1. ' I have heard the learned counsel at some length. Regrettably, it is the management of a mosque viz. Macca Masjid, Kathiawar Housing Society, which is in dispute in these proceedings. More regrettably, the question does not seem to have been approached by the two Courts below in proper perspective.
2. ' In the first place, it ought to have been seen as to who was the owner of the land on which the mosque was constructed, who had constructed the mosque in actuality and where, at the time of the institution of the suit and before such came to be instituted, the management of the mosque had vested. The case of the applicant-plaintiff has been that the ownership of the land vested in it and the structure of the mosque was also raised by it. The affairs of the mosque were allegedly being run and managed by the plaintiff society when the respondents Nos. 2-9 forcibly took over possession and later got a trust registered to land credence to the illegal take-over. The electricity and water charges etc., nonetheless, it is claimed, continued to be paid by the applicant society.
3. The defence was that the mosque belonged to Allah and the management vested in the Namazis, who had constituted a regular trust to run the administration in an orderly and lawful manner.
4. ' It were such issues which came to be adjudicated when the society, in the suit instituted by it, sought the appointment of an interim receiver in the background of the respondents, allegedly, establishing a Madressah with a purported hostel and a refusal on the respondents' part to allow the Namazis to recite Salam for the Holy Prophet (p.b.u.h.). These were sensitive though not difficult questions and could tentatively be decided on the basis of affidavits and documentary material.
5. What has actually happened is that the crucial determination has been bypassed and the appointment of receiver has been refused by the two Courts below, taking shelter in purported delay for seeking relief but evidently with a view to adopt the line of least resistance, ensuring continuance of status quo, without properly adverting to the question whether or not the plaintiff society was entitled to immediate possession and, thereby, also to appointment of receiver. A number of citations have been referred to me by the learned counsel for the applicant society.
6. Such are Roshan Lal v. Muhammad Afzal, PLD 1949 Lah. 60, Aftab Ahmad Mufti v. Seema, 1988 CLC 1567, Ghazala Zakir v. Muhammad Khurshid, PLD 1989 Kar. 350, Maqbool Hussain v. Muhammad Ashraf, 1991 MLD 1134, Hafiz Mustafa Khan v. Bundoo Khan PLD 1993 Kar. 805, Moinuddin Paracha v.
7. Sirajuddin Paracha, 1994 CLC 247 etc. The rule which emerges is that an appointment of interim receiver is to be made, if it be just and convenient so to do. Mere fact that the defendant happens to be in possession would , be no bar to the appointment, if the plaintiff, on his part, shows an immediate right to possess. Delay, if explainable or if not degenerating into inequity, depending upon the circumstances of each case, should in itself be no insurmountable hurdle to such an appointment. As to matters pertaining to running and maintaining of places for worship, specifically referring to the case of Hafiz Mustafa Khan ibid., I would like to add that if the land, on which such a place (e.g. Mosque) is situated, belongs to the person who works upon it to put up a house of God thereon and, in actuality does, so, a Waqf may be inferable, for a Waqf may either be made verbally or in writing, subsequent conduct, if consistent, implying the dedication. In contrast, any unauthorised taking-over of land and putting up or continuing a religious institution thereon would not and cannot have such effect, each being void and of no consequence: Ehsan Beg v. Rahmat Ali, 152 IC 798. Once a lawful Waqf, either written or oral, is created the intendment of the Waqf is to be given effect to. True that the moment a Waqf is created all rights of property pass from the wakif and vest in the Almighty yet while the property no longer vests in the author of the Waqf he, unless disentitling himself, retains the same rights of management as an individual owner. He is under no obligation to allow use of the Waqf property for objects which, though laudible in themselves, are not objects of the specific dedication. Founder of a Waqf also has power to appoint the first Mutawalli or to lay down a scheme of administration.
8. ' Now, it is a fact of life that there are sects of Islam and no one can be presumptuous enough to declare as to which of these follow (s) the right path. We are all human and routinely come to entertain fixed notion. What to say of sects in a religion, the followers of all religious persuasions, without distinction, in their all too brief lifespans, firmly come to believe that what they practise and preach, in the way of religion, is alone the ordained truth. This is more so in men's adherence to sectarian beliefs. Sects have a special place in Islam and they are not to be decried. A Muslim ought to seek unity in diversity, message to him being simple and harmonious: There is no god but God. The various sects in Islam are like colours in a rainbow. They please the eye, whether they be in isolation or conjoined, as it is of light from the sun. Therefore, once a Waqf, satisfying the requirements of Muslim Law, is proved no deviation from the Maslak of the wakif is to be permitted, except in very rare cases and under compelling circumstances, divisive and unauthorised take- overs of the subject-matters of Waqf are to be shunned and discouraged. It is in keeping with these principles that appointment of interim receivers in matters touching religious institutions are to be made or denied.
9. ' Be that as it may, it would be counterproductive, at this stage, to interfere with or supplant the concurrent orders of the two Courts below, particularly when such are based upon the exercise of discretion, even though there may have been some errors in that exercise. Needless to re-state that it is only jurisdictional errors, which can be corrected in revisional jurisdiction.
10. ' However, the learned counsel agree that without disturbing the current state of affairs, it would be proper to issue direction to the learned Judge of the trial Court to dispose of the suit pending before him as expeditiously as possible, because the time frame earlier stipulated in a Constitution petition, namely C.P. No,219 of 1993, between the same parties, has long since run out its course. In so doing, the learned counsel agree, that evidence would be led from either side on the basis of affidavits in evidence and the deponents would only be subjected to cross-examination in Court.
11. The suit itself would be disposed of, as far as possible, within three months from the first date of hearing fixed therein.
12. ' At this stage, the learned counsel for the applicant society has urged that the subject suit may be placed before a Judge other than the one who had passed the initial impugned order. Mr.H.A.
13. Rahmani does not disagree and, therefore, it would now be for the learned District Judge, in the first instance, to make over the suit to another Judge whereupon, in due course, a date of hearing would be fixed and the time schedule, indicated above, would commence.
14. ' Subject to the foregoing observations, which are only of a tentative nature, this Revision Application is, by consent, disposed of and with it also all or any of the CMAs pending herein.