ZIA MAHMOOD MIRZA, J.---This order will dispose of the above-mentioned three petitions for leave to appeal as they are directed against the same impugned judgment of the High Court.
2. Facts giving rise to these petitions, briefly stated, are that one Haji Noor Din created a Waqf of his properties situate in Lahore and Amritsar through a registered Waqf Nama dated 24-6-1935. The properties forming the subject-matter of Waqf included House No.B-168 situate inside Bhati Gate and House No.8, Street No.2, Pir Makki, Ravi Road, Lahore which were taken over by the Chief Administrator of Auqaf vide notification dated 11-12-1980 issued under section 7 of the Punjab Waqf Properties Ordinance. Mst. Zubeda Begum (respondent in C.P. No.1288-L/1994) and Abdul Rashid (respondent in C.P. No. 1279-L/ 1994) who had purchased half portion each of House No. 168-B and Mst. Nawab Bibi (petitioner in C.P. No.129-L/1995j, the purchase of House No.8 Pir Makki, filed separate petitions under section 11 of the Ordinance to seek a declaration that the properties in questions were no Waqf properties andthat the notification issued by the Chief Administrator of Auqaf was illegal, void and inoperative qua their rights. District Judge dismissed all the three petitions through a consolidated judgment dated 1-11-1982. Appeals filed by to respondents, Mst.
Zubeda begum and Abdul Rashid (F.A.Os. 48 & 49, of 1993) were, however, allowed by the High Court while the third appeal (P.A.G, 201-1982) filed by Mst. Nawab Bibi was dismissed. Hence these petitions for leave to appeal, to filed by the Auqaf Department and the third by Mst. Nawab Bibi.
3. Facts relevant for the disposal of these petitions are that Noor Din created the Waqf during the pendency of a suit filed by him in 1933 against one Zahoor Din who was claiming to be his adopted son. Noor Din in his suit sought declaration of ownership and possession of House No.8, Pir Makki, Ravi Road. The suit was decreed vide judgment dated 31-5-1949. Noor Din, it appears, had died and the trustees filed an execution petition to seek possession of House No.8, Pir Makki. The execution petition was filed against Sughra Begum, widow and minor children of Zahoor Din as he, to, had died by then.
The trustees and Mst. Sughra Begum entered into a compromise whereby house No-8 was .Sold by the trustees to the heirs of Zahoor Din for Rs.3,000 out of which they received Rs.500 in cash and left the remaining amount with the widow for maintenance of her minor children, as one of the objects of the Waqf was to maintain the poor. The compromise was approved by the Court vide its order dated 23-12-1950. It appears that during the pendency of the suit filed by Noor Din against Zahoor Din, Mst. Sughra Begum had sold House No.8 to her father Muhammad Bashir through a mutation dated 10-11-1938 for a sum of Rs.10,000. The heirs of Muhammad Bashir later sold the said house to Mst. Nawab Bibi, the petitioner in C.P. No.129-L of 1995 vide sale deed dated 3-10-1995. Mst. Nawab Bibi thereafter brought a suit for possession against Nabi Buksh etc. Who were in occupation of the said house. The suit was decreed on 14-5-1959. On appeal, the case was remanded and on remand, the suit was again decreed by the trial Court on 22-9-1959. First appeal failed on 22-7- 1960 but the second appeal was accepted by a Division Bench of the Lahore High Court vide judgment and decree dated 9-1-1968, Exh. R.3, and the suit of Mst. Nawab Bibi dismissed with the observation that "the plaintiff has not been able to prove the title of Mst. Sughra Begum or as a matter of fact of her father Babu Muhammad Bashir with the consequence that the plaintiff cannot be said to have any title herself in the portion of the house in dispute".
3-A. It appears that Noor Din sold House No. 168-B together with another house bearing No. 167-B to one Mst. Fazal-un-Nissa through a registered sale---deed dated 20-11-1944. Mst. Fazal-un-Nissa sold these houses to Ali Nawaz Butt from whom Mst. Zubeda Begum (respondent in C.P. No.1288- L/1994) purchased half share of House No.168-8 through a registered sale-deed, dated 25-6-1977 and the remaining half of the said house was purchased by Abdul Rasheed (respondent in C.P.
No.1279-L/1994) vide sale-deed dated 25-6-1977. Learned district Judge vide judgment dated 1-11- 1982 dismissed all three petitions.
4. The learned Judge in the Lahore High Court held that Waqf-Nama Exh.R-1 conferred explicit power on the Waqif who was its first Mutwalli, to sell and mortgage the properties provided such an alienation was either beneficial or was necessary for the objects of the trust. According to the learned Judge, the burden of showing that the alienation was not beneficial or necessary for the purpose of the trust in the circumstances would lie on the Auqaf Department which burden it failed to discharge. Note was also taken of the fact that neither the. Waqif in his life the nor the trustees after his death agitated against the sale of House No. 168-B and it was further observed that since the house had changed hands from one vendee to the other, "it will be to unjust not to recognize the sale made by the Waqif in the year 1944 as the one transacted not for the purposes of the trust". For all these reasons, the learned Judge held that House No. 168-B could not be treated as Waqf property in the year 1980 for the purpose of assuming control and management thereof by the Chief Administrator of Auqaf. Appeals filed by Abdul Rashid and Mst. Zubeda Begum were accordingly allowed and the declaration prayed for by them was granted. The appeal of Mst.
Nawab Bibi was, however, dismissed by the learned Single Judge on the sole ground that the earlier judgment of the High Court dated 9-1-1968 Exh. R-3 passed in the suit filed by her was binding on her. This judgment, it was held, "nullifies the title claimed by Mst. Nawab Bibi in the said house" and as such she could not claim any right or title in house No.8 Pir Makki and had, therefore, no locus standi to maintain the petition under section 11 of the Punjab Waqf Properties Ordinance, 1979.
5. We first take up Civil Petition No.129-L of 1995. It barred by 200 days. The petitioner Mst. Nawab Bibi has filed an application for condonation of delay alleging therein that she was misinformed by her counsel that her appeal was accepted and she became aware of the impugned judgment only on 2-1-1995 when her close relative Sh. Rustam Ali informed her that her appeal was dismissed by the High Court. Thereafter, she applied for certified copy of the impugned judgment and filed the petition for leave to appeal after collecting other documents. We have heard the learned counsel for the petitioner who apart from pleadig for condonation of delay on the aforementioned ground also sought to contend on merits that the house in dispute was not a "Waqf property" as defined in section 2(e) of the Ordinance as the Waqif had created the Waqf for his own benefit We do not wish to go into this question as the petition is hopelessly the-barred and we are not inclined to condone the delay on the plea taken by the petitioner which if substantiated might give her a cause for an action for damages against the advocate but cannot be accepted as a valid ground for condonation of delay. Civil Petition No.129-L of 1995 is accordingly dismissed as the-barred.
6. Mr. Riaz Kiani learned counsel appearing in support of other to petitions (C.Ps. Nos.1288 and 1279- L/1994) has contended that the existence/creation of Waqf having been accepted by the learned Judge in the High Court, it was not available to the creator of the Waqf after he had completed the dedication to alienate the Waqf property in any manner particularly when there is nothing on the record to show that the sale thereof was made to advance the purposes of the Waqf. In the submission of the learned counsel, burden to prove that the sale of House No.168-B made by the Waqif/Mutwalli Noor Din was in the interest and for benefit of the objects/purposes of the Waqf was on the respondents who failed to discharge the same. In support of his contention, learned counsel has relied upon 1995 SCM R 1584 The contention raised by the learned counsel needs consideration.
Leave to appeal is, therefore, granted in both these petitions.