1. JUDGMENT; MUHAMMAD AFZAL ZULLAH, CJ.---This is an appeal through leave of the Court. The facts and point noted for grant of leave are as under:----- The appellants are the defendants in a suit filed by the respondents for declaration to the effect that the disputed property is not Waqf property and accordingly the disputed entries showing it as such are required to be cancelled. The dispute relates to property consisting of 2 shops which were held to be Waqf Ahle-e-Islam by the first appellate Court. The case of the respondents was that the disputed property was purchased by their father from the Provincial Government in 1902. He constructed the shops and was owner thereof. On his death which took place on 24th December, 1910, the case of the respondents further was, property devolved on them as his heirs. In 1968 when they intended to sell the property in question they learnt that it had been entered in the record of rights for the year 1917-18 maintained by respondent No.3, as a Waqf. They thus filed a suit for declaration to the effect that the said entry was illegal, void and ineffective on their rights.
2. The present appellants resisted the suit and pleaded that the disputed property was attached to a mosque and from times immemorial was being used as a Waqf. The trial Court dismissed the suit on limitation. The issue of Waqf was also held in favour of the aforesaid respondents. However, on cross-objections Additional District Judge came to the conclusion that the said property had been treated as a Waqf since long and also entered as such in the record of rights since 1917-18. Thus he reversed the findings of the trial Court on this point. But on the question of limitation upholding the view of the trial Court it was maintained that the property being Waqf was not in possession of the respondents and as the cause of action accrued to them in the year 1917-18 when the entry was made, the suit was barred by time. Thus, the first appellate Court dismissed the appeal also on this ground. On the R.SA. Of the respondents as stated above, the High Court accepted the appeal; and, decided both the relevant issues in favour of the. Respondents.
3. It was inter alia argued by the learned counsel that long user as in the present case world make the disputed property a Waqf and in this connection he relied on Pir Rashid-ud-Daula etc. v. Chief Administrator Auqaf, West Pakistan (PLD1971SC401).
4. The real controversy as it has now emerged before this Court is whether or not the predecessor-in- interest of the respondents had dedicated the property in dispute for charitable purposes as a Waqf for the benefit of the mosque, adjacent to the shops in question. No doubt the findings of fact rendered by the two learned Courts below were against the respondents, the High Court in a well reasoned judgment accepted their plea and decreed the suit. While the learned counsel for the appellants tried to show that the judgment of the High Court is based on misreading and non- reading of evidence, we have not been able to discover any such infirmity.
5. Coming, lastly, to the question specifically noted in the order for grant of leave to appeal; namely, that long use of a property is by itself good evidence for declaring or treating a property as a Waqf, it has to be remarked that it depends upon the circumstances of each case; as to whether the long user was as a Waqf or not. And secondly, even if it is established that the long user was as of Waqf, it would depend upon the circumstances of each case; whether the property itself was treated as Waqf or its income only was being used for purposes of Waqf. In this case the finding of the High Court on the first question is against the appellants. On the second question also we after going through the material on record have come to the conclusion that the predecessor-in-interest of the respondents might have used only the rent of the shops for purpose of spending on and maintenance of mosque. Although there is some material that this rent might also have been given to the Managers of the mosque for the same purpose but there is no evidence that, even the income was dedicated permanently for the maintenance of the mosque. Accordingly, the plea of long user also has no force and is thus of no use to the appellants.
6. In the light of what is stated above there is no force in this appeal. It is dismissed, with no order as to costs.