' Briefly stated the case of the applicants/appellants in that as per Jamabandi 1879 land measuring 344 Kanals and 2 Marlas situated in Kot Shahan was owned and possessed by Ahmed son of Kamal, that after his (Ahmed son of Kamal death it devolved upon his son Kaloo and Rahim Bux as per entries appearing in Jamabandi 1904, that Kaloo mortgaged his share with a non-Muslim yet he was shown to be an owner alongwith Rahim Bux in the subsequent Jamabandis. That as per Jamabandi 19221923 the property left by Rahim Bukhsh devolved upon his grandson Allah Diwaya, whereas land left by Kaloo devolved upon Mst. Rasti and said changes were implemented in Jamabandi 1927-1928, that on the death of Mst. Rasti her property devolved upon Allah Diwaya and said mutation of inheritance was implemented in the record of rights pertaining to 1932-33, that vide Mutation No,481 said Allah Diwaya alienated his 9/12 share in favour of Makhdoon Nasiruddin father of Makhdoom Naubahar applicant/appellant No,1 and later on alienated his half share vide Mutation No,482 in favour of Abdullah applicant/appellant, that both these transactions stand implemented in Jamabandi 1937-38. It is further alleged that Allah Diwaya exchanged his some land with his father-in-law Budhan and after sometime got it back from him. Allah Diwaya also alienated some land in favour of Dooda applicant/appellant and all these transactions stand implemented in the Jamabandis from 1888 up to date, that all the applicants/appellants being owner have been alienating, as well as leasing out the suit land to 150 persons and have been inducting and ejecting them as tenants and are exclusive owners of the suit land, that suit land has never been treated as Waqf property by any person or authority and they have been dealing with it according to their sweet-will.
2. So far as the land situated in village Pai-ana is concerned, stand of applicants/appellants is that as per Jamabandi, 1904, Ahmed son of Kamal has been shown to be its owner in possession. On his death it devolved upon his sons Kaloo and Rahim Bux vide Mutation No,748 which was implemented in Jamabandi, 1915-16. On the death of Rahim Bux it devolved upon his brother Kaloo vide mutation of inheritance No,1202. On the death of Kaloo it devolved upon his widow Mst. Rasti and on the death of Mst. Rasti it devolved upon Allah Diwaya applicant/appellant No,2 who is grandson of Rahim Bux and as such he became the owner of said land. Later on Rahim Bux alienated the suit land in favour of Makhdoom Nasir-ud-Din after death of Makhdoom Nau Bahar Shah which fact stand implemented in Jamabandi 1939-1940. After the death of Makhdoom Nasir- ud-Din applicant/appellant No,1 Makhsoom Nau Bahar Shah has been coming in possession of the said land. It was further asserted that petitioners are owners in possession of the suit land which was never treated as Waqf and they have been dealing with the property being its exclusive owners.
3. Through application under section 11 of the Punjab Auqaf Ordinance. 1979 the applicants/appellants have sought a declaration that they are owners in possession of the suit land and respondents Nos.1 and 2 have no right to acquire the same treating it Waqf and as such Notification dated 19-11-1976 acquiring suit property treating the same as a Waqf by respondent No,1 and thereafter appointing respondent No,2 as its Administrator, is illegal and void.
4. Conversely, respondents Nos.1 and 2 have controverted the stand of the applicants/appellants and asserted that suit land is of Waqf nature and has rightly been acquired vide notification referred above. They further prayed that applicants/appellants have no cause of action to file this application.
5. From the divergent pleadings of the parties the trial Court framed the following issues:-
(1) Whether the disputed property is not a Waqf Property? OPP
(2) Relief.
6. In support of their stand the applicants/appellants examined P.W.1 Muhammad Yar, P.W.2 Makhdoom Hussain Bux, P.W.3 Abdul Khaliq, P.W. 4 Muhammad Akram and P.W.5 Makhdoom Syed Ghulam Asghar Bokhari son and general attorney of the applicant/appellant Syed Nau Bahar Shah.
Learned counsel for the applicants/appellants produced copies of documents Exhs.P.5 to P.43 and then closed their evidence. In rebuttal respondents Nos.1 and 2 examined D.W.1 Muhammad Ramzan Patwari. Their learned counsel produced documents Exh.D.1 to Exh.D.32 and then closed their evidence.
7. After going through the evidence produced by the parties, the trial Court dismissed the application vide judgment dated 30-1-1983, which has been assailed through the instant F.A.O.
8. Arguments have been heard and record perused.
9. It is submitted by the learned counsel for the applicants/appellants that trial Court has declined to consider the property to be self-acquired of the applicants/appellants on the ground that the land- has been exempted from land revenue as per document Exh.D.2. He submitted that mere assignment or Muafi of land revenue in favour of a Khankah does not give rise to presumption that land itself was attached to Khankah and placed reliance upon Muhammad Khurshid and 4 others v. Chief Administrator of Auqaf West Pakistan. Lahore (PLD 1973 Note 38 (Lahore). He further contended that there is nothing on the record to show that the property has ever been in possession of Trust or attached to any shrine, as such the suit land could be acquired treating the same as Waqf and placed reliance upon The Chief Administrator Auqaf West Pakistan, Lahore v.
Ilam Din (PLD 1973 Lahore 675). He next argued that applicants/appellants have been occupying the disputed property, putting up construction thereon, inducting tenants, ejecting them and as such by no stretch of imagination it can be considered to be Waqf property and placed reliance upon Chief Administrator of Auqaf, Sindh and another v. Ibrahim Shah (represented by 5 heirs) and 2 others (PLD 1975 Karachi 964). He further argued that in the copies of mutations and Jamabandies Exh.P.5 to Exh.P.43 the applicants/appellants have been shown to be owner of the same and suit property has never been disclosed as Waqf property. He also relied upon the evidence of P.Ws. 1 to 5 who have also corroborated their version.
10. Conversely, learned counsel for the respondents has supported the impugned judgment under appeal.
11. The only point which requires determination is, if the suit property is of Waqf nature or self- acquired property of the applicants/appellants. To prove these facts the applicants/appellants have brought on record oral evidence of P.Ws.1 to 5 as well as documentary evidence consisting of documents. Exhs.P.5 to 43. Both the oral evidence as well as documentary evidence referred above reveals that suit property has all along been shown to be property of the applicants/appellants and they have been using the property according to their own sweet-will. The applicants/appellants have been leasing out the property, 'including tenants as well as ejecting them and as such they were the exclusive owner of the suit land.
12. Learned counsel for the respondents has laid much stress on Muafi Nama Exh.D.2 to contend that since land involved in this application has been exempted from land revenue so the same has attained its Waqf character. Mere assignment or Muafi of land revenue in favour of a Khankah does not give rise to presumption that land itself was attached to a Khankah and 4 as gone out of the pool of private ownership and reliance is placed upon (PLD 1973 Note 38 at page 50 (Lahore)
(Supra.) Again there is nothing on the record in the form of documentary evidence except Muafi Nama Exh.D.2 that property has ever been in possession of Trust or attached to any shrine. Thus, the document Exh.D. Does not prove the stand of respondent that suit property is a Waqf property.
13. It may also be noted that Waqf property has been defined in section 2(e) of the Punjab Waqf Property Ordinance, 1979 and means "property of any kind permanently dedicated for the purpose of a mosque Takkia, Khankah, Dargah or other shrine shall be deemed to be Waqf property".
14. If the definition of Waqf property is taken into consideration vis-a-vis the suit property it becomes absolutely clear that suit property cannot be termed as permanently dedicated for the purpose of Khankah or other shrine and the mere fact that same has been exempted from land revenue will not bring the property within the ambit of Waqf property as defined above.
15. The upshot of above discussion is that from the evidence brought on record it stands conclusively proved that suit property was not Waqf property and it could not be acquired by respondents vide notification referred above. Thus, the findings recorded by the trial Court are not sustainable. Accordingly appeal is accepted, the impugned judgment is set aside and consequently application of the applicants/appellants stands accepted.