' RAJA MUHAMMAD SABIR, J.--This regular first appeal has been preferred against the impugned judgment and decree passed by learned Civil Judge, Ist Class, Bhalwal, dated 9-7-1989 whereby the suit of the appellant-plaintiffs for possession of Ahata No,6 Masjid Hanfia measuring 13-1/2 Marlas, fully described in the plaint, was dismissed.
2. Brief facts are that the appellants Masjid Hanfia Maqbooza Ahle-Islam, Chak No,8 Shomali, Tehsil Bhalwal filed a suit for possession of Ahata in question against the respondent, claiming that they are Ahle-e-Islam Deh of the Chak and filed the suit in their representative capacity. It was alleged in the plaint that Ahata in question was given to Ahl-e-Islam in the year 1902 for mosque purposes.
Walayat Hussain father-in-law of respondent No,1 worked as Khadim of the mosque and as such administration of the mosque allowed him to live in the disputed place temporarily. Afterwards a separate Ahata was obtained for the Khadim and Walayat Hussain permanently started residing there. The status of Walayat Hussain deceased as Khadim of the mosque was terminated and after his death his legal heirs started residing in the disputed property. The respondents/defendants started making construction on the disputed place, hence the suit was filed against them.
3. The suit was contested by the respondents-defendants with the plea that Walayat Hussain was a trespasser on the disputed property which was in the shape of pond and with investment of money, he filed the pond and made construction thereon. It was further submitted in the written statement that by way of adverse possession, he had become owner. Afterwards Walayat Hussain by way of an agreement dated 27-3-1967 and 18-6-1971 gifted the said property to respondent- defendant No,1 and as such he is owner in possession of the same. A preliminary objection was also raised by the respondents-defendants that the 'Masjid Hanfia' is not a juristic person and, therefore, is not competent to file the suit. It was also alleged that the suit was time-barred.
4. In view of the divergent pleadings of the parties, following issues were framed by the learned trial Court:-
(1) Whether this suit is incorrectly valued for the purposes of court-fee and jurisdiction? OPD
(2) Whether this suit is not maintainable in view of preliminary objections Nos.2 to 5 of the written statement, filed by the defendants Nos.1 to 8? OPD
(3) Whether this suit is hit by section 92 of C.P.C., as well as under the Order 1, Rule 8, C.P.C.? OPD
(4) Whether this suit is time-barred? OPD
(5) Whether the defendants Nos.1 to 8 become owner of the suit land on the basis of adverse possession for more than 12 years? OPD
(6) Whether the suit property is incorrectly described? OPD
(7) Whether the plaintiff is owner of the suit land and hence is entitled to recover possession from the defendants? OPP (7A) Whether the plaintiff is not entitled to recover the possession of the property in view of objection No,10 of the written statement? OPD
(8) Relief.
' The parties produced their evidence and the learned trial Court decided issues Nos.1, 2, 3, 4, 5, 7 acid 7-A in favour of the defendants and against the plaintiff and consequently the suit was dismissed vide judgment dated 9-7-1989. Hence this regular first appeal.
5. Learned counsel for the appellants has argued that the impugned judgment is contrary to the law and evidence. He further submitted that the appellant-plaintiff mosque being a juristic person was fully competent to file the suit. On the other hand learned counsel for the respondents has defended the impugned judgment by submitting that the appellant is not a legal person and as such suit was rightly dismissed.
6. We have heard the learned counsel for the parties and gone through the record. Main issues in the case are issues Nos.2 and 3, which were jointly dealt with by the learned trial Judge. The contention of the learned counsel for the respondents that the appellant-Masjid is not a juristic person is not well-founded. Appellant-Masjid is a legal person and as such can sue and can be sued inasmuch as it is being managed by a community known as Ahl-e-Islam. Reliance in this behalf may be placed upon AIR 1938 Lahore 369 (Mosque Known as Masjid Shahid Ganj and others v. Shromani Gurdwara Parbandhak Committee, Amritsar (AIR 1938 Lahore 369) wherein it was observed that:- "It is difficult to see why the building of a mosque or its site cannot be looked upon as 'property' merely because the mosque has been held to be capable of suing or being sued as a 'juristic person'. A Mosque is the house of God."
7. It is an established fact that the property in dispute was a part of the mosque which was dedicated by ex-owners to Ahl-e-Islam for construction of the mosque and such is a Waqf Property. Under section 2(e) of the Punjab Waqf Properties Ordinance IV of 1979:-- " ' Waqf property' means property of any kind permanently dedicated by a person professing Islam for any purpose recognised by Islam as religious, pious or charitable, but does not include property of any Waqf such as is described in section 3 of the Musalman Waqf Validating Act, 1913 (VI of 1913) under which any benefit is for the time being claimable for himself by the person by whom the Waqf was created or by any member of his family or descendants.
' Explanation I.--If a property has been used from time immemorial for any purpose recognized by Islam as religious, pious or charitable, then in spite of there being no evidence of express dedication, such property shall be deemed to be Waqf Property."
8. Under Mohammadan Law a Mujawar cannot claim as of right ownership nor he can inherit the property dedicated to a Waqf. It was held by a Division Bench of this Court in Begum B. H. Sayed v.
Afzal Jahan Begum and another PLD 1966 (W.P.) Lahore 967 that:
19. This brings us to the consideration of the status of the Mujawiran which the petitioners claim for themselves. A Mujawir' is defined by Tyabji in his Muhammadan Law, Third Edition, page 536 paragraph 8-A, as a care-taker of a shrine or a mosque or similar institution; he may also sweep the premises. The position of a Mujawir is different from that of a Mutawalli or a Sajjadanashin. The former is a Manager or trustee of a Waqf property whereas the latter holds the position of a religious preceptor as does the Imam of a mosque who leads the prayer at a congregation or officiates at religious services like marriages and funerals and is, therefore, a religious official, unlike a Mujawir whose main duty is to take care of a shrine. The duties and the ceremonies performed by the Mujawarian in relation to the Dargah of Hazrat Data Ganj Bakhsh Sahib are enumerated by P.W.20 Muhammad Siddique, as follows:--
(1) The holding of the annual Urs;
(2) the maintenance and the upkeep of the Langar;
(3) arrangements for the holding of Majlis presided over by the Mujawirs;
(4) giving of Dastars to devotees;
(5) ceremonies on the occasion of the last Chahar Shamba in the month of Safar annually;
(6) arrangements for the annual Urs of Sheikh Hindi;
(7) Khatam of the Holy Prophet which falls on the 12th Rabi-ul-Awwal every year;
(8) the changing of Ghilaf of the Mazar Sharif every month; and
(9) the taking out of the money put into the box by the visitors by way of offerings at the shrine after deducting the amount spent in Langar, the rest being distributed daily among the Mujawirs.
' According to their own case, the Mujawiran have been performing these functions and ceremonies as servants of the shrine on account of their devotional and traditional attachment to it and they have been suffered to do so by the authorities and the public at large It is not their case and could not be their case that they have been the direct recipients from the State or the public of any bounties and endowments in individual or sectional capacity. If they have been appropriating to themselves any bounties and endowments made to the Dargah, it is because of their assumed and suffered status as the servants of the Dargah but that would not make them the owners of the properties of the Dargah or change them from servants into masters. Instances were quoted by the learned counsel for the petitioners of the transactions of sale, mortgages and leases by the petitioners allegedly in exercise of their disposing powers as owners with regard to some of the properties in dispute, but as the properties belonged to the Dargah and the Mujawirs were merely its servants and care-takers and, as such, its trustees, any action by them in derogation of the right of ownership of the Dargah would merely amount to a breach of trust. It is well settled that breaches of trust, however numerous they may be extending to however long a period, cannot put an end to the trust nor change the character of the trust. (See in this connection Muhammad Said and others v. Mst. Sakina Begum and others AIR 1935 Lah. 626, Ch. Muhammad Afzal and others v.
Ch. Din Muhammad and others AIR 1947 Lah. 117 and Beli Ram and Brothers v. Ch. Muhammad Afzal and others PLD 1949 PC 8. Similarly, the length or the extent of control by the Mujawirs over the Waqf property do not alter the incidents of the property as an endowment. Strict Islamic law has always recognised the authority of the Qazi or the ruling power over Waqf properties and this authority is always available to administer and manage Waqf. Reference may be made to Macnaghten, Case No,IX-, page 343, wherein it is stated "Property belonging to an endowment is legally subject to the control of the ruling powers". Endowed property is not subject to inheritance and the ruling authority has the power of appointment in the absence of the appropriator or his executor. (Case No,III, page 329 ibid). On a close scrutiny of the petitioners' claim for ownership, in the background of the history of this endowment, the necessary incidents flowing from it and the explicit statement of the ancestors of the petitioners, disavowing any claim to ownership of the lands in dispute, we have no hesitation in affirming the finding reached by the learned District Judge that the petitioners' claim to the ownership of the lands in dispute must fail".
9. Similarly in another case reported as Pir Aftab Ahmad v. Chief Administrator, Auqaf, Lahore PLD 1965 (W.P.) Lahore 584, this Court has come to the conclusion that passage of time will not destroy the objection of Waqf and it will not cease to exist. It was also held that: "According to the Disciples Waqf means the tying up of property so as to subject it to the rules governing property belonging to God and accordingly the right of the Waqf in the property becomes extinguished and it goes to God and its benefit is applied for His creatures. Syed Ameer Ali in his celebrated work on Muslim Law, Volume I, Fourth Edition, while discussing the subject of Taulyat, observes at page 443: But where the Mutwali has to perform religious duties or spiritual functions in connection with the Waqf, which, as regards men, can only be performed by a man, a woman cannot be appointed to the office. For example, if the Mutwali is also superior of a religious establishment, and as such, has to officiate on occasions of religious festivals, a woman is precluded by her sex from holding the Towliate. Such superiors in India (now Indo-Pakistan sub-continent) are called Sajjadanashins (Sajjada is the carpet on which prayers are offered; and Nashin is the person seated thereon. 'The Sajjadanasin is not only a Mutwali but also a spiritual preceptor. He is the curator of the Dargah where his ancestor lies buried, and in him is supposed to continue the spiritual line Silsila. These Dargahs are the tombs of celebrated Dervishes, who, in their lifetime, were regarded as saints.
Some of these men had established Khankahs where they lived and their disciples congregated.
Many of them never rose to the importance of a Khzuikah, and when they die, their Mausolea became shrines or Dargahs. These Dervishes, professed esoteric doctrines and distinct system of initiation. They were either Sufis or the disciples of Mian Roushan Bayezid, who flourished about the time of Akbar and who had founded an independent esoteric brotherhood, in which the Chief occupied a peculiarly distinctive position. They called themselves Fakirs on the hypothesis that they had abjured the world, and were humbly seruitors of God; by their followers they were honoured with the title of Shah or King' ."
Again at pages 392 and 393 the history of Khankahs and tombs has been traced by the learned authority as under:-- "In India (now Indo-Pakistan sub-continent), Khankahs have generally sprung up in the following way:-- ' A Dervish or a person who, by leading a pious life, has won the esteem and veneration of the neighbourhood or a Sufi of particular sanctity has settled down in some locality. So long as he has not attained sufficient importance, his place of abode is called a Takia. But when he is a man of importance or has attained sufficient eminence, it is designated as Astana. His pious life and religious ministrations attract public notice, disciples gather round him, and a place is constructed for their lodgment. And the humbly Takia grows into a Khankah. After the death of the holy personage, the spot where he is buried becomes a shrine and an object of pilgrimage not only for his disciples, but for people for distant parts, both Mussulmans and Hindoos, and is designated either as a Daragah or Astana or Rouzah.
On the basis of above referred judgments it can safely be said that mosque is a juristic person and mosque is property of God and if somebody is in possession thereof he cannot claim any right thereon. The suit was filed by the appellants in their representative capacity and therefore, the finding of the learned trial Court that the Masjid Hanfia is not a legal person is not tenable. The suit was competently filed by the appellants-plaintiff before the trial Court. Findings of the learned trial Court on issues Nos.2 and 3 are accordingly reversed.
10. Respondent No,1 appeared as D.W.7 and stated that Walayat Hussain Shah got the possession of the disputed Ahata about 83 years ago and at that it was into the shape of pond. He also stated that Walayat Hussain was trespasser over the property in dispute. In cross-examination, D.W.7 stated that he is son-in-law of Walayat Shah, who has given the disputed Ahata to him. He has not placed any document on the record to establish his title over the property. Statement of D.W.7 that he is in possession of the disputed property as owner is without any foundation. He has also stated that as a Khadim, he has never been resided and asserted that he was a trespasser over the property in question and that it was a Government-owned property. He further stated that in 1948 he came in Chak No,8 and started living with Walayat Shah. He further admitted that Walayat Shah was given another Ahata for putting in his residence and while shifting to the other place, he gave the disputed place to him. He has also asserted that the disputed place was never allotted to Masjid. He, however, stated that he has heard that Ahata in question has been allotted in the name of the mosque. Then himself stated that the appellants-plaintiffs themselves got it allotted but he does not know when it was allotted to them. He further stated that Walayat Shah died in the year 1975 and till then possession over the property was that of Walayat and not his (D.W.7). If possession of D.W.7 is counted from 1975, then the suit having been filed on 11-1-1984 was well within time and the trial Court was not justified in treating the suit as time-barred. It is not disputed by the parties that Walayat Shah died in the year 1975 and after his death respondent-defendant No,1 occupied the place independently claiming to be in its possession although without any valid allotment or any other entitlement. It appears that by virtue of his shifting and being son-in-law of Walayat, respondent No,1 was residing in the property in dispute and, therefore, his claim that he was in adverse possession of the property since more than 83 years is baseless and negatived by his own evidence. The present suit was filed on 11-1-1984. The limitation in such a suit being 12 years, the suit was within time. Moreover as has been observed above in para. No,9, mosque is property of God and no limitation runs against it and if somebody is in possession thereof, he cannot claim any right of ownership thereon and howlong so ever he lives thereon, his possession shall not mature into ownership. The findings of the learned trial Court on issues Nos.4 and 5 were therefore, not in accordance with law and evidence, hence they are reversed.
11. Under issue No,7 learned trial Court has observed that according to the copies of Jamabandi Exh.P.1, Exh.P2, Exh.P7 and Exh.P8 the disputed property was given to Ahle-e-Islam for mosque purposes but in view of its findings on issues Nos.3 and 4, the appellants-plaintiffs were not considered to be owners of the property. As we have already held that the respondents- defendants have no right or title over the property in question and have reversed the findings on the said issues, this issue stands decided in favour of the appellants-plaintiffs and issue No,7-A against the respondents-defendants.
12. Finding of the learned trial Court on issue No,1 is also not sustainable. P.W.2 Inayat Ali stated that the value of Ahata in question was between Rs,700 to Rs,1,000 per Marla. The witness denied the suggestion that the value of the property was Rs,10,000 to Rs,20,000 per Marla. The trial Court did not consider the evidence of the parties in its true perspective. The evidence of the respondents- defendants is not worth reliance. The value of the suit appears to have rightly been fixed in the sum of Rs,24,000. The finding of the trial Court on issue No,1 is also reversed.
In view of the above, we have no hesitation in holding that the respondents-defendants have no right whatsoever in the property in dispute and the appellants were entitled to decree for possession of the property in dispute. Accordingly, the appeal is allowed, impugned judgment and decree is set aside and the suit is decreed as prayed in the plaint. No order as to costs.