' This judgment will dispose of three appeals (F.A.O. 48 and 49/83 and 201 of 1982) as the questions of facts and law involved in all the three appeals are one and the same. The relevant facts briefly stated are that the Chief Administrator of Auqaf issued notification dated 11-12-1980 taking over and assuming control of the disputed properties under section 7 of- the Punjab Waqf Properties Ordinance. Mst. Zubaida Begum and Abdur Rashid appellants, who are purchasers of half portion each of House No, 168-B, Inside Bhati Gate, Mohallah Patranga, and Mst. Nawab Bibi who is purchaser of House No, 8, Pir Makki, Lahore, filed separate petitions under section 11 of the Punjab Waqf Properties Ordinance, seeking declaration that the properties respectively purchased by them are not Waqf properties and that the impugned notification issued by the Chief Administrator of Auqaf be declared illegal, nullity, void and inoperative as against their rights. The learned District Judge dismissed the three petitions vide consolidated judgment dated 1-11-1982. This led to the filing of these appeals.
2. The facts relevant to the controversy subject-matter of the appeals are that Haji Noor Din created a Waqf through registered Waqf deed dated 24-6-1935 Exh. R.1 in respect of houses B-168, B-167, Inside Bhati Gate and House No, 8, Street No, 2, Pir Makki, Ravi Road, Lahore, and other properties including Amritsar properties. This Waqf was created during the pendency of a suit filed by aforesaid Noor Din in 1933 seeking declaration of ownership and possession of house No, 8 Pir Makki, against Zahoor Din who was claiming to be the adopted son of Noor Din. This suit was decreed vide judgment and decree dated 31st May, 1949. The trustees filed execution petition to seek possession of house No, 8, Pir Makki in execution of the aforesaid decree as by then Noor Din Waqif had died. Zahoor Din also died and as such the execution petition was filed against Mst.
Sughra Begum, widow, and minor children of Zahoor Din, deceased. The trustees and Mst. Sughra Begum widow entered into a compromise dated 23-12-1950 Exh. P.7 whereby house No, 8 Pir Makki was sold by the trustees to the heirs of Zahoor Din, judgment-debtor, for a consideration of Rs,3,000 out of which Rs,500 were paid in cash and the remaining sum of Rs,2,500 was left with the widow for the maintenance of the minor children, as one of the objects of the trust was to maintain the poor. This compromise was then affirmed by the Court vide its order of even date i,e, 2312-1950. It may be mentioned at this stage that this very house No,8, Pir Makki was sold during the pendency of the suit by Mst. Sughra Begum widow of Zahoor Din in favour of her own father named Muhammad Bashir vide Mutation No, 3461 dated 10-11-1938, Exh. P.5, for a consideration of Rs,10,000.
Mst. Nawab Bibi the present appellant in F.A.O. 201-82, purchased house No, 8, Pir Makki from Muhammad Rashid and others, the heirs of aforesaid Muhammad Bashir, vide sale-deed dated 3- 10-1955, Exh. P.6. Mst.
' Nawab Bibi thereafter filed a suit for possession against Nabi Bakhsh, Muhammad Shafi and Muhammad Din, who were in occupation of the said house. The suit was decreed initially vide judgment and decree dated 14-5-1959; on appeal the suit was remanded and the same was again decreed by the learned trial Court on 22-9-1959. The first appeal failed on 22-7-1960 but the second appeal was accepted vide judgment and decree dated 9-1-1968, Exh.R.3, by a Division Bench of this Court on 19-4-1968. The Auqaf Department then vide notification dated 11-12-1980 assumed the control of this house No, 8, Pir Makki.
3. The position obtaining in respect of houses B-167 and B-168 is a little different. House B-167 is, however, not in dispute in these appeals. Noor Din who had created Waqf of these houses alongwith other properties situate in Lahore and Amritsar, sold two houses bearing B-167 and B-168, vide registered sale-deed dated 20th November, 1944, Exh. P.2, to one Mst. Fazalun-Nissa who in turn sold these houses to Ali Muhammad Butt. Mst. Zubaida Begum then purchased half share in house No, B-168 vide registered sale-deed dated 25-8-1977 Exh. P.11. The other half of this house was purchased by Abdur Rashid vide sale-deed dated 25-7-1977 Exh.P.12. House No, B-167 was purchased by Mst. Zainab Bibi from Mst. Ghulam Jannat who appears to be the vendee from Mst.
Fazal-un-Nissa, vide sale-deed dated 28-5-1969 Exh. P.13. It is pertinent to note that houses Nos. B- 167 and B-168 were sold by Noor Din Waqif himself on 20-11-1944 i,e, during the pendency of the suit against his so-called adopted son Zahoor Din.
4. The oral evidence consists of P.W.1 Mozammal Akhtar, Record-keeper, Excise Department who produced the register which showed that Mst. Nawab Bibi was recorded owner of house No, 8, Pir Makki while Muhammad Yusuf P.W.2, Record-keeper, Excise Department produced record of houses B-167 and B-168 which showed the aforementioned persons as the recorded owners. The other witnesses are the Attrneys of the parties and Abdur Rashid appellant appeared himself besides Muzaffar Ahmad P.W.7 who is son of Zahoor Din. The respondent Department produced only documents namely Wafqnama Exh. R.1, dated 24-6-1935, judgment of the Additional District Judge dated 20-7-1960, Exh. R.2, judgment of the Division Bench of this Court in R.SA. 356-60 dated 9-1- 1968, Exh. R.3, And the order rejecting the review application against the aforenoted judgment as Exh. R.4.
5. The learned District Judge dismissed all these petitions mainly on the basis of Division Bench judgment Exh.R.3 rendered in the suit of Mst. Nawab Bibi against the occupants. In this judgment the learned Judges of this Court taking notice of the sale of the house of Pir Makki by Mst. Sughra Begum in favour of Muhammad Bashir, her father, and after observing that the compromise with the trustees, whereby they had agreed to convey the house No, 8 Pir Makki for Rs,3,000 to Mst.
Sughra Begum and the children of deceased Zahoor Din by receiving Rs,500 only and waiving of the rest of consideration, was unauthorised, held as under.-- "The upshot of all this discussion is that looked at from whatever point of view, the plaintiff has not been able to prove the title of Mst. Sughra Begum or as a matter of fact of her father Babu Muhammad Bashir with the consequence that the plaintiff cannot be said to have any title herself in the portion of the house in dispute."
Obviously the aforesaid judgment Exh. R.3 does not concern the appellants in appeals F.A.O. 48 and 49 of 1983 and as such the petitions of the two appellants Mst. Zubaida Begum and Abdur Rashid could not have been dismissed on that score alone. Their cases required to be gone into on their own merit separately. No doubt the Waqf was created by Noor Din in respect of house No, B-168 alongwith other properties but Wafqnama Exh. R.1 confers explicit power on the Waqif who is its first Mutwalli, to sell, mortgage the properties provided such an alienation is either beneficial or is necessary for the objects of the trust. The burden of showing that the alienation was not beneficial or necessary for the purpose of the trust in the circumstances would lie on the respondent- Department which burden appears not to have been discharged in the instant case. It is also to be noticed that neither the Waqif in his lifetime nor the trustees after his death agitated against the said sale of the house. The Waqif was locked in litigation when he sold the smaller houses in 1944 and these houses have thus been changing hands from one vendee to the other and in the circumstances it will be too unjust not to recognise the sale made by the Waqif in the year 1944 as the one transacted not for the purposes of the trust. Moreover, the learned Additional District Judge has misread the Wafqnama Exh.R.1 when he says that no power to sell the dedicated property had been reserved by the dedicator for himself or for the Mutwalli. For all these reasons house No, B-168 in the year 1980 could not be treated as Waqf property for the purpose of assuming management and control thereof in exercise of the power vesting under the Punjab Waqf Properties Ordinance.
The order to the extent of these appellants in respect of house No, B-168 is, therefore, set aside and resultantly the petitions filed by the appellants are hereby accepted and the declaration prayed for is granted.
6. Coming to the third appeal (FAO 201-82) it will be noted that the judgment dated 9-1-1968 Exh.R.3 passed in the suit filed by Mst. Nawab Bibi herself is binding on her. This judgment nullifies the title claimed by Mst. C Nawab Bibi in the said house. This being the position Mst. Nawab Bibi cannot claim any right in house No, 8, Pir Makki and as such has no locus standi to maintain a petition under section 11 of the Punjab Waqf Properties Ordinance, 1979. The plea of Ch. Shahbaz Khurshid, Advocate, learned counsel for the appellant that the house in dispute was not Waqf property as the Waqf deed was not acted upon in view of the fact that Noor Din himself had sold two houses vide sale-deed Exh. P.2, has no merit. The Waqif had, as indicated above, reserved to himself in the Waqf deed power to alienate the property for the benefit and for the purpose of the trust. It has not been shown that the said alienation of the houses was not for the purpose or for the benefit of the trust. The next plea that the trustees mentioned in the trust deed had not performed their function under the Waqf deed stands controverted from the history of the suit titled Noor Din v. Zahoor Din and the proceedings of the execution application. The execution application was admittedly filed by the trustees who had then entered into a compromise dated 23-12-1950, though this compromise was held to be unauthorised and illegal later on by this Court in its judgment dated 9- 1-1968. This is abundant proof of the fact that the trustees had assumed control of the properties and had acted pursuant to the Waqf deed. The plea that none had filed claim in respect of the properties left in Amritsar and that the trustees have not taken any interest in the recent years in this trust cannot be made basis for saying that the trust had not come into existence factually and legally. May be the Auqaf Department has moved for that very reason in issuing the notification.
The plea that Haji Noor Din did not in reality intend to create a Waqf; it was a Waqf for self-benefit and such a private Waqf does not fall within the definition of "Waqf property" as defined in section 2(e) of the Ordinance, has no merit as the very perusal of the Waqf deed Exh. R.1 sufficiently negates this assertion. The sale of the two houses by the Waqif cannot be treated in the absence of specific and concrete evidence in this regard as transaction showing breach of trust on the part of the trustee. Even otherwise breach of trust on the part of trustee however numerous and extending over however long a period cannot put an end to the trust once there is an effective dedication.
This was so held in Beli Ram v. Ch. Muhammad Afzal (PLD 1949 PC 8). No other point was urged. The appeal of Mst. Nawab Bibi as such is without merit and is dismissed.
7. The net result of the above discussion is that the two appeals (FA.O. 48 and 49 of 1983) succeed and are allowed as indicated above while the third appeal (F.A.O. 201 of 1982) is dismissed leaving the parties to bear their own cost.