ABAID ULLAH KHAN, J.,--This is appeal against the judgment of the learned District Judge, Lahore, dated the 3rd April, 1973, dismissing the appellants' petition under section 7 of the West Pakistan Waqf Properties Ordinance, 1959 (XXI of 1959), seeking a declaration that the properties, whose administration, control, management and maintenance had been taken over and assumed by the Administrator of Waqfs, West Pakistan, the predecessor in office of the respondent, the Chief Administrator of Auqaf, Punjab, on the assumption that they were attached to the shrine of Hazrat Syed Shah Muhammad Ghaus Sahib Rahmatullah Aleih and constituted waqf, were not waqf properties or in the alternative were waqf properties within the limits and subject to rights of the appellants as detailed in their petition.
2. The mausoleum of the celebrated Saint, Hazrat Syed Shah Muhammad Ghaus Sahib Rahmatullah Aleih (hereinafter referred to as the Saint), is situated in the garden between Delhi and Akbari Gates of Lahore City and abuts the Circular Road. Around the tomb of the Saint are graves of his descendants, disciples and devotees. Besides the tomb there is a mosque and graveyard. Thirteen houses and seventeen shops are on the premises of the shrine.
3. As is borne out by books on history the Saint was a great traveler and a man of vast learning and scholarly attainments. In piety, virtue, beneficence and learning he had no equal in the country in the age he lived. For the later years of his earthly life he settled in Lahore and conferred great benefits on the people by his learning and piety. He started a big educational institution where students from far and wide gathered to seek instructions on religious affairs. He was a religious preceptor and was held in very high esteem and great veneration by all classes of people. He was a distinguished scholar and was author of many books on theology and religion. His Risala-i-Ghausia, exegesis of collection of Ahadis by Imam Bokhari and Qasida Ghausia are still regarded as books of outstanding merit. Many Karamaat are attributed to him. Through his preachings a large number of people embraced Islam. His shrine is much respected and is visited by the pilgrims who come to seek grace and benediction. People entertain respect out of sentimental reverence for the appellants as well because they happen to be the lineal descendants of the Saint. The following account touching the Saint and his mausoleum as also his Karamaat long after his wordly death appears in Syed Muhammad Latif's History of Lahore, a book of undoubted authenticity:- "Shah Mahomed Ghaus, the son of Sayed Hasan, was a native of Peshawar, who settled in Lahore during the reign of Emperor Mahomed Shah. The mausoleum of his father at Peshawar is much respected by the people. He had traveled through the whole of India, and, after settling in Lahore, attracted a great number of followers. The memory of this saint, as a lineal descendant of Hazrat Ghaus-ul-Azam Piran-i-Pir Dastgir, is held in great esteem by the Mahomedans from Delhi to Peshawar. Where the tomb of the saint now is, there existed, in the time of Aurangzeb, the spacious house of Fidai Khan, His Majesty's foster --brother, the builder of the Badshahi Mosque, opposite the fort. The Risala-i-Ghausia, by Shah Mahomed Ghaus, in which he has written an account of the saint Mian Mir and other holy men, is a work of great merit. The following account of the miraculous power of this saint is narrated by the people of Lahore, and has been recorded by both Moulvi Nur Ahmad Chishti and Mufti Ghulam Sarwar in their respective works. It is said that Kanwar Naunihal Singh, on coming to power, ordered a wholesale clearance of the suburbs of the city.
M. Allard was entrusted with the duty, and every house or building around the city walls had, in pursuance of the orders passed, to be demolished. The work of clearance was commenced in earnest, and many buildings were destroyed. According to the plan adopted, the shrine of Mahomed Ghaus was also to be leveled with the ground. The Mahomedan population of Lahore felt the greatest anxiety on the subject, but no heed was paid to their earnest appeals to the Sikh Court. It happened that, during the course of the night the morning of which was to witness the demolition of the shrine, Kharak Singh died, and, as his son, Naunihal Singh, was returning, after performing the father's funeral ceremonies, from the river side, he, too, met a violent death through his head being smashed by the accidental fall of a portion of the ponderous gate of the Hazuri Bagh upon it. Mian Udham Singh, his companion, son of Raja Gulab Singh, was also crushed to death at the same time by the same accident. The sudden death of the would be destroyer at such a moment saved the shrine from destruction, and the people attributed the accident to the curse of the Saint, for, according to the belief of the Mahomedans, holy men are ever alive. They are informed in their holy scriptures:- "Verily, the friends of God never die, but they are ever living, though people cannot perceive them."
Shah Mahomed Ghaus died at Lahore towards the close of 1152 A.H. (1739 A.D.) and a large fair is held at his tomb on the day of his anniversary."
4. The descendants of the Saint, right down to the appellants, had all along been in charge of and managing the affairs of the shrine as also of the landed properties dedicated to the shrine till the 26th March, 1960, when the Administrator of Waqfs, West Pakistan, in exercise of the powers conferred on him by Section 6 of the West Pakistan Waqf Properties Ordinance, 1959 (XXI of 1959), vide notification No.1674- Auqaf-60, as modified by subsequent Notification No.6787-Auqaf-60, dated 18th August, 1960, took over and assumed the administration, control, management and maintenance of the waqf properties attached to the shrine as described below:-
(a) City of Lahore Corporation, Property N'o.H/1466, containing shrine of Hazrat Shah Muhammad Ghaus Sahib, Graveyard, Mosque, 13 houses and 17 shops.
(b) Income from the box at the said Shrine and offerings and subscriptions made to the shrine.
(c) Agricultural land measuring 229 kanals 16 marlas at Tajpura, Lahore City, bearing Khewat No.95, Khasras Nos.l to 19, 456, 467 to 470, 485.
(d) 3/4th share of the agricultural land measuring 2 kanals 15 marlas at Tajpura, Lahore City, bearing Khewat No.96, Khasras Nos.54, 56, 58, 59, 64, 65 and 69.
(e) Agricultural land measuring 3 marlas at Tajpura, Lahore City, bearing Khewat No.98/222, Khasra No.461.
5. On the 22nd April, 1960, the appellants moved before the learned District Court, Lahore, petition under section 7 of the Ordinance for a declaration that the above-mentioned properties were not waqf properties or in the alternative they were waqf properties within the limits and subject to the rights set out in the petition. The appellants averred that the estate, of which the tomb of the Saint formed a part, belonged to them and had been conveniently divided into ten pattis, each pattis being shared by a separate family. The appellants, belonging to ten different branches of the descendants of the Saint, had formed themselves into ten groups for the purpose of claiming ownership of the properties in dispute taken over by the Administrator of Waqfs. They asserted that property No. H/1466, comprising the shrine, graveyard, mosque, thirteen houses and seventeen shops, belonged to them personally as direct descendants of the Saint. They averred that the ihata measuring about 7 kanals in area, in which the shrine was situate, was the personal property of Hazrat Syed Shah Muhammad Ghaus Rahmatulah Aleih and by inheritance under the Shariat Law it had descended upon them who were his direct descendants in the male line of descent. In support of their claim they cited the entries of the Revenue records dating back to the year 1868.
6. They contended that they had themselves built houses and shops according to plans duly sanctioned by the municipality, that some of the houses were in their own occupation as they were residing therein and some of them had been let out by them as their owners on rent to others. They gave out themselves to be people of substance descending from enormously rich ancestors who held substantial property not only in Pakistan but also in Kashmir and maintained that it was inconceivable that they had constructed the houses and shops from the meagre income from the shrine as the underlying idea of taking over this property by the Administrator of Waqfs appeared to be. They asked for the declaration of the preservation of their right of user of the houses and shops.
7. They described the graveyard to be their family graveyard and said that with the exception of a few graves of devotees of the Saint all the graves were of their family members. They put forth their claim of the right to bury members of their family in the graveyard and requested for the preservation of this right and sought a declaration that the right would not be affected by the Ordinance or the notification in question.
8. They pleaded that the mosque had been built by them and their predecessors at their personal expense for personal convenience and for the use of the family members and devotees of the Saint.
9. They did not consider the income from the boxes placed at the shrine and offerings and subscriptions to be waqf property. They explained that the offerings and income from the boxes came mostly from their murids and devotees of the Saint and that all that income was utilised by them on the maintenance of the shrine, mosque, on payment of electric bills, salary of the Imam, salary of jaroob kashan and water rate, etc., as well as on the annual urs of the Saint. They added that the income was hardly sufficient to meet the expenditure and the income had never been a source of lucrative profit to them. They said that the shrine belonged to them and as such income from the boxes was their personal property.
10. They took up the stance that the agricultural land situate in Tajpura, Lahore City, referred to in Clauses (c), (d) and (e) of the notification, had been donated to them and their ancestors for their personal benefit which fact was evident from the earlier Revenue Records. They stated that since it had been gifted to them as '.Ascendants of the Saint, in the recent Revenue Records, in the ownership column, the name of the Saint had been entered which entry they thought had been made due to some inadvertent mistake on the part of the Revenue Staff. This change of entry, according to them, did not constitute any dedication but in reality it was only for maintaining the solidarity among the descendants of the Saint that change had been made in the property column of the records. They denied that it was a waqf property or that the land had been permanently dedicated to the shrine. They claimed to be beneficiaries under the gift made by a devotee to the descendants of the Saint. They pointed out that possession and user of the land had always been with them and that they and their ancestors had been leasing out the land in their personal names throughout from the time it was given to them by the donor. They clarified that they had neither given up nor ever intended giving up the right to use, occupy, possess, hold and maintain the land. They inferred the wish of the dedicator to be that the land would remain in their occupation and possession for their personal benefit. They maintained that their past user extending over six or seven decades in the light of what has been said above indicated that the land was to be used by them free of any liability to pay rent or charges for use and occupation.
11. Asserting that the right to occupation, use and possession in regard to the properties in dispute, including the shrine itself, had been with them and that they had right to perform their spiritual duties, functions and ceremonies, they prayed for the preservation of and declaration respecting the said rights.
12. They took exception to the constitutionality of the West Pakistan Waqf Properties Ordinance, 1959, though they abandoned this objection later on.
13. The appellants filed the petition as representatives of all the ten families to whom, as they said, the properties in dispute belonged. They disclosed that all the descendants of the Saint had authorised them to file the petition for and on their behalf and sought permission to institute, continue and pursue the proceedings in a representative character.
14. The respondent did not accept the correctness of the appellants' averments. It contended that property No. H/1466, containing the shrine, graveyard, mosque, thirteen houses and seventeen shops, constituted waqf property from time immemorial and that it had been used for the purposes recognised by Islam as religious, pious and charitable and as such was to all intents and purposes waqf property within the purview of the Ordinance. It pleaded that if it were to be proved that the buildings and properties which existed at the moment had been constructed by the appellants or their ancestors they would be taken to be properties which had been made from the income of waqf of the Saint and, therefore, they could not be described to be the personal property of the appellants. The income from the boxes placed at the shrine and offerings and subscriptions were, as contended by the respondent, waqf property vide explanation 4 to section 2 of the Ordinance as they were being used, according to the appellants' own showing, for charitable purposes. It did not accept the appellants' stance touching the agricultural land of Tajpura which it took to be' waqf property and not the personal property of the appellants. It did not recognise any of the appellants' rights over the property in dispute.
15. Besides oral evidence the appellants brought on the record quite a number of copies of the Revenue records, including shajra nasabs, khasra amarti, shajra kishtwar, plans sanctioned by the Lahore Municipal Corporation allowing construction of houses to the appellants, application for fresh construction of a house made to the Lahore Municipal Committee, a host of original lease deeds whereby houses and shops in dispute had been leased out to various persons, a deed bearing out transfer of interest in the property in dispute of some of the appellants inter se, in order to establish their case. The respondent examined three witnesses and brought on the record copies of mutations, whereby land of Tajpura had been given to the shrine, copy of the shajra nasabs of Tajpura recording Khanqah Shah Muhammad Ghaus Sahib as the owner of the estate and copy of jamabandi to support its contention that the land of Tajpura stood in the name of Khanqah Shah Muhammad Ghaus Sahib. It also placed on the record copy of the Khasra Amarti of the property in dispute for the period commencing from 1868 and ending with the year 1957-58.
16. The learned District Judge, Lahore, by his judgment of the 3rd April, 1973, dismissed the appellants' petition. A perusal of the impugned judgment gives the impression that the learned Judge took it as if the entire immovable property in dispute had been donated by Abdus Samad to Khanqah Shah Muhammad Ghus Sahib. He considered Abdus Samad to be the owner of the entire immovable property and said that Hazrat Syed Shah Muhammad Ghaus Sahib was not the original owner of the property. He thought that since the property had been gifted in the name of the Khanqah to meet the expenses of the Khanqah and other expenses of related matters the appellants could not inherit it. He observed that against the express intention of Abdus Samad the descendants of Hazrat Shah Muhammad Ghaus Sahib had started utilising the income of the property for their own benefit. He concluded that the tomb, the mosque and graveyard were admittedly waqf properties and so was the income derived from the boxes placed at the shrine. He treated the entire property in dispute to be waqf property.
17. It may at once be noticed that the assumption of the learned District Judge that Abdus Samad was the owner of the entire immovable property in dispute which he had donated to the Khanqah of the Saint is not correct. Abdus Samad owned only the land of Tajpura, whose description is given in clauses (c), (d) and (e) of the notification and it was only this parcel of land which he had dedicated to the Khanqah.
18. The learned counsel for the appellants made grievance of the fact that neither the appellants' evidence had been properly discussed nor its true significance appreciated by the learned District Judge. Looking to the importance of the case it is in the fitness of things that all the material evidence produced by the parties should be considered in proper perspective and duly commented upon. To begin with the validity of the appellants' claim to the most important property No. H/1466 containing shrine, graveyard, mosque, thirteen houses and seventeen shops, may be assessed. It may be useful to look into in the first instance the Revenue record whose authenticity is beyond dispute. Exh. R3 is the excerpt of the record of rights from 1868 till 1958, Exh. PW 13/A is the copy of the jamabandi misle haqiat for the year 1891-92, Exh. PW 13/B is the copy of the jamabandi for the year 1924-25, Exh. PW 13/C is the excerpt of the record of rights from 1941 to 1958, Exh. PW 12/C is the copy of the khasra amarti (jamabandi) for the year 1961-62 and Exh. PW 12/D is the copy of the Khasra Kishtwar attached to the Jamabandi of 1961-62. A perusal of the aforementioned documents discloses that it was for the first time in 1868 that entry with regard to the land covered by the present property No. H/1466 was made in the record of rights maintained under the British Government. A note on the shajra nasab of 1868 states that the Khanqah known as Shah Muhammad Ghaus Sahib had been in existence for the last 108 years, that in the last settlement it had not been measured and that by the order of the 24th August, 1868, it had been held to be owned by Mir Ji Sahib and Pir Jan Sahib, who are no doubt the descendants of the Saint. 1n the jamabandi of 1868 Mir Ji Sahib and Pir Jan Sahib are shown as owners of the property in equal shares, which is of course not described as Khanqah of Hazrat Syed Shah Muhammad Ghaus Sahib, but is entered as ghair umkin land measuring 6 kanals 9 marlas representing a graveyard with a well, One Ghulam Nabi is mentioned as tenant under Mir Ji Sahib and Pir Jan Sahib.
19. It seems that by the time the record of rights for 1891-92 was prepared Mir Ji Sahib and Pir Jan Sahib had expired. Their heirs are entered as owners of 6 kanals of land in the jamabandi of 1891-92. 1 kanal 6 marlas of land is described as nehri and is shown to be under cultivation while 4 kanals 10 marlas of land is uncultivated. 4 marlas of land is recorded as ghair mumkin rasta.
20. The names of the owners mentioned in the jamabandi of 1891-92, with the exception of Pir Shah, who is substituted by his son, Ahmad Shah, presumably because Pir Shah was dead by that time, reappear in the jamabandi for 1899-1900 as is evident from the excerpt, Exh. R3. 5 kanals 16 marlas of land is described as ghair mumkin khanqah and 4 marlas as ghair mumkin rasta. No excerpt from the Jamabandi of 1895-96 could be prepared because the original record pertaining thereto was in a torn condition and was not decipherable. The entries of the jamabandi of 1899-1900 are repeated in the jamabandi of 1903-1904 as well as in the jamabandi of 1907-1908.
21. 1n 1913-14 the owners remain the same as before but a kotha and a house, as the record shows, have been erected by the owners. The area under Khanqah and mosque is given in 1913-14 as 5 kanals.
22. The descendants of the Saint continued to be recorded as owners in the record of rights prepared in 1924-25 and area of Khanqah and mosque mentioned is 5 kanals. However, three houses and a shop standing on the property were recorded to be owned by and in possession of the persons whose names were entered in the owners' column.
23. By the time the next record of rights was prepared in 1928-29 another shop had been constructed over the property by the owners. Three houses and two shops covered an area of 9 marlas and 27 square feet.
5 kanals of land is shown to be under the Khanqah and mosque. With the death of Yaqoob Shah his sons were substituted as owners. The same entries find repetition in the record of rights of 1932-33 and 1936-37.
In the record of rights of 1938-39 sons of Sikandar Shah, who died in the meantime, were added in his place as owners, the rest of the entries remained the same as in the previous record.
24. During the next two years the owners constructed houses and shops on the property in question. In the khasra amarti of 1941-42 area under the mosque is recorded as 1 kanal 3 marlas 136 square feet and under Khanqah, which comprised mainly the tombs of the Saint and his wife and graves of his descendants, disciples and devotees, the area is given as 1 kanal 15 marlas 47 square feet. A street covering an area of 100 square feet and another street having an area of 1 marla 51 square feet were left to provide open space for ingress and egress. Another open space of 17 marlas 199 square feet is shown as qabil-i-tamir.
On the rest of the area are standing houses and shops. The total area of the property is given as 6 kanals 6 marlas 61 square feet. This state of affairs continues to exist in the subsequent khasras amarti prepared in 1.953-54 and 1957-58. This position also obtained when the administration, control, management and maintenance of the property was taken over and assumed by the Administrator of Waqfs in 1960. The area under mosque, Khanqah and graveyard as given in the khasra amarti of 1961-62, Exh. PW 12/C is the same.
It seems that in the earlier revenue papers the term `Khanqah' was loosely used to describe the property including the living quarters and everything else (except the mosque which came to be entered in 1913-14) but from 1941-42 onwards its use was restricted to represent the area mainly covered by the tombs of the Saint and his spouse and graveyard.
25. In the above referred to documents it is the appellants or their ancestors who are entered as owners of the land, which later on developed into a complex of Khanqah, mosque, graveyard, houses and shops, bearing No. H/1466, when it was taken over by the respondent. Nowhere the ownership is recorded to vest in the Khanqah or other religious institution nor any dedication by someone in favour of Khanqah is visible in these documents.
26. The appellants' voluminous documentary evidence, other than the official Revenue records, in proof of their ownership of the houses and shops forming part of property No. H/1466 in dispute may now be taken up for discussion and appreciation. As far back as on the 28th September, 1891, Syed Yaqoob Shah, father of Syed Sikandar Shah, appellant 15, and Syed Sher Badshah, appellant 16, made application, Exh. PW 13/F, to the Lahore Municipal Committee for permission, to reconstruct, after demolishing, his old house, situate inside the Ihata of Khanqah Shah Muhammad Ghaus Sahib. The concerned official after visiting the spot reported that the house was situate inside the Ihata of the Mazar of Hazrat Shah Muhammad Ghaus Sahib and since it was within the boundary of the Ihata no one had objection (to the demolition and reconstruction). The following is the text of the report:-- Accordingly permission to build the house was granted. Exhs. PW.13/G, PW. 13/H and PW. 13/J are the plans of the houses built by the appellants or their predecessors on the property in dispute which had been sanctioned by the Lahore Municipal Corporation on different occasions.
27. The appellants produced lease deeds, Exh. P3 to P.18, P.20, PW. 13/D, to establish that they had been leasing out the houses and shops of property No. H/1466 in dispute to various persons for no fewer than 30 years and all along they had dealt with these houses and shops as full owners and no one had ever doubted their title. The ,particulars of the aforementioned lease deeds in chronological order are analysed in the accompanying table.
These deeds bear out that the appellants and their ancestors had through all this time been leasing the houses and shops in their capacity of full owners thereof and the respondent has not been able to point out even a single occasion A or instance when their title of exclusive ownership was ever challenged or disputed. As already noticed they were recorded in the Revenue papers throughout as full owners of these houses and shops, actually they were shown to be the owners of the mosque, Khanqah and graveyard as well.
28. Muhammad Sharif, PW 10, Patwari of Lahore Khas Circle (wherein the property No. H/1466 is situate) gave evidence with reference to the entries of the official records that the property in dispute was owned by the appellants and that their ownership rights were not entered as their being mutawallis.
Muhammad Bashir, Lambardar of the area, PW 11, testified to the appellants' ownership of the property and said-that he had been receiving revenue of the property in dispute from the appellants. Exh. PW 11/A is one of the receipts that he issued acknowledging having received the revenue.
29. Syed Basit Shah, appellant 1, PW 12, and Syed Amar Ullah Shah, appellant 3, PW 13, examined themselves in the witness box and bore testimony in support of their case. They said that the property in question was originally owned by their ancestor, Hazrat Sycd Hassan Muhammad Shah Sahib (Rahmatullah Aleih), and on his death it was inherited by his son, Hazrat Syed Shah Muhammad Ghaus Sahib (Rahmatullah Aleih) and thereafter it came down to the appellants through inheritance and that they were its true and exclusive owners. They asserted that it was their personal property and that it was not owned by the Mazar. They maintained that the shops and houses had been built by them from their own pocket and not from the income derived from offerings and subscriptions. They made mention of their other considerable property m Kashmir and elsewhere from which they had been getting income. There is no 1 evidence from the respondent's side to give the slightest indication that the houses and shops had been built by the appellants from the income of the shrine.
30. Strict adherent to the injunctions of Islam as the Saint was it can very well be assumed without any contradiction that while settling at the place where property No. H/1466 now stands he would not have usurped any one else's property but would have ensured that he had acquired its ownership by lawful and legitimate means whether by inheritance or by acquisition otherwise. His ownership of the place for purpose of passing it on to his heirs can be taken for granted.
31. The documentary evidence discussed above lends full support to the testimony of Syed Basit Shah and Amar Ullah Shah in so far as it attempts to establish the ownership of the property No. H/1466 (excluding the mosque and Khanqah) by the appellants and eligible descendants of the Saint. In view of such cogent, rather formidable evidence, the inevitable conclusion which follows is that the appellants and all other eligible descendants of the Saint are the full and exclusive owners of property No. H/1466, excluding the mosque and the Khanqah, which are entered in khasras Nos. 1112 and 1117, respectively, and which together cover an area of no more than 2 kanals 18 marlas 183 square feet. The houses, shops, small streets and qabil-i-tamir space bearing khasras Nos. 1103 to 1111, 1113 to 1116, constitute the personal property of the appellants and all other eligible descendants of the Saint and is not waqf property.
32. The case of the land of Tajpura listed in clauses (c), (d) and (e) of the respondent's notification may now be considered. This land was given away by one Abdus Samad to Khanqah Shah Muhammad Ghaus by means of registered Will dated the 23rd February, 1903. He died after a short while of the execution of the document and mutations Nos. 45 and 50 (copies Exh. R4) touching transfer of the land in the name of Khanqah Shah Muhammad Ghaus Sahib were attested on the 14th January, 1905, and the 21st June, 1905, respectively. The orders passed by the revenue officers while sanctioning the mutations indicate that Abdus Samad had donated the land to Khanqah Shah Muhammad Ghaus Sahib and not to the appellants. The appellants were given the administration of the land with the object of utilising the land and its income to meet expenses of Khanqah and entry to that effect appears in the revenue papers. In the shajra nasab of village Tajpura, Exh. R2, the name of the owner, m consequence of sanctioning of mutations and entry in the jamabandi (copy Exh. P5), is mentioned as Khanqah Shah Muhammad Ghaus right from 1912 to 1955; the appellants are not entered as owners in the shajra nasab. The mere fact that the appellants had given a portion of land of Tajpura on lease to Manohar Lal and Rajinder Pal on the 25th November, 1946, per registered lease deed, Exh. Pl, for ten years for the purpose of excavating earth there from for making bricks and had appropriated the rent to their own use does not invest the ownership of the land in them. The income of the land according to the wishes of the dedicator, Abdus Samad, was meant to meet expenses in connection with the Khanqah and was not supposed to be used to meet the private expenses of the appellants. Again the execution of the registered sale deed, exh P19, by Syed Inayat Shah, appellant 6, transferring his share in the land to Syed Muhammad Basit Shah, appellant 1, for Rs.1,150.00 does not prove that Syed Inayat Shah owned any share in the land which had been given by Abdus Samad to Khanqah Shah Muhammad Ghaus Sahib. The land had been permanently dedicated by Abdus Samad to the Khanqah and as such was clearly waqf property as envisaged by the West Pakistan Waqf Properties Ordinance, 1959.
33. It is quite obvious that the mosque, mausoleum of the Saint, its contiguous graveyard as well as income from the boxes at the shrine and offerings and subscriptions constitute waqf properties as defined by Section 2 of the Waqf Properties Ordinance, 1959, which has since been replaced by the Punjab Waqf Properties Ordinance, 1979 (IV of 1979). The land where the mosque and the graveyard stand has been used since time immemorial for the purpose which cannot but be described to be religious, pious and charitable. Therefore, absence of any dedication, as alleged by the appellants, is immaterial and cannot alter the nature of the property which has by long user become waqf. Explanation 1 to section 2 of the Ordinance treating a property to be waqf by user simply gives recognition to the settled Islamic law on the subject which has been nicely explained by Syed Ameer Ali in his treatise on Mohammedan Law, volume 1, Chapter XII. A building, where prayers are held by the congregation, with azan and aqamat, even with the permission of person who erects it, is converted into a mosque and becomes irrevocably dedicated as waqf despite absence of declaration by that person for its dedication. Where prayers have once been offered it is not necessary to prove an express dedication. Admittedly prayers have regularly been offered in congregation by the public in the mosque in dispute since it was built. Therefore, there is no doubt left in its being waqf property.
34. Similarly when dead bodies have been buried in a ground it would become waqf property. A graveyard is a consecrated ground and cannot be sold or partitioned. Even lands which are not expressly dedicated but are covered by graves are regarded as consecrated and consequently inalienable and non-- heritable. Use of a ground for buying the dead for a considerable length of time, as in the case of the graveyard in dispute, would undoubtedly render cemetery waqf property. The Judicial Committee of the Privy Council endorsed this proposition in Makhdum Hassan Bakhsh v. Llahi Bakhsh (27 P.R. 1913) cited by he learned counsel for the respondent.
35. The learned counsel for the appellants, drawing support from the admission of the respondent's witness, Muhammad Din, RW 2, that no dead body of a person could be buried in the graveyard except with the permission of the appellants, prayed for the preservation of the appellants' right to regulate burialsin the graveyard. He complained that the respondent had, as admitted by Shaikh Abdur Rahman, RW 1, Manager Auqaf of Dargah of the Saint, started chargingRs.500.00 for allowing dead body of a person to be buried in the graveyard and described this practice to be umslamic. There is no denying the fact that the graveyard was not meant for the exclusive burial of the dead bodies of the appellants or of their family members but other persons could also bury their dead over there, of course with the appellants' permission which the people out of sentimental reverence for the Saint and the appellants being his descendants usually sought. The fact remains that it was a public graveyard. Its administration, control, management and maintenance now vests m the Auqaf Department. Therefore, the appellants cannot now be given the right to regulate burial in this graveyard.
The learned counsel brought to the notice of the Court that the place reserved for the graveyard is now almost full with graves and there is hardly any space left for further excavation of graves. The learned counsel for the appellants stated that the appellants and their family members, especially those living in Lahore, had always desired and were buried in this graveyard because of its close proximity to the tomb of the Saint and requested that at least the right of burial of their dead bodies in this graveyard be recognised and given effect to. Under Muslim Law, and this principle is accepted by the Supreme Court of Pakistan in Haji Ghulam Rasool v. Chief Administrator of Auqaf PLD 1971 S.C. 376, in a graveyard, which is public waqf, no exclusive or preferential right for burial can be claimed and that the right must, of necessity, be a common right subject to availability of space. It may not be legally possible to secure to the appellants the absolute right for burial of their dead bodes in this graveyard. However, looking to the past practice when the appellants and their ancestors enjoyed the privilege of having their deads buried and of allowing others to bury their deads m this graveyard and for the respect and reverence that Muslims have for the Saint and the appellants as their descendants the Auqaf Department is well advised to give favourable consideration to any request emanating from the appellants or their successors for the burial of their deads in this graveyard and the Department will not become poorer if it abstains from charging money for this purpose, a practice which does not seem to be backed by Islamic tenets and traditions.
36. As per explanation 4 to clause (c) of section 2 of the Ordinance, the income from the boxes placed at the shrine and offerings and subscriptions are made to fall in the category of waqf property and validity of this provision has found endorsement from the Supreme Court of Pakistan in the case of Haji Ghulam Rasool v. Chief Administrator of Auqaf PLD 1971 S.C. 376. Consequently the appellants can no longer lay any claim to such income, offerings and subscriptions.
37. The learned counsel for the respondent assured that the appellants, like other members of the public, could very well participate in the proceedings of various functions and ceremonies (rasoomat), including the annual urs, held at the shrine and that they would be well received by the Auqaf Department. For performance of particular services or ceremonies (rasoomat) they will have of course to seek permission of the respondent because under subsection (2) of section 7 of the Punjab Waqf Properties Ordinance, 1979, no person can perform such services or ceremonies except with the prior permission of the respondent. They cannot have under the law unrestricted right to perform services or ceremonies of their liking.
38. In view of what has been said above the appeal is partially accepted and the impugned judgment of the learned District Judge is modified to the extent ' that it is declared that the portion of property No. H/1466 in dispute comprising of the houses, shops, small streets and qabil-i-tamir space bearing khasras Nos. 1103 to 1111, 1113 to 1116 [exclusive of the mosque and the Khanqah (containing the tombs of the Saint and his spouse and graveyard), which are entered in Khasras Nos. 1112 and 1111 respectively, and which together cover an area of 2 kanals 18 marlas 183 square feet] is not waqf property. The parties are left to bear their own costs throughout.
1 2 3 4 5 6 7 8 9 Serial No.Exhibit No. Of lease deed.Date ofexecutionofleaseDate of commencement of leaseLeased premisesMonthly rentLessorLessee (executant Of lease deed)Remarks 1.Exh.P.W 13/D10-2-1929 1-2-1929Shop No.310.00Appellants 15,16 and their bros.Abdul Majid
2. Exh.p.1831-3-1931 1-4-1931Shop No.27.00Syed Abrar Shah and otherSyed Nawab Hassan
3. Exh p.328-4-1932 1-5-1932A unit of three shops and a room on circular road side35.00Syed Abdullah Shah(father of Amar Ullah Shah)Haji zahur- ud-dinHaji Zahuruddin was running a restaurant under the name of Zahur hotel in these premises
4. Exh.p.56-2-1936 1-2-1936 Do. Do. Do. Do.
5. Exh.p.417-4-1937 1-4-1937 Do. Do. Do. Do.
6. Exh.p.209-5-1952 1-5-1952 Do. 120.00Appellant 3Do.
7. Exh.p.148-8-1952 1-8-1952 A shop 10.00 Appellant17Ghazi Khan
8. Exh.p.820-12-1953 1-1-1954 A shop 40.00 Appellant 3Lal Khan and Ghulan Jan
9. Exh.p.1124-7-1955 1-9-1955 A shop 15.00Appellant 13 his brother and appellant 14 and his brotherHakim Muhammad Asghar and Hakim Muhammad Usman
10. Exh.p.66-10-1955 6-10-1955 A house35.00 Appellant 3Muhammad Abdullah and Abdul khaliq
11. Exh.p.108-1-1956 1-1-1956 A house15.00Appellant 4 And his brotherGhulam Muhammad
12. Exh.p.1611-3-1956 11-3-1956A kothri (room)12.00 Appellant17Abdul Hamid
13. Exh.p.915-7-1956 15-7-1956 A shop 15.00 Appellant13 and his brother and appellant14Muhammad Yaqoob and his brother
14. Exh.p.72-9-1956 1-9-1956 A house35.00 Appellant 3Hakim Qamaruddin
15. Exh.p.128-9-1956 1-9-1956 A house60.00Appellants7 To 11 and Syed Shoukat bashir son of Qammar uz ZamanChaudhri Muhammsd Arif 16.Exh.p.1321-10-1956 15-10-1956 A shop 15.00Appellant13 And his brotherSyed Nasir Ahmed Shah
17. Exh.p.174-11-1957 1-11-1957A kothri (room)15.00 Appellant 17Chanan din
18. Exh.p.151-1-1956 1-1-1959 A shop 10.00Appellants7 to 11Muhammad buta