JUDGMENT MRS. FAKHAR-UN-NISA KHOKHAR, J.- Brief facts of the instant appeal are that the disputed property was in the name of Peer Benoee through predecessor-in-interest of the appellant shown being owner in possession in the revenue record. This property was taken over and assumed in the administration, control and management and maintenance of the Waqf Property under Notification No. 1(323) Auqaf/72-DWP-I, dated 20.10.1972 published in the official Gazette on 18.11.972. Shamshad Ali, etc. Filed a petition u/S. 11 of the Punjab Waqf Property Ordinance, 1979 before the learned District Judge, Gujrat. Following issues were formulated on 20.4.1986:-
(i) Whether the plaintiffs are owners in possession of suit land and all the proceedings made by the defendants declaring the property as Waqf property is without jurisdiction, mala fide and ineffective against the rights of the plaintiffs?
(ii) If any Notification was issued for the acquirement of the suit land, was it issued without hearing the petitioners and as such was void, in-effective and against their rights?
(i.e) Whether the Notification acquiring the property was issued on 29.10.1972 and as such the suit is time-barred?
(iv) Whether the possession of the disputed property has been taken/ by the defendants and the suit cannot proceed?
(v) Whether the suit land has been given to the defendants on Pata and the defendants were its owner and possession and therefore, the suit could not proceed in the present form?
(vi) Whether the respondents are entitled to special costs u/S. 35-A, CPC?
(vii) Relief.
The case was fixed for evidence on 13.5.1986 but no evidence was produced by either side. The petition under Order XXIII, Rule 1, CPC was filed for withdrawal of the main petition tiling the fresh one. The learned District Judge disposed of the application and also held that main petition is - barred by time and as such is hereby dismissed as main petition has been filed in the year, 1986 i.e. After 14 years of the issuance of impugned Notification. Now against this judgment learned counsel has filed the present appeal.
2. Submissions of learned counsellor-the appellant are that in the revenue record the word Khanqah has been wrongly added. The entries in the revenue record are to be made in accordance with Fard-e-Haqeeat and under the Muslim Law private waqf for the benefit of the heirs is permissible and entries in the fard-e-haqeeat are proved to it. Peer Benoee was the ancestor of the appellants as such the property could not be treated as waqf property. Further submitted that the finding of learned District Judge on the point of limitation is erroneous and are nullity in the eyes of law as onus of prove of limitation was on the respondent and they did not produce any evidence to discharge the onus, therefore, the question of limitation on this score cannot be decided against the appellant. Further submitted that even otherwise the Notification on the i.e is gazetted and, therefore, carries no legal effect. The Notification being in respect of property does not fall within the definition of property is totally without jurisdiction and of no legal effect. He relied on "Muhammad Ishaq v. Chief Administrator of Auqaf, Punjab" (PLD 1977 S.C. 639), where it is held that u/S. 7 of the West Pakistan Waqf Property Ordinance XXVIH of 1961, Notification u/S. 7 must not only be published in Gazette but must also be served on person in possession of property declared as waqf.
3. Learned counsel for the respondents submitted that no condonation of delay is allowed under the provision of Section 11 of West Pakistan Waqf Property Ordinance, 1961. The limitation which is given to challenge the Notification is from the date of publication in the official Gazette. The Notification was published in the official Gazette on Saturday, November 18, 1972, where the Chief Administrator of Auqaf, Punjab, in ' exercise of powers conferred in him by Section 6 of the West Pakistan Waqf Properties Ordinance, 1961 assumed the administration, control, management and maintenance of the waqf land in Chak Manoo Mauza Waso Tehsil Phalia, District, Gujrat in lieu of Waqf land abandoned in India in the name of Shrine of Hazrat Pir Bana Banoi Tehsil and District Sanam (India) and un-settled units as described in the schedule annexed. Parcha Dakhla was also issued in the year 1972. The present appellant gave a petition on 9.1.1986 after 14 years of the publication of the impugned Notification. He has relied on "Elahi Bakhsh v. Chief Administrator Auqaf Property" (1982 SCMR 160), where Section 7 read with Limitation Act Sections 5 and 29(2) held not applicable to petitions u/S. 7, West Pakistan Waqf Property Ordinance, 1959. Ordinance, 1959.
Districts Courts cannot condone delay in respect of application filed u/S. 7 of Ordinance XXI of .1959.
In this case learned counsel had argued even in a proper case the District Court should have no power to condone the delay for good and sufficient reasons, but it is not possible as the introduction of Section 5 expressly or by implication is not applicable u/S. 7 of the Waqf Property Ordinance, 1961. He further relied on "Ch. Naveed Manzoor v. Chief Administrator, Auqaf Department Punjab, Lahore & 2 others" (KLR 2000 Civil Cases 209.). In this judgment it is held that in case 1972 SCMR 297 was also not brought into the notice of Supreme Court at the time of deciding the case in PLD 1977 SC 639. Impugned Notification was published in the Gazette and the appellant was cognizant of it Section 5 of the Limitation Act, 1908 was not applicable, and inordinate delay in filing of the petition was not condonable on any^earthly justification. Even otherwise the earlier judgment of Supreme Court was not brought into the notice of Supreme Court at the-time of deciding the case in PLD 1977 SC 639.
4. I have heard the learned counsel for the parties and perused the record. Undoubtedly the Notification is published in the official Gazette on Saturday November 18, 1972, Parcha dakhal also relates to the same year. The appellant was possessed with the power to challenge the aforesaid Notification within 30 days Of its publication. The intention of Legislature is very clear, it does not give power to the learned District Court to dispense sufficient cause and condonation of delay u/S. 5 of the Limitation Act. Petition remained idolent for 14 years and have come to challenge the impugned Notification in the year, 1986.
5. I have also gone through the judgment passed by the learned District Judge. The case was fixed for evidence on 13.5.1986 but the parties did not produce any evidence. It was only the day of the judgment the appellant filed an application under Order XXXIII, Rule 1, CPC for withdrawal of the main petition and tiling the fresh one which was disposed of on that date. Parcha dakhal relates to the date 16.11.1972, therefore, the learned District Judge rightly dismissed the petition. No reasons exist to interfere in the judgment passed by the learned District Judge through this appeal, the same is dismissed.