MASJID THROUGH SH. ASHRAF KURESHI, ESTATE OFFICER PB. WAKF BOARD, SHIMLA v. DAULOO
1999-10-01
M.R.VERMA
body1999
DigiLaw.ai
JUDGMENT M. R. Verma, J.: This appeal is directed against the judgment and decree dated August 11, 1992 passed by the learned Additional District Judge, Solan whereby the appeal of the respondent/defendant (hereafter referred to as defendant) against the judgment and decree dated May 23, 1991 passed by the learned Sub Judge, I-Class, Nalagarh decreeing the suit of die appellant/plaintiff (hereafter referred to as plaintiff) has been set aside. 2. The facts leading to the presentation of this appeal may be set out as follows. The plaintiff instituted a suit for possession of land measuring 1 bigha 4 biswas comprising Khasra No. 14, Khewat/Khatauni No. 36/36 min, situate in village Kalyanpur Tehsil Nalagarh, District Solan. Case of the plaintiff as made out in the plaint is that the defendant was never inducted as a tenant by the plaintiff over the suit land and the entries in the revenue records showing him as such are illegal, null and void and mutation No. 270 decided on April 29, 1979 conferring proprietary rights of the suit land on the defendant, is illegal and the subsequent entries showing the defendant as owner are also illegal. It is further averred that the defendant has no right, title or interest in the suit land and he has several times requested to hand over the possession of the suit land to the plaintiff but of no avail. Hence the suit. 3. The defendant contested the claim of the plaintiff. In his written statement, he took preliminary objections that the suit was not within time, the suit was not maintainable, the plaintiff has no locus standi to institute the suit and there is no cause of action in favour of the plaintiff, that the plaintiff is estopped to file the suit by the act, conduct and acquiescence of the plaintiff and that the Secretary of the plaintiff has no power to institute the suit. On merits, it has been claimed that the suit land earlier was in possession of the defendant as a tenant under the plaintiff and as per the law, proprietary rights over the suit land have been conferred upon him and he is thus owner in possession of the suit land. He has, thus, denied the claim as made out in the plaint. 4. On the pleadings of the parties, the learned trial judge framed the following issues: "1.
He has, thus, denied the claim as made out in the plaint. 4. On the pleadings of the parties, the learned trial judge framed the following issues: "1. Whether the plaintiff is owner of the suit land? OPP. 2. Whether the defendant is in possession of the suit land as tenant? OPD. 3. Whether the suit is not maintainable? OPD. 4. Whether the suit is not within time? OPD. 5. Whether the plaintiff is estopped to file the suit on his act and conduct? OPD. 6. Relief." 5. Vide judgment dated May 23, 1991, the learned trial Judge decided issue No. 1 in favour of the plaintiff, issue No.2 was partly decided in favour of the defendant and the remaining issues were decided against the defendant and as a consequence, the suit was decreed. 6. Feeling aggrieved, the defendant preferred an appeal which was heard and allowed by the learned Additional District Judge, Solan by the impugned judgment and the judgment and decree passed by the learned trial Judge were set aside. Hence this appeal by the plaintiff. 7. I have heard the learned counsel for the parties and have also gone through the records. 8. This appeal has been admitted for hearing on the following substantial question of law:- "Whether the proprietary rights of the] property in dispute, which is admittedly a Wakf property and governed by Wakf Act which is a Central Act, could be conferred on the respondent under the H.P. Tenancy and Land Reforms Act, which is a State Law." 9. At the time of arguments neither the learned counsel for the plaintiff has been able to show nor do I find any provision in the Wakf Act, 1954 as in force at the relevant time, which may save the parcel of tenancy of agricultural land from the operation and legal consequences of any other enactment whether central or of the State effecting the rights of the party over such tenancy. 10. Similarly, a parcel of land owned by a Wakf and in the cultivating possession of a tenant is not save from the operation of Section 104 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 by any provision contained in the said Act.
10. Similarly, a parcel of land owned by a Wakf and in the cultivating possession of a tenant is not save from the operation of Section 104 of the Himachal Pradesh Tenancy and Land Reforms Act, 1972 by any provision contained in the said Act. Though certain leases of agricultural land have been saved from the operation of Section 104 supra, but the lease of agricultural land owned by a Wakf is not exempted from the operation of the said Section. Thus, the proprietary rights in the land in suit, which was the Wakf property but in the cultivating possession of the defendant as a tenant could evidently be conferred on the defendant under Section 104 of the Himachal Pradesh Tenancy and Land Reforms Act. 11. No other substantial question of law is involved in this appeal for determination. 12. The other findings as recorded by the learned District Judge are findings of the facts which do not cal 1 for any interference by this Court because no perversity has been found therein. 13. As a result, the appeal fails and is accordingly dismissed. Costs on parties.