1. MUHAMMAD HALEEM, J.--By Notification No.3(536)/Auqaf-60, dated 19th April, 1961, the management of the property comprising an area of 19 Marlas containing Chilla Hazrat Mian Mir Sahib, Masjid, two graves, 11 shops and a 2-1/2 storeyed-house bearing No.138 and the subscriptions and offerings made to the Chilla/Masjid was taken over by the Chief Administrator of Auqaf under section 6 of the West Pakistan Waqf Properties Ordinance, 1960. The respondents thereupon filed an application under section 7 of the said Ordinance for a declaration that the property in dispute was not a Waqf property. The application was contested by the department and the District Judge by order dated 16th of April, 1960, gave the required declaration holding at the same time that respondent No.1 had failed to established adverse possession. In support of the application, the said respondent had filed mortgage deeds, rent notes, resolutions, permissions and sanctions of the Municipal Committee and a judgment of the Senior Civil Judge dated 4th of July, 1929, in a suit filed by the vendees for possession. The petitioner relied on the judgment of the High Court dated 5th of June, 1934, passed on appeal against the judgment of the Senior Civil Judge dated 4th of July, 1929. As the plea of Waqf was not taken in the suit, the High Court did not go into that question and only determined the legality of the will in favour of the legatee, Mst.Shahzadi Begum, the wife of Muhammad Hayat and the mother of respondent No.1, who had sold the land to the vendees in that suit. The High Court held that the execution of the will was not proved and, ttherefore, Umar Bakhsh, who had allegedly executed it, continued to be the owner of the property although it was in the possession of Muhammad Hayat.
2. The District Judge, on a consideration of the documents, some of which dated back to the year 1880, held that the property all along had been treated as private property and "that even in the litigation over the matter in Courts, no question that the property was Waqf, had been raised". In regard to the plea of the petitioner that the presence of Chilla showed that "the property necessarily constituted Waqf , the District Judge, upon a consideration of the petitioner's documentary and oral evidence of Abdul Ghani, who had migrated to Lahore in 1947, and worked as a Tailor in a nearby shop, held that the property did not fall within the definition of the term "Waqf Property" in section 2(6) of the Ordinance and explanation I appended thereto. 1n holding so, he observed as under:-- ---. . . . The property in dispute here, by no stretch of imagination falls within the known definition of Waqf. To start with there is no evidence to suggest that it is a permanently dedicated property.
3. There is also no satisfactory evidence to suggest that there is a public mosque situated in the property or that the property has, by user acquired the attributes of a Waqf property. Even if it were true that Hazrat Mian Mir Sahib had performed Chilla in this property, that itself would not convert the property, in the absence of a permanent dedication, into Waqf."
4. On appeal the learned Single Judge upheld the conclusion of the District Judge and further observed that the petitioner had also failed to establish that there was a mosque in the property in regard to which the respondent's plea was that there was only a "Chaubutra" for the worship of the members of his family.
5. In seeking leave to appeal the learned counsel for the petitioner contended that the High Court erred in law in not permitting the petitioner to produce documents to establish the dedication or its user as Waqf property. The reason which weighed with the learned Single Judge was that the petitioner had an opportunity to produce these documents but he failed to avail it for four years and as such it was a belated prayer. If the petitioner, by his own default, had failed to substantiate his case we see no reason why he should have been allowed the opportunity to do so at that late stage when the relevant provision is confined to a situation where documents are required to be produced for the purpose of giving the judgment.
6. It was next contended that the attribute of Waqf was evident from the fact that one of the witnesses of the respondents had admitted that there was a mosque. Since it was disputed, we asked the learned counsel for the petitioner to go and himself verify from the spot if there existed a mosque. After his inspection he reported that there was none. This being so, the finding of the Courts below receives further support that there was no dedication or user of the property as Waqf.
7. In this behalf we would like to advert to the observations of the learned Single Judge that despite the fact that Hazrat Mian Mir Sahib expired in 1635 A.D. Yet no evidence was produced to show that the Chilla was held in reverence by the public-at-large and his followers visited and performed religious ceremonies and thus it acquired the status of Waqf property; and if the Saint had used the cellar as Chilla, such user, by itself, would not make it Waqf property. The aforementioned conclusion rests on a consideration of the evidence; and as it is essentially a question of fact and the petitioner has failed to show that it suffers from any legal defect, we would not interfere with it.
8. Accordingly, we find no substance in this petition and dismiss it.