' This is an appeal against the order dated 15-12-1987 whereby the learned Additional District Judge, Kasur dismissed the appellant's petition under section 7 of the West Pakistan Waqf Properties Ordinance, 1961 read with section 11 of the Auqaf (Federal Control) Act, 1976.
2. The relevant facts which gave rise to the present appeal are that on 17-6-1969 the Chief Administrator of Auqaf, West Pakistan, issued Notification No,1(523) Auqaf/68 which is on record as Exh.D.3. It reads as follows:-- "I, M. Masud, C.S.P., Chief Administrator of Auqaf, West Pakistan, in exercise of the powers conferred on me by section 6 of the West Pakistan Waqf Properties Ordinance, 1961, hereby take over and assume the administration, control, management and maintenance of evacuee land allotted in lieu of waqf property of Khanqah Syed Sher All Shah abandoned in India, in village Talvandi, Tehsil Chunian District Lahore, as described in the schedule annexed hereto:-- ' SCHEDULE ' Agricultural land measuring 120 Kanals bearing Khewat No,327, Khatuni Nos.1170 to 1175 comprising Khasra Nos.1553, 1554, 1570 to 1577, 1579, 1580, 1584, 1583 and 1587 in the Revenue Estate of Mauza Talvandi, Tehsil Chunian. District Lahore, .According to the annual records for the year 1964-65."
3. On 2-6-1980 Syed Kalbe Hassan appellant moved a petition under section 7 of the Waqf Properties Ordinance, 1961 read with section 11 of the Auqaf (Federal Control) Act, 1976 before the District Judge, Kasur to challenge the validity of the abovementioned Notification. He asserted that he was the owner in possession of the aforementioned land hereinafter referred to as the land in dispute which had been transferred to him by the Settlement Authorities in lieu of the land which had been abandoned by him in Mauza Bhabra Azam Shah, Tehsil and District Ferozewala (India).
The said land was confirmed on the basis of RL-II No,326 on 19-8-1952 and entered in the name of Khanqah Sher Ali Shah which was a private property and its management was run by the family of the petitioner. He asserted that the respondents (the Administrator-General, Chief Administrator and the District Manager, Auqaf Department) bad illegally taken over the management of the said land through Notification dated 17-6-1969 under the wrong assumption that the same was a waqf property. He contended that the said notification was void as no notice had been served upon him prior to its issuance. He further maintained that the land in dispute could not be taken over by the Auqaf Department as the same had the status of an Imam Bargah ( o tit.. r ) which is always considered to be a private property and has never been treated as a place of worship for the public-at-large. He stated that in 1969 he had instituted Writ Petition No,1617/69 against the said take over but the same was dismissed for default on 17-3-1979, whereafter he instituted the petition before the learned District Judge. He prayed for a declaration to the effect that the Notification dated 17-6-1969 was void and ineffective and that the land in dispute was not a waqf property and was the personal property of the appellant.
4. The respondents contested the said petition on various grounds. On the divergent pleadings of the parties the following issues were framed:--
(1) Whether the petition is within time?
(2) Whether the petitioner is estopped from suing by his conduct or otherwise?
(3) Whether the property in dispute is not waqf property and it had been wrongly taken over by the Auqaf Department?
(4) Relief.
5. The parties adduced their oral as well as documentary evidence on the above issues. After considering the said evidence and hearing the parties' learned counsel the learned Additional District Judge, to whom the petition was entrusted for disposal, dismissed the same vide order dated 15-12-1987. Feeling aggrieved the appellant has come up in appeal.
6. I have heard the parties' learned counsel and have also gone through the record.
7. Learned counsel for the appellant has raised two contentions in this appeal, firstly, that the learned Additional District Judge was wrong in holding that the petition was barred by time and secondly that the land in dispute being a private property could not be taken over under the Waqf Properties Ordinance, 1961.
8. Learned counsel for the respondents has controverted the above contentions and has defended the impugned judgment.
9. As regards limitation it has been prescribed in section 7 of the West Pakistan Waqf Properties Ordinance, 1961, that a petition to question the validity of a take over by the Auqaf Department had to be made before the District Judge within 30 days of the publication of the notification whereunder the disputed property was taken over as Waqf. The Notification (Exh.D.3) in the present case was issued on 17-6-1969 and was published in the official Gazette on 11-7-1969 (see Exh. D.8.).
The petition under section 7 of the Ordinance was instituted on 2-6-1980 which prima facie was hopelessly barred by time. Relying on Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab PLD 1977 SC 639 learned counsel for the appellant contended that a notification under section 7 of the Waqf Properties Ordinance must not have only been published in the Gazette but must also have been served on the appellant who was the person in possession of the property declared as Waqf.
He maintained that as the notification had not been served on the appellant period of limitation would not start running against him and his petition would be considered to be well within time. On the other had learned counsel for the respondents while conceding that notification had not been served on the appellant has submitted that the appellant had come to know about the takeover of the land in dispute by the. Auqaf Department immediately after the issuance or publication of the notification and this knowledge was manifestly evident from the Writ Petition No,1617 of 1969 which he lodged on 22-10-1969 to question the validity of the said notification.
10. In Muhammad Ishaq's case it was found that the notification impugned in the said case was published on 30-9-1969 but its copies were not delivered to the sales depot for sale to the public- in-general till 23-10-1969 and thus it was held that the limitation in that case would start from 23- 10-1969 and not from 30-9-1969. In the present case this is not the case of the appellant that the copies of the notification in question (Exh.D.8) were not made available to the sales depot of the official Printing Press. It is also not his case that the said notification was not displayed at suitable public places. The facts of the cited case thus are not attracted to the case in hand and, therefore, service of the notification on the appellant was not required. In a similar case Syed Faiz Ali Shah v.
Chief Administrator of Auqaf PLD 1982 B.J. 15, a learned Division Bench of this Court has dealt with this question in the light of the law laid down in Muhammad Ishaq' case. Para. No,26 of the judgment clinches the matter which is reproduced as below:-- "The question, however, is whether the declaration has to be confined to the area measuring 409 Kanals and 3 Marlas as had been originally asked for or to the entire land taken over by the Department. It is to be seen that Syed Faiz Ali Shah in the very first paragraph of his application instituted under section 7 of the Ordinance, had stated that by the impugned notification the Government had taken over 10 squares of land as Waqf and yet he had in the second paragraph sought relief only in respect of 409 Kanals and 3 Marlas. The other items of property for which he had sought a similar declaration were his residential houses and Ihata Khanqah. However, Syed Faiz Ali Shah had applied belatedly on 12-5-1961 for amendment of his original application so as to include the entire area taken over by the Department which application had been rejected by the learned District Judge as well as by the learned Single Judge, on the ground of limitation. The reason given in the application for the delay was that no copy of the relevant notification had been supplied to him and as such he was not in a position to know the details of the property. Reliance was also placed on Muhammad Ishaq v. Chief Administrator of Auqaf, (i) in which it was .Observed that a notification under the Ordinance should not only be published but also delivered to the book depots and displayed prominently at suitable places. It was further observed, 'A notification under section 7 of the Ordinance must also be served on the person in possession of the property which the Chief Administrator Auqaf has declared to be Waif. We have checked up the Provincial Gazette and find that the notification exists having been published on 18-8-1960. As official acts are presumed to have been regularly performed and nothing has been shown to the contrary, we have to take it as a fact that the notification had been duly published and was available to the general public. The Department's failure to supply a copy would not detract from this fact. It may be that Syed Faiz Ali Shah could not lay his hands on the notification but he was nevertheless aware that land measuring 10 squares had been taken over. That being so, we see no reason why he restricted the scope of the declaration only to 409 Kanals and 3 Marlas. His not seeking the relief for the entire area taken over in spite of his knowledge would debar him from making an application beyond the time prescribed by law. He, therefore, can get the declaration only in respect of the property he had originally asked for."
In view of the above-quoted dictum, I have no hesitation in holding that in the circumstances of the present case it was not necessary for the Auqaf Department to serve a copy of the notification on the appellant.
11. There is ample material on record to establish that the appellant came to know about the take over of the land in dispute by the Auqaf Department immediately after the publication of the notification dated 11-7-1969. The appellant in his statement as P.W.3 before the learned trial Court has admitted that the notification in question was issued by the Auqaf Department on 17-6-1969.
He has also admitted in the said statement that he had instituted Writ Petition No,1617 of 1969 to challenge the legality of the said notification. The prayer which he made in the said writ petition is reproduced as under:- "It is, therefore, respectfully prayed that Notification No,1(523) Auqaf/68 dated 17-6-1969 published in Gazette of West Pakistan dated 11-7-1969 may kindly be declared to have been issued without lawful authority and is of no legal effect. The petitioner further prays that the respondents may kindly be restrained from dispossessing the petitioner or to auction the leasehold rights of the land in question."
It is manifestly clear from the above prayer and I have no hesitation in holding that at least on 22- 10-1969 when the appellant instituted W.P. No,1617 of 1969, he knew that the notification in question had been published on 11-7-1969. Despite that knowledge he instituted the petition before the learned District Judge on 2-6-1980 which was hopelessly barred by time. His writ petition was dismissed on 17-3-1979 and he was directed to seek remedy before the District Judge under section 7 of the Waqf Properties Ordinance, 1961. Instead of rushing to the proper forum he slept on for yet another year. This conduct of the appellant did not entitle him to any concession or indulgence from the Court. Even otherwise delay in the present case could not be condoned under section 5 of the Limitation Act because the case in hand is under special law and provisions of the said Act relating to condonation of delay are not applicable to such cases. Reliance in this regard is placed on Elahi Bakhsh v. Chief Administrator, Waqf Property 1982 SCM R 160.
12. In view of what has been discussed above I am of the firm opinion that the learned Additional District Judge was perfectly justified in holding that the appellant's petition under section 7 of the Waqf Properties Ordinance was hopelessly barred by time.
13. As regards the second contention learned counsel for the appellant has submitted that the land in dispute was a private property which was transferred to his client in lieu of the land which he had abandoned in India as Imambargah. He submitted that an Imambargah is always a. Private property and has never been considered to be a Waqf Property by the Courts in Pakistan. In this connection he referred to section 223 of Mulla's Mahomedan Law which reads as follows:-- "Takia.---An Imambara is an apartment in a private house or a building set apart like a private chapel for religious purposes. It is intended for the use of the owner and members of his family though the public may be admitted with the permission of the owner. It may be the object of a valid waqf---Section 178. Such a waqf is a private waqf and not a public waqf nor a trust for the purposes of section 92 of the Code of Civil Procedure, but it may be proved that a particular Imambara is a public waqf."
' On the other hand learned counsel for the respondents maintained that the land in question was not an Imambargah and was a Waqf property which had been transferred by the Settlement Authorities in the name of Khanqah Sher Ali Shah in lieu of the Waqf property which the appellant's family had left in India.
14. The appellant has not produced any documentary evidence to establish that the land in dispute was his private property or an Imambargah or it had been allotted to him in lieu of an Imambargah which he had left in India. On the other hand he in his statement as P.W.3 has clearly admitted that in India the disputed land was not in the name of any Imambargah but was in the name of Khanqah Sher Ali Shah and that in Pakistan it was allotted in the name of the said Khanqah. He has further admitted that the disputed land was in the name of the said Khanqah in India and that the said land was dedicated by his real grandfather Syed Ghulam Ali Shah. The documentary evidence on record also belies the appellant's assertion which he had raised in the plaint. Exh.P.4 is the copy of RL-II in which the land in dispute is shown to have been allotted to Khanqah Sher Ali Shah. The relevant entry in column No,2 is as follows:- {{URDU TEXT}} ' This document further reveals that the land in question was transferred in lieu of the land situated in Bhabhra Azam Shah, Tehsil and District .Ferozepur, India. Copy of the Jamabandi for the year 1979-80 Exh.P.6 also shows that the said land stood in the name of Khanqah Sher Ali Shah. It is thus established beyond a shadow of doubt that the land in dispute was allotted in the name of Khanqah Sher Ali Shah in lieu of land situated in village Bhabhra, Tehsil and District Ferozepur, India; which was dedicated to the said Khanqah by the grandfather of the appellant.
15. Explanation 2 of section 2(d) of the West Pakistan Waqf Properties Ordinance, 1961, clearly lays down that a property allotted in lieu of or in exchange of Waqf Property left in India shall be deemed to be Waqf property in Pakistan. Explanation 6 of the same section also lays down that a property permanently dedicated for the purposes of Khanqah shall be deemed to be Waqf property. In the light of this legal position when we examine the evidence on record it is not difficult to hold that the land in dispute was a Waqf property which hed been allotted in lieu of Waqf property left by the family of the appellant in India.
16. It has been argued on behalf of the appellant that in the Revenue Record the land in dispute was wrongly shown in the name of Khanqah Sher Ali Shah and in fact being an Imambargah it was a private property of the family of the appellant. It has already been pointed out above that there is no material on record to show that the land in dispute was private property or an Imambargah.
According to Exh.P.4 the copy of the RL-II the land in question was transferred in the name of Khanqah Sher Ali Shah in the year 1952 and since then till it was taken over by the Auqaf Department it was being shown in the name of the said Khanqah in the Revenue Record. The appellant never challenged this status or character of the land in dispute before any Court of law and, therefore, now it does not lie in his mouth to say that it was not a waqf property or it was a private property or an Imabargah.
17. The result of the above discussion is that the land in dispute was rightly held to be a waqf property and thus its takeover by the Auqaf Department through Notification No,1(523)Auqaf/68 dated 17-6-1969 (Exh.D.3) published on 11-7-1969 was perfectly valid and did not suffer from any infirmity. The impugned order is found to be unexceptionable. There is no substance in this appeal which is dismissed with costs.