KHADAM HUSSAIN AND 3 Others vs ATA MUHAMMAD AND 7 Other
This matter came before the Supreme Court of Pakistan as a petition for special leave to appeal against an order of the High Court of West Pakistan. The petitioners challenged the jurisdiction of civil courts, raising two primary legal questions: first, whether Section 92 of the Code of Civil Procedure 1908 was attracted, thereby barring the suit regarding the management of a graveyard; and second, whether Section 36 of the Colonization of Government Lands (Punjab) Act 1912 ousted the jurisdiction of civil courts where proprietary rights had been acquired. The Supreme Court rejected both contentions. It held that because the petitioners claimed the land as private property rather than acting as Mutawallis, Section 92 of the Code of Civil Procedure 1908 was inapplicable. Furthermore, the Court determined that Section 36 of the Colonization of Government Lands (Punjab) Act 1912 did not bar the suit because the grant of proprietary rights was predicated on the land being private property. The Court affirmed that if land is dedicated to charitable or religious purposes, the grant of proprietary rights is legally invalid and subject to civil court jurisdiction.
- Does Section 92 of the Code of Civil Procedure 1908 apply to a suit where the defendants do not claim to act as Mutawallis of a graveyard?
- Does Section 36 of the Colonization of Government Lands (Punjab) Act 1912 bar civil court jurisdiction when proprietary rights were granted based on the premise of private ownership?
- Is a grant of proprietary rights over land dedicated to charitable or religious purposes amenable to the jurisdiction of civil courts?
- Section 92, Code of Civil Procedure 1908
- Section 36, Colonization of Government Lands (Punjab) Act 1912
ORDER
1. MUHAMMAD YAQUB ALI, J.-In support of this petition for special leave to appeal from the order of the High Court of West Pakistan the learned counsel contends :-
(i) section 92, C. P. C. Was attracted in the case as it was averred in the plaint that the petitioners had unauthorized assumed management of there graveyard; and
(ii) section 36 of the Colonization of Government Lands (Punjab) Act, 1912, was a bar to the jurisdiction of the civil Courts to entertain the suit in so far as proprietary under the Act had been acquired by the petitioners.
2. There is no force in either of the contentions. The petitioners claimed that the land in dispute was their private property and they did not claim to manage it as Mutawallis. A suit for declaring the waqf nature of the property was accordingly maintainable without attracting the bar of section 92, C. P. C.
3. Section 36 of the Colonization of Government Lands (Punjab) Act also did not apply inasmuch as the grant of proprietary rights to the petitioners was on the basis of the land being private property.
4. Consequently if the land was attached to the graveyard and dedicated to a charitable and religious purpose the order granting proprietary rights to the petitioners was bad in law and amenable, to the jurisdiction of the Civil Courts.
5. The petition is accordingly without force and dismissed hereby.
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