MUHAMMAD BASHIR KHAN JEHANGIRI, J.---By this petition leave to appeal is sought against the judgment of the Peshawar High Court, Peshawar, dated 7-8-1996 whereby Civil Revision No.694 of 1994 filed by the petitioner was dismissed.
2. The petitioner Hazrat Fazal-e-Alim had filed a suit for declaration to the effect that he being the lineal descendant of the Saint "Hazrat Jee Sahib" was possessed of the exclusive right to manage the 'Khanqah' of 'Hazrat Jee Sahib' situate in Mohallah Fazal-e-Haq Sahibzada, Yakatoot, Peshawar City and entitled to receive the offerings to the exclusion of defendants-respondents Nos.3 to 7 through the so-called ' Ziarat Committee'. Another relief claimed was of perpetual injunction so as to restrain the aforesaid defendants-respondents Nos. l and 3 to 7 from interfering with the petitioner's vested right to manage the 'Khanqah' and receive the whole income therefrom. The suit was vehemently contested by defendants Nos.3 to 5 and 7, 11 and 16. The parties went to trial on as many as 10 issues but the following four issues are apparently material for the disposal of this petition:-- "(3)Whether the suit is bad for misjoinder and non joinder of the parties?
(7)Whether the plaintiff is Sajjada Nashin and Gadinashin of the Hazrat Jee Sahib and all acts done by the defendants are without any legal authorities?
(8)Whether the defend2nts are illegally interfering in the administration of Dargah?
(9)Whether the Ziarat Committee has been constituted some 70/75 years ago and are running the administration?"
3. The learned trial Judge took up Issues Nos.7 and 8 together and held that the petitioner has succeeded in proving his lineal descendency with Hazrat Jee Sahib and also his right to manage the ' Khanqah' and to receive the offerings at and income of property attached thereto and that in consequence the respondents were illegally interfering with the management thereof. On Issue No.9, he held against the respondents. Issue No.3 was not at all discussed and held that these Issues Nos.2 and 4 to 6 were not pressed. In consequence the suit of the petitioner was decreed.
The respondents challenged this judgment by, way of appeal before the leaned Additional District Judge, Peshawar. After hearing the learned counsel for the parties and perusal of the record, the learned Appellate Court made the following observations:-- "It is pertinent to note that the plaintiff relied upon the pedigree-table but he had not impleaded all the descendants alive except a few. Similarly, one of the P.Ws. Stated that a person who was not of their family was the Sajjada Nashin prior to the plaintiff which would reveal that according to their version; it was not necessary that the deseedani must be the Sajjada Nashin. Furthermore, they did not disclose that when and how he became the Sajjada Nashin and how he is looking-- after the Shrine when he did not know the names of tenants and by admitting that the members of Ziarat Committee are collecting the rent and had rented the property of Ziarat. He neither objected, the same nor claimed the recovery of rent. The Auqaf Department has not been implead which to my mind is necessary party for such-like cases."
4. In the light of above reasonings, it was held that the 'case had not been properly conducted' and 'the evidence on record is not sufficient to arrive at the (proper) conclusion' and resultantly the appeal was accepted, the judgment and the decree . Passed by the trial Court was set aside and the case was remanded to it for impleadment of all the descendants of Hazrat Jet alongwith the Administrator, Auqaf Department who were necessary parties to the dispute.
5. Aggrieved by the appellant judgment, the petitioner filed a revision petition in the High Court. The learned Judge in the Chambers of the High Court seems to have accepted the contention raised on behalf of the respondent: that "the Ziarat in question cannot be termed as ' Khanqah' as no regular religious education is not being imparted". The finding, we may observe, is beyond the scope of the pleadings and the evidence adduced by the parties. Right from the filing of the suit till its disposal, the respondents were not conscious of this plea raised on behalf of the respondents in the High Court. If the answering defendants-respondents are so disposed they have to apply to the trial Judge for the amendment of their written statement , so as to add the aforementioned plea.
The learned Single Judge was perhaps not cognizant of the fact that this plea had been raised for the first the in the High Court which was legally not permissible. The parties and the Courts seized of the matter were not at all conscious of the difference between ' Ziarat' and ' Khanqah' . It is doubtful if ' Ziarat' has any juristic status under the Islamic Law. We are however, in no doubt that 'Khanqah' is a juristic institution. In "Zoolekha Bibi v. Sayed Zynul Abedin (1904) 6 Bombay LR 1058)
Khankah has been described as under:-- "Khankah (is) a Mahomedan institution analogous in many respects t' 'math' where Hindu religious instruction is given."
6. In passing it may, however, be observed that a Sajjada Nashin has bee' defined as the head of a '
Khankah' . His duties include teaching of religious doctrine and rules of life, and the manager of the institution and administrator of its charities, and has, ordinarily speaking, a larger interest in the surplus income than a 'mutawalli'. (See Section 220 of Mulla's Mahomedan Law, Fifteen Edition at page 197). We are, by no means, inclined to hold as to what are rights and duties of a ' Sajjada Nashin' of a ' Khankah' . What we are emphasising in that distinction between ' Ziarat' and ' Khankah' drawn at stage of revision petition appears to us to be new one which should neither have been allowed to be raised nor a finding rendered thereon unless this plea had been allowed to be added in the written statement and accepted or controverted by the petitioner and evidence adduced thereon. Be that as it may, the learned Single Judge in the High Court had not taken the distinction between the to institutions to its logical conclusion with reference to the controversy between the parties. We are, therefore, inclined to set aside this part of the impugned judgment of the High Court. The defendants-respondents, may is so advised, seek before the trial Court to add this plea alongwith its consequential legal implications on the controversy between the parties. The trial Court shall, however, decide such anapplication for amendment of written statement on its own merits if it is ever moved.
7. The learned Single Judge has further expressed the view that the trial Court had decreed the suit on the basis of the pedigree-table which was not certified; that no evidence on the correctness or otherwise of the pedigree-table was available on the record, therefore, it was not sufficient to prove that the petitioner was the rightful claimant of Ziarat so the order of remand passed by the Appellate Court was upheld and the revision petition was dismissed.
8. Leave to appeal is sought on the ground that the learned trial Court was fully satisfied with the evidence brought on the record by the parties and was able to arrive at a positive finding in favour of the petitioner and, therefore, the Appellate Court and the High Court were in error in thinking that the evidence was sketchy or abridged and insufficient for coming to a positive conclusion. It is contended that the case should not have been remanded so as to allow the defendants an opportunity to fill up the lacuna in their case.
9. After perusing the available record we are of the view that the order made by the High Court is eminently just and proper. It was not remanded so much as to allow the defendants an opportunity to fill up lacuna in their case but a chance was provided to the petitioner as well to substantiate by evidence the pedigree-table connecting him with Hazrat Jee Sahib the management of whose shrine is being claimed by him. As this was not done, the High Court was right in affirming the remand order passed by the Appellate Court for fresh proceedings.
10. The petition, accordingly, fails and is hereby dismissed.