' For a proper appreciation of the points involved in this appeal which are to be disposed of by this judgment it is necessary to refer the relevant facts in some detail.
2. The Chief Administrator of Auqaf, Sindh, Hyderabad, in exercise of powers conferred on him by section 6 of the West Pakistan Waqf Properties Ordinance, 1961, took over and assumed the administration, control, management, and maintenance of Dargah Sakhi Sikandar Bodla (commonly known as Bodla Bahar), situated at Schwan Sharif and of the properties attached thereto under notification dated 15-11-1971, which are as follows:-
(i) Dargah Sakhi Sikandar Bodla Bahar with a mosque, Bahisti Darwaza and 2 rooms attached on southern side of Dargah.
(ii) 3 rooms, 2 Tazia Khana and a temporarily covered hall attached to eastern side of Dargah.
(iii) (iii) 9 rooms, room containing Turbat of Ghafoor Shah, 2 hall rooms, Langer Khana, Tosha Khana, Chiraghi room, Naubat room and Landhi.
(iv) Charity box placed at the Dargah alongwith subscription and offerings made thereto.
(v) Credit balance of Waqf income lying with Mutwalli Ghulam Shabbir Shah alias Din Ali Shah.
3. The respondent filed a petition under section 7 of the West Pakistan Waqf Properties Ordinance, 1%1, against the appellant in the Court of District Judge, Dadu challenging the above notification for the following reasons:-
(a) That all the property except mosque shown in the Schedule is the personal property of the petitioner.
(b) That except mosque, the other property shown in the schedule was never dedicated by the petitioner or his ancestors as Waqf nor the said property or any part thereof was ever used in any manner so as to indicate that it was a Waqf Property.
(c) That the said property has always been used by the petitioner for his personal use. There is a HAVELI and OTAQ which are wrongly described in the Schedule. There are neither Tazia Khanas, Langer Khana, Tosha Khana, Chiraghi room nor Naubat room, which have been wrongly described.
The number of rooms has been exaggerated. There are a fcw rooms which are guest houses
(OTAQ) of the petitioner.
(d) That the publication of the (sic) the Gazette Notification, dated. November 24, 1971 assumed that the petitioner's property was attached to the Dargah of Sakhi Sikandar Bodla Bahar, but the petitioner's property was never attached to the Dargah of Sakhi Sikandar Bodla Bahar. In fact there is no such Dargah but there is only a small tomb constructed by the ancestors of the, petitioncr over the grave of Sakhi Sikandar. This property has always been his own property and had nothing to do with the Dargah of Sakhi Bodla Bahar or any allied institution whatsoever.
(e) That no notice was served on the petitioner prior to the impugned action which the opponent (now appellant) has taken against the properties of the petitioner, with the result that the said action of the opponent is without jurisdiction and is a nullity in law.
(f)
4. The appellant has controverted the allegations based on facts. According to him the properties in question are being used for the pious, charitable and religious purposes, since the time immemorial, hence they are public Waqf by user and since the said properties are public Waqf, the Auqaf Department has legally assumed its control under the provisions of the West Pakistan Waqf Properties Ordinance, 1961.
5. The parties went to trial on the following issues:- "(1) Whether the properties except the mosque shown in the schedule attached with the notification arc Wakf property and not the personal property of the petitioner?
(2) Whether the properties shown in the schedule are attached to the Dargah of `Sakhi Sikandar Bodela Bahar'?
(3) Whether the description of the properties given in the schedule is correct?
(4) Whether the notification issued by the defendant and the subsequent assumption of the administration, control and management of the properties shown in the schedule is legal and proper?
(5) What.Should the decree be?
6. The respondent examined himself (P.W.1), Abdul Taqi (P.W.2), Gulzar Ali (P.W.3), and Ghulam Qasim Shah (P.W.4). To rebut this evidence the appellant examined Ghulam Muhammad (D.W-1), Haji. Haroon (D.W2), Abdul Kader (D.W-3), and Agha Hussain (D.W-4).
7. On the assessm ent of evidence, both oral as well as documentary, the learned. Additional District Judge Dadu (Mr. Abdul Jabbar Bachani), decided almost all the material issues in favour of respondent vide judgment dated 29-1-1976. It is in these circumstances that the present appeal has been filed.
8. I have heard Mr. Shaukat H. Zubedi, learned A.-A.G. For the appellant and Mr. Niamatullah Qureshi, learned counsel for the respondent. I have also gone through the record of this case carefully.
9. Ghulam Shabbir Shah, the respondent as his own witness (P.W.1) has testified to the effect that the disputed properties were constructed by his ancestors from their own funds and he has been living in the HAVELI alongwith his family membeRs, He has placed on record a pedigree (Exh .20/A) in support of his claim, which was found to be a genuine document by the learned Additional District Judge for the following reasons:- " As I have examined the document of succession from its old style of writing, it appears to me to be an old document which is neither displaced by any entry from the official record which if the place was of religious character would have been there in the record and is not produced. Then Abdul Qadir, Auqaf Manager has also not stated in the evidence denying its line of succession. So, if there is no evidence the document must be presumed to be a genuine document, that the petitioner was the descendant of Bodla Bahar."
10. The evidence of Ghulam Shabbir Shah (P.W.1) further shows that the rooms attached to the HAVELI were being used as guest house to accommodate the visitors during the URS of Qalandar Lal Shahbaz. The evidence of Ghulam Shabbir Shah (P.W.1) gets full support from Abdul Taqi (P.W.2), Gulzar Ali (P.W.3), and Ghulam Qasim Shah (P.W.4).
11. The superior type of evidence brought on record (Exh.20/A) in this respect is the pedigree. The oral word can only dislodge the belief created by the document in the event of its being of a reliable nature having the force enough to shake the solemnity of the document. In the present case the oral evidence led by the appellant is worthless. Ghulam Muhammad (D.W.1) who was the first witness produced by the appellant has in fact supported the case set up by the respondent in the following words:- "There is one big HAVELI which is occupied by the family of the applicant. This HAVELI was constructed by the ancestors of the applicant. The rooms were also constructed by them. We have heard (that) the applicant is the descendent of Bodla Bahar at 17th step of `Pirhi'. So many persons come and reside in the rooms at the time of fair of Qalander Lal Shahbaz. They used to charge them some times and some times they used not to charge some of them. I am a contractor of Auqaf Department."
12. As rightly observed by the learned Additional District Judge the burden of proof in respect of issue No,1 lay upon the respondent, but where the entire evidence has been produced the question of onus ceases to have any importance, and in the above circumstances the onus will shift to appellant as soon as the respondent adduced sufficient evidence to raise a presumption in his favour.
13. As observed in the case of Fakir Dost Muhammad v. Seth Chainrai and others, reported in AIR 1940 Sindh 43, "Wakf implies dedication by a person professing Musalman faith of any property for charity, or for religious objects or purposes, or for an object of public utility." Since the decision of this case hinges on the definition of Waqf property' as given in section 2 (d) of the West Pakistan Waqf Properties Ordinance, 1961, it would be convenient to read the material provisions of the said section, which are in the following terms:- `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 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 recognized 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 he 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 subscriptions 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 articles 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 utility shall be deemed to be charitable purposes. Explanation 6.-- Property permanently dedicated for the purposes of a mosque, Takia, Khankah, Dargah, or other shrine shall be deemed to be Waqf property."
14. It is not the case of appellant that the properties in question were dedicated expressly for any purpose recognised by Islam as religious, pious or charitable. The appellant has in fact based his case on Explanation No,1, and Explanation 3 to section 2 (d) of the West Pakistan Waqf Properties Ordinance, 1961, reproduced above. There is, however, no satisfactory evidence on record to prove that the properties in question have been used from time immemorial for any purpose recognized by Islam as religious, pious or charitable.. Likewise there is no evidence or record to prove that the.
Properties in question were acquired with the sale-proceeds or in exahange of or from the income arising out of Waqf property or from subscriptions raised for any purpose recognised by Islam as religious, pious or charitable. The evidence tendered by Ghulam Muhammad (D.W.1), Haji Haroon (D.W.2) Abdul Kader (D.W.3), and Agha Hussain (D.W.4) leads us nowhere. The essential issue in this appeal was thus rightly decided by the trial Court in favour of respondent and the learned A.A.-G.
For the appellant has very little to say.
15. In the result the appeal fails and is dismissed with no order as to costs.