' CH. MUHAMMAD ARIF, J.---The Chief Administrator of Auqaf, Punjab has sought leave to appeal against judgment. Dated 21-5-1996 passed by the Lahore High Court, Lahore in F.A.O. No,81 of .1985 whereby the order passed by a learned Additional District Judge, Kasur in petitioner's petition under section 7 of the Punjab Waqf Properties Ordinance (No,IV of) 1979, hereinafter referred to as the Ordinance, was dismissed with the following observations:-- "7. It appears from the record that the real and basic controversy between the parties has escaped notice of the learned District Judge as the same was never reflected into issue nor it was pointed out during the trial by any of the parties with the result that the same have not been decided. As noticed supra, the notification issued by the Chief Administrator, Auqaf, was challenged on two grounds i,e, the land forming subject-matter of Khasra No,5258 was never dedicated to the Shrine of Baba Kamal Chishti and secondly that the six houses, the control and management whereof had been assumed through the said notification, were built on Khasra No,5259, therefore, the same could not be included in the said notification. Obviously, the plea as to the houses having been constructed on Khasra No,5259 had not been reflected into issues even in spite of the fact that the same was denied by the respondents. This being a material controversy going to the root of the case ought to have been made subject-matter of an issue so that the parties could have been made aware of the same and had led evidence thereon. There is evidence on the record in the shape of Exh.A.6 and Ex.A.8, the contents whereof lend support to their plea of the petitioner that the six houses are built on a part of Khasra No, 5259. Exh.A.6 is the letter addressed by the Deputy Commissioner, Kasur to the Administrator, Auqaf Department wherein it is stated that the house of Din Muhammad, petitioner No,8 has been built on a part of Khasra No,5259 and in view thereof it has been further stated that the Manager Auqaf be asked to refrain from interfering with the possession of said Din qua the house built on the said Khasra number. Exh. A.8 is another letter from the Chief Administrator, Auqaf addressed to petitioner. No, 8 whereby intimation has been sent to the said petitioner that Auqaf Department has not taken over the house constructed in filed No,2828. The field number mentioned in the said letter is obviously not the one under dispute and it seems to be a typographical mistake because the petitioners never claimed any right in regard to the said filed number. The contents of two letters referred to above may not be taken to be conclusive evidence of the fact that these houses as avowed to have been acquired by the respondent were actually built on Khasra number 5259 but the same could be treated as corroborative piece of evidence provided other evidence had been led in that behalf. Manifestly the controversy as to where the houses are located and whether the site underneath the houses have been lawfully taken over by he respondents with the further question as to whether the respondents had no authority to assume the control and management of the said houses are still wide open between the parties. Apart from the abovesaid aspect of the matter, the learned District Judge has also not decided as to whether the land comprising the two Khasra numbers noted above was ever dedicated to the Shrine of Baba Kamal Chishti or that it had become Waqf property by the long user thereof. The learned District Judge, as it appears from his judgment, simply non-suited the petitioner on the ground that since the property belonged to Provincial Government, therefore, they have no locus standi or cause of action to file the present petition. All in all the real questions forming subject-matter of the petition filed by the appellants have not been clearly determined by the learned District Judge. Therefore, the impugned order cannot be sustained.
"8. For the reasons stated above, the impugned order, dated 5-3-1985 passed by the learned Additional District Judge, Kasur, is set aside. This appeal is allowed and the case is remanded to the learned District Judge, Kasur, who shall proceed to determine as to whether the land forming subject-matter of the notification impugned in the application filed by the petitioner is 'Waqf' or not and that too, after framing issues as indicated above as also by affording reasonable opportunities to the parties to produce evidence in regard therein. There shall however, be no order as to costs."
2. On 28-1-1998 the following order was made in this C.P.S.L.A. No,1498-L of 1996:-- "Learned counsel for the petitioner relying on Maqbool Ahmad v. The Chief Administrator of Auqaf, Lahore (1976 SCM R 500) contended that respondents/ appellants before the High Court lacked necessary locus standi to challenge the notification of taking over of the property in dispute.
2. Let notice be issued to the respondents to show cause as to why the petition be not converted into appeal and allowed in view of fact that the predecessor-in-interest of the respondents /appellants before the High Court who had moved the petition under section 7 of the West Pakistan Waqf Properties Ordinance, 1961 was admittedly tenant-at-will under the Provincial Government and that learned Judge of the High Court, while remanding the matter failed to advert to the question of locus standi of the appellants/ respondents herein to maintain the petition.
3. To be fixed in next sessions." On 1-4-1999, the following order was made:- "Notice issued to the respondents has been served except respondents Nos.2, 3, 8, who are stated to have died.
' Learned counsel for the petitioner seeks adjournment to bring on record the legal representatives of the deceased persons. Allowed needful shall be done within two seeks."
3. The petitioner-Chief Administrator of Auqaf, Punjab has filed an application under Order XIV, Rule 7 of the Supreme Court Rules, 1981 for bringing on record the legal representative of the deceased- respondents Nos.2, 3 and 8. The same is allowed and the legal representative of Walayat Shah, Nasir Ahmed and Din Muhammad as detailed in para. 2 - 1, 2 and 3 respectively, in application, dated 16-4-1999, are brought on the record.
4. Mr. Raja Dilshad A. Khan, learned Advocate Supreme Court appearing in support of this petition, was of the view that as the Notification, dated 7-10-1961 issued by the petitioner under section 6 of the West Pakistan Waqf Properties Ordinance (No,XXVIII of) 1961, hereinafter referred to as the Ordinance, was challenged by the other side in their petition under section 7 of the Ordinance, on the grounds that "... The land measuring 60 Kanals, 1 Marla forming subject-matter of the notification referred to above i,e, comprised in Khasra No,52 is not a Waqf property as the ownership thereof vests in Provincial Government while the appellants have been shown to be in possession thereof as tenants-at-will and that the above said land was never owned by Hazrat Baba Kamal Chisthi nor it is shown to have been dedicated by any body as Waqf"; if the respondents are in possession of their respective tenements on the lands comprised in Khasra No,5259, the petitioner-Chief Administrator of Auqaf has no concern therewith. The precise plea was that remand order made by the High Court is not going to ' yield any fruit 'whatsoever in that, according to him, notification, dated 40-1976 took over shrine Baba Kamal Shah Chishti and the attached property of 60 Kanals, 1 Marla bearing Khasra No.5258, six houses in Mauza Kasur, Tehsil and District Kasur. The petitioner has no concern with the Khasra number upon which the respondents/ predecessors have raised their construction. He specifically mentioned to para. (1 - 1) (5 and 6) of the memo of petition to contend that the above stand was taken by the petitioner-Chief Administrator Auqaf Punjab at the time of resorting to the instant proceedings. The above mentioned pleadings read thus:-- "1. That the revenue record produced in this case describes 60 Kanals, 1 Marla of land in Khasra No.5258 as Khanqah and graveyard. This entry clearly shows that the property is Waqf by user although the Provincial Government is shown as owner in the column of ownership but having not moved any petition before the District Judge under the Waqf Properties Ordinance the presumption is that the Provincial Government for all intents and purposes considered the property as Waqf.
"5 That the respondents neither produced any evidence whatsoever to show that their houses were situated in Khasra No.5259 and not in Khasra No.5258 nor did they ask for any additional evidence to prove this fact. The learned Judge in Chambers by remanding the case has permitted them to plug in the lacuna that defeating the right created in favour of the petitioner.
"6 That if the houses of the respondents are situated in Khasra No.5259, then they have no worry because the petitioner has only taken over Khasra No.5258."
' He concluded his arguments by submitting that as the other side had failed to bring anything on the record to support their assertions in their application under section 7 of the Ordinance, the learned Judge in Chambers should not have allowed any further opportunity to fill in the lacunae in their case.
5. Contrarily, Mr. Qadeer Ahmed Siddiqui, learned Advocate Supreme Court appearing on behalf of the respondents/ caveators has supported the impugned judgment and, at one point of time, submitted that he will have no objection to the disposal of the petition in terms of the arguments addressed on behalf of the petitioner Auqaf. However, in the latter part of his arguments, he reiterated his stand that the impugned judgment does not call for any interference therein. More so, when it is noticed that after trial of respondent's application under section 7 of the Ordinance, the learned District Judge, Kasur will be in a better position to consider effect of this Court's judgment in the case of Maqbool Ahmed v. Chief Administrator of Auqaf, Punjab (1976 SCM R 500).
6. We have considered the arguments addressed at the Bar on behalf of the petitioner and are of the view that the impugned judgment takes good care of the dispute between the Auqaf Department and the respondent/ predecessors in relation to this list and that remand of the matter to the learned District Judge, Kasur was called for to consider whether the land forming the subject-matter of the Notification, dated 7-10-1976, impugned in the application filed by the respondents under section 7 of the Ordinance, is 'Waqf' or not. Further, it is not the case of the petitioner that the learned Judge in Chambers was not possessed of the jurisdiction to remand the case to the Court/ Tribunal below in the exercise of his appellate powers under section 12 of the Ordinance.
7. Looked at from whatever angle, no ground for grant of leave to appeal against the impugned judgment of remand has been made out. Resultantly, this petition fails and is hereby dismissed.