Pankaj Mithal, J. - (1.) A Waqf -Alal -Aulad was created by Dr. Maulvi Hazi -ur -Reham Khan Nawab Sarvar Yar Jang Bahadur in the year 1945. His grand -son Zia -ur -Rehman Khan Sherwani is a Mutwalli of the said waqf. His real sister Smt. Faiqa Khatoon is living in a part of the waqf property allegedly with the permission of the earlier Mutwalli. The aforesaid Mutwalli filed a suit for her eviction from the portion of the waqf property occupied by her. She defended the suit alleging herself to be one of the beneficiary of the waqf. The suit was dismissed by the lower court but in appeal it was decreed by the lower appellate court. The Second Appeal preferred by the Defendant -Appellant Smt. Faiqa Khatoon was allowed vide judgment and order dated 15.12.08. The judgment, order and decree of the lower appellate court was set aside and that passed by the court of first instance dismissing the suit was restored. The Defendant -Appellant Smt. Faiqa Khatoon was held to be one of the beneficiaries under the waqf entitled to live in the portion of the waqf property.
(2.) THE Plaintiff -Respondent Zia -ur -Rehman Khan Sherwani has applied for the review of the judgment and order dated 15.12.08. I have heard Sri M.K. Gupta, learned Counsel for the applicant (Plaintiff -Respondent) in the presence of Sri S.C. Verma, learned Counsel for the Defendant -Appellant.
(3.) THE first submission of Sri M.K. Gupta, learned Counsel for the Plaintiff -Respondent is that after the pronouncement of the judgment and order in this appeal new evidence has been discovered which despite due diligence was not available earlier and in view of the same the judgment and order requires to be reviewed. The said evidence is in the form of a Urdu Magazine 'The Jamhoor', 1951 edition carrying an article by Khan Bahadur Dr Sheikh Mohammad Abdullah, Advocate one of the witnesses to the aforesaid wakf deed to the effect that the Waqif initially had created the Waqf -Alal -Aulad even for the benefit of the daughters of the family but later on he made certain changes and excluded the daughters of his sons from such benefit. He has further submitted that the relevant clause of the wakf deed wherein the daughters of the sons were actually excluded from the benefit of the wakf was not considered by the Court and as such there is an error apparent. in the judgment.;