MIAN SAQIB NISAR, J.- The present revision petition as also F.A.O. No. 90 and F.A.O. No. 91 of 1993, arise out of a single judgment of the learned District Judge, Gujrat, thus are being dispose of together.
2. Necessary facts of the case are, that the petitioner on 5.12.1981, filed a suit challenging the Mutation No. 445 dated 14.8.1969, on the score that he has been shown as the owner in the revenue record, regarding the disputed land and such long standing entries cannot be changed, particularly, without affording him any opportunity of hearing. In this case, initially, Auqaf Department was not impleaded as a party, however, on an application, said Department, was arrayed as a defendant.
3. It may be pertinent to state here that vide Notification dated 31.8.1982, issued under the provisions of section 7 of the Punjab Waqaf Properties Ordinance, 1979 the suit property was declared to be a waqf property. Against the above, the petitioner as also one Aman Ullah, filed two applications under section 11 of the Ordinance ihid, before the learned District Judge, challenging the declaration of suit property as waqf.
4. Learned District Judge, vide order 4.6.1988, directed that as there were controversial facts, involved in the matter, thus it should be appropriate that the decision of the suit filed by the petitioner, in the Civil Court, referred to above, be awaited, consequently, the above two applications were kept pending.
5. In the meantime, the Civil Court decreed the suit in favour of the petitioner vide judgment and decree dated 31.8.1988, holding that the long standing entries in the revenue record, could not be altered, without notice to the person affected. However, the question with regard to the declaration of the property, as waqf which event occurred during the pendency of the suit, was neither considered, nor any decision was rendered by the Civil Court, on the reasoning that this is not a matter in issue between the parties before it.
6. Respohdent Auqaf Department feeling aggrieved of the above judgment and decree, filed an appeal before the learned District Judge; the said appeal and the two applications under section 11 filed by the petitioner and Amanullah, were taken up together and have been disposed of vide single judgment dated 22.2.1993. By virtue of the he impugned decision, the appeal of the respondent department, has been allowed, while the application of the petitioner have been dismissed. Hence the present petition/appeal.
7. Learned counsel for the petitioner has vehemently argued that according to the revenue record, the petitioner was shown to be the owner in the column of ownership and such long standing entries could not be reversed, without affording any opportunity of hearing to the petitioner, thus the decision given by the learned court below is according to law. It is further stated that the declaration of the property in question under Section 7 of the Punjab Waqaf Properties Ordinance, is without jurisdiction and mala fide. The suit property was never dedicated for any religious or charitable purpose and was not a waqf property. Thus no notification u/S. 7 could be validly issued.
8. The judgment of the Court below and record have been perused. Since 1987, the property in dispute has been shown as Ghair Mumkin Qabaristan and Khanqah of Shah Hussain and this fact has not been disputed by the learned counsel for the petitioner, as well. However, his main thrust is, that as the property is shown to be in the ownership of the petitioner, thus irrespective whether it is Ghair Mumkin Qabaristan or Khanqah and when the dedication as mentioned above, has not been proved, it continues to be the private property and not part of the waqf.
9. I am afraid 'that the contention of the learned counsel for the petitioner has not force. According to the provisions of section 2, explanation 1, of Ordinance of 1979 if a property has been used from time immemorial, for any purpose recognized by Islam, as religious, pious, or charitable, then in spite of there being no evidence express dedication, such property shall be deemed to be wakf property". In the present case, admittedly, to the revenue record, produced by respondent, as Ex.D- 9, Ex.D-13, the said property is shown to be Ghair Mumkin Qabaristan and Khanqah, consequently, the property was already attached to the Khanqah of saint Shah Hussain and thus being used for religious and charitable purpose as recognized by the Islam. In this regard, paragraph No. 12 of the judgment of learned District Judge, also relevant, which is reproduced as under:- "Now the question worth consideration is that which is the status of land in dispute bearing number khasras 444 and 445, in the revenue record. Both the parties have brought on record the oldest copies of record of rights and the latest copies of record of rights so including all these judgments, I have got prepared a sketch of the on tries in the revenue record from 1889-90 upto 1970-71 from the Halqa patwari. It looks to me that since 191011 upto 1970-71 the land in dispute bearing khasra number 444 and 445 have some variations in measurement but consists of Ghair Mumkin Khanqah, Ghairmurnkin Chah, graveyard and Ghair Mumkin Kotha and this position consistently exists on the record and there is no change in this status of the property, perhaps khasra Number 445 was changed in year 1966-67 and the latest khata numbers as mentioned in Para 1 of the plaint came into existence."
Reliance can be placed on the provisions of Section 188 of the Mahomedan Law by Mulla, which reads as follow:- "If land has been used from time immemorial for a religious purpose e.g., for a mosque or a burial ground or for the maintenance of a Mosque, then the land is by user wakf although there is no evidence of an express dedication."
10. According to the ratio of the judgments reports I as Pir Rashid ud Daulla Versus Chief Administrator Auqqf (PLD 1971 S.C. 401) and Faqir Muhammad Khurshid, Etc Versus Chief Administrator Auqaf (PLD 1987 S.C. 60), The express dedication in such cases is not necessary.
Shrine of a saint in existence for considerable period of time, and used by public at large without interruption for religious, pious or charitable purpose-dedication, in circumstances, presumed.
11. Petitioner has failed to prove that the land in dispute is not a graveyard; used for the public purpose or that it is not a part of Khanqah, thus even if the dedication as repeatedly mentioned above, is not established, the user of the property since time immemorial would establish the grave to be the waqf, consequently, the notification of the Auqaf Department, issued under section 7, is in accordance with the law, thus reference of the petitioner under Section 11 of the Ordinance, has been rightly dismissed by the Court below.
12. In the light of the findings of the Court below adjudicating the property in question as waqf, the judgment and decree of the Civil Court has been rightly set up. As after determining this issue, such decree could not be sustained. The instant petition as also the connected appeals, thus have no merits and thus the same are hereby dismissed.