' By means of Notification No, SOP.1 (3259) Auqaf/86 dated 18-4-1987 issued under section 7 of the Punjab Waqf Properties Ordinance, 1979, the Chief Administrator Auqaf, Punjab, Lahore, the appellant herein, took over and assumed administration, control, management and maintenance of Khanqah Hazrat Shah Sulaiman situated in Revenue Estate Bharoki Virkan Tehsil and District Gujranwala and the attached properties described in the Schedule. This Notification was challenged by the respondents under section 11 of the Ordinance mainly on the ground that land measuring 38 Kanals and 18 Marlas mentioned in the notification was owned and possessed by them. Their case was that the same had been gifted by Bishna son of Mangal a Hindu to Syed Khalil Shah son of Suleman Shah the predecessor in-interest of the petitioners/respondents by means of memorandum of gift dated 30-4-1890, and that they were owners of the same through succession.
It was their cases that die property was not waqf property and the notification issued by the appellant was illegal. The petition was contested by controverting the averments made in the made and also on the ground that same was barred by time.
2. The learned Additional District Judge, Gujranwala framed issues reflecting the controversy between the parties whereafter the parties produced evidence in support of their respective claims. The respondents/petitioners produced memorandum of gift by Bishna son of Mangal Exh.P/2, jamabandi for the year 1912-13 Exh.P/4, some other revenue record including was produced by them, apart from A.W.1, Naqsh Muhammad Patwari, A.W.2, Azim-ud-Din, A.W.3, Muhammad Shafi P.W.4, Muhammad Shabbir Khan, and P.W.5, Syed Ahmad Saeed. From the appellant's side notification issued under section 7 referred to above, copy of the order of the Commissioner, Gujranwala Exh.D/2, copy of register Haqdaran for the year 1985-86 Exh:D/3 was produced.
Muhammad Ismail Kanungo, Auqaf Department and Muhammad Binyamin District Manager, Auqaf Department, Gujranwala were also produced.
3. On consideration of the evidence on record, the learned Additional District Judge, Gujrawnwala came to the conclusion that the property had been donated by a non-Muslim to the grandfather of the respndent/petitioners and thus could not be held as "waqf" in terms of the definition of "waqf property" given in the Ordinance. Dissatisfied with the State of Revenue Record, the learned Additional District Judge by considering the overall circumstances came to the conclusion that the property was actually owned by the great-grand-father of the respondents/petitioners, therefore, could not be declared as Waqf property and that the respondents/petitioners had vital interest and locus standi in the matter.
4. So far as issue No,2 as to the limitation was concerned it was not pressed by the appellant before the learned Additional District Judge which had been abandoned by making statement dated 17- 10-1994. He accordingly treated the petition within limitation. He thus, granted such a declaration, vide judgment dated 4-12-1994, which has been challenged through this appeal.
5. It is contended by the learned counsel for the appellant that the petition filed by the respondents was time-barred and the issue despite having been abandoned by the appellant had to be decided by the Court in view of section 3 of the Limitation Act, and the petition, which according to him was time-barred should have been dismissed on that ground alone. It is contended that section 5 of the Limitation Act was not applicable in the matter. Reliance has been placed by him Elahi Baksh v. Chief Administrator, Waqf Property reported as 1982 SCM R 160.
6. On merits it is contended that notification under section 7 of the Ordinance was rightly issued by the appellant as the property in dispute was in fact a waqf property attached to Khanqah Hazrat Shah Sulaiman and that the fact that the property was originally owned by Bishna son of Mangal, who had donated the same by way of gift to Syed Khalil Shah son of Suliman Shah would not make any difference in the matter. It is contended that Jamabandi for the year 1912-13 Exh.P/4 was enough to show that the property was attached to the Khanqah of Hazrat Shah Suliman. It is further contended that order of the Collector, whereby the revenue entries were sought to be corrected was set aside by the Commissioner, Gujranwala on 11-2-1991 (Exh.D/II), therefore, there could be no dispute as to the nature of property as waqf. To support his contention he has placed reliance on Mian Ahmad Ali v. The Rehabilitation Authority, through The Deputy Rehabilitation Commissioner, Sargodha, reported as PLD 1964 Supreme Court 229.
7. On the other hand, the learned counsel for the respondents contends that memorandum of gift dated 30-4-1890 ExhP/2 shows that the property was owned by Bishna son of Mangal who had transferred the same by means of gift to Syed Khalil Shah. According to him the authenticity of this document is beyond doubt as in the Jamabandi for the year 1912-13 also the name of Bishna son of Mangal duly appears. It is contended that it was a gift by a non-Muslim in favour of Syed Khalil Shah and not a waqf or dedication in favour of Khanqah of Hazrat Suliman Shah. It is contended that the property had all along been considered as privately owned by the successors of Syed Khalil Shah who were the owners of the same and that the notification assuming the control and management of the same issued by the appellant is illegal and rightly declared to be so by the Court below.
8. In so far as the question of limitation is concerned an issue was framed by the Court. On 17-10- 1994 the learned counsel for the appellant made a statement before the Court that he would not press the same and was accordingly abandoned by him. The order sheet of the case does contain such a statement and the signature of the learned counsel. That is why the matter was not argued before the learned Additional District Judge or agitated before him at the time of final hearing.
Perusal of grounds of appeal before this Court even does not contain any challenge to the finding of the learned Additional District Judge on the question of limitation. It clearly shows that the abandonment of issue was consciously made by the appellant which had not been made a ground for the challenge of the order in the memorandum of cannot be disputed as observed in Sajjad Hussain v. Musarat Hussain Shah appeal. That an issue of limitation can be abandoned by the party concerned, and others reported as 1989 SCM R 1826. Thus, the contention of the learned counsel for the appellant on this question, now raised during the course of arguments of this appeal has no merit nor can it be entertained at this stage and is accordingly repelled.
9. Now the question that falls for determination in the matter is as to whether the notification issued by the appellant under section 7 of the Ordinance treating the property as "Waqf property" is warranted by law or not. Definition of "waqf property" as given in section 2(e) reads as follows:-- "'Waqf property' means property of any kind permanently dedicated by a person professing Islam for any purpose recognized by Islam as religious, pious or charitable, but does not include property of any waqf such as is. Described in section 3 of the Musalman Waqf Validating Act, 1913 (VI of 1913), under which any benefit is for the time being claimable for himself by the person by whom the waqf was created or by any member of his family or descendants."
' The key words in the definition clause are dedication of a property by a person professing Islam for any purpose recognized by Islam as religious, pious or charitable. There is no waqfnama or other documentary evidence that the property was dedicated by a person professing Islam as waqf property for any of the purposes mentioned in the above said clause. The pre-conditions for the issuance of notification under section 7 of the Ordinance is that property the administration control, management and maintenance of which is being assumed by the Chief Administrator Auqaf is a "waqf property". Thus, there has to be a "waqf property" as defined in section 2 (e) of the Ordinance which can be the subject of notification under section 7, of the Ordinance.
Memorandum of gift dated 30-4-1890 Exh.P/2 by Bishna son of Mangal in favour of Syed Khalil Shah son of Suleman Shah is by a non-Muslim. The Jamabandi which is relied upon by the appellant as well (Exh:P/4) for the year 1912-13 also finds mention of Bishna son of Mangal therein. He (Bishna son of Mangal) could not, have not indeed he had, dedicated this property as a waqf as the same is clearly in favour of Syed Khalil Shah. Such a property thus. Could not in terms of section 2(e) of the Ordinance be treated as "waqf property". Section 2(e) of the Ordinance came up for consideration before their lordships of the Supreme Court in Chief Administrator of Auqaf, Punjab, Lahore v. Koura alias Karam Ilahi and another reported as PLD 1991 Supreme Court 596, which case related to notification issued by the Chief Administrator Auqaf under section 7 of the Ordinance assuming the control of property attached to the Khanqah of Sakhi Sarwat. The said notification was challenged under section 11 of the Ordinance on the ground that the land was not dedicated in favour of Khanqah of Sakhi Sarwar. The case of Koura before the Court was that the property had been transferred by Rama to his father Tagga and was not a waqf property. With reference to the definition of waqf property as embodied in section 2(e) it was observed that:-- "In construing the definition clause the High Court maintained that to the 'waqf property', it must have been dedicated by a person professing Islam, for any purpose recognized by Islam as pious, religious and charitable and that Explanation I did not have the effect of doing away with this condition. It is well-settled that when a phrase is defined as having a particular meaning in the Act, it must be given the same meaning throughout the Act, unless there is anything repugnant in the context. There is, however, nothing in section which empowers the Chief Administrator Auqaf to notify a property as waqf property, denying the application of the definition clause thereto.
Significantly, in the definition clause the word 'means' figures. The user of this expression would indicate that definition is hard and fast and no other meaning can be assigned to the expression other than that given in the definition."
The contention of the learned counsel for the Department that even a non-Muslim could create a valid waqf was repelled by their lordships for the view that." It is not permissible to ignore the legislative definition; assign extended meaning to the term "waqf property" and treat even dedication by a non-Muslim as a valid waqf".
' Reliance of the learned counsel for the appellant on the case of Mian Ahmad Ali (PLD 1964 Supreme Court 229) is not apt or relevant to the facts and circumstances of the present case in view of the above referred case of Chief Administrator of Auqaf, Punjab, Lahore v. Koura alias Karam Ilahi and another (PLD 1991 Supreme Court 596).
10. As observed by the learned Additional District Judge the entries in the Revenue Record were not of much assistance in the matter as the entries therein were not consistent. The order of the Collector for correction of the same was set aside by the Commissioner. On a revision petition filed by the respondents, the order of the Commissioner was set aside by the learned Member, Board of Revenue on 2,5-9-1995 and the matter was remanded to the Commissioner for decision afresh on- the point of limitation. I am informed by the learned counsel for the parties that the matter is pending before the Commissioner and has not been decided so far. The learned counsel for the appellant has, however, urged that the present appeal be decided on the basis of record and the evidence available on the record despite the fact that he himself had placed reliance on the order of the Commissioner, which as mentioned above has been set aside by the Board of Revenue.
Accordingly the appeal has been heard on the present record.
11. The deposition of Azim-ud-Din A.W.2 is that the property was owned by the respondent where no Urs takes place nor any offering is made by any one nor there is any Matwali, Likewise is the statement of Muhammad Shafi A.W.3 and all other witnesses produced by the respondents.
Muhammad Ismail Kanungo Auqaf Department, who appeared as R.W-I stated that when he visited the place, he did not find any Mujawar or Murid nor any cash box at the place. The preponderance of the material on record thus does not establish that it was a waqf property for the control of which notification under section 7 could be made. Reference may be made to Chief Administrator Auqaf, Lahore v. Hassan Muhammad and 9 others reported as 1988 SCM R 1269.
12. In view of the inconsistent position of the Revenue Record and the diverse orders of the Collector and the Commissioner mentioned above, no safe reliance can be placed thereon. From the consideration on the depositions of the witnesses whose statements have come on record, and the definition of Waqf Property embodied in section 2(e) of the Ordinance, the conclusion drawn by the learned Additional District Judge that it was not a waqf property cannot be regarded as illegal so as to warant interference by this Court.
13. In view of the above, this appeal has not merit, the same is accordingly dismissed with no order as to costs.