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Petitioner: Alhah DIWAN BUKHTIAR SAID MUHAMMAD VS Respondent: DIWAN MAUDOOD MASOOD
Court Name: Lahore High Court Judge(s): Sh. Abdul Rashid Title: Alhah DIWAN BUKHTIAR SAID MUHAMMAD vs DIWAN MAUDOOD MASOOD Case No.: Civil Revision No,349 of 2004 Date of Judgment:2006-05-29 Reported As: 2006 YLR 2517 Result: Revision accepted
JUDGMENT
JUDGMENT ' SH. ABDUR RASHID, J.---The petitioner through this petition seeks reversal of the judgment and decree passed by the learned Additional District Judge, Pakpattan in appeal on 8-5-1996, whereby the petitioner's suit for declaration and injunction decreed by the trial Court on 19-7-1993 was dismissed and further seeks the restoration of the judgment and decree passed by the learned trial Court. 2. The facts leading to this revision petition are that the petitioner had filed suit seeking a declaration and injunction that he is legally entitled Gaddi Nashin and Sajjada Nashin of Darbar Baba Farid Ganj Shakar (Rahmat Ullah Alaiha) and Maulana Badarud-Din Ishaq (Rahmat Ullah alaiha) and therefore, can rightly conduct all affairs and ceremonies (Rasoomaat) related to the said offices. As a consequential relief the petitioner sought an injunction that the defendant be restrained from calling himself/being called or pretending to be the Gaddi Nashin or Sajj'cla Nashin of the exalted Darbar or performing any function of ceremonies (Rasoomaat) relating to the said offices or interfering with the official function of the plaintiff/petitioner and further be also permanently restrained from making or using the title of Gaddi/ Sajjada Nashin. The facts giving rise to the filing of the suit by the petitioner/plaintiff as emanating from his pleadings are that the shrine of Hazrat Baba Farid-ud-Din Ganj Shakar (Rahmat Ullah Alaiha) is situated in District Pak Pattan. Dewan Allah Jiwaya was Gaddi/Sajjada Nashin of the Hazrat Baba Farid-ud-Din Ganj Shakar (Rahmat Ullah Alaiha) and Hazrat Maulana Badarud-Din Ishaq (Rahmat Ullah Alaiha) who on 24-7-1884 by his will/Khalafat Nama appointed Dewan Said Muhammad, father of the petitioner/plaintiff as Gaddi Nashin and Sajjada Nashin of the said shrine. The father of the plaintiff vide will/Khalafat Nama dated 18-3-1933 appointed Dewan Qutab-ud-Din, brother of the petitioner,
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as Gaddi/ Sajjada Nashin of the shrine who was performing the sacred ceremonies of the holy shrine and often associated the petitioner with him. As such the petitioner was well acquainted with all the ceremonies of the holy shrine; that the petitioner at the behest of the last Dewan performed all the welfare and improvement work related to the shrine. The respondent/defendant during lifetime of the petitioner's brother last Dewan in the year 1981 started claiming himself to be Gaddi/Sajjada Nashin and attempted to perform Rasoomaat and' the last Dewan vide publication in the "Daily Nawa-I-Waqt" and the "Daily Mashriq" dated 13-9-1981 disqualified and proscribed him from performing the said ceremonies and thereafter the petitioner on behalf of his brother/last Dewan had been performing all the ceremonies; that in the year 1973 last Dewan late Ghulam Qutab-ud-Din proceeded for performing Hajj and he got appointed the petitioner by Auqaf Department Multan Zone Multan for performing the ceremonies related to the shrine vide letter No,MZ/MY/16/UF/638 dated 22-1-1973. No other person was allowed to perform the ceremonies relating to the above shrine because the late Dewan used to consider the petitioner as his valid successor to the Gaddi; that on behalf of the Dewan the petitioner effected several improvements in the building of the shrine. He constructed the roof of the mosque "Aulia" in 1969; verandah for women in the year 1976; got carried out marble work in and out of the shrine; got shelves and almirahs made for "Bashishti Gate" for protection of the Holy Quran; got constructed Guest Rooms in 1974 and since then the petitioner is distributing "Langar Tuaam" to the visitors day and night from his own expenses. All these jobs were done with the consent and desire of the late Dewan; that the petitioner has been performing "Rasam-e-Chiraghan" since 1974 and has been making arrangements for the "Sehar" and "Iftar" during Ramazan-ulMubarik in the mosque attached to the shrine; that the late Dewan had told his believers to make "Baait" at the hands of the petitioner as he considered him as successor of Hazrat Baba Farid-ud-Din Ganj Shakar (Rahmat Ullah Alaiha) and the petitioner had undertaken journeys to various European countries for the preaching of religion of Islam and message of Hazrat Baba Farid-ud-Din Ganj Shakar (Rahmat Ullah Alaiha) and that the petitioner for all intents and purposes is entitled to hold the office of Gaddi/ Sajjada Nashin of the shrine and that the respondent/defendant has no legal status to claim the said office. 3. The respondent/defendant resisted the petitioner's suit and all his claims to the office of Sajjada/Gaddi Nashin were repudiated. It had been pleaded in the written statement that Diwan Ghulam Qutab-ud-Din, the last Sajjada Nashin of the holy shrine of Hazrat Baba Farid-udDin Ganj Shakkar (Rahmat Ullah Alaiha) and Hazrat Maulana Baha-ud-Din (Rahmat Ullah Alaiha) had appointed him as Sajjada/Gaddi Nashin of the said shrine vide proclamation in the "Daily Nawa- iWaqt" dated 13-11-1980; that the petitioners/plaintiffs had neither attended funeral ceremony/Qul ceremony nor chehlum ceremony of the late Dewan Qutab-ud-Din; that his appointment as Gaddi/Sajjada Nashin of the holy shrine was held in the presence of Ex-Governor of Punjab Makhdoom Sajjad Hussain Qureshi (Sajjada Nashin of the holy shrine of Hazrat Baha-ud-Din Zakria (Rahmat Ullah Alaiha) and ex-Federal Minsiter Mian Ghulam Ahmad Manika which was widely publicized through T.V. And Radio Pakistan; that the late Dewan/father of the respondent/defendant had never removed him from the office of Sajjada/Gaddi Nashin and the news item dated 13-9-1981 appeared in the "Daily Mashriq" and the "Daily Nawa-i-Waqt" were manipulated by the petitioner-plaintiff. It had also been pleaded that the petitioner/plaintiff had obviously been inimical and at dagger drawn with the late Dewan/father of the respondent/defendant till his death and they were locked in litigation and as such there was no occasion for appointment of the plaintiff /petitioner as Sajjada/Gaddi Nashin of the holy shrine; that the petitioner/plaintiff had manipulated permission of Auqaf Department to perform ceremonies in shrine in 1973 when the late Sajjada Nashin/father of the respondent-defendnat along with the respondent/defendant proceeded for Hajj and that he returned from Saudi Arabia earlier than the date when any ceremony at the shrine was due to be performed and thus the
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petitioner/ plaintiff did not perform any ceremony at the shrine; that the petitioner-plaintiff had participated in the Dastar ceremony of the respondent/defendant conducted in the premises of the holy shrine in the presence of the national dignitaries and was estopped to assert that the respondent was removed from the office of the Gaddi of the holy shrine by the late Dewan and that once he was appointed as Gaddi/ Sajjada Nashin to the holy shrine, he could not have been removed from the said office by any subsequent act and that the late Sajjada Nashin at the time of his death had also reiterated the status of the respondent as his successor in the presence of family members. 4. The learned trial Court, on the pleadings of the parties, framed the following issues:-- (1) Whether the plaintiff has no locus standi to file the present suit? OPD (2) Whether the plaintiff has no cause of action? OPD (3) Whether plaintiff is entitled to a decree as prayed for. (4) Relief. 5. At the trial the petitioner/plaintiff produced Mian Imam Ali (P.W.1), Nazir Ahmad (P.W.2), Muhammad Irshad Ahmad (P.W.3) Tahir Masood (P.W.4), Tariq Masood (P.W.5), himself appeared as P.W.6, Muhammad Bahsir (P.W.7), Qazi Ghulam Akber Farooqi alias Qaiser Farooqi (P.W.8), Mian Hassan Din (P.W.9), Muhammad Boota (P.W.10), Muhammad Munir (P.W.11), Mahboob Ali (P.W.12), Allah Ditta (P.W.13), Muhammad Ishaq Mughal (P.W.14), Muhammad Rauf (P.W.15) and himself again appeared as P.W.16 and brought on record documents Exhs.P.1 to P.11 and closed his evidence. 6. The plaintiff in his evidence tried to prove that the defendant/respondent was removed as Sajjada /Gaddi Nashin by the late Dewan through advertisement in the "Daily Nawa-e-Waqt" and the "Daily Mashriq"; that he never participated in any ceremonies of the Darbar and took no interest in the affairs and welfare of the Darbar; that the petitioner/plaintiff during his lifetime had been associated by the late Dewan and had been participating in the ceremonies and remained associated with the development and welfare of the Darbar; that Auqaf department had permitted him to act as Sajjada Nashin in the absence of the late Dewan and performed the ceremonies and that defendant/respondent by his conduct was disqualified to hold the office whereas the petitioner/plaintiff was fully qualified to hold the same. 7. The respondent/defendant in his evidence examined Munir Hussain (D.W.1), Muhammad Masood (D.W.2), Ramzan (D.W.3), Sabir Hussain (D.W.4), Altaf Ahmad Khan (D.W.5), Muhammad Sharif Shah (D.W.6), Ahmad Hassan (D.W.7), Fateh Muhammad (D.W.8), Muhammad Yar Daha (D.W.9), Badar Mueen-ud-Din (D.W.10), Ghulam Farid (D.W.11), Mian Manzoor Ahmad Maneka (D.W.12), Muhammad Tahir Sabri (D.W.13), Falak Sher (D.W.14), Syed Shamsher Ali Shah (D.W.15), Muhammad Rafiq (D.W.16), Muhammad Yar (D.W.17) Khadim Hussain (D. W. 18), Diwan Maudood Masood himself appeared as (D.W.19), Pir Ghulam Farid Chishti (D.W.20), Ahmad. Hassan Chishti (D.W.21) and defendant-petitioner brought on record documents Exh.D.1 to Exh.D.12 and mark 'A' and 'B'. 8. The crux of the evidence of the respondent/defendant is that he was nominated as Sajjada/Gaddi Nashin by the late Dewan during his lifetime and that upon his demise he was installed as Sajjada/.Gaddi Nashin by the national dignitaries and that on the visit of President and the Prime Minister of Pakistan to the Darbar he had also acted in the said capacity which had been recorded in the shape of video cassettes and that the petitioner/plaintiff and his late father were locked in civil and criminal litigation and because of said enmity and acrimony there was no reason for the late Dewan to nominate or accept the petitioner/plaintiff as Gaddi/ Sajjada Nashin and that there was no occasion or justification for the late Dewan to remove the respondent/defendant from the said office. 9. The learned trial Court upon conclusion of the trial decreed the suit of the petitioner/plaintiff. Feeling aggrieved the respondent/defendant Dewan Maudood Masood filed an appeal, which
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came up for hearing before the learned Additional District Judge, Sahiwal. It may be noted here that during proceedings of the said appeal Dewan Azmat Said Muhammad, a brother of Dewan Maudood Masood, filed an application under Order I, rule 10, C.P.C. For being impleaded as a party. He pleaded that he was a son of late Dewan Qutab-ud-din and prayed that late Dewan during his life time had held Dewan Maudood Masood respondent/defendant disqualified to hold the office of Sajjada Nashin and had nominated him in the year 1986 Sajjada Nashin and that both the contenders to the office of Sajjada/Gaddi Nashin of the Darbar by their conduct were disqualified to hold the said office and he being a validly nominated successor of the late Dewan was entitled to hold the same; that the petitioner/plaintiff while instituting the suit did not implead him as a party and that he being a necessary party had a right to contest the suit and he prayed that the judgment and decree of the trial Court be set aside and the case be remanded to the learned trial Court for afresh decision after impleading him as a party in the suit filed by the plaintiff. 10. After hearing the parties the learned Additional District Judge, Sahiwal vide the impugned judgment dated 8-5-1996 accepted the appeal of respondent-defendant and set aside tie judgment and decree of the trial Court and also rejected the application under Order I, rule 10, C.P.C. Filed by Dewan Azmat Said Muhammad. 11. Feeling aggrieved by the said impugned judgment Dewan Bakhtiar Said Muhammad petitioner/plaintiff has filed Civil Revision No,349 of 2004. Dewan Azmat Said Muhammad has also filed Civil Revision No,350 of 2004 calling in question the impugned judgment whereby his application under Order I, rule 10, C.P.C. Has been dismissed. Both these petitions are being disposed of together by this single judgment. 12. During pendency of these civil revisions, Dewan Bakhtair Said Muhammad petitioner/plaintiff has filed application bearing C.M. No,1480-C of 2001 under Order XLI, rule 27, C.P.C. Praying for producing the additional evidence in the shape of various documents detailed below:-- (1) Notification No,SO(J-III)HD-9-32/2001 dated 1-4-2001 for appointment of District and Sessions Judge for judicial enquiry into incident dated 26-3-2001 at Mazar Sharif. (2) Letter of Secretary Auqaf dated 13-8-2001. (3) Enquiry report. (4) F.I.R. 117 of 2001 under section 322, P.P.C. Police Station, City Pakpattan. (5) Reply of the respondent to the application and annexed documents. (6) Judgment dated 7-3-2002 in Writ Petition No,16974 of 2001. ' to illustrate the petitioner's evidence already produced which had been resisted by the respondent/defendant Dewan Maudood Masood. However, the genuineness of the documents sought to be produced in additional evidence has not been challenged but only objection had been raised regarding their receipt as additional evidence. 13. During course of arguments the petition for production of additional evidence has not been seriously challenged. All the documents which are sought to be placed on the record are public documents and a judgment of this Court. The genuineness of all these documents is not controverted. These documents only aim at showing that the ceremonies at the Darbar were not held in proper order but were mismanaged while the respondent/defendant was incharge of them. These documents are relevant for just determination of the issues involved in this case. ' Therefore, these documents deserve to be placed on the file to be read in evidence to reach a just finding. 14. Learned counsel for the petitioner in support of his contention has raised the following points:-- (a) the devolution of the office of Sajjada Nashin depends in the first instance upon Waqf Nama/trust deed but no such deed has been produced in the absence of which the issue is to be determined according to the usage, tradition proved to have prevailed with regard to the appointment of Sajjada Nashin in respect of the Darbar;
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(b) that Hazrat Baba Farid-ud-Din Ganj Shakar (Rehmat Ullah Alaiha) himself nominated three Gaddi Nashins: Shah Badaruddin and Shah Allaud Din at Pakpattan Sharif and Sh. Badaruddin. The custom of succession of shrine of Hazrat Baba Farid-ud-Din Ganj Shakar (Rahmat Ullah Alaiha) was that Sajjada Nashin holding office was competent to nominate his successor during lifetime provided that the nominee was agnate and Murid. Succession as per Mohammadan Law or rule of primogeniture is not applied to Darbar of Hazrat Baba Farid-udDin Ganj Shakar (Rehmat Ullah Alaiha); (c) that the office of Gaddi/ Sajjada Nashin is not governed by Mohammadan Law of Succession. Therefore, ceremony of Dastar Bandi will only show a person to be successor of the deceased and would not confer the title of Gaddi Nashin; (d) that the last incumbent Dewan Ghulam Qutab-ud-Din used to consider the plaintiff/petitioner a rightful and perspective Gaddi Nashin and in 1973 the plaintiff/ petitioner performed ceremonies with permission of Auqaf Department vide letter Exh.p.1 as deposed by P. W.1 District Manager Auqaf and this fact was not categorically denied by the defendant or any of his witnesses; (e) that the defendant has adopted two different and conflicting instances; first that he went to the Holy Macca with Ghulam Qutab-ud-Din for performance of Hajj and second that the incumbent Dewan and the defendant returned earlier and performed ceremonies but these stances have not been substantiated by any documentary evidence; (t) that all the witnesses of the defendant have deposed the events which took place after death of the late incumbent and did not state about events that took place during lifetime of the late Dewan and only the latter would be relevant to determine the entitlement and suitability of the new Sajjada/Gaddi Nashin; (g) that the defendant/respondent was considered to be inefficient and incompetent to act as Sajjada Nashin and the letters Exh.p.1 and Exh.P.2 and Mark-A clearly support the said factum, that no objection was raised when these documents were produced and now the defendant is estopped to raise any objection regarding their truthfulness and that the said documents were got published to get the public acquainted with the fact that the nomination of the defendant as Gaddi/ Sajjada Nashin had been cancelled; (h) that during lifetime of the late incumbent the plaintiff/petitioner made many improvements and undertook construction work of Darbar and the said fact clearly supports the version of the plaintiff that the late Sajjada /Gaddi Nashin used to consider the plaintiff a fit person to be a Gaddi Nashin; (i) that the defendant claims this office on the basis of Exh.D.1 but this document is rebutted by Exhs.P.I and P.II whereby nomination of defendant as Sajjada/Gaddi Nashin was cancelled and further the defendant/respondent deposed that Exh.D.1 was executed by the late Dewan at his death bed in presence of D.W.2 and D.W.14 who are close relatives of the defendant and their evidence being interested and of partisan in nature cannot be relied upon; (j) that Muhammad Masood D.W.2 deposed that a written will was executed in favour of the defendant but no such will has been produced by the defendant/respondent on the file; (k) That Ahmad Hassan Chishti, D.W.21 deposed that death bed nomination was stated first to him by late Dewan Ghulam Qutab-udDin and then to the relatives but the facts being very crucial to the fact in issue despite being in knowledge of the defendant was not pleaded in the statement and as such could not be taken into consideration; (1) that the version of the defendant was that he many a times performed ceremonies but he has not shown any permission got from Auqaf Department under section 7 of the Auqaf Act and that no other tangible material has been brought on the file to support the fact that he performed ceremonies during lifetime of the late Dewan;
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(m) that the version of the defendant that in the presence of the son no one can be appointed as Sajjada Nashin is disputed by the fact that brothers were also appointed as Gaddi Nashin. It is for the sitting Gaddi Nashin to appoint his successor expressly or by implication; (n) that the defendant produced video cassettes to show that on visit of the President and Prime Minister of Pakistan the defendant acted as Gaddi Nashin. The mere presence of the defendant at the Darbar along with the said dignitaries does not prove the capacity in which he was present in these ceremonies; (o) that the documents Exhs.D.6 to D.10 pertain to alleged criminal and civil litigation between the petitioner and the late Dewan but these documents were not confronted to the plaintiff/ petitioner when he appeared in evidence; therefore, they cannot be used as evidence against him; and ' That the judgment of the learned trial Court took into account the entire oral as well as documentary evidence produced by both the parties and its findings are well reasoned whereas the judgment and decree of the learned Additional District Judge, only took into account the statements of the plaintiff as well as defendant in deciding the will and ignored all The other evidence and circumstances brought on the file by the plaintiff/petitioner which makes the said judgment legally untenable and that the learned Additional District Judge has mixed up the question of Matwaliship and succession to the office of Sajjada Nashin and the findings of the learned trial Court as contained in Para. 26 of the judgment have been completely ignored and by comparison the judgment of the learned trial Court is more reasoned and plausible and as such to be maintained. 15. The learned counsel for Dewan Syed Maudood Masood while supporting the judgment of the learned Additional District Judge has raised the following contentions:-- (a) that the office of Sajjada/Gaddi Nashin is not the subject-matter of jurisprudence and does not concern any principle of law ennunciated by the Holy Quran and Sunnah but he is head of a Khanqah, a Mohammadan institution developed in the Sub-Continent in many respects analogous to a math where Hindu religious institution is given. Mulla in his Principles of Mohammadan Law points out that a Sajjada Nashin may or may not combine the duties of a Matwali which is essentially a secular office; (b) that the office of Matwli is a recognized office in relation to Waqfs both in Muslim Laws and the Law of Waqfs applicable in the. Sub-Continent. Matwali is a Manager of a Waqf property and has an interest in such an office and a civil suit under section 9, C.P.C. And one for declaration under section 42 of the Specific Relief Act is competent. However, no suit for establishing a mere dignity or honour even though connected with an office is maintainable. Sajjada Nashin is an office of dignity and honour bestowed by the followers of a spiritual leader and not by Courts and a suit in respect of its entitlement is not maintainable; (c) that often a Sajjada Nashin combines in himself the office of Matwali also or as a superior he controls the functions of Mutawali. In both cases the Sajjada Nashin has a vested interest in the properties attached to the Waqf and draws financial benefits from certain earnings of the Waqf. In such cases his entitlement as Sajjada Nashin comes within the purview of section 42 of the Specific Relief Act. The cases decided by the Courts in the Sub-Continent and in the Privy Council concerning the office of Sajjada Nashin are invariably those where Sajjada Nashin was either himself a Matwali or had a right or interest in the office. All these matters were determined with reference to the custom of a particular institution (Khanqah, Darbar, Gaddi etc.) and not with reference to the principles of Shariah. The above state of law underwent radical change firstly by the advent of successive Shariat laws which brought the subject of Waqf under the rule of Muslim Law which does not contemplate Khanqahs and Gaddi Nashin; (d) that the late Dewan expired in 1986 when the Punjab Waqf Properties Ordinance (No,IV) of 1979 was operating. Section 7 of this Ordinance provides for the taking over Waqf property by the Chief
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Administrator of Auqaf and the properties taken over under previous Waqf laws were saved and governed by the Succession Laws. This section added two explanations: The first laid down the control and management of the Waqf property including control and management of religious, spiritual, cultural and other services and Rasoomat at or in the Waqf property while the second explanation stipulated that no person shall perform services or Rasoomat except with the prior permission of the Chief Administrator; (e) that in accordance with the state of law now prevailing, the administration of the Waqf is now in the hand of Chief Administrator Auqaf and Rasoomat and religious rites observed are also controlled by that office. In other words the functions of a Matwali and of the performance of religious Rasoomat are now controlled by the Administrator Auqaf or his appointee and Sajjada Nashin is now mere office of dignity having no legal support or position and no claim for this office is legally maintainable as for the Rasoomat etc. The same can be performed only with the prior permission of the Chief Administrator. It is not the petitioner/plaintiff's case that he has such an approval nor is the suit directed against the officials of the Auqaf Department; (t) that the respondent/defendant has performed the Rasoomat and other religious rights and functions with the approval of the Chief Administrator of Auqaf ever since the death of the late Diwan in the year 1986 except when he was stopped for this purpose by the order dated 13-8-2001 which was set aside by this Court on 7-3-2002 in Writ Petition No,16974 of 2001; (g) that the devotees and the concerned people have accepted the respondent as their Sajjada Nashin ever since 1986 and it was precisely for that reason that he was appointed by the Auqaf Department to perform the Rasoomat also and that in view of section 7 of the…
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