' Brief facts of the case are that land measuring 30 Kanals 2 Marlas was allotted in the name of Khanqah Inayat Shah and 27 Kanals in the name of Takya Gulzar Shah in Mauza Chatha Dad, Tehsil Hafizabad, District Gujranwala. The allotment was made in lieu of the land abandoned by the Khanqah and the Takya in India. Takya Gulzar Shah was managed by Muhammad Yousuf and Khanqah Shah Inayat by Wazir Shah. The appellants claim to have purchased land measuring 30 Kanals and 19 Marlas from the heirs of Muhammad Yousuf and Wazir Shah vide sale deeds dated 7-11-1963 (Exh. P2) and-dated 6-6-1969 (Exh. P.3).
2. In the year 1972, the Chief Administrator Auqaf, respondent No,1 issued Notification No,19-4-1972 (Exh. Dl) taking over the management of control and administration of 30 Kanals and 2 Marlas of land/Waqf property belonging to Khanqah Inayat Shah. Another piece of land measuring 27 Kanals attached to Takya Gulzar Shah was also taken over through Notification No,1 (590) Auqaf/70, dated 19th April 1972 (Exh.D4). The appellants assailed the validity of the two notifications through a petition filed under section 7 of the West Pakistan Waqf Properties Ordinance, 1961 wherein they prayed for a declaration that the disputed property was not Waqf. The District Judge recorded evidence of the parties and then dismissed the petition vide his order dated 29-10-1979.
3. The appellants' learned counsel urged that the land stood allotted to Wazir Shah and Muhammad Yousuf and that they purchased it from their legal representatives who were apparently owners in possession. Hence they were bona fide purchasers. He further submitted that the trial Court failed to frame an issue as to whether the appellants were bona fide purchasers of disputed property. Hence the judgment sufferd from a patent illegality. In this connection he placed reliance on the case of Mst. Nur Jahan Begum v. Muhammad Ahsan Ullah Khan and others (PLD 1960 Lahore 181). He added that by virtue of provisions of section 110 of the Evidence Act (now equivalent to Article 126 of Qanun-e-Shahadat), there was a presumption of valid title in favour of the appellants who were in cultivate possession of the land and burden to prove the contrary was that of the respondents. In this connection he placed reliance on the following judgments:-
(i) Chief Administrator, Auqaf v. Malik Muhammad Din (PLD 1974 Note 68 at p.107), and
(ii) Chief Administrator of Auqaf, Sindh and another v. Ibrahim Shah and 2 others (PLD 1975 Karachi 964).
' He pointed out that after purchasing the land, it was mutated in the name of the appellants whose names were duly incorporated in the Jamabandi pertaining to the year 1964-65, Exh. P1.
4. On the other hand the learned counsel for the respondents urged that the land was evacuee property allotted in the names of the Khanqah and the Takya in lieu of the property abandoned in India and was Waqf property within the meaning of explanation (ii) of section 2 of the W.P. Waqf Properties Ordinance, 1961. Hence legal heirs of Wazir Shah and Yousuf Shah had no right or title to sell the land. If at all they could sell their right/interest regarding management and supervision of the property. He refers to paras 192 to 199 from Mulla's Book of Mohammadan Law (Pakistan Edition of 1988, published by Mansoor Book Depot, Lahore) to urge that the Mutawallis had no right to sell the property. He has also referred to the judgments in the case of Ghulam Shabbir v. Mst. Nur Begum and others (PLD 1977 SC 75) to urge that once Waqf is created, the act of malfeasance and misfeasance on the part of the Mutwalli cannot invalidate it. He added that the dispute pertained to two distinct properties and two separate petitions should have been filed to challenge the notification issued by the respondents. As regards the question of framing a separate issue regarding the so-called bona fide purchase of the land by the appellants, the learned counsel submitted that it was mainly covered by issue No,1, which was in the following words:- "Whether the property involved is not Waqf property? OPP.
' He explained that the language of the issue clearly indicated that it was framed on the specific assertion made by the appellants that they were owners of the property and for that reasons it was not Waqf property. Hence there was no need to frame a separate issue on the points of bona fide purchase. The onus of issue, he submitted, was rightly placed on the appellants. He tried to distinguish the judgment in the case of Ibrahim Shah on the ground that it pertained to a claim for adverse possession and had no bearing on the facts of the present case.
5. In reply the learned counsel for the appellants submitted that no objection was raised before the trial Court that two separate petitions should have been filed in respect of the two Waqf properties.
Hence, at this belated stage, the said objection could not be allowed to be raised.
6. The controversy in the present case primarily relates to the nature and character of the land. The appellants petitioned to the Court for a declaration that the property was not Waqf and that they were lawful owners of the same. The facts borne out on the record show that the disputed land was allotted in the name of Khanqah Inayat Shah and Takya Gulzar Shah in lieu of the land abandoned by the said Khanqah and the Takya in India. There is no dispute that the land/property attached to the Khanqah and the Takya in India was Waqf property. Hence by virtue of explanation 2 of section 2 of the W.P. Waqf Properties Ordinance, 1961, the disputed land is clearly Waqf- property. The above-referred provision of law is reproduced below for ready reference:- "Property allotted in lieu of or in exchange of Waqf property left in India shall be deemed to be Waqf property."
' The above provision of law came up for considration before the Hon'ble Supreme Court in an unreported case (CA. No,369 of 1980, decided on 25-5-1988) in which the precise question before the Court was whether under para. 56 of the West Pakistan Rehabilitation and Settlement Scheme land transferred to a Mutwalli in lieu of the land attached to Moolianwali Mosque in India was Waqf within the meaning of explanation 2 to section .2 of the West Pakistan Waqf Properties Ordinance, 1961 repealed and re-enacted as Punjab Waqf Properties Ordinance, 1979. The respondents before the Supreme Court tried to urge that the land abandoned by him in India was actually donated to his grandfather by Headman of the village and that it was newr dedicated or donated to the mosque. It appears that the Court was not impressed by the contention of the respondent and was rather inclined to believe that the land was dedicated to the mosque in India and that respondents were allotted the land in Pakistan as trustees or Mutawallis of the mosque. Hence they could not claim it to be their personal estate. In its earlier judgment the Hon'ble Supreme Court was pleased to rely on the case of Addl. Settlement Commissioner (Land) v. Muhammad Shafi (PLD 1971 SC 791) and particularly referred to the following para. From the said judgment:- "I am further confirmed in this view by reason of the fact that trustees or Mutawallis who were also entitled under paragraph 56 of the Rehabilitation Settlement Scheme to file claims and to obtain allotments will all their legal attributes and consequences under the scheme do not take the allotted property as their personal estate but the allotted property remains subject to the ordinary incidents of a trust or a Waqf even though there is no special rule laid down in the Scheme itself with regard to such properties. If the High Court's reasoning be valid then such Mutawallis or Managers of trusts would be logically entitled to claim that they have received the allotment in their own personal right and, thus, deprive the beneficiaries of the trust or the waqf of their beneficial interests in the allotted property. This could not have been the intention of the framers of the scheme, and I find it difficult to accept the view propounded by the High Court th the Full Bench decision in the case Of Sher Muhammad v. Additional Rehabilitation Commissioner."
7. In the present case it is evident that both Wazir Shah and Muhammad" Yousuf were the managers or Mutawallis of Khanqah Inayat Shah and Takya Gulzar Shah. The land allotted to the Khanqah and the Takya was clearly Waqaf property within the meaning of explanation 2 to section 2 of the Act as interpreted by the Hon'ble Supreme Court in the case of Muhammad Shafi and that of Muhamamd Siddiq referred to above. A Mutawalli under the Islamic Law has no right in the property belonging to the Waqf. The property is not vested in him. He is merely a Superintendent or Manager of the Waqf property as stated in para. 192 of the Mahomedan Law by Mulla (Pakistan Edition 1988). The Mutawalli can appoint his successor on his death-bed but cannot do so while being in good health. That being so, the legal representatives of the deceased Mutawallis had no right to transfer the ownership of the Waqf property or even to appoint some other person to enjoy superintendence or management of the Waqf property.
8. The argument raised by the appellant's learned counsel that a proper issue regarding bona fide purchase of land by the appellants was not struck and for that reason the impugned judgment becomes illegal has no force. The appellants in their petition under section 7 of the Waqf Properties.
Ordinance, 1961 had claimed the declaration that the disputed property was not Waqf on the ground of being owners in cultivating possession of the land and were fully conscious that they were supposed to prove bona fide purchase of the land. The Court framed issue No,1 in the following words:- "Whether the property involved is not a Waqf property"
It was wide enough to cover the issue relating to bona fide purchase of the property by the appellants. The appellants had opted to approach the court for a declaration that the property was not Waqf and were bound to prove the assertion made by them. Admittedly the land was allotted to the Khanqah and the Takya and Wazir Shah and Yousuf Shah were mere Mutawallis or administrators of the Waqf property. The mere fact that the land was transferred to the appellants through a registered deed was not sufficient in the circumstances of the case, to place burden of proof on the Auqaf Department to establish that it was a Waqf property. It appears that no objection was raised before the trial Court regarding placement of onus on the appellants. Hence this objection cannot be allowed to be raised at this belated stage. The judgment in the case of Mst. Noor Jehan Begum is distinguishable because in that case the dispute pertained to privately- owned land and in that context it was observed that when plaintiff was shown as owner in the Jamabandi and the defendant controverted the correctness of the entries the onus should have been placed on the defendants. In the present case there were documents to show that the land was allotted in lieu of the land attached to Khanqah Inayat Shah and Takya Gulzar Shah. Prima facie, it was a Waqf property and the mere registered sale-deed regarding transfer of ownership to the appellants was not enough for placing onus of proof on the department. In Malik Muhammad Din's case relied upon by the appellants' learned counsel the disputed property alone was not known as Takya Noor Shah but the whole Mohallah was known as such. Despite that onus of proof was placed on Malik Muhammad Din, who had petitioned for a declaration that the property was not waqf. Ibrahim Shah's case is also distinguishable. The dispute in the said case pertained to a small piece of property bearing No, GK2/1-A, measuring 75 sq. Yards which was occupied by Ibrahim Shah in 1966, put up construction thereon and got it assessed for purposes of excise and taxation under independent property No,GK2/1-A and had been paying property tax as an owner.
Under these circumstances the Court was pleased to observe that the burden of proof shifted to the department to show that it was Waqf property. Hence, in the present case the learned District Judge had rightly framed the issue and placed its onus on the appellants and after perusing the relevant material rightly held that the property was Waqf. The respondents' objection that the appellants should have filed two separate petitions to assail the validity of the two notifications has no force. Firstly this objection was not raised before the trial Court and could not be allowed to be raised for the first time in the present appeal. Moreover, common questions of law and fact were involved and parties in both the cases were the same. Therefore, only one petition was maintainable to assail the validity of the two notifications.
9. I have noticed that even after the issuance of the notification for taking over the management and administration of the Waqf property the department had been leasing out the agricultural land to different persons including Jahana, appellant No,1. Irshad Ahmad Bajwa, Manager Auqaf, who appeared as D.W.I stated that on 6-5-1972 the property was leased out to Jahana appellant No,1 for a period of three years. There is no shrine or Khanqah at the disputed land which may specially require management of the property by the Auqaf Department. The land is agricultural in nature and can be profitably utilised by leasing it out to some cultivator. The department may, therefore, consider the advisibility of leasing it out to the appellants who had spent some money by entering into sale transactions in respect of the disputed land with the Mutwallis of Waqf property.
10. For the foregoing discussion I find no merit in this appeal which is dismissed with the above observation, leaving the parties to bear their own costs.