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Madhya Pradesh High Court · body

2012 DIGILAW 385 (MP)

Panchan Mochiyan Ratlam v. Santosh Kumar

2012-04-09

R.C.MISHRA

body2012
ORDER 1. This revision, under Section 83(9) of the Wakf Act, 1995 (hereinafter referred to as the ‘Act of 1995’), is directed against the judgment dated 1.8.05 passed by M.P. State Wakf Tribunal, Bhopal (for brevity ‘the Tribunal’), in Case No.9/2002, whereby the respondent’s suit for declarations that the entire land, admeasuring 4535 Square Feet and occupied by him and his brother Sohanlal and father Dhoolchand, is not a Wakf property and also that he is the owner in possession of 1638 Square Feet area, out of the said land as well as for permanent injunction restraining the defendants/petitioners from interfering with his possession on the land and the shops constructed thereon under the garb of order-dated 20.6.2002 passed by Chief Executive Officer (for short ‘CEO’) of the petitioner no.2 on the application (Ex.P-30) moved by the petitioner no.1 under Section 54 of the Act of 1995. 2. Although, the office raised objection as to maintainability of this revision before the Principal Bench in view of the fact that the property in dispute is situated in the city of Ratlam, which falls under the territorial jurisdiction of the Bench at Indore yet, the same was overruled in presence of both the parties by order-dated 18.5.2010. 3. The following background facts are not in dispute In the Khasrafor the year 1912-13 (copy of which is placed on record as Ex.D-3), the lands, bearing Survey Nos.1310, 1311, 1312, 1313, 1314 and 1325, having a total area of 12 Bigha 9 Biswa, were shown as Beedand Bawadi(a deep Well with a flight of stairs) dedicated to Masjid Mochiyan, situated in Mochipura at Ratlam. These lands were declared as lands belonging to the Princely State of Ratlam by its the then Ruler namely Sajjan Singh by way of Rajyaagya (State Order) No.11557 dated 12.12.1940. Panchan Mochiyan, the petitioner no.1, was registered as Wakf, under Section 25 of the Wakf Act, 1954 (for short the ‘Act of 1954’). By virtue of notification dated 25.3.1983, published in the M.P. Gazette (Ex-D-2), only 0.187 hectare of the land, bearing khasra no.634 and situated in Ratlam was declared as Wakf property. Thereafter, lands, comprising survey nos.26, 117, 27 and 116 having a total area of 43,527 sq.ft., were also declared by the Tribunal as Wakf property by its order-dated 12.3.99 passed in Case No.81/97. 4. Thereafter, lands, comprising survey nos.26, 117, 27 and 116 having a total area of 43,527 sq.ft., were also declared by the Tribunal as Wakf property by its order-dated 12.3.99 passed in Case No.81/97. 4. Respondent’s claim was based on the under-mentioned averments - (i) Immediately after being taken over under Ratlam State Order dated 12.12.1940, the lands were given to one Chandanmal for cultivation. (ii) In the year 1948, Lokendra Singh, the then Ruler, took a decision to develop a residential colony by the name of Modern Colony on the land, bearing new Khasra No.117 and having a total area of 46 Bigha and 16 Biswa that included 12 Bigha 9 Biswas lands falling under the old Survey Nos.1310, 1311, 1312, 1313, 1314 and 1325. The proposed modern colony was divided in different blocks and by way of State order-dated 14.2.1948 (Ex.P-6), ownership of Block No.‘A’ comprising an area of 34989 sq.ft., and marked in the map (Ex.P-4) as A, B, C and D, was transferred in favour of Thakur Mahendra Singh for a consideration of Rs.1500/-per acre. (iii) Thakur Mahendra Singh sold different pieces of the land forming part of Block No.‘A’ in favour of Prakash, Nathulal, Rajmal, Govardhan, Ramkrishna and Gyanchand. Piece of land sold to Gyanchand through sale deed dated 3.4.1957 (Ex.P-7) admeasured 4535 sq. ft. Out of it, Gajadhar and his son Ishwar Prasad purchased respectively 3312 sq. ft. and 1223 sq.ft. from Gyanchand by way of sale-deeds (Ex.P/8 and Ex.P/9). In the family partition and by virtue of the corresponding judgment passed in Civil Suit No.314A/78, the piece of land purchased by Gajadhar fell to the share of his other son Vishambhar Prasad, who sold an area of 1638 sq.ft. in favour of the plaintiff/respondent for a consideration of Rs.34,398/-by way of a sale-deed dated 10.6.1980 and transferred the remaining area of 1674 sq.ft. vide another sale-deed executed on the same day only in favour of respondent’s brother namely Sohan Lal. Thereafter on 15.4.1981, their father Dhoolchand purchased 1223 sq. ft. of land from Ishwari Prasad for a consideration of Rs.25,393.50/-through sale-deed (Ex.P/13). vide another sale-deed executed on the same day only in favour of respondent’s brother namely Sohan Lal. Thereafter on 15.4.1981, their father Dhoolchand purchased 1223 sq. ft. of land from Ishwari Prasad for a consideration of Rs.25,393.50/-through sale-deed (Ex.P/13). (iv) In the year 1985, the petitioner no.1 filed a suit, numbered as Civil Suit No.77-A/1985, against the respondent before Civil Judge Class-I, Ratlam for declarations that the land bearing survey no.1310 having area of 3 Bigha 4 Biswa belonged to it; that any deed evidencing transfer of land executed in favour of the respondent was void and ineffective as against it, and that the respondent was not entitled to change the status quo. In that case, the application for grant of temporary injunction restraining the respondent from making construction over the suit land was rejected by the trial Court and the corresponding order was also affirmed by the appellate Court. (v) By virtue of Section 55G of the Act of 1954 (as substituted by Wakf (M.P. Amendment) Act, 1994), the suit stood transferred to the Tribunal constituted under sub-section (1) of the Section. Ultimately, the petitioner no.1 sought to withdraw the suit with liberty to file afresh. However, instead of filing a fresh suit, the petitioner no.1 moved an application, under Section 54 of New Wakf Act (Act of 1995), before the CEO of the petitioner no.2-Board for removal of encroachment allegedly made by the respondent by constructing shops on a total area of 4500 sq.ft., out of 20150 sq. ft. of land declared as Wakf by way of M.P. Gazette notification dated 25th March, 1983. In that application, it was also asserted that the total area of Wakf property was 12 Bigha 9 Biswas and not 20150 sq. ft. as shown in the notification. (vi) The respondent raised preliminary objections as to maintainability of the proceedings and jurisdiction of the CEO to adjudicate the matter. However, rejecting the objections, the CEO insisted upon the parties to lead evidence. Ultimately, vide order-dated 20.6.2002, upon the assumption that the Wakf property comprised of an area of 12 Bigha 9 Biswa and ignoring the fact that in the earlier suit, withdrawal of which had already attained finality, area of the suit land was shown as 3 Bigha 3 Biswa by the petitioner no.1, the CEO declared the entire 4500 sq. ft. Ultimately, vide order-dated 20.6.2002, upon the assumption that the Wakf property comprised of an area of 12 Bigha 9 Biswa and ignoring the fact that in the earlier suit, withdrawal of which had already attained finality, area of the suit land was shown as 3 Bigha 3 Biswa by the petitioner no.1, the CEO declared the entire 4500 sq. ft. of land including portion in possession of the respondent to be the Wakf land, as described in the application (Ex.P-30) under Section 54 of Act of 1995 and, accordingly, directed him to handover vacant possession of the same within a month whereas the question as to whether a property is a Wakf property or not could be decided by the Tribunal only. Moreover, Sohanlal and Dhulchand were not impleaded as parties to the proceedings. 5. In the written statement, the petitioner no.1 raised the plea that even the then Ruler of Ratlam State had no authority to acquire the land or to convert a Wakf land into a State land in view of the well settled principle that “Once a Wakf is always a Wakf”. According to it, even if it is assumed that the sale-deeds, referred to by the respondent were made, such transfers were void ab-initio and were not binding on it. 6. Petitioner no.2 filed a separate written statement, supporting the order dated 20.6.2002 (supra) as well as the stand taken by petitioner no.1 that the land in question forming part of a Wakf property could not be divested of its status even by the then Ruler of the Ratlam State. 7. The Tribunal framed as many as 11 issues and afforded opportunity to the parties to adduce evidence. The respondent examined himself as PW4 and also called Shashikant (PW1), the employee of Ratlam Town Improvement Trust, Bhanwar Lal Sharma (PW2), the Patwari, Narendra Singh Rathore (PW3), son of Premkunwar Bai, purchaser of a piece of land from Thakur Mahendra Singh & Vishambharnath (PW5) and exhibited 36 documents in support of the claim. The petitioner no.1 examined its President namely Abdul Salam and also tendered 4 documents in evidence. Upon consideration of the entire evidence on record, the Tribunal granted all the reliefs as prayed for while holding that (i) The land in dispute, having a total area of 4535 Sq. The petitioner no.1 examined its President namely Abdul Salam and also tendered 4 documents in evidence. Upon consideration of the entire evidence on record, the Tribunal granted all the reliefs as prayed for while holding that (i) The land in dispute, having a total area of 4535 Sq. Ft., is not a Wakf property and (ii) the respondent, his brother and their father are owners in possession of respective parts of the aforesaid land. 8. Legality, propriety and correctness of the impugned judgment have been questioned on the following grounds – (i) Authority of the then Ruler of Ratlam to divest the petitioner no.1 of its pre-existing right, title and interest in the land. (ii) The well-settled principle that a public graveyard cannot be divested from the status of Wakf property even by its non-user as such. (iii) Limitation. 9. Placing reliance on the decision of a co-ordinate Bench of this Court in M.P. Wakf Board v. Abdul Rais 2003 (4) MPHT 370 , learned counsel for the petitioners has submitted that the suit not filed within 1 year from 25.3.1983, the date of publication of the notification in the Official Gazette, was barred by time in view of proviso appended to sub-Section (1) of Section 6 of the Act of 1995. However, fact of the matter is that in the notification, only 0.187 hectare of the land, bearing khasra no.634, was declared as Wakf property, which did not include the property in dispute. Reasons for this may be enumerated as under – (i) In the earlier suit filed by the petitioner no.1, the property in dispute was shown as part of land, bearing survey no.1310, and situated in the North of the road leading to Ajanta Talkies. (ii) From the record of Town Improvement Trust produced by Shashikant (PW1), it is clearly established that the land in dispute is situated in the North of the road whereas the Mosque and adjoining land in possession of the petitioner no.1 are located in the South of the road, as reflected in the Maps (Ex.P-2 and Ex.P-4). (iii) The fact that earlier suit was filed on 18.1.1985 by the petitioner no.1 for declaration that the land in question, being Wakf property, belonged to it, was also sufficient to infer that the land covered by the notification, did not comprise the suit land. 10. (iii) The fact that earlier suit was filed on 18.1.1985 by the petitioner no.1 for declaration that the land in question, being Wakf property, belonged to it, was also sufficient to infer that the land covered by the notification, did not comprise the suit land. 10. In this view of the matter, cause of action for filing the suit had accrued only on passing of the order dated 20.6.2002. Accordingly, the plea that the suit filed on 23.9.2002 was barred by time was rightly rejected. 11. A bare reading of the Rajagya No.11557 dated 12.12.1940 would reveal that despite grant of opportunity, the petitioner no.1 had failed to show that the lands described therein and the Bawadi were also dedicated to the Mosque. This apart, while observing that the corresponding entries in the revenue record related to measure men t and not to dedication, it was concluded that the lands and the Bawadi deserved to be declared as Khalisa (a Persian word meaning lands or other entities p roducing revenu e directly for the emperor and the central treasury). 12. The contention that even the then Ruler of Ratlam State had no p ower to acquire o r declare the lands and Bawadi as State pro perty, has already been rejected b y P.K. Tare, J. (who later became the Chief Justice) in the light of the dec ision of Supreme Court in Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan AIR 1963 SC 1638 , v ide a common or der-dated 21.12.1963 passed in cases registered as Cri. Revis ion N os.204 & 118/63 in the Bench at Indore. Relevant observations at Para 15 may be repro duced as under - “It is to be noted that the Ratlam Darbar, Then a Ruling Prince was Sovereign prior to the integration of the Central Indian States into a United State of Madhya Bharat and particularly prior to the enactment of the Constitution of India when Madhya Bharat became Part B State. Thereafter, the Darbar order passed in the year 1940 would be an order passed by the Sovereign which will have the force of law as laid down by Their Lordships in Tilkayat’s case” 13. Thereafter, the Darbar order passed in the year 1940 would be an order passed by the Sovereign which will have the force of law as laid down by Their Lordships in Tilkayat’s case” 13. In Tilkayat’s case (above), the Apex Court pointed out that - “In the case of an absolute Ruler like the Maharana of Udaipur, no distinction can be made between an executive order issued by him or a legislative command issued by him. Any order issued by such a Ruler has the force of law and governs the right of the parties affected thereby. An absolute monarch is the fountain-head of all legislative, executive and judicial powers and it is of the very essence of sovereignty which vested in him that he could supervise and control the administration of public charity. This universal principle in regard to the scope of the powers inherently vesting in sovereignty applies as much to Hindu monarch as to any other absolute monarch” 14. Thus, the absolute authority of the then Ruler of Ratlam to declare that the lands were not Wakf property cannot be questioned. Moreover, the order-dated 12.12.1963 was speaking and reasoned order indicating that the petitioner no.1 was not able to show as to when and in what manner the lands and the Bawadi were dedicated to a small Mosque. By that order only, an amount of Rs.4/-per month, was also sanctioned as expenses for 'Chirag Bati”. Obviously, the objection as to the authority of the then Ruler of Raltam to pass the order-dated 12.12.1940 was also validly rejected as having no merit or substance. 15. Although, Abdul Salam (DW1) asserted that even after passing of the order-dated 12.12.1940 (supra), the land was being used as graveyard yet, no supportive evidence could be brought on record. On the contrary, the evidence led by the respondent clearly proved that from 1940 till 1948, the land remained in possession of the Chandalmal for the purpose of cultivation. 16. In Sayyed Ali v. Andhra Pradesh Wakf Board (1998) 2 SCC 642 , wherein the principle that once a Wakf is always a Wakf was re-affirmed, grant of Patta in favour of Mukhajdar under the Inams Act was found to be ineffective and it was held that it does not, in any manner, nullify the earlier declaration made of the property constituting the same as a wakf. It was further held that after a wakf has been created, it continues to be so for all time to come and for further time to be governed by the wakf and grant of a Patta in favour of Mukhajdar does not affect the original character of the wakf property. However, facts of the instant case are clearly distinguishable as there was no supportive evidence to show that during the period preceding the order-dated 12.12.1940 or at any time thereafter, the land in question was used as a graveyard. Further, as indicated already, it does not form part of the adjuncts of the Mosque. The mere fact that the land in question was entered as Wakf property in the register (Ex.D-1) maintained by the petitioner no.2, therefore, did not assume any significance. 17. To sum up, viewed from any angle, no part of entire 4535 sq. ft. of land in question could not be characterized as a Wakf property. 18. For these reasons, none of the contentions raised against legality and propriety of the judgment deserves acceptance. As an obvious consequence, no interference with a well-reasoned judgment is called for under the revisional jurisdiction. 19. The revision stands dismissed and the judgment of the Tribunal is hereby affirmed. No orders as to costs.