No.180/11, measuring 95 Kanals 16 Marlas.
3. Chief Administrator Auqaf Punjab, by Notification No.3(14)-Auqaf/70, dated 26th December, 1970 took over the land in dispute and assumed its administrative control, treating it as waqf property.
Appellants application under a section 7 of the Ordinance has been rejected by the learned District Judge, Bahawalpur by his order dated 11-3-1972. Hence, this appeal.
4. Learned counsel relying on the entry in column No.2 of Register RL-II, presses his claim only in respect of one-half of the land in dispute. The entry reads thus:-- It is argued that only one-half of the land in dispute was attached to the-- Takia situate in the village and remaining one-half was owned by the appellants' predecessors.
5. Entries in RL-11 shows that the share of Gainda was mutated, in the first instance, vide Mutation No.132 in favour of Maula Bakhsh and Pir Bakhsh and then vide Mutation No.766 Maula Bakhsh's share was mutated in favour of Manik A.I appellant and lastly vide Mutation No.767 share of Pir Bakhsh was mutated in favour of Muhammad Sharif and Rehmat A.I appellants. Reference is also made to the Land Record Manual, Para 7.41 Chapter VII, Clause (4) sub-clause (11). This provides that in a State where a common Shamlat land exists, the owner who has no share in common land should be shown as 'Malik Qabaza' and the person who has no land but has right in the common land should be shown as "right holder in common land" haq dar shamlat " as elicit below:-
6. It is thus obvious that Maula Bakhsh and Pir Bakhsh were owners of one-half of the land although they had no share in Shamlat Deh. Learned District Judge, it appears, has misread this entry. This appeal, therefore, succeeds to the extent that one-half share of the property abandoned by Maula Bakhsh and Pir Bakhsh, was not waqf property in India and therefore, the allotment obtained in lieu thereof, could not be treated as waqf property in Pakistan. The result is that the notification impugned is set aside to the extent that one-half of the kind covered by the notification shall stand excluded from the operation of the notification and be treated as personal property of the appellants as successors of Maula Bakhsh and Pir Bakhsh. The respondents while releasing one- half of the land, subject-matter of the notification, will give due regard to the choice of the appellants.
The respondent to bear one-half of the costs of this appeal.
A.A./M-1670/L