This revision is directed against the judgment and decree of the learned Additional District Judge-I, Swabi, dated 14-11-1987, whereby the appeal filed by petitioners herein was dismissed with costs and judgment and decree of the learned trial Court, dated 27-7-1983 were maintained.
2. Concise facts relevant for the disposal of this revision are that the petitioners/plaintiffs instituted a representative suit under Order 1, Rule 8, C.P.C. For a declaration to the effect that suit Hujra constructed over an area measuring 8 Marlas known as "Hujra Tall Balar Khel" was owned and possessed by the people of Tall Balar Khel since time immemorial and respondents-defendants Nos.16 to 18 were not competent to gift their share in Hujra in favour of respondents-defendants Nos.1 to 15 who were residents of Tall Zakria Khel. The petitioners-plaintiffs also prayed for the issuance of a permanent injunction restraining defendants Nos.1 to 15 from the use of `Hujra' in question. The suit was contested by the respondents-defendants. The pleadings of. The parties were reduced into the following issues:---
(1) Whether the suit is res judicata?
(2) Whether the plaintiffs are estopped to bring the present suit?
(3) Whether the suit is bad in the present form?
(4) Whether the suit is bad for non-joinder of necessary parties?
(5) Whether the suit is bad for conflicting and contradicting reliefs?
(6) Whether the plaintiffs have validly instituted the present representative suit under Order 1, Rules 87.
(7) Whether suit Hujra is owned and possessed by the owners of Tal Balar Khel and defendants 1 to 15 have got no right to use the said Hujra.
(8) Whether the order of EA.C. Swabi dated 2-9-1978 and that of Sessions Court, dated 15-6-1980 during proceeding under section 145, Cr.P.C. Are wrong, illegal and not binding on the plaintiffs?
(9) Whether the unregistered deed if any, executed by defendants 16 - 18 in favour of defendants is admissible in evidence?
(10) Whether no possession has been delivered under the alleged gift deed, if so to what effect?
(11) Whether possession of an insignificant area in the suit Hujra cannot be transferred in case gift deed is held to be valid?
(12) Whether alleged gift deed has not been acted upon and the defendants Nos.1 to 15 have never used the suit Hujra, if so to what effect?
(13) Whether defendants 1 to 15 are bent upon using the suit Hujra illegally and as such are liable to be restrained from using it through permanent injunction?
(14) Whether the plaintiffs have a cause of action?
(15) Whether the plaintiffs are entitled to the decree prayed for?
(16) Relief.
The evidence of the parties as they wished to produce in respect of their claims was recorded. The learned trial Court vide its judgment dated 27-7-1983 dismissed the suit primarily on the ground that gift of their share by respondents Nos.16 to 18 in suit Hujra in favour of respondents-defendants 1 to 15 was valid and respondents Nos.1 to 15 had every right to use the said Hujra. On appeal the learned Additional District Judge, Swabi, maintaining the order of the Court below dismissed the appeal by his order, dated 14-11-1987 under the same grounds. Feeling aggrieved, the petitioners-- plaintiffs have come up in revision to this Court.
3. I have heard the arguments in depth addressed by Sheikh Wazir Muhammad, Advocate, for the petitioners and Mr. Tasleem Hussain, counsel for the respondents and examined the record of the case thoroughly.
The learned counsel for the petitioners argued that Hujra in question belonged to the people of Tall Balar Khel who are in possession of the same for the last 120 years and gift on the basis of deed dated 4-8-1977 of their share by respondents-defendants Nos.16 to 18 in favour of respondents- defendants Nos.1 to 15 who are outsiders being the inhabitants of Tall Zakria Khel was illegal and, therefore, does not confer any right upon the respondents Nos.1 to 15, the alleged donees. He further assailed the judgment of the learned lower Courts being erroneous on the ground that Mosque and Hujra of village Tall Balar Khel, the subject of the gift deed, dated 4-8-1977, was impartible which could not be alienated under any law. Regarding the gift in respect of the Mosque the learned counsel for the petitioners placed reliance on AIR 1934 Pesh. 57 wherein it is held, "In Muhammadan Law there cannot be any private Mosque. When once a place is dedicated to be a Mosque, it becomes public property; it is a property of God. Therefore, where the person in charge of such a mosque claims the property as his private estate, he is removable under section 92." The learned counsel also referred to PLD 1993 Kar. 805 which reads:--- "(a) Once a building was set apart as mosque and prayers were offered therein, itself would become Waqf by use under Muhammadan Law. In such cases property in Waqf vests in Allah and nobody can claim ownership of that property."
4. It may be mentioned here that the learned counsel for the respondents at the very outset submitted that respondents did not claim the ownership of the Mosque but since it was situated inside the Hujra, therefore, the same was mentioned in the deed dated 4-8-1977. Coming now to the question whether Hujra is liable.To partition? Hujra in general terminology is a common sitting guests, visitors and strangers are received, entertained and lace where ceremonial functions are held. It is also an institution which advances religion, commerce, health safety or otherwise beneficial to mankind and public-at---large. Generally we come across two types of Hujras; first is family/private Hujra which is established by the head of the family on his own account. It is maintained and controlled by the elder of the family; and, second is `Kandi Hujra' or community Hujra which is established by a section of the village community headed and controlled by `Lumbardar' of the village. The learned counsel for the petitioners is of the view that the private or family Hujra is partible as every co-sharer of the family Hujra can ask for his share by partition whereas Kandi or Tall Hujra being a local Parliament of Pathans is not liable to partition as by doing so its sanctity and privacy would be violated which is against the custom of the locality. In support of his contention the learned counsel for the petitioners referred to Civil Judicial Record (1901 - 1924) Case No.22 page 80, wherein C.E.F. Bunbury, Judicial Commissioner, N: W.F.P., held as under:-- - "In both these suits the Munsif held that it would be inexpedient to allow partition of a Hujra: and on appeal the Divisional Judge (Mr. Maude), upheld the Munsif s decision, and remarked `the Hujra is an institution used by the inhabitants' of the section of the village in which it is situated for `the common purposes of themselves and for the entertainment of strangers, and if such an institution were' liable to partitioned according to the whim of each `proprietor', the essential character of the Hujra would `very soon be utterly destroyed'"
I may mention here that question/dispute in this case is not regarding the partition of Hujra but only alienation or transfer of share by the donors in favour of the donees through gift. Question which requires to be determined is whether defendants Nos.16 to 18, admitted share-holders in Tall Hujra Balar Khel, could transfer their respective shares in the suit property through gift deed in favour of defendants Nos.1 to 15 who are inhabitants of an adjacent `Tall' of the same village. (`Tall' in the rural area connotes as `Mohallah' in the urban area). Respondents-defendants Nos.16 to 18 had no male issue, therefore, they transferred their shares in the Hujra in dispute which, according to them, was constructed by their grandfather, to their daughters and their-in-laws, i.e., respondents Nos.1 to 15 who are the inhabitants of adjacent `Tall' Zakria Khel of the same village who remained no more strangers as matrimonial wedlock vow them together and also entitled them to sh inheritance. Moreover, Hujra in dispute is constructed on the village `Shamilat' which means joint property. Under Muhammadan Law share in the `Shamilat' (Musha) can be gifted. In this respect I am fortified by PLD 1994 SC 653 wherein it is observed, "A gift of land made jointly to two or more persons in specified shares is valid. Such gift may be irregular but not void".
5. I would now revert to next contention that gift deed was not registered, therefore, not admissible in evidence. Under the provisions of section 123 of the Transfer of Property Act, 1882, gift of immovable property must be effected by a registered instrument signed by the donor and attested by two witnesses. But these provisions (section 123) do . Not apply to Muhammadan gifts.
A gift under Muhammadan Law is to be effected in the manner prescribed by section 149 of Muhammadan Law which reads as follows:--- "149. The three essentials of a gift.---It is essential to the validity of a gift that there should be (1) a declaration of gift by the donor, (2) an acceptance of the gift, express or implied, by or on behalf of the donee, and (3) delivery of possession of the subject of the gift by the donor to the donee as mentioned in section 150. If these conditions are complied with, the gift is complete (1)."
It is, therefore, clearly enunciated that if the formalities as required under the Muhammadan Law are complied with the gift is complete and valid, The gift deed Exh.DW.2/1 has been duly proved by marginal witnesses P.W. Shah Bahadur and D.W. Mir Muhammad. It may be mentioned here that a complaint under section 145, Cr.P.C. Was filed by respondents-defendants in the Court of MIC. After recording the evidence of the parties the learned trial Magistrate apprehending breach of peace attached the Hujra under section 146, Cr.P.C. However, the parties compromised before the learned Additional Sessions Judge, Swabi, and they were allowed to use the Hujra till settlement of its title by the competent Court.
6. Looking at the positive and social aspect of the issue, Hujra, as mentioned above, is a place commonly used by the section of community or villagers to sit together for the purpose of social and ceremonial gatherings and thus including the inhabitants from, adjacent `Tall' will help m strengthening the social and cultural bondage among themselves. The act of social gathering always enhances the spirit of care and affection for each other. Not only the gift was genuine in legal terms but it will also have far reaching benefits for the generations to come. In a Muslim society where global brotherhood is preached for, putting restrictions between `Talls' is not adorned especially in the case of Mosque/Hujra which are considered places of solidarity, protection and sanctuary.