' FAQIR MUHAMMAD KHOKHAR, J.---Both these petitions for leave to appeal, under Article 185(3) of the Constitution of Islamic Republic of Pakistan, involving common questions of law and fact are directed against judgment, dated 3-5-1999 passed by a learned Single Judge of the Lahore High Court, Lahore, in Writ Petitions Nos.2438, 2727 and 4499 of 1990.
2. Briefly stated, the facts of these cases are that late Pir AbdurRashid, predecessor-in-interest of the petitioners in C.P. No, 1268L/1999, was a Mutawalli and Sajjada-Nashin of Dargah Hazarat Bu Ali Qalandar Sahib of Pani Pat, District Karnal (India). He was great grandson of Sheikh Muhammad Burhan who had created a public Wakf by dedicating agricultural land for meeting the expenses of the Dargah. He migrated to Pakistan at the time of partition of Sub-Continent. He filed separate claims under the Displaced Persons (Land Settlement) Act, 1958 (hereinafter referred to as the Act of 1958) for allotment of land in lieu of Waqf land of Dargah and his private land left in India. The Settlement Authorities allotted, in the name of the said Dargah, agricultural land measuring 387 Kanals and 17 Marlas equivalent to 1401 P.I units in village Bagrian Dharam Chand, Tehsil and District, Lahore.
3. Late Pir Abdur Rashid passed away in 1962. He was survived by his elder son late Pir Hameed-ud- Din and other legal heirs. The land of the said village came under consolidation operations by the Consolidation authorities. Late Pir Hameed-udDin, claiming to be a Mutwalli and Sajjada-Nashin, obtained a sanction from the Additional Deputy Commissioner/Collector (Consolidation), Lahore for exchange of land measuring 63 Kanals and 12 Marlas of the legal heirs of late Pir Abdur Rashid with the Dargah land measuring 245 Kanals and 11 Marlas. A Mutation No, 451 of exchange of Dargah land was attested by the Assistant Collector, Grade-II, Lahore on 30-9-1964, accordingly.
After the exchange of land, the legal heirs of late Pir Abdur Rashid alienated a piece of land measuring 2 Kanals and 12 Marlas, by way of gift in favour of one Muhammad Sharif through.
Mutation No,454. The respondent No,1 (Chief Administrator, Auqaf), by publication of a Gazette Notification) dated 29-11-1968, under section 6 of the West Pakistan Waqf Properties Ordinance, 1961, took over and assumed the administrative control, management and maintenance of the Dargah land as it stood in the year 1962-63.
4. Messrs Ali Muhammad and Rulia moved the Settlement Authorities for the cancellation of allotment of Dargah. Land under sections 10 and 11 of the Act of 1958. The Additional Settlement (Commissioner), by order dated 14-1-1972, found that Dargah land to the extent of 126 Kanals and 11 Marlas equivalent to 748 P.I. Units had been allotted in excess of entitlement. Therefore, the excess land was surrendered by the Chief Administrator, Auqaf in favour of the Settlement Department.
Out of the surrendered Dargah land, an area equivalent to 580 P.I. Units was allotted to the petitioners by the Additional Settlement Commissioner (Land).Vide order, dated 22-4-1972, against the outstanding verified claim of their predecessor-in-interest late Pir Abdur Rashid.
5. The respondent No,1 (Chief Administrator), Auqaf) and one Muhammad Rafiq (respondent No,3 in the connected C.P. No,1084-L of 1999) moved the Collector for review of Mutation No,451 of exchange of Waqf land. The Collector, by order, dated 11-3-1975, granted necessary permission for review of the mutation. However, the AssistantCollector, Grade-II, Lahore, by an ex parte order, dated 15-2-1984, refused to review the Mutation No,451 on the ground that the same had been attested by sanction of the Collector (Consolidation). The Additional Deputy Commissioner, (General)/Collector, Lahore Cantt.. By order, dated 28-6-1984 as well as the Additional Commissioner (Revenue) Lahore Division, by order, dated 8-7-1985, dismissed the appeals of the Chief Administrator, Auqaf and Muhammad Rafique. Thereafter, the petitioners sold to the Government Employees Cooperative Society, Limited, (the petitioner in connected C.P. No,1084-L of 1999) (hereinafter referred to as the Society) land measuring 218 Kanals and 19 Marlas including the subject-matter of exchange, for a consideration of Rs,34,21,000, through a registered sale-deed, dated 14-7-1985. The revision petitions filed by the Chief Administrator, Auqaf and Muhammad Rafique were accepted by the Member, Board of Revenue, 'Punjab, by order, dated 8-5-1988.
Consequently, the orders passed by the subordinate Revenue Authorities including Mutations No,451 and 454 were set aside. The Board of Revenue also dismissed the review petitions of the petitioners in both the cases, by order dated 13-9-1989. However, the Chief Administrator, Auqaf, was directed to make payment to the petitioners for the surrendered land measuring 23 Kanals and 12 Marlas bearing Khasra Nos.1106, 1125 and 1126 at the market price.
6. The petitioners and the Society filed separate Writ Petitions 2438 and 2727 of 1990 against orders, dated 8-5-1988 and 13-9-1989 passed by the Board of Revenue. On the other hand, the respondent No,1 (Chief Administrator Auqaf) also filed Writ Petition No, 4499 of 1990 against order dated 13-9- 1989 passed by the .Board of Revenue. The Writ Petitions of the petitioners and the Society were dismissed and the one filed by the Chief Administrator, Auqaf, was accepted by the Lahore High Court, Lahore, by the impugned judgment, dated 3-5-1999. Hence these petitions for leave to appeal by the petitioners and the Society against the dismissal of their writ petitions.
7. The learned counsel for the petitioners in both the petitions argued that exchange of land was in the public interest as the Dargah land was of inferior quality and unproductive. Therefore, the Additional Deputy Commissioner/Collector (Consolidation) allowed the exchange of Dargah land followed by attestation of Mutation No,451. The Assistant Collector had rightly refused to review the Mutation No,451. He further argued that the exchange of land was made according to the classification of land being Nehri and Banjar Qadeem. The Collector and Additional Commissioner (Revenue) had also upheld the mutation of exchange. Assuch, the Society was justified to purchase from the petitioners land measuring 218 Kanals and 19 Marlas.
8. The learned counsel further submitted that the orders passed by the Collector and Additional Commissioner were consistent with the principles of law as enunciated by the superior Courts concerning the limited scope of inquiry in mutation proceedings where complicated question of title of property were involved. The orders passed by the 'Revenue Authorities ought not have been interfered with by the Board of Revenue. In the circumstance, the better course for the Board of Revenue was to keep Mutations Nos.451 and 454 intact and to direct the Chief Administrator. Auqaf and Muhammad Rafique to move the Civil Court in the matter. He relied on the cases of Ahmad Khan v. Muhammad Shafi 1991 SCM R 352 and Mian Ghulam Ahmad v. Muhammad Sarwar and others 1968 SCM R 573. The Chief Administrator, Auqaf was estopped by his conduct to seek review of the mutations as he had been dealing with disputed land for a fairly long period from 1968 to 1984. It was further argued that it was not possible to carry out the order, dated 8-5-1988 of the Board of Revenue in as much as the land got by the Auqaf Department in exchange could not possibly be returned to the petitioners and the Society. The learned counsel contended that late. Pir Hameeduddin, the predecessor-in-interest of the petitioners, was a Mutwalli as well as Sajjada- Nashin of the Dargah. He was, therefore, empowered to alienate the Wakf land by way of exchange.
He made reference to the opinion expressed by Asif A.A. Fyzee in his book titled "Cases in the Muhammadan Law of India and Pakistan" 1965 Edition, page 384. The learned counsel next argued that the High Court had taken an erroneous view of the matter that the Mutwalli had no power to alienate the Wakf property unless expressly authorized by Wakf deed or by the Court. The learned counsel lastly submitted that the Wakf deed was not in existence as the same was lost during migration of late Pir Abdul Rashid at the time of partition of the Sub-Continent.
9 .On the other hand, the learned Assistant Advocate General, Punjab and the learned counsel for the Chief' Administrator. Auqaf vehemently contended that the Mutation No, 451 was attested in a fraudulent manner and that the permission of the Court had not been obtained by the Mutwalli for exchange of the Wakf land. They further submitted that mere permission of the Collector (Consolidation) during the consolidations operations of the village would not confer any power on the Mutawallis for exchange of the Wakf land.
10. We have heard the learned counsel for the parties at length and have also gone through the available record. It seems to us that the Additional Deputy Commissioner/Collector (Consolidation), accorded sanction for exchange of Wakf land with the private land of legal heirs of late Pir Abdur Rashid although he was not empowered under the law to do so. Se ction 24 of the West Pakistan Consolidation of Holdings, Ordinance 1960 (Ordinance No, VI of 1960) clearly lays down that no land-owner shall have power without the sanction of the Consolidation Officer, during the pendency of the consolidation proceedings, to transfer or otherwise deal with any part of his holding so as to affect the right of any other land-owner. The provisions of rule 27 of the West Pakistan Consolidation of Holdings Rules, 1960, framed under the Ordinance, also require that during consolidation operations of a village, the Registrar or the Sub-Registrar shall refuse registration of a document relating to the transfer of land or any interest therein unless the document is accompanied by a written permission from the Consolidation Officer allowing such transfer. No such permission or sanction was obtained from the Consolidation .Officer who was the only competent authority in the matter.
Therefore, the sanction by the Additional Deputy Commissioner/Collector (Consolidation), if any, for the exchange of Dargah land and attestation of Mutation No, 451 on that basis were invalid.
11. There is nothing on record to indicate as to how late Pir Hameedudin had succeeded as a Mutwalli and Sajjada-Nashin of the Dargah located in India and as to what was the nature of his duties and functions. Under the Muhammadan Law the office of a Mutwalli or a Sajjada-Nashin, as the case may be, is not hereditary one.In such cases, one must look to the substance of the functions actually performed by a Mutwalli or Sajjada-Nashin and not merely to the nomenclature or appellation by which a holder of a particular office is called. The nature and origin of institution of Dargahs and Khankahs and the functions of the Mutwallis and Sajjada-Nashin in relation thereto were dilated upon by the Privy Council in the case of Khawaja Muhammad Hanif v. Mian Mahmud and others AIR 1922 PC 384 as under:--- "A Khankah is a monastery or religious institution where Dervishes and other seekers after truth congregate for religious instruction and devotional exercises. It is generally founded by a ' Dervish or a Sufi professing esoteric beliefs, whose teachings and personal sanctity have attracted disciples whom he initiates into his doctrines. After his death he is often revered as a saint, and his humble Takia (or abode) grows into a Khankah and his Durgah (or tomb) into a Rauzah (or shrine).
The Khankah is usually under the governance of a Sajjada-Nashin (the one seated on the prayer mat) who not only acts as Mutwalli (or manager) of the institution and of the adjoining mosque, but also is the spiritual preceptor of the adherent. The founder is generally thefirst Sajjada-Nshin, and after his death the spiritual line (Silsilla) is extended by a succession of Sajjada-Nashins, generally members of his family chosen by him or according to directions given by him in his lifetime, or selected by the Fakirs and Murids, and formally installed; and the income of the institution is usually received and expended by them. On the death of a Sajjada-Nashin, his eldest son if qualified, is the natural successor of his father. And, where, the evidence is clear that he was formally recognised and installed by the Pirs with the express consent and assistance of the opponent, it is not open to the opponent to question his position as Sajjada-Nashin or his right to manage the mosque and the property attached to the Khankah. Dedication may be inferred although the word Wakf is not shown to have been used.
' Ordinarily speaking, the Sajjada-Nashin has a larger right in the surplus income than a Mutwalli, for so long as he does not spend it in wicked living or in objects wholly alien to his office, he, like the Mahant or a Hindu math, has full power of disposition over it. But this does not mean that in every case the whole income from a Khankah is at the disposal of the SajjadaNashin; and it is plain from the authorities that at certain shrines the members of the founder's family other than the SajjadaNashin are treated as entitled to share in the surplus offerings which remain after payment of expenses."
' Again in the case of Sri Vidya Varuthi Thirtha Swamigal v. Baluswami Ayyar and others AIR 1922 PC 123, the Privy Council held that:--- "But the Muhammadan Law relating to trusts differs fundamentally from the English Law. It owes its original to a rule laid down by the Prophet of Islam, and means "the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings."
When once it is declared that a particular property is Wakf, or any such expression is used as implies Wakf, or the tenor of the document shows, as in the case of Jewan Doss Sahoo v. Shah Kubeerooddeen (1837) 2 M.I.A. 390 = 6 W.R. P.C. 4 = 1 Suther 100 = I Sar. 206, that a dedication to pious or charitable purposes is meant, the right of the Wakf is extinguished and the ownership is transferred to the Almighty. The donor may name any meritorious object as the recipient of the benefit. The manager of the Wakf is the Mutwalli, the Governor, Superintendent, or Curator. In Jewan Doss Sahu's case, the Judicial Committee call him "procurator". It related to aKhankha, a Mahommedan institution analogous in many respects to a Mult where Hindu religious instruction is dispensed. The head of these Khankhas, which exist in large numbers in India, is called a Sajjada- Nashin. He is the teacher of religious doctrines and rules of life, and the manger of the institution and the administrator of its charities, and has in most cases a large interest in the usufruct than an ordinary Mutwalli. But neither the Sajjada-Nashin nar the Mutwalli has any right in the property belonging to the Wakf; the property is not vested in him."
' A somewhat similar view was expressed by the High Court of Judicature at Lahore in the cases of Sardar Ali Shah v. Gehne Shah AIR 1933 Lah. 444 and Gahne Shah v. Mania Shah AIR 1930 Lah. 728, and by late Syed Ameer Ali, in his treatise on "Mohammedan Law", Volume 1, 5th Edition, 1976, Chapter XV section 1, at pp. 443-444.
12. Generally speaking, the privilege of initiation of making Murids, of imparting to them spiritual knowledge, is one of the functions which a Sajjada-Nashin performs or is supposed to perform. The endowment is maintained by grants of land to the shrines by pious Muslim. He is head of the institution of Khankah or Dargah. The goverance (Towliat) of the endowment is in his hands; he is a Mutawali, with extra duty of imparting spiritual instruction to those who seek it. The property of the "shrine" is Wakf, tied up in the ownership of God. The appointment of the Sajjada-Nashin is regulated by usage and practice. The duties in connection with the 'sharine', apart from giving spiritual instruction, consist in the due observance of the annual ceremonies at the tomb of the saint, the distribution of charity at fasts and festivals, the celebration of the birthday of the Holy Prophet and performance of other rites and ceremonials prescribed either by the Islamic law or by usage and practice.
13. It is stated in section 208 of the Principles of Mahomedan Law by D.F. Mullah, as revised by late M.
Hidayatulah, a former Chief Justice of India, that "A Mutwalli has no power without permission of the Court to mortgage, sell or exchange the Wakf property or any part thereof unless he is expressly permitted by the deed of Wakf to do so. The learned counsel for the petitioners frankly admitted before us that no such Wakf deed was in existence and that the exchange of Wakf land had not been authorized by any Court of law except by the permission of the Collector (Consolidation). In 'Digest of Muhammadan Law, Volume-I, by Neil B.E. Baillie, 2nd Edition, at page 605, the author has stated that "the sale and mortgage of Wakf property by a Superintendent (Mutawalli) is malversation for which he may be dismissed by a Judge.Similar statement of law appears in "Anglo-Muhammadan Law, A Digest 6th Edition, page 371, by Wilson as revised by Allama Yousaf Ali.
In the case of Mst. Kaniz Begum and others v. Mst. Akbar Jan and another 1984 SCM R 1493, it was held that upon its dedication, the property would vest in God and the capacity of the owner of the property was changed with that of Mutawalli. The position of a Sajjada-Nashin is in no way better than that of a Mutwalli as regards the restriction on his power of alienation of Wakf property. In the book titled "Cases in the Muhammadan Law of India and Pakistan" page 384, referred to by the learned counsel for the petitioners, the learned author had expressed a similar view which the Privy Council had taken in the cases of Khawaja Muhammad Hamid and Sri Vidya Varuthi Thirtha Swamigal (supra). In view of the above legal position, the Board of Revenue was quite justified in setting aside the Mutations Nos.451 and 454 for exchange of Wakf land and gift.
14. In our view, the impugned judgment of the Lahore High Court does not suffer from any legal infirmity so as to warrant interference by this Court. In the cases of Ahmed Khan and Mian Ghulam Ahmed (supra), this Court had only refused to interfere with the exercise of discretionary jurisdiction by the High Court with regard to the mutations. In the absence of any permission from the Court of competent jurisdiction, a Revenue Officer was not justified to sanction the mutations in question merely on the oral statement of late Pir Hameedud-Din as a Mutwalli and Sajjada-Nashin.
15. For the foregoing reasons, we do not find any merit in both the petitions which are dismissed and leave to appeal is refused accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.