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First Appeal from Order No. 124 of 1961, heard on 24th June 1970.
----O. XLI, r. 11- Appeal‑Points in appeal severable ‑Admission of appeal partly on some items and dismissal on others‑Does not contravene provisions of r. 11, O. XLI, C. P. C.‑[Vattipalle Eswaraiah v. Vattipalle Rameswarayya A I R 1940 Mad. 483 dissented from].
Vattipalle Eswaraiah v. Vattipalle Rameswarayya A I R 1940 Mad. 483 dissented from.
Krishnaji Shrinivas Jalvadi v. Madhusa Appansa Ladaha A I R 1934 Bom. 207; Tukaram v. Radhabhat A I R 1953 Nag. 56 and Muhammad Ali etc. v. Mst. Fateh Bibi etc. A I R 1935 Lah. 34 rel.
O. XL1, rr. 11 & 31 --Appeal ‑Dismissal in limine‑Failure to record reasons for dismissal‑Not an illegality but irregularity‑Division Bench while dismissing appeal partly not indicating reasons for such dismissal‑Judgment of Division Bench, in circumstances, held, not a nullity in law and cannot be bypassed at time of hearing of remaining parts of appeal admitted for hearing.
Ch. Abdul Kabeer v. Mian Abdul Wahid etc. 1968 S C M R 464; Muhammad Khan v. Sher Muhammad Khan etc. P L D 1968 Lah. 45 and Gokal Chand Jan Nath v. Nand Ram Das Atma Ram 66 1 A 12 rel.
----S. 2(d)‑Property purchased and constructed by Saint from own sources‑Evidence as to its becoming wakf by use not sufficient on record‑Such property, held, not wakf in terms of S. 2(d) and explanations there-under hence cannot be acquired under the Ordinance.
Pandit Parma Nand v. Nihal Chand and another A I R 1938 P C 195 ref.
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--- ‑ Certificate of fitness ‑Granted to consider whether in absence of reasons for dismissing a part of appeal, at preliminary hearing, appeal in its entirety could be treated as undisposed of and whether matter disposed of at preliminary hearing could be reagitated at time of full hearing.
Sh. Ghias Muhammad for Appellant.
Gul Muhammad Khan for Respondent.
Dates of hearing: 13th, 14th, 15th May and 24th June 1970.
By Notification No. 3 (262)‑Auqaf‑60 issued on the 24th of October 1960, under section 6 of the West Pakistan Waqf Pro perties Ordinance, 1959 (hereinafter referred to as the Waqf Ordinance), the Chief Administrator of Auqaf, West Pakistan, took over and assumed the administration control, management and maintenance of the Waqf Properties mentioned in the Schedule attached to it. These areas follows:‑
"(1) An area of 7 marlas and 110 sq. ft bearing Khasra No. 4031/2/1 according to Jamabandi Abadi Ward No. 7 Chak Abadi 212/RB, Tehsil and District Lyallpur (1957‑58) containing the said Shrine, 7 rooms, a deuri and a well on the ground floor and Masjid along with 2 rooms on the first floor.
(2) A house bearing Khasra No. 4351/3, measuring 4 marlas and 111 sq. ft. according to Jamabandi Abadi Mohalla Douglas Pura, Chak Abadi 212/RB, Tehsil and District Lyallpur (1957‑58).
(3) Agricultural land measuring 8 kanals, 13 marlas bear ing Khewat No. 64, Khatoni No. 189, Sq. No. 38, Khasra Nos. 3/3 and 4, situated in the Revenue Estate of Gokhuwal Chak No. 121 /GB, Tehsil and District Lyallpur according to Jamabandi 1957‑58.
(4) Income from the box placed at the said Shrine and offer ings and subscriptions made to the said Shrine."
2. Aggrieved by this Notification, the present appellant Dilawar Shah, filed a petition under section 7 of the Waqf Properties Ordinance, 1959, in the Court of the learned District Judge, Lyallpur, on 21‑11‑60. He claimed that the properties mentioned in the Notification were not Waqf properties and his interest therein was not affected. The petition was contested by the Chief Administrator, Auqaf. The learned District Judge framed the following issues:
"(1) Whether the property mentioned in clauses 1, 2, 3 and 4 in para. No. 1 of the petition is not Waqf property
(2) Relief."
The learned District Judge by his judgment passed on 1‑11‑61 held that the property owned by La,uri Shah was Waqf property and accordingly dismissed the petition with costs. Aggrieved by the above judgment Dilawar Shah filed an appeal in this Court which came up for hearing on 19‑1‑62 before a Division Bench of this Court, consisting of Mr. Justice A. S. Faruqi and Mr. Justice Bashiruddin Ahmad. The learned Judges recorded the follow ing order on that date:
"The only question which requires consideration is whether the Douglas Pura House can be said to be a Waqf property within the definition given in the Ordinance.
Admitted on that point alone."
3. When the case came up for final hearing before me, learned counsel for the appellant contended that as no detailed order was written by the admitting Bench which had merely observed that the appeal was admitted as regards the Douglas Pura House‑, the appeal pertaining to the rest of the property must also be deemed to be pending and, therefore, the appeal in its entirety should be treated as undisposed of and accordingly decided.
4. It is, therefore, necessary to decide this issue in the first instance. It is to be noted that the order dated 19‑1‑62 dismissing. the appeal in part, is a judgment passed by the Division Bench arid the submission of the learned counsel for the appellant that I should regard the whole appeal to be pending and liable to be disposed of in its entirety, can only succeed if it is held that the judgment dated 19‑1‑62 so far as it dismisses the claim of the appellant with respect to the other items of property, is a nullity in law.
5. In support of his submission that the judgment of the Division Bench is not in accordance with law Sh. Ghias Mohammad relied upon a Full Bench judgment of the Madras High Court reported in A I R 1940 Mad. 483 wherein the provisions of Order XLI, rule 11, C. P. C. were discussed and it was laid down that by virtue of rule 11 the appellate Court cannot admit the appeal in part only. It was further held that the appellate Court has only two courses open to it, namely, to dismiss or admit the appeal as a whole. On this basis it was argued that the judgment of the Division Bench dismissing the appeal in part and admitting it in part, at the preliminary hearing, was not in accordance with the law and hence the said judgment could be disregarded by me.
6. A difference of opinion exists in the Courts in India on, the question whether the appellate Court is competent to admit an appeal in part only. A Full Bench of the Bombay High Court in a case reported in A I R 1934 Bom. 207 held that if an appeal is severable it is open to the Judge, hearing the appeal under rule 11 to dismiss it in part and admit it in part; just as at the final hearing the Court may dismiss the appeal in part and allow it in part. In the course of the above judgment it was observed that "for instance if an appeal relates to two survey numbers which are held under distinct titles, we do not see any objection to the Court dismissing the appeal is to one of the b survey numbers and directing notice to issue as to the other survey number".
7. These conflicting views held in the two Full Bench judgments were considered by the High Court at Nagpur in a case reported in Tukaram v. Radhabat (A I R 1953 Nag. 56). The learned Judges hearing this case preferred the view taken by the Bombay High Court and did not follow the view expressed by the Madras High Court. They were of the opinion that an appal is the removal of a cause from an inferior Court to the superior Court for the purpose of testing the soundness of the decision of that Court. The decision of the lower Court from which appeal is taken, may be severable regarding the subject‑matter, the parties and the points, involved, or may be unseverable. Where there are distinct subject- matters in the appeal, it is open to the Court to admit a part and dismiss the rest.
8. The view taken by the Lahore High Court is also in line with the view expressed by the Bombay High Court. In Mohammad Ali etc. v. Mst. Fateh Bibi etc. (A I R 1935 Lah. 34) it was held that under Order XLI, rule 11 if the appeal is severable it is open to the Judge to dismiss it in part and admit it in part. Respectfully following the above enunciation of law, I would hold that the order of the learned Division Bench dismissing the claim of the petitioner with respect to all items of properties save the Douglaspura house is not in contravention of the provisions of rule 11 of Order XLI, C. P. C.
9. The next question which arises is whether on account of the failure of the admitting Bench to indicate the reasons for dismissing the appeal in part the said order can be ignored and the appeal treated to be pending in its entirety. In this connection learned counsel for the appellant referred to the judgment of our own Supreme Court reported as Ch Abdul Kabeer v. Mian Abdul Wahid etc. (1968 S C M R 464) which lays down that the provisions of rule 31, Order XLI, C. P. C. apply to summary dismissal of appeal under rule 11 of the said order and the appellate Court is required to indicate the points raised and the reasons for its decision. The same view was also taken by a learned Single Judge of this Court in Mohammad Khan v. Sher Mohammad Khan etc. (P L D 1968 Lah. 45). A perusal of the judgments cited by the learned counsel, however shows that the failure to indicate the reasons while dismissing an appeal in limine has been regarded to be an irregularity and not an illegality. As observed by the Privy Council in Gokal Chand Jan Nath v. Nand Ram Das Atma Ram (66 I A 12) which has been mentioned in the judgment of the Supreme Court, cited by learned counsel for the appellants, "the rule does not say that if its requirements are not fulfilled with the judgment will be a nullity in law". The result is that the judgment of this Court dated 19‑1‑62 dismissing the appeal in part is not a nullity in law and I cannot by‑pass it. The question whether the said decision was a proper judgment or not could only be raised before the higher Court by filing a proper appeal against it. This, the appellant failed to do and he is now precluded from asking a Single Judge to ignore the judg ment of the Division Bench, when that judgment is not a nullity in law.
10. I may here also refer to the submission of the learned counsel for the respondent who besides relying upon the judgments already mentioned in support of his plea, namely, that as the claims in this case were severable the appeal with respect to one item could be admitted but with respect to the others could be rejected, also went on to suggest that it was possible that the learned counsel who appeared for the appellants before the admitting Bench had abandoned the other grounds taken in the appeal and since the claims were severable some of them could be validly rejected as having been abandoned. This is also a possible interpretation.
11. From what has been observed above the conclusion is that the appeal can only be considered to be pending so far as the Douglas Pura House is concerned.
12. It is on the record that the land under the house in Douglas Pura, measuring 4 marlas 111 ft. (Khasra No. 4351/3) was purchased by Sain Lasoori Shah from a non‑Muslim, Jewahar Lal by name, for a consideration of Rs. 2,400. See in this connection Mutation No. Exh. P. 9. It is further in evidence that he got the plan regarding the construction of the house sanctioned from the Municipal Committee and built the house himself vide Exh. P. 6. The learned District Judge held this item of property along with the other items of properties to be Waqf property mainly on the ground that the evidence led by the appellant was discrepant. The discrepancy noticed in respect of this item of property was that Abdur Rahim P. W. testified that the site of the house in Douglas Pura was purchased by the Sain in his presence but in cross‑examination he admitted that he had no knowledge about it. The only other remark in his judgment, pertaining to this item of property, is to the follow ing effect
"In the Douglas pura House the people who came to the shrine are put up."
The learned District Judge appears to have held that the entire property belonging to Sain Lasoori Shah was used by him for religious and charitable purposes and that this inference was supported by the evidence led by the appellant. Hence the pro perty owned by him was Waqf property. The learned District Judge also did not accept the fact that Dilawar Shah appellant had proved himself to be the chaila of Sain Lasoori Shah because no ceremony was performed declaring him as a successor. On this view of the matter he held the petition filed by the appellant under section 7 to be without force and accordingly dismissed.
13. Learned counsel for the appellant argued that the property in question was acquired by the Saint during his lifetime and there was no dedication of the same as Waqf. He further argued that the appellant was shown as successor of the Saint in the revenue records and having regard to the rule of law that Waqf property ceases to be heritable and transferable the fact that Dilawar Shah obtained the property by means of successions, detracted from its Waqf character. He submitted that the devolution of the property in this case from guru to chaila showed that it was not Waqf property. Reference was also made to A I R 1938 P C 195 in this connection.
14. In reply, Mr. Gul Mohammad Khan submitted that all the properties of Sain Lasoori Shah were being used for religious purposes and even though there was no dedication of these properties as Waqf this character could be inferred from the general nature of things and that in any case the properties were Waqf by user. It was submitted that the house in Douglas Pura had also been dedicated by Sain Lasoori Shah for religious pur poses for which he had dedicated his entire life.
15. I consider that the evidence on the record is too meagre indeed wholly insufficient to pursuade me to hold that the house in Douglas Pura was a Waqf property. As already stated above, the land underneath the house was purchased by the Sain from a non‑Muslim, from his own resources. He built a house upon it by himself, again from his private funds and used the house as his personal property. Admittedly there is no evidence of dedication of this property as a Waqf property nor is there any strong evidence that it was being used for religious and charitable purposes. The evidence to the effect that the murids of the Sain also used to stay in this house is too slender to form the basis of a finding that the Douglas Pura House was also a Waqf property.
16. The definition of Waqf property given in section 2 (d) of the Ordinance reads as follows:-
"(d) Waqf property' means property of any kind perma nently dedicated by a person professing Islam for any purpose recognised by Islam as religious, pious or charitable, but does not include property of any Waqf such as is described in section 3 of the Mussalman Waqf Validating Act, 1913, under which any benefit is for the time being claimable for himself by the person by whom the Waqf was created or by any member of his family or descendants.
Explanation 1.‑If a property has been used from time immemorial for any purpose recognised by Islam as religious, pious or charitable, then in spite of there being no evidence of express dedication, such property shall be deemed to be Waqf.
Explanation 2.‑Property allotted in lieu or in exchange of Waqi property left in India shall be deemed to be Waqf property.
Explanation 3.‑Property of any kind acquired with the sale proceeds or in exchange of or from the income arising out of Waqf property shall be deemed to be Waqf property.
Explanation 4. ‑The income from boxes placed at a shrine and offerings or subscriptions for charitable purposes shall be deemed to be Waqf property.
Explanation 5.‑Relief of the poor, education, worship, medical relief, maintenance of shrines or the advancement of any other object of charitable religious or pious nature or of general public utility shall be deemed to be charitable purposes."
The evidence on the record relating to the item of property in question is not sufficient upon which a finding can be recorded that the house in question had become Waqf by user. Therefore, the house is not Waqf property within the meaning of clause (d) of section 2 nor do the facts brought out in the evidence show that any of the five explanations attached to the definition are attracted. Consequently I hold that the house bearing Khasra No. 4351/3 measuring 4 marlas 111 sq. ft. situate in Abadi Mohallah Douglas Pura. Chak Abadi 212/RB, Tehsil and District Lyallpur, is not a Waqf property and, therefore, could not be acquired under the Waqf Ordinance. The appeal succeeds and is accepted to the extent indicated above with no order as to costs. As already noted above the appeal stands dismissed so far as items Nos. 1, 3 and 4 contained in the Schedule attached to the Notifi cation of acquisition.
17. Sh. Ghias Mohammad prayed that the case should be certified as fit for appeal. A certificate of fitness is granted for consideration of the question, namely, whether in the absence of an order giving the reasons for dismissing a part of the appeal, at the preliminary hearing, the appeal can be treated to be undisposed of in its entirety and whether the matters disposed of by the order passed at the preliminary hearing can still be re‑agitated at the time of the full heating of the other questions.
A. E. Appeal partly accepted.
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