Through the present consolidated order I propose to dispose of Civil Revision No. 530 of 1998 and Civil Revision No. 492 of 1998 together as the same have been filed against one and the same judgment passed by the learned Additional District Judge, Multan on 3-8-1998. The parties to the said two revision petitions shall hereinafter be referred to in the present order with reference to Civil Revision No. 530 of 1998.
2. A holy personage spent all his life preaching love and peace, shunning of mundane worldly pursuits and diverting all of one's energies towards seeking divine pleasure yet, unfortunately, his direct descendants, i.e. His very sons, in their bid to get control over that holy personage's shrine and the flow of constant income emanating therefrom, have come up to this Court litigating with each other over the same. This unfortunate situation has come about in the following circumstances.
3. The petitioner Makhdoom Syed Waris Ghaus Shah as well as all the respondents in Civil Revision No. Z30 of 1998 are brothers inter se and are the sons of a holy person named Syed Abdul Qadir Shah alias Abdul Sattar Shah. The shrine of that holy person is known as Darbar Hazrat Ghaus Pak Noorani and the same is situated in Kila Kohna (Old Fort), Multan. The petitioner in Civil Revision No. 530 of 1998 has claimed that upon the death of his father Syed Abdul Qadir Shah alias Abdul Sattar Shah he became the Sajjadah Nashin of the said Darbar in the year 1977 and started managing its affairs to the complete exclusion of his brothers, the respondents in the said revision petition, and his claim in that regard was based on an alleged Will of their deceased father. An alleged interference in his management of the Darbar by his brothers subsequently made the petitioner file a suit for permanent injunction against his brothers on 10-7-1997. Alongwith his plaint the petitioner also filed an application seeking temporary injunction. But before the petitioner's filing of the said suit one of his brothers, Syed Ghaus Anwar Shah (respondent No. 1 in Civil Revision No, . 530 of 1998) had already filed a suit for declaration and permanent injunction against the petitioner and ten others. Alongwith the suit respondent No. l had also filed an application seeking temporary injunction. Another application was also filed by respondent No. 1 praying for appointment of a receiver in respect of the income being continuously generated by the Darbar. Most of the defendants in both the suits filed written statements in both the suits and also filed replies to the applications for interim reliefs prayed for therein. The others were ordered to be proceeded against ex parte. Both the said suits are still pending before the learned Civil Judge, First Class, Multan-- .
4. All the three applications for interim relief in both the abovementioned suits were decided by the learned Civil Judge, First Class, Multan through a consolidated order passed on 21-3-1998. The application for temporary injunction filed by the petitioner was accepted, the application for temporary injunction filed by respondent No.1 was substantially dismissed except that it was ordered that the petitioner shall not alienate the suit property during the pendency of the suits, and respondent No.1's application for appointment of a receiver was also dismissed. The operative part of the order passed by the learned trial Court on 21-3-1998 is reproduced herewith for facility of reference ac also for difficulty in summarizing the same:
6. "There is impugned will on the record which is a registered in favour of Syed Waris Ghaus Shah executed by Syed Abdul Qadir Shah alias Makhdoom Syed Abdul Sattar Shah the father of the plaintiff/petitioner and defendants/respondents Nos. l to 3 of suit titled Makhdoom Syed Waris Ghaus v. Syed Ghaus Anwar Shah etc: from which it transpires that Makhdoom Syed Waris Shah Ghaus was nominated which amounted to as Sajjada Nasheen (if Darbar Ghaus-e-Azam Noorani.
It has been argued that when the land was purchased by the father of the parties the graves were in existence on the ,said land at the time of purchase. The impugned will was executed and thereafter, it was registered on 8-11-1975. Since the execution of will till the death of the father of the parties the will remained intact and it was not withdrawn by the executor. After the death of the father of the parties, it is evident from different forums i.e. In the Courts, and the correspondence with the department regarding the administration of affairs of the Darbar Sharif that prima facie the plaintiff/ petitioner has been administering the affairs of Mizar Sharif and he has been at the helm of affairs of the administration of Mizar Sharif. There are so many documents on the record which prima facie supports the contention of the plaintiff/petitioner that he is 'Sajada Nasheen' of Darbar Sharif independently without any assistance or role of the defendants/respondents.
Keeping such situation in view I am of the view that the plaintiff/petitioner Syed Warts Ghaus Shah has got an arguable case. The balance of convenience leans in his favour because prima facie he is administering he affairs of Mizar Sharif and if his possession and administration of the affairs of Mizar is disturbed he will suffer an irreparable loss. Prima facie the existence of graves on the disputed place is supported by the document on record. It is also worth consideration whether the property in dispute is able to be partitioned and able to be inherited as a legacy. Keeping all the circumstances, in view, I confirm the temporary stay till the decision of the suit to the effect that defendants/respondents are restrained to interfere into the administration of the affairs of the Mizat-- Sharif to be conducted by Syed Waris Ghaus Shah.
6. In the other suit titled Syed Ghaus Anwar Shah v. Syed Waris Ghaus Shah the application for temporary injunction is disposed of in the manner that the property in suit shall not be alienated by defendants/ respondents Nos. l and 11, who are prima facie in possession of the suit property. As regards the application for appointment as receiver of property in dispute, I am of the view that Syed Waris Ghaus Shah is prima facie in possession of Darbar Sharif and the property attached to Darbar Sharif and he is administering the affairs of Darbar Sharif, so it will not be appropriate at this level to hand over the administration of affairs of Darbar Sharif to someone else by appointing him receiver of the property in dispute. The prayer for appointment of receiver of the property in dispute is prima facie not maintainable at this stage. However, the apprehensions of the plaintiff/petitioner and defendants/ respondents Nos.2 to 10 regarding the income and expenditure of the Darbar Sharif are given reasonable and satisfactory coverage and safeguard in the manner that Syed Waris Ghaus Shah shall deposit into the Court the security bond in the sum of Rs. 5,00,000 to the effect that if at the final decision any share of opposite party is determined in the property in dispute and in the income of Darbar Sharif, he shall be bound to pay them their due share. The plaintiff/petitioner shall maintain the accounts regarding income and expenditure of Darbar Sharif of the amounts which he would get from the cash iron box and the ' Chilla Ghah' duly locked and locks will be opened by Syed Waris Ghaus Shah once a week at 6 p.m. On every Saturday in the presence of Syed Ghaus Anwar Shah and his brother if they are present at that time and also in presence of two witnesses, and the statement of accounts recovered from iron cash box and '
Chilla Ghah' shall be made at the spot duly signed by two witnesses, Syed Waris Ghaus Shah and his brothers if present at the spot and same shall be submitted to the Court weekly. Syed Ghaus Anwar Shah may if he likes lock the iron cash box and the ' Chilla Gah' but in such case he shall have to make himself available at 6 p.m. On every Saturday. If he locks the iron cash box and Chilla Gah but fails to make himself available at 6-00 p.m. On every Saturday, the locks shall be broken by Syed Waris Ghaus Shah in the presence of witnesses and in future Syed Ghaus Anwar Shah will not be entitled to use locks for cash iron box and 'Chilla Ghah'. The defendant/respondent No. l Syed Waris Shah Ghaus shall maintain accounts of income obtained from iron cash box and '
Chilla Gah' and he will also submit the monthly statement of accounts of the said income to the Court regularly. If the income of exceeds the expenditure excess income will be kept by him in his custody. The application. For appointment of receiver is disposed of accordingly."
5. Feeling dissatisfied with the said order passed by the learned trial Court on 21-3-1998 both the plaintiffs, petitioners in their respective revision petitions herein, filed their separate appeals against that order before the learned District Judge, Multan. Through a consolidated judgment dated 3-8-1998 the learned Additional District Judge, Multan disposed of both the said appeals while substantially upholding the impugned order passed by the learned trial Court but partly modifying the same to some extent. Once again, the operative part of the judgment passed by the learned appellate Court on 3-8-1998 is reproduced below for facility of reference as also for difficulty in-condensing the same: "
16. The alleged will is disputed document between the parties as discussed above. It was neither signed by the witnesses at the same time nor the same is signed by other heirs of the deceased.
The learned trial Court has observed that Ghaus Shah has an arguable case. There is no mention in registered will that how income from offering at Darbar will be spent or distributed among the heirs or it will be taken away by Waris Ghaus alone. In para No. 9 of the judgment, the registered will deed has been discussed in detail. However, Waris Ghaus is prima facie in possession of Darbar Sharif. According to the learned trial Court, it will not be appropriate at this stage to hand over the administration of the affairs of Darbar to someone else by appointing him Receiver and according to the observation of the learned trial Court, the prayer for appointment of Receiver in prima facie is not maintainable.
17. In further the learned trial Court has safe guarded the apprehensions of other party also, regarding the income and expenditure of the Darbar Sharif, in the manner that Waris Ghaus shall deposit into the Court the security bonds in the sum of Rs. Five lacs to the effect that if at all at the time of final decision any share of opposite party is determined, in the property in dispute and in the income of Darbar, he shall be bound to pay them their due share. The plaintiff/petitioner shall maintain the accounts regarding income and expenditure of Darbar of the amounts which he would get from the cash iron box and Chillah Ghah duly locked, and locks will be opened by Syed Waris Ghaus once a week at 6 p.m. On every Saturday in the presence of Syed Ghaus Anwar and his brothers, if they are present at that time and also in presence of two witnesses. I make here a modification that locks will be opened in presence of all the brothers and in presence of Civil Nazir of the Court Senior Civil Judge, Multan. The learned trial Court has further observed that the statement of account recovered from the iron cash box and Chilla Ghah shall be made at the spot duly signed by the witnesses. So, another modification is made here that account will be signed by the above said Civil Nazir of the Civil Courts, Waris Ghaus and his brother if present at the spot and shall be submitted in Court weekly. The learned trial Court has further observed that Ghaus Anwar may, if he likes, lock iron cash box and Chilla Ghah but in such case he shall have make himself available at 6 p.m. On every Saturday, in otherwise the lock shall be broken by Waris Ghaus in presence of witnesses. Instead of witnesses, the Civil Nazir is desired to be present at that time. The learned trial Court has further observed that Ghaus Anwar will not be entitled to use his lock for cash iron bait and Chilla Ghah, in case he does not make himself available at the time. The observation of the learned trial Court is maintained. In further it has been further observed by the learned trial Court that respondent No. 1/defendant Waris Ghaus shall maintain account of income obtained from iron cash box and Chilla Ghah and the plaintiff he will also submit the monthly statement of account of the said income in the Court regularly. It may also be added here that such statement will be signed by all the brothers and Civil Nazir of the Civil Court Multan. The learned trial Court has further observed that if the income exceeds the expenditure, income will be kept by him in his custody. I will like to make modification in the observation of the learned trial Court that exceeded income will be deposited by Waris Ghaus in account of Civil Court, where the cases are pending for trial. The Civil Nazir of the Civil Courts will be entitled to get his remuneration Rs. 100 for his each visit. In case of absence of Civil Nazir, on any date, the matter will be reported to the learned trial Court, to depute any other person in case of his absence or non-availability. With the above said modifications and changes in the impugned order of the learned trial Court dated 21-3-1998 both the appeals are hereby disposed of accordingly. Waris Ghaus is exempted from security as directed by the learned trial Court."
6. Aggrieved of that judgment passed by the learned appellate Court on 3-8-1998 both the plaintiffs/appellants have now filed their respective revision petitions in that regard before this Court.
7. I have heard the learned counsel for the parties at motion stage and have also gone through the record of this case with their able assistance.
8. It has been argued by the learned counsel for Syed Waris Ghaus Shah, petitioner in Civil Revision No.530 of 1998, that the Will executed by the petitioner's father in favour of the petitioner had been acted upon for the last over twenty years and, on account of that fact, the petitioner had been in exclusive control of the Darbar as well as its income to the satisfaction of all concerned. Therefore, it has been argued by him, interference with that control of the petitioner during the pendency of the suits was uncalled for. He has further argued that although the application of the opposite party for the appointment of a receiver had been dismissed but for all practical purposes the arrangement ordered by the learned Courts regarding the income generated by the Darbar was nothing short of appointment of a receiver. This, according to the learned counsel, was oppressive.
As against that the learned counsel for Syed Ghaus Anwar Shah, petitioner in Civil Revision No.492 of 1998, has contended that the Will in question was a forged or, at best, a legally defective document and also that the said Will, even if accepted, did not create any valid Waqf, Thus, according to him, it was simply a case of ownership of property which was to devolve upon all the heirs of the parties' father. The learned counsel has gone on to argue that the possession of the opposite party was not undisputed the opposite party had no locus standi to file a suit; the Darbar did not qualify to be a Khanqah and that if the opposite party's suit itself was not maintainable then the interim relief granted therein was shorn of any validity. The learned counsel for respondents Nos.2 and 3 in Civil Revision No.530 of 1998 have adopted the arguments advanced by the learned counsel representing respondent No. l therein.
9. After hearing the learned counsel for the parties it has been noticed by me, and with which all the learned counsel for that parties have also agreed, that` the arguments advanced by them actually pertained to the merits of the cases of the rival parties and touched the core issues involved therein. To me a stage has not yet come in these cases where a decision is to be rendered on such issues on their merit. Evidence is still to be led and arguments are yet to be addressed before the learned trial Court on such issues. This Court would not like to pre--empt the duty as well the prerogative of the learned trial Court to pronounce its verdict on all the relevant legal and factual issues involved in the case in the first instance. Therefore, I have consciously restrained myself from commenting on the legal and factual arguments advanced by the learned counsel for the parties lest any observation made by this Court may prejudice the case of either party on the merits before the learned trial Court.
10. However, for the limited purposes of the interim arrangement between the parties regulated by the learned Courts below, suffice it to observe that no jurisdictional defect, legal infirmity or material irregularity has been pointed out by the parties in the exercise of jurisdiction as well as discretion by the learned Courts below. In fact the interim arrangement carved out by the learned Courts below appears to be quite just and proper as the same adequately takes care of the interests of both the parties. Even otherwise, revisional jurisdiction is essentially discretionary in nature. Having been convinced of the justness of the arrangement worked out by the learned Courts below I would rather uphold the same than interfere therein. Both the revision petitions are, therefore, hereby dismissed in limine.