' SALEEM AKHTAR, J---The dispute in this appeal with the leave of the Court relates to a Musafir Khana known as Moledian Musafir Khana, which was constructed in Karachi in the year 1893. The appellants are the legal heirs of Haji Moledina who had contributed for the construction of this Musafir Khana on Plot No, R.C.7, Survey No,2, Bunder Road (MA. Jinnah Road), Karachi. This Musafir Khana was constructed for the poor Muslim travellers, who used to come to Karachi from interior of Sindh or from other parts of Indo-Pak Sub-Continent. At that time there was no Musafir Khana to accommodate and provide residence for the Muslim travellers. There still exists a marble stone with the following inscription:- "This Dharamsala for poor travellers was built at the joint costs of Haji Muhammad Moledino and the Karachi Municipality.
1893 J.STRACHAN M.I.C.E. ARCHITECT"
' The appellants claim that after the death of Haji Moledina, his elder son Abdur Karim took over the control and management of the said Musafir Khana on 28-3-1914 and continued to manage and control its affairs up to 1922. Due to financial difficulties he could not continue the management of the said Musafir Khana and in the year 1922 Abdul Karim handed over the supervision of the Musafir Khana to the respondent-Corporation, which was at that time a Municipality. On 16-9-1966 the Corporation published a public notice in Daily 'Wig', Karachi to dispose of Plot No,R.C.7, Survey No,2 on 99 years lease. The interested parties were required to submit their offer in sealed cover. Late Abdur Rahim son of Haji Moledina, the predccssor-in-interest of the appellants filed Suit No,323 of 1966 seeking the following relief:- "The plaintiff therefore prays for judgment and decree:-
(i) for declaration that the defendants are not entitled to put Plot No,R.C.7, Survey No,2 with construction thereon to any commercial purposes and to erase the name of Haji Muhammad Moledina therefrom;
(ii) for permanent injunction restraining the defendant from putting the said plot to any commercial and/or transferring the rights in the aforesaid plot to any person for any commercial purpose.
(iii) Costs of this suit.
(iv) Any other relief which this Hon'ble Court deems fit in the circumstances of the case."
' The learned trial Court decreed the suit inter alia holding as follows:- "Admittedly the plaintiff is son of Haji Muhammad Moledina, who made contribution to construction of the Musafir Khana jointly with K.M.C. Which fact is established from my inspectiong and is substantiated by the marble stones, which one still existing there on the main gate of the Musafir Khana. The plaintiff is therefore very much interested in the property and has every legal right to challenge the act of the defendant whereby the defendant wants to alienate or dispose of the property. The plaintiff has, therefore, every right under section 42 of Specific Relief Act to seek declaration. The defendant is not the exclusive owner of Haji Muhammad Moledina Musafir Khana as contended. No proof has been produced by them on record and therefore K.M.C. Cannot dispose of the said Musafir Khana in any way as desired by them. The plaintiff has every right as a legal heirs of Haji Muhammad Moledina to ask the defendant not to erase the name of his father, who for the purpose of noble cause made contribution towards the construction of Musafir Khana.
The defendant has failed to prove that K.M.C. Is exclusive owner by producing any documentary evidence. At the most the K.M.C. Is only entitled to hold of the Moledina Musafir Khana as the K.M.C.
Also contributed jointly towards the construction of Musafir Khana for the purpose of public use.
The K.M.C. Cannot demolish or destroy the Musafir Khana, which was built for the purpose of providing shelter to the travellers."
' In appeal the learned Additional District Judge upheld the finding of the learned trial Court by his judgment dated 3-8-1989. The respondent filed revision application in the High Court, which was allowed by the learned Judge in Chambers reversing the finding of both the Courts below with the following observation:- "At best it can be said that the marble stone on the gate indicated that cost of construction of the said Musafir Khana was shared by the respondent's father and the property thereafter was known as Muhammad Moledino Musafir Khana but the same in no way can entitle the respondent to claim ownership of the property on this basis. Admittedly, the respondent has no other documentary proof in respect of his claim of ownership of the property. It is, therefore, abundantly clear that both the learned Courts below have completely misread the evidence in the case and have erroneously decreed the suit in favour of the respondent. The applicants being the owners of the property have a right to deal with it in the manner they like and the respondents evidently have no locus standi to file the suit against the applicants."
3. As admittedly Moledina Musafir Khana is existing for a very long time and has acquired the nature of a trust or property for charitable use as held by both the Courts substantially, leave was granted to consider the question whether in revision a different view was possible.
4. The learned counsel for the appellants contended that the trial Court and the first appellate Court have substantially and concurrently observed that the property in dispute was a Musafir Khana used for public and charitable purpose constructed jointly by Haji Muhammad Moledina and the Corporation and therefore the respondent did not have a right to demolish or dispose it of or to convert its user for any commercial purpose. On the other hand the learned counsel for the respondent contended that all along it was a property of the Corporation and Haji Moledina had only contributed for the construction of the building of Musafir Khana which has with the passage of time been rendered in a state of disarray and disuse and therefore the Corportation could for development of the property utilize it for better purposes.
5. With the assistance of the learned counsel for the parties we have examined the entire evidence recorded by the learned trial Court. There is no escape from the conclusion which has concurrently been drawn by the learned trial Court as well as the appellate Court that on a plot owned by the respondent Haji Moledina and the respondent jointly constructed a Musafir Khana at that time called a Dharamsala and put it to public and charitable use for the travellers who use to come to Karachi from other parts of the country. It is significant to note that 100 years back when this Musafir Khana was constructed, although there were other Musafir Khanas, there was none to accommodate and provide residential facilities to poor Muslim travellers. In this state of affairs the purpose and object of constructing the Musafir Khana was in the nature of public charity for public good in general and for the Muslim travellers irrespective of their country or residence. This continued for a long time when the management remained with Haji Moledina and his son, but thereafter in the year 1922 due to financial constraints the management was handed over by Abdur Rahim to the Corporation. Since then it seems that the Corporation remained in full control and management of the Musafir Khana and it was used for the same purpose. Mr. Abrar Hasan, learned counsel for the respondent has stated that after partition a large part of the open area, has been occupied by different persons for residential as well as commercial purposes. However, the building constituting Musafir Khana still exists in an unrepaired and disarrayed condition. The responsibility for this mismanagement and damage to this historical and monumental building lies entirely on the Corporation, because admittedly since 1922 it has remained in possession and control of the Corporation. It was the duty of the corporation to have properly maintained and managed it, but unfortunately there have been lapses on the part of the Administrators who did not care to keep the building in a proper form.
6. The Musafir Khana, which was constructed and established, was not a stray incident of public charity of a temporary nature. It was a well thought out and organised plan by the Corporation to establish a Musafir Khana in which Haji Moledina contributed for its construction. Section 286 (26) of the City of Karachi Municipal Act, 1933 provided for framing of Rules for the management of the MusafirKhana and in pursuance thereof "Rule for Management of Tehlram, Khemchand and Moledina Musafir Khanas was framed, which was gazetted on 26-2-1938 and came into effect on 1- 7-1940. Therefore, firstly establishment and management of Musafir Khana was within the competence of the Corporation and secondly, Moledina Musafir Khana the name as it exists, was recognised and accepted by the Corporation which made Rule for its management and administration. The learned counsel for the respondent contended that there is no concurrent finding as the learned trial Court has held that it is not a trust property, but the learned appellate Court has held it to be a trust property. There may be some difference in the conclusion legally drawn by both the Courts and use of terminology, but it has been concurrently held that Moledina Musafir Khana was used for charitable purpose and had been constructed to accommodate the poor Muslim travellers coming to Karachi. These facts establish the nature of the building and the purpose for which it was constructed. The object was charitable and dedication was for the benefit of poor Muslims.
7. The outstanding feature of this dedication is that the building was put to public use and the corpus of the property was not intended to be consumed. So far Moledina is concerned, he had given in charity the money used for construction of the Musafir Khana. This building was constructed on the plot of land belonging to the respondent, but it has failed to produce all the old record and resolution relating to its construction and naming it after Moledina. As the Musafir Khana was named after Moledina with inscription affixed on the building and its management was also entrusted to him, it can be presumed that if not entire, major and substantial cost of construction was borne by him. The building thus constructed was for the sole purpose of dedication to charitable use and was so used for decades. Such charitable dedication can be termed "public trust". Such dedication may not have the legal attributes of a waqf in the strict sense, but on account of close resemblance to a waqf the principles applying to a waqf can be applied. For a proper appreciation of the meaning of waqf and charity and understanding the views of Muslim Jurists and Judgments of the superior Courts, reference can be made to Abdul Hamid v. Fateh Muhammad (PLD 1958 Lah 824). Further reference can be made to Chief Administrator, Auqaf v. Muhammad Ramzan (PLD 1991 SC 102) in which one of us (Ajmal Mian, J.) referring to the definition of "Waqf property" in West Pakistan Waqf Properties Ordinance, 1961, observed as follows:- "A perusal of the above-quoted definition indicates that it is very wide in its import and covers the property which has been used from time immemorial for any purpose recognised by Islam as religious, pious or charitable even in the absence of any evidence of express dedication, property allotted in lieu or in exchange of Waqf property left in India, 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 purposes recognised by Islam as religious, pious or charitable, 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 and property permanently dedicated for the purposes of mosque, Takia, Khanqah, dargah or other shrine."
8. It is thus clear that any property dedicated for charitable purpose recognised by Islam or for any other pious object or of general public utility and remains under such user for decades or for a long period, shall be treated as trust property. The nature and purpose of such property cannot be changed at the discretion of the person making the trust or in control and management thereof, nor such building can be demolished and obliterated thereby destroying the very object of the dedication or trust. In Muslim Law such dedication is permissible. There are instances when persons with the noble object have donated land for graveyard, mosque, Musafir Khana, well, Serai, school and hospital etc. All these are instances of charitable act and for the welfare of the public-at-large.
If any persons or organisation dedicates and puts to public and charitable use any property, which continues to be in such use for long time, then it will not be open for the owner to claim the property and to change its nature and user, which is completely contrary to the original user and purpose for which it was dedicated. The object of public welfare is dominant in Muslim Jurisprudence and in our principles of administration of justice. Therefore, the user or nature of any property dedicated for charitable public purpose cannot be changed to a purpose which has no nexus to the original purpose and dedication. Considering from this view-point, we are of the view that the respondent could not under law demolish the building or change the user of Moledina Musafir Khana into commercial one which is different from the purpose for which it had originally been constructed. If the utility of Musafir Khana has completely been diminished or extinguished, then the Corporation could utilize it for purposes of public welfare like dispensary or any other charitable purpose. However, the demolition of the building unless it is required due to its dilapidated condition will not be permissible. The stone bearing the name of Haji Moledina cannot be removed. Even if a situation arises to construct a new building, then this stone should remain affixed at a conspicuous place of the new building to indicate the original character of the building.
The respondent would be entitled to manage and repair the building or to use it for any other charitable purpose, which has nexus to the original purpose of dedication, but before doing so, it will be required to present a scheme in that regard for approval according to law from a competent Court. It is, however, clarified that the relief sought by the appellant and granted shall be restricted to the Moledina Musafir Khana building and the respondent will be free to utilize or develop the land. The appeal is allowed in these terms with no order as to costs.