1. ' ZAFFAR HUSSAIN MIRZA, J.--This appeal by right arises out of judgment, dated 6th June, 1974, passed by a Division Bench of the erstwhile High Court of Sind and Baluchistan, Karachi, in L.P.A.
2. 114 of 1965.
3. ' The dispute in this case relates to agricultural lands measuring 3,220.37 acres and other urban immovable properties fully described in the Notification, dated 30th April, 1960, published in the Gazette of. West Pakistan of the same date, issued by the Chief Administrator of Auqaf, in purported exercise of powers conferred on him under section 6 of the West Pakistan Waqf Properties Ordinance, 1959. This immovable property was originally owned by one Haji Karim Dino who had two wives, namely, Mst. Razal and Mst. Rehmat. HO Karim Dino had two children from Mst.
4. Razal, Noor Muhammad and Mst. Nawab. However, Noor Muhamma.d died during the lifetime of his father in 1912, leaving behind a son Mazhar Ali and daughter Mst. Shah Jahan (respondent No,4).
5. Mst. Nawab sister of Noor Muhammad had a son Haji Abdul Majid (respondent No,5) and a daughter Mst. Bachul who was married to Mazhar Ali.
6. ' The other wife of Karim Dino, Mst. Rehmat gave birth to two daughters Mst. Tajul Bibi and Mst. Majul Bibi (respondents Nos.2 and 3). Karim Dino also got a son born to him through Mst. Rehmat in 191,9, namely, Abdul Nabi respondent No,1.
7. ' On 5th September, 1916, before the birth of Abdul Nabi, Haji Karim Dino created wakf-alal-aulad in respect of a portion cf his immovable property consisting of agricultural as well as nonagricultural property. By this deed he constituted himself as a beneficiary and mutawalli during his lifetime and thereafter, it was stipulated that Mazhar Ali son of his pre-deceased son Noor Muhammad and his wife Mst. Bachul shall be the beneficiaries, but in the event of those two beneficiaries dying before him, Mst. Nawab shall be the beneficiary during her lifetime only. The ultimate dedication was provided by stipulating in case there be no child whatsoever from his loin, in which case the entire waqf property will be employed for charitable purposes shown therein.
8. ' Karim Dino created yet another waqf by a deed, dated 22nd October, 1920, in regard to some other immovable properties both agricultural as well as non-agricultural in favour of his son (Abdul Nabi respondent No,1), with the responsibility to look after and maintain the two daughters Mst.
9. Tajul Bibi and Mst. Majul Bibi. The ultimate dedication of the property to charity in this deed reads as under: "But if my son leaves no issue at all and his lineage becomes extinct, then in that case all this wakf property will be utilized for charitable and religious purposes, and shall remain absolute 'Khudai'
10. (Divine) property."
11. ' Finally Karim Dino created a third waqf by deed, dated 4th April, 1923, declaring that after the execution of the first deed he was blessed with a son Abdul Nabi and he had the authority to appoint his children as mutawalli, but sincelatter was already appointed mutawalli under the waqf deed of 1916, he proceeded to appoint him mutawalli of the property dedicated by that deed.
12. 'Haji Karim Dino died thereafter in the year 1924. After his death Abdul Nabi instituted a suit against Mazhar Ali, Mst. Bachul and Mst. Nawab for a declaration that he was the mutawalli and sole beneficiary of the property forming the subject-matter of the waqf deed of 1916. His claim was rejected by the Court and it was held that Karim Dino had not reserved a right to change a mutawalli appointed by the deed of 1916 and therefore the appointment of mutawalli of that property by deed of 1923 was without authority vide judgment by the Court of Judicial Commissioner, Sind., ' Mazhar Ali died in 1948 and Mst. Bachul died in 1950 without leaving any issue. The entire property which was, the subject of waqf deed of 1916 was entered in the name of Abdul N bi, in the Revenue record as mutawalli in 1954, showing him to be the representative of the whole body of the donor's descendants.
13. ' Upon the promulgation of M.L.R. 64 in 1959 the respondents submitted their forms under the Land Reforms Regulation in respect of agricultural property, mentioned in the waqf deeds to the Deputy Land Commissioner. They claimed to be the beneficiaries in terms of the waqf deed of 1916. By an order, dated 26th July, 1959, the Deputy Land Commissioner, held that under paragraph 10 of M.L.R.
14. 64, only those beneficiaries were entitled to share who were beneficiaries at the time of the death of the donor and subsequent beneficiaries would be. Debarred from the share, further holding that there was in this respect no difference between heir beneficiaries and non-heir beneficiaries. On an appeal against this order the Land Commissioner held that the entire land should continue to be treated as waqf property and that on failure of the nominated beneficiaries the property should continue as waqf under paragraph 10(3) of M.L.R.
64. A number of revisions were filed by the several parties against the order of the Land Commissioner and the Chief Land Commissioner held that the order of the Land Commissioner in respect of the properties covered by the waqf deed of 1916 was correct. Review applications against this order also failed.
15. ' In the meantime the West Pakistan Waqf Properties Ordinance, 1959, was promulgated and the Chief Administrator of Auqaf, West Pakistan by the aforesaid Notification, dated 30th April, 1960, issued under section 6 of the said Ordinance, purported to take over the management, supervision and control of the property, agricultural as well as non-agricultural, claiming the same to be waqf property as defined under clause 2(d) of the Ordinance.
16. ' Aggrieved by this action the respondents filed an application under section 7 of the Ordinance before the District Judge, Jacobabad, seeking a declaration that the disputed property was not waqf property as defined under section 2(d) of the Ordinance. The application was resisted and it was contended on behalf of the appellant that the respondents were not the beneficiaries under the waqf deed of 1916, consequently they had no beneficial interest in the property on the death of Mazhar Ali and Mst. Bachul. On the legal plane it was urged that the controversy with regard to the ownership and the status of the property was finally settled by the Chief Land Commissioner and the Civil Courts had no jurisdiction to reopen that finding. Reliance was also placed on the decision in the suit filed by Abdul Nabi on the basis of which a plea of res judicata was taken.
17. ' The parties did not lead any oral evidence although they relied upon certain documents in support of their respective claims. The learned District Judge framed the following two issues for adjudication.
18. "(1) Whether the petitioners were constituted as beneficiaries under the Waqf Deed, dated 5-9- 1916?
(2) Whether the jurisdiction of this Court was barred by virtue of the provisions of paras. 3 and 27 of the Martial Law Regulation 64, as the present question was already decided by the West Pakistan Land Commission?"
19. ' Learned District Judge answered the first issue in the negative and the second in the affirmative. In respect of the first issue he held that under the deed of 1916 the rights of mutawalliship and the beneficial interest were conferred upon Mazhar All and his wife, after whose death these rights devolved upon Mst. Nawab during her lifetime. The contention advanced by respondents Abdul Nabi and others that they were beneficiaries by virtue of they being the offspring (phari aulad) of the donor as provided in the waqf deed and as such they inherited the beneficial interest, was rejected. In the view taken by the learned District Judge the waqf deed of 1916 was intended to have been created for the benefit of some of the donor's descendants, namely, Mst. Bachul and Mazhar Ali and their descendants. The expression "phari aulad" was construed with reference to the descendants of the aforesaid heirs only. The decision of 1930 in the suit filed by Abdul Nabi was also relied upon by the learned District Judge in support of his view that other heirs, namely, Abdul Nabi and his two unmarried sisters were not mutwallis or beneficiaries under the deed of 1916.
20. ' As regards the second issue the learned District Judge held that the decision of the Land Commissioner was final and conclusive and was accordingly immune from attack in the Civil Court. In this regard he held that under para. 10(2) of the Regulation the Land Commission was competent to determine the question of the status of the property to the exclusion of any other Court or authority.
21. ' Being aggrieved the respondents filed an appeal in the High Court which was heard by a learned Single Judge who by his judgment, dated 24th August, 1965, affirmed the order of the District Judge, holding that the waqf deed of 1916 was created exclusively for the benefit of the three descendants of Haji Karim Dino from Mst. Razal and upon the extinction of those three descendants the property had to be employed for charitable purposes. In this view of the matter the learned Single Judge held that Abdul Nabi could not claim to be the sole beneficiary or the sole mutawalli.
22. ' However, the learned Single Judge did not agree with the view that the orders passed by the Officers of the Land Commission were binding on the Chief Administrator of Auqaf on the ground that "the objects of the two departments were entirely different, proceedings were taken from different point of view and the action of the Chief Administrator did not come in conflict with the acts of the Officers of the Land Commission as those officers had left the property untouched and if they had taken it over Or any part of it, then the Chief Administrator could not undo their action for purpose of acquiring control over it". Thus the learned Single Judge also declared the property to be waqf property upon the line of descendants of the donor from Mazhar Ali and his wife having become extinct, in terms of the deed of 1916.
23. ' Being aggrieved by the judgment of the learned Single Judge, the respondents preferred a Letters Patent Appeal before the Division Bench of the High Court. The learned Judges of the Division Bench first examined the main controversy between the parties at that stage, namely, whether the respondents can be treated to be the beneficiaries under the waqf deed of 1916, Upon an elaborate examination of the various terms of the waqf deed of 1916 and the language used therein, the Judges of the Division Bench came to the conclusion that the property could ultimately go to charity and become a public waqf only if there was no issue from the donor's loin surviving at the time and since, in this case the respondent Abdul Nabi was a living heir in the direct line of descendants, he qualified to be the beneficiary and mutawalli. In this connection the learned Judges observed: ' "The expression in the deed, "if ultimately, in the end, there be no issue from my loin" is in the nature of a rider having a wide scope. It cannot be given a restricted meaning as was done and was also canvassed before us. Each word and expression in the deed must be given its full meaning and effect. If the intention was to confine the interest to the class of descendants, as has been held, the donor would have ' described descendants from the loin of the grandson and not from his own loin. Full effect must be given to the words actually used than presumed to have been used, in order to gather the intention of the donor. 'The plain reading cannot be subjected to presumptions and assumptions.
24. This method can be resorted to only if the language of which interpretation is to be given is ambiguous. Obviously the position cannot be accepted without doing violence to the language used in the concluding portion of the deed.
25. ' The issues referred to are the issues from the line of the donor and not from the line of Mazhar Ali.
26. This makes all the difference. While conferring beneficial interest upon Mazhar Ali and his wife and their children it was clearly mentioned that their children shall continue to be mutawalli, in the like manner from generation to generation and continue to be in possession and enjoyment of the produce and rent jointly and severally, each of them unto their lifetime. If the intention was to confine the beneficial interest to them only and thereafter the property was to be used for charitable and religious purposes, it was comparatively a simple matter for him to say that in case they left no descendant the property would revert to charity. It may be noted that by that time he had no son, and Nur Muhammad had already died and appellant Abdul Nabi was not yet born. It cannot be said that all hopes of getting a son from the other wife were lost. Even the learned Single Judge was conscious of this but rejected the claim on that basis as according to the learned Single Judge there was no reference in the deed to any appellant or to the possibility of the donor begetting children in future and the deed itself left all of them out. It was further observed that the donor ought to have taken that possibility in mind and yet omitted to provide for it, thus excluding from the arrangement his own future children. I am unable to subscribe to the view that such a possibility cannot be spelled out from the plain language of the expression in which it is couched.
27. The necessity of making a wakf-ul-aulad in favour of Mazhar Ali and his wife Mst. Bachal and their children arose as according to the Muhammadan Law applicable then, the son of the predeceased son could not be treated as heir in order to inherit the property. He did not want his grandson and his children to remain destitute, as apparently Mazhar Ali had no property. So far the daughters of the donor are concerned, there was enough property left with him for inheritance or maintainance."
28. ' Accordingly the learned Judges of the Division Bench held that the respondents were entitled to be treated as beneficiaries under the last clause of deed of 1916, except for respondent No,5 Haji Abdul Majid who was the son of Mst. Nawab daughter of the donor, who was held not entitled to be treated to be the beneficiary as he is not the descendant in the direct line of the donor.
29. ' Before the Division Bench apart from the question whether the respondents were beneficiaries in terms of deed of 1916, the appellant herein, also raised some legal objections.
30. ' It was urged that the L.P:A. Was not maintainable, as according to section 8 of the Waqf Ordinance, 1961, a statutory appeal lay before the High Court which right was exhausted with the decision of the learned Single Judge.. It was then contended that the decision in the case of Abdul Nabi v. Mazhar Ali and ()hers operated as res judicata as it was clearly held that Abdul Nabi could not be treated to be either mutawalli or beneficiary under the deed of 1916. Finally it was urged that the civil Court had no jurisdiction in view of the barring provisions contained in paragraphs 3 and 27 of the M.L.R. 64, whereby the decision of the Land Commission was conclusive and final. The learned Judges rejected all these legal contentions and as these have been reurged before us, it is not necessary to state in detail the reasons that prevailed with the learned Judges. At this stage.
31. Suffice it to state that the learned Judges of the Division Bench by the impugned judgment in this appeal, allowed the appeal of the respondents and quashed the notification issued by the Chief Administrator of Auqaf.
32. ' Mr. Khalid Ishaque, learned counsel appearing in support of the appeal resurged the legal contentions which had been rejected by the Division Bench. Ile contended that whatsoever claim Abdul Nabi respondent had in the property had been conclusively rejected by the civil Court in the SUIT 'filed by him (Suit No,566 of 1924; Abdul Nabi v. Mazhar All and others) and ultimately decided by the Chief Court of Sind against Abdul Nabi. Lie further contended that at any rate the matter was once again examined by the Land Reforms Authorities, which also rejected the claims of the respondent and as long as those orders were in the field, they were binding on the Auqaf Department and the, civil Court could not reopen the controversy. Ile finally subMitted that the Letters Patent Appeal was-not competent before the learned Division Bench.
33. ' On the other hand Mr. Muhammad All Sneed appearing on behalf of the respondents controverted the contentions advanced in support of the appeal and argued that the plea of res judicata is wholly untenable for the reasons that the issues in the two proceedings were totally different, the nature of proceedings was also different and so were the parties as well as the causes of action lie also submitted that paras 3 and 27 of M.L.R. 64 (lid not in any way bar the jurisdiction of the Court to adjudicate on the status of the property and since the Land' Reforms Authorities themselves held that no part of the property was affected by the Regulation, the decision left it open to any other statutory Tribunal of exclusive jurisdiction to deal with the property and adjudicate any matter that falls within such jurisdiction. As to the competency of the Letters Patent Appeal it was submitted that the Letters Patent Appeal was not an appeal in the conventional sense but an internal arrangement of the Court more in the nature of the review. Both sides relied upon a number of decisions in support of their contentions.
34. ' So far as the first contention of the appellant is concerned reliance was placed by the learned counsel on section 11 of the Civil Procedure Code which lays down the rules of res judicata and prohibits a Court to try any suit or issue in which the matter directly and substantially it issue has been directly and substantially in issue in a former suit between the same parties, or between the parties under Whom they or any of them claim, litigating under the same title and has been heard and finally. Decided by such former Court. The prior suit oh which reliance has been placed was a suit filed by respondent Abdul Nabi against Mazhar All and Mst. Bachul, in the Court of First Class Sub-Judge, Shikarpur being Suit No,166 of 1924. This suit seems to have been decided against respondent Abdul Nabi and a first appeal was taken by the latter to the Sind Judicial Commissioner's Court which also failed as will appear from the report of the judgment in Abdul Nabi v. Mazhar Ali and others (AIR 1930 Sind 318). The appellate judgment indicates that respondent Abdul Nabi instituted the suit on the strength of the second and third deeds, executed by his 'father Karim Dino, for a declaration that he was the rightful mutawalli of both sets of property and solely entitled to the beneficial interest therein to the exclusion of Mazhar Ali and his wife. There is no doubt that the Court rejected the claim of respondent Abdul Nabi, in the light of the prevailing legal position and on interpretation of the provisions of the deed of 1916, by holding that the wakif had not reserved any right or power in the deed itself to remove his nominee as originally constituted under the terms of the deed. But the pertinent question before us is whether the Chief Administrator of Auqaf, the present appellant before us, can legitimately plead the rule of res judicata to prevent a re-adjudication of issue between himself and the claimants, arising in consequence of exercise of power under section 6 of the Waqf Properties Ordinance, 1959, taking over property from the hands of the respondent in the year 1960. There is considerable force in the argument from the other side that the prerequisite conditions for the attraction of the rule of res judicata are missing in the present case. It would be pertinent to point out that when the previous suit was instituted in 1924 the dispute arose between the heirs of Karim Dino, inter se, over the question of mutawalliship and beneficial interest in the subject-matter of the waqf deed of 1916.
35. The important fact to note is that subsequent to the former suit and its final decision in 1930 Mazhar Ali and Mst. Bachul both died by 1950 with their line of succession becoming totally extinct there being no issue left behind by them. As observed earlier no one seems to have claimed the property to be a public waqf thereafter until the decision of the Land Reforms Authorities and the 'property remained under the mutawalliship and enjoyment of Abdul Nabi as the representative of the donor's descendants. Apparently, therefore, a totally new factual situation and a new issue arose between the Chief Administrator Auqaf and the existing descendants of Karim Dino as to the status of the property. As already mentioned the learned Judges of the Division Bench upheld the claim of the respondents on a different clause of the waqf deed of 1916, whereby the ultimate dedicationof the property for charitable purposes was stipulated to be subject to the condition that there be no issue from the donor's loin. This clause could not possibly and did not in' fact form the subject- matter of controversy in the prior suit when Mazhar Ali and Mst. Bachul were both alive. Clearly therefore the matter in issue in the prior suit directly and substantially was not in issue in the present proceedings. Also the parties were different, so were the two causes of action. In this connection the learned Judges of the Division Bench observed: "It seems that the learned counsel, conveniently ignored the stage at which the litigation had taken place. It may be noted that the suit by Abdul Nabi was filed during the lifetime of Mazhar Ali and, therefore, the issue involved was whether Abdul Nabi had any interest in the property during the lifetime of Mazhar Ali. The observations made in that case and pressed into service must be treated to have been made in that context. The question whether Abdul Nabi and others could be treated as beneficiaries under the Deed of 1916 in case no descendant of Mazhar Ali was alive was neither in issue nor it was considered. Even if considered incidentally it Would be merely an biter having no binding force. According to section 11 Code of Civil Procedure the issue to operate as res judicata must be directly and substantially in issue in the former suit. It is, therefore, clear that the present proceedings are not hit by the section."
36. ' We are in .Agreement with the view taken by the Division Bench and hold thAt section 11 of the Civil Procedure Code did not operate as a bar to the present proceedings.
37. ' The next point to be considered is whether the decision of the Land Reforms Authorities was binding on the civil Court in its jurisdiction under sections 7 and 8 of the Waqf Properties Ordinance, 1961. According to the learned counsel for the appellant the determination made by the Land Reforms Authorities was not open to question except in the constitutional jurisdiction of the High Court and therefore in the ordinary jurisdiction under the statute the High Court was not competent to pass orders in derogation of the determination made by the Land Reforms Authorities. In other words the contention was that the Authorities under the Land Reforms Regulation were vested with final exclusive jurisdiction under the Regulation and orders passed by them were conclusive and binding on all authorities. Consequently the declaration sought by the respondents in their petition under section 7 of the Ordinance of 1961 could not be given. Learned counsel went to the extent of arguing that the Land Reforms Authorities could give conclusive finding even in matters relating to their jurisdictional facts, as such all collateral attacks against orders passed by them were barred.
38. The provisions of the Regulation invoked in support of this argument were paragraphs 3 and 27 which are in the following terms: "3. Regulation to override other laws etc.--The provisions of the Regulation, and any rule or order made thereunder, shall have effect notwithstanding anything to the contrary in any other law, or in any order, or decree of Court or other authority, or in any rule or custom or usage, or in any contract, instrument, deed or other documents." and 27.. Bar of jurisdiction.-- No provision of this Regulation or any rules or orders made thereunder shall be called in question in any Court, including the High Court and the Supreme Court, or before any authority other than an authority appointed under this Regulation, and no such Court or authority shall have jurisdiction in respect of any matter which the Commission or an officer acting under the authority of the Commission is empowered to determine.
(2) No such Court or authority as aforesaid shall be competent to grant any injunction or other order in relation to any proceeding before the Commission or before any officer exercising any power or discharging any function under this Regulation or the rules or orders made thereunder, or in relation to anything done or intended to be done by or at the instance of the Commission or such officer."
39. ' The determinations contained in the orders of the Officers of the Land Commission on which reliance is placed were made in pursuance of the provisions of paragraph 10 of M.L.R. 64, which abolished waqfs in the nature of waqf-alal-aulad as recognised by section 3 of the Mussalman Wakf Validating Act, 1913, and laid down the manner in which the land forming part of such waqf was to be divided amongst the beneficiaries. The basic order in this connection was passed by the Land Commissioner, the gist of whose decision was that the deed of 1916 was executed solely for the benefit of Mazhar Ali and Mst. Bachul, and their descendants, so that if their line of succession becomes extinct the property would revert to religious and charitable purposes. As already observed the contention of the respondents was that by virtue of the last clause of the deed in question the appropriation to charitable and religious purposes was to take place when there was no descendant surviving from the loins of the wakif (donor). The last mentioned contention was repelled by the Land Reforms Authorities and it was held that by operation of the terms of the deed of 1916, on the happening of the event, whereby Mazhar All and his wife died issueless, the wakf had become a public wakf, with the result that the property stood dedicated to charitable purposes with no beneficial interest surviving in the other descendants of the donor. The moot question is whether the Land Commission was competent to decide this question conclusively to the exclusion of other forums existing under the normal law? Without further dilating on this question we may refer to the decision of this Court reported as Mst. Hamida Begum v. Mst. Murad Begum and others (PLD 1975 SC 624), in which the identical question was considered and decided. In this case also a suit was brought by one of the heirs of the donor, to challenge the validity of a waqf-alal-aulad created by the donor excluding her from any beneficial interest therein. The claim of the plaintiff was rejected on the ground that she was not the legitimate daughter of the donor as well as that the suit was barred under the Limitation Act. The first appeal against the judgment of the trial Court was accepted and the suit was decreed. On a second appeal a learned Single Judge of the Lahore High Court set aside the decree holding that a valid waqf had been created and that the suit was barred by limitation. Upon this the plaintiff brought an Intra-Court Appeal which was dismissed on the ground that in the meantime the appeal had become infructuous in view of the provisions contained in paragraph 10 of M.L.R. 64, according to which wakfs of the nature involved in the suit had ceased to operate with the result that heirs as well as non-heir beneficiaries were both entitled to a share in the property. It was in this connection that a contention was advanced on behalf of the defendants in the suit that the controversy between the parties fell within the exclusive jurisdiction of the Land Commission for final disposal and the civil Court had lost its jurisdiction to adjudicate thereon. The. Learned Judges of this Court referring to paragraphs 3, 4 and 27 of the Regulation, expressed an opinion that these paragraphs dealt with matters falling clearly within the jurisdiction of the Land Commission to determine, which questions alone are protected from being questioned before the civil Court. Final conclusion with regard to ouster of jurisdiction of the civil Court was stated as under: "The correct position in law thus appears to be that under paragraphs 3, 4 and 27 of the Regulation, the ordinary Courts are barred from questioning the validity of any provisions of the Regulation as well as any rule or order made thereunder, that all disputes arising in connection with the implementation of the provisions of this Regulation are to be finally decided by the Land Commission, , and no Court or authority has jurisdiction in respect of any matter which the Commission or an Officer acting under the authority of the Commission is empowered to determine. If any matter or dispute falls outside the ambit of the Regulation, or raises a question as to the jurisdiction of the Land Commission itself, then the jurisdiction of the civil Courts to deal with such matter or dispute is riot barred. The Land Commission is not the final judge of facts and circumstances constituting the foundation of its jurisdiction, although it has necessarily to decide such questions for the purpose of administering the Regulation. Its decisions on such jurisdictional facts are open to challenge in the ordinary Courts, and in any case there does not appear to be any provision in the Regulation empowering the Land Commission to give binding decisions on questions of title and personal status like legitimacy and inheritance. That jurisdiction continues to remain with the civil Courts in terms of section 9 of the Code of Civil Procedure read with section 42 of the Specific. Relief Act.
40. ' It follows, therefore, that while undoubtedly it is for the Land Commission to apply and administer the provisions contained in paragraph 10 of the Regulation in respect of land forming the subject- matter of a wakf-alal-aulad, but if the question be whether a valid wakf of this nature is indeed in existence, or whether a particular person is an heir or a legitimate child of the donor, then any determination made by the Land Commission would not be final, as these are not matters which the Land Commission is empowered to determine under the Regulation. The learned Judges of the Letters Patent Bench were, therefore, in error in thinking that the appeal before them had become infructuous; For the application of paragraph 10 itself, the questions in controversy between the parties needed to be resolved by a civil Court." (the underlining is mine)
41. ' The above-said enunciation of the law completely meets the argument of Mr. Khalid Ishag learned counsel for the appellant. The underlined portion of the passage reproduced above quite explicitly states that in regard to paragraph 10 of M.L.R. 64, any determination by the Land Commission in respect of the status of a claimant as an heir of the donor is not final and binding on the civil Court. It is not difficult to see, therefore, that the Land Commission was not competent to conclusively determine the question of the true interpretation of the terms of the deed of waqf so as to decide the rights of a claimant as a beneficiary under ' The present case stands on a much better footing than the reported case inasmuch as, here there can be no doubt the donor had created a Waqf-alal-aulad. The only question was whether under the terms thereof the respondents were entitled to a beneficial interest as descendants of the donor in terms of the Waqf deed and whether the Waqf had ceased to be operative as a Waqf- alal-aulad. It may be appreciated that the power of the Land Commission under paragraph 10(2) of the Regulation was restricted to appropriation of the land comprising such a Waqf in the manner prescribed therein, as a consequence of the abolition of the Waqfs of such nature by subparagraph (1) of paragraph 10. Upon reading the provisions of paragraph 10 there is no provision extending adjudicative power to the Commission to determine disputed questions of title and rights of individuals, except so far as the implementation of the Regulation is concerned. Thus as already laid down by this Court the Land Commission would be competent to determine jurisdictional facts for the limited purpose of implementation of the Regulation but such determination cannot be conclusive and binding on a Civil Court of general jurisdiction seized of a matter in the lawful exercise of its jurisdiction. Certainly the Land Commission cannot suo motu raise such a question whether the Waqf claimed as a Waqf-alal-aulad was in reality .a public Waqf. The simple reason is that the Regulation makes no provision for the Land Commission for administering public. Waqfs as a necessary ingredient of the implementation of the Regulation. On the contrary the Regulation leaves intact the administration of public Waqfs to be utilized for the purpose they were created as is clear from sub-paragraph (3) of paragraph 10 read with paragraph 9(c). The only other provision in the Regulation touching land owned by public Waqf is paragraph 28-A which authorises the Commission to exempt "Waqf property" as defined in the West Pakistan Waqf Properties Ordinance, 1959, from the operation of the Regulation. Reading these provisions together, makes it clear that the ambit of the powers of the Commission, as contemplated by the Regulation did not embrace final determination of questions relating to the public nature of Waqfs, as these matters were intended to be left for determination and adjudication by competent forums outside the Regulation. Nonetheless in this case the Chief Land Commissioner did precisely what was beyond his power to do. In this connection it may he mentioned that the Land Commissioner in his order recorded his finding in the following terms:-- "Since the original beneficiaries died issueless and without appointing any Mutawalli, nobody is entitled to take benefit from the land which would thus go to charity. The petitions of appeal of all the appellants are dismissed to the extent shown above: ' I accordingly order that the entire property involved in the wakf-deed should go to charity. The Land Commission should be written for instructions as to how the property should be utilized."
42. ' It appears from the order that none of the parties raised the question that the property had ceased to be a part of Waqf-alul-aulad and had become Public Waqf. The Chief Land Commissioner in his order, dated 7-11-1959, upheld the decision of the Land Commissioner and declined to go into the question, as to what benefits would be derived by the beneficiaries on the view that he was not called upon to go into Viat question on the interpretation of the Waqf deed.
43. ' From the facts stated above it would appear that no conclusive finding could possibly be rendered on the question whether in terms of the deed of 1916, the lands comprised, in the Waqf had become public Waqf. This question could be appropriately and conclusively determined upon the assumption of control and administration by the Chief Administrator of Auger under section 6 of the Ordinance of 1961, which provided for the machinery for determining of such question by a competent Civil Court under section 7 thereof.
44. ' In the light of this discussion we have come to the conclusion that the contention raised by Mr.Khalid Ishaque that the determination by the Land Commission was binding on the Civil Court is without substance.
45. ' The last contention that remains to be examined is whether Latters Patent Appeal was maintainable before the Division Bench of the High Court. The argument in this behalf is based on the language of section 10 of the West Pakistan Waqf Properties Ordinance, 1961 which reads as under: "Decision of the District Court under section 7 or of the High Court under section 9 to be final. If there is no appeal, the decision of the District Court, or when there is an appeal, the decision in appeal shall be final."
46. ' It is argued that upon 'the decision of the learned Single Judge of High Court the right of appeal conferred by section 10 was exhausted as finality attached thereto and therefore no further appeal was competent before the. Division Bench of the High Court in terms of clause 10 of the Letters Patent applicable to the High Court. In support of this argument reliance is mainly placed on South Asia Industries Ltd. v. S.B. Sarup Singh and others (AIR 1965 SC 1442), in which the learned Judges of the Indian Supreme Court while interpreting the word "final" in section 43 of the Delhi Rent Control Act which provided an appeal to the High Court, held, that an order passed on appeal by a learned Single Judge of the High Court was final and no further appeal under clause (10) Letters Patent (Lahore) lay before a Division Bench of the same, High Court. Reliance was also placed on an earlier decision of the Indian Supreme Court reported as Union of India v. Mohindra Supply Co. (AIR 1962 SC 256), in which similar view was taken in regard to the provisions of finality in section 39(1) of the Arbitration Act, 1940. The decision in these cases turns on the assumption that an appeal under the Letters Patent was a separate and independent appeal before a superior forum. It was by this process of reasoning that the learned Judges held that on the disposal of an appeal by the learned Single Judge the provision for finality excluded a further appeal before the Division Bench.
47. The view that has prevailed in the superior Courts in Pakistan, on the other hand is that a 'Letters Patent Appeal is not in reality a further or independent appeal hut is to be regarded merely in the nature of a review by a larger Bench of the same High Court by way of special provision to bring about the final determination of the matter by the High Court. In Letters Patent Appeal No,142 of 1970 of the Lahore High Court, reported as The Chief Administrator of Auqaf v. Muhammad Khurshid and others (PLD 1973 Note 98), Anwarul Haq (Chief Justice as his Lordship then was) after reviewing a number of decided cases observed while repelling the same contention as under: "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."
48. ' Before their Lordships in that case the cases of Raja Soap Factory and Mohindra Supply Co. Were also cited. We see no reason to take a different view and hold that finality attaches to the final decision by the Letters Patent Bench under clause 10 thereof. The appeal was, therefore, competent before the Division Bench.
49. ' Learned counsel for the appellant also addressed some arguments on the interpretation of the language employed in the waqf deed of 1916, which was construed by the learned Single Judge" to have confined the beneficial interest under the waqf to some of the donors' children, who were existing at the time of the creation of the waqf and their descendants, so that according to him the respondents who were born after the date of the waqf were excluded from being the beneficiaries thereunder. We have carefully examined the judgment of the Division Bench and find that the conclusions drawn by the learned Judges on the interpretation of the language of the deed are sound F and well-reasoned, and no exception can, therefore, be taken to the view taken by them.
50. We have already reproduced the summing of the conclusion on this point from the impugned judgment herein above. As we have upheld the judgment of the Division Bench it may be clarified that nothing stated in this judgment will prejudice the rights if any that may accrue to respondent No,5, Haji Abdul Majeed according to law under para. 10 of the Land Reforms Regulation if and when the matter is taken up for disposal of the lands in terms thereof.
51. ' In the light of the discussion herein above this appeal fails and is accordingly dismissed with costs.