ALLAH BAKHSH Versus PROVINCE OF PUNJAB
This judgment will dispose of also Civil Revision No. 2270/D‑85 as both arise from the judgment/decree dated the 11th of June, 1985, of the learned Additional District Judge, Jhang.
2. The dispute relates to Mutawalliship of Darbar Baba Lahori Shah, situated in Chak No. 634/G.B., Shorkot Road, Jhang. The main contenders are Sain Allah Bakhsh and Sain Ishq Ali. Both brought separate suits for declaration of status. Those were consolidated and dismissed by the trial Court. Appeals brought separately also failed. The main finding recorded by the Courts below concurrently was that neither of the petitioners could satisfactorily prove himself to be the Mutawalli.
3. Kh. Habib Ullah for the petitioner Sain Allah Bakhsh assailed these findings pointing out that the documents Exhs. D.I, D.II, D.III and D.IV although referred to in the judgment, were not at all read or discussed. Exhs. D.I to D.III were reports made in Roznamcha Waqiati, whereby the property attached to the Darbar was either taken over from the Mutawalli, in pursuance of Notifications issued by the Auqaf Department, or later on being released by the said Department, was handed back to the Mutawalli or for that matter the Malangs sitting over there. The learned Additional District Judge otherwise discussed the evidence of both the parties in a considerable detail, but did not focus attention on these documents par excellence. These really prove, to a great extent, that the de facto control over the Darbar was of the petitioner Sain Allah Bakhsh. Particularly Exhs. D.II and D.IV lend considerable support to Sain Allah Bakhsh's contention that he was externed from this property, and later was restored the same including the cash chest kept at the Darbar for receiving Nazranas. Ostensibly, therefore, these documents being essentially copies of what may be termed as public record, substantiated the case of Sain Allah Bakhsh.
4. Pir Anwar Rehman, Advocate for the opposite claimant Sain Ishq Ali, however, contended that Roznamcha Waqiati of the Patwari was not a public document, nor a part of the Record of Rights and as such could not be relied upon. He urged that 'as best it was maintained under administrative instructions of the Board of Revenue contained in the Land Records Manual without having the force of law. I have hesitation to agree with him. Section 42 of the Land Revenue Act, 1967, calls for maintaining a Roznamcha in the prescribed manner. Rules 34 and 36 of the Punjab Land Revenue Rules, 1968, framed under the said section prescribe a daily diary to be maintained by the Patwari who under Rule 34(4)(xi) was supposed to enter therein all "orders of Revenue Officers or Kanungos received by the Patwari or executed in the Circle". Further, he is under Rule 36(2) to issue certified copies of such entries. It is pertinent to note that copies Exhs. D.I, D.II and D.III are perfectly admissible under they above‑quoted Rules. They purported to recapitulate various orders received in the Circle for execution. Even if those did not form a part of the Record of Rights, those were admissible under section 42 of the Land Revenue Act, 1967 read with Rules framed thereunder. Being certified copies of public record, those were per se admissible and the contention that the Roznamcha was maintained on the basis of mere instructions from the Board of Revenue did not seem to be correct. It was claimed that the best evidence would have been the orders which were being referred to in these reports and these by themselves did not constitute substantive evidence. The contention has no merit. If the respondent was really sanguine about it, he could have produced those orders in original. A presumption would arise that cross references made to those orders in these reports were correct.
5. Next, counsel argued that the magisterial order Exh. D.IV passed under section 144, Cr.P.C. was not relevant by virtue of the) provisions of sections 41, 42 and 43 of the Evidence Act. This order reveals that the cash chest was delivered back to Sain Allah Bakhsh when the Darbar was restored to him. Apparently this order may not fall under sections 40 and 41 of the Evidence Act, but because it relates to Waqf property, it can reasonably be made to fall under section 42 as well as section 43 of the said Act. Judgments or orders relating to matters of public nature are relevant under section 42 ibid. Even if these are excluded by sections 40 and 41. There is no gainsaying the fact that the Waqif in question was a matter of public nature inasmuch as it was not shown to be private, nor were the contending parties claiming themselves to be descendants of the Waqf, nor had they described at any stage that the Waqf was for the progeny of the dedicator. It, therefore, essentially emerges to be for the public at large and the order was relevant under section 421 ibid. Likewise, it was admissible even under section 43 read with section 8 of the Evidence Act as res gestae. Reliance in this behalf was placed by the learned counsel on Nazir Fatima v. Ghulam Fatima etc. 1987 C L C 2073 and Nur Elahi v. The State etc. P L D 1966 SC 708, but for the reasons discussed above, these authorities may; not be much helpful to him. Lastly, this order was relevant under section 145(6), Cr.P.C. inasmuch as it directed restoration of possession of the Waqf property to Sain Allah Bakhsh. Until it was set aside, it had all the force of deciding a party's right to remain in possession. The respondent Sain Ishq Ali failed to get it set aside. It therefore, helps the petitioner Sain Allah Bakhsh.
6. As a last resort it was urged that the evidence of Sain Ishq Ali particularly the writing Exh. P.1 showing that he had been elected as Mutawalli after the demise of the Waqif was unjustifiably ignored. He stressed that P.Ws. 1 and 2 being its signatories had sufficiently proved it especially when they were not pointedly cross‑examined in relation thereto. Seemingly this evidence was considerably analysed by the Courts below, and its reappraisal may not be allowed in Revision. The lower Court discarded it for sufficient reasons. The omission to discuss the documents D.I to D.IV on the part of the lower appellate Court was conspicuous and amounted to non‑reading of evidence.
7. It was suggested that the case may be remanded directing the lower appellate Court to re‑assess those documents, but this course was opposed with a view to avoid further prolongation of the litigation which was pending since 1975. Counsel claimed that this Court could read the omitted evidence and come to its own conclusion. Section 115, C.P.C., permits so. Since all other evidence of either side was held insufficient, the documents mentioned above in their purport bear out the petitioner Sain Allah Bakhsh in establishing that he was de facto Mutawalli of the Darbar when they all were turned out under a notification issued by the Auqaf Department. The de fact control was again restored to him particularly on the cash chest. This was sufficient indication to corroborate his claim.
8. As a result, the present revision petition is accepted while the other (Civil Revision No. 2270/D‑85) is dismissed. The petitioner) Sain Allah Bakhsh is held to be de facto Mutawalli. Parties are left to bear their own costs.
S.Q./A ‑207 / L Petition accepted