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2003 DIGILAW 1447 (PNJ)

Punjab Wakf Board v. Amar Singh

2003-10-17

N.K.SODHI

body2003
Judgment N.K.Sodhi, J. 1. This regular second appeal directed against the judgment and decree dated 19.9.1979 passed by the District Judge, Jind reversing that of the Subordinate Judge, Narwana and dismissing the suit for possession filed by the plaintiff-appellant. 2. Brief facts giving rise to this appeal may first be noticed. 3. Punjab Wakf Board (for short the Board) the appellant herein filed a suit for possession of the land in dispute alleging that the land was owned by Masjid Muslman Kheri Sher Khan and was under the management of the Board and that it was being leased out by the Board from time to time. It was further alleged that the Board had leased out the land to one Ishwar up to 30.6.1975 on yearly basis and that the lease of the said Ishwar who is the son of Amar Singh defendant-respondent was terminated by a notice dated 29.5.1976. According to the Board the land was then leased out to Ziaudin defendant No. 2 in the suit in the year 1976-77 on a annual rent of Rs. 900/- and that possession of the same had been delivered to him. It was pleaded that Amar Singh defendant No. 1 in connivance with his son Ishwar got khasra girdawari of the suit land changed in his name and on that basis he instituted a suit for prohibitory injunction against defendant No. 2 in the Court of Sub Judge Ist Class, and declined to deliver possession to the plaintiff. Hence, the suit for possession by the Board. 4. The suit was contested by Amar Singh alone who admitted in the written statement that the land in dispute was owned by Masjid Muslman Kheri Sher Khan. He, however, contended that the Board had no concern whatsoever with the land in dispute and claimed that he had become owner of the suit land by adverse possession alleging that he had been in possession of the same for a period of 30/35 years openly and to the knowledge of the true owner. Some other objections had also been taken by him in the statement and pleadings of the parties gave rise to the following issues; 1. Whether the plaintiff-Board is the owner of the suit property? OPP 2. Whether Abdul Satar the Wakf Officer, Hissar Circle has the authority to file the suit on behalf of the plaintiff-Board? OPP 3. Some other objections had also been taken by him in the statement and pleadings of the parties gave rise to the following issues; 1. Whether the plaintiff-Board is the owner of the suit property? OPP 2. Whether Abdul Satar the Wakf Officer, Hissar Circle has the authority to file the suit on behalf of the plaintiff-Board? OPP 3. Whether the Civil Court has no jurisdiction? OPD 4. Whether the defendant No. 1 has become owner of the suit land by adverse possession? OPD 5. Whether the suit is time barred? OPD 6. Whether the plaint is not verified according to the provisions of law; if so its effect? OPD 7. Whether the suit land was leased to defendant No. 2 as alleged in the plaint, if so its effect? OPP 8. Whether the suit has not been properly valued for purposes of Court fee and jurisdiction? OPD 9. Relief. Issue No. 1 had not been properly framed and with the consent of the parties it was recast as under: 1. Whether Masjid Muslam Kheri Sher Khan is the owner of the suit land, if so whether the same is managed by Punjab Wakf Board, Ambala Cantt ? O.P.P. The trial Court decided issues Nos. 1 and 2 in favour of the plaintiff and against the defendant Issues Nos. 3, 5, 6 and 8 were not pressed during the course of arguments and were, therefore, decided in favour of the plaintiff whereas issue No. 7 was decided in favour of the plaintiff and against the defendant. Consequently, the trial Court decreed the suit. Feeling aggrieved by the judgment and decree of the trial Court, Amar Singh respondent filed an appeal in the Court of District Judge which was allowed on 19.9.1979. The correctness of the findings under issue No. 1 alone was challenged in appeal and the lower appellate Court reversed those findings and dismissed the suit of the plaintiff. Hence this second appeal by the Board. 5. I have heard the learned counsel for the parties and am of the view that appeal deserves to succeed and that the judgment and decree passed by the lower appellate Court cannot be sustained. It is common case of the parties that the land in dispute is owned by Masjid Muslman Kheri Sher Khan. As already observed Amar Singh defendant in his written statement has admitted this fact. It is common case of the parties that the land in dispute is owned by Masjid Muslman Kheri Sher Khan. As already observed Amar Singh defendant in his written statement has admitted this fact. Even otherwise Ex.P-6 is a copy of the jamabandi pertaining to the suit land for the year 1970-71 and in this jamabandi Masjid Muslman Kher. Sher Khan is recorded owner of the suit land. The defendant has also produced copies of khasra girdawaris Ex.D-1 to Ex.D-4 from the year 1964 to 1976 and in all these documents Masjid Muslman Kheri Sher Khan has been recorded as owner of the suit land! The only question that needs to be considered is whether the suit land had vested in the Board for the purposes of its management. The Board has produced/ on record a notification issued by in the Gazette of India on December 19,1970 under Sub-section (2) of Section 5 of the Wakf Act, 1954 (for short the Act) publishing the list of wakfs existing in composite Punjab State. The land in dispute is mentioned therein at serial No. 1897. The trial Court placed reliance on this notification and came to the conclusion that the land in dispute vests in the Board for the purposes of management and since the plaintiff has failed to prove that he had become owner of the land by adverse possession, the Board was managing the land in dispute and was entitled to seek possession from Amar Singh respondent who was in unauthorised occupation of the same. The lower appellate Court took a contrary view and held that the notification issued by the Board was final and conclusive only qua the Board; the Mutawallis of the Wakf or any person interested therein and that it could not bind any third party. The lower appellate Court came to the conclusion that the notification was not binding on Amar Singh-respondent and, therefore, it was incumbent upon the Board to lead independent evidence to show that the land in dispute was wakf property and that the same had vested in it. I am unable to agree with the reasoning of the lower appellate Court. The lower appellate Court came to the conclusion that the notification was not binding on Amar Singh-respondent and, therefore, it was incumbent upon the Board to lead independent evidence to show that the land in dispute was wakf property and that the same had vested in it. I am unable to agree with the reasoning of the lower appellate Court. Section 2(h) of the Act defines a interested in a wakf and means any person who is entitled to received any pecuniary or other benefits from the wakf and includes.(i) any person who has a right to worship or to perform any religious rites in a mosque, idagh, imambara, dargah, khangah, maqbara, grave-yard or any other religious institution connected with the wakf and any religious or charitable institutions under the wakf, and (ii) the wakf and any descendant of the wakf and the mutawalli. Sections 5 and 6 of the Act are reproduced hereinafter for facility of reference: "5. Publication of list of wakfs:- (1) On receipt of a report under Section (3) of Section (4), the State Government shall forward a copy of the same to the Board. (2) The Board shall examine the report forwarded to it under Sub-section (1) and publish, in the Official Gazette, a list of wakfs containing such particulars as may be prescribed. "6. Dispute Regarding Wakfs.- (1) If any question arises whether a particular property specified as wakf property in a list of wakfs published under Sub-section (2) of Section 5 is a Wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the Mutawalli of the wakf or any person interested therein may institute a suit in a civil court of competent jurisdiction for the decision of the question and the decision of the civil court in respect of such matter shall be final; Provided that no such suit shall be entertained by the civil court after the expiry of one year from the date of the publication of the list of wakfs under Sub-section (2) of Section 5. Provided further that in the case of list of wakfs relating to any part of the State and published or purporting to have been published before the commencement of the Wakf (Amendment) Act, 1969, such suit may be entertained by the Civil Court within the period of one year from such commencement. Explanation.- For the purpose of this section and Section 6-A, the expression "any person interested therein", occurring in Sub-section (1) of this section and in Sub-section (1) of Section 6-A, shall in relation to any property specified as wakf property in a list of wakfs published, under Sub-section (2) of Section 5, after the commencement of the Wakf (Amendment) Act, 1984, shall include also every person who, though not interested in the wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under Section 4. (2) Notwithstanding anything contained in Sub-section (1), no proceeding under this Act in respect of any wakf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit. (3) The Survey Commissioner shall not be made a party to any suit under Sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or of any rules made thereunder. (4) The list of wakfs published under Sub-section (2) of Section 5 shall unless it is modified in pursuance of a decision of the civil Court under Sub-section (1), be final and conclusive. A reading of the aforesaid provisions would make it clear that whenever a question arises whether a particular property is wakf property or not, the same shall be decided by the civil Court of competent jurisdiction and the decision of the Civil Court in respect of such a matter is final. In the case before us the Board instituted the suit out of which the present appeal has arisen and Amar Singh defendant took a plea in the written statement that the Board had no concern with the land in dispute and that he had become the owner thereof by adverse possession. In the case before us the Board instituted the suit out of which the present appeal has arisen and Amar Singh defendant took a plea in the written statement that the Board had no concern with the land in dispute and that he had become the owner thereof by adverse possession. Evidence was led by the parties and the trial Court came to the conclusion that Amar Singh had failed to prove his ownership by way of adverse possession. Thus, finding was not challenged in appeal before the learned District Judge nor has the same been challenged before this Court in appeal. Now when Amar Singh has failed to prove his ownership and it is his own case in the written statement that Masjid Muslman Kheri Sher Khan is the owner of the land in dispute and this land is mentioned in the notification at serial No. 1897, there can be no doubt that the land vests in the Board for the purposes of management and it could recover possession from Amar Singh who was in its unauthorised occupation. The judgment of this Court in Punjab Wakf Board v. Commissioner, Patiala Division and Ors., 1973 Revenue Law Reporter 467 does not apply to the facts of this case. It is true that the notification issued by the Board under Section 5(2) of the Act is not binding on any third party but this is subject to the decision of the civil Court in which it is open to the third party to plead that he is the owner thereof. Amar Singh took the plea that he was owner thereof and failed to substantiate the same. Therefore, in view of the notification it has to be held that the property vests in the Board for the purposes of management. In Punjab Wakf Boards case (supra) the unauthorised occupant from the land in dispute was sought to be evicted by the Gram Panchayat under Section 7 of the Punjab Village Common Lands (Regulation) Act, 1961 . The plea of the Gram Panchayat was that the land had vested in it and that the occupant was in authorised occupation. The unauthorised occupant, on the other hand, took the plea that he was a tenant under the Board who was the owner in possession of the land in dispute. The plea of the Gram Panchayat was that the land had vested in it and that the occupant was in authorised occupation. The unauthorised occupant, on the other hand, took the plea that he was a tenant under the Board who was the owner in possession of the land in dispute. The authorities under the Punjab Village Common Lands (Regulation) Act, 1961 came to the conclusion that the land had vested in the Gram Panchayat and the unauthorised occupant could be evicted under Section 7 of the Act. The notification issued under Section 5(2) of the Act was held not to be binding on the unauthorised occupant in the absence of any findings by the civil Court. In the case before us the civil Court has found that Amar Singh respondents is unauthorised occupant and is not the owner of the property. 6 In the result, the appeal is allowed, judgment and decree of the lower appellate Court set aside and that of the trial Court restored and the suit of the plaintiff-appellant decreed. There is no order as to costs.