1. The facts giving rise to this second appeal are that Ghulam Haider owned built-up property comprising houses and shops in Peshawar Cantt. And Peshawar City. Except one house situated in Mohallah Mullah Fasih, Peshawar City which he transferred to his wife, Mst. Lahoran, as full owner, he dedicated the rest of his property in the name of God, vide registered will-deed (Exh. P. W. 1/4).
2. Ghulam Haidar died issueless. Upon his death, the Auqaf Department issued Notification No. 209- 210/Cl dated 6-3-50 by which it took into possession the property of Ghulam Haidar (Exh. P.. W. 1/1).
3. Thereafter, the Auqaf Department issued another Notification No. HG-4-6/58, dated 14-2-59 (Exh. P.
4. W. 1/2) by which the remaining property of Ghulam Haider which had been left out from the first mentioned. Notification was also taken into possession. This latter. Notification included House No. 1230, situated in Mohallah Qasaban, Peshawar Cantt, which is the subject-matter of the present proceedings. Me. Nojab Begum appellant herein dealt with this very house as its owner.
5. Respondent Khuda Bakhsh was living in the said house on payment of rent to Mst. Najab Begum appellant. She instituted eviction proceedings against Khuda Bakhsh in the Court of Rent Controller in which she succeeded. Upon this, Khuda Bakhsh became a tenant of the Auqaf Department, as it had acquired the suit house, per Notification No. HG-4-55/58. Notwithstanding this position, however, the Auqaf Department instituted a declaratory suit to the effect that the suit house is Waqf property and the above said order of Rent Controller in favour of Mst. Najab Begum has no basis in law, as she is in no way the owner of the suit house. Mst. Najab Begum contested the suit and in her written-statement she claimed to be the owner of the suit house and that the will-deed (Exh. P. W. 1 /4) was illegal and thus the above-mentioned notification by which the plaintiff/Auqaf Department has acquired the suit house is a nullity in the eye of law. The parties produced evidence in support of their respective claims. Preferring the evidence of the plaintiff/Auqaf Department, the learned trial Judge decreed the suit in its favour, vide his judgment dated 22-6-
68. Feeling aggrieved of this judgment, Mst. Najab Begum preferred appeal before the learned Add]. District Judge who allowed the appeal and dismissed the suit of the plaintiff/Auqaf Department, vide his judgment dated Ist April, 1959 impugned in the present second appeal.
6. I have heard the learned counsel for the parties and perused the record. In so far as the legality of the will-deed (Exh. P. W. 1/4) is concerned, nothing can be said against it. In the will-deed it is clearly mentioned that Ghulam Haidar owns two houses in Mohallah Qasaban adjacent to each other. In Notification No. HG-4-6/58 dated 14-2-59 (Exh. P. W. 1/2) these two houses have been shown bearing Nos. 1230 and 1231. According to partitioned (Exh. D. X.), partition took place with respect to these two houses between appellant Mst. Najab Begum and her sister Mst. Miraj Begum in consequence of which the suit House No. 1230 came to the share of the former while House No. 1231 to the share of the latter. Now Mst. Miraj Begum, the sister of appellant, has not questioned by way of any proceedings that House No. 1231 belongs to her. We are, therefore, satisfied that the suit house belonged to late Ghulam Haider. For if this was not the position. Mst. Miraj Begum would have gone into litigation with the Auqaf Department to establish her claim regarding her ownership of house No. 1231. She had taken no such step from which it can be conveniently concluded that House No. 1231 as well as the Suit House No. 1230 both belonged to Ghulam Haider and the Auqaf Department has rightly acquired them as Waqf property. The learned Addl. District Judge, therefore, seems to have drawn a conjecturous conclusion that the suit house is not a Waqf property, for .Ft: Najab Begum was unable to lead any evidence to the effect that the suit house was either her ancestral property or she had purchased it from Ghulam Haider.
7. The learned counsel for the appellant contended that according to sec--tion 185 of the Muhammadan Law Ghulam Haider could not dedicate more than 1/3rd of property without the consent of his legal heirs. There is no dispute with this proposition. But the difficulty in the way of the learned counsel, however, is that Mst. Najab Begum appellant herein has not been able to prove her relationship with Ghulam Haider. In this respect, Mst. Najab Begum appellant produced at the trial Muhammad Yasin (D. W-3) in support of the fact that Haji Ghulam Haidar was related to her.
8. Now this witness is the husband of Mst. Najab Begum and hence interested person. Unless, therefore, Mst. Najab Begum is able to prove her relation ship with Ghulam Haidar by independent evidence of unimpeachable character or evidence aliunde, the mere evidence of Muhammad Yasin does not inspire confidence in the circumstances of the case. Even a look at the evidence of Muhammad Yasin will show that he is not a witness of credit. In his examination-in-chief, he deposed that "Haji Ghulam Haider deceased was the real uncle of my father-in-law, as Said Muhammad, father of my father-in-law Muhammad Bakhsh was the real brother of Haji Ghulam Haider". Curious--ly, however, in cross-examination he forgot what he stated in examination --in- chief. In cross-examination, he stated thatalso do not know whether Said Muhammad father of Muhammad Bakhsh, my father-in-law, was related to Haji Ghulam Haider or not". This being his evidence, it would be obvious that Mst. Najab Begum has been unable to prove her relationship with Haji Ghulam Haider. It may be observed that Haji Ghulam Haider left/,, behind property worth lacs of rupees. If really she was related to. Haji Ghulam Haider, she would have soon after his death, taken steps for securing her Shari share in the property of Haji Ghulam Haider. She had done no such thing and thus in the circumstances of the case, she cannot be said to have been related to Haji Ghulam Haider. If in a case of this nature, a person died issueless and thereafter some persons come forward claiming that they are related to the deceased and hence entitled to their Shari share in the property of the dethe first and primary duty of the Court to see would be whether they are in possession of authentic documentary proof in support of their claims or the evidence led by them is such that it carries gospel truth and cannot be termed interested, mala fide or partisan.
9. The Court must be vigilant in scanning the evidence with abundant care in this manner and should not repose confidence in the evidence of the claimants lightly. In the present case, Mst. Najab Begum has not been able to satisfy this criteria and thus her claim that she was related to Ghulam Haidar deceased has no legs to stand upon.
10. In view of this discussion, this appeal succeeds. Consequently, setting aside the judgment of the learned Add]. District Judge, I restore that of the learned trial 'Judge. Under the circumstances, however, there would be no order as to costs.