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Himachal Pradesh High Court · body

2018 DIGILAW 2053 (HP)

Kamla Mohini v. H. P. Wakf Board Shimla

2018-11-21

TARLOK SINGH CHAUHAN

body2018
JUDGMENT : Tarlok Singh Chauhan, J. The Revision Petition under Section 115 of the Code of Civil Procedure is directed against the judgment and decree dated 30.08.2008, passed by the learned Wakf Tribunal, Kangra District at Dharamshala, whereby the defendants were restrained from raising construction in the suit land, digging the same or in any way changing the nature passing a decree of permanent injunction. 2. The respondent is the plaintiff, who filed a suit for permanent injunction on the premise that his land described in Khata/Khatauni No. 27/49, Khasra Nos. 2173, 2182 to 2184 and 2187 to 2190, kita 8 (corresponding to old khasra No. 1004.527=2 kanal 13 Marlas) measuring 705.72 sq. metres was owned and possessed by it. The Government of India in exercise of the powers vested in it under Section 5 of the Wakf Act, 1954 (hereinafter referred to as the Act) had published the suit land as Wakf Property under Rule 4 of the Rules framed under the Act as per Gazette of India Notification dated 15.08.1970 (Part III – Section 4). The suit land was property of mosque. In the Books of the Collector, defendant No.1/petitioner had been recorded owners in possession of the suit land as per the jamabandi for the year 2000-01, whereas the other defendants were strangers to the suit land and the entries indicating defendant No. 1 as owner-in-possession of the suit land were illegal, wrong and not binding on the plaintiff. It was further averred that the defendants were collecting construction material in the suit land on 20.11.2005. Hence, the suit. 3. The defendants despite service and despite having been permitted by this Court to file written statement subject to the costs of Rs.10,000/-, but defendant No. 1 did not pay the costs and consequently defence of defendant No. 1 was struck of. 4. The plaintiff in his evidence examined one witness and tendered in evidence documents Ext.P-1 to P-5. 5. The learned Tribunal after going through the pleadings and the evidence led by the plaintiff and documents so exhibited by it, decreed the suit as aforesaid, constraining defendant No. 1 to file the instant revision. 6. 4. The plaintiff in his evidence examined one witness and tendered in evidence documents Ext.P-1 to P-5. 5. The learned Tribunal after going through the pleadings and the evidence led by the plaintiff and documents so exhibited by it, decreed the suit as aforesaid, constraining defendant No. 1 to file the instant revision. 6. It is vehemently argued by Shri S. D. Gill, Advocate, that the findings recorded by the learned Tribunal are perverse as it clearly overlooked the fact that the suit land had come to the ownership and possession of the present petitioner/defendant No.1 by way of registered conveyance i.e. registered sale deed dated 21.05.1979, which had been duly and legally executed in her favour by one Smt. Promila Puri, who, in turn had purchased the land from the original vendee Shri Trilok Nath Sharma, who had purchased the said land from His Excellency, the President of India vide registered sale deed dated 04.06.1958. As such, the petitioner was not only the owner but in a lawful possession of the property in dispute and, therefore, there was no occasion whatsoever for the learned Tribunal to pass a decree of injunction. I have heard learned counsel for the parties and have gone through the records of the case. 7. The Govt. of India in exercise of the powers vested in it under Section 5 of the Act had published the suit land as Wakf Property in accordance with Rule 4 of the Rules framed under the Act, vide Gazette Notification dated 15.08.1970, Part-III, Section 4 (copy Ext.PW-1/A). for facility of reference relevant portion of Gazette Notification dated 15.08.1970 is reproduced below:- List of Sunni Wakfs Existing in composite Punjab u/s 5(2) of the Central Governments Wakf Act, 1954 (29 pf 1954) read with Rule 4 of the Punjab Wakf Rules, 1964 Terrotories transferred u/s 5 of the Punjab Re-organisation Act 1966 to the Union Territory of Himachal Pradesh Sr. No. 326 (i) Name of Wakfs Masjid (ii) Location of Wakfs (a) District Kangra (b) Tehsil Kangra (c) Village where situated Taka Dharam (d) Site on which situated Shala Khas (iii) Details of Wakf Properties (a) Area Kanal Marla Khasra No. 0 05 488 1 02 506 (b) Boundaries 13 13 1189.507 0 11 511 1 04 526 0 09 510 11 12 1005/527 0 05 506P 0 02 506’I 0 03 506 min 0 02 506 min 0 01 508 min 0 02 1188/507 0 16 509 1 09 1001/512 0 08 1000/512 0 13 1003/527 2 13 1004/527 6 09 1012/527 41 09 (c) Value Rs. …………. 170456/- (iv) Date or year of creation of Wakfs……… Not known (v) Details of Wakf deeds ………… Not known (vi) Cross receipts…………. -- (vii) Grant received …………….. --- (viii) Nature of object of each Wakf …… Religious (ix) Cross income of properties comprised in each Wakf.. 1155/- (x) Amount of L.R. cess rates and taxes payable in respect of such property….. 13-45 (xi) Expenses incurred in the realisation of income… - (xii) How the Wakf is administered… Through Muslim (xiii) Name of Mutwali…… Trust Committee (xiv) Pay or remuneration of Mutwali of each Wakf.. Simla (xv) Any other particulars (remarks …. -- 8. Bearing in mind the aforesaid notification, now in case the testimony of PW1 Rafakat Hussain, Estate Officer of Wakf Board is perused, it would be noticed that he had stated that he was conversant with the facts of the suit and the suit land was a Wakf Property and was owned by the plaintiff. The defendants had no right and interest over the suit property, but defendant No. 1 had manipulated the entries of ownership and possession of the suit land. In cross-examination, defendant No. 1 tried to establish that the sale of the property was made by the President of India in favour of Trilok Nath Sharma vide registered sale deed dated 04.06.1958 for Rs.12910/- and accordingly it was so suggested to the witness. It was further suggested that Shri Trilok Nath Sharma had sold the suit property to Smt. Promila Puri, who in turn, sold the same in favour of defendant No. 1 through registered sale deed dated 21.05.1979 for Rs.49,000/-. It was further suggested that Shri Trilok Nath Sharma had sold the suit property to Smt. Promila Puri, who in turn, sold the same in favour of defendant No. 1 through registered sale deed dated 21.05.1979 for Rs.49,000/-. All these suggestions were refuted and denied by the witness and, therefore, on the basis of the evidence that has appeared on the record, the learned Tribunal has rightly concluded that defendants could not be treated to be having any right, title or interest in the suit property. 9. At this stage, Shri Gill, would vehemently argue that the documents produced by the defendants in the nature of the sale deeds, as referred to above, have not been considered by the learned Tribunal in its right perspective. 10. It would be noticed that defendant No. 1 had produced copy of sale deed dated 04.06.1958 whereby His Excellence, the President of India, is stated to have sold Rehlu House No. B1-35-105/II-174-Dharamshala with full description given in the Schedule- I annexed with the sale deed to Shri Trilok Nath Sharma and same reads as under : SCHEDULE-I All that piece of parcel of land and or buildings situated at Dharamshala containing by asmeasurment…. Or thereabouts and bounded……….. On the North by … Land belonging to mosque On the South by…. Land belonging to mosque On the East by…… Road and land belonging to mosque On the West by….. Thoroughfare 11. It is this Trilok Nath Sharma from whom Promila Puri is stated to have purchased the property and then sold it to defendant No. 1. However, in case, in the sale deed dated 04.06.1958 and the area of the property sold to Trilok Nath Sharma is perused, it would be noticed that the area of the property sold to Trilok Nath Sharma had not been indicated or specified, instead it has been stated that property known as Rehlu House No. B1-35- 105/II-174-Dharamshala stood sold to Trilok Nath Sharma. 12. It is more than settled that property can either be sold by boundaries or by area, especially, when the same is clearly discernible from the document of title. 13. Now, adverting to the boundaries of Rehlu House, it is bounded on North, South and East by land of Mosque and on the West by public street (thoroughfare). 12. It is more than settled that property can either be sold by boundaries or by area, especially, when the same is clearly discernible from the document of title. 13. Now, adverting to the boundaries of Rehlu House, it is bounded on North, South and East by land of Mosque and on the West by public street (thoroughfare). It is not the case of defendant No. 1 that the property of mosque is towards the North, South and East of the property purchased by her. 14. It is also not in dispute that it is this property that was sold to Smt. Promila Puri from whom it was purchased by defendant No. 1 through the registered sale deed dated 21.05.1979. If that be so, then no exception to be taken to the findings recorded by the learned Tribunal that defendant No. 1 and her predecessor-in-title in collusion with officials of the Revenue Department had got themselves recorded as owner in possession of the suit property when the same was owned and possessed by the Mosque and stood vested in Wakf and was duly notified under Section 5 of the Act. The property in dispute was never sold by His Excellency, The President of India in favour of Trilok Nath Sharma and obviously, therefore, defendant No. 1 or any other person could not have any right, title or interest over this property. 15. The findings recorded by the learned Tribunal are pure findings of fact, based upon the correct appreciation of the pleadings and the evidence on record, therefore, in absence of any perversity I am not inclined to interfere with the judgment passed by the learned Wakf Tribunal. 16. Accordingly, I find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs.