MIAN ALLAH NAWAZ, J.---The Chief Administrator Auqaf by mean of Notification No.3 (481)--- Auqaf-601, dated 30-1-1961 published it Extraordinary, Gazette of Government of Pakistan, took over control management and maintenance of shrine of Hazrat Fir Abdul Oadir Jeelani Sahib Mauza Pir Kot, tehsil and district Jhang along with the properties attached to it The properties described in the schedule arc as follows: (i)8 kanals 14 marlas containing the shrine, a mosque, two katcha and one pacca houses and graveyard in Mauza Pir Kot, tehsil and district Jhang.
(ii)Income from the cash-box placed on the shrine, offerings and Subscriptions made to the shrine.
(i.e)Agricultural land measuring 760 kanals 15 marlas in khata No.1, 3, 143, 144, 145, 146, 147, 148 and 149 in revenue estate Fatchpur Kamal, tchsil Khanpur. The said land was transferred by means of Mutation No.477 attested on 1-6-1938 Exh. Pl.
(iv)Agricultural land transferred to Pir Muhammad Afral Shah by means of mutation Exhs. P3, P4, P5 and P6.
2. Pir Aftab Ahmad Shah instituted application under section 7 of Waqf Properties Ordinance (IV of 1959) (hereinafter referred as Ordinance) for declaration to the effect that the properties mentioned in items No.3 and 4 were self-acquired properties of Pir Muhammad Afral Shah, were not dedicated to shrine and so were not waqf properties. It was claimed in the petition that the property No. (i) was gifted by the donor to the extent of half in favour of Pir Muhammad Afzal Shah and to the extent of half in favour of shrine while the properties mentioned in Exhs. P3, P4, P5 and P6 were purchased by Pir Muhammad Afzal Shah with his own funds and were incorrectly recorded in jamabandi as 3.The petition was contested by Auqaf Department and on the pleadings of the parties the learned District Judge framed the following issues:- (1)Is the land in dispute not a waqf property but the personal property of petitioner, if so how?
(2)Relief.
4. The learned District Judge after taking into consideration evidence adduced by the both parties came to the conclusion that the properties mentioned in items Nos.3 and 4 were waqf properties and so dismissed the same. The learned Single Judge of the High Court on appeal came to the same conclusion vide order dated 24-4-1965. Hence this Letters Patent Appeal.
5.The learned counsel for the appellant in support of this appeal raised following submissions:- (i)It was contended that the entries of mutation P1 clearly indicated that Muhammad Bakhsh donor made the gift of half of the property in favour of shrine and half of the property in favour of Pir Muhammad Afzal Shah. It was asserted on the strength of this entry that half of the property described in PI was not waqf property. Reliance was placed on Dilawar Shah v. The Chief Administrator of Auqaf, West Pakistan, Lahore (PLD 1971 Lahore 280) and Syed Faiz Ali Shah v. Chief Administrator of Auqaf PLD 1974 SC 17.
(ii)It was next asserted that the transaction incorporated in mutation bearing P3, P4, P5 and P6 clearly demonstrated that Pir Muhammad Afzal Shah purchased these properties with his own funds and properties were transferred in favour of person of Pir Muhammad Afzal Shah. The entries of in jamabandis were without any foundation and were totally incorrect. It was further asserted that Department had not produced an iota of evidence in support of any declaration of waqf in respect of these properties by Pir Muhammad Afzal Shah.
(i.e)It was represented that the entries of the jamahandis indicated that the properties were not waqf. On this ground it was alleged that both the Courts have misread and misconstrued the entries of jamabandis Exhs. D6, D7 and D9.
6.The reply submitted by the learned counsel for the Department may be summarised as follows:- (i)Replying the arguments of the learned counsel for the appellant in respect of the properties mentioned in P1, it was contended that the donor transferred the entire property in favour of shrine, Pir Muhammad Afzal Shah being Sajadanashin was given right to spend half of the usufruct of the land. This aspect of the transaction clearly demonstrated the intention of donor of making dedication of entire property in favour of shrine. According to learned counsel, therefore, the properties mentioned in P1 were clearly waqf property within the meaning of section 2 of the Ordinance.
(ii)As far as the entries relating to mutation P3, P4, P5 and P6 were concerned it was fairly conceded that the transaction incorporated in these documents were the transaction of sale.
According to learned counsel it was clear that Pir Muhammmad Afral Shah obtained these properties by way of purchase from different vendors. However, he further submitted that the nature of these properties for the purpose of assertion of appellant contained in the petition were to be examined by certain other features. In the first instance these transactions were oral in nature and were hit by the provisions of section 54 of the Transfer of Property Act. In the second place it was urged that these properties were described in record-of-right as a waqf property under the possession of Pir Muhammad Afral Shah. According to learned counsel the entries of record-of- right carried presumption of accuracy under section 52 of the Land Revenuc Act. Reliance was placed on Hakim Khan v. Aurangzab and others 1979 SCMR 625, Mst. Barkatev and another v.
M.B.R. And another 1981 SCMR 259, Muhammad lqbal v. SA.M. Khan PLD 1970 Lah. .116. Allah Bakhsh and others v. t'ihulam Hussain and others PLD 1975 Lah. 1349, Hussain v. Ibrahim 1988 MLD 1241, Muhammad Waqas Azeem v. Chairman, Board of Intermediate and Secondary Education, Multan 1988 MLD 791, Hakim Khan v. Aurangzeb and others 1979 SCMR 625, Mian Ghulam Ahmad v.
Muhammad Sarwar and others 1968 SCMR 573, District Council, Bahawalpur and others v.
Muhammad Obaid-ur-Rehman's and others 1968SCMR273.
(i.e)It was lastly contended that the finding of the two Courts that the properties mentioned in items Nos.3 and 4 were not waqf property, was finding of fact and was, therefore, not liable to interference in Letter Patent Appeal.
7. We have heard the arguments of the parties at length and perused the record with their help. It will be necessary at this stage to record that original record of this case was lost. We have relied upon reconstructed record. At the stage of the arguments the learned counsel for the respondent stated that the record on the file indicated some discrepancies. He, therefore, with the consent of the parties was allowed to submit the copies of documentary evidence which were in his possession.
8. Before we proceeded to determine the submissions of parties it is useful to examine the relevant applicable law. Waqf Property is defined in section 2 of the Ordinance which is as follows:-
(a) ...............
(b) ...............
(c) ...............
(d) "Waqf property" means property of any kind permanently dedicated by a person professing Islam for any purpose recognized by Islam as religious, pious or charitable, but does not include property of any waqf such as is described in section 3 of the Musalman Waqf Validating Act (VI of 1913) under which any benefit is for the time being claimable for himself by the person by whom the waqf was created or by any member of his family or descendants.
Explanation 1. If a property has been used from time immemorial for any purpose recognised, by Islam as religious, pious or charitable, then in spite of there being no evidence of express dedication, such property shall be deemed to be waqf property.
Explanation 2. Property allotted in lieu of or in exchange of waqf property left in India shall be deemed to be waqf property.
Explanation 3: Property of any kind acquired with the sale proceeds or in exchange of or from the income arising out of waqf property or from subscription raised for any purpose recognized by Islam as religious pious or charitable shall be deemed to be waqf property.
Explanation 4: The income from boxes placed at a shrine and offerings, subscriptions or article of any kind, description or use presented to a shrine or to any person at the premises of a shrine shall be deemed to be waqf property.
Explanation 5: Relief of the poor, education, worship, medical relief, maintenance of shrines or the advancement of any other object of charitable, religious or pious nature or of general public untility shall be deemed to be charitable purposes.
Explanation 6: Property permanents, dedicated for the purpose of a mosque, takia, khanqah, dargah, or other shrine shall be deemed to be waqf property.
This Ordinance was enacted to provide for proper management and administration of Waqf properties in the Province of the Punjab. These properties were dedicated by Muslim owner under the commands of divine law. The concept of waqf owes its origin to rule laid down by Holy Prophet (peace be upon him). Under the following circumstances and handed down in succession by Ibn- e-auf, Nafe Tirmizi: Omar had acquired a piece of land in the canton of Khaibar and proceeded to the Prophet, and sought his counsel to make the most pious use of it (whereupon) the Prophet declared, `tie up the property (asl--corpus) and devote the usufruct to human beings: and it is not to be sold or made the subject of gift or inheritance; devote its produce to your children your kindred and the poor in the way of God'."
The subject of the gift engaged the attention of Muslim Jurists who t further developed this concept in light of the tradition of the Holy Prophet. (peace be upon him). The consensus is that waqf signifies the dedication or consecration of property either in express terms or by implication, for any charitable or religious object or to secure any benefit to human beings to use the Court but according to expressive language of the Muslim Lawyers a dedication to any good purpose wujuh- ul-birr-wa'1-ihsan of the Shiahs or wujuh-ul-khair wa' Ibirr of the Hanafis is a waqf. This definition is given in Chapter VII in MuhammadLaw by Amir Ali 2nd Edition at page 194. In short waqf means the permanent dedication by Muslim of any property for pious purposes recognized by Muslim Law.
The dedication must be permanent. The property dedicated is transferred to the name of God Almighty, and the dedicator immediately loses his title in the said property. The object of Waqf must be religious, pious and charitable. The dedication for the purpose of maintenance of khanqah has been recognized as a valid object. Reference may be made to PLD 1966 Lahore 97S Ghulam Rasul v. Chief Administrator Auqaf.
9. The word waqf has come into consideration before superior Courts in number of cases. In PLD 1971 Lah. 280 one Dilawar Shah challenged the Notification issued by Chief Administrator Auqaf under Ordinance. It was lieged that the properties mentioned in items 1, 2 and 3 were the personal property of Dilawar Shah and were not waqf property. It was held "the evidence klating to item of property No.1 is not sufficient on which the finding can be recorded that house in question has become waqf property within the meaning of section 2 of the Ordinance-- 2, 3 and 4 were not waqf property. Item No.2 related to agricultural land situated in village Mari Shauq Shah. The learned District Judge dismissed the application to the extent of item No.3, but granted declaration to the extent of 409 kanals 3 marlas that this land was shown in record-of- right as muafi land. On appeal the learned Single Judge of the High Court reversed the finding of the learned District Judge that the property described in item No.4 was not waqf property. It was held that the property was waqf property. The Division Bench of this Court accepted the Letters Patent Appeal varied the decision of the learned Senior Judge and restored the order of the learned District Judge. By coming to conclusion that mere new entries in record-of-right which were in conflict with previous entries will not be sufficient to establish the status of property as being waqf.
10. Guided by these principles now we proceed to determine the respective contentions of the parties and also rind it useful to reproduce the finding of the learned Single Judge on this point.
"The maintenance of a Khanqah is one of the valid objects of waqf and, therefore, the mutation in the instant case (P1) has to be interpreted to mean that the property has been dedicated for the maintenance of the shrine of Hazrat Pir Abdul Oadir Jeelani Sahib, Mauza Pirkot, tehsil and district Jhang, under the towliat of Pir Muhammad Afzal Shah and the property in no case vested in the said Sajjada Nashin as his private property."
The finding of the learned Single Judge in respect of property described in item Nos.3 and 4 is as follows:- "His father and after the demise of his father, the appellant is said to have enjoyed his property but the status in which he has enjoyed this property has all the time been of a Sajjada Nashin and if he has appropriated the income of this waqf property to himself, he has been guilty of breach of the waqf but it does not mean that the property has lost its character as waqf. The Jamabandis from the year 1939-40 to 1955-56 (Exh.D4, D5, D6, D7 and PO) clearly established that the land pertaining to EXh.Pl and P3 to P6 has been throughout shown as `basoorat waqf zer-i-ihtimam Mian Muhammad Afial Shah wald Jalal Shah, Sajjada Nashin Pir Kot, district Jhang." The entries in the various Khatas have been split up showing the share of the Sajjada Nashin as owner in his personal capacity and as Sajjada Nashin for the waqf respectively and it is this latter area entered as basoorat waaf in different khatas that has been taken over by the Auqaf Department. It, therefore, cannot be urged with success that the property belonging to Pir Muhammad Afzal Shah or the appellant has been assumed control of by the Auqaf Department. Their personal property no doubt is there in Mauza Fatehpur and that has been explicitly excluded by the Auqaf Department."
11. We are of view that in reaching these conclusions the learned Single Judge was impressed by the entries of Jamabandis contained in D4 relating to year 1939-40, the Jamabandi D5 relating to year 1943-44, the Jamabandi D6 relating to year 1947-48 and Jamabandi D7 relating to year 1951- JL and Jamabandi P9 elating to year 1955-56. Of the Jamabandis brought on record the Jamabandi relating to 1939-40 is the first one containing entries with respect to disputed properties. In this Jamabandi the name of Muhammad Afzal Shah is recorded in the column of owner, while in the same Jamabandi the name of Muhammad Afzal Shah is recorded as an owner in lieu of basoorat waaf in respect of Khata No.220/144. It is also curious to note that in column of ownership it is also recorded that Muhammad Afzal Shah had mortgaged this property in favour of Muhammad Yaqub son of Allah Bachaya, caste Khoja. Similar entries repeated in this document with respect to Khata No.243/146, Khata No.225/148, Khata No.285/271, Khata No.287/283, Khata No.288/284, Khata No.301/279, Khata No.313/352. In the second Jamabandi relating to year 1943-44 the same entries are repeated. The entries in Jamabandi relating to 47--48, 51-52 and 1956 are in the same strain.
12. As far as the mutation PI is concerned it shows that one Muhammad Bakhsh made the gift of land completely described in this mutation in favour of shrine and further stipulated that half of the usufruct shall be used by Muhammad Afzal Shah for his personal use.
13. After carefully taking into consideration the entries of Pl we have no doubt in our mind that Muhammad Bakhsh made the dedication of his property to shrine and Muhammad Afzal Shah was given authority in lieu of his authority as Sajjada Nashin to spend half of the usufruct of this land. To our mind, therefore, this property was dedicated to shrine and had been used as such from 1938.
The entries of Jamabandis in this respect carry the presumption of correctness. We, therefore, are of view that the finding of the two Courts below on this item of property is not open to any exception.
14. Having determined the contention of the parties with respect to the property described in Pl, now we proceed to examine the nature of property described in mutations Nos.3, 4, 5 and 6. From the tenor of the mutations it is quite clear that the transactions contained in these mutations were still in favour of Muhammad Afzal Shah but even the learned counsel for the Auqaf Department conceded the nature of these transactions. The question calling for examination is as to whether the entries (basoorat waqf) in the Jamabandis noted above is sufficient to support the conclusion that the properties were waqf in nature. We are afraid we do not subscribe to the stand of Auqaf Department. The appellant produced oral evidence as well as mutations to prove that the documents were sale and the property described in these mutations were the self --acquired property of Muhammad Afzal Shah by way of sale and was never dedicated to shrine. On the other hand the Department is simply relying upon the entries of the Jamabandis which are transparently in conflict with the original mutations. No evidence for user of property as a waqf has been given by Department. So we are only left with the oral evidence adduced by the appellant and the mutations P3, P4, P5 and P6 and the entries of Jamabandis.
15. There is no dispute with the proposition that under section 52 of the Land Revenue Act the presumption of correctness is attached to the entries of the Jamabandi but this presumption is rebuttable. If it is shown that these entries are built upon no evidence or there is conflict with earlier entries the presumption of correctness attached to these entries is diminished. A reference may be made to 103 Indian Case 266 (Mst. Alo and others v. Sher and others), 41 I.C. 755 (Sant Singh and others v. Frangu and others 1927 Lah. 607 (Mst. Alo and others v. She: and others), 1935 Lah. 108 (Data Ram v. Khazan Ram and others). It is needless to mention other authorities for or against this proposition except to reiterate that the presumption of accuracy attached to entries in Jamabandis is rebuttable and is demolished by showing the nature of these entries to be false. In 1938 the mutations P3, P4, P5, P6 and P7 were sanctioned. They were incorporated in Jamabandi relating to 1943-44. In these entries Muhammad Afzal Shah in some cases was recorded as owner in possession of the property while in others he was recorded in column of ownership with word "basoorat waqf'. No evidence has come as to on what basis the word basoorat waqf has been inserted. We have, therefore, no doubt in mind that this entry basoorat waqf is not correct r and is without any factual as well as legal foundation. We have, therefore, arrived at conclusion that in presence of uncontroverted testimony of appellant that the property described in mutation Nos.3, 4, 5 and 6 is not a waqf property and is the personal property of the appellant. Neither it was dedicated to shrine nor it had been used as a waqf property of the said shrine.
16. In result this Letters Patent Appeal succeeds. The appeal is accepted to the extent of the property described in mutations Nos.3, 4, 5 and 6. We declare that this property is not waqf property while the application of the appellant to the extent of agricultural property mentioned in Pl is dismissed. Since the questions involved in this L.P.A. Were not free from difficulties we leave to parties to bear their own costs.