This F. A. O. arises out of the judgment, dated 26-3-1991, by which the learned District Judge, Kasur, dismissed the application of the appellants, who had sought a declaration therein that the disputed land measuring 121 Kanals, 17 Marlas situated in the area of village Balloki, District Kasur, was wrongly taken over by the respondent, vide Notification No.SOP-I (3455) Auqaf/88, dated 6-7- 1988, as Waqf Property under section 7 of the Punjab Waqf Properties Ordinance, 1979. They had also asserted that they had been in actual physical possession of the property and its possession had never been taken by the Auqaf Department.
2. The application was contested by the respondents, who in their reply, had asserted that it was Waqf property because it was allotted to the appellants in lieu of the land owned by the Shrine of Syed Ahmad Kabir in India, and had been lawfully taken over.
3. On the pleadings of the parties the learned District Judge framed the following issues: (1)Whether the property in dispute is not Waqf property?
(2)Whether the application is within time?
(3)Whether the application is maintainable in the absence of any specific prayer about the possession?
(4)Relief.
4. After recording the evidence of the parties and hearing their counsel, the learned District Judge, by the impugned judgment, non-suited the appellants., after finding issue No.l against the appellants and issue No.2 in their favour. He, however, did not record any finding on issue No.3, which related to the form of the application and had become redundant.
5. While admitting this appeal to regular hearing on 18-5-1991, due to the solitary entry in the Jamabandi brought on the record of the learned District Judge and relied upon by him, it was considered necessary to further probe into the matter and see more revenue record. Therefore, on 24-11-1991, on the request of the counsel for the parties, the Incharge of Central Record Room, Lahore, was directed to cause the production of RL-11 alongwith the special Jamabandi of the disputed property and the same were produced by Abdul Rehman, Incharge of the Central Record Room who was examined as a Court witness.
6-7 Later, an application was moved on behalf of the appellants for seeking permission to produce certified copy of ' Misl-e-Haqiat Ishitimal' as also certified copy of the Jamabandi of 1959-60 by way of additional evidence. The application was opposed on behalf of the respondents. Meanwhile, as already indicated, the special Jamabandi was summoned through the Incharge of Central Record Room and its copy was brought on the record. To seek further clarification of certain entries of the document, the Incharge of Central Record Room was re-summoned with the original special Jamabandi. This time it was produced by Muhammad Iqbal, Naib-Tehsildar. His statement was recorded again as a Court-witness on 26-1-1992. He brought on the record its correct photostat copy (Exh. CW-1/2). He explained that land measuring 284 Bighas, 10 Biswas situated in the area of Village Bhabri, Tehsil Kethle, District Karnal (India) stood attached to the Khanka, Syed Ahmad Kabir Shah situated in the area of that village. He added that Farzanda and Sharif sons of Ismail and certain other persons, whose detail stood incorporated in the first five columns of the Jamabani were in joint possession of the aforesaid land. He testified that there was not entry in the rent column and there was a note in the remarks column that the occupants of the lands were '
Muafidars' subject to the condition of their having good conduct, meaning thereby they were not paying any land revenue to the Government. He ; further' explained that from the Special Jamabandi his Office prepared 'Register Haqdaran Arrazi', in ,which the ownership or entitlement of every owner was separately entered. He deposed that he had seen the copy of Fard Haqiat (Exh.
CW 1/3) and had compared it with the original Register Haqdaran Arrazi. According to him, there was difference of entries between the original Register Haqdaran Arrazi and the copy of Fard Haqiat produced by the appellants. He brought on the file the photostat copy of the original Register Haqdaran Arrazi (Exh. CW 1/4) to enable the Court to compare its entries with the copy of Fard Haqiat (Exh. CW. 1/3) produced by the appellants. In this way, some of the additional evidence sought to be brought on the record by the appellants was actually brought in the form of (Exh.
CW.1/3) but it was of no avail to them as the entries thereof were different from the copy of the original Register Haqdaran Arrazi. (CW 1/4) and it can be safely concluded that the former (Exh. CW 1/3) is a forged document.
8. The main contention of the learned counsel for the appellant was that the disputed property did not fall within the definition of Waqf Property as given in the Punjab Waqf Ordinance, 1979 and it was wrongly taken over by the respondents by the Notification, dated 6-7-1988, issued under section 7 thereof. According to the learned counsel, the opening sentence of the cross- examination of Shaukat Ali appellant (AW.1), in which a concession was attributed to him, was illegally recorded by the learned District Judge and he had never admitted that any property situated in thier village in India was attached to the Dargah of Syed Ahmad Kabir Shah. He contended that the appellants were never aware of the notification issued by the respondents for taking over the disputed property and they were still in possession.
9. On the contrary, it was argued on behalf of the respondents that the revenue record, including the copy of special Jattiabandi, which had now been brought on the file of this Court through the statement of the Incharge of Central Record Room, clearly indicated that the land measuring 284 Bighas, 10 Biswa s situated in. village Bhabri in Tehsil Kathel, District Karnal, stood attached to the Khankah of Syed Ahmad Kabir Shah and it was in lieu of the property that the appellants obtained the disputed land as Majavars or Mutwalis and it was rightly taken over by the respondents by means of the impungned notification because the disputed land was Waqf property within the meaning of section 2(e) of the Punjab Waqf Properties Ordinance, 1979 read with Explanation 2 thereof. It was further urged that Shaukat Ali, one of the appellants, appearing as (AWA) had frankly conceded in the cross-examination that the land stood attached to the aforesaid Khankah in village Bhabry, and a crude attempt was made on his behalf to resile ,from that admission by falsely attributing' a wrong role to the learned District Judge that he had incorrectly recorded his statement.
10. To further ascertain the correctness of the revenue entries, Special Jamabandi received from India was summoned from the Central Record Room through its Officer Incharge and its copy was brought on the record as (Exh. CW.1/2), by examining him as a Court witness. Its contents as further elucidated by the Court witness, Ziicated that 284 Bighas, 10 Biswas of land stood attached to Khanka Syed Ahmad Kabir Shah in the area of Village Bhabri, Tehsil Kethle, District Karnal. The name of this Khankah stood entered in the ownership column as ' Malik Kabza' and in the cultivation column thereof the names of Jindu and Karmo, to the extent of one-half each having equal share, and those of Fathu and Allah Bakhsh, the remaining half, each having equal share, stood entered in respect of the seven Khasra numbers the names of Farzanda, the predecessor of appellants Nos.l to 3, and his brother Sharif appellant No.4, each having equal share, stood entered in respect of three other Khasra numbers; the name of Abdul Ghafoor stood mentioned in the same cultivation column in respect of seven Khasra numbers; and that of Ghulam Rasool in respect of two'Khasra numbers. In the column relating to Malik-e-Alla Mah Ahval (column No.3, which is non-existent in the forms of Jamabandis of our Revenue Department), besides the names of the aforesaid persons, the names of a large number of persons stand entered in such a hotch potch manner that they cover columns Nos. 1 to 5 thereof. Some of them were shown as mortgagors and other as mortgagees.
11. In the remarks column, there is an entry indicating that, vide order of the Secretary to Government, dated 12-9-1956, payment of land revenue stood remitted perpetually for the expenses of Khankah of Syed Ahmad Kabir Shah situated in the Village (Bhabri) subject to condition of good conduct of ' Moaafidaran' and all those who were in possession of the land were Moaafidaran'.
12. It appears that these entries of Special Jamabandi have not been reflected correctly in the revenue record being prepared in respect of the disputed land. The father of appellants Nos.l to 3 and Sharif appellant No.4 were in possession of only three Khasra numbers in the area of Village Bhabri, while Jindhu, Marmo, Fatto and Allah Bakhsh were in possession of seven other Khasras and Ghulam Rasool occupied two other Khasras. The names of these persons, excepting those of appellants herein, do not find mention in the Jamabandi of Village Baloki. Either they or their successors did not submit the claim or they died during the riots at the time of Partition or might have got their claim satisfied elsewhere. In any case, the land in dispute was allotted to the appellants in lieu of the land attached to the aforesaid Khankah in Village Bhabri (India) and their status is no better than that of Mujawars or Mutawallis of the said Khankah. Under second explanation appended to clause (e) of section 2 of the Punjab Waqf Properties Ordinance, 19.79, any property allotted in lieu or in exchange of Waqf property left in India, is deemed as Waqf property. So the land in dispute was Waqf property for all intents and purposes and it was rightly taken over by the respondents by the impugned notification.
13. However, I am inclined to believe that the appellants are still in its physical possession and its possession has been taken by the respondents only on papers. In this regard the statement of Bashir Ahmad, Manager Auqaf Department (RWA), the only witness produced by the respondents, is relevant. He deposed that the land in dispute was situated in Village Baluke but he had not visited it. When the Manager of the Department himself does not know the location of the disputed land, how its possession was taken by or on behalf of the Department? This being so, the respondents as held in Haji Ghulam Rasool and others v. Chief Administrator of Auqaf (PLD 1971 SC 376), can take rent of the disputed land from the appellants, or terminate their right of possession by appropriate legal proceedings for their ejectment in accordance with law. Only to this extent the appeal is accepted.