Govt Boys High School etc. vs Sardar Farooq Ahmad Khan Laghari etc.

Stereo.HCJDA 38.

Judgment Sheet

IN THE LAHORE HIGH COURT,

MULTAN BENCH, MULTAN

JUDICIAL DEPARTMENT

Civil Revision No.482 of 2017.

Government Boys City High School Jampur, etc.

Versus

Sardar Farooq Ahmad Khan Laghari (deceased) through LRs, etc.

J U D G M E N T.

Date of hearing: 09.03.2026.

Petitioners by: M/s Mahar Irshad Ahmad Arain and Nasir Hussain Balouch, Advocates.

Kanwar Sajid Ali, Assistant Advocate General, Punjab.

Respondents by: M/s Anwar Mubeen Ansari, Fayyaz Hussain Laghari, Muhammad Ameer Amjad Khan Pitafi, Advocates.

AHMAD NADEEM ARSHAD, J. Through this Civil

Revision filed u/s 115 of Code of Civil Procedure, 1908, the petitioners have called into question validity and legality of order dated 10.01.2017 pursuant whereto their application for setting-aside judgment and decree dated 28.02.1996 passed in Civil Suit No.39/1991 titled as "Sardar Farooq Ahmad Khan Laghari, etc. V.

Ghazali Raheem Khan, etc." was dismissed.

2.Tersely, the facts forming background of the proceedings in hand are that respondents No.1 and 2 instituted a suit for declaration,

rendition of accounts, etc. against the respondents No.3 to 20 by contending therein that they are the descendants (grandsons) of the Waqif, namely Nawab Sardar Muhammad Jamal Khan, who was a pious and religious person, Chief and Tuman-dar of the Laghari Tribe, and was deeply committed to the welfare of the Muslim community.

With the said object, he dedicated his property measuring 84 Kanals & 12 Marlas situated in Mouza Basti Rindan, Tehsil Jampur, District Rajanpur, for Islamic purposes, including establishment of a school, boarding house, and other religious uses; that the said dedication was duly recorded through Mutation No.328 dated 10.04.1923, wherein the terms and conditions of the Waqf were incorporated, to the effect that the property and its produce shall always be utilized for Islamic purposes; that a Mutawalli shall manage the same; that the Mutawalli shall not have the power to sell, mortgage, gift, or otherwise alienate the Waqf property; and that after the death of the Mutawalli, the Waqif or his successors shall appoint a new Mutawalli; that initially, Sardar Ahmad Khan Patafi was appointed as the first Mutawalli by the Waqif, who was entrusted with the administration of the Waqf property in accordance with the terms of the Waqf; that subsequently, the said Mutawalli, Ahmad Khan Patafi, also dedicated certain of his own land measuring 73 Kanals & 16 Marlas for the same Islamic purposes through Mutation No.925 dated 22.05.1933, thereby merging the income and management of both Waqf properties; that after the death of Nawab Sardar Muhammad Jamal Khan in the year 1961, and during the lifetime of Ahmad Khan Patafi, the

administration of the Waqf continued; however, Ahmad Khan Patafi, in violation of the conditions of the Waqf and without lawful authority, executed a self-styled document in shape of will on 20.02.1961, appointing his nephew, Sardar Abdul Rahim Khan, as Mutawalli, which appointment is illegal, void, and against the terms of the Waqf; that said Sardar Abdul Rahim Khan, without any lawful authority, transferred a portion of the Waqf property measuring approximately 59 Kanals 06 Marlas in favour of defendants No.1 and 20, namely Ghazali Rahim Khan and Ghazali Cotton Industries, through document No.120 dated 10.09.1973, for industrial purposes, which is in clear violation of the terms of the Waqf and thus void, illegal, and ineffective; that the said defendants, on the basis of the aforesaid illegal transfer, have taken possession of the Waqf property and established an industrial unit thereupon, which act is unlawful and contrary to the purpose of the Waqf; that after the death of the original Mutawalli, Ahmad Khan Patafi, the revenue authorities, without lawful basis, entered the names of his heirs as Mutawallis in the revenue record, although the office of Mutawalli is not hereditary and cannot devolve through inheritance, but is to be filled strictly in accordance with the conditions of the Waqf; that the appointment of Sardar Abdul Rahim Khan as Mutawalli, as well as the subsequent entries of defendants as Mutawallis in the revenue record, are illegal, without jurisdiction, against the conditions of the Waqf, and thus void and ineffective; that plaintiff No.1, being the grandson of the Waqif and the recognized Chief and Tuman-dar of the Laghari tribe,

has been duly acknowledged by the tribe and family as their head and Mutawalli of the Waqf property, and is thus legally entitled to be declared as such; that the defendants have failed to maintain proper accounts of the income derived from the Waqf property and have misappropriated the same for their personal use, despite the fact that Waqf property and its income are sacred trusts meant solely for religious and charitable purposes; that the plaintiffs have serious apprehension that substantial income of the Waqf property has been embezzled by the defendants, and no record or register of accounts has been maintained; that the defendants are illegally claiming to have transferred portions of the Waqf property to third parties, although no such valid entries exist in the revenue record; and even otherwise, any such transfer would be void being contrary to the Waqf. The respondent No.1 & 2/plaintiffs made the following prayers through their suit:-

In view of the foregoing facts and circumstances, it is most respectfully prayed that this Honourable Court may graciously pass a decree for declaration and other consequential reliefs in the following terms:

i. It may be declared that the property described above is a Waqf property dedicated for Islamic purposes, for an Islamic school, boarding house, and other allied religious purposes; and that defendants No.1 to 20 are not the Mutawallis of the said Waqf property, nor do they have any right of possession, management, control, or administration thereof, their claim being illegal, void, and of no legal effect. It may further be

declared that, in accordance with the conditions of the Waqf, a permanent Mutawalli be appointed, and that plaintiff No.1, being the Chief of the Laghari tribe, Tuman-dar, and duly recognized and selected head of the tribe and family, be declared as the lawful Mutawalli, entitled to manage, control, possess, and administer the said Waqf property.

ii. It may further be declared that the transfer of property mentioned in Schedule “B” effected by Sardar Abdul Rahim Khan in favour of defendants No.1 & 20 for industrial purposes is illegal, without lawful authority, fraudulent, against facts, and in violation of the conditions of the Waqf; hence, the same is void, ineffective, and not binding upon the Waqf property, which shall continue to be treated as Waqf property.

iii. It is further prayed that a decree for rendition of accounts be passed against the defendants, directing them to render true and proper accounts of all income derived from the Waqf property and to disclose and pay all amounts received by them therefrom.

iv. It is also prayed that a proper and regular scheme for the administration of the Waqf be framed and enforced strictly in accordance with the conditions of the Waqf.

v. Any other relief, including alternative or additional relief, which this Honourable Court deems just and proper in the circumstances of the case, may also be granted.

3.During the pendency of the suit, the plaintiffs filed an application for amendment in the plaint on 27.02.1996 wherein they sought an amendment to the effect that due to violation of terms and conditions of Waqf, they have become owner of the Waqf property.

Without getting any permission from the Court, they filed amended plaint wherein following relief was sought:

It is further prayed that it be declared that, on account of violation of the conditions of the Waqf, they had become owner of the suit property.

4.Although, the suit was resisted by the defendants in pursuance of which learned Trial Court framed issues on 13.10.1992 and invited the parties to lead their respective evidence, yet on 27.02.1996 a compromise was filed by the parties which was produced on the record as Exh.C.I according to which it was settled between the parties that the defendants have no objection if a decree for declaration qua property measuring 84 Kanals & 04 Marlas (detailed in the application) in favour of the plaintiffs may be passed and similarly it was agreed that the defendants No.1, 3, 4, 5, 6, & 20 shall remain in possession of land measuring 59 Kanals & 04 Marlas detailed in the application (Exh.C.I). Learned Trial Court decreed the suit in the light of said compromise deed (Exh.C.I) vide judgment and decree dated 28.02.1996.

5.On 19.03.2015, the petitioners filed an application for setting aside the above-referred judgment and decree dated 28.02.1996

contending therein that Government Boys City High School, Jampur is a well-known educational institution imparting education since long, and that land measuring 84 Kanals 12 Marlas situated in Mouza Basti Rindan, Tehsil Jampur, was sanctioned in its favour vide Mutation No.328 dated 10.04.1923, thereby conferring upon the school a distinct legal status. It was averred that petitioner No.1 is the serving Headmaster, while petitioners Nos.2 and 3 are retired Headmasters of the said institution, and they are directly affected by the impugned judgment and decree, as the school has been functioning on the disputed property with a large number of students.

It was further contended that the predecessors-in-interest of respondents No.1 (Alif to Ray), namely Sardar Farooq Ahmad Khan Laghari, along with respondent No.2/plaintiff No.2 Jafar Khan Laghari, instituted a suit for declaration without impleading the petitioners as necessary parties, despite the existence of the school on the disputed property, and obtained the impugned decree behind their back, thereby condemning them unheard. It was alleged that the respondents concealed material facts from the Court and, in connivance with each other, got the disputed property partitioned and settled in their names during the proceedings, depriving the petitioners of their valuable rights. It was also asserted that in Khata No.945/897, Khasra No.212/05/1 measuring 15 Marlas, a mosque exists, while an area measuring 9 Kanals 9 Marlas is recorded as Ghair Mumkin, and the school is situated over Khasra Nos.210/20-1/2, 21-2, 211, 16-3-5, and 25-2, comprising the total land, and has been

C.R. No.482 of 2017. 8

in existence since prior to partition. The petitioners claimed that they came to know about the impugned judgment and decree only 4/5 months prior to filing of the application, and after obtaining certified copies, filed the petition within limitation.

6.Learned Trial Court, after getting reply from the other side and hearing arguments, dismissed the said application vide order dated 10.01.2017. Hence, this petition.

7.I have heard learned counsel for the parties at length and gone through the record with their able assistance.

8.After hearing learned counsel for the parties and going through the record, it has been observed that the pivotal question requiring determination by this Court is whether the judgment and decree dated 28.02.1996, passed on the basis of compromise, can sustain in the eyes of law when a necessary and proper party was not impleaded and the nature of the property involved was admittedly Waqf.

9.It is evident from the record that predecessor of the plaintiffs namely Khan Bahadur Sardar Jamal Khan Laghari through mutation No.328 dated 10.04.1923 dedicated his land measuring 84 Kanals 12 Marlas as Waqf for Islamic purpose. It is specifically mentioned in the mutation that:-

ت "رشاطئ۔زبباین دوس دمحم اخن ریشمامل۔ اخن اہبدررسدارامجل اخن ب واہ ےن آرایض دنمرہج ااقتنل ب ت جتوکسلاالس یم ذہاارغاضاالس یم ےوا ےطو فدرد ےاورو فاکوتمیلادمحاخناتپیف ے۔ ب گ گ باوبرڈنبادرگیارایضاالس یموموجدرںیہےگآرایضوکباآرایضذہایکدیپاواروکارغاضاالس یم ںیرچ

C.R. No.482 of 2017. 9

ایکاجےئاگ۔دعبوافتوتمیلامظتنمنارغاضاالس یم۔۔۔۔۔۔۔۔۔۔۔۔۔۔اخناہبدررسدارامجلاخن گ شگ گ باان ےوارباناج ینانانوتمیلرقمردرںی۔ارگیسکوہجےسارغاضاالس یمہنرںیہبادمرہسووبرڈن واہ با ان ے واربان و اجنیشن اجمز وہےگن ہک آرایض یکتیکلم تسکش در اجےئ وت اخن اہبدر وموصف ب گ "اےنپباملقتنمدراویلںی۔زینوتمایلنوکعیبورنہہبہوریغہلقتنمدرےنآرایض ےاایتخرہنوہاگ۔

10.Ahmad Khan Pattafi through mutation No.925 dated 22.05.1933 gifted/Waqf his land measuring 73 Kanals 16 Marlas to Islamic Madrassa Anjuman Islamia Jampur. Said Ahmad Khan Pattafi further gifted/Waqf land measuring 45 Kanals & 19 Marlas through mutation No.2721 dated 31.10.1960 to Tanzeem Ahl-e- Sunnat Waljamat Jampur.

11.From the record as well as the pleadings, it transpires that Government Boys City High School, Jampur has been functioning at the disputed site and the very case of the plaintiffs in the original suit was that the property in question was Waqf property dedicated, inter alia, for an Islamic school/Islamic Purpose. Mutation No.328 also reflects that gift/Waqf was made in favour of Islamia School Jampur.

Whereas, Ahmad Khan Pattafi through mutation No.925 gifted/Waqf his property to Islamic Madrassa Anjuman Islamia Jampur and through mutation No.2721 to Tanzeem Ahl-e-Sunnat Waljamat Jampur. Thus, the school as well as Islamic Madrassa-e-Anjuman Islamia and Tanzeem Ahl-e-Sunnat Waljamat Jampur were not only proper parties but necessary parties to the lis. Any adjudication affecting such property, without impleading the said parties and the institutions which were established upon it, is patently violative of the principles of natural justice. It is by now well-settled that no person can be condemned unheard. The non-impleadment of a

necessary party renders the proceedings defective, and any decree passed in such circumstances is not binding upon such party. In the present case, the school, being directly affected, was never arrayed as a party; hence, the decree dated 28.02.1996 cannot be enforced against it.

12.Learned counsel for the respondents raised a preliminary objection to the effect that the petitioners lack locus standi to institute the present application for setting aside the judgment and decree, on the ground that they are neither necessary nor proper parties to the proceedings. The contention, however, cannot be accepted. It is well- settled that where the functionaries entrusted with the management, protection, and preservation of Waqf property themselves act in contravention of law with an intent to misappropriate or divert the said property, it becomes not only the right but also the duty of any person interested in the lawful administration of such property to bring the matter to the attention of the Court. Admittedly, the land in question has been dedicated as Waqf for the purpose of imparting education to Muslims and for dissemination of Islamic teachings. In such circumstances, every member of the Muslim community, being a beneficiary of the Waqf, acquires a sufficient interest in the proper administration and safeguarding of the Waqf property. Consequently, any misuse, mismanagement, or diversion of the Waqf property from the object of its dedication confers locus standi upon such beneficiaries to approach the Court for appropriate relief. Guidance in this regard is sought from a judgment of Division Bench of this

Court in a case titled "Maulana Maqsood Anwar V. Chief Administrator Auqaf and others" (2003 YLR 3078), wherein the Court observed as under:-

"Even otherwise, where the very functionaries deputed for protecting and preserving Waqf properties themselves indulge in illegalities with the object of misappropriating such properties, it is the right, indeed, duty of a citizen to challenge such misappropriation. Finally, it is worth-mentioning that the aforesaid land was dedicated for the education of Muslims and for imparting Islamic instructions to them and was known as Daaras Mian Wadda Sahib. In this view of the matter, every Muslim was a beneficiary of the Waqf and was therefore, vested with locus standi to file a petition where the Waqf property was being misappropriated or used in contravention of the objects of the Waqf."

13.The contention of limitation raised by the respondents is also without substance. Since the petitioners were not parties to the original proceedings, no limitation would run against them. The right to challenge such a decree accrues from the date of knowledge. The petitioners have specifically averred that they came to know about the impugned judgment and decree only a few months prior to filing the application and thereafter promptly approached the Court. Thus, the application was prima-facie within limitation. However, without framing of issue with regard to the point of limitation and recording of evidence, as it is a mixed question of fact & law, the Court was not justified to declare the petitioners’ application barred by time.

14.Another significant aspect of the case is that the original suit was primarily with respect to Waqf property. The plaintiffs initially in their plaint filed on 16.07.1991 had themselves prayed for declaration of the property as Waqf, appointment of Mutawalli, rendition of accounts, and framing of a scheme for administration.

C.R. No.482 of 2017. 12

For better understanding, the prayer clause is reproduced in verbatim as under:-

گ " .iہی ہک اجدیئاد و ف دشه دنمرہج بباال و ف دشہ االسہیم ببچاےئ اوکسل االس یم وبرڈن اہؤسو گ درگیہقلعتممچارعاالس یمےئلیکو فدشہ ے۔دماعمہیلعو فدشہذموکرہبباال ےوتمایلنںیہن ںیہ۔اورہنیہانوکاجدیئاددنمرہجبباال ےہضبقباااظتنموارصناماکقحاحلصہن ے۔اکمدعم ے رشاطئبباال ےاطمقبرضور ےہکاجدیئادو فدشذموکرہاکلقتسموتمیل ب سحرشاطئوا ف گ گ باہم ارغاض و ف دشہ ے اطمقب رقمر فچامبا اجوے۔ سج اک دمیع ربمن 1تیثیحب فیچ )(Chiefاغلر ہلیبقاورنمتدار ے۔اوراینپوقماغلر اکبختنمدشہوتمیلاوررس ببچاہ ے۔ اوراجدیئادو فدشہذموکرہ ےااظتنموارصنام،رصتفاورہضبقاکاجمز ے۔ گ .iiزین یلقتنم اجدیئاد دنمرہج ڈیشول"ب" ب اجنمنرسداردبعارلمیح اخن زین ودماعہیلع ربمن02، 1 گ گ گ ب ج من رسپ وخد رغبض انڈرٹسبچ مله از و ف دشه اجدیئ اد طلغ اور الخف وااعقت ،اسزیش دبوں گ گ گ اایتخرات و بااجبچ ے۔ اور فچاضئ و وقحق اجدیئاد و ف دشہ ےےلسلس ںیاکمدعم اور ریغ ؤمبچ ںیہ۔اجدیئادذموکرہبباالدبوتسرو فدشہاکہصح ے۔

.iiiزین اجدیئاد و ف دشہ ذموکرہ یک آدمین و روقم اک ازاں دماع مہیلع باب اقدعہ اسحب اتکب ایک اجوے۔ rendition of Accountsاور امتم روقم ووصل دشہ یک ازاں دماع مہیلع دیمہفدرایئاجوے۔ ت .ivزینو فدشہذہا ےاطمقبےلسلس ںیاتببااقدعہمیکسوجرشاطئو ف ےاطمقبوہ ب رمناور گ گ باذففچامیئاجوے۔ گ ت گ .vزین درگی دادریس مچنڈ با ابتمدل وج احالت دقمہم ںی فچنی ااصنف وہ وت وہ یھب اصدر فچامیئ اجوے۔"

15.However, subsequently on 27.02.1996 through amendment

they sought another prayer that due to violation of Waqf they had become owner of the Waqf property. There said prayer is reproduced hereunder:

"زین یه که دمایعن امکل و اقضب ارایض دنمر بجه باب لیصفت بباال وب بجه الخف ورز رشاطئ و ف ن ےک ںیہ۔"

16.On the same day i.e. 27.02.1996 both the parties filed another application in shape of compromise deed. Both the applications were

C.R. No.482 of 2017. 13

allowed on the very next date i.e. 28.02.1996, however, instead of adjudicating upon material issues, the learned Trial Court decreed the suit merely on the basis of compromise and proceeded to distribute the property between the parties in an arbitrary and fanciful manner.

The parties to the suit, in their compromise narrated as under:- گ گ گ "رایضباہمہیہکدقمہمونعانبباال ںیامنیبفچنیقیرشباطئذلیرایضباہموہاکچ ے۔ :۔ہیہکارایضدتموعہی ںیےسرہبق۱

ومعض رہبق ربمنرسخہ ربمناھکہت

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1-26 9/1 029رمعبربمن

0-22 14/0 466/554اھکہتربمن

6-22 11/0 029رمعب

C.R. No.482 of 2017. 14

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قحب دمایعن ببچالخف دماعمہیلع ڈرگ ارقتسار قح تیکلم دمایعن اصدر ےیک اجےن رپ وکیئ ارتعاضدماعمہیلعوکہن ے۔ گ گ 0۔ہیہکارایض ںیےسرہبق58انکل6رمہل(زغایلانڈرٹسبچ) ے رہبق ربمنرسخہ ربمناھکہت

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C.R. No.482 of 2017. 15

اقضبرںیہےگسجرپدمایعنوکیسکمسق، ےامکل02،4،5،6،3،1دبوتسردماعمہیلعربمن اکوکیئارتعاض ہن ےاوراسارایضےسدمایعناکوکیئقلعتباواہطسہنوہاگ۔ہیقبارایضیکدح ت گ ت ٰ ادتساعیکدحتدوع،تادنرااجتاکذغاتاحملدبوتسررںیہےگ۔مچنڈہیہکدرگیذعرات گ گ گ دمایعناخرجوصتروہےئ۔رچہچدقمہم بنڈہمفچنیقیوہاگ۔ گ گ گ گ ادتساع ے ہک اطمبقب رایض باہم ذہا اک ہلصیف فچامبا اجوے اور رایض باہم ذہا وک برچو ڈرگ وصتر گ "فچامبااجوے۔

17.The learned Trial Court in the light of said compromise application passed the judgment dated 28.02.1996 in the following manner:

"A question arose whether a dedication in the name of Almighty Allah could be terminated. In this regard, the learned counsel for the parties have referred to section 462 of the Muhammadan Law wherein it has been held that Imam Abu Hanifa has held that the ownership of Wakf property continues in the Wakif and on the death of the Wakif devolves on his heirs. His view is that the Wakif remains the bare owner of the corpus or rather of the husk of the property of which the benefit is entirely devoted and dedicated to the beneficiaries or objects of the Wakf. This view is not illogical. It proceeds on the basis that only the right to recurring produce or usufruct has been disposed of, and the rest remains where it was: the distinction between corpus and produced being always kept in mind. In view of this finding since the mutation by which the disputed property was dedicated for creation of an Islamic Wakf bearing No.328 dated 10.4.1923 indicates that the produce of this land was to be spent for the purpose of this Wakf and if the conditions in which this wakf was created do not exist, the suit property shall revert to the wakif or his legal heirs. In this view of the matter, I accept this compromise deed Ex.C.I and decree the suit in terms of this compromise. This compromise deed Ex.C.I. which is signed by the undersigned shall remain a part of the decree sheet. File of this suit shall be consigned to record."

18.The compromise (Exh.C.I), on the basis of which the decree was passed, itself appears to be contrary to law, as parties to a suit

cannot, through a compromise, validate an act which is otherwise illegal or prohibited by law. A Waqf property cannot be partitioned or appropriated through a private arrangement between individuals.

19.The plaint reflects that the plaintiffs themselves sought declaration to the effect that the Court may be declared that the property was a Waqf property dedicated for an Islamic School and the defendants No.1 to 20 are not the Mutwallis and prayed for appointment of permanent Mutwalli, They also sought declaration that the transfer of property in favour of defendants No.1 & 20 be declared illegal and without lawful authority. They sought rendition of accounts. Through amendment, although, they sought that due to violation of the conditions of Waqf they had become owner of the suit property. But the Court could not grant said declarations without recording evidence of the parties.

20.Such an approach is wholly alien to the settled principles governing Waqf. According to the authoritative exposition of law by D.F. Mulla in Principles of Mohammedan Law, once a Waqf is validly created, it becomes permanent, irrevocable, and inalienable.

The ownership of the property vests in Almighty Allah, and neither the founder nor his heirs retain any proprietary interest therein. The property cannot be partitioned, alienated, or otherwise dealt with in a manner inconsistent with the object of the Waqf.

21.According to Muhammadan Law, a Waqf is a permanent dedication of property by a Muslim for the purposes recognized by

the Muslim Law as religious, pious or charitable. The property dedicated is transferred to the name of Allah Almighty, and the dedicator immediately losses his title in the said property. The object of Waqf must be religious, pious and charitable. A Waqf once made cannot be revoked, unless the Waqf is testamentary i.e. made by a will. The Waqf property cannot be mortgaged, sold or changed, without the permission of the Court, unless the Mutawalli is expressly empowered by the deed of Waqf to do so.

22.In order to examine the creation of Waqf, the principle laid down by D.F. Mulla in this respect are to be considered. According to section 173 of Muhammadan Law, a Waqf is a permanent dedication by a person professing the Muslim faith of any property, recognized by the Muslim Law as religious, pious or charitable.

Section 174 of the Muhammadan Law directs a Waqif to make a permanent Waqf without limiting the period while the object of the Waqf has been described in 178 mentioning that it should be for religious, pious and charitable purposes and Waqf could be in favour of settlor's family, children and descendants.

23.Doctrine of cy-pres has been laid down in section 181 and the creation of Waqf by inter vivos or testamentary has been provided in sections 184 and 185. To complete a testamentary Waqf, section 186 provides the procedure. Section 189 of Muhammadan Law clearly provides that testamentary Waqf (Waqf made by will) can be revoked any time before the death of the Waqif meaning thereby the other Waqfs are not revocable, further section 193 provides that Waqf

property cannot be alienated except in the case mentioned in sections 207 and 208 which sections provide the powers of Mutawali to sell or mortgage of the Waqf property with the 'permission of the court or if such power has been given expressly in the Waqf deed.

24.In order to understand the meaning and concept of Waqf, this Court seeks guidance from the esteemed judgment of august Supreme Court of Pakistan reported as "Sikandar Hayat Khan Jogazai and others V. Muhammad Hashim and others" (PLD 2019 Supreme Court 730), wherein it was elaborated as under:

"6. Waqf and its plural form, auqaf, are derived from the Arabic root verb, waqafa, which means "to stop" or "to hold." When the word is employed in a legal sense with regard to a piece of land or a building, it signifies that henceforth that "property" is "stopped."

In theory, it can never again change hands by inheritance, sale or seizure. An individual creating a Waqif, known in Arabic as the "Waqif," divests him or herself of the formal rights to possession, but retains the power to appoint a custodian i.e., a "mutawali" (literally "one who is trusted"), who manages the property dedicated. Waqf is an inalienable trust and is the granting or dedication of property in trust for a pious purpose. D.F. Mullah, in his compilation of principles of Muhammadan Law, has defined "Waqif" to mean the permanent dedication by a person professing the Mussalman [Muslim] faith of any property for any purpose recognized by the Mussalman law as religious, pious or charitable." "Waqif" signifies the extinction of the proprietor's ownership in the thing dedicated and the detention of the thing in the implied ownership of God, in such a manner that its profits may

revert to or be applied for the benefit of mankind." "Waqf property" is defined in section 2(e) of the Ordinance in the following manner:-

"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.....

Origins of Waqf in Islam

7.Although the word "Waqif" is not specifically mentioned in the Holy Quran, yet there are many verses which inspire Muslims to donate and give charity, to obtain piety, righteousness and fore mostly, the closeness and love of the Allah Almighty. A hadith quoted by Hazrat Abu Hurairah (Allah be pleased with him) is usually referred by the Islamic scholars as the basis of the institution of “Waqif” in Islam. He reported Allah’s Messenger, Mohammad (may peace be upon him) as saying: "when a man dies, all his acts come to an end, but three; recurring charity, or knowledge (by which people) benefit, or a pious son who prays for him (for the deceased)" Waqf is the best form of a continuous charity as the dedicated property earns for the dedicators continuous good deeds even after his death. It is this understanding that motivates the Muslims to promote this religious social-welfare institution. Syed Ameer Ali Ali, a great judge and jurist of the sub- continent (Indo-Pak) speaking for the Judicial Committee of the Privy Council in the case of Vidya Varuthi v. Blusami (AIR 1922 PC 123) observed:

"13. But the Mahommedan law relating to trusts differs fundamentally the English law. “It owes its origin to a rule laid down by the Prophet of Islam; and means “the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings." When once it is declared that a particular property is wakf, or any such expression is used as implies wakf, or the tenor of the document shows,.....that a dedication to pious or

charitable purposes is meant, the right of the wakif is extinguished and the ownership is transferred to that a particular property is wakf, or any such expression is used as implies wakf, or the Almighty" (emphasis underlined)

8.Hazrat Ibn-e-Umar (may Allah be pleased with him) reported:

"Umar acquired a land at Khaibar. He came to Allah's Apostle (may peace be upon him) and sought his advice in regard to it. He said: Allah's Messenger. I have acquired land in Khaibar. I have never acquired property more valuable for me than this, so what do you command me to do with it? Thereupon he (Allah’s Messenger) said: If you like, you may keep the corpus intact and give its produce as Sadaqa. So, Umar gave it as Sadaqa declaring that property must not be sold or inherited or given away as gift.

And Umar devoted it to the poor, to the nearest kin, and to the emancipation of slaves, and in the way of Allah and guests.......”

Thus, these two traditions of the Holy Prophet (peace be upon him) are commonly considered providing the express basis for the emergence of Waqf in Islam.

Role of Waqf in the development of Islamic Civilization

9.It is not an exaggeration to claim that the Waqf created in perpetuity has provided foundation for much of what is considered "Islamic civilization." Waqf fulfilled a crucial gap between the resources available with an emerging State and the need of a growing community in the early days of Islam, and in the later years became a main source for various public services. The Waqf contributed to the building of Islamic civilization; through which many mosques, schools, and educational centers were built along with libraries, scientific research centers and other fields in different walks of life. Throughout the history of the Islamic world, such settlements provided for many of the spiritual and temporal

wants of Muslims. Waqf played an important role in establishing a flourishing civilization. It created a comprehensive scientific and cultural renaissance. These funds were the main resource for schools, scientific centers and libraries, which gave way to the training of many scientists, researchers, inventors, and intellectuals. Therefore, Waqf is described as the most important institution which provided the foundation for Islamic civilization as it was interwoven with the entire religious life and the social economy of Muslims. It covered almost all the needs of life during the early period of Islamic civilization; encompassing health, education, basic infrastructures, business and commercial activities, job creation, food provision for the hungry and livestock, shelter provision for the poor and needy, and supporting the agricultural and industrial sectors without any cost to the government. Waqf is in fact a comprehensive mechanism of public finance that is capable of bringing upon economic progress as well as social development."

25.This Court in a case titled as "Abdul Hamid Qureshi v. Ch.

Fateh Muhammad Sheifta" (PLD 1958 (W. P.) Lah. 824)" at page 831 observed as under:-

"when property is made Waqf its ownership vests henceforth in the Almighty and its usufruct is to be applied for the benefit of His creation only. The corpus cannot be touched for the corpus belongs to Him. Rather, the fiction that it belongs to Almighty has been introduced to explain that the corpus is no longer available to human beings".

26.It is settled law that once the nature of the property as Waqf was established, no backdoor intrusion into the same by a former owner can be allowed to resume, retrieve or claim it under any law

worth the name. Reliance in this regard is placed on the case titled "Muhammad Ramzan V. The State and others" (2013 SCMR 737).

27.Even in cases where the purpose of Waqf is not being fulfilled or there is mismanagement, the remedy lies in proper administration, removal or appointment of Mutawalli, or framing of a scheme by the Court, and not in distribution or division of the Waqf property amongst private individuals. The learned Trial Court, while passing the impugned judgment and decree, failed to appreciate this fundamental principle and acted in clear disregard of the law governing Waqif.

28.File reflects that only plaintiff No.2 got permission from Advocate General Punjab after submission of the plaint. But after moving application for seeking amendment in the plaint and submitting amended plaint no permission was obtained. The plaintiffs, through amendment, altogether changed their stance. In their original plaint, they did not seek any declaration to the effect that in the light of violation of the Waqf they had become owner of the Waqf property. It was a fundamental change which required permission from Advocate General Punjab.

29.During the course of arguments, learned counsel for the respondents emphasized that since the petitioners have not obtained permission from the Advocate General Punjab before filing of this petition which was sine qua non under Section 92 of the Code of Civil Procedure, 1908, therefore this Civil Revision is not

maintainable. In this regard, it has been observed that this Court while exercising revisional powers have supervisory jurisdiction to supervise and control the subordinate Courts in the interest of administration of justice. Admittedly, interference is to be limited to correction of errors of jurisdiction statutory provisions of law. The superintending and visitorial powers should be used to correct jurisdictional errors and irregularities. When a subordinate Court acts without jurisdiction, the errors can be corrected by the High Court in the exercise of its supervisory jurisdiction. This reaction confers an exceptional and necessary power intended to secure effective exercise of this Court's superintending and visitorial powers of correction, unhindered by technicalities. To reach this conclusion, I am fortified to seek guidance from the case titled "Mandi Hassan alias Mehdi Hussain and another versus Muhammad Arif" (PLD

2015 SC 137).

30.It is also settled that where an order or decree is found to be void, illegal, or passed without jurisdiction, the revisional Court is fully competent to interfere in exercise of its powers under Section 115, C.P.C. The present case squarely falls within such category, as the impugned decree suffers from material irregularity, jurisdictional defect, and violation of settled principles of law.

31.Revisional jurisdiction is pre-eminently corrective and supervisory, therefore, there is absolutely no harm if the Court seized of a revision petition, exercise its suo motu jurisdiction to correct the errors of the jurisdiction committed by a subordinate court. This is

what can be gathered from the language used in Section 115 of the Code of Civil Procedure, and this is what was intended by the legislature legislating it. If this jurisdiction is allowed to go into the spiral of technicalities and fetters of limitation, the purpose behind conferring it on the Court shall not only be defeated but the words providing therefor, would be reduced to dead letters. It is too known to be reiterated that the proper place of procedure is to provide stepping stones and not stumbling blocks in the way of administration of justice. Since the proceedings before a revisional Court is a proceeding between the Court and Court, for ensuring strict adherence to law and safe administration of justice, exercise of suo motu jurisdiction may not be conveniently avoided or overlooked altogether. The Court exercising such jurisdiction would fail in its duty if it finds an illegality or material irregularity in the judgment of a subordinate Court and yet dismisses it on technical grounds.

Reliance in this regard is placed on the case titled "Hafeez Ahmad and others V. Civil Judge, Lahore and others." (PLD 2012 SC 400).

32.For the foregoing reasons, it is held that the school was a necessary party and was not impleaded; the decree was passed in violation of principles of natural justice; the nature of the property as Waqf was ignored; and the compromise-based distribution of Waqf property was unlawful. Consequently, this Civil Revision is accepted, the order dated 10.01.2017 passed by the learned Trial Court is set aside, and the judgment and decree dated 28.02.1996 passed in Civil Suit No.39/1991 are also set aside. The case is remanded to the

learned Trial Court for decision afresh on merits, strictly in accordance with law, after impleading all necessary parties, including the concerned educational institution, and after providing full opportunity of hearing to all stakeholders.

33.Before parting with this judgment, it has been observed that a miscellaneous application under Order I Rule 10 C.P.C. (C.M.

No.3266-C of 2018) is pending on behalf of Government of the Punjab, School Education Department, which is disposed of leaving the applicant at liberty to file the same before learned Trial Court where the matter has been remanded.

34.Parties are directed to appear before the District Judge, Rajanpur, on 16.04.2026 who shall decide the suit as per law.

(AHMAD NADEEM ARSHAD)

JUDGE.

APPROVED FOR REPORTING.

JUDGE.

ANNOUNCED IN THE OPEN COURT ON.02.04.2026.

JUDGE.

M. Arsalan*