IN THE HIGH COURT OF SINDH, CIRCUIT COURT, LARKANA
Civil Revision Appl.No.S-09 of 2016
Applicant: Ashfaque Hussain s/o Late Ali Gohar Khan Lahori,
Through Mr.Abdul Rehman Bhutto, Advocate.
Respondents: 1. Lal Bux s/o Ali Nawaz Soomro,
2. Muzafar Ali Shah s/o Ali Shah,
3. Kashif Hussain s/o Talib Hussain,
4. Zameer Hussain s/o Muhammad Saleh Soomro,
Through, Mr.Noushad Ali Taggar, Advocate
The respondents No.5 to 8, Through,
Mr.Abdul Hamid Bhurgri, Addl. Advocate General
Date of hearing: 16.04.2018.
Date of Order: 21.05.2018.
O R D E R
AMJAD ALI SAHITO, J.- The instant revision application has been directed against order 17.02.2016 passed by learned 5th Additional District Judge, Larkana, in Civil Misc.Application No.01/2013(Re.Ashfaq Hussain vs. Lal Bux and others), whereby he rejected his said application.
2. The facts, in brief necessary for disposal of instant revision application, are that the applicant is son/legal heir of late Ali Gohar Khan Lahori, who expired on 10.09.2001, and he owned/possessed the property bearing C.S.No.278, 141 and 70 in Ward-A, Larkana, on which he got constructed a Masjid, he also owned property in C.S.No.277 and 122, in Ward/Turner-A, Larkana, which was reserved for the purpose of graveyard. The said properties were reserved by father of the applicant being “Waqf” Properties for Masjid and graveyard and C.S.No.114, Ward-C, Larkana, which being open space was called as Hussain-Jo-Pirr(worship place). Per applicant, he was residing with late Ali Gohar Khan Lahori and was appointed as “Mutawali” of above said Waqf property and such entry was also made in the city survey record, Larkana. According to the applicant, after the death of his father late Ali Gohar Khan Lahori, the respondents No.1 to 4 illegally, unlawfully and without any lawful authority occupied the above mentioned Waqf properties. The claim of the applicant was that the respondents No.1 to 4 are neither sons nor legal heirs of late Ali Gohar Khan, in any way, hence they have no right or title to claim as caretaker of the property of late Ali Gohar Khan. The applicant then filed Civil Misc.Application before learned trial Court praying therein that he may be appointed as Mutawali of the properties, as detailed above, with a power to look-after and manage the said properties being real son of previous Mutawali and the owner namely late Ali Gohar Khan Lahori with further prayer to direct respondents No.5 and 6 to incorporate the entry in the name of applicant in the city survey record in respect of above mentioned Waqf properties.
3. The respondents No.1 to 4 put their appearance in pursuance of notices issued against them and filed their para-wise comments through their counsel. Thereafter, the learned trial Court, after hearing the counsels for the parties, dismissed the application of applicant vide order dated 17.02.2016, which the applicant has impugned before this Court by way of filing instant civil revision application.
4. The learned counsel for the applicant argued that the respondents No.1 to 4 have occupied the property in question with malafide intention and ulterior motives having no legal right, title or ownership with father of the applicant; that it is matter of record that the respondents are strangers and they intend to sell the property in question for their personal gain; that the respondents have no documentary proof regarding their claim of Mutawali-ship upon the disputed land, on the other hand, the applicant is son of original owner of the property and he has no adverse interest of the disputed land to be used for his personal gain; that the title and ownership of father of applicant is crystal clear from the city survey extract and the same was transferred for Masjid, graveyard and Dargah of Mehar Shah Bukhari in the capacity of Mutawali and father of applicant was a religious person and he created Waqf of premises of general public, not for gain of particular group of person but the respondents are falsely claiming that the property in question was gifted by K.B. Siraj Haji Amir Ali Khan but the name clearly mentioned in city survey extract form is Ali Gohar K.B Siraj Haji Amir Ali Khan; that the trial Court has committed irregularity and has not properly framed issue on the point that who is to be appointed as Mutawali, as according to the record no Mutawali was appointed by the competent Court of law under the Sindh Waqf Property Ordinance. He lastly prayed that the applicant may be appointed as Mutawali according to Muhammaden Law u/s.203 & 204.
5. Conversely, the learned counsel for the respondents No.1 to 4 contended that the learned trial Court after going through the entire material brought on the record has rightly dismissed the application of applicant, as the applicant has no right to be appointed as Mutawali in the suit property; that the respondents No.1 to 4 have no concern with city survey No.278, 141, 70 and 277 but the dispute is over C.S.No.114 and 122; that the applicant is not sole owner of the said property but he has also three sisters who are also entitled for their share; that the applicant’s father was not only owner of Waqf property but his father Khan Bahadur Amir Ali Khan was also co-sharer and founder of Mutawali of the property in question and since 1996, son of Nawab Amir Ali Khan Lahori namely Nawabzada Qalab Hussain Lahori was Mutawali; that at the time of death, late Ali Gohar Khan was neither Mutawali nor he left such will that his son or any daughter may be appointed as Mutawali. He lastly prayed for dismissal of the instant application.
6. Learned Additional Advocate General representing the respondents No.5 to 8 contended that the said property is not a Waqf property and mandatory requirements provided in Section 92 of Civil Procedure Code have not been fulfilled and that the suit is barred by law and liable to be dismissed as in his view, Section 92 of Civil Procedure Code provides that where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate General, may institute a suit. Here neither the applicant nor respondents have obtained the consent in writing from the Advocate General nor produced any such Waqf Register Deed to believe that the said property was/is registered as Waqf property under Sindh Waqf Property Ordinance, 1979. He lastly prayed for dismissal of instant revision application.
7. I have minutely gone through the submissions made by learned counsel for the parties and have perused the entire material brought on record.
8. During course of arguments both the counsels are agreed that the property in question (Waqf property) was not registered under Sindh Waqf Property Ordinance, 1979. In this context, it is appropriate to reproduce the relevant section hereunder;
6. Registration of Waqf Property.---Every person incharge of or exercising control over the management of, any Waqf property, and every person creating Waqf after the commencement of this ordinance, shall get such Waqf property registered in such manner, within such time, and with such authority as may be prescribed.
9. From the perusal of above referred section, it appears that after creating Waqf property, such Waqf property shall be registered under Sindh Waqf Property Ordinance, 1979 by every person acting as incharge or exercising control over management of any Waqf property which would also include the person, creating the Waqf however, a failure shall not debar the Chief Administrator from taking over such property by way of Notification so it appears from the provision of Section 7 of the Ordinance which reads as:-
“7. Chief Administrator may take over Waqf property by notification. ---(1) Notwithstanding anything to the contrary contained in section 22 of the Religious Endowments Act,1863 (XX of 1863), or any other law for the time being in force, or in any custom or usage, or in any decree, judgment or order of any Court or other authority, or in any proceedings pending before any Court or other authority, the Chief Administrator may, by notification, take over and assume the administrative control, management and maintenance of a Waqf property.
Thus, it could safely be concluded that mere failure of a person, detailed in Section 6 of the Ordinance, in complying with provision of Section 6 of the Ordinance, there would be no prejudice to status of a Waqf property because such, per section 2(e) of the Ordinance, is not subject to any condition but that:
“2(e) “Waqf Property” means property of any kind permanently dedicated by a person professing Islam for any purpose recognized by Islam as religious, pious or charitable, but does not include property of any Waqf such as is described section 3 of the Mussalman Waqf Validating Act, 1913 (VI of 1913), under which any benefit is for the time being claimable for himself by himself by the person by whom the Waqf was created or by any member of his family or descendants.”
10. In this context, no documentary proof has been produced by the parties that the Waqf property was registered under Sindh Waqf Property Ordinance, 1979. I would further add that since the status of Sindh Waqf Properties Ordinance, 1979 as special enactment cannot be denied therefore, only those powers could be exercised by the Court, established through such legislation, which it (legislation) provides. On chest of the Ordinance, the relevant provision, giving jurisdiction to District Court, is Section-11 which reads as:-
“11. Petition to District Court against notification.—(1) Any person claiming any interest in any Waqf property in respect of which a notification has been issued under Section 7 may, within thirty days of the publication of such notification petition the District Court within whose jurisdiction the Waqf property or any part thereof is situated for a declaration:-
a) that the property is not Waqf property;
b) that the property is Waqf property within the limits stated in the petition;
11. From above narrative, it is quite evident that this provision would be available only if the notification under section 7 has been issued which too would be for relief (s) defined therein i.e declaration as defined in “section-11(1) (a) & (b). Since, in the instant matter, though the status of the property to be Waqf property is not disputed, yet it is also undisputed position that no notification under section 7 of the Ordinance has been issued nor the control and management of the property in question has been taken over by the Chief Administrator or Auqaf department. Thus, I would conclude that petition under section 11 of the Ordinance was never competent/maintainable particularly when the relief, sought therein, was in respect of appointment of applicant/ petitioner as Mutawali according to Muhammaden Law under section (s) 203 & 204.
12. Further, the next contention of learned counsel for the applicant that he may be appointed as Mutawali of the said Waqf property and official respondents may be directed to incorporate such entry in his name in city survey record in respect of said Waqf property is self sufficient to bring the matter out of jurisdiction of the Court, constituted under Section 11 of the Ordinance. However, it is appropriate to reproduce Section 202 and 203 of Muhammaden Law.
202. Mutawali.---Under the Muhammaden Law the moment a Waqf is created all rights of property pass out of the Waqf and vest in the Almighty. The Mutawali has no right in the property belongs to the Waqf; the property is not vested in him, and he is not a trustee in the technical sense. He is merely a superintendent or manager. The admissions of the Mutawali about the nature of the trust are not binding on his successors.
203. Who may be appointed Mutawali.---(1) Subject to the provision of subsection (2) the founder of a Waqf may appoint himself, or his children and descendants, or any other person, even a female, or a non-Muhammaden to be Mutawali of Waqf property. But where the Mutawali has to perform religious duties or spiritual functions which cannot be performed by a female, e.g the duties of a Sajjadanashin (spirituals superior) [section 220] or Khatib(one who reads sermons), or Mujawar of a Dargah or an Imam in a Mosque(whose function it is to lead the congregation), a female is not competent to hold the office of Mutawali, and cannot be appointed as such. Similar remarks apply to non-Muhammadens. The duties of a manager of a graveyard are secular and can be performed by a female.
(2) Neither a minor nor a person of unsound mind can be appointed Mutawali. But where the office of Mutawali is hereditary and the person entitled to succeed to the office is a minor, or where the mode of succession to the office is defined in the deed of Waqf the person entitled to succeed to the office on the death of the fist or other Mutawali to act in his place during his minority.
13. It becomes quite obvious from above that the moment the Waqf is created the ownership stands vests in Allah almighty and the Waqf only possesses the right to keep superintendence thereof with him or to any other person (section 203). If there comes any dispute in respect of affairs of such Waqf property excluding those defined by Section 11(1)(a)&(b) of Ordinance, the remedy would be available before the Civil Court which would also be subject to condition, as defined by Section 92 of the Code (CPC). The position, being so, shall stand evident from referral to section 92 of the Code, which is reproduced hereunder;-
92. Public charities.-(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate General, may institute a suit, whether contentious or not in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the [Provincial Government] within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree-
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust-property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorizing the whole or any part of the trust-property to be let, sold, mortgaged or exchanged.
(g) settling a scheme, or
(h) granting such further or other relief as the nature of the case may require.
(2) Save as provided by the Religious Endowment Act, 1863, no suit claiming any of the reliefs specified in sub-section(1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section
14. The perusal of Section 92 of Civil Procedure Code clearly reflects that before filing the suit in this regard, the Advocate General or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate General may institute a suit, in such situation.
15. Admittedly, the applicant is seeking his appointment as a Mutawali on the Waqf properties so also seeking direction for incorporating the entry in his name in city survey record therefore, such relief (s) would squarely fall within relief(s) included in the Section 92 of the Code. Whenever, the relief (s), sought, are prima facie falling within meaning of Section 92 of the Code the aggrieved shall have the remedy of ‘instituting a suit’ before Civil Court and any attempt with reference to Ordinance would be misconceived. I may add here that if everybody is allowed to litigate the matter then there will be no end of litigation and everybody interested therein would like to built his case according to his own interest and preferences, and in case of trust property, infringement of any exclusive right or an individual is not comprehendible and such properties are for the benefit and use of public at large or for particular community as whole. That is why as suit for protection of such property has been conditioned with the prior approval of the Advocate General. In the instant case, no prior approval of Advocate General has been sought which even otherwise would have been of no help for the applicant/ petitioner to maintain a petition under section 11 of the Ordinance.
16. Though not necessary yet it may well be said with regard to another contention of the learned counsel for the applicant that the property was donated by late father of the applicant for Masjid, Mukaam and Hussain-Jo-Pirr. Such contention at the most could be helpful in examining the status of property to be Waqf or otherwise which, in instant case is not a matter of dispute. However, it is clarified that once a property is donated or dedicated for religious or charitable purpose, the ownership of the private person extinguish at the moment and he has no right upon such dedicated or donated properties. The property was donated for Masjid, and Masjid comes in the ownership of “Almighty Allah”, no person has right to claim the ownership of Masjid and other charitable property. In this context, the reliance is placed upon case of Muhammad Ramzan vs. The State(2013 SCMR-737). So also the reliance is placed upon case of Zahid Farooq and others vs. AnjumanJamia Masjid and four others (1995 SCMR-1584), wherein the Honourable Supreme Court of Pakistan has held that;
11. “It is a piece of substantive Muhammaden Law that a Mutawali whether the Waqf be a public or a private one cannot, practically speaking, transfer(Waqf) property without the sanction of the Qazi” It was held also that “in the present day, the Mutawali has to go to a Civil Court to obtain le the sanction”.
12. This rule of ‘Islamic Law’ is of great antiquity and, as we shall venture to show it stems directly from the consequences of the creation of Waqf and can be supported on first principles as also on the authority of ‘the Holy Quran’.
13. The effect of a consecration or Waqf of a property by its owner is to extinguish absolutely and forever all his rights therein. The act of consecration, which is irrevocable in its character, transfer the property for ever into the legal ownership of the Almighty Allah for the benefit of, His creatures. On general principle, only the person in whom the ownership of the property vests can lawfully deal with it. And, as the Waqf property vests in the Almighty Allah, He alone can deal with it. It follows logically that the Mutawali, whose status, in relation to the Waqf property is no more than that of manager or superintendent, even though he be the Waqf, cannot in any way deal with it. But the Almighty Allah may, like any other owner, deal with the Waqf property through His delegates.
Even this contention does not help the applicant in advancing his case whereby dismissal of his application by District Judge has been questioned. However, I would refrain myself from making any comments on to the position of the record, as it may prejudice the case, if any party, having complying with section 92 of the Code files a civil suit.
17. From the above discussion, I feel that having regard to the substance of the case pleaded in the application, the suit was of the nature as contemplated in Section 92, Civil Procedure Code and therefore, it was not competent without the requisite prior sanction of the Advocate General. Thus, the learned trial Court has rightly dismissed the application filed by the applicant by recording cogent reason, which does not call for any interference by this Court. Consequently, the instant civil revision application merits no consideration and is dismissed accordingly.
J U D G E.