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2012 DIGILAW 1651 (PNJ)

Yogesh v. Kallu

2012-11-26

L.N.MITTAL

body2012
JUDGMENT Mr. L.N. Mittal, J.: (Oral) - Defendant no. 5 Yogesh has filed this revision under Article 227 of the Constitution of India assailing judgment and decree dated 15.4.2011 passed by learned Additional District Judge, Palwal acting as Tribunal under the Wakf Act, 1995 (in short, the Act) thereby decreeing suit of respondents no. 1 and 2/plaintiffs against the petitioner and proforma respondents no. 3 to 6 (defendants in the suit) restraining the defendants from dispossessing the plaintiffs illegally from the suit land and from raising unauthorized construction on any part thereof and from alienating the same in any manner. Defendants no. 2 and 5 were found in possession of 74 square yards and 124 square yards land respectively out of the suit land and they have been directed to hand over vacant possession thereof to the plaintiffs. 2. Case of the plaintiffs is that Shamlat Patti Khel was owner in possession of the suit land. Prior to consolidation of holdings, five biswas land was in possession of plaintiffs’ father Mangal Sen and remaining 3 biswas land was shown as Kabristan (graveyard). Suit land was allotted in lieu of 5 biswas land in consolidation of holdings. Plaintiffs’ father was Palmist/Brahman/Purohit of the aforesaid Patti. The suit land was gifted to plaintiffs’ father by way of oral gift. Accordingly, the plaintiffs claimed to be owners in possession of the suit land. However, defendant no. 1 Punjab Wakf Board started claiming that it would use the suit land as graveyard. Entries in revenue record have also been got changed. Defendants no. 2 to 5 alleged purchase/lease in their favour from unauthorized persons. The plaintiffs sought permanent injunction restraining the defendants from dispossessing the plaintiffs from the suit land and from raising unauthorized construction and if defendants are found to be in possession of the suit property, then relief of possession with mandatory injunction be also granted. 3. Defendants contested the suit on various grounds. 4. Wakf Tribunal has decreed the plaintiffs’ suit. Feeling aggrieved, defendant no. 1 has filed this revision petition. 5. Defendants no. 1 to 3 have also filed CR Nos. 5865, 3358, 4681 of 2011 respectively. CR No. 3724 of 2001 has been filed by Vipin Kumar who was not party before the Wakf Tribunal. All these revision petitions have arisen out of a single suit disposed of by Wakf Tribunal vide impugned judgment and decree dated 15.4.2011. 5. Defendants no. 1 to 3 have also filed CR Nos. 5865, 3358, 4681 of 2011 respectively. CR No. 3724 of 2001 has been filed by Vipin Kumar who was not party before the Wakf Tribunal. All these revision petitions have arisen out of a single suit disposed of by Wakf Tribunal vide impugned judgment and decree dated 15.4.2011. Consequently, all these five revision petitions including present CR No. 3725 of 2011 shall stand disposed of by this common order. 6. I have heard learned counsel for the parties and perused the case file. 7. In CR No. 3724 of 2011 preferred by Vipin Kumar, who was not party to the suit, application has been moved for permitting him to file revision petition because during the pendency of the suit, he had taken part of the suit land on lease from defendant no. 1-Wakf Board. In view thereof, the application bearing CM No. 14631.CII of 2011 moved by Vipin Kumar is allowed subject to all just exceptions. 8. Counsel for the petitioner contended that in view of judgment of Hon’ble Supreme Court in the case of Ramesh Gobindram (dead) Through Lrs versus Sugra Humayun Mirza Wakf, [2010(5) Law Herald (SC) 3697] : 2010(2) Rent Control Reporter 266, Wakf Tribunal had no jurisdiction to try the suit. 9. On the other hand, counsel for respondents no. 1 and 2/plaintiffs contended that the plaintiffs’ suit is for declaration that the suit land has been wrongly included in the list of Wakf property by defendant no. 1-Punjab Wakf Board and therefore, only the Wakf Tribunal under the Act has jurisdiction to try the instant suit. 10. I have carefully considered the rival contentions. 11. Perusal of the plaint reveals that there is not even an averment in the plaint that the suit land has been wrongly included in the list of Wakf properties. Plaintiffs have not sought declaration that the suit property is not Wakf property. On the contrary, the plaintiffs have filed simple suit for permanent injunction and have also claimed alternative relief of possession if they are not found in possession of the suit property. Wakf Tribunal under the Act has no jurisdiction to adjudicate upon the suit for injunction and possession in view of judgment of Hon’ble Supreme Court in the case of Ramesh Gobindram (supra). 12. Wakf Tribunal under the Act has no jurisdiction to adjudicate upon the suit for injunction and possession in view of judgment of Hon’ble Supreme Court in the case of Ramesh Gobindram (supra). 12. For the reasons recorded hereinbefore, without entering into merits of the rival claims of the parties, all the five revision petitions are allowed. Impugned judgment and decree passed by the Wakf Tribunal are set aside. Plaint filed by respondents no. 1 and 2/plaintiffs is ordered to be returned to them for presentation before court of competent jurisdiction. Record of the Wakf Tribunal be sent back at once. Plaintiffs are directed to appear before the Wakf Tribunal on 21.12.2012 for receiving back the plaint.