' By a judgment announced on 17-2-1983, Mian Jahangir Pervaiz, Additional District Judge, Lahore, dismissed a petition filed by Batool Begum under section 11 of Punjab Waqf Properties Ordinance, 1979, assailing the validity and operativeness of a notification issued by the Chief Aministrator, Auqaf, taking over control and management of the `Mazer' of Baba Rehmat Shah, situated in Khasra No,340, revenue estate of Raiwind, Tehsil and District Lahore. She has preferred the present appeal, maintaining that the learned lower forum has not correctly appreciated her view-point and has not given a sound verdict.
2. Batool Begum, who is now dead and has been replaced by her legal representatives, Haji Muhammad Siddique (her husband), Munir Ahmad and Nasir Ahmad (sons), in the course of pro- ceedings pending in this Court, had pleaded that she had built the tomb and the adjoining mosque, in an area of 10 Marlas, and the Auqaf Department has wrongly occupied the total area of four Kanals, including a parcel of land, measuring 3-1/2 Kanals, belonging to her. Khasra No,340 measured 24 Kanals and 6 Marlas, out of which Batool Begum was owner of an area of 18 Kanals and 16 Mamas. In that area was situate the shrine in question, covering, alongwith the attached mosque, an area of hardly 10 Marlas. It has nowhere come on record as to when did the saint die and when was the tomb erected. It, however, seems that the late saint had lot of following in the area. People visited the shrine in order to pay homage and even an annual Urs used to be celebrated with full fervour, as is indicated by a poster Exh.PW2/2, announcing such celebration to take place on 4th to 6th, August, 1981 (20th to 22nd Sawan). The Auqaf Department claims to have taken over control and management of the shrine in as back as March, 1977. It is, however, surprising that the notification dated 26-3-1977, issued in that behalf, was published in the Punjab Gazette on 26-7-1981, that is, with a delay of about 4-1/3 yeaRs,
3. Batool Begum had filed a civil suit for permanent injunction, against the Auqaf Department, in the year 1980, and in the course of proceedings of that suit, the defendant's counsel had produced the relevant notification in the Court on 10-9-1981. The suit was withdrawn and instead a petition under section 11, Punjab Waqf Properties Ordinance, 1979 was presented by Batool Begum before the learned Additional District Judge, Lahore, on 4-10-1981. In the amended form it was submitted on 3- 5-1982 before Mr. Aqeel Ahmad Khan, ADJ, Lahore. The respondent filed a rejoinder on 28-11-1981, making a request for rejection of the petition, taking up a preliminary plea that the petition was barred by the law of limitation.
4. It is submitted by the learned counsel for the appellant that the department had concealed its act, purporting to have acquired control, management or possession of the premises, for a pretty long period and there is no worthwhile explanation available about inability of the Government in notifying the acquisition in time. It is maintained that petition under section 11, having been filed on 4-10-1981, assailing the notification published on 26-7-1981, must be treated to have been brought in time, as it had come to the knowledge of the lady on 10-9-1981, when it had been produced in the Civil Court by the Auqaf Department, in the proceedings of the civil suit. It is, however, to be noted that the very act of the lady having brought a civil action for perpetual injunction against the Auqaf Department would indicate that she had become aware of acquisition of control of the shrine by the Auqaf Department, sometime in the year 1980, and 'actually long before, in the year 1975, when the land was got demarcated, as per demarcation report dated 21-6-1975, (Exh.PC), followed by a subsequent similar report dated 8-5-1979, Exh.PD. It is, however, true that the notification was published in the Punjab Gazette on 26-7-1981 and a period of 30 days is provided for filing a petition under section 11 of the Ordinance.
5. Learned counsel for the respondent has placed reliance on Elahi Bakhsh v. Chief Administrator, Waqf Property (1982 SCM R 160), in which case there was delay of only 11 days and the petitioner had taken up the stand that being resident of a far-flung village, he could not become aware of the notification, and he had also filed an application under section 5 of the Limitation Act, for condonation of delay, but the High Court and the Supreme Court took a stringent view and treated the petition to be time-barred. According to the learned counsel for the appellants, their predecessor-ininterest, Batool Begum had been pursuing the matter in the Civil Court and thus cannot be held to have been guilty of laches or even on compliance in the matter, It is, however, well known that agitating a matter in the wrong forum or under a wrong advice of an advocate, would constitute a circumstance, operating in favour of an indolent or erratic litigant in no manner and with no extenuation, as has been pronounced in Chief Administrator of Auqaf v. Muhammad Ramzan (PLD 1991 SC 102). Unfortunately, as such, no indulgence could be extended to Batool Begum petitioner, in so far as the issue of limitation is concerned. In this regard, it may be pointed out that celebration of annual `Urs', at least, on 4th to 6th August, 1981, as indicated by the pamphlet or poster Exh.RW2/2, would have left little doubt about the management of the shrine having been taken over by Auqaf Department. The `Urs' celebrations must have taken place in the preceding year, as well, and it must have gained wide publicity in the area. That was enough to put the petitioner on guard and she was expected to have made a probe as to how and when had the control of `Darbar' been assumed by the Auqaf Department. She thus could not possibly plead ignorance in the matter. Her petition under section 11, therefore, could not be treated to have been filed within the prescribed period of limitation.
6. On merits as well, Batool Beguni did not seem to have a sound cause. There is no documentary proof about the extent of the area initially covered by the shrine and the attached mosque, claimed by the lady to have been built by spending from her own pocket, on a tract of land belonging to her. Her husband, Muhammad Siddique, as PW2, deposed that she had not actually created any Waqf and in any case the area under the tomb and the mosque did not exceed 10 Marlas. The demarcation reports, Exhs. PC and PD, I must say, lead nowhere, and do not subscribe to her view-point. In the report dated 8-5-1979, Exh.PD, it is stated that an area of 8 Kanals of land in Khasra No, 340 is Ghair Mumkin, but the subsequent note is confusing. It says that there is orchard in an area of 6 Kanals and a graveyard and public path in an area of 7 Kanals. Of course, the area under the Darbar' and the `Masjid' has been given as 10 Marlas. In the earlier report dated 21-6-1975, Exh.PC, what has been recorded is that the Khanqah covers an area of 12 Marlas, and the total land earmarked for the graveyard, originally as 1 Kanal and 16 Marlas, has thus been curtailed to 1 Kanal and 4 Marlas. In the adjoining Khasra No, 338, there is a mosque (Ghair Mumkin) covering an area of 1 Kanal and 3 Marlas. Total area shown as graveyard is 4 Kanals, comprised in khasra Nos, 339 and 340. Adjacent to the mosque, there is a `Kacha' passage and Dera' of a 'Malang'. At another place the land under the graveyard and the passage has been shown to be 2 Kanals and 4 Marlas, in Khasra No, 340. Thus the demarcation in question had confused the issue instead of clearing it.
7. In the record of rights, for the year 1972-73, PW1/1, 7 Kanals of land comprised in Khasra No, 340 has been shown to be 'Chair Manikin Abadi' and `Ghair Mumkin Qabristan'. In the Khasra Girdawari for Kharif 1956 and Rabi 1957, RW1/2, Khasra No, 340, an evacuee land, has been categorised as `chair Mumkin', covering an area of 4 !Canals, shown as `Khankah', in Kharif 1956, and 4 Kanals shown as `Chap' and `Masjid' in Rabi 1957. According to the aforesaid Jamabandi for the year 73-74 and the Khasra Girdawari (column 6), the kind of land was earlier `Makan' and `Ghair Murnkin".
Nawab Din's name was mentioned as `Matwalli' or manager. For the first time, the name of Batool Begum, as owner of the land, in Khasra No, 340, measuring 24 Kanals and 6 Marlas, or 23 Kanals, appeared in the record of rights for the year 1976-77, Exh.PB. Substantial portion of the land was sold away by the owners to different persons, as is indicated by the entries in column No,
10. The rest of the area, it seems, could not be disposed of, as it was not available for sale, being under the graveyard, `Mazar', mosque, `Chah' and public passage.
8. It appears to have rightly been urged by the learned counsel for the respondents that Waqf may not only be created by specific dedication, it may also manifest itself through user. If a particular place has been used, over a considerable length of period, for religious or charitable purposes, it would come to assume the character of a waqf property. The shrine and the mosque covering hardly an area of about 10 Marlas, even according to the appellants, it is not understandable, on what piece of land had the followers or disciples of the saint, Baba Rehmat Shah, been having their lodges or temporary abodes or huts, on their frequent visits, to have blessings of the departed soul, or for undertaking weekly, monthly or yearly celebration, including festivities of general nature, as wrestling bouts, Kabbadi matches, circus shows, theatres, Qawalis, etc.
9. The Auqaf Department had undertaken a regular survey, in as back as June, 1975, as has been deposed by Muhammad Rafiq Patwari PW1, in presence of the respectables of the locality, and Baba Nawab Din, `Matwali', without resistance of any kind having been offered from any quarter. In Roznamcha Waqiati, RW 2/1, the entire tract of 4 Kanals of land was stated to have been occupied by the Department on 5-5-1977. It has been deposed by Iftikhar Ali, Manager, Waqf Properties, Kasur Circle, as RW-2, that eversince April-May, 1977, the property has been in occupation and enjoyment of the Authorities of the Auqaf Department. The mere fact that there has been erected no boundary wall around the area, and the shrine was not enclosed in formal manner by the Auqaf Department, as has been pointed out by the learned counsel for the appellants, would not serve to show that the area of `influence' of the saint or piece of land practically appurtenent to the Dargah' did not go beyond the land actually under the shrine and the mosque (10 Marlas), and it could not stretch up to an extent of four Kanals.
10. In any case, the aggrieved person could challenge the acquisition of the land by the Auqaf Department for the object of managing affairs of the shrine by approaching the Court of District Judge in time, that is within 30 days of issuance of the notification, and not beyond that. Finding no fault with the judgment pronounced by the learned Additional District Judge, Lahore, I would affirm it and would dismiss the appeal, treating it to be without merit.