This is an appeal under section 8 of the West Pakistan Waqf Properties Ordinance, 1961, and it raises, inter alia, a legal question whether the District Court while declaring the limits of Waqf Property on a petition under section 7 of the said Ordinance, could order payment of specific sums of money out of the income of the Waqf Property to the Sajjada Nashin of a Dargah for his personal and family maintenance and for meeting the expenses and other necessaries of the Dargah. It arises in the following circumstances;
2. By a Notification No. 4 (143) Auqaf-60 published in the Gazette of West Pakistan, dated 31-8-1960, under section 6 of the former West Pakistan Waqf Properties Ordinance, 1959 (now repealed and re-enacted as the West Pakistan Waqf Properties Ordinance, 1961), the Chief Administrator of Waqf, West Pakistan, the Appellant herein, took over and assumed the administra--tion, control, management and maintenance of Waqf Properties attached to the Dargah of Hazrat Sachal Sarmast Farooqui Sahib, situated in Dargah Daraza, Taluka Gambat, District Khairpur, Sind.
3. The respondent, Sain Abdul Haq son of Sain Sahib Dino claiming to be the Sajjada Nashin and interested in the Waqf property, filed an application under section 7 of the said former Ordinance, for a declaration that three residential houses and a garden attached to one of them, are not Waqf property but personal property of the Sajjadanashin, while the other pro--parties mentioned in the Notification were Waqf properties within the limits stated in the petition. In the petition, it was stated that the Daraza Darga Jagir is one of the oldest Jagirs bestowed upon the Sajjada Nashin of the Dargah by the ruler of the former Khairpur State, Mir Sohrab Khan Talpur and that the succeeding rulers of the State confirmed the Parwanas (grant) from time to time, with the object that the income from the Jagir land was to be used for meeting the kitchen expenses of the Sajjada Nashin, his family dependants and relatives (Hangar) and for meeting messing expenses (Bhatti) of Pilgrims and Faqirs. Who visited the Holy Shrine and stayed there and for the expenses of annual Uri and other ceremonies and repairs of the Shrine, grave, mosque, hujra etc. The Respondent prayed that it be declared that the Waqf property was subject to the limits that the entire income of the Jagir land shall first be used for meeting the aforesaid expenses.
4. The appellant/respondent disputed the claim of the Sajjada Nashin to the Jagir land and to the three residentlal houses and garden. After framing issues and recording evidence, which was produced by the respondent only, the District Judge, Khairpur Mir (Ghulam Hyder K. S. Pir) by his Judgment dated 15-6-1971, rejected the respondent's claim and held that all properties were Waqf properties including the three residential houses and garden subject however, to the right of the Sajjada Nashin and dependants to continue to live therein without payment of rent. However, he "defined the limits" of the Waqf by prescribing that the entire income of the Jagir land shall be spent, 1/4 on the maintenance of the Sajjada Nashin, his family and dependants, 1/4 on Nangar and Bhattl, 1/4 upon Urs ceremonies and other functions and the remaining 1/4 on repairs and construction etc.
5. The appellant filed an appeal against the said judgment to the High Court in M. A. No. 62/1961 in so far as it prescribed how the income of the Waqf property was to be spent, on the ground that it amounted to framing a scheme rather than determining the limits of the Waqf property. This contention was upheld and the appeal was allowed and the Judgment set aside. The case was remanded to the District Judge with a direction that "the learned Judge should not attempt to frame a scheme but only determine the limits that may be found to be existing on the Waqf in terms of section 7 of the Ordinance." However, it must be maintained that the respondent himself filed no appeal against the judgment of the District Judge and particularly against the adverse :finding with regard to his claim to ownership of three residential houses and the garden.
6. On remand, the case was re-heard by the District Judge, Khairpur Mir's (Mr., A. G. Mohammad Ali). By his Judgment dated t3-9-1968, he held that the three houses and the garden attached thereto, are the private properties of the Sajjada Nashin and directed that necessary amendment be made in the Notification issued under section 6 of the said, Ordinance. He also directed that the appellant shall pay to the respondent Sajjada Nashin, a monthly sum of Rs. 500 for his personal and family maintenance, Rs. 500 for Bhatti and Rs. 500 for Nangar from the income earned from the Jagir land. In this way, he prescribed the limits of the Waqf property.
7. Mr. M. M. Pirzada, learned counsel for the appellant submitted that the learned District Judge could not review on remand the finding of the predecessor District Judge, who had held that the three residential houses and the garden were Waqf properties and not the private properties of the respondent. According to Counsel, the case was remanded for the limited purpose of determining the limits of the Waqf property. Moreover, as the respondent had filed no appeal, that finding had become final. I am inclined to agree with this submission. On merits also, I find that no new evidence had been produced by the respondent and none has been shown to me by Mr. Shoukat Ali, learned counsel for the respondent, to establish the respondent's claim to title to the three houses and the garden. Accordingly, I hold that these properties are Waqf properties, subject, however, to the right of the Sajjada Nashin and his family and dependents to continue to live therein, without payment of rent as before, so long as he continues to be the Sajjada Nashin.
8. Mr. M. M. Pirzada next submitted that the learned District Judge exceeded his jurisdiction under section 7 of the Said Ordinance by prescribing and directing payment of monthly amounts to the respondent, out of the income of the Jagir lands. His submission is that he, like his predecessor, fell into the same error, as the direction for payment of specific sums, amounts in effect to framing a scheme, which is not the function of the District Judge under section 7 of the Ordinance. The expression "within the limits" in section 7 (1) (b) of the said Ordinance, means, some encumbrance, restriction or limitation existing on the Waqf Property on the date of the Notification under which it was taken over by the Chief Administrator of Auqaf, and not a limit to be prescribed in future. The question before the learned District Judge was simply whether on the date of the Notification, there existed any such encumbrance, restriction or limitation on the Waqf property. That question was rightly answered, in my opinion, and also as submitted by Mr. Shaukat Ali, that from the Parwanas it has been established beyond doubt that the Jagir lands were dedicated by the Ruler of the Khairpur State with the object of providing maintenance to the Sajjada Nashin and keeping him above want, so that he may devote himself and attend. To the spiritual, religious and cultural ceremonies to be performed in the Dargah and pray for the departed souls of the Rulers, as also for meeting the expenses of the necessaries, such as Nangar, Bhatti, Urs and other customary ceremonies to be performed at the Dargah.
9. Under section 11 (2) of the Ordinance in settling the Scheme, the Chief Administrator is required to give effect to the wishes of the person dedicating the Waqf Property, as can be ascertained and to which effect can reasonably be given and, under section 13 of the Ordinance, the Waqf property shall be used for the purpose for which it had been dedicated or had been used. Therefore, it is clear that as the Jagir lands were dedicated for the aforesaid specified objects, the utilization of its income by the Chief Administrator of Auqaf must be restricted and shall be within the limits, for which the lands were dedicated, and used in the past or for any purpose recognized by Islam as religious, pious --r charitable, as he may deem fit. As will be apparent from section 6 of the said Ordinance, the powers of the Chief Administrator are confined to management and control of the Waqf property, which also includes control over the performance and management of the religious, spiritual, cultural and other services and ceremonies at or in the Dargah. But such powers shall be exercised within the limits, regarding utilization of the income of the Jagir lands on the objects and purposes above mentioned, in accordance with a scheme to be settled by him.
Therefore, I am of the view that the Jagir lands, which are Waqf properties, are subject to the limits that the income from it, shall be spent on the personal main--tenance of the Sajjadanashin as well as upon the customary ceremonies and other necessaries connected with the shrine. But I agree with Mr. M. M. Pirzada that section 7 does not empower the District Court to specify what specific amount of money shall be paid periodically to the Sajjada Nashin or incurred as expenses on this or that item, because that would amount to framing a scheme and encroaching upon the function and discretion of the Chief Administrator of Auqaf. Therefore, I would set aside that part of the impugned order directing that specific sums of money shall be paid to the respondent. I would direct that in settling a scheme for the administration of the Waqf Property, the Chief Administrator of Auqaf should have regard to the necessity of providing for reasonable maintenance of the Sajjada--nashin and his family, as well as for meeting the expenses of the spiritual, cultural and customary ceremonies to be performed at the shrine, as well as for repairs and other cultural activities.
10. Accordingly, the impugned judgment is set aside, subject to the above observations. In the circumstances, there shall be no order as to costs.