Molvi Muhammad Rafique Vs Malik Munsif and others

Judgment Sheet

IN THE PESHAWAR HIGH COURT,

ABBOTTABAD BENCH.

JUDICIAL DEPARTMENT

C.R.No.130/2014.

JUDGMENT

Date of hearing......06/10/2017.......................................................... Petitioners By Haji Sabir Hussain Tanoli, Advocate............................. Respondents By Mr. Muhammad Ayub Khan Advocate..........................

SYED ARSHAD ALI, J:- Through the present revision petition the petitioners have called in question the judgment and decree dated 27.03.2014 passed by learned Additional District Judge-VII, Abbottabad whereby the, learned appellate Court dismissed appeal of petitioners against the judgment and decree of Civil Judge-VII, Abbottabad dated 12.01.2012.

2.The essential but brief facts of the case are that the respondents herein instituted a suit seeking permanent injunction against the petitioners herein by contending that the property comprised in Khasra No. 135 measuring 14 Kanals and 17 Marlas situated in Mauza Kamela, Sherwan, District Abbottabad is Shamilat-e-Deh property reserved to meet out the livelihood expenses of the Imam of the mosque and the petitioners/defendants be restrained from raising construction, digging, interfering, Aftab P.S/* Justice Syed Arshad Ali

changing the nature or doing any other act detrimental to the rights of mosque. In Para “Bay” of the plaint, possession was sought if during pendency of the suit, the petitioners/ defendants succeed to raise construction etc.

and to change its nature, while in para “Jeem” possession of the suit property was sought with the contention that since the petitioner/defendant No. 1 has been removed from the mosque and another Imam has been appointed in the mosque, therefore, he is not entitled to retain the possession of suit property. It is averred in the plaint that the suit property was Shamilat-e-Deh and was reserved to meet the livelihood expenses of Imam of Mosque of the Deh. The forefathers of the petitioners/defendants remained Imam of the mosque for about last 150 years and were occupying the suit property against their Imamat and after the death of father of defendants, the Imamat of the Mosque was assigned to defendant, but since he was short of any religious education qua trimming his beard, therefore he was removed from the Imamat and a new Imam was appointed. Now the defendant No. 1 was bent upon to raise construction of house over the suit property for which he is not entitled because the suit property has solely been reserved for the person performing the duties of Imam in the Mosque.

Aftab P.S/* Justice Syed Arshad Ali

3.The learned trial court issued notice to the petitioners/defendants who appeared and contested the suit by filing written statement wherein they negated the stance of respondents/plaintiff and contended that the suti was filed malafidely and the suit property was in their possession from the time of their forefathers, wherein they are not going to make any new construction but the renovation of already construction house is being made.

It was further pleaded that the disputed property is Waqf in their favour and is now “Seri” which cannot be reclaimed by the owners of the village. After framing issues out of divergent pleadings of the parties and i

recording pro and contra evidence, the learned trial Court decreed the suit of the plaintiffs/respondents vide judgment and decree dated 12.01.2012. The petitioners/defendants assailed the said judgment and decree through Civil Appeal No. 12/13 of 2012 which was dismissed by the learned appellate court vide judgment and decree dated 27.03.2014.

4.Heard.

5.Patwari Halqa appeared as PW-1 who has produced the Jamabandi relating to the suit property for the year 2000-01, 2004-05 and Khasra Girdawri.

Muhammad Shabir SOK Abbottabad appeared as PW-2 Aftab P.S/* Justice Syed Arshad Ali

who produced Misl-e-Haqiyat of the year 1948-49 and photocopy of Wajib-ul-Arz as Ex PW-2/2. Plaintiff Malik Munsif Khan appeared as PW-3 who has stated that the suit property is a Waqf property for the mosque of the village and is in the permissive possession of the Imam of the mosque in lieu of his Imamat as “Seri”. The suit property is the ownership of the proprietary of the village. He has further stated that the forefathers of the present petitioners were performing the noble function of Imamat of the village, however, the petitioner was removed from Imamat as he was lacking religious knowledge. The present petitioner appeared as DW-1 and i

has stated that his family were performing the functions of Imamat since their forefathers and as such he is in possession of the suit property as “Seri”. However, in his cross examination, he has admitted that he has been removed from the position of Imamat.

6.The record further reveals that law and order situation has arisen among the parties on the issue of Imamat, hence on the intervention of District Administration different persons were appointed as Imam of the Masjid.

7.However, the controversy before me is what is the status of this property, whether the suit property has Aftab P.S/* Justice Syed Arshad Ali

been dedicated to the mosque for the use of Imam of the mosque as long as he is performing his functions as Imam or the petitioner becomes Malik-e-Qabza of the suit property in view of the status of the disputed property as “Seri”.

8.The status and the contents of the revenue

documents produced have not been denied by any party to the suit, hence, the contents/entries in the said documents are admitted, so would obviously determine the nature of the suit property. In this regard the first document is Wajib-ul-Arz which was prepared in the

settlement of 1948-49. Admittedly the suit property is the i

only Shamilat which is reflected in Wajib-ul-Arz as (page 47). ....

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9.The corresponding revenue document is Misl-e- Haqiyat and Jamabandies of the suit property. According to the Register Haqdaran Zameen, the suit property comprised of Khasra No. 135 is Shamilat Deh owned by the proprietary body of the village. In the column of cultivation, Molvi Muhammad Yaqoob, the predecessor of the petitioner is recorded to be in possession of the suit property as Ghair Dakhilkar whereas in the column of Lagan it has been imentioned as “Bila Lagan Bawaja Imam Masjid”.

10.Since the Wajibul Arz gives an impression that in view of the nature of the property being “Seri”, the Imam is not required to pay the rennet to the propriety owner of the property. The defendant claims that when the property is given to the father as Seri, in view of the judgment of the superior courts, they have become Malik Qabza of the suit property and he could not be dispossessed even if he abandons the Imamat of the Masjid.

Aftab P.S/* Justice Syed Arshad Ali

Announced. JUDGE Dt.05.10.2017.

i

Aftab P.S/* Justice Syed Arshad Ali