1. Before admission of this Civil Revision Application pre-admission notice was given to the respondents on which Mr. Baig has filed his Vakalatnama and submitted his arguments.
2. I have heard Mr. Jhamat Jethanand, learned Advocate for the applicant and Mr. Hassan Mehmood Baig learned Advocate for respondent No. l and has perused the entire record and proceedings of this long litigation.
3. The learned Advocate for the applicant has advanced his lengthy arguments on the maintainability of this Civil Revision Application. Before discussing his arguments it would be necessary to give background of the litigation in nutshell which is as under.
4. The respondent No. l Dr. Shah Nawaz Shah filed a suit for declaration and injunction in which he has prayed for declaration that he was the Sajada Nasheen of the properties mentioned in the suit more particularly in paragraph No.3 of the plaint from the date of the gift deed executed by Mst.
5. Badshazadi as he has acquired all the rights of the ownership of the said property mentioned in para. No.3. This gift deed was registered at Serial No.93, dated 17-3-1979 in which gift deed the defendant No. l now the applicant in this revision application was excluded who has no right, title or interest in respect of the properties mentioned more particularly in paragraph No.3 of the plaint.
6. The respondent No. l/plaintiff has further prayed for grant of permanent injunction restraining the applicant who was defendant in the suit directly or indirectly through his agents, servants, subordinates in any manner whatsoever from interfering in the use, enjoyment and management, administration and possession of the properties by the plaintiff as owner thereof by virtue of the gift deed.
7. The parties were examined and thereafter the suit of the respondent No. l was decreed thereafter the appellant filed an appeal as provided under the Civil Procedure Code which appeal was also dismissed as such there are two concurrent judgments passed in favour of respondent No. l Dr. Shah Nawaz Shah.
8. The learned Advocate Mr.. Jhamat Jethanand for the applicant Pir Siddiq Muhammad Shah has raised number of discrepancies and illegalities accrued in both the judgments. He has contended that the suit was filed by respondent No. l was not maintainable as the properties in question cannot be gifted by Mst. Bibi Badshazadi who is not the owner of the properties and further that Mst. Bibi Badshazadi was never acted as Matwali or Sajada Nasheen being woman she was not entitled to be Sajada Nasheen of the properties as such the title in respect of Mst. Bibi Badshazadi was defective therefore the suit cannot be decreed by the trial Court and great error has been committed by both the Courts below. Learned Advocate Mr. Jhamat Jethanand has further contended that the two below Courts' judgment made in ignorance of legal rights as such they are liable to be- dismissed. In support of his contention learned Advocate Mr. Jhamat Jethanand has placed his reliance on the following reported cases:
(1) Abdul Hamid Qureshi v. Ch. Fateh Muhammad Sheifta PLD 1958 (W.P.) Lah. 824.
(2) Nasir Abbas v. Manzoor Haider Shah PLD 1989 SC 568.
(3) Kaniz Zohra v. Syed Muztaba Hussain and another AIR 1923 Pat. 576.
9. On the other hand the learned Advocate Mr. Baig appearing for the respondent No. l has contended that there is admission on the part of the applicant regarding ownership of Mst. Bibi Badshazadi in respect of the properties mentioned in para. No.3 of the plaint as there was previous litigation and number of suits were decreed or disposed of in view of the compromise between the parties which shows that Mst. Bibi Badshazadi was the exclusive owner of the properties therefore she was entitled to gift the entire properties to any person. The record shows that suit bearing No.773 of 1904 filed by Bibi Badshazadi and Bibi Lal Khatoon against Pir Sadiq Muhammad Shah who was the grandfather of the present applicant was decided in which after its decision an application under Order 21, Rule 2, C.P.C. Was filed in compliance of the decree in the said suit by which in pursuant of the judgment and decree in that suit Mst. Bibi Badshazadi and her sister Mst.
10. Bibi Lal Khatoon were declared as sole owners of the properties in dispute therefore the applicant cannot agitate this point in this revision application regarding the ownership against Mst. Bibi Badshazadi in respect of the disputed properties therefore I am of the considered view that Mst.
11. Badshazadi was the owner of the disputed properties therefore she was entitled to make gift of the properties to any person. The learned Advocate has placed his reliance on the following cases:---
(1) Malik Muhammad Iqbal v. Government of N.-W.F.P. And another 1996 SCM R 127.
(2) Gulzar Khan v. Mst. Razia Begum and 2 others 1982 SCM R 843.
12. During the course of arguments points of law and facts were raised by Mr. Jhamat Jethanand learned Advocate for the applicant that both the Courts have failed to discuss and decide each and every issue though these Courts were legally duty bound to discuss all the issues separately and further that all the properties shown in the original plaint were Waqf properties therefore no gift deed can be registered in respect of the Waqf properties and further that the shrines are not Khangah therefore decree cannot be passed in respect of shrines therefore the trial Courts below were not entitled to decree the suit in respect of the properties which are Waqf properties.
13. I have gone through the entire record including the original suit and the evidence which has come before the trial Court. Nowhere there is mention that the properties in dispute are Waqf properties.
14. The entire record shows that these properties belonged to person by name Mst. Bibi Badshazadi and Mst. Bibi Lal Khatoon for which there was long previous litigation and these litigations came to an end by which these two ladies were declared as exclusive owners of the properties in dispute. I have also gone through both the impugned judgments passed by the Courts below and I do not see any illegality in these judgments or that these judgments have been passed without jurisdiction as according to section 115 of the Civil Procedure Code the revision against the impugned judgments passed by the learned District Judge can lie only if the subordinate Courts below have exercised the jurisdiction not vested in it by law, or to have failed to exercise the jurisdiction so vested or to have acted in the exercise of their jurisdiction illegally or with material irregularity. From the perusal of these judgments I am of the opinion that learned Civil Court as well as Appellate Court have got jurisdiction to adjudicate the dispute between the parties as admittedly the properties were not Waqf properties and were not by private person by name Mst.
15. Badshazadi and Mst. Bibi Lal Khatoon. The facts of the cases cited by the learned Advocate Mr. Jhamat Jethanand are very much different from the facts of the present case. As much as in this case the main point is that the properties in question have been gifted to respondent No.1 by the owner of the properties whose title had become perfect. As such she according to Muslim Law can gift her properties to any person she likes. The foremost question would therefore be that it was the duty of the applicant if aggrieved to file a suit for cancellation of the gift deed as such I do not see any illegality committed in the impugned judgments, hence this Civil Revision Application is dismissed in limine.