Rooh Ullah and others vs. Administrator Auqaf, Khyber Pakhtunkhwa and others

IN THE PESHAWAR HIGH COURT, PESHAWAR

[JUDICIAL DEPARTMENT]

Regular First Appeal No. 215-P/2025

Rooh Ullah & Others.

......... (Appellants)

Vs

Administrator Auqaf, Khyber Pakhtunkhwa & Others. ......... (Respondents)

Present: Mr. Jan Muhammad Khan, Advocate, for the appellants.

Mr. Nasir Mehmood, Advocate, for the respondents.

Date of hearing: 15.06.2026.

JU D G M EN T

MUHAMMAD IJAZ KHAN, J.- Through this appeal, the appellants have challenged the judgement & decree of the learned Additional District Judge-III, Charsadda, dated 25.02.2025, whereby, the suit filed by the present appellants has been dismissed.

2.Precisely, the facts leading to the filing of this appeal are that the present appellants then plaintiffs filed the instant suit under section 11 of The Khyber Khalid Usman (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

Pakhtunkhwa Waqaf properties Ordinance, 1977, for declaration to the effect that they (plaintiffs) since their forefathers are owner in possession of Khasra No. 499, and that the notice issued by the respondents/defendants to the plaintiffs dated 09.11.2018 is without justification, illegal, incorrect, against the law and thus ineffective upon their rights. Respondents/defendants were summoned and they submitted their written statement and keeping in view the divergent pleadings of the parties, the learned trial Court framed as many as twelve (12) issues, and the parties were required to produce their respective evidence, which they have accordingly led and after recording of pro and contra evidence, the learned trial court has dismissed the suit of the petitioner/plaintiff vide impugned judgment & decree dated 25.02.2025, hence the instant appeal.

3.Arguments heard and record perused.

4.It is the case of appellants/plaintiffs as pleaded by them in their plaint that they are owner in possession of suit Khasra No. 499 since their forefather and that the impugned notices issued by the

respondents/defendants to them are illegal and Khalid Usman (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

ineffective upon their rights, whereas the case of respondents/defendants is that the suit property is a Waqaf property and that appellants/plaintiffs have encroached upon the same. Para No. 1 of the written statement being relevant is reproduced below.

The plan reading of the instant para would show that it was pleaded by the respondents that Khasra No.

499 was initially measuring 39 Kanals & 1 Marla in which 15 Kanals and 01 Marla is Shah Nahri, whereas, 2 Kanal is Banjar Qadeem. It is further pleaded that the plaintiffs have made constructions over a part of 21 Kanal land, which is recorded as Qabristan ( )قبرستانin Khalid Usman (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

the column of ownership, whereas in the column of cultivation, the same is in possession of Ahl-e-Islam ()مقبوضہ اهل اسلام. It is also pleaded that the plaintiffs have demolished graves and have made an attempt to illegally take possession of a Waqaf Property, therefore, they have rightly given the impugned notice to the petitioner/plaintiff.

5.In order to prove their respective stances appellants/plaintiffs have themselves produced Patwari Halqa namely Wisal Muhammad as PW-1 and he in his cross-examination has categorically denied the stance of the petitioner/plaintiff and has stated that as per the Jamabandi for the year 1926-27, suit Khasra No.499 was 39 Kanals and 01 Marla and in the column of ownership, the same is shown as Ghair Mumkin Qabristan ()غير ممکن قبرستان, whereas in the column of cultivation, the same has been shown as Maqboza Ahl- e-Islam ()مقبوضہ اهل اسلام. He has further stated that the aforesaid entries remained intake from 1926-27 till 1966-67, however, after forty (40) long years, it is in the Jamabandi for the year 1970-71, when one Sarbaland Khan has been shown in possession in Khalid Usman (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

column of cultivation to the extent of 02 Kanals Ababdi. Similarly, as per Jamabandi for the year 1978- 79, one Murtaza Khan has been shown as recorded owner in the column of cultivation for eight (08) Kanal.

The said Patwari Halqa Utmanzai namely Wisal Muhammad in his cross-examination has made the ;following crucial explanation

ميں اپنے ہمراه مثل حقيت سال 1926-27لايا ہوں جس ميں خسره نمبر 499تعدادی 39کنال ايک مرلہ قسم سالم غير ممکن قبرستان درج اور بخانہ کاشت مقبوضہ اہل اسلام کا اندراج ہے۔ اسی طرح ميں جمعبندی سال 1928-29تا سال 2010- 11لايا ہوں جوکہ Ex.PW-1/X-2تا 1/X-21 Ex-PW-ہے۔ مذکوره عمل سال -67 1966تک بدستور چلا ا رہا ہے بعد از جمعبندی 1970-71ميں نمبر خسره 39 ,499کنال ايک مرلہ ميں سر بلند خان وغيره کو بخانہ کاشت دو کنال آبادی کا اندراج ہوا ہے۔ اسی طرح جمعبندی سال 1978-79ميں نمبر خسره 499مذکوره ميں بخانہ کاشت مرتضی خان وغيره کو اٹه کنال کا اندراج ہوا ہے .اسی طرح جمعبندی سال 1986-87ميں بخانہ کاشت نمبر خسره 499تعدادی 39کنال ايک مرلہ بتفصيل مقبوضہ اہل اسلام 21کنال امان الله وغيره اٹه کنال جاويد اعظم خان 10کنال اندراج ہوا ہے اور يہی عمل تا حال جمعبندی سال 2014-15زير کار بدستور چلا ا رہا ہے۔ In view of the above, it is established from the revenue record that since the first ever settlement, the غير ممکن suit Khasra No. i.e. 499 had been recorded as however, later on some private persons haveقبرستان made illegal transaction as the same being recorded as Khalid Usman )(S.B. Hon’ble Mr. Justice Muhammad Ijaz Khan

public graveyard is to be considered and treated as a Waqaf Property.

6.It would also be relevant to mention here and as pleaded by the respondent/defendant as well in Para No. 2 of their written statement that before the issuance of the impugned notice, an application was submitted by one Saddat, and then on that application a demarcation proceedings were carried out in the presence of Sadat and the appellants/plaintiffs and in which it was also found that the appellant/plaintiffs have occupied a Waqaf property.

7.In view of the above, when once in the year 1926-27, the suit property had been shown as “Ghair Mumkin Qabristan” ( )غير ممکن قبرستانand was in the possession of “Ahl-e-Islam” “(”)مقبوضہ اهل اسلام ٖ then

such property being a Waqaf Property could not be reverted to any private person, as it is settled Islamic jurisprudence that when once a property is recorded as “Waqaf” or when the property is used for any religious purpose like public graveyard etc then the same could not be revoked, as it is settled that Waqaf property vest in the Almighty Allah and the same could not be Khalid Usman (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

reverted and thus, when the initial revenue record of 1926-27 shows that the suit property was Ghair Mumkin Qabristan and when the same has been shown in possession of “Maqboza Ahl-e-Islam”, then no transaction worth the name could be executed by any private person in favor of another private person in the said property and if made then it is to void and would not confer any right in favor of the transferee. In view of the above, when admittedly, the suit property is a Waqaf Property being ( )غير ممکن قبرستانand the same is in the used of “Maqboza Ahl-e-Islam” therefore, no body including the present appellants could claim their ownership and thus the learned trial Court has rightly dismissed the suit of appellants/plaintiffs. In a case1 A Larger Bench consisting of four Hon'ble Members of the August Supreme Court of Pakistan in a judgment titled as Haji Ghulam Rasool and others v. The Chief Administrator Auqaf, West Pakistan (PLD 1971 SC

376)has held that the graveyard which is a public waqf, no exclusive or preferential right can be claimed. The right of necessity must be a common right subject to Moman Khan V. The Province of Punjab through Senior Member Board of Revenue Punjab, Lahore & 17 others. (PLD 2026 Lahore 382) Khalid Usman (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

availability of space. There is no provision available in the West Pakistan Waqf Properties Ordinance, 1961 regarding sale/purchase of the land of graveyard. In a judgment titled as Noor Mohammad and another v.

Ballabh Das and others (AIR 1931 Oudh 293) it has been held that there is no distinction in law between a public or private graveyard and a graveyard simpliciter.

The use of a piece of land as a graveyard establishes dedication and the land thereby becomes waqf property which is not available for sale/purchase transaction.

Another reliance is placed on a judgment titled as Syed Mohd. Salie Labbai (Dead) by L.Rs. and others v.

Mohd. Hanifa (Dead) by L.Rs. and others (AIR/1976

SC 1569)”.

8.During the course of arguments, learned counsel for the appellants made much emphasis on a document i.e extract of Register Haqdaran Zamin ( رجسٹر حقداران )زمينof Mouza اتمانزئی, which has annexed as Annexure-F and stated that the suit Khasra No. 499 has been shown as ownership of one Muhammad Ayaz Khan s/o Muhammad Ayub Khan and thus the Patwari Halqa on one hand in the instant case while appearing Khalid Usman (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

as PW-1 has stated that the suit Khasra number is Ghair Mumkin Qabristan and in the possession of Maqboza Ahl-e-Islam, but on the other he has issued the said documents in favour of one Muhammad Ayaz Khan, however, when he was confronted that whether the aforesaid document could be considered by this Court at the appeal stage when admittedly the same has neither been produced from the proper custody nor the same has been exhibited from the concerned Patwari Halqa nor the legality & authenticity of the said document is an issue before this court as well as before the trial court, he was thereafter unable to wriggle out the same.

9.It would also be not out of place to mention here that the Superior Court of this country have been dealing with thousands of cases where the subject matter with the suit property is either declared as Waqf or the same has presumed the status of the Waqf because of its use and thus, the law is so rich with dealt encompass all the eventualities. Similarly, there are many statutes dealing with the governing and regulating the Waqf property. Recently, before this court in the Khalid Usman (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

case2, file dilating upon an identical issue as held as under:

“Once a Qabristan has been established to be a public graveyard, it vests in the public and constitutes a Waqf and it cannot be divested by a non-user but will always continue to be so whether it is used or not”. The following rules apply in order to determine whether a graveyard is a public or a private one: -

(i)Even though there may be no direct evidence of dedication to the public, it may be presumed to be a public graveyard by immemorial user ie. where the corpses of the embers of the Muhammadan community have been buried in a particular graveyard for a large number of years without any objection from the owners. The fact that the owner permits such burials will not make any difference at all.

(ii)If the graveyard is a private or a family graveyard then it should contain the graves of only the founder, the members of his family or his descendants and no others. Once even in a family graveyard members of the public are allowed to bury their dead, the private graveyard sheds its character and becomes a public graveyard.

(iii)In order to prove that graveyard is public dedication it must be shown by multiplying instances of the character, nature and extent of the buries from time to time. In other words, there should be evidence to show that a large number of members of the Muhammadan community had buried their corpses from time to time in the graveyard. Once this is found, then Court will presume that the graveyard is a public one; and

(iv)Where burial ground is mentioned as public graveyard in either a revenue record or historical papers that would be conclusive proof of a public character of a graveyard.

10.In another case3, this Court has held that dealt with a suit for rectification of revenue records Haji Mohammad Riaz and another Vs. Haji Khalid Mehmood Abbasi and others (2021 CLC 408)

Khalid Usman (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

concerning land measuring 7 kanals 1 marla in Mardan, which had been consistently recorded in the possession of the plaintiff’s predecessors from the settlement of 1925-26 through subsequent jamabandis up to 1962-63.

Without any lawful basis, the plaintiff’s name was removed from the cultivation column in the jamabandi of 1966-67 and the defendant’s name was entered, followed by similar entries in subsequent years. The trial Court decreed the suit and ordered rectification, but the appellate Court reversed the decision based on misreading of evidence. The High Court restored the trial Court’s decree, holding that the defendant had failed to prove any ownership or possessory right over the land, which was recorded as “shamilat deh,” and the subsequent adverse entries were unjustified. The Court further observed that the fact that the defendant had made constructions on the land was of no consequence in view of the long-standing revenue entries showing built-up property on the land, and therefore the appellate Court’s judgment was manifestly erroneous and set 3 Nawabzada Col. Muhammad Khalid Khan v. Abdur Razaq and Others (1994 MLD 828 Peshawar)

Khalid Usman (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

aside. In the case case4, the Patna High Court has affirmed the concurrent findings of the lower Courts that plot No. 296, measuring about 2 bighas, was a public Muslim graveyard and therefore waqf property. The plaintiffs claimed that the land had been used for burials by the Muslim public and that mango trees standing thereon were also dedicated for providing shade and timber for graves. The defendants asserted that the land was a private family graveyard belonging to defendant No. 7’s family and that they had acquired title through a sale deed. The Court relied heavily on the report of the pleader commissioner, who found 171 visible graves on the plot, and held that the presence of such a large number of graves, together with oral evidence, adequately established dedication of the land by conduct. The Court clarified that even though the parties were Muslims, the user of land as a graveyard amounted to implied dedication for religious purposes, and proprietary rights in the property vested in God, making it waqf. The trees standing on the land were also held to Skh. Bashir Ahmad and Others v. Skh. Abdul Jabbar and Others AIR 1968 Patna High Court 29

Khalid Usman (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

be part of the waqf, as they had been planted for the benefit of the graveyard. The defendants failed to establish that the graves were only of their family members, and the appeal was dismissed. Likewise, in a another case5, the Nagpur High Court has upheld the trial Court’s decree declaring that khasra Nos. 434 and 444, together forming a total area of 4.69 acres in Raipur, were a Muslim public graveyard and waqf property, and that the defendants, who had built structures on the land, were mere caretakers and had no ownership rights. The Court examined revenue records from 1864 onwards, which showed that khasra No. 434 was recorded as Qabrastan (graveyard) in subsequent settlements and included as such in the wajib-ul-arz (village administration paper) of the 1928-29 settlement.

Under Section 80 of the Central Provinces Land Revenue Act, 1917, the entry was conclusive because Gulabshah, the defendants’ ancestor, did not file a suit to challenge it within the prescribed time. The Lahore Motishah and Others v. Abdul Gaffar Khan (AIR 1956 Nag 38) Khalid Usman (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

High Court in a case6 has dealt with a piece of land that was described in revenue records as a Muslim graveyard but had not been used for burials in recent years. The appellants, who were non-Muslims, claimed ownership of the land, contending that no dedication could be inferred because the original proprietors were Hindus.

The Court held that the finding of the lower Court that the land was used as a Mahomedan graveyard was amply supported by the earliest revenue records, and the mere fact that it had not been so used in recent years did not deprive it of its waqf character, relying on earlier decisions of the Oudh Court. On the question of dedication by a Hindu owner, the Court observed that there was no clear authority to show that dedication of land by a Hindu for the purpose of a Muslim graveyard would be invalid under either Hindu or Muslim law;

while dedication for a mosque might be an exception, no such restriction applied to a graveyard. The appeal was dismissed with no order as to costs. The Lahore High Motishah and Others v. Abdul Gaffar Khan (AIR 1956 Nag 38) Khalid Usman (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

Court in another case7 allowed the appeal filed by the Mahomedan community and dismissed the suit brought by the management of a Hindu temple, which had claimed ownership of a graveyard measuring 33 kanals and 17 marlas outside Multan City. The revenue records from 1868 onwards described the land as a graveyard and later as in possession of the Mahomedan community, and the Court found that long user raised a presumption that the land had been dedicated as waqf for burial purposes. The temple management argued that they had retained rights to cut reeds and trees on the land, but the Court held that occasional acts of cutting reeds without objection did not establish private ownership or a limited dedication; once a definite area is dedicated as a graveyard, the whole land is presumed to be set apart solely for burials, and no private rights (including grazing or cutting vegetation) can coexist with the waqf. The Court also examined the pathway running through the graveyard, which the temple claimed was a public road, but found that the pathway Imam Bakhsh Munawar Din and Others v. Mandar arsingh Puri Parhalad Puri (AIR 1940 Lah 246)

Khalid Usman (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

led only to the graveyard and was used by those visiting the burials, making it appurtenant to the waqf. The evidence of Hindu graves found on the land did not help the temple’s case, as the plaintiffs had not claimed that the land was dedicated for non-Muslim burials. The defendants’ wall and building, which had been erected for the convenience of people using the graveyard, were held to be permissible, and the suit was dismissed. In a case8, the Allahabad High Court dismissed the second appeal of a zamindar who sought a declaration that a plot of land was not a graveyard and demanded removal of graves and a tomb stone. The lower appellate Court had found that the plot was a graveyard from time immemorial, and the High Court upheld this finding, holding that when land is proved to have been used as a graveyard for such a long period, a dedication as waqf for that purpose is presumed, and no separate proof of express dedication is required. The Court firmly rejected the zamindar’s contention that he retained a right to graze his cattle upon the graveyard, observing that once land becomes a graveyard, the zamindar has no rights left because the graveyard becomes sacred and dedicated Jhao Lal v. Ahmudullah and Others AIR 1934 All 335 Allahabad High Court Khalid Usman (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan

solely for burying the dead; allowing cattle grazing on graves would be against public interest and even offensive. On the issue of the tomb stone, the Court held that a license or grant to bury does not exclude the erection of tomb stones, as centuries of practice in India show tomb stones and mausoleums on Muslim graves, despite any strict textual prohibition. The appeal was dismissed with costs.

11.In view of the above discussion and exposition of law on the subject, the instant appeal being bereft of any merit is hereby dismissed and consequently the impugned order & judgement of the learned appeal Court dated 25.02.2025 is maintained and upheld.

Announced Dt: 15.06.2026.

Khalid Usman

JUDGE

Khalid Usman (S.B.) Hon’ble Mr. Justice Muhammad Ijaz Khan