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2017 DIGILAW 51 (HP)

H. P. Waqf Board v. Khwaja Khallilula

2017-01-12

MANSOOR AHMAD MIR, SANDEEP SHARMA

body2017
Mansoor Ahmad Mir, J. This Civil Revision Petition under Section 83(9) of the Wakf Act, 1995, (for short, the Act), is directed against the judgment and decree passed by Wakf Tribunal, Shimla in Civil Suit No.19-S/1 of 2008, dated 19.3.2015, whereby the suit of the plaintiff-H.P. Wakf Board has been dismissed, (for short the impugned judgment). 2. Plaintiff/H.P. Wakf Board filed a suit for declaration and possession on the averments contained in the plaint and claimed the following reliefs: “i) A decree for declaration may be passed in favour of the plaintiff-Board and against the defendants declaring the plaintiff-Board to be the absolute owner in possession of the suit property i.e. four shops bearing No.2 to 5 as entered in Khasra No.200 old and new 218 situated in Middle Bazar, Shimla as per Jamabandi for the year 2002-2003 of Mohal Bara, Shimla, Tehsil Shimla. It is further prayed that the entries showing defendants to be in possession of the suit property on the basis of settlement notings 36 and 37 and the attestation of the mutation dated 25.3.1992 to be declared null and void, illegal, inoperative, against the right, title, interest of the plaintiff-Board. ii). That decree for possession may be passed in favour of the plaintiff-Board and against the defendants with respect to suit property entered in Khewat No.1 Min. Khatauni 104, Khasra No.200 (old) and 218 (new) measuring 40-38 Sqr. Meter, four shops situated at Mohal Bara Shimla, Tehsil Shimla (Urban), Distt. Shimla as per Jamabandi for the year 2002-2003 as shown in the site plan attached herewith and described in the valuation report.” 3. Facts of the case, as pleaded in the plaint, are that as per Khasra Paimaish 1907, the suit property was owned and possessed by one Kabirjoo, son of Ataljoo, caste Kashmiri and in the remarks column, the possession of the suit property i.e. shops was with the custodian being Muslim property. It was further averred that the revenue agency, vide notes No.36 and 37 entered in Khasra Paimaish of 1907, illegally and without following the due process of law, transferred the suit property in favour of defendants/respondents. It was further averred that the entries were made in favour of the defendants in Khasra Paimaish of 1907 on the basis of statement of one Abdul Gafar Wani and death certificate of Iqbal Begum, who died on 6th June, 1982. It was further averred that the entries were made in favour of the defendants in Khasra Paimaish of 1907 on the basis of statement of one Abdul Gafar Wani and death certificate of Iqbal Begum, who died on 6th June, 1982. Mutation in respect of suit property was entered in favour of the defendants on 20th February, 1992 in the presence of Abdul Gafar Wani. It is also pleaded that in the note, it was mentioned that the owner of the property had died on 5th September, 1975 and was issueless. 4. The plaintiff-Board further averred that the said Kabirjoo had executed a Wakf Nama on 12th August, 1928 in faovur of the plaintiff-Board, and on the basis of this Wakf Nama, the plaintiff pleaded that the suit property was Wakf property and was possessed by the plaintiff. 5. On such averments, the plaintiff has laid challenge to the mutation, dated 20th February, 1992, and sought the decree of declaration and possession. 6. Defendants contested the suit and filed joint written statement. Thereafter, defendant No.1 filed amended written statement after seeking leave and the plaintiff filed rejoinder thereto. Preliminary objections, such as, the suit being not maintainable, plaintiff had no locus standi etc. etc., were taken. On merits, it was admitted that Kabirjoo was the owner of the suit property and after his death, the same was inherited by his daughter Iqbal Begum and the defendants, being the legal heirs of Iqbal Begum, are the owners of the suit property. Therefore, it was pleaded that the entries were rightly made in favour of the defendants. It was denied that Kabirjoo had executed Wakf Nama in favour of the plaintiff-Board. It was also denied that suit property was in the possession of the plaintiff or the Custodian department. 7. On the pleadings of the parties, the following issues were framed by the Wakf Tribunal on 20th October, 2009 and 6th July, 2013: “1. Whether the plaintiff Board is the sole owner in exclusive possession of the suit land and property? OPP 1(a) Whether the plaintiff is entitled for declaration as alleged? OPP 2. Whether the entries incorporated during the settlement operation showing the defendants in possession of the suit land and property are illegal, inoperative, null and void and alleged? OPP 3. Whether the plaintiff Board is the sole owner in exclusive possession of the suit land and property? OPP 1(a) Whether the plaintiff is entitled for declaration as alleged? OPP 2. Whether the entries incorporated during the settlement operation showing the defendants in possession of the suit land and property are illegal, inoperative, null and void and alleged? OPP 3. Whether the plaintiff Board is entitled to the grant of decree for possession of the suit land and property as claimed? OPP 4. Whether the suit is not maintainable? OPP 5. Whether the plaintiff Board has no cause of action to file the suit? OPD 6. Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD 7. Relief.” 8. To prove its case, the plaintiff-Board examined PW-1 Partap Thakur, Patwari, PW-2 Qutbudin, Rent Collector in plaintiff-Board, PW-3 Abdul Rasheed, Estate Officer in plaintiff-Board and PW-4 Mohan Singh, Kanungo in plaintiff-Board. On the other hand, defendant No.1 stepped into the witness box as DW-1 and tendered evidence by way of affidavit and one Sunder Singh, Registration Clerk in the office of Sub Registrar, Shimla was examined as DW-2. 9. PW-1 Partap Thakur, Patwari, has stated that note No.36 in Khasra Paimaish Ext.PW-1/A and note No.37 in Khasra Paimaish Ext.PW-1/B, were true and correct as per the record. In cross examination, he has admitted that as per the record, the defendants are recorded as owner. He further stated that as per the record, the suit property was never declared as Wakf property. 10. PW-2 Qutubin, Rent Collector in Wakf Board, stated that the suit property owned by Kabirjoo was situated in Middle Bazar, Shimla comprising in Khasra No.200 (old) and 218 (new), who had executed a Wakfnama Ext.PW-2/A. He has also stated that the plaintiff-Board constituted an Inquiry Committee on 22nd February, 2007 and he was one of the Members in the said Committee. Report of the Inquiry Committee has been proved as Ext.PW-2/C. He further stated that Kabirjoo had one daughter, namely, Iqbal Begum, who was married to Col. Mohammad Sayeed and that the said Iqbal Begum had no issue. In terms of the Wakf Nama, Iqbal Begum would inherit the property and after her death, it was to be transferred in the name of the plaintiff-Board. In cross examination, this witness has admitted that the Committee had not associated the defendants while conducting the inquiry. Mohammad Sayeed and that the said Iqbal Begum had no issue. In terms of the Wakf Nama, Iqbal Begum would inherit the property and after her death, it was to be transferred in the name of the plaintiff-Board. In cross examination, this witness has admitted that the Committee had not associated the defendants while conducting the inquiry. 11. PW-3 Abdul Rasheed, Estate Officer in the plaintiff-Board, has stated that the suit property consisting of four shops, comprising Khasra No.200 (old) and 218 ( new) is situated in Middle Bazar, Shimla. Earlier, the suit property was owned by Kabirjoo, who had made wakfnama dated 12th August, 1928, registered on 14th August, 1928 and according to the Wakfnama, the plaintiff-Board is the owner of the suit property. He further stated that Kabirjoo had no issue. Plaintiff-Board came to know on 21st February, 2007 that the suit property was wrongly mutated in the name of the defendants. Thereafter, an Inquiry Committee was constituted by the plaintiff-Board, which submitted its report Ext.PW-2/C. Iqbal Begum was the daughter of Kabirjoo and was married to Col.Mohammad Sayeed. Kanij Fatima Khanam was the sister of Col.Mohammad Sayeed. Therefore, the suit property was not to be inherited by Kanij Fatima Khanam since Kabirjoo had already made Wakfnama. 12. In cross examination, he has admitted that Kabirjoo had made Wakf-ul-Aulad. He admitted that Iqbal Begum was the wife of Col. Mohammad Sayeed, who was the brother of Kanij Fatima Khanam, Amanulla was the son of Kanij Fatima Khanam and the defendants are the sons of Amanulla. He has stated that Survey Commissioner of Wakf Board inspects the wakf property and prepares the list. He showed his ignorance whether the suit property was entered in the list of the Survey Commissioner or not. He also admitted that Iqbal Begum had not appointed the Wakf Board as Mutawali. 13. PW-4 Mohan Singh, Kanungo, Wakf Board, has deposed that he was one of the Members of the Committee constituted by the Board. The Committee found that Note Nos.36 and 37 were wrongly entered. The property was transferred in the year 1992. Prior to this, the suit property was in the ownership of the Government and Kabirjoo was shown in possession of the same. After Kabirjoo, the property was to be inherited by Iqbal Begum and thereafter, as per the Wakfnama, the property was to be transferred to plaintiff-Board. The property was transferred in the year 1992. Prior to this, the suit property was in the ownership of the Government and Kabirjoo was shown in possession of the same. After Kabirjoo, the property was to be inherited by Iqbal Begum and thereafter, as per the Wakfnama, the property was to be transferred to plaintiff-Board. He, in cross examination, admitted that he did not know whether Iqbal Begum was the daughter of Kabirjoo. He further admitted that as per the record, Mohd. Sayeed was the husband of Iqbal Begum and they were issueless. It was also admitted that Fatima Khanam was the real sister of Mohd. Sayeed. Kanij Fatima Khanam was the mother of Amanullah and grand mother of the defendants. He further stated that he was not in a position to produce any order vide which the suit property was declared as Wakf property. He did not know if the plaintiff-Board had ever collected the tax of the suit property. 14. In rebuttal, defendant No.1 namely Khwaja Khallilula filed his evidence in the form of affidavit which is exhibited as Ext.DW-1/A. He has deposed that the suit property was never included in the list of Wakf properties or was never declared as Wakf property. The suit property was owned by Shri Kabirjoo and thereafter inherited by his daughter Iqbal Begum from whom the defendants inherited the suit property. He has denied that Kabirjoo had ever executed wakfnama in favour of the plaintiff-Board. The defendant further stated that Kaneej Fatima Khanam was the grandmother of the defendants and real sister of Col. Khawaja Mohd. Sayeed, who happened to be the husband of Iqbal Begum, daughter of Kabirjoo. Defendants are the legal heirs of Iqbal Begum as she died issueless. No wakfnama was ever executed by Kabirjoo in favour of the plaintiff-Board. He also tendered in evidence sale deed Ext.DW-2/A, dated 15th February, 2007. In cross examination, he pleaded his ignorance about the fact whether any notice qua execution of the sale deed Ext.DW-2/A was given to the Wakf Board or not. 15. DW-2 Sunder Singh has stated that sale deed Ext.DW-2/A was registered on 15th February, 2007. 16. He also tendered in evidence sale deed Ext.DW-2/A, dated 15th February, 2007. In cross examination, he pleaded his ignorance about the fact whether any notice qua execution of the sale deed Ext.DW-2/A was given to the Wakf Board or not. 15. DW-2 Sunder Singh has stated that sale deed Ext.DW-2/A was registered on 15th February, 2007. 16. Coming to the documentary evidence led by the plaintiff-Board, Ext.PW-1/A and Ext.PW-1/B are the copies of the Notes No.36 and 37, Ext.PW-2/A is the Wakfnama and Ext.PW-2/B is its Hindi translation, Ext.PW-2/C is the inquiry report conducted by the Committee appointed by the plaintiff-Board, Ext.P-4/A is the copy of the Khasra Paimaish and Ext.PW-4/B is its Hindi translation, Ext.PW-4/C is copy of Khasra Paimaish for the year 1907 and Ext.PW-4/D is the Hindi copy, similarly Exts.PW-4/E & PW-4/G are Khasra Paimaish and Exts.PW-4/F and PW-4/H are their Hindi translation, respectively. 17. On the other hand, the defendants proved the receipt issued by the Municipal Corporation, Shimla qua deduction of tax. The defendants have also proved the sale deed Ext.DW-2/A, which was executed by the Government of Himachal Pradesh in favour of the defendants. 18. The Wakf Tribunal, after scanning the evidence dismissed the suit, hence the instant Revision Petition. 19. We have heard the learned counsel for the parties and gone through the record. Our issue-wise findings are as under: Issue No.1 “1. Whether the plaintiff Board is the sole owner in exclusive possession of the suit land and property? OPP” 20. The plaintiff-Board has filed the suit for declaration to the effect that the Board is the owner of the suit property and also for consequential relief of possession. The Wakf Tribunal, while determining this issue, held that the plaintiff-Board has failed to prove that it was the owner in possession of the suit property. We have gone through the findings recorded. The learned Tribunal has rightly made discussion for the following reasons. 21. The plaintiff Board has examined PW-1 Partap Thakur, Patwari, who has specifically stated that the property is not a wakf property and it is not recorded as such in the revenue record. It is apt to reproduce the statement of PW-1 as under: “Stated that I am posted as Patwari, Bazar Ward Bara Shimla District Shimla since the month of Oct. 2009. I have brought the requisitioned record. It is apt to reproduce the statement of PW-1 as under: “Stated that I am posted as Patwari, Bazar Ward Bara Shimla District Shimla since the month of Oct. 2009. I have brought the requisitioned record. The copy of note No.36 in Khasra Pemais Ext.PW1/A and Note No.37 in Khasra Pamais Ext.PW1/B are true and correct as per the original record brought by me today in the court. Xxxxxxxx by Shri Sumit Sood, Advocate, on behalf of defendant No.1. It is correct that as per the aforesaid record, the defendants are recorded as owner. It is correct that in the earlier mutation record Kabiju was recorded as owner of the suit land. As per the record brought by me today, the suit property was never declared as Wakf property. Xxxxxxxx by Shri Sandeep Mahajan, Advocate, fordefendant No.2. Cross-examination as above is adopted.” 22. Neither there are pleadings nor there is iota of proof on the record to the effect that the suit property was ever declared as Wakf property or it was notified as such. It is also not known whether the plaintiff-Board had followed the mandate of the provisions of the Wakf Act and also followed the mechanism contained in the Act for declaring the suit property as Wakf property, if any. 23. It is beaten law of the land that a Court cannot travel beyond pleadings and particulars. The pleadings and particulars are necessary in order to enable the Court to decide the rights of the parties in a trial. The Apex Court in National Textile Corporation Ltd. vs. Nareshkumar Badrikumar Jagad & Ors., 2011 AIR SCW 6180, has taken such view. It is apt to reproduce paragraph 7 of the said decision hereunder: “7. Pleadings and particulars are necessary to enable the court to decide the rights of the parties in the trial. Therefore, the pleadings are more of help to the court in narrowing the controversy involved and to inform the parties concerned to the question in issue, so that the parties may adduce appropriate evidence on the said issue. It is a settled legal proposition that "as a rule relief not founded on the pleadings should not be granted". A decision of a case cannot be based on grounds outside the pleadings of the parties. It is a settled legal proposition that "as a rule relief not founded on the pleadings should not be granted". A decision of a case cannot be based on grounds outside the pleadings of the parties. The pleadings and issues are to ascertain the real dispute between the parties to narrow the area of conflict and to see just where the two sides differ. (Vide: M/s. Trojan & Co. v. RM N.N. Nagappa Chettiar, 1953 AIR(SC) 235; State of Maharashtra v. M/s. Hindustan Construction Company Ltd., 2010 AIR(SC) 1299; and Kalyan Singh Chouhan v. C.P. Joshi, 2011 AIR(SC) 1127).” 24. In the instant case, the plaintiff-Board has made the foundation of the suit on the basis of alleged Wakfnama, Ext.PW-2/B, which contains the description of the property i.e. house No.109 (five storeyed) and house No.109/1 (two storeyed), situated in Ladakhi Mohalla, Shimla, house No.58 (four storeyed) situated over the Mall, Shimla, and shops No.2, 3, 4 and 5 situated in Gali No.5, near Shiv Divala, Middle Bazar, Shimla. The plaintiff-Board has not filed the suit regarding all the properties mentioned in the alleged Wakfnama, except shops No.2, 3, 4 and 5 situated in khasra No.218 (new) and 200(old). The said Wakfnama does not even contain the detailed description of the suit property, only shop numbers, without khasra numbers, have been mentioned in the said Wakfnama. 25. The plaintiff-Board has also failed to plead and prove that the suit property, being the Wakf property, was in its possession at any point of time. There is no averment in the plaint or evidence led by the plaintiff to the effect that the suit property had ever remained in its possession. 26. While going though the revenue record, it appears that the property in dispute was recorded in the possession of Kabirjoo. However, whether the property was a custodian/evacuee property is not forthcoming. In one breath, the plaintiff-Board pleaded that the suit property was in its exclusive possession and in second breath the plaintiff-Board is seeking recovery of possession. Had the suit property was in the possession of the plaintiff-Board, when it came to be dispossessed and from which date right accrued in its favour for recovery of possession, neither pleaded nor proved. 27. Had the suit property was in the possession of the plaintiff-Board, when it came to be dispossessed and from which date right accrued in its favour for recovery of possession, neither pleaded nor proved. 27. The mutation stands effected on 20th February, 1992 in terms of which, defendant No.1 is shown to be owner in possession and, admittedly, as per the pleadings, is in possession of the shops. The plaintiff has not questioned the said mutation till today, thus, has attained finality. It also shows that the defendants were in possession of the suit property. 28. The plaintiff has specifically prayed for declaration to the effect that the plaintiff-Board be declared as owner, and the mutation entered in favour of the defendants be declared null and void. 29. If any revenue entry had cast cloud on the title of the plaintiff-Board, it had to file a suit within the time frame prescribed by the statute. Section 6 of the Act prescribed the limitation for filing a suit in regard to the Wakf properties. It is apt to reproduce the relevant portion of Section 6 of the Act hereunder: “6. Disputes regarding wakfs :- (1) If any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or any person aggrieved may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final. Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of wakfs. ………… ……….. …………..” 30. Thus, in terms of Section 6 of the Act, the suit was to be filed within one year. The plaintiff-Board has pleaded in the plaint that cause of action, initially, arose in its favour on 25th March, 1992, when mutation was effected. But, the suit came to be filed in the year 2008, thus, on the face of it, is time barred. The plaintiff-Board has pleaded in the plaint that cause of action, initially, arose in its favour on 25th March, 1992, when mutation was effected. But, the suit came to be filed in the year 2008, thus, on the face of it, is time barred. In case the plaintiff was aggrieved by the mutation, it ought to have sought appropriate remedy in terms of the land laws applicable or ought to have filed a suit for declaring the entries null and void within the time frame i.e. within three years as per Article 58 of the Limitation Act, 1963. 31. In view of the above discussion, coupled with the averments contained in the plaint and the evidence led by the plaintiff, one comes to inescapable conclusion that the plaintiff has failed to prove that it was owner in possession of the suit property. Viewed thus, the learned Tribunal has rightly made discussion and determined issue No.1 against the plaintiff/revision petitioner. The said findings are upheld. Issue No.1(a) “Whether the plaintiff is entitled for declaration as alleged? OPP” 32. Plaintiff has sought decree of declaration to the effect that it be declared as owner of the suit property. It is a moot question whether the plaintiff can file suit for declaration. The answer is in the negative for the following reasons. 33. The Act contains the mechanism how the property is to be declared as Wakf property and the Board has to follow the same. The plaintiff-Board has not placed/proved on record any notification which could show that the property in dispute was declared as Wakf Property. The plaintiff Board also failed to prove on record any such list from which it could be deduced that the suit property was ever included in the list of wakf properties. Thus, the suit was not maintainable. 34. The Apex Court in case titled as T.N. Wakf Board vs. Hathija Ammal (dead) by LRs. and Others, (2001) 8 SCC 528 , has laid down the same preposition. It is apt to reproduce paragraphs No.5, 7 and 8 of the said decision herein: “5. Let us now examine the provisions of the Act. 34. The Apex Court in case titled as T.N. Wakf Board vs. Hathija Ammal (dead) by LRs. and Others, (2001) 8 SCC 528 , has laid down the same preposition. It is apt to reproduce paragraphs No.5, 7 and 8 of the said decision herein: “5. Let us now examine the provisions of the Act. Under Section 5(2) of the Act, after a property is notified to be wakf property, a determination is made by a Civil Court whenever any dispute arises after the notification is published by the Wakf Board as to whether a particular property specified as wakf property in a list published is a wakf property or not. Section 6 further provides that the Civil Court shall not entertain any such suit after the expiry of one year after the date of publication of the list by the Board. Such a suit cannot be at the instance of the Wakf Board. Again, the Board may itself collect information regarding any property as provided under Section 27 of the Act and decide whether a particular property is wakf property or not and that decision is final unless it is revoked or modified by a civil Court. ……………… ……………… 7. The High Court is justified in holding that the Wakf Board had no right to institute suit for declaration that any property is a wakf property as the scheme of the Act clearly indicates. The High Court further found that as far as the appellant is concerned with regard to title of any property, it must comply with the requirements of Sections 4, 5 and 6 or 27 of the Act, which means that if any property is not published as wakf property as required under Section 5(2) of the Act or the Board has not invoked the special power under Section 27, the Wakf Board cannot file a suit for declaration and possession and on that basis upheld the order made by the trial Court as affirmed by the First Appellate Court. 8. Ms. 8. Ms. Shobha, learned counsel for the appellant, drew our attention to the decision of this Court in Sayyed Ali and others v. A. P. Wakf Board, Hyderabad and others (1998) 2 SCC 642 , to contend that wakf property can never lose its character as wakf property once it is shown that it is a permanent dedication of property and once a wakf, it will always be a wakf. The point urged in this case is that the suit property is a wakf property and hence sought for possession. What was pointed out by the Trial Court, the First Appellate Court and the High Court concurrently is that before filing the suit as provided in law, the Wakf Board should have followed the procedure as required under Sections 4, 5 and 6 or 27 of the Act. A finding of fact has been recorded by the trial Court, and affirmed in appeal, is that the suit properties are not included in the notification published under Section 5(2) of the Act and therefore, steps should have been taken as provided under Section 27 of the Act. It is only thereafter a suit for possession could have been filed by the appellant. There is no answer to this finding.” 35. Applying the tests, no such declaration can be granted by the Wakf Tribunal. 36. The Apex Court in case titled as Haryana Wakf Board vs. Mahesh Kumar, (2014) 16 SCC 45 , held that in case a dispute arises whether a particular property is a Wakf property or otherwise, it is the Wakf Tribunal who has to determine the said question, but sine qua non for deciding the said question is whether the mandate of the Act stands complied with or not. In the instant case, as has been discussed above, there is nothing on the file which can be made the basis for holding that such procedure was followed. Section 7 of the Act deals with the Power of the Wakf Tribunal and also provides time frame of one year from the date of publication of the list for entertaining a suit by the Wakf Tribunal. 37. The plaintiff has examined PW-3 Abdul Rasheed who has stated in his cross examination that he has no knowledge whether the suit property was ever included in the list of wakfs. 37. The plaintiff has examined PW-3 Abdul Rasheed who has stated in his cross examination that he has no knowledge whether the suit property was ever included in the list of wakfs. He also stated that he was not in a position to produce any list prepared by the Survey Commissioner to show that the property was included or was not included in the list. The statement of the said witness is in Hindi and the English translation of the relevant portion of the same is as under: ‘He does not know whether the Survey Commission has ever included the suit property in the list of wakf property. He does not know whether the plaintiff-Board has ever taken confirmation from the Survey Commissioner to include the suit property in the list. He cannot produce today the list prepared by the Survey Commissioner from which it can be shown that the suit property was included in the list or not. ……” 38. Another aspect of the case is that the defendants purchased suit property comprised in Khasra No.218, apart from other property, vide sale deed dated 15th February, 2007, from the Government of Himachal Pradesh. The said sale deed has been proved on record as DW-2/A. The plaintiff-Board has not questioned the said sale deed Ext.DW-2/A, which also relates to Khasra No.218 over which the shops, subject matter of the instant dispute, are situated in terms of the revenue record and as per the plaint. 39. Having said so, the findings returned by the Tribunal on issue No.1(a) are upheld. Issue No.2 “Whether the entries incorporated during the settlement operation showing the defendants in possession of the suit land and property are illegal, inoperative, null and void and alleged? OPP” 40. Though this issue stands decided while decided issue No.1(a) supra, however, at the cost of repetition, it is pertinent to note that Iqbal Begum was the wife of Col. Mohammad Sayeed, who was the brother of Kanij Fatima Khanam, Amanulla was the son of Kanij Fatima Khanam and the defendants are the sons of Amanulla, thus, the defendants are the legal heirs of Iqbal Begum, who was the daughter of Kabirjoo. PW-1 Partap Thakur has unequivocally stated that the defendants were recorded as owner in the revenue record. There is no rebuttal to it. The plaintiff-Board has filed the instant suit for declaring the mutation null and void. PW-1 Partap Thakur has unequivocally stated that the defendants were recorded as owner in the revenue record. There is no rebuttal to it. The plaintiff-Board has filed the instant suit for declaring the mutation null and void. As has been observed above, the suit is highly barred by time. The plaintiff-Board has not led any evidence to show that defendant No.1 was not in possession and he was not owner of the said property. The plaintiff has failed to prove that the property was wakf property and it had followed the procedure as contained in the Wakf Act, discussion of which has been made by the Apex Court in its decision in T.N. Wakf Board vs. Hathija Ammal (dead) by LRs. and others, (supra). 41. Having said so, issue No.2 came to be rightly decided in favour of the defendants and against the plaintiff-Board. Issue No.3 “3. Whether the plaintiff Board is entitled to the grant of decree for possession of the suit land and property as claimed? OPP” 42. This issue flows from issues No.1 and 1(a). The plaintiff-Board has failed to prove that the property in dispute was the wakf property or it had followed the mandate of Wakf Act, or had ever issued notification declaring the suit property as wakf property or included in the list, as discussed hereinabove, as per the mandate of Section 5 of the Act. Thus, relief of possession cannot be sought for. Even otherwise, the plaintiff-Board has not proved whether it came in possession of the suit property after the death of Kabirjoo or his daughter Iqbal Begum. It is admitted case that defendant No.1 is one of the legal heirs of Iqbal Begum, as discussed hereinabove. Thus, issue No.3 came to be rightly decided and the findings returned by the Tribunal are upheld. Issue No.4 “Whether the suit is not maintainable? OPP” 43. In view of the findings recorded on issue No.1 and 1(a), the suit of the plaintiff-Board was not maintainable on any count. Accordingly, the findings returned by the Tribunal on this issue are upheld. Issue No.5 “Whether the plaintiff Board has no cause of action to file the suit? OPD” 44. The plaintiff-Board has miserably failed to prove that the suit property was ever a wakf property or was included in its list or ever it was in its possession. Accordingly, the findings returned by the Tribunal on this issue are upheld. Issue No.5 “Whether the plaintiff Board has no cause of action to file the suit? OPD” 44. The plaintiff-Board has miserably failed to prove that the suit property was ever a wakf property or was included in its list or ever it was in its possession. Moreover, when cause of action arose in favour of the plaintiff-Board and what was its locus is not forthcoming. Therefore, in view of the discussion made hereinabove, the findings on issues No.5 are also upheld. Issue No.6 “Whether the suit is not properly valued for the purpose of court fees and jurisdiction? OPD” 45. This issue was not pressed before the Tribunal. Therefore, we deem it proper not to discuss the same. 46. Having said so, there is no merit in the instant petition and the same is dismissed, alongwith pending CMPs, if any. Consequently, the impugned judgment is upheld.