On 10-4-1978 the respondent (Haji Muhammad Ashraf, deceased) filed an application under section 11 of Auqaf (Federal Control) Act, 1976. This application was filed in the Court of learned District Judge, Sahiwal to question a notification, dated 15-10-1977. Through this notification the structure standing on land mesauring 2 Kanals, 7 Marlas and 3 sq., ft. Mentioned in para. 1 of the application, were taken over by -the appellant. It was stated in the petition that the said land was purchased by the respondent from Dewan Ghulam Qutabuddin, vide registered sale-deed, dated 15-4-1961 for a consideration of Rs.80,000. This sale deed was incorporatd in the Revenue Records vide Mutation No.534 attested on 18-6-1961; that under a private partition effected vide Mutation No.1642 attested on 20-9-1963 this specified land came to the share of the respondent who got a plan sanctioned from the Local Municipal Committee and constructed 72 shops. Thereafter it was stated that the property of the said vendor of the respondent was taken over by the appellant vide Notification, dated 17-1-1960 which was amended by Notification, dated 8-9-1969. Yet another notification was issued on 17-12-1969. All these notifications were challenged by the said vendor but without success. Then Notification, dated 19-9-1972 was published in the Gazette, dated 28-9-1972 whereby "()" rights of this said land were taken over as a Waqf property belonging to the shrine of Hazrat Baba Farid Sahib of Pakpattan Sharif. This latter notification was challenged by the respondent under section 7 of the West Pakistan Waqf Properties Ordinance, 1961, which application was dismissed by the learned District Judge, Sahiwal on 18-5-1977.
Against this order F.A.O. No.136 of 1977 was filed in this Court. During the pendency of, this F.A.O. It was ordered that subject to payment of "()" rent to the appellant, he shall be entitled to receive the rent of the shops from his tenants. Meanwhile, the respondent heard that the structures are also being taken over. An application was tiled on 30-3-1978 for copy of a notification which was supplied on the same date by the office of the appellant. The notification was questioned and stated to be void on several grounds narrated in the application. Primarily it was asserted that since admittedly the superstructure has been raised by the respondent it cannot be treated as Waqf property. The appellant filed written statement objecting that the application is barred by time. Reliance was placed on the earlier decisions, whereby the matter of the land underneath the structures Vas decided against the respondent. It was sought to be asserted that the respondent while raising construction was aware that the land is Waqf property and as such he cannot take any advantage of the said fact.
2. Following issues were framed by the learned trial Court:--
(1) Whether respondent No.2 has been properly impleaded as a party in this petition. If not, with what effect?
(2) Whether this petition is within time?
(3) Whether this petition is barred in view of the judgments mentioned in preliminary objection No.3 of the written statement?
(4) Whether this petition is barred by res judicata?
(5) Whether the petition is bad for non-joinder of necessary parties in view of preliminary objection No.5?
(6) Whether the property in dispute is not Waqf property?
(7) Whether Notification No.2/4/AGA/77(58), dated, 15-10-1977 is illegal, void, mala fide and, therefore, inoperative upon rights of the petitioner?
(8) Relief.
Evidence of the parties was recorded. Issue No.1 was found to be redundant while the other issues were found in favour of the respondent and against the appellant. The application was accordingly allowed vide judgment, dated 5-4-1982.
3. Mr. Muhammad Salim Shehnazi, Advocate has questioned the findings of the learned trial Court on Issue No.2 and Issues Nos. 6 and 7. According to the learned counsel the notification was issued on 15-10-1977 whereas the petition was filed on 9-4-1978 and as such it was barred by time. On merits refers to the judgment dismissing the F.A.O. No.136 of 1977 on 19-4-1981 (reported as PLD 1981 Lahore 722) to assert that the land was found to be Waqf and since there is no evidence on record to the effect that the respondent had no knowledge that the land is Waqf when he was raising construction, the same shall be deemed to be part of the land which admittedly vests in the appellant.
4. Mr. Ashtar Ausaf Ali, Advocate for the respondent, on the other hand, with reference to evidence on record urges that the superstructures were admittedly raised by the respondent and there is no evidence on record to the effect that he was aware that the land is Waqf property. Learned counsel supports the impugned judgment of the learned District Judge by relying upon the case of Haji Ghulam Rasul and others v. Chief Administrator of Auqaf, West Pakistan, Lahore (PLD 1966 Lahore 978) and the judgment of the Hon'ble Supreme Court of Pakistan while deciding appeal arising out of the said case reported as Haji Ghulam Rasool and others v. The Chief Administrator of Auqaf, West Pakistan (PLD 1971 SC 376).
5. I have gone through the trial Court's records, with the assistance of the learned counsel for parties. So far as the said first contention of the learned counsel is concerned, the case set up in the application by the respondent was that he acquired knowledge of the said notification at a point of time after 5-3-1978 when the said interim order in the matter of payment and collection of rent was passed by this Court in F.A.O. No.136 of 1977. The respondent produced Muhammad Siddique, an officer of the Printing Corporation of Pakistan, as P.W.1 who stated with reference to letters Exh.P.1, P.2 and his records that the Notification, dated 15-10-1977 was published on 12-3-1978.
The reason explained for the delay was that the said Corporation was called upon by the Federal Government to publish the Gazette pertaining to the elections to be held in the said year. More important is Akbar Ali, Record-Keeper of the office of the appellant who appeared as P.W.2 and stated that the printed notification was received in the office on 18-3-1978. The matter is further clarified by letter, Exh.P.1 addressed to the said Printing Corporation by the office of the appellant on 15-3-1978 complaining that the said notification has not been published so far. Exh.P.2 further clinches the matter where a complaint has been made on 11-3-1978 that the notifications issued in 1977 have not so far been published. In the said state of evidence on record, the respondent had been able to prove that the notification was in fact published on 12-3-1978 and this being so the application filed on 9-4-1978 was within time. The findings of the learned District Judge on the said issue are accordingly confirmed.
6. Coming to the main issue in the case, I find that the said respondent was a deaf and dumb person. His elder brother Manzoorul Haq appeared as P.W.3 and after stating that he is aware of the facts of the case he stated that the land was purchased by himself, the respondent, their brother Haji Muzaffar Hussain and their father for a consideration of Rs.80,000 from Dewan Ghulam Qutab of Pakpattan Sharif vide registered sale deed, dated 15-6-1961; that in a private partition effected vide Mutation Exh.P.4, this land fell to the share of the respondent; that the entire record was checked up. Refers to copy of Register Haqdaran Zamin for the years 1943-44 (Exh.P.5), 1928-29 (Exh.P.6) 1934-35 (Exh.P.7), 1938-39 (Exh.P.8) wherein the said vendor or his father were recorded as owners of the land; that in the year 1964,72 shops were constructed in the form of a market known as Ashraf Market at an expense of Rs.4,00,000. Plan Exh.P.9 was approved by Municipal Committee, Sahiwal. He then refers to the earlier take over of the property of the said vendor by the appellant.
He then refers to Notification, dated 19-9-1972. Exh.P.1 is regarding take over of the land underneath the shops; that the notification was challenged but the learned District Judge, Sahiwal, dismissed the application on 18-5-1977 vide order Exh.P.11; that the appellate order Exh. P.12 was passed on 5- 3-1978. Thereafter he states the manner in which the knowledge of impugned notification Exh.P.13 was acquired: that the notification is illegal inasmuch as to the knowledge of the appellant the construction was made by the respondent. There is then a reference to writ petition Exh.P.14 and its reply Exh.P.15. It was withdrawn vide Exh. P.16. In his cross-examination he states that there was no building on the land when it was purchased vide Exh.P.3 but there were some demolished Kacha huts. He denied that the Girdawar had told them that their vendor cannot sell the land. He then states that Muhammad Anwar and Muhammad Ismail were tenants in a portion of the land and ejectment proceedings were commenced. He denied that the said tenants led evidence to the effect that the land is a Waqf; that the construction was raised after ejecting Muhammad Anwar and Muhammad Ismail. He denied that when construction was raised the respondent was aware that this is Waqf property. In rebuttal no witness was produced but several documents Exhs.D.1 to D.7 were produced.
7. I have examined the said Revenue Record relied upon by the respondent and I do find that the said land was recorded to be the ownership of the said vendor or in the earlier records of his father.
There is absolutely no evidence to rebut the said plea of the respondent that he was not aware of the nature of the land when he made the construction. Needless to state that there is no denial that the construction was in fact raised by the respondent and it was never being used for any purpose recognized by law for purposes of Waqf i.e. Religious or charitable. The learned District Judge has relied upon judgment in the case of Narayan Das Khettry v. Jatindra Nath Roy Chowdhry and others (AIR 1927 PC 135) to hold that where constructions have been raised by a person upon land not belonging to him they did not necessarily become part of the said land thereby extinguishing his interest in the said structures and that the structures by themselves are independent property vesting in the person who is proved to have raised the same. I find that in the judgment relied upon by the learned counsel for the respondent (i.e. PLD 1966 Lah. 978) a similar question was involved. A learned Division Bench of this Court in para. 21 of the said judgment appearing at pages 998 and 999 of the report on the basis of finding that the structures were raised on the land by the appellants in the said case at their own expense held that the structures of the house and shops must be held to be belonging to the said appellant as claimed by him. Now this finding was upheld by the Hon'ble Supreme Court in the said judgment (i.e. PLD 1971 SC 376) by observing at page 392 that the structures are not Waqf properties while the other immovable properties were such properties.
8. Now this leaves the question as to how the matters are to be dealt with when the land admittedly belongs to the appellant while the structures belong to the respondent. Such a matter came up before the Hon'ble Supreme Court of Pakistan in the case of Chief Administrator of Auqaf, Punjab, Lahore v. Mian Ghulam Fareed and others 1993 SCMR 643. The judgment of Bahawalpur Bench of this Court rendered in F.A.O. No. 13 of 1985 (dated 21-4-1990) was modified holding that the land in Waqf property but not the structures thereupon. The appellant --Department was held competent to recover ground rent and take other steps according to law. I find that the interim order passed on 3-5-1978 in C.M. No.2589-C/77 in F.A.O. No. 136 of 1977 on 5-3-1978 (Exh.P.12) is in F complete accord with the said dictum of the apex Court.
9. In view of the above discussion this F.A.O. Is dismissed. However, the appellant department shall be competent to recover the ground rent regarding the said Waqf land underneath the shops and to take other steps in accordance with law. No orders as to costs.