1. MUHAMMAD AFZAL ZULLAH, C J: --This direct appeal is from an appellate judgment dated 7-2- 1989 of the Lahore High Court, in a Waqf case. The respondents' appeal was allowed.
2. The facts briefly stated are that the land was allotted under Land Settlement Act in lieu of the land left in East Punjab where it is established position it was Waqf property having been dedicated by the predecessor-in---interest of the appellant to Khanka Hazrat Miran Sahib and thus it was attached to the shrine.
3. Through usual notification under the Waqf Ordinance 1961 published in 1964 the land allotted to appellant was taken over as Waqf. The appellant's application for a declaration otherwise and for other reliefs was allowed by a District Court to the extent that 1/3rd of the total income of the land was declared to be not a Waqf property. And further that in lieu of the income the Auqaf Department may in its discretion allow the applicant (appellant herein) to retain 1/3rd of the property itself.
4. The respondents' appeal in the High Court having been allowed on findings of fact which have gone against the appellant and the impugned judgment being one of reversal he has preferred this direct appeal. The relevant provision in the Ordinance 1961, regarding the jurisdiction of the District Court reads as follows:----- "7. Petition to District Court against Notification.-- (1) Any person claiming any interest, in any Waqf property in respect of which a notification has been issued under the last preceding section may, within thirty days of the publication of such notification, petition the District Court within whose jurisdiction a part of the Waqf property is situated for a declaration:- (a)that the property is not Waqf property; (b)that the property is Waqf property within limits stated in the petition: Provided that, notwithstanding anything contained in any law for the time being in force, or in any custom or usage, or in any decree, judgment, or order of any Court or other authority, or in any proceeding pending before any Court or other authority no such petition shall lie in respect of any interest in the income, offerings, subscriptions or articles, referred to in Explanation 4 to clause (d) of section 2, or the services or ceremonies (Rasoomat) mentioned in section 6.
(2) The District Court may, for reasons to be recorded, refuse to issue any process for compelling the attendance of any witness for the purpose of examination or the production of any document or other thing if it considers that it has been made for the purpose of vexation or delay."
5. Waqf property has been defined in the Ordinance as follows:-
2. Definitions -----------------------
(a) ------------------------
(aa) -------------------------
(b) -------------------------
(c) ------------------------
(d) "Waqf property" means property of any kind permanently dedicated by a person professing Islam for any purpose recognised by Islam as religious, pious or charitable, but does not include property of any Waqf such as is described in section 3 of the Mussalman Wakf Validating Act, 1913 (VI of 1913), under which any benefit is for the time being claimable for himself by the person by whom the Wakf was created or by any member of his family or descendants".
6. Learned counsel for the appellant relied on the following factual finding by the Manager of the respondents' Department:- "As regards the proof about the rights of the Sajjada Nashin to receive any share out of the income, of the property as already stated in item No.1 there is no documentary proof. However, the affidavit by the Sajjada Nashin and statements of the followers of the Gaddi shows that in India 1/3rd income of the land attached to the shrine was used by the Sajjada Nashin on their personal and their family expenses because there was no other property in possession of the forefathers of the present Sajjada Nashin except the said land which was acquired by them out of their own income and they did not reserve any property for their use. I observed that since the forefathers of the Sajjada Nashin dedicated the whole self-acquired property it is understood that they would use to meet their own and their family expanses out of the income of the said property and as such the affidavit and statements in his behalf seem to be correct and relied upon".
7. The underlined portion, after some discussion; has been agreed to be the finding of the Manager.
8. The earlier part, it is true, is only a statement of what is the case and claim of the appellant. This finding although disputed from the respondents' side as not being binding on the Department, according to learned counsel for the appellant, has considerable support from the other material on record. Therefore, according to learned counsel, the findings of the learned trial Court were not liable to be set aside in appeal before the High Court; and, merited to be restored. We do not agree with him; as, the findings by the High Court in this behalf after due scrutiny appeared to us to be unexceptionable. However, even if we were to hold otherwise, that the 1/3rd income of the land attached to the shrine might have been enjoyed by the appellant and/or his father it was not as independent owner or beneficiary under the Waqf, but only as a Sajjada Nashin deriving benefit from income like a Manager of the dedicated property and no more. The question: whether, thus determined nature of the benefit can be treated as what is described in the definition of Waqf property as, "property of any waqf such as is described in section 3 of the Mussalman Wakf Validating Act, 1913 (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", was also considered during the arguments. Section 3 of the Mussalman Wakf Validating Act, 1913, reads as follows:- "3. Power of Mussalmans to create certain Wakfs.- It shall be lawful for any person professing the Mussalman faith to create a Wakf which in all , other respects is in accordance with the Provisions of Mussalman Law, for the following among other purposes:-
(a) for the maintenance and support wholly or partially of his family, children or descendants, and
(b) where the person creating Wakf is a Hanafi Mussalman, also for his own maintenance and support during his lifetime or for the payment of his debts out of the rents and profits of the property dedicated:- Provided that ultimate benefit is in such cases expressly or impliedly reserved for the poor or for any other purpose recognised by the Mussalman law as a religious, pious or charitable purpose of a permanent character".
9. These are the provisions about Wakf-ul-Aulad regarding which the mighty clash took place between two systems of jurisprudence. One the Western Anglo Sexon and the other Islamic jurisprudence. What in the former was thought as illusory, in the latter was treated as one of the manifestations of high piety, after due legislative action with full wisdom and industry. The latter point of view was also propounded, projected and pressed by no less a personality than the Quaid-i-Azam Muhammad Ali Jinnah himself as a great lawyer and great Parliamentarian as was expected of him. Unfortunately in matter of land this point of view has suffered some dent on account of so-called Land Reforms; most of which stand already annulled by Shariat Appellate Bench of this Court under the thrust and enforcement of the Injunctions of Islam contained in Quran and Sunnah under the commands and mandates of our Constitutional set up. There is no need to make any further comment on this issue because this particular aspect might well be brought under discussion in the law making forums.
10. Coming back to the position which it was suggested at the Bar, could be asserted on the basis of section 3 of the Mussalman Waqf Validating Act, it has to be straightaway observed that there is no evidence nor other material to come to the conclusion that the dedicator while creating the Waqf made a dedication in the nature of the Waqf-alai-Aulad as is commonly known when it is made by virtue of the law of Waqf as recognised in said section 3. , Learned counsel relied on the conduct of the Sajjada Nashin in appropriating 1/3rd from the income or benefit, as circumstantial material, on the above question as supporting the appellant.
11. We do not agree in this behalf either. The receiving and spending of income to the extent of 1/3rd by the Sajjada Nashin had no peculiar features other than that of a Sajjada Nashin receiving the income as Sajjada Nashin and not as "any member of the family of the dedicator or his descendants" envisaged in section 3.
12. After hearing this appeal at some length in the light of the foregoing discussion, we not having found any force in it, dismiss the same. There shall be no order as to costs.