CHIEF ADMINISTRATOR OF AUQAF Versus ILARN DIN

1. The appellant issued a Gazette Notification under No. 3/(213) Auqaf‑60, dated 22‑9‑1960 in the Extraordinary Gazette of West Pakistan. By this notification, he directed the taking over of a house bearing property No. S‑8‑115‑S‑11, situated at Mohallah Chah Pichwara, Mozang, Lahore and bearing Khasra No. 3435. The action was taken by the Administrator of Auqaf. West Pakistan, Lahore under the West Pakistan Waqf Properties Ordinance, 1959.

2. Aggrieved by this notification. Ilam Din son of Rahim Bakhsh, now respondent, moved the District Judge, Lahore under section 7 of the aforesaid Ordinance alleging that he was the owner of the property which was neither waqf nor was it attached to the Darbar Hazrat Sakhi Abdul Wahab Sabib, Lytton Road, Mozang, Lahore. He challenged the taking over of the property by the appellant and prayed that the notification be set aside and that he be declared as the absolute and full owner of the property.

3. The Chief Administrator of Auqaf resisted the claim and the learned District Judge framed the following two Issues:‑

(1) Whether the property in dispute is not waqf property?

(2) Relief.

4. By his order dated 27‑5‑1963 he found issue No. 1 in favour of the present respondent and, therefore, granted the declaration prayed for. The Chief Administrator of Auqaf has filed this appeal under section 8 of the West Pakistan Waqf Properties Ordinance (XXVIII) of 1961. The grounds of attack are as follows:‑

(a) There is no issue of adverse possession. Property belonging to a waqf cannot be adversely possessed. In any case, the present respondent was a Matwalli and he could not hold adversely to the Darbar; and

(b) The property is attached to the shrine and there being no registered sale deed or entry in the revenue record in favour of the present respondent, the question of adverse possession or ownership does not arise.

5. (A): The issue framed, by the learned District Judge, has the widest possible ambit and for the purpose of determining whether the property in dispute is not waqf property a claim of adverse possession of the same has also to be adjudicated upon. There is, therefore, no substance in the argument. Learned counsel for the appellant referred to Mst. Namet Bi and others v. Jahan Khan and others (A I R 1956 Lah. 282), where it was held that‑

6. " No doubt declaration of title may be given on proof of 12 years' adverse possession but in accordance with a Division Bench authority of this. Court Shrimoni Gurdwara Parbandhak Committee and another . Prem Das and another I L R 13 Lah. 677 such a declaration cannot be given unless a title based upon adverse possession has been distinctly set up in the plaint and raised In the Issues."

7. This pronouncement of the High Court is not applicable to the facts of the case before me. In that case, the issue was sought to be raised in the second appeal for the first time. That is not the case here. Tat: judgment of the learned District Judge clearly shows that he was not only seized of that matter but the parties were fully aware of it and had dealt with it with the result that he has referred to it fn his judgment and has given a finding on It.

8. (B): No documentary evidence was produced by the appellant to show that the property was at any time after the year 1917 in the possession of the Trust or was ever attached to the shrine. Muhammad Shafi Patwari appeared as P. W. 1 and stated that Ilarn Din had been shown in cultivating possession of Khasra No. 3435 since 1923. In the column of owner 'Darbar Hazrat Sakhi Abdul Wahab' is entered. In the column of 'lagan' Ilam Din is mentioned as in possession of the property bila lagan bawaja bey.

9. Ali Muhammad (P. W. 3) of the Assessment Branch of the Municipal Committee, Lahore, stated on the basis of assessment register that the owner of property No. S‑VIII‑115‑S‑11 was shown In It as Ilam Din.

10. Qamaruz Zaman (P. W. 4) Record‑keeper of the Corporation , proved that Exhs. P. 4 and P. 5 were plans of the property in dispute sanctioned in 1917 and 1921. They were sanctioned In the name of Ilam Din. In cross‑examination he admitted that the Patwari of the Corporation had duly certified that Ilam Din was owner of the site.

11. Ilarn Din appeared as P. W.

5. He proved that he had built the house In dispute 45‑46 years ago. He also produced Exhs. P. 6 and P. 7 whereby he bad mortgaged the house twice. He claimed that he had been living in the house always as owner and had never paid any rent. In cross‑examination he revealed that the land on which the house was built was originally in possession of one Pandit Hari Ram who was also its owner and that the witness purchased it from him for Rs. 550. No sale deed was registered.

12. As against that the Chief Administrator produced Taj Din a resident of the locality who stated that Ilam Din was Mutwali of the Darbar. He, however, had to admit that the house was built before he reached the age of discretion and that Ilam Din had been appointed a Mutwalli also before that.

13. Ghulam Hussain appeared as R. W.

2. He claimed to have been appointed Imam of the Mosque by Ilam Din. Now he is getting salary from the Auqaf Department. He also admitted that the house had been built long before he became the Imam of the mosque. The Chief Administrator produced Exh. P. 1 which is a khasra Imard of the locality for the year 1957‑58. No doubt this also shows that Ilam Din is in possession of Ma lagan bawaja bey. It does not therefore. Improve the position of the Trust. All these documents and the evidence produced by the appellant show that he has been in possession of the pro perty in dispute bila lagan bewaja bey at least since 1923. It also shows that the house in dispute was built by the appellant himself and not by the Trust. The evidence produced by the Chief Administrator is of no consequence. R. W. I has not shown how he has come to know that Ilam Din is a Mutwalli of the trust. The second witness is in the pay of the Auqaf Department and his retention in service depends upon his making the statement in favour of his employer. The learned District Judge has, therefore, rightly discarded their evidence.

14. It was sought to be submitted before me that Ilam Din was tenant‑at‑will and could, therefore, not claim adverse possession. Three rulings were cited before me to prove this proposition of law but they are not applicable to the present case at all because here the record does not show that Ilam Din was a tenant‑at‑will. On the other hand, it shows that he was in possession bila lagan bawaja bey which has always been construed as holding adversely to the owner.

15. The finding of the learned District Judge on the appellant being either an owner or at least in adverse possession is, there fore, supported by the evidence before him. No evidence worth the name is on the record which could prove that Ilam Din was a Mutwalli and, therefore, even that does not stand In his way of adversely possessing the land.

16. The learned District Judge has rightly relied upon the Masjid Shahid Ganj and others v. Shiromani Gurdwara Parbandhak Committee, Amritsar and another (A I R 1940 P C 116) at p. 120:‑

17. "But nothing of the sort was done so far as regards the property now in dispute. There is nothing in the Punjab Laws Act or in any other Act authorising the British Indian Courts to uproot titles acquired prior to the annexation by applying to them a law which did not then obtain as the law of the land. There is every presumption In favour of the proposition that a change of sovereignty would not affect private rights to property."

18. In the result the appeal is dismissed with costs.

19. S. A. H. Appeal dismissed.