' Ch. MUHAMMAD ARIF, J.---This appeal with leave of the Court is directed against judgment, dated 26-5-1993 passed by a learned Judge in Chambers of the Lahore High Court Lahore, whereby appellant Mst. Iram Cheema's Civil Revision No,159-D of 1988 was dismissed.
2. Leave Grant Order, dated 8-12-1993 reads thus:-- "After hearing learned counsel for petitioner and Ch. Khurshid Ahmed Advocate, learned counsel for the respondent, we grant leave to appeal in this case to consider inter alia:--
(1) Whether the lease in respect of the property in dispute, in favour of the predecessor-in-interest of the petitioner created by the Mutwalli, in terms of the order of the Additional District Judge, Lahore dated, 20-4-1938, enured for the benefit of the petitioner;
(2) Whether the Mutwali was under legal obligation to obtain prior permission of the Court for executing each lease agreement for 99 years;
(3) Whether the suit instituted by the respondent was bared by limitation.
' The appeal be expeditiously completed and fixed for hearing at an early date. Interim order of stay, dated 17-7-1993 to continue meanwhile."
3. The instant cause relating to the grant of lease of agricultural land in dispute was also the subject-matter in the Chief Administrator of Auqaf v. Syed Nur-ul-Hassan and others bearing Civil Appeal No,112 of 1997 decided by this Court on 19-11-1977. The facts of the dispute find a detailed mention in the judgment dated 19-11-1977, as below:-- 'Agricultural land measuring 482 Kanals, 6 Marlas and 158 sq. Ft. Comprised in Khewat No,222 situate in Mauza Mian Mir, Teshil and District Lahore, was attached to the shrine for Hazrat Mian Mir, out of which 109 Kanals and 15 Marlas was leased out against the payment of annual lease money of Rs,250 by the Mutwali, Syed Said Ali Shah to his minor sons, the respondents herein by a registered lease deed, dated 9th of March, 1938. The sanction for the above transaction was alleged to have been accorded by the Additional District Judge on 3rd of October, 1934. Thereafter, the Revenue Officer sanctioned Mutation No,1372 on 2nd of September, 1939, and necessary entries relating to the lease of the land were made on the Revenue Record. It was alleged that the respondents invested a huge sum of money to improve the land and considering the expenses involved, the Mutwalli extended the period of lease from 50 years to 99 years by a second lease deed executed on 22nd of March, 1956, The period of the lease was, thus, to run till Rabi, 2037 by classification No,3(14) 60-I, dated 9th of July, 1960, the land attached to the Shrine including the leased land was taken over by the Chief Administrator of Auqaf, West Pakistan, and its management was entrusted to the Cantonment Magistrate, Lahore, w.e.f, the same date. The respondents thereupon filed a petition under section 7(1) of the West Pakistan Waqf Properties Ordinance, 1959, in the Court of the District Judge, Lahore for a declaration that the taking over of the Waqaf Property was subjected to the respondents lease hold rights for a period of 99 years commencing from Kharif 1938 to Rabi 2037, ' The appellant alleged that the first lease was hit by para. 16 of the Scheme framed under section 21 of the West Pakistan Waqf Properties Ordinance, 1959, and in any case the transaction being in favour of the sons of the Mutwalli and for a nominal annual lease money of Rs,250 in respect of an area of 109 Kanals and 15 Marlas it was detrimental to the interest of the shrine and hence the transaction was mala fide. Again it was pleaded that the extension of the lease period of 99 years was also without authority and against the interest of the shrine as it was manifestly intended to benefit the Mutwalli and the respondents who were his sons. As for the Dhobi Ghat alleged to have been constructed at their own costs in Khasra No,1460 and their right to enjoy it during the subsistence of the lease, it was averred that it was constructed from the income and the proceeds of the Waqf land and, therefore, they had no right to claim its enjoyment.
' On the question as to whether the lease deed, dated 9th of March, 1938, for a period of 50 years, was valid, it was held by the learned District Judge that the validity of the lease deed was never challenged and that it was granted pursuant to the sanction accorded by the then Additional District Judge who was competent to do so as Qazi, therefore, the presumption would be that it was for the benefit of the Shrine. Accordingly, he held it to be in order. In regard to the second lease deed, the learned District Judge held that it was executed in March, 1956 although the permission was granted on 20th of April, 1938, without there being any explanation for the delay. As such that sanction could not be held to be operative and a fresh sanction should have been obtained before the execution of the second lease deed and that not having been done, it was invalid. Accordingly, by order, dated 29th of June, 1964, the learned District Judge granted the declaration in regard to the first lease deed as prayed subject to the regular payment of lease money.
' The respondents did not prefer an appeal against this order but the appellant challenged it. The only question that was left for decision was as to the validity of the first lease deed, dated 9th of March, 1938. A learned Single Judge in the High Court held that the learned District Judge had wrongly drawn a presumption in favour of the sanction alleged to have been accorded on 3rd of October, 1934, which was to be proved independently but only reliance was placed on its recital in the second lease deed, dated 23rd of March, 1956. Therefore, the first lease deed, dated 9th of March, 1938, could not be said to have been validly executed.
' The respondents thereupon preferred a letters Patent Appeal. On 8th of October, 1974, the learned counsel for the respondents filed an application under Order XLI, Rule 27, C.P.C. And prayed for the production of additional evidence that is the order of the Additional District Judge, Lahore, dated 3rd of October, 1934, according sanction to the extension of the lease period to 50 years and Miscellaneous Application No,9 of 1934 upon which this order was passed. By an order of the same date the Letters Patent Bench allowed it holding that the additional evidence was a part of the record of the case and that it was necessary in the interest of justice and for the purpose of disposing of the case to allow its production. These documents were produced and exhibited as P.6 and P.7 and are at pages 11 and 12 of the paper book. On perusal of the documents which were requisitioned from the District Judge, Lahore, and produced as aforementioned, the Letters Patent Bench, held that since the original documents had been produced from the proper custody they had no doubt about the sanction having been granted for the execution of the lease for a period of 50 years. As to the argument that the consideration of the lease in question was inadequate, the letters Patent Bench repelled it firstly, because the learned Single Judge did not go into this question and secondly, that the objection was taken too late in the day. The Letters Patent Bench also did not go into the question as to whether the transaction was collusive or without necessity as the learned Single Judge had not adverted to it in connection with this lease. Accordingly, the Letters Patent Bench accepted the appeal and restored the order of the learned District Judge, dated 29th of June, 1964."
' In the said appeal leave was granted to the Auqaf Department respondent therein. To examine the propriety of the order of the Letters Patent Bench dated 8-10-1974 by which additional documents being (Exhs.P.6 and P.7) were allowed to be brought on the record. This Court found the order of the Letters Patent Bench as unexceptionable. Needless to point out that a question was also raised in that appeal as to whether the lease of agricultural land could not be granted for a term exceeding 5 years. The proposition was repelled being misconceived. It was held:-- "If the Mutwalli had granted the lease in his own discretion then such a limitation on his power could be pressed into service but in the instant case it was the Additional District Judge who had accorded permission to the Mutawalli to lease out the land for a period of 50 years. There is no limitation on the power of the Additional District Judge, exercising the function of the Qazi to grant lease for a longer term than 5 years. In this connection I would refer to the rule, as stated by Syed Ameer Ali in his book on Muhammadan Law, 1976 Edition, at page 479:- "Thus, the Qazi, as the general superintendent of all charities, in his capacity of the representative of the Sultan, has the power of empowering the Mutwalli to grant leases for a longer period than provided for by the Waqf. But where the Waqf has given no directions, he can authorize the grant of a lease for any term which may, in his discretion, be advantageous to the Waqf."
"Accordingly, there is no force in this contention."
' While dismissing the said appeal this Court observed that as the term of the lease was to expire in Rabi 1980, the respondnets therein were not permitted to raise any new construction on the leased land.
4. Respondent-Auqaf Department filed a suit for declaration and permanent injunction against present appellant on 3-1-1987 and put in an amended plaint therein with the following prayer clause:-- "In view of the submissions made above in the interest of justice, it is respectfully prayed that a decree for declaration may kindly be passed in favour of the plaintiff and against the defendant declaring that the lease hold right of the defendant have come to an end due to violation of the departmental rules and regulations and it may further be declared that the defendant is no more lessee of the plaintiff and the lease in favour of the suit property described in para.1 of the plaint is cancelled, with consequential relief restraining her from creating any encumbrance and alienation of the property in any manner whatsoever. It is further prayed that it may kindly be declared that the defendant at best is entitled to her lease hold rights upto Rabi 1988 and to beyond that.
' Any other relief to which the plaintiff is found entitled may kindly be granted to the plaintiff.
' The costs of the suit may also be awarded to the plaintiff."
' This suit was resisted by the appellant herein. In view of the pleadings of the parties, issues struck therein and evidence led thereon, the trial Court dismissed the suit vide judgment and decree dated 12-3-1987. The appeal filed against the said judgment and decree was allowed and the suit was decreed by the learned District Judge, Lahore vide judgment dated 4-1-1988. The appellant/defendant filed Civil Revision No,159-D of 1988 which was dismissed by the learned Judge in Chambers of the Lahore High Court vide judgment dated 26-5-1993 holding that the learned District Judge had not committed any material irregularity or illegality while decreeing the suit of the respondent Auqaf Department. The learned Judge in Chambers repelled the question of limitation on the ground that an order which is void ab initio can be challenged at anytime. It was also observed that the suit was not res judicata in view of the decision rendered by the High Court in Writ Petition No,1233 of 1976. On merits, it was observed that no power was vested with the Mutwalli under order dated 20-4-1938 to create the lease of land in favour of the predecessor-in- interest of the appellant for 90 years in the year 1951 and, therefore, the lease of land in his favour was void ab initio. It was further observed that the extension of lease period for 99 years after the expiry of the previous lease period of 99 years in terms of the lease agreement would to vest any power with the Mutwalli in the year 1991 by virtue of the order dated 20-4-1938 which, as stated above, was held to be void ab initio.
5. Mr. Raja Muhammad Anwar, learned senior counsel appearing on behalf of the appellant, raised the following points:-
(1) The validity of the lease was upheld by the Administrator of Auqaf on 3-3-1982 and again on 17- 4-1986 in consequence whereof the Auqaf Department has been regularly charging lease money from the appellant. The above orders have attained finality under section 10 of the Waqf Ordinance No,IV of 1979. No appeal or revision having been filed thereagainst the same could not be re- agitated being hit by the doctrine of past and closed transactions.
(2) In the plaint by the respondent-Auqaf Department no challenge was made to the authority of Mutwalli to grant lease for 99 years, therefore, the High Court and the learned District Judge are in error in making out a totally new case by resolving the dispute in favour of respondent ,Auqaf on the ground of (i) evacuee interest, (ii) inadequacy of lease money and (iii) renewal of lease for another term of 99 years.
(3) The suit was time-barred and ought to have been dismissed in view of the law declared in Mumtaz Muhamamd Khan Ahmadzai v. National Bank of Pakistan and another (1979 SCM R 606), Hakim Muhammad Buta and another v. Habib Ahmad and others (PLD 1985 SC 153), (1990 SCM R 1059) and Chief Administrator of Auqaf v. Muhammad Ramzan and others (PLD 1991 SC 102).
6. Ch. Khurshid Ahmed, learned counsel for the respondent Auqaf has controverted the pleas raised on behalf of the appellant by raising the following points:--
(1) The appellant could not claim any right under the lease dated 6-2-1951 without seeking an appropriate declaration under section 7 of the West Pakistan Waqf Properties Ordinance (No XXI of 1959 from the concerned District Judge.
(2) As to the question of limitation, it was argued that the lease deed being void ab initio, the suit was not beyond time. In this behalf reliance was placed on Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others (1987 SCM R 1543), Amir Jan and others v. Gul Nawaz (1992 MLD 2537) and Miss. L.M. Stratford v. Syed Amjad Hussain and 9 others (PLD 1992 SC 51).
(3) No question of res judicata was involved in view of the observations of the learned Division Bench of the Lahore High Court Lahore in I.C.A. No, 188 of 1979 decided on 10-6-1980. Reliance was placed on Ch. Sir Muhammad Zafrullah Khan and 3 others v. The Custodian of Evacuee Property, West Pakistan and Karachi and 5 others (PLD 1964 SC 865)
7. The suit of the respondent Auqaf was dismissed by the learned Civil Judge on 12-3-1987. Issues Nos.1 and 2 respectively regarding the jurisdiction of the Civil Courts to try the suit and alleged incorrect valuation thereof for purposes of courts-fee and jurisdiction were not pressed. Issues Nos.3, 4, 5, 7, 8 and 9 were answered against the respondent Auqaf with the result that appellant's objections (1) that the plaintiff was estopped by words and conduct to bring the suit; (2) the suit was beyond time; (3) it was not maintainable in its present form; (4) the lease in favour of the appellant/her predecessor was violative of the departmental rules and regulations (onus on the plaintiff); (5) the appellant is entitled to her lease hold rights upto Rabi 1988 and (6) the lease of the suit property has been cancelled (onus on the respondent/plaintiff) were answered against the respondent/plaintiff-Auqaf, Issue No,6 regarding the approach of the respondent-Auqaf to the Civil Court with unclean hands was resolved against the appellant holding that the respondent-Auqaf had approached the Courts with clean hands. The appellant did not challenge the finding of the learned Civil Judge on issues Nos.1, 2 and 6 before the learned District Judge in appeal and the same were affirmed, vide judgment and decree dated 4-1-1988 holding that the lease in favour of predecessor-in-interest of the appellant was illegal from its very inception, therefore, no question of estoppel arose against proving the illegality thereof which could be tested in the touchstone of doctrine that there is no estoppel against the statute. It was also observed that the lease of the year 1951 could not be equated with one to be legally operated to the disadvantage of the respondent-Auqaf. Further, conduct of a Government Servant in violation of his duty could not operate as estoppel against the Government and, therefore, the alleged acknowledgement of the lease by any number of acts, including the grant of permission to the lessee to transfer the lease right to the present appellant, did not operate as estoppel against the respondent-Auqaf to assert and prove that the basic lease was void. A reference to the order dated 20-4-1938 of the then learned Additional District Judge, conferring power for leasing out the land to Hindus and a Muslim for periods of 50 and 99 years which had not expired in the year 1951 was also made to hold that the interest of the evacuees (as lessees) vested in the custodian. This clearly brought it to the fore that the execution of the lease deed, by the Mutwalli in favour of the predecessor-in-interest of the appellant in the year 1991, was illegal being sans the permission of the Court. Even the lease money fixed in the then agreement was also held to be too low to be possessed of any legality, being against the interest of the respondent-Auqaf. The learned Judge in Chambers considered the arguments of the parties during the hearing of Civil Revision No,159-D of 1988 and, after considering the entire cause as unfolded before the trial Court as also the appellate Court in the pleadings of the parties and in the light of the evidence produced in the case as also the effect of this Court judgment, dated 19-11-1977, came to the conclusion that the finding initially recorded by the then learned District Judge in his order dated 29-6-1964 that the power in pursuance of order dated 20- 4-1938 to create lease of land for 99 years was not available in the year 1956, remained intact. In quick succession to the above finding the succeeding paragraphs of the judgment in appeal read thus:-- "(14) On the abovementioned short ground, I hold that no power was vested with the Mutwalli under order 20-4-1938 to create lease of land in favour of predecessor-in-interest of the petitioner for 99 years in the year 1951. For reasons discussed above, the lease of land in his favour was thus ab initio void. For the same reasoning there was no question of estoppel as the officials of the Auqaf Department could not confer on the predecessor-in-interest of the petitioner lease hold rights for 99 years by acknowledging the exercise of power by Mutwalli in pursuance of order dated 20-4- 1938 for creation of lease for 99 years which power as held above had lapsed. It was not a case of mere irregularity in exercise of power by the Mutawalli which otherwise existed in which case it could have been possible for the petitioner to raise plea of estoppel in order to contend that it was a case of an irregularity of the kind which could have been ratified and stood rectified by act of acceptance of lease by the successor of the Mutwalli.
(15) The question of limitation in such a case in my view could never have arisen nor pressed into service. It is a case of Waqf property which vests in Almighty God and Qazi in each case is vested with inherent jurisdiction to look into the validity and legality of any act at any stage in order to safeguard the Waqf property. Even otherwise against a void ab initio act no question of limitation could be raised if the same was sought to be nullified. Apart from this it is a case of continuing cause of action.
(16) I have also noticed that in the lease agreement it has been stipulated that on the expirty of initial lease period of 99 years, the same would stand extended for another period of 99 years at the option of lessee which means that the exercise of power for giving land for another period of 99 years after the expiry of the previous lease period of 99 years was exercised much prior to the time when the occasion to exercise that power was to arise. There is no question of automatic extension of lease period or creation of afresh lease agreement automatically by virtue of the said clause as the Mutwalli was not even vested with any power in the year 1951 to give land on 99 years lease by virtue of order dated 20-4-1938 as held above.
(17) Learned counsel for the petitioner laid a great deal of stress on his argument that in Writ Petition No,1233 of 1976 filed by the petitioner in which a notice issued by the Auqaf/Department for her ejectment in the year 1974 was challenged, the validity of lease of land for 99 years was upheld, therefore, this question could not be raised in the suit. I have gone through the judgment dated 22- 5-1979 passed by this Court in the said writ petition and find that the petitioner raised contention in the said writ petition that she was holding lease hold rights for 99 years which had been acknowledged by the officers of the Auqaf Department therefore, she could not be ejected from the land and the notice issued for her ejectment was invalid. These contentions were noted in the order and before any findings were recorded, statement was made by Mr. Riaz Kayani, Advocate, learned counsel for Auqaf Department that the notice issued in 1974 impugned in the Writ Petition was no longer enforceable and stood cancelled by issuance of a fresh show-cause notice on 18-5- 1976 on which proceedings had not been taken so far in view of the pendency of the said writ petition and he undertook that the lessee would not be ejected under the orders impugned in the writ petition. It was acknowledged by the said learned counsel that at present there was no order of ejectment against the lessee and the matter would be probed in afresh in accordance with law and fresh order would have to be passed after issuance of fresh show-cause notice. In view of this statement the Writ Petition was dismissed as pre-mature by observing that if any show-cause notice was subsequently given to the petitioner and the question mooted out before his Lordship during the argument, come up for consideration before the relevant authority it will have to take into consideration the conduct of certain officers of the Auqaf Department for acknowledging the lease deed as such, because might come to the conclusion that in view of the conduct of the Department it was wholly unnecessary for the petitioner to approach the learned District Judge since there was no dispute in this point.
(18) One of the questions mooted in the said Writ Petition on behalf of the present petitioner was that he was holding lease hold rights for 99 years which remained unaffected even under the legislation enacted for taking over management and control of the Waqf properties. About this it was remarked that finality of the contractual rights could remain undisturbed if they were valid and or legally obtained from Mutwalli of Waqf. Since no finding regarding this aspect of the case was recorded in the said judgment as the Writ Petition was dismissed as pre-mature and all the questions mooted in the said Writ Petition were left open for decision in fresh proceedings, therefore, no benefit can be derived by the petitioner from the said judgment as the same does not operate as res judicata.
(19) The learned District Judge, in my view has not committed any material irregularity and illegality in the exercise of jurisdiction vested in it under the law. The impugned judgment and decree is perfectly valid and in the best interest of the Waqf Property and the Waqf itself. If the plea raised by the petitioner is accepted it would amount to perpetuate an illegality.
(20) The revision petition for the foregoing reasons has no merits which is accordingly dismissed with no order as to costs."
8. Viewed in the abovereferred scenario, the arguments addressed at the Bar on behalf of the appellant by Raja Muhammad Anwar pale out of significance altogether. It is not the case of the appellant that the learned District Judge was not possessed of the jurisdiction in appeal under section 96 of the Code of Civil Procedure to reverse the findings of the trial Court. It is not even so much as alleged by Raja Muhammad Anwar that the findings by the learned District Judge suffered from any misreading/non-consideration of evidence on the record to qualify for being set aside by the High Court. The plea that validity of the lease in question had been upheld by the administrator of Auqaf on 3-3-1982 and 17-4-1986 wherefore the respondent-Auqaf had been regularly charging the lease money from the appellant was attended to by the trial Court as well as the High Court and the findings against the appellant/defendant have not been shown to be suffering from any illegality much less a jurisdictional defect at their respective leases.
9. As regards the plea that respondent, Auqaf had not challenged/objected to the authority of Mutwalli to grant lease for 99 years in earlier round of litigation in the High Court and, therefore, the learned District Judge and the High Court are in error in making out a new case for the respondent.
Suffice it to say that the said contentions were noticed at the appellate and revisional stages, and, as already detailed in para. 7 above, the learned Judge in Chambers noticed the statement made by the learned counsel for the Auqaf Department in Writ Petition No,1233 of 1976.
"Brought by the appellant to challenge her proposed ejectment through a notice in the year 1974 that the said impugned notice was no longer enforceable and stood cancelled by issuing a fresh show-cause notice on 18-5-1976 on which proceedings had not been taken so far and that appellant will not be ejected under the orders impugned in the said Constitution petition and held that:--One of the questions mooted in the said writ petition in behalf of the present petitioner was that he was holding lease hold right for 99 years which remained unaffected even under the legislation enacted for taking over management and control of the Waqf Properties. About this, it was remarked that finality of the contractual rights could remain undisturbed if they were valid and or legally obtained from Mutwalli or Waqf. Since no finding regarding this aspect of the case was recorded in the said judgment as the Writ Petition was dismissed as pre-mature and all the questions mooted in the said Writ Petition were left open for decision in fresh proceedings, therefore. No benefit can be derived by the petitioner from the said judgment as the same does not operate as res judicata. "
10. Further, it was not the case of the appellant that there is any estoppel against a statute and that in the instant cause the findings regarding the said principle of interpretation of statute being applicable are deficient either in law or on facts.
10-A. Judgment, dated 22-5-1979, passed in Writ Petition No,1233 of 1976 was further challenged by the respondent-Auqaf through I.-C.A., No,188 of 1979 and the same was disposed of on 10-6-1980 as below:-- "The learned counsel takes exception to the observations made in para. 13 of the learned Single Judge. These run as follows:-- "Before parting with this case I may make an observation that if any show cause notice is subsequently given to the petitioner and the questions mooted out before me during argument come up for consideration before the relevant authority, it will have to take into consideration the conduct of certain officers of the Department in acknowledging the lease deed as such, because it is possible that the said authority might come to the conclusion that in view of the conduct of the Department it was wholly unnecessary for the petitioner to approach the learned District Judge since there was no dispute on this point."
"(2) It is to be noted that the observation had been made not by any of a binding order but only an expression of a desire. It is particularly true, as the Writ Petition had been dismissed as premature.
No appeal against such observation, therefore, lies as they in no case bind the authority competent to consider the matter or the present appellant. This appeal, with these observations, is disposed of."
The learned Judge in Chambers was quite right in observing that there was no question of res judicata involved in the instant lis.
11. The cases of Mumtaz Muhammad Khan Ahmadzai, Hakim Muhammad Buta and Chief Administrator of Auqaf (supra) do not help the appellant in that the lease deed was correctly held to be void ab intio and suit of the respondent Auqaf not beyond time. See Malik Khawaja Muhammad Amir Jan and Miss I.M. Stratford (supra).
12. Before parting with this judgment, it may be noticed that the learned Judge in Chambers has not been shown to be in error in observing that "Order dated 20-4-1938 was not an order, under which power could be exercised at the sweet-will of Mutwalli at any time".... Or that it was an order of permanent nature and was operative for indefinite period." It is the position with regard to the observations made by the learned Judge in Chambers that through order dated 20-4-1938 ".... Approval was given to his request to permit him to lease out land attached to shrine for a period of 99 years which approval was to ensure for one lease which also was to be exercised by the Mutwalli soon thereafter. He according to recital in the lease deed executed in favour of predecessor-in-interest of the appellant had already leased out land for 99 years to non-Muslims and a Muslim. Even if the question whether the said non-Muslims had become evacuees or not and their lease hold rights became evacuee property are not taken into consideration the fact remains that by leasing out property for 99 years to them in pursuance of approval/permission granted to him through order dated 20-4-1938 the said power stood exhausted and was no more operative and available for acting upon the same or for exercising it second time in the year 1951 for which he was requested to get fresh permission of approval"
13. Resultantly, this appeal fails and is hereby dismissed leaving the parties to bear their respective costs.