1. 'This First Rent Appeal is directed against the Order dated 19-12-1993 passed by the learned First Senior Civil Judge/Rent Controller, Karachi (Central) (Mr. Shah Nawaz Tariq) whereby he allowed the eviction application filed by the respondent Mrs. Naheed Jalil.
2. ' The facts leading to the filing of the above appeal are that the respondent claims herself to be one of the co-owners of the property bearing No,6-F Block-III, Nazimabad, Karachi which comprises of three shops. Her late husband Faizul Jaleel had entered into an agreement dated 26-12-1969 with late Hafeezullah Baig, the predecessor-in-interest of the appellants Nos.(a) to (f) who, thus, became the tenant of Shops No,6, 7 and 8 on monthly rent of Rs,70 per shop commencing from 1st January, 1970. On 2nd July, 1976 the respondent filed Rent Case No,2809 of 1976 against late Hafeezullah Baig for his eviction in the Court of IInd Rent Controller, Karachi on the ground of default in the payment of rent. But she could not succeed in that case. Subsequently she filed another Rent Case No,897 of 1989 under section 15 of Sindh Rent Premises Ordinance, 1979 in the Court of 1st Senior Civil Judge and Rent Controller, Karachi, Central. According to her, Hafeezullah Baig was habitual and wilful defaulter in payment of rent as from First January, 1985 and moreover he unlawfully sublet the demisedpremises to appellants Nos.2, 3 and 4 who were inducted by late Hafeezullah Baig and, therefore, their possession is also illegal. During the pendency of the Eviction Application Hafeezullah Baig died and his L.Rs, were brought on the record. The Eviction Application was resisted. It was denied that the respondent was one of the owners of the properties in dispute.
3. According to appellants the entire property became Waqf property under registered Waqf Deed dated 20-4-1972 and only the Mutawallis mentioned in the said Waqf Deed were entitled to rent. It was, therefore, urged that respondent/applicant was, neither competent nor entitled to file the application. The alleged default was also denied by submitting that late Hafeezullah Baig continued giving monthly rent of the shops to their previous Advocate Abdul Shakoor Delhvi in good faith till September, 1989 but from the notice dated 7-9-1989 for the first time he came to know that the rent was deposited in Court only up to December, 1984. The said Advocate promised to give all the deposit slips for the period till September, 1989 but thereafter he adopted evasive conduct and was served with a notice but Without any result. Thereafter, late Hafeezullah Baig without any further loss of time sent money order dated 15-11-1989 for total amount of Rs,12,600 for the payment of rent for five years but the respondent refused to accept the same. Rent was again sent through the money orders in the name of the Mutwalli of the Waqf but that was also refused by the respondent. The alleged subletting was also denied and it was stated that the appellants Nos.3 and 4 are the bona fide partners in the business of shops with (late) Hafeemllah Baig since long as per terms of the Partnership Deed executed between the parties. The respondent examined herself and filed her affidavit-in-evidence and produced letter dated 30-11-1989 (Exh. A/1), and also eviction application in Rent Case No,2809 of 1976 (Exh. A). Her son Khalilul Jaleel, appeared as witness and also filed his affidavit-in-evidence in support of the respondent. Appellant No,1 Mirza Uzair Baig filed his affidavitin-evidence as well as photostat copy of Power of Attorney (Annexure A) and S.M. Taqi Zaidi appellant No,3 also filed his affidavit-in-evidence and produced photocopy of the Partnership Deed. They .Were cross-examined by the learned counsel for the respective parties.
4. ' The learned Rent Controller on the basis of the evidence adduced by the parties and taking into consideration the arguments advanced by the learned counsel for the parties allowed the eviction application vide the impugned order which has been challenged in this First Rent Appeal.
5. ' Mr. Muhammad Ishaque, the learned counsel for the appellants submitted that the learned Rent Controller failed to appreciate correctly the evidence produced by the appellants and came to erroneous findings. It was further vehemently urged by him that the respondent had no locus standi to file the application against the appellant in view of section 2(f) of the Sindh Rented Premises Ordinance, 1979 and also because of the fact that the premises in question are part of the Waqf Property. According to him the Mutawallis, who were major at the time of the filing of the eviction application were not impleaded as parties and that the respondent was neither the owner nor authorised by the Mutawallis under the registered Waqf deed to institute proceeding. He also attacked the finding of default and subletting as being not in accordance with the law and evidence on record.
6. ' On the other hand Mr. Muniruddin Alvi, the learned counsel for the respondent submitted that the alleged default of 4 years and 9 months have not been properly explained and it is evident from the conduct of the appellant that they were wilful and habitual defaulters. He supported the findings of the Rent Controller and submitted that the application submitted by the respondent was maintainable.
7. ' From the pleadings and the evidence based thereon the crucial question arising in the case is the status of the property and the authority of the respondent to receive rent and seek eviction of appellants. According to the appellant the premises in question belong to Waqf which was created by the then owner late Faizul Jaleel; the husband of the respondent by a registered Waqf deed dated 20-4-1972. The respondent also admitted this fact during the course of her cross- examination which is evident from her following statement: "It is incorrect to suggest that I am not owner of the property. It is A fact that the property in question is a trust property. It is a fact that the property is of trust. It is a fact that I have no written authority by trust to file the present rent application. Voluntarily says that Mutawalli of the trust has given me verbal authority. It is a fact that I have no written authority from the trust to recover the rent from the tenants. It is a fact that I am not authorised to manage the property in writing. It is a fact that my children are also not owner of the property voluntarily states that they are Mutawallis of the trust property. I do not know whether any notice was given to tenants/opponent after the creation of trust. I have not issued any intimation to the opponent regarding the creation of trust nor my children have given such intimation. It is a fact that I have filed rent application against the present opponent on behalf of my children who were minors at that time. Consequently, it is vehemently refuted that I am neither competent nor entitled to file the present case as wilfully referred to by the opponents."
8. ' S.M. Khalilullah Jalil who is son of the respondent and was examined as her witness stated in para. 2 of his affidavit-in-evidence as follows: "I say that the applicant being one of the legal heirs of Mr. Faizul Jalil, my late father is one of the co-owners of the demised premises including 3 shops, at present, under possession of the opponents contrary to law and justice. It is further submitted that the applicant' is fully competent and duly authorised by me and my brothers and sister to look after and manage the affairs of the demised shops including filing and pursuing the present rent case."
9. ' In cross-examination he stated as follows: "It is correct that me and my mother are owners of demised property. It is incorrect that there is registered trust and me and my brothers are its Mutawallis but it is a registered 'Waqf we are its Mutawallis. It is correct that opponents Nos.1 and 2 are tenants since 1970. It is incorrect that my father in lifetime got registered trust regarding demised property but it was Waqf. Registered. I have no knowledge if the intimation of registration of trust was given to tenants or not. My father had expired in the year 1975 but I had not intimated the tenants in writing regarding death of my father."
10. ' Once it has been established that the property belongs to Waqf it is not far to seek the legal consequence. D.F. Mulla in his treatise known as "Principles of Mahmmedan Law" (PLD Publication, Lahore 1991, pp.254 and 296) describes the implication of Waqf as follows: "Section 173. Wakf means the permanent (section 174) dedication by a person professing the Mussalman faith of any property (sections 175177) for any purpose recognised by the Mussalman law as religious, pious or charitable.
11. ' Section 202. Under the Muhammadan law the moment a Wakf is created all rights of property pass out of the Wakif and vest in the Almighty. The Mutawalli has no right in the property belonging to the Wakif; the property is not vested in him, and he is not a trustee in the technical sense. He is merely a superintendent or manager."
12. Thus in 1975 when the Wakif namely Faizul Jail died the property in question was not available for inheritance and the respondent being his wife could not have inherited. The application for ejectment was filed by the respondent as a co-owner of the said property. One of her son who was also her witness while supporting her claim for ownership also described himself to be a co-owner of that property as one of the legal heirs of its deceased owner late Faizul Jalil. It is thus clear that the ejectment proceedings were not by or at the instance of the Wakf or its Mutawalli but by the respondent in the capacity of a owner which she could not be in view of property having already been dedicated to Wakf by her late husband during his lifetime. The respondent and her son concealed the existence of Wakf which fact was disclosed only in cross-examination. The application filed by the respondent was not competent as she was neither the owner nor otherwise entitled to do so. Since the application itself is not maintainable it will be of no use to examine the grounds of ejectment.
13. ' In view of the conclusion I have arrived at this appeal is allowed and the impugned order dated 19-12-1993 is set aside with no order as to costs.