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2004 DIGILAW 1051 (PNJ)

Punjab Wakf Board v. Gram Panchayat

2004-09-15

RAJIVE BHALLA

body2004
Judgment Rajive Bhalla, J. 1. The present Regular Second Appeal has been filed by the Punjab Wakf Board impugning the judgment and decree of the Additional District Judge, Hisar, dated 2.1.1984, whereby the judgment of the Sub Judge, 1st Class, Hissar, dated 2.2.1983 was set aside and the appeal accepted. 2. A brief narrative of the facts of the case would be appropriate. 3. Respondent No. 2, claiming himself to be a lessee of the property in dispute, from the Punjab Wakf Board-appellant herein, sought to injunct the Gram Panchayat-respondent No. 1 herein, from interfering in his possession. The plaintiff-respondent No. 2 herein pleaded that the land in dispute was a Wakf properly, which vested in the Punjab Wakf Board and, therefore, the Board had every right in law to lease out the property to him. The Gram Panchayat had no right to interfere in his possession. 4. The appellant-Wakf Board put in appearance and admitted the contents of the plaint. The Gram Panchayat contested the suit on the plea that the land in dispute did not vest in the Punjab Wakf Board as it was owned and possessed by the Gram Panchayat. It was also averred in the written statement that the present suit was barred by the provisions of Order 2 Rule 2 of the Code of Civil Procedure (hereinafter referred to as the Code), as the earlier suit, filed by the plaintiff, had been dismissed in default. 5. The trial Court, on the pleadings of the parties, framed the following issues:- (1) Whether the plaintiff is in possession of the suit land as a lessee under Punjab Wakf Board, if so, to what effect? OPP (2) Whether the suit is barred under Order 2 Rule 2 C.P.C.? OPD (3) Whether the land in dispute is a graveyard and is used for the common purposes of residents of the village, if so to what effect? OPD (4) Whether the suit is maintainable in the present form? OPP (5) Whether the plaintiff has no locus standi to file this suit? OPD (6) Whether the suit is bad for non-joinder of necessary parties? OPD (7) Whether the suit is not maintainable as alleged in para No. 2 in the preliminary objections of the written statement? OPD (8) Relief." 6. OPP (5) Whether the plaintiff has no locus standi to file this suit? OPD (6) Whether the suit is bad for non-joinder of necessary parties? OPD (7) Whether the suit is not maintainable as alleged in para No. 2 in the preliminary objections of the written statement? OPD (8) Relief." 6. It would be appropriate to mention here that after the plaintiff had led his evidence, the Gram Panchayat failed to lead any evidence in support of its claim and consequently, the learned trial Court was left with no alternative but to strike off the Gram Panchayats defence. Thereafter, the Gram Panchayat filed an application for additional evidence, which was also dismissed. 7. The learned trial Court, on the basis of evidence, led before it, arrived at a conclusion that the land in dispute vested in the Punjab Wakf Board and, therefore, it had every right to lease the land to the plaintiff. The trial Court also held that the suit was not barred by the provisions of Order 2 Rule 2 of the Code. The suit was decreed and the Gram Panchayat was restrained from interfering in the plaintiffs cultivating possession as a lessee. 8. Aggrieved by the aforementioned judgment and decree, the Gram Panchayat-respondent No. 1 herein, filed an appeal before the Additional District Judge, Hisar. 9. The first appellate Court reversed the judgment of the trial Court, dismissed the suit and accepted the appeal. The first appellate Court held that the suit was barred by the provisions of Order 2 Rule 2 of the Code and also proceeded to hold that as the land was a graveyard, though owned by the Wakf Board, the Wakf Board had no jurisdiction to alter its nature and lease out the land to the plaintiff. The first appellate Court, however, did not reverse the finding that the land in dispute was wakf property and vested in the Wakf Board. 10. I have heard learned counsel for the parties and perused the record of the case. 11. Counsel for respondent No. 1 has raised a preliminary objection, to the effect that the Wakf Board, being a defendant in the suit, and not having filed any appeal against the judgment and decree of the trial Court, had no right to file the present appeal and, therefore, the present appeal be dismissed, being not maintainable. 12. 11. Counsel for respondent No. 1 has raised a preliminary objection, to the effect that the Wakf Board, being a defendant in the suit, and not having filed any appeal against the judgment and decree of the trial Court, had no right to file the present appeal and, therefore, the present appeal be dismissed, being not maintainable. 12. Counsel for the appellant, on the other hand, contends that the question whether a party is a defendant or a plaintiff is irrelevant for the purpose of filing an appeal. The right to impugn a judgment and decree is not dependent upon the array of parties but as to whether the rights of a party are, in any manner, infringed by the judgment. A party, whose rights are, in any manner, affected or infringed by a judgment, would always be empowered to impugn the said judgment, by way of an appeal. There is no provision in the Code, which supports the contentions, raised by counsel for respondent No. 1. 13. Reliance for the above proposition is placed upon the judgments reported as Smt. Sripathi Susheela v. Smt. K. Venkata Ramana Rajeswari Devi, 1997(2) Civil Court Cases 231 (A.P.); P.N. Kesavan and Anr. v. Lekshmy Amma Madhavi Amma and Ors., A.I.R. 1968 Kerala 154 and Koodi v. Baboo and Ors., A.I.R. 1959 Rajasthan 127. 14. Before deciding the controversy on merits, it would be appropriate to decide the aforementioned preliminary objection first. 15. The appellant was defendant No. 2 in the suit. The trial Court decreed the suit and held that the appellant was the owner of the land and, therefore, competent to lease the same to the plaintiff. As the appellant had no grievance against the said judgment and decree, it did not file any appeal. However, when the first appellate Court held that the appellant had no right to lease out the property, being a graveyard, the rights of the appellant stood infringed and, therefore, the appellant was justified in filing the present appeal. The right to file an appeal, in my opinion, is not dependent upon the array of parties i.e. whether a party is a plaintiff/defendant or an appellant/respondent. The right to impugn a judgment/decree depends upon the findings, returned by a Court of law. The right to file an appeal, in my opinion, is not dependent upon the array of parties i.e. whether a party is a plaintiff/defendant or an appellant/respondent. The right to impugn a judgment/decree depends upon the findings, returned by a Court of law. If the findings, affect/infringe the rights of a party, that party would, irrespective of its being a plaintiff/defendant or appellant/respondent, be entitled to impugn the same so as to seek legal redress. Any other interpretation to the right to file an appeal, in my opinion, would divest such a party of a right to seek legal redress. Furthermore, as the findings, returned against a party, would operate as res judicata, such a party would be divested of its right to legal redress. In this view of the matter, I find no substance in the preliminary objection, raised by counsel for respondent No. 1 and reject the same. 16. Counsel for the appellant has raised the following question of law:- 1. Whether the first appellate Court was justified in holding that the present suit was barred by the provisions of Order 2 Rule 2 of the Code? 2. Whether the first appellate Court was right in holding that as the land was graveyard, the appellant was obliged to use the same as such and, therefore, could not lease out the land? 17. Counsel for the appellant contends that the first appellate Court committed a serious error of law, while dismissing the suit and accepting the appeal on the ground that the suit was barred by the provisions of Order 2 Rule 2 of the Code. The provisions of Order 2 Rule 2 of the Code apply only where a set of facts gives rise to two or more causes of action and multiple reliefs. If the plaintiff fails to sue for any cause of action or fails to claim any relief, he cannot, subsequently, sue, on the basis of a cause of action or relief, omitted in the earlier suit. In the present case, the prior suit was filed to prevent a threatened invasion of the plaintiffs right to remain in possession of the land in dispute. As the said threat disappeared, the plaintiff did not pursue the suit. In the present case, the prior suit was filed to prevent a threatened invasion of the plaintiffs right to remain in possession of the land in dispute. As the said threat disappeared, the plaintiff did not pursue the suit. The present suit was subsequently filed, on the basis of a fresh threat, as is detailed in the plaint and, therefore, the present suit being based upon a fresh cause of action, would not attract the bar of the provisions of Order 2 Rule 2 of the Code. 18. Counsel for respondent No. 1, on the other hand, contends that the land, the cause of action, the relief claimed, and the parties are the same. The cause of action, in both the suits, is the threatened interference by the Gram Panchayat and, therefore, the present suit is not maintainable being barred under the provisions of Order 2 Rule 2 of the Code. Order 2 Rule 2 of the Code reads as follows:- "2. Suit to include the whole claim.- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any court. (2) Relinquishment of part of claim.- Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished. (3) Omission to sue for one of several reliefs.- A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted." 19. A perusal of Order 2 Rule 2 (1) of the Code reveals that a suit should include the entire claim, which the plaintiff is entitled to make in respect of the cause of action that has accrued. Order 2 Rule 2(2) bars a plaintiff from bringing a fresh suit, in case he omits to sue or intentionally relinquishes any portion of his claim. Order 2 Rule 2(2) bars a plaintiff from bringing a fresh suit, in case he omits to sue or intentionally relinquishes any portion of his claim. This omission to sue or relinquishment of any portion of his claim relates to the cause of action, referred to in Order 2 Rule 2 (1) of the Code. 20. It is, thus, apparent that where a cause of action gives rise to multiple claims, the plaintiff is required to sue in respect of all such claims. Failure to sue, qua any of the claims, would debar a plaintiff from filing a fresh suit seeking redressal qua the omitted claims. Similarly, Order 2 Rule 2(3) postulates the proposition that in case a plaintiff is entitled to more than one relief, emanating from a cause of action, he may sue for all or any of the reliefs. If, however, he omits to sue for any of the reliefs, he shall not afterwards be permitted to sue for the relief so omitted. The only eventuality in which he can be permitted to sue regarding omitted reliefs is, in case he has obtained the leave of the Court to omit some of the reliefs. If, however, the cause of action, in the subsequent suit, is different from the cause of action in the prior suit, Order 2 Rule 2 of the Code would have no applicability to the subsequent suit, irrespective of the fact that the property and the parties are the same. 21. Applying the aforementioned principles of law to the present controversy, a perusal of the facts reveals that though the property and the parties are the same, the causes of action for the two suits are different. The prior suit was based upon a threatened invasion of the appellants right to remain in possession. As the threat to the appellants right no longer existed, the appellant did not proceed with the suit. The present suit was filed, when the Gram Panchayat made another attempt to interfere in the plaintiffs possession, thus, giving rise to a fresh cause of action, distinct from the cause of action that was the basis of the prior suit. The contention of counsel for respondent No. 1 that the cause of action in both the suits was the same, is, thus, incorrect. The contention of counsel for respondent No. 1 that the cause of action in both the suits was the same, is, thus, incorrect. The first appellate Court committed a serious error of law by erroneously holding that the present suit was barred by the provisions of Order 2 Rule 2 of the Code. It also lost sight of the fact that the causes of action for the two suits were distinct. In this view of the matter, the finding of the first appellate Court that the suit in the present case was barred by the provisions of Order 2 Rule 2 of the Code, is reversed. 22. The second question of law is whether the first appellate Court was right in holding that as the land was graveyard, the appellant was obliged to use the same as such and, therefore, could not lease out the land? 23. Counsel for the appellant contends that the first appellate court erred in holding that though the property in dispute vested in the Punjab Wakf Board, it being a graveyard, could not be leased out. The first appellate Court lost sight of the provisions of the Wakf Act, 1954, which now stands repealed by the Wakf Act, 1995. These two enactments empower the Wakf Board to sell, gift, mortgage, exchange or lease the wakf land. The first appellate Court also lost sight of the fact that the defendant had not filed any counter claim or even pleaded that the land, being a graveyard, could not be leased out by the Wakf Board. The first appellate Court could not, of its own, build a new case, de hors the pleadings of the parties. 24. Counsel for respondent No. 1, on the other hand, contends that once a property is a graveyard, the Wakf Board has no jurisdiction to alter its user. In support of this contention, counsel for the respondent places reliance upon a judgment of the Hon ble Supreme Court in Syed Mohd. Salie Labbai (dead) by LRs and Ors. v. Mohd. Hanifa (dead) by LRs and Ors., A.I.R. 1976 S.C. 1569. 25. The Wakf Act, 1954, as also the Wakf Act, 1995, which govern the management and control of Wakf property, vest a power with the Wakf Board to deal with its property, in any manner, it deems fit, subject to the limitations contained in the aforementioned statutes. v. Mohd. Hanifa (dead) by LRs and Ors., A.I.R. 1976 S.C. 1569. 25. The Wakf Act, 1954, as also the Wakf Act, 1995, which govern the management and control of Wakf property, vest a power with the Wakf Board to deal with its property, in any manner, it deems fit, subject to the limitations contained in the aforementioned statutes. Section 32 of the Wakf Act, 1995 empowers the Wakf Board to sell, gift, mortgage, exchange or lease the wakf land. Sub-section (4) of Section 32 of the said Act also empowers the Wakf Board to even develop shopping centre, market, housing flats and the like. Sub-clause (iii) of Sub-section (2) of Section 32 of the said Act empowers the Wakf Board to alter the user of the wakf property, once the original purpose is incapable of achievement or has come to an end. It is, thus, apparent that the aforesaid statute vests in the Wakf Board with absolute power to sell, gift, mortgage, exchange or lease the wakf land, in consonance with the statutory provisions. The Courts of law can only place such restrictions upon the rights of the Wakf Board, as are contained in the aforementioned Statute. The first appellate Court, while reversing a finding of the trial Court that the property vested in the Wakf Board, issued a perpetual injunction preventing the Wakf Board from using the property in dispute for any purpose other than that of a graveyard. The first appellate Court also lost sight of the fact that the Gram Panchayat had not claimed any such relief, whether by way of a counter claim or even by way of a separate suit. The first appellate Court had no jurisdiction to travel beyond the four corners of the suit, to assume jurisdiction beyond the case of the parties and issue an injunction where none was sought or claimed. 26. In so far as the judgment, relied upon by counsel for respondent No. 1, is concerned, the said judgment has no applicability to the present controversy. The controversy before the Hon ble Supreme Court was entirely different i.e. whether the graveyard was a private or a public graveyard and the consequences of non-user thereof. 27. 26. In so far as the judgment, relied upon by counsel for respondent No. 1, is concerned, the said judgment has no applicability to the present controversy. The controversy before the Hon ble Supreme Court was entirely different i.e. whether the graveyard was a private or a public graveyard and the consequences of non-user thereof. 27. In view of the fact that the contentions of counsel for respondent No. 1, being contrary to the statutory provisions of the Wakf Act, as also the judgment of the first appellant Court, being in violation of the statutory provisions of the Wakf Act, and that the injunction issued by the first appellate Court, had neither been pleaded nor sought, the judgment and decree of the first appellate Court is set aside and that of the trial Court upheld. However, it is made clear that the present judgment shall not be construed as a licence to the Wakf Board to use the property in dispute, in any manner, it deems fit. The property, in dispute, shall be used, in accordance with the provisions of the Wakf Act, 1995. In view of what has been stated above, the judgment and decree of the first appellate Court is set aside and that of the trial Court restored, with no order as to costs.