This revision petition is directed against judgment dated 4-1-1988 passed by learned District Judge, Lahore through which the appeal filed by the respondent against judgment and decree dated 12- 3-1987 passed by the trial Court through which his suit had been dismissed, was accepted and the suit decreed.
2. The dispute relates to land measuring 60 Kanals 4 Marlas 174 square feet situated in Lahore Cantt. which is admittedly a Waqf Land attached to Shrine of Hazrat Mian Mir Sahib. Admittedly Syed Said Ali Shah was the Mutwalli of the Shrine at the time when this land was given on lease which is in dispute.
3. On 3-10-1934, learned District Judge, Lahore granted permission to the Mutwalli to lease out the Waqf land for a period of 50 years. Subsequently on 18-3-1938 the Mutwalli made an application before the learned District Judge for grant of permission to him to lease out the Waqf land for a period of 99 years. This application was entrusted to learned Additional District Judge, Lahore (Mr. Hilton) who through order dated 20-4-1938 granted permission to Mutwalli to lease out the land for 99 years. It was in pursuance of this permission that on 6-2-1951 the land in dispute was leased out for 99 years to Sardar Hidayat Ullah Moakal who is the brother-in-law (Sala) of Mr. M.G. Cheema who was a judicial officer at that time. It is the case of the petitioner that as a matter of fact Mr. M.G.
Cheema was the real lessee and Sardar Hidayat Ullah Moakal was merely a Benamidar which position according to them was acknowledged by the Auqaf Department. The Auqaf Department took over the management and control of Shrine as also the Waqf property attached to it through Notification dated 9-7-1960 under the West Pakistan Waqf Properties Ordinance, 1960. On 18-5-1976 the Auqaf Department issued notice to Mr. M.G. Cheema for his ejectment from the land which was challenged by the latter through the Writ Petition No. 1233/1976 before this Court. This writ petition was disposed of through order dated 22-5-1979 (Exh. D.12) on the statement made on behalf of the Auqaf Department by its counsel for withdrawal of the said notice. In this order an observation was made in para. 13 thereof, reserving right in favour of the lessee to take legal proceedings if in future any such action prejudicial to him was taken regarding which the Auqaf Department felt aggrieved and filed I.C.A. This appeal was dismissed through order dated 10-6-1980 (Exh. P.2) on the ground that the same was not competent, holding that the impugned observation was as a matter of fact an opinion only. The fact that Mr. M.G. Cheema was acknowledged to be the real lessee by the Auqaf Department is evident from letter dated 1-3-1982 issued by the Auqaf Department (Exh. D.2).
Through order dated 8-11-1982 on the request of Mr. M.G. Cheema, he was allowed to transfer his lease-hold rights to his daughter Irram Cheema by way of gift. Mutation No. 2376 regarding transfer of lease-hold rights of Mr. M.G. Cheema in favour of Irram Cheema on the basis of gift was sanctioned on 18-10-1983 (Exh. D.9).
4. Irram Cheema wanted to transfer her lease-hold rights through sale for which she got a public notice published in `Daily Jang'. The Auqaf Department on 3-2-1985 issued a notice (Exh. D.4) alleging that the lessee was guilty of violation of the terms and conditions of the lease. The Auqaf Department approached the learned District Judge through an application for obtaining an order to restrain Mst. Irram Cheema from transferring her lease--hold rights which was dismissed by order dated 29-6-1985 (Exh. D.11) on the ground that remedy was to file suit.
5. On 28-10-1985, Auqaf Department filed a suit for declaration and permanent injunction out of which this revision petition has arisen. It was alleged that transfer of lease-hold rights from M.G.
Cheema to his daughter Mst. Irram Cheema was based on a document which was not registered, that Mr. M.G. Cheema got lease of land through influence as he was a Civil Judge at the relevant time and he illegally transferred his rights to his daughter. The gift of lease-hold rights in favour of his daughter Mst. Irram Cheema was also alleged to be void as it was in disregard of the rights of other heirs. It was also pleaded that lease if any in favour of Mr. M.G. Cheema had expired w.e.f.
Rabi 1988 and after which date no lease-hold rights were existing or continuing in favour of Mr. M.G.
Cheema or the transferee through him.
6. The suit was contested by the present petitioner inter alia on the ground thatthe same was barred by time. It was asserted that the lease of land in favour of M.G. Cheema was valid.
7. The trial Court framed the following issues arising from the pleadings of theparties:--
(1) Whether this Court lacks jurisdiction to try the suit? OPD.
(2) Whether the suit is incorrectly valued for the purposes of court-fee and jurisdiction, if so, what is the correct valuation? OPP.
(3)Whether the plaintiff is estopped by his words and conduct to bring the suit? OPD.
(4) Whether the suit is within time? OPD.
(5) Whether the suit is not maintainable in its present form? OPD.
(6) Whether the plaintiff has come with clean hands? OPD.
(7) Whether lease in favour of defendant has come to an end for violation of the Departmental Rules and Regulations? OPP.
(8) Whether the defendant is entitled to her lease-hold rights up to Rabi 1988?
(9) Whether the lease of the suit property has been cancelled? OPP.
(10) Relief.
After appraising the evidence produced. by the parties, the trial Court through judgment dated 12- 3-1987 dismissed the suit. Issues 1 and 2 were not pressed therefore they were decided against the present petitioner. Issues 3, 4, 5, 7, 8 and 9 were answered against the respondent/plaintiff whereas findings on issue No. 6 were given against the petitioner.
8. The respondent filed appeal before the learned District Judge, Lahore against the judgment and decree dated 12-3-1987 which was accepted through judgment and decree dated 4-1-1988 and suit decreed. Before the lower appellate Court findings on issues 1, 2 and 6 were not challenged therefore the findings of the trial Court on these issues were affirmed. It has been held that the very lease in favour of predecessor-in-interest of the petitioner was illegal from very inception therefore there could not be any estoppel against proving the illegality on the well-known principle that there was no estoppel against the statute. It was remarked by the learned District Judge that even. if it was admitted by the Auqaf Department that there was any lease by Mutwalli in favour of Mr. M.G. Cheema in the year 1951, it would not mean that the said lease would operate to the disadvantage of the Auqaf Department/Plaintiff or it would be estopped from asserting the illegality of the transaction. It was also observed that conduct of a Government servant in violation of his duty could not operate as estoppel against the Government as such if official/employee of Auqaf Department had acknowledged lease in favour of predecessor-in --interest of the petitioner by certain acts i.e. grant of permission to the lessee to transfer lease-hold rights to his daughter the same did not operate as estoppel against the Auqaf Department to assert and prove that the basic lease was void. It was also held that in pursuance of power deriveable from order of learned Additional District Judge dated 20-4-1938 the land had already been leased out to Hindus and a Muslim for a period of 50 and 99 years which had not expired in the year 1951, rather the evacuees lessee's interest vested in the Custodian. The lease deed executed by Mutwalli in the year 1951 in favour of predecessor-in-interest of the present petitioner was illegal being without the permission of the Court. It was also held that the amount of lease money fixed in the lease agreement was too low which was sufficient to hold that the same was not in the interest of the Waqf.
9. The main burden of argument presented by learned counsel for the petitioner in support of this revision petition was that no plea was raised in the plaint that the lease agreement in dispute was not in the best interest of the Waqf on account of inadequacy of lease money or that the land had already been leased out to non-Muslims who became evacuees and lease-hold rights held by them vested in the Custodian or that the same was bad for want of permission by the Court therefore, the judgment passed by the learned District Judge is based on such extraneous matters on which no issue was framed and no opportunity provided to the petitioner to lead evidence in particular on the question of inadequacy and evacuee nature of lease-hold rights of non-- Muslims. He .also maintained that the principle of estoppel was applicable in this case with full force as the officers of the Auqaf Department acknowledged the lease of land in favour of predecessor-in-interest of the petitioner who through express order permitted him to transfer his rights to his daughter which was given effect to in the Revenue Record through mutation which was sanctioned by the Revenue Officer. It was urged that power vested in the Mutwalli in pursuance of permission granted by the learned Additional District Judge by his order dated 20-4- 1938 to lease out the land for a period of 99 years therefore, the same was not invalid. He reiterated that the suit was barred by time.
10. The argument that the plea of evacuee nature of lease-hold rights and inadequacy of lease money in relation to the question whether the lease was in the best interest of the Waqf as envisaged by the Muhammadan Law was not raised is no doubt correct but on close scrutiny, I find that nothing turns on this as the lease in favour of the predecessor-in-interest of the petitioner was otherwise void ab initio and if the Jearned District Judge in addition to other grounds which were available to hold the 'same as void also took into consideration these matters the same would not have the effect of nullifying his judgment for even if findings on these matters are ignored the judgment is maintainable on other grounds.
11. The main question raised in the plaint was that the lease in favour of predecessor-in-interest of the petitioner created by the Mutwalli was not valid and the petitioner had no lease-hold rights in the land after 1988 which question had direct nexus with the real question of existence and extent of power of Mutwalli in pursuance of order dated 20-4-1938 passed by learned Additional District Judge to lease land for a period of 99 years. The decision on this question centres around the answer to the question as to whether power under the said order was available with the Mutwalli in the year 1951 and if the answer was that it was available then only it could be urged that the lease in favour of predecessor-in-interest of the petitioner was valid and not void ab initio.
12. Order dated 20-4-1938 was not an order under which power could be exercised at the sweat will of Mutwalli at any time and from time to time or that it was an order of permanent nature and was operative for indefinite period. Through the said order approval was given to his request to permit him to lease out land attached to Shrine for a period of 99 years which approval was to ensure for one lease which also was to be exercised by the Mutwalli ,soon thereafter. He according to recital in the lease deed executed in favour of predecessor-in-interest of the petitioner had already leased out land for 99 years to non-Muslims and a Muslim. Even if the question whether the said non- Muslims had become evacuees or not and their lease-hold rights became evacuee property are not taken into consideration the fact remains that by leasing out property for 99 years to them in pursuance of approval/permission granted to him through order dated 20-4-1938 the said power stood exhausted and was no more operative and available for acting upon the same or for exercising it second time in the year 1951 for which he was required to get fresh permission or approval. In my view for each lease agreement for 99 years the Mutwalli under the law was required to obtain permission from the Court. This view finds support from the case of lease granted to Syed Noor-ul-Hassan etc. of some other land attached to the same Shrine who were sons of the Mutwalli. The said lessees were granted 50 years lease in pursuance of power granted by order dated 3-10-1934 passed by the learned District Judge. Since in the year 1938 the Mutwalli also obtained permission to lease out land for a period of 99 years he in exercise of that power during the currency of lease period of 50 years of the said previous lessee extended the lease period to 99 years. On taking over of the control and management of the property by the Auqaf Department these lessees filed a petition under section 7(1) of the Ordinance XXI of 1959 to have a declaration that the lease of the land as extended was to ensure for their benefit. The learned District Judge through order dated 29-6-1964 repelled this contention by holding as under:-- "The case about extension the lease is, however different. Sanction about it was granted in the year 1938 but the lease deed Exh.P.l about the extension of the lease for a period of 99 years was executed in the year 1956. No explanation is forthcoming for this delay and I think the sanction granted in the year 1938 cannot be held as operative now after such a long time and did not give the Mutwalli any -right to extend the period in the year 1956. He should have obtained a fresh sanction for it. In my opinion the previous sanction for extension of the period of lease stands lapsed. I, therefore, hold that the extension of the lease to a period of 99 years is invalid arid the lease deed Exh. P.1 about it is not binding on the Chief Administrator, Auqaf and it can be ignored by him."
Since in this order lease of land for a period of 50 years had been upheld therefore the Auqaf Department feeling aggrieved filed FA.O. 18 of 1964 before this Court because its case was that even this lease agreement was void as the same had been made by the Mutwalli in favour of his three sons and was against the interest of the Waqf, the land having been leased out for an inadequate consideration. No appeal or cross-objections were filed by the lessees against that part of the order through which the extension of lease period for 99 years in pursuance of subsequent order passed on 20-4-1938 was held invalid. However, the judgment dated 22-7-1964 passed by this Court in the said appeal shows that a request was made by the lessees that they should be granted relief in exercise of powers vested in the Court under Order 41, Rule 33, C.P.C. regarding extension of lease period to 99 years by upholding the exercise of power derivable from the order dated 20-4-1938 by the Mutwalli. Regarding exercise of power by Mutwalli in the year 1956, in that case this Court in the judgment dated 22-7-1964 passed in the said appeal held as under:-- "Without going into the question as to whether this request can be entertained under the circumstances of the case, I find that the respondents have no case on the merits. The permission (Exh.P2) granted by the learned Additional District Judge on 20-4-1938 for the extension of the lease to 99 years cannot possibly hold good and ensure for effecting the lease, after a period of about 18 years on 23-2-1956. In the meantime, the circumstances must have changed considerably. It cannot be said that after it was found necessary to give the lands on lease in 1938, the necessity continued to exist for a long time afterwards even in the year 1956."
13. In this judgment, this Court declared the lease for 50 years also as invalid on the ground that the same was made by Mutwalli in favour of his own sons which was found to be for inadequate consideration, as a matter of favour and set aside. On lessee's further appeal before Division Bench of this Court the lease for a period of 50 years was restored after holding that the relevant material was not placed before the learned Single Judge when his Lordship decided the case. The matter was brought before the Supreme Court by the Administrator of Auqaf and the Supreme Court through judgment dated 19-11-1977 upheld the lease of 50 years. The net result is that the findings initially recorded by the learned District Judge in his order dated 29-6-1964 that the power in pursuance of order 20-4-1938 to create lease of land for 99 years was not available in the years 1956, remained intact.
14. On the abovementioned short ground, I hold that no power was vested with the Mutwalli under Order dated 20-4-1938 to create lease of land in favour of predecessor-in-interest of the petitioner for 99 years in the year 1951. For reasons discussed above, the lease of land in his favour was thus ab initio void. For the same reasoning there was no question of estoppel as the officials of the Auqaf Department could not confer on the predecessor-in-interest of the petitioner lease-hold rights for 99 years by acknowledging the exercise of power by Mutwalli in pursuance of order dated 20-4-1938 for creation of lease for 99 years which power as held above had lapsed. It was not a case of mere irregularity in exercise of power by the Mutwalli which otherwise existed in which case it could have been possible for the petitioner to raise plea of estoppel in order to contend that it was a case of an irregularity of the kind which' could have been rectified and stood rectified by act of acceptance of lease by the successor of the Mutwalli.
15. The question of Limitation in such a case in my view could never have arisen nor pressed into service. It is a case of Waqf property which vests in Almighty God and Qazi in each case is vested with inherent jurisdiction to look into the validity and legality of any act at any stage in order to safeguard the Waqf property. Even otherwise against a void ab initio act no question of limitation could be raised if the same was sought to be nullified. Apart from this it is a case of continuing cause of action.
16. I have also noticed that in the lease agreement it has been stipulated that on the expiry of initial lease period of 99 years, the same would stand extended for another period of 99 years at the option of lessee which means that the exercise of power for giving land for another period of 99 years after the expiry of the previous lease period of 99 years was exercised much prior to the time when the occasion to exercise that power was to arise. There is no question of automatic extension of lease period or creation of afresh lease agreement automatically by virtue of the said clause as the Mutwalli was not even vested with any power in the year 1951 to give land on 99 years lease by virtue of order dated 20-4-1938 as held above.
17. Learned counsel for the petitioner laid a great deal of stress on his argument that in Writ Petition No. 1233/1976 filed by the petitioner in which a notice issued by the Auqaf Department for her ejectment in the year 1974 was challenged, the validity of lease of land for 99 years was upheld therefore this question could not be raised in the suit. I have gone through the judgmentdated 22- 5-1979 passed by this Court in the said writ petition and find that the petitioner raised contention in the said writ petition that she was holding lease--hold rights for 99 years which had been acknowledged by the officers of the Auqaf Department therefore, she could not be, ejected from the land and the notice issued for her ejectment was invalid. These contentions were noted in the order and before any findings were recorded, statement was made by Mr. Riaz Kayani, Advocate, learned counsel for Auqaf Department that the notice issued in 1974 impugned in the writ petition was no longer enforceable and stood cancelled by issuance of a fresh show-cause notice on 18-5- 1976 on which proceedings had not been taken so far in view of the pendency of the said writ petition and he undertook that the lessee would not be ejected under the orders impugned in the writ petition. It was acknowledged by the said learned counsel that at present there was no order of ejectment against the lessee and the matter would be probed in arrest in accordance with law and fresh order would have to be passed after issuance of fresh show-cause notice. In view of this statement the writ petition was dismissed as premature by observing that if any show-cause notice was subsequently given to the petitioner and the question mooted out before his Lordship during the argument, come up for consideration before the relevant authority it will have to take into consideration the conduct of certain Officers of the Auqaf Department for acknowledging the lease deed as such, because it was possible that the said authority might come to the conclusion that in view of the conduct of the department it was wholly unnecessary for the petitioner to approach the learned District Judge since there was no dispute on this point.
18. One of the questions mooted in the said writ petition on behalf of the present petitioner was that he was holding lease-hold rights for 99 years which remained unaffected even under the legislation enacted for taking over management and control of the Waqf properties. About this it was remarked that finality of the contractual rights could remain undisturbed if they were valid and or legally obtained from Mutwalli or Waqf. Since no findings. regarding this aspect of the case was recorded in the said judgment as the writ petition was dismissed as premature and all the questions mooted in the said writ petition were left open for decision in fresh proceedings, therefore, no benefit can be derived by the petitioner from the said judgment as the same does not operate as res judicata.
19. The learned District Judge, in my view has not committed any material irregularity and illegality in the exercise of jurisdiction vested in it under the law. The impugned judgment and decree is perfectly valid and in the best interest of the Waqf property and the Waqf itself. If the plea raised by the petitioner is accepted it would amount to perpetuate an illegality.
20. The revision petition for the foregoing reasons has no merits which is accordingly dismissed with no order as to costs.