This appeal is directed against order dated 7-12-1987 passed by learned District Judge, Sheikhupura dismissing application of the appellants under section 7 of Waqf Ordinance XXVIII of 1961.
2. The facts giving "rise to this appeal in brief are that through notification printed in the official gazette West Pakistan, Lahore on 11-4-1970, the Chief Administrator Auqaf took over and assumed the administration, control, management and maintenance of land in dispute in mouza Kot Pindidas, Tehsil Ferozewala District Sheikhupura treating it to be waqf property having been allotted under the Displaced Persons Land Settlement Act in lieu of property left in India which was allegedly dedicated to Khanqah Shah Zaman. The land in dispute is measuring 215 kanals 13 marlas comprised khewat No.065, Khutuni Nos. 2360 and 2361 situated in village Kot Pindidas Tehsil Ferozewala, District Sheikhupura as mentioned in Register Haqdaran for the years 1962-1963.
3. The appellants feeling aggrieved from the said notification and action of the Chief Administrator Auqaf treating the said land as waqf property filed a writ petition No.067/1970 in this Court which was ordered to be heard alongwith other connected writ petitions which was subsequently dismissed on 17-3-1979 on the ground that the appellants had more equitable and beneficial remedy to approach the District Judge, under the Ordinance. Consequently, the appellants moved the learned District Judge by making an application under Auqaf Ordinance for a declaration that the land in dispute was not waqf property and that they were in possession thereof as owners and were entitled to derive benefit therefrom. This was dismissed by the learned District Judge by order dated 5-6-1979 holding that the same was barred by time. The appellants challenged the said order by filing appeal No.311 of 1979 in this Court which was also dismissed by order dated 20-12- 1980. The matter was taken to the Supreme Court through C.P.S.L.A. No.177/1981 which was converted into an appeal and the abovementioned two orders were set aside through judgment dated 21-3-1981 and the case remanded to the Court of District Judge, Sheikhupura for framing an additional issue on the point of limitation and for proceeding further in accordance with law.
4. The said petition was contested by the respondents by filing written reply in which the plea raised by the appellants that the property was not waqf property was disputed. On the pleadings of the parties the learned District Judge, framed the following issues:-
(1) Whether the application is within limitation? OPP
(2) Whether the property in dispute is not waqf property? O.P.P.
(3) Relief.
5. In support of his case, the appellants, examined Mushtaq Ahmad son of Karim Bakhsh as P.W.1, Muhammad Munir son of Mehdi Hassan as P.W.2, A.I Hassan son of Hubb A.I as P.W.3, Muhammad Hafeez son of Nizaffi Din as P.W.4, Dhamali son of Chiragh A.I Shah as P.W.5, Abdul Ghafoor son of Allay Daya as P.W.6 and Muhammad Hanif one of the appellants examined himself as P.W.7. In addition to this oral evidence the appellants also produced documentary evidence consisting of copy of special jamabandi as Ext. Pl, copy of Shajranasab as Exh. P2, copy of judgment of Supreme Court as Exh. P3, copy of judgment of Lahore High Court as Ext.P4, copy of Register Haqdaran as Ext.P5, copy of order dated 28-2-1981 as Ext.P6 and copy of khasra girdawari as Ext.P7.
6. As against this, the respondents examined Ghulam Gain-ul-Abidin, Qano6ngo Auqaf Halqa Markazi Lahore as R.W.l. Respondents also produced documentary evidence such as copy of notification dated 11-4-1970 as Exh. RI, copy of R.L.II as Exh. R.2, copy of jamabandi of village Kot Pindidas for the year 1962-1963 as Exh. R3 and notification dated 15-1-1970 as Ext.R4. Muhammad Hanif one of the appellants examined himself again as P.W.7 in rebuttal. Ghulam Muhammad Patwari Halqa Kot Pindidas and Muhammad Yousaf office Qanoongo, Ferozewala were examined as C.W.1 and C.W.2 respectively, as Court witnesses. After the statements of these two Court witnesses had been recorded, learned counsel for the respondents Mr: M.A. Hakim, Advocate made a statement that copies from the Central Record Room could not be supplied as per instructions of the Officer Incharge of the record room, therefore, the case may be decided on the evidence already brought on the record. The learned District Judge, then recorded statement of Mr. Kaleem Ahmad Khurshid, learned counsel for the appellants who also confirmed that the copies of the documents from the Central Record Office could not be supplied and since the record had already been produced therefore, the case may be decided on its basis. The learned District Judge directed Shahbaz Ashraf Cheema, Tehsildar Sheikhupura to inspect the record available in the Central Record Room and submit his report. The said Tehsildar inspected the record in the Central Record Room and submitted his report which is Exh CW3/1. He was also examined by the Court as C.W.3. He produced copy of jamabandi as Exh.CW3/2, copy of Shajranasab Exhs. CW3/3 and C.W.3/6, copy of Register Haqdaran Exh: CW3/4, copy of jamabandi Exh. CW3/5, copy of Register Haqdaran as Exh. CW3/7. According to him all these copies were correct and duly certified. ,
7. After considering the aforementioned evidence produced by the parties and the Court witnesses the learned District Judge, answered issue No.1 against the appellants. Under issue No.2 it has been held on the basis of copy of R.L.11. Ext.R/2, copy of Register Haqdaran Ext.R/3 for the year 1962-1963 and copy of Register Haqdaran for the year 1906-1967 (not produced in evidence) and copy of khasra girdawari Ext.17, that the land in dispute was a waqf property.
8. I have examined the record with the assistance of learned counsel for the appellants who has taken me through the evidence produced by the parties and the evidence of Court witnesses. It was not disputed nor it could be disputed by learned counsel for the respondents that the land in dispute was allotted under the Settlement Laws in lieu of land left in India. This being so, it is clear that the entitlement of a claimant for allotment of lands under the Settlement Laws was to' be determined on the basis of records of rights received from India which arc in the custody of Central Record Room. The basis for making allotment of lands to a claimant, is this record and the claims filed under the law were to be verified by the concerned authorities with reference to the said record. The entries in the R.L.II and on the basis of entries in R.L.II, the entries in the revenue records are not themselves judicial determination of the authorities about the nature, extent of rights which he was holding in the land in India against which the land in Pakistan was being allotted to him. In order to decide as to what was the nature and extent of rights of a claimant in the-land in India the Court or any authority before whom any dispute was raised had to decide the same with reference to the record with the Central Record Office received' from India. Shahbaz Ashraf Cheema, Tehsildar, Sheikhupura C.W.3 on the direction of the Court inspected the record in the Central Record Office, the copies of which have also been placed on the record. Ext.C.W.3/7 is copy of register Haqdaran Mouza Peru, Tehsil Ghanoor, District Patyala regarding land which Rahim Bakhsh son of Chotay Khan deceased predecessor-in-interest of the appellants was owning in which he has been recorded as owner thereof. There is no entry in this record of any alleged waqf having been created by him about this land in favour of any Khanqah. In this document, the land owned by Rahim Bakhsh deceased comprised khewat/khutuni No.68. Ext.C.W 3 and C.W.3/2 are also certified copies of register haqdaran in which khanqah Pir Badu Shah has been mentioned and in these documents land comprising khewat/khutuni No.69 has been recorded to have been attached to the said khanqah. It is manifest from these two documents that -so far as land owned by Rahim Bakhsh in khewat No.68 was concerned it was not attached to any khanqah or to the said khanqah in particular. Further in these later two documents it has been recorded that the said land in khewat\ No.69 attached with the said khanqah was being administered by one Muhammad Jalal Shah son of Muhammad Ramzan. Comparison of entries of register Haqdaran Ext.C.W3/7 with these two documents i.e. Ext.C.W3/4 and C.W3/2 clearly establishes that no land owned by Rahim Bakhsh was waqf and attached to any khanqah. Copy of Jamabandi relating to Mouza Peru District Patyala regarding land owned by Rehim Bakhsh deceased also produced as C.W3/5 in which Rahim Bakhsh was recorded its owner and there is no mention of any wakf having been created. The appellants also produced copy of Jamabandi for the year 1946-47 as Ext.P1 in which the land in India has been recorded to be in the ownership of Rehim Bakhsh. Apart from this documentary evidence the appellants also produced over-whelming evidence consisting of witnesses from P.W.1 to P.W.7 who have deposed with one voice that the land owned by Rahim Bakhsh was not attached to any khanqah which means that it was proved by them that the same was not a waqf property and was being dealt with and-enjoyed by Rahim Bakhsh as its owner.
9. The learned District Judge discarded the aforementioned authentic, reliable documentary evidence of unimpeachable character by observing that there was a certificate on the certified copies that the record received from India by the Central Record Room was doubtful. I am afraid this certificate could not have been given any weight, rather taken note of. There was no judicial determination of any competent authority under the law that the said record was not authentic or was doubtful. If that was so, then the very allotment of land in favour of the appellants on the basis of the said record could not have been made. It was not a case of respondents that the land was allotted to the appellants which could not at all have been made. The claim filed by the appellants can safely be presumed to have been verified on the basis of the said record and thereafter allotment of land in dispute made in favour of the appellants. There was no rebuttal to this documentary as well as oral evidence produced by the appellants therefore they succeeded in discharging the onus which according to learned District Judge was on them to prove that the land was not a waqf property. If this documentary evidence was not authentic or was doubtful as has been illegally assumed, it was for the respondents to produce other evidence to establish that the land in India owned by Rahim Bakhsh was a waqf property and unless that was clearly established the land allotted to the appellants in lieu thereof could not have been held to be waqf property. It is also significant that the record from India in Central- Record Office also contained shajra-nasabs the copies of which were produced by C.W.3 as Ext.C.W.3/3 and Ext.C.W3/6 which is also an evidence strengthening the case of the appellants that Rahim Bakhsh their predecessor-in- interest was owner of the land.
10. As has been discussed above, the entries in the R.L-II and for that matter any entries made in the revenue record by the revenue authorities in Pakistan on the basis of entries of R.L.II are not independently an evidence of what has been recorded therein as the rights of the claimant arc those which are derived from the record of rights received from India. The learned District Judge was therefore, not justified under the law to give preference to entries in R.L.II as also the entires in Register Haqdaran for the years 1962-1963, 1966-1967 and khasra girdawaries, once the direct documentary evidence from the Central Record Room was produced and the presumption of correctness, if any, as observed by learned District Judge, attached to entries in R.L.II and other revenue record on the basis of which it has been held that the land was waqf stood sufficiently discharged and dislodged. The real source of the rights claimed by the appellants for allotment of land was the said record of the Central Record Room. There is nothing in evidence of C.W.3 that when he inspected the original record in the Central Record Room, the same was of doubtful character. The appellants have brought sufficient material on record in the cross-examination of Muhammad Yousaf C.W.2 office Qanoongo who produced R.L.II register that the same was tampered with and an entry was unauthorisedly made above the name of the allottee in column No.2 adding words `khanqah Ba-Ahtamam'. A clear allegation was made in the petition by the appellants that revenue record had been tampered with and with mala fide intention the words khanqah Shah Zaman were added in the column of ownership alongwith the name of the allottees.
The copy of R.L.II Exh. R.2 reveals that a mutation No.68 was sanctioned in favour of appellants and it appears that at that time the entries regarding Khanqah Shah Zaman in the ownership column had not been added and had it been shown to be waqf property at that time there was no question of sanctioning mutation of inheritance in favour of the appellants because in that case the revenue authority would have declined to pass such a mutation of inheritance as there could not have been any inheritance of waqf property. It appears that the tampering was made later on.
The findings of the learned District Judge that the appellants did not take any steps for getting the entries in the revenue record corrected is devoid of any substance. The appellants were not under an obligation to keep on inspecting the revenue records. The entries in the said revenue records in view of the above findings that in India the land owned by Rahim Bakhsh was never waqf property were void, ab initio and the rights in the land stood conferred on the appellants as owners thereof as they had full ownership rights in the land in India.
11. Learned District Judge has also observed that there was some confusion about number of claim forms submitted by the appellants from which an adverse presumption appears to have been raised against the' appellants. This is also not justified as it was not the case of any of the parties that the land was allotted in lieu of land which was not at all left by the claimants in India. The statement of Ghulam Muhammad Patwari Halqa C.W.1 has not been properly scrutinized in which he stated that he had searched the record and found that Claims Nos.1893 and 1983 with Fard Haqqiat had not been received by him when he took the charge on 5-11-1985. He also stated that he had checked the record and both the said claim forms had not been traced out. From this statement it could not have been assumed that there was no claim filed by the appellants or that it was doubtful. The custody of the record of claims was with the authorities and it was for them to keep it in safe custody and for its loss the appellants could not have been made to suffer. Apart from what has been stated above, the appellants could not be expected to have excess to the said original record so as to require them to get the wrong entries corrected.
12. Under section 6 of Ordinance XXVIII of 1961 the power has been conferred to take over a property which is waqf It was a concerned precedent I from exercising that power by the concerned authority, that it should first have satisfied itself on consideration of the relevant record that it was in fact a waqf., property in respect of which he was to exercise the powers. This exercise by the authority concerned, in my view was imperative as the authority could not act mechanically and blindly in taking over the administration and control of the property unless the property was waqf.
This requirement is implied in the power conferred by the Ordinance. It appears and I am justified in holding so because there is no evidence, that the Chief Administrator Auqaf who issued the impugned notification did not undertake any such exercise. Keeping in view the nature of the case in hand this preliminary inquiry before exercising the powers' could only be made with reference to the record with the Central Record Office, regarding land in India and could not have been exercised blindly on the basis of entry in R.L.II and revenue records in Pakistan which as has been held were not in themselves a proof that the land was waqf. The Chief Administrator, Auqaf, can safely be held to have acted not only arbitrarily but also capriciously. The impugned notification is colourable exercise of his powers under section 6 of the Ordinance as such ab initio void and nullity in the eye of law.
13. In view of the foregoing findings the findings of learned District Judge on issue No.2 are not sustainable. In deciding issue No.2, learned District Judge not only grossly misconstrued and misread the evidence on the record but also illegally kept out of consideration the documentary evidence from Central Record Office. The findings thus recorded by him on issue No.2 are hereby reversed and the said issue is decided in favour of the appellants.
14. Now I turn to the question of limitation. As has been held above, the very act of Chief Administrator Auqaf, of taking over the administration, control etc of the land in dispute and issuance of impugned notification for the said purpose is void ab initio therefore limitation could not operate as impediment in the way of striking it down. The rule is firmly settled that if an act or order is void, ab initio and nullity, the principles of limitation are not applicable. Reference may be made to judgments reported as Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCM R 962, Allah Dino v. Fakir Muhammad and another PLD 1969 SC 582 and Malik Khawaja Muhammad and 24 others v. Marduman Bobar Kahol and 29 others 1987 SCMR 154. In this view of the matter, issue No.1 could not have been answered in favour of the respondents. Apart from that the learned District Judge, assumed that the limitation for filing petition under the Ordinance was to commence from the date of printing of the impugned notification in the official gazette i.e. On 11-4- 1970. On the said basis he after excluding the time from 29-4-1970 to 17-3-1979 spent by the appellants in prosecution of writ petition held that the petition should have been moved on or before 2-4-1979. The fallacy of this method of calculation of limitation period consisted in assuming that the date of printing of Notification in the official gazette was to be the starting point of period of limitation. This finding is directly to conflict with the law declared by Supreme Court in judgment reported as Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab PLD 1977 SC 639 interpreting the relevant provision of the West Pakistan Waqf Property Ordinance XXVIII of 1969. It was held that the limitation in such a case was not to start from the date of printing of notification in the official gazette but it was to start when the notification was brought to the notice of general public by normal mode, that is to say after printing, it must be passed on to sale depot and displayed prominently at suitable public places. In this case it was held that the notification contained in the gazette dated 30-9-1969 copies of which were delivered to Book Depot in printing press on 23-10-1969 as such the period of limitation started running from 23-10-1969 and not on 30-9-1969. It has also been held that mere printing of notification in the official gazette was not sufficient but it was required to be served on the person in possession of property declared as `Waqf in order to apply strictly the provisions of Limitation Act. There is no evidence produced by the respondents that all these requirements were complied with. On the other hand, the cross- examination conducted on one of the appellants namely Muhammad Hanif when he appeared as P.W.7 shows as if, the case of the respondents was that the land was being administered by the Auqaf Department since 1952 and that the appellants had been taking part in the auction of rights of lease in the land whereas no such evidence was produced. It is in the evidence of P.W.7 Muhammad Hanif, that the appellants have throughout been in possession and paying the land revenue etc and denied the suggestion that any official of Auqaf Department ever went at the spot in the year 1952 and recorded statements of the appellants. He deposed that in year 1970 when the Auqaf officials were auctioning the land they came to know and after 2/3, days of knowledge they moved writ petition in the High Court. The record of the writ petition No. 667 of 1970 is available which shows that the same was filed on 29-4-1970 and was ordered to be heard alongwith other writ petition No.1617 of 1969 which stood admitted on similar points. There is no order separately recorded on the record of this writ petition as to the date on which the same was dismissed. The case of the appellants was that they did not come to know about the dismissal of the said writ petition and on coming to know of its disposal, on 2-5-1979 they made an application for obtaining certified copy of the judgment. According to certified copy, an application was made on 3-5-1979 and the copy was delivered on 8-5-1979. He also deposed that having consulted the Advocates in order to obtain legal opinion the petition was moved on 28-5-1979. In view of the judgment reported in PLD 1977 SC 639 referred above the respondents having not proved that copy of impugned notification was served on the appellants being persons in possession of the property and as to on which date the same was made available to sale depot, it could not be pleaded on their behalf that the petition was barred by time merely because the appellants moved a writ petition after gaining knowledge otherwise that Auqaf Department was auctioning the property. It is well established law by now, that if law requires an act to be done in a particular manner, that must be done in that manner and doing of it in any manner contrary to the manner, prescribed would be illegal. The learned District Judge, while deciding issue No.1 about limitation misapprehended this important aspect of the case. In these circumstances, the findings of learned District Judge on issue No.1 are also not sustainable in law. The finding on this issue is also reversed and it is held that the petition could not have been thrown out as barred by time. The issue No.1 is answered in favour of the appellants.
15. The upshot of the above discussion is that this appeal succeeds. It is accepted. The impugned order dated 7-12-1987 passed by learned District Judge, Sheikhupura is hereby set aside. The petition moved by the appellants is accepted with costs and it is declared that the land in dispute is not and was never a waqf property.
H.B.T./M-1268/L Appeal accepted