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2015 DIGILAW 489 (HP)

HP Wakf Board v. Kashmir Singh

2015-05-08

RAJIV SHARMA

body2015
Rajiv Sharma, J. 1. This Regular Second Appeal is directed against judgment and decree dated 28.5.2001 rendered by learned Additional District Judge(I) Kangra at Dharamshala, Himachal Pradesh in Civil Appeal No. 117-D/2000. 2. “Key facts" necessary for the adjudication of the present appeal are that the land bearing Khasra No. 326 of Khata No. 312, Khatauni No. 563 min measuring 241.06 sq metres situate in Mohal Ramnagar, Mauza Mant, Tehsil Dharamshala, District Kangra, is claimed to be owned by the appellant-plaintiff (hereinafter referred to as ‘plaintiff' for convenience sake) as per revenue record and it was a part and parcel of the graveyard for burial of dead bodies of Muslims. It was used for this purpose for more than 100 years. Respondents-defendants (hereinafter referred to as 'defendants' for convenience sake) in connivance with each other have forcibly raised construction in the graveyard in April-May 1993 despite repeated requests for not doing so. 3. The suit was contested by the defendants. According to them, the house was raised in the year 1978. At that time, nobody raised any objection. Suit was thus barred by the act and conduct of the plaintiff. House was constructed by the mother of defendant No. 2. 4. Issues were framed on 28.9.1996 by the trial Court. Suit was dismissed on 30.6.2000. Plaintiff filed an appeal before the learned Additional District Judge (I) Kangra at Dharamshala. He also dismissed the appeal on 28.5.2001. Hence, this Appeal. 5. The appeal was admitted on 23.4.2002 on the following substantial question of law: “Whether in the facts and circumstances of the case it could be held by the trial Court and first appellate Court that plaintiff was estopped from filing the suit for possession on the basis of title against the defendants by their conduct and acts?” 6. Mr. Imran Khan has vehemently argued that both the Courts below have not rightly construed the oral as well as documentary evidence. He then contended that the defendants were asked not to continue with the construction and despite that, construction was started in April-May 1993. 7. Mr. Ashok Sood, has supported the judgments and decrees passed by both the Courts below. 8. I have heard the learned counsel for the parties and also gone through the record carefully. 9. PW-1 Avdush Samath has testified that he was authorized to file the civil suit as per Ext. 7. Mr. Ashok Sood, has supported the judgments and decrees passed by both the Courts below. 8. I have heard the learned counsel for the parties and also gone through the record carefully. 9. PW-1 Avdush Samath has testified that he was authorized to file the civil suit as per Ext. PW-1/A. Punjab Wakf Board was the owner of the suit property. It was used as a cemetery. It was in use for more than 100 years. Defendants forcibly occupied the land and started raising construction in the month of April-May, 1993 and put up lintel in September 1993. They were resisted from doing so but they did not pay any heed. He denied the suggestion in cross-examination that the house was constructed by the mother of defendant No. 2. He also denied the suggestion that house was constructed in the year 1978. 10. DW-1 Kashmir Singh deposed that he was married to defendant No. 2 in the year 1973. The house in which he was residing belonged to his mother-in-law, Anklo Devi. It was constructed in the year 1978. Nobody raised any objection at that time when house was constructed. Land was given to his mother-in-law by the Gram Panchayat as Shamlat. Electricity meter was installed in the name of his mother-in-law. He has proved the electricity bill mark ‘A’. Water connection was in the name of his wife. He has also proved water bills vide mark ‘B’ and ‘C’. Electricity meter was installed in the year 1983. 11. DW-2 Sant Ram deposed that he knew the parties. They were residing in the house since 1978. It was constructed by the wife of defendant No. 1 on Shamlat land. It was allotted by the Panchayat. The house was constructed in 1978. 12. Learned trial Court has come to the conclusion that the plaintiff was the owner of the suit land. According to the Jamabandi for the year 1992-93, Gair Mumkin Makaan is stated on the suit land. Thus, the house was in existence before 1992-93. The plea taken by the plaintiff that the house was constructed in April-May 1993 is not proved by leading any cogent and tangible evidence. Rather evidence has been led by the defendants that the house was constructed in the year 1978 and no objection was raised at that time. Thus, the house was in existence before 1992-93. The plea taken by the plaintiff that the house was constructed in April-May 1993 is not proved by leading any cogent and tangible evidence. Rather evidence has been led by the defendants that the house was constructed in the year 1978 and no objection was raised at that time. Electricity meter was installed in the house in the name of mother-in-law of defendant No. 1. Water connection was in the name of defendant No. 2. Defendants have proved the electricity bill and water bills. Electricity meter was installed in the year 1983. PW-1 Avdush Samath has admitted that he was not in the branch in 1978. Plaintiffs have failed to prove that the defendants have forcibly occupied the land and raised construction in the year 1992-93. Plaintiff has not produced any official who has raised objection at the time of raising construction. Since plaintiff has not raised any objection at the time when construction was raised, it has acquiesced to the construction of the house made by the mother of defendant No. 2. Anklo Devi. The Courts below have correctly applied principle of ‘acquiescence’ against the plaintiff for not raising any objection to the construction. 13. The substantial question of law is answered accordingly. 14. Consequently, there is no merit in the appeal and the same is dismissed. Pending applications, if any, are also disposed of.