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2014 DIGILAW 1264 (PNJ)

Punjab Wakf Board v. Gram Panchayat Kalsan

2014-09-06

BHARAT BHUSHAN PARSOON

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JUDGMENT Dr. Bharat Bhushan Parsoon, J.: - Dismissal of the suit of the plaintiff for seeking mandatory injunction against the defendants to demolish and remove the super structure and construction raised by them forcibly in the property of the petitioner Wakf Board and for handing over the vacant possession of the property in suit by Additional District Judge-cum-Tribunal, Hoshiarpur under the The Wakf Act, 1995, is under challenge in this revision petition. 2. It is claimed that even though its ownership of the land in litigation had been proved by the petitioner Wakf Board, the Tribunal took the entire matter casually. It is also claimed that pleading of the contesting respondents No.3 to 5 that the suit property was in possession of village Gurdwara managed by a managing committee and not by Gram Panchayat, were taken as substantiated without any supportive evidence. 3. Counsel for the contesting respondents on the other hand has urged that the property in dispute is in established possession of the village Gurdwara for the last more than 50 years and there is no right, title or interest of the Gram Panchayat or of the Wakf Board therein. Asserting validity and legality of the impugned judgment and decree of 25.3.2010, dismissal of the petition has been sought. 4. During the pendency of this petition, a Civil Misc. application was preferred herein by the Punjab Wakf Board under Order XXIII Rule 1 CPC for seeking permission to withdraw the suit with liberty to file a fresh suit in respect of the same subject matter and claim. This request has been opposed by the contesting respondents tooth and nail. 5. Counsel for the parties have been heard on the CM application as also on the main revision petition. 6. The impugned judgment of the Tribunal reveals that the revisionist Wakf Board as plaintiff before the Tribunal, had taken up a plea that lis in dispute is wakf property of the mosque situated within the the lal lakir of village Kalsan, wherein the defendants had entered into possession illegally and forcibly and without any right, title or interest therein. It was claimed that despite issuance of notice of 22.2.2001 to respondent No.6 Gram Panchayat, the defendants had continued to raise construction. Request then was made for removal of the super structure from the property. It was claimed that despite issuance of notice of 22.2.2001 to respondent No.6 Gram Panchayat, the defendants had continued to raise construction. Request then was made for removal of the super structure from the property. Claim of the defendants, on the other hand, is that the property in dispute is in possession of the village Gurdwara which is managed by the Committee constituted for the purpose. 7. Primary document put forth by the petitioner Wakf Board herein for consideration of the Tribunal was notification dated 1.1.1972 wherein suit land was mentioned at Sr. No.2010. It is 7 marla land. The Tribunal had refused to take cognizance of the notification on the plea that copy thereof was neither complete nor had been duly proved. It was also observed that judgment earlier rendered in case “Smt. Gurmit Kaur v. Gram Panchayat” was a judgment in personam and was not of any impact on the party in possession of the land. Observations of the Tribunal with reference to notification dated 1.1.1972, copy Ex.P1 whereof was produced by the petitioner-plaintiff, are to the following effect:- “... In the instant case, plaintiff has relied upon one sole attested photo copy of gazette notification dated 1.1.72 as a document of title. This one page attested photo copy is incomplete document as page No.253 is mentioned on the same. Neither the opening sheet or the last page of the entire gazette notification are attached with this page document so as to ascertain that this one page document is part of the gazette notification dated 1.1.72. PW1 Mehmood Hassan Estate Officer has simply tendered this one page photo copy of gazette notification as Ex.P1. Since starting page and the other relevant pages of the gazette notification are not attached with Ex.P1, therefore, it is held that Ex.P1 has not been proved on record in accordance with law of evidence.” 8. Merely because copy of notification (Ex.P1) furnished by the petitioner-plaintiff during the proceedings before the Tribunal, was not a complete copy of the gazette notification, the Tribunal could not have nonsuited the petitioner just on this score. Gazette notification, copy whereof is Ex.P1, is in the nature of a public document in terms of Section 74 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act). As per Section 78 of the Act, such notification could have been proved by mere tender of certified copy thereof. Gazette notification, copy whereof is Ex.P1, is in the nature of a public document in terms of Section 74 of the Indian Evidence Act, 1872 (hereinafter referred to as the Act). As per Section 78 of the Act, such notification could have been proved by mere tender of certified copy thereof. If certified copy was found to be incomplete by the Tribunal, presumption of genuineness attached to government notifications, could not have been ignored. Rather, the Tribunal could have called for the complete and correct copy of the notification or could have searched for the said notification in the official records. 9. If revenue record was found to be lacking in conformity with the contents of the notification, the Tribunal could have called for the copy of the notification from the records as also relevant revenue record from the concerned quarters but it was not expected to bye-pass the whole dispute. The court also could have given opportunity to the plaintiff to produce relevant revenue record which was required by the Tribunal for clarification. By side-tracking the entire issue, adopting a casual approach, suit of the plaintiff was dismissed without competently and effectively adjudicating the dispute and rival claims of the parties. In the entirety of facts and circumstances, it is a clear case where scrutiny and appraisal of the matter in dispute has not engaged the attention of the Tribunal, it deserved. 10. Since in-depth adjudication has not been made for want of text of notification as also for non-availability of the relevant revenue record, this revision petition is allowed, the impugned judgment and decree are set aside and the matter is remanded to the Tribunal for proper and legal adjudication of the suit after calling upon the plaintiff to produce legible and complete copy of the notification as also the relevant revenue record. The Tribunal would also give opportunity to the defendants to produce any other evidence, if they so require. Such opportunity of leading of affirmative or rebuttal evidence would not be denied to the plaintiff as well. 11. Since it is an old matter, the Tribunal would decide the suit afresh within six months even by taking day to day proceedings, if found necessary. 12. So far as request of the petitioner-plaintiff for withdrawal of the suit is concerned, liberty is granted to it to make such request before the Tribunal, if it is so advised. 11. Since it is an old matter, the Tribunal would decide the suit afresh within six months even by taking day to day proceedings, if found necessary. 12. So far as request of the petitioner-plaintiff for withdrawal of the suit is concerned, liberty is granted to it to make such request before the Tribunal, if it is so advised. If such a request is made, the same would be decided after hearing the parties within a month of its filing. Parties to appear before the Tribunal on 7.10.2014. ---------0.B.S.0------------ —————————