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2008 DIGILAW 457 (PNJ)

Wakf Board v. Nar Singh

2008-02-19

K.C.PURI

body2008
Judgment K.C.Puri, J. 1. Acceptance of appeal directed against the judgment and decree dated 13.10.1995 passed by Dr. Neelam Shangla, the then Additional Senior Sub Judge, Kaithal by the then Additional District Judge, Kaithal, vide judgment and decree dated 2.9.1999 has led the appellant to file the present Regular Second Appeal. 2. The brief facts leading to this appeal are that the plaintiffs, now respondents in this appeal, filed a suit for declaration on the averments that they were Biswedars of Patti Gaddar and as such were co-sharers in the suit land along with other proprietors. It has been averred by them that the proprietors of said Patti were numerous and it was not practicable and expedient to implead them as plaintiff in their personal capacity. The interests of all the proprietors of Patti Gadder were the same as that of the plaintiffs and there was no conflict in their interest and as such the plaintiff filed the present suit for themselves and as representatives of Patti Gaddar after prior permission of the Court. The defendant threatened to interfere in the possession of the plaintiffs whereupon suit No. 452 of 1973 was filed on 24.3.1973 and the said suit was decreed except Khasra No. 198 on 30.11.1976 by the then Sub Judge, IInd Class, Kaithal and the plaintiffs were held to be owners in possession of suit land. The plaintiffs filed Civil Appeal No. l 167/12 of 1984. The said appeal was accepted by the then Additional District Judge, Kurukshetra and the suit of the plaintiffs was decreed in respect of Khasra No. 198. The defendant, in collusion with revenue official, without any, rhyme or reason and without any notice to the plaintiffs got a false and bogus mutation No. 4013 in respect of suit land entered in its name on the basis of some letters dated 16.11.1973. 3. The defendant filed written statement and controverted the claim of the plaintiffs. It was pleaded that survey gazette notification was published in the year 1970 in which the suit land was shown as ownership and in possession of defendant, Wakf Board. The learned trial Court framed the following issues: 1. Whether the plaintiffs are co-owners of the land in dispute along with other relief holders of Patti Gaddar? OPP 2. Whether the plaintiffs are in possession of the land in dispute? OPP 3. The learned trial Court framed the following issues: 1. Whether the plaintiffs are co-owners of the land in dispute along with other relief holders of Patti Gaddar? OPP 2. Whether the plaintiffs are in possession of the land in dispute? OPP 3. Whether mutation No. 4013 attested on 26.5.1986 is illegal and not binding upon the plaintiffs? OPP 4. The learned trial Court decided issue Nos. l to 3 against the plaintiffs and in favour of the defendant. As a result of said findings, the learned trial Court dismissed the suit vide judgment and decree dated 13.10.1995. 5. Feeling aggrieved against the said judgment and decree, the plaintiffs filed an appeal which was accepted by the then Additional District Judge, Kaithal vide judgment and decree dated 2.9.1999. Feeling dis-satisfied with the said judgment and decree, the defendant has filed the instant appeal. I have heard arguments of counsel for the parties and have gone through the record of the case. 6. Learned Counsel for the appellant has framed the following substantial questions of law: 1. Whether the suit filed by the respondent is time barred? 2. Whether service of notice to the appellant Board under Section 56 of the Wakf Act, 1954, is mandatory and what are consequences of its non-service? 3. Whether a suit filed in the representative capacity can be entertained without the permission of the Court under Order 1 Rule 8 CPC? 4. Whether the finding returned with regard to the ownership of the property in a previous suit for permanent injunction is binding in subsequent suit. 5. Whether pleading can be taken into consideration when neither plaintiff nor any other oral evidence has been produced to support his pleading. Failure of plaintiff to appear in the witness box can be taken that pleadings are proved. 7. The first substantial question of law formulated by the appellant-Wakf Board is that whether the suit for declaration is barred by limitation. It is submitted that mutation No. 4013 dated 26.5.1986 is sought to be declared null and void. The limitation for the suit for declaration is 3 years but the present suit has been filed on 4.12.1989 and as such the suit is not within limitation. 8. I have carefully considered the said submission but do not find any force in that submission. The limitation for the suit for declaration is 3 years but the present suit has been filed on 4.12.1989 and as such the suit is not within limitation. 8. I have carefully considered the said submission but do not find any force in that submission. The plaintiffs were not present at the time of attestation of mutation No. 4013, dated 26.5.1986 and as such it cannot be presumed that they have got knowledge of the said mutation. Moreover, the plaintiffs have been held owner in possession in the previous litigation between the parties. The party in possession can seek declaration when the clouds cast against his rights. So, the above substantial question of law regard limitation stands determined against the appellant. Moreover the point of limitation has not been taken by the appellant before the Court below and on that account the above-said plea of limitation cannot be accepted. 9. The other point raised by counsel for the appellant is that suit filed by the plaintiffs under Order 1 Rule 8 CPC cannot be entertained without permission of the Court. In this regard, the learned trial Court has granted the permission under Order 1 Rule 8 CPC and for that purpose a notice under Order 1 Rule 8 CPC was issued. So, the above-said argument cannot be accepted as there is due compliance of Order 1 Rule 8 CPC. 10. The other point urged before me is that previous suit in which the plaintiffs have been held to be the owners was mere a suit for injunction and on that account the ownership right cannot be determined. That submission cannot be accepted as from the close scrutiny of the previous litigation it is revealed that an issued regarding ownership was framed and that was decided in favour of the plaintiffs. So, the abovesaid arguments does not hold water. 11. The next submission made by learned Counsel for the appellant is to the effect that since that plaintiffs have not come into the witness box and as such the learned trial Court should have dismissed the suit of the plaintiffs regarding declaration and ownership. That submission also cannot be accepted. The learned 1st Appellate Court has held the plaintiffs as owners in possession of the suit property. All the previous litigation between the parties has also been taken into consideration. That submission also cannot be accepted. The learned 1st Appellate Court has held the plaintiffs as owners in possession of the suit property. All the previous litigation between the parties has also been taken into consideration. That being a finding of fact, cannot be interfered in the Regular Second Appeal. Learned Counsel for the appellant has further submitted that no notice under Section 56 of the Punjab Wakf Board Act was issued to the defendant-appellant before filing the present suit and on that account the suit is liable to be dismissed. 12. The defendant-appellant had not taken the objection regarding the issuance of notice under Section 56 of the Punjab Wakf Board Act before both the Courts below, so that objection cannot be allowed to be taken for the first time in the Regular Second Appeal. By not taking the plea in the written statement and before both the Courts below, the notice under Section 56 of the Punjab Wakf board Act would be deemed to have been waived. Otherwise also, a notice under Section 56 of the Punjab Wakf Board Act has to be issued in respect of any act purporting to be done by the Board in pursuance of the Act or on any rule made thereunder. The present suit is not covered by any of the Act of the Board and on that account also, the said plea of non-issuance of notice under Section 56 of the Punjab Wakf Board Act cannot be accepted. No other point has been urged before me. In view of the above discussion, all the substantial questions of law have been answered against the appellant and consequently the appeal stands dismissed with costs. 13. Decree sheet be prepared. The files of the trial Court be sent back. The file of this Court be sent to the record room after compliance.