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2016 DIGILAW 1075 (PNJ)

SULOCHNA v. JASBIR SINGH

2016-04-05

AMIT RAWAL

body2016
JUDGMENT : Amit Rawal, J. This order of mine shall dispose of two revision petitions bearing Nos.1757 and 2135 of 2011. 2. Petitioner/defendant No.3 - Sulochana is aggrieved of the dismissal of the judgment and decree dated 27.10.2010 (Annexure P-1) rendered by the Wakf Tribunal decreeing the suit for declaration and permanent injunction in favour of the plaintiffs by declaring them to be in possession of the suit land on the ground that proprietors of Shamlat-deh of village Patti Dogar and revenue entries in favour of defendants have been declared to be wrong, illegal, null and void and not binding upon the rights of plaintiffs and further injunction restraining the defendants from interfering into the possessory and proprietary rights of plaintiffs over the suit property. 3. Mr. Arnav K. Sood and Mr. Jai Bhagwan, learned counsels appearing on behalf of the petitioners submit that suit, aforementioned was filed at the instance of respondent No.1 to 15/plaintiffs on the ground that they are owners in possession of the suit land, i.e., agricultural land measuring 74 kanals 18 marlas comprised in khewat No.214/196 min, khatauni No.351, 352, khewat No.135/1, 136/2, situated within the revenue Estate of Dogran Patti, Tehsil and District Kaithal, as per jamabandi for the year 1992-93. They are proprietors of the aforementioned village. Suit land being Shamlat Deh Hasab Rasad Zare Khewat and respondents No.1 to 15/plaintiffs are in exclusive possession of the suit land as co-sharers without payment of any rent to anybody for the last more than 30 years and the revenue entries in favour of petitioner/defendants No.3 to 5 in possession of the suit land being wrong, illegal, null, void and at their back and the mutation Nos.1400 and 1707 were also totally wrong, illegal and denied. The Wakf Tribunal decreed the suit, without noticing the fact that vide Gazette Notification published on 19.12.1970, the land measuring 65 kanals out of the suit land is on lease with defendants No.3 to 5 and revenue entries are also in their favour and S.S.Model School Kaithal. The plaintiffs have attempted to encash the old revenue entries in their favour as earlier the same land out of the suit land was in their possession as licensee only upto 1988-89, vide lease deed dated 13.4.1987. The plaintiffs have attempted to encash the old revenue entries in their favour as earlier the same land out of the suit land was in their possession as licensee only upto 1988-89, vide lease deed dated 13.4.1987. The suit land is Kabristan which has been held to be a public graveyard and it vests in public, constitute a Wakf and it cannot be divested by non-user and continue to remain same, in view of the judgment rendered by the Hon'ble Supreme Court in Syed Moh. Salie Labbai (Dead) by LRs and others v. Mohd. Hanifa (Dead) by LRs and others AIR 1976 SC 1569 . The Wakf Tribunal has gravely erred in holding that defendants have failed to prove the dedication of the suit land for religious purposes, whereas, revenue record and entries thereon show the property as Makbuja Ahle Islam which means for religious purposes. It is settled law that revenue record has presumption as per Section 44 of the Land Revenue Act, until and unless, revenue record is rebutted. The defendants have failed to rebut the same by placing on record the documentary evidence. The Wakf Tribunal also failed to consider the documents, licence deed (Ex.D4) and Ex.D7/C, Kabuliatnama, which is irresistible admission of ownership of defendant No.3. Further relies upon the judgment rendered by this Court in Civil Revision No.876 of 2012 titled as Jai Kishan Saini and another v. Haryana Wakf Board, Ambala decided on 22.08.2013 holding that the notification declaring the property Wakf under Section 5, though may not be binding, but it follows a particular procedure which obtains relevance as to what the notification ultimately states. They further submitted that publication was effected under Section 5 of the Act, which was preceded by preliminary survey of Wakf under Section 4. Once a property is notified as a Wakf, it shall be perfectly legitimate for the Wakf Board to exercise right over the property as a Wakf and thus, prays for setting aside of the impugned judgment and decree. Once a property is notified as a Wakf, it shall be perfectly legitimate for the Wakf Board to exercise right over the property as a Wakf and thus, prays for setting aside of the impugned judgment and decree. They further submit that sale deed dated 12.05.1969 (Ex.P3), relied upon by the respondent plaintiffs is in respect of the land measuring 15 kanals 19 marlas bearing khasra No.74/11/1, whereas, notification is in respect of khasra No.136, thus, the plaintiffs have not been able to connect the property alleged to have been purchased vis-a-vis property owned by Wakf and this fact has not been addressed, thus, there is travesty of justice. 4. Mr. Anil Kshetarpal, learned Senior Counsel assisted by Mr. Saurabh Garg, Advocate appearing on behalf of respondents No.1 to 15 (in CR No.1757 of 2011) and respondent No.10 to 13 (in CR No.2135 of 2011) submits that license deed, (Ex.D4) was tendered in evidence which was seriously objected to and therefore, the same cannot be looked into for adjudication of the lis. As per the jamabandi for the year 1968-69, (Ex.P7), possession has been shown as Kabja Vah Parda Vasra and the nature of the land is Shamlat Deh Hasab Rasad Zare Khewat Bandobast Doi Sahab Bahadur and the entries are continuously reflected in the subsequent jamabandi, for the year 1972-73, much less, in the previous jamabandi for the year 1977-78. Even as per the jamabandi for the year 1941-42 (Ex.D4), the entries in this regard are also same. There is a stark difference between the definition of Section 3 of Wakf Act, 1954 and after 1984. Even as per the jamabandi for the year 1941-42 (Ex.D4), the entries in this regard are also same. There is a stark difference between the definition of Section 3 of Wakf Act, 1954 and after 1984. Prior to the amendment of Wakf Act, 1954 to 1984 Act, the definition of Wakf, as per Section 3(l) of Act, specifies the Wakf, would mean the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes a Wakf by user, grants including mashrut-ulkhidmat for any purpose recognised by the Muslim Law but after the amendment, definition of Wakf says there has to be a permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim Law as pious, religious or charitable and includes a Wakf by user and such Wakf shall not cease to be a Wakf by reason only of the user having ceased irrespective of the period of such cesser and the grants include mashrut-ul-khidmat -muaties, khairati, qazi services, madadmash, provided that in case of a dedication by a person not professing Islam, the Wakf shall be void. For the sake of brevity, Section 3(l) of Wakf Act, before 1984 and after 1984, read thus:- Section 3(l) before 1984 ""wakf" means the permanent dedication by a person professing of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes- (i) a wakf by user; (ii) grants (including mashrut-ul-khidmat) for any purpose recognised by the Muslim law as pious, religious or charitable; and iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable; and "wakif" means any person making such dedication." Section 3(l) After 1984 "wakf" means the permanent dedication by a person professing Islam [or any other person] of any movable or immovable property for any purpose recognised by the Muslim Law as pious, religious or charitable and includes- (i) a wakf by user [but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cessor]; (ii) grants (including mashrut-ul-khidmat- [mutafies, khairati, quazi services, madadmash]) for any purpose recognised by the Muslim law as pious, religious or charitable; and] (iii) a wakf-alal-aulad;] Provided that in the case of dedication by a person not professing Islam, the Wakf shall be void if, on the death of such person, any objection to such dedication is raised by one or more of his legal representatives:]" 5. Jamabandi for the year 1941-42 shows 'Hissedari' which leaves no manner of doubt that status of respondent-plaintiffs is of co-owners. The judgment rendered by the Hon'ble Supreme Court in Syed Moh. Salie Labbai's case (supra) rather supports the case of the respondent-plaintiffs as the dispute was between two communities of Muslim with regard to private and public grave yard and that judgment of 1976 has been distinguished by the Hon'ble Supreme Court in Punjab Wakf Board v. Gram Panchayat alias Gram Sabha, 2000 (2) Supreme Court Cases 121. Salie Labbai's case (supra) rather supports the case of the respondent-plaintiffs as the dispute was between two communities of Muslim with regard to private and public grave yard and that judgment of 1976 has been distinguished by the Hon'ble Supreme Court in Punjab Wakf Board v. Gram Panchayat alias Gram Sabha, 2000 (2) Supreme Court Cases 121. In order to lend support, he has drawn attention of the Court to paragraphs No.20 to 26 of the aforesaid judgment to contend that mere promulgation of the notification under Section 5 of Wakf Board would not clothe the nature of the property as Wakf, much less, the suit cannot be said to be barred by law of limitation as the question also arose whether the suit could be filed beyond one year from the date of notification or not. It has been held that in case, the notification has been done without any notice to the parties, on acquiring the knowledge of the same, the suit can be filed within a period of one year, for, sub-section(1) of Section 6 of the Wakf Act, 1954, amended by Central Act 69 of 1984 after amendment includes every person, who, though not interested in the concerned Wakf or is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served upon him during the course of the relevant inquiry under Section 4 as the intention of Parliament was that if a suit was not filed within one year, the notification would be binding not only on those interested in the trust but even to strangers. Since the petitioners being strangers, decision in Syed Moh. Salie Labbai's case (supra) cannot be applied, in other words, he submitted that by merely issuing a notification under Section 5(2) of the Wakf Act, declaring the property as Wakf property, would not divest the ownership of the plaintiffs as the revenue record reflect the entry of term 'Hissedari' and thus, property stood vested in the proprietors. In support of his contention, he also relied the Division Bench judgment of this Court rendered in Punjab Wakf Board v. Gram Panchayat, Dakha, Tehsil and District Ludhiana and others 2012(3) R.C.R. (Civil) 347. He further submits that Wakf Tribunal has dealt with the matter in extenso. 6. In support of his contention, he also relied the Division Bench judgment of this Court rendered in Punjab Wakf Board v. Gram Panchayat, Dakha, Tehsil and District Ludhiana and others 2012(3) R.C.R. (Civil) 347. He further submits that Wakf Tribunal has dealt with the matter in extenso. 6. I have heard learned counsel for the parties and appraised the paper book and am of the view that there is substance and plea in the submissions of Mr. Arnav K. Sood and Mr.Jai Bhagwan, for, the entries in the jamabandi for the year 1941-42 (Ex.D-24) in respect of khasra No. 136 reflects the nature of the property as "Makbuja Malkan Shamlat Deh Hasab Rasad Zare Khewat" and as per jamabandi for the year 1959-60 (Ex.D25) under column No.8, it has been mentioned as Makbuja Ahl-e-Islam. As per the khasra girdawari (Ex.D18), petitioner - Smt. Sulochana, has been shown in possession. Jamabandi for the year 1987-88 would not clothe the respondent-plaintiffs's status of 'Hissedari' as these entries are not based upon the previous plaintiffs' record, much less, are not in consonance with the notification. Sale deed dated 12.05.1969 (Ex.P3) is with regard to the land measuring 15 kanals 19 marlas comprised in khasra No.74/11/1, 20/21 and not with regard to khasra No.136. The respondent-plaintiffs cannot claim the right of ownership on the basis of mere entry in the revenue record, whereas, the entry preceding to the notification shows the property as Ahl-e- Islam and as per the amendment caused in the Wakf Act, 1984, user of Wakf shall not cease irrespective of the period of such cesser. As regards the ratio decidendi culled out by the Hon'ble Supreme Court in Punjab Wakf Board's case (supra), the question vis-a-vis limitation arose to challenge the notification. The record preceding to the notification as noticed above, leads to irresistible conclusion that property was dedicated to Ahl-e-Islam, i.e., for religious and pious purposes and therefore, has rightly been declared Wakf by promulgation of notification under Section 5 preceded by a survey conducted under Section 4. The graveyard can be public and private which is being used for the burial purpose. Vis-a-vis public graveyard, every Mahomedan public will have a right to burry their dead. The graveyard can be public and private which is being used for the burial purpose. Vis-a-vis public graveyard, every Mahomedan public will have a right to burry their dead. Once a Kabristan has been held to be a public graveyard, it vests in the public and constitutes a Wakf and it cannot be divested by non-user but will always continue to be so whether it is used or not. It is not necessary that there has to be a direct evidence of dedication to the public, may be presumed to be a public graveyard. 7. In view of the fact that the jamabandi reflected the nature of the property as Kabristan, rightly so the property has been declared as Wakf and thus, would fall within the definition of Section 3(l) of 1984 (amendment) and not within the old amendment. All these facts have not been noticed by the Wakf Tribunal while decreeing the suit. In my view, the respondent-plaintiffs have not been able to rebut the revenue record, jamabandis produced on record by the defendants as they carry presumption of truth, as per Section 44 of the Land Revenue Act. 8. Keeping in view the aforementioned facts and circumstances of the present case, the judgment and decree under challenge is hereby set aside and the suit is ordered to be dismissed. 9. Accordingly, the revision petitions stand allowed.