High Court Punjab-Haryana High Court

Abdul Razak & Ors vs Punjab Wakf Board & Ors on 15 December, 2008

Punjab-Haryana High Court
Abdul Razak & Ors vs Punjab Wakf Board & Ors on 15 December, 2008
RSA No.1585 of 2008                                           1

 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

                                        CM No.5019-20-C of 2008
                                        RSA No.1585 of 2008(O & M)
                                        Date of Decision:15.12.2008

Abdul Razak & Ors.

                                                    ....appellants

                    Versus

Punjab Wakf Board & Ors.

                                                    .....respondents

CORAM:         HON'BLE MR.JUSTICE RAKESH KUMAR GARG

Present:       Mr.Sanjay Verma,Advocate
               for the appellants

                    ****

RAKESH KUMAR GARG J.

CM No.5019-20-C of 2008

For the reasons recorded in the application, delay in filing

and refiling the appeal is condoned.

CM stands disposed of.

RSA No.1585 of 2008(O & M)

Brief facts of the case are that respondent No.1 Punjab

Wakf Board filed a suit for possession by way of ejectment of the

appellants from the suit land on the ground that the land was owned and

administered by respondent No.1. According to jamabandi for the year

1993-94 it was recorded as owner through Mohabbat son of Nadar Shah

and Piru son of Majnu and appellants were in unauthorized possession of

the suit land and appellants were never inducted by the plaintiff/respondent

No.1 over the suit land and they forcibly occupied the same and hence

respondent No.1 filed suit against the appellant.

The appellants No.1 to 4 filed their joint written statement

and contended that suit had not been filed by the duly authorized person
RSA No.1585 of 2008 2

and suit filed by the plaintiff itself was not maintainable and no cause of

action arises at all to them. They further contended that father of

appellants No.1 to 4 was mohatmim of the land bearing khasra No.31/1/2

min(5-3) on behalf of respondent No.1 and he cultivated the said land

without payment of any rent and after the death of their father, the

appellants were continuing in cultivating possession of the said land

without payment of rent. Therefore, their possession was open, continuous

and hostile to the whole world and same had matured into full ownership

with the lapse of time. It was further contended that earlier the land in

dispute was recorded as Takia whereas there was no takia and it was

further contended that the land bearing khasra No.21//21/2 was previously

under the cultivating possession of one Mohabbat son of Nadar Shah, who

was mohatmim of the said land on behalf of the Board. Mohabbat had

executed a Will on 19.07.1966 in favour of defendant No.1 and according

to that Will the said land was in cultivating possession of defendant No.1.

Therefore, respondent No.1/plaintiff had no right and interest in the same

and the suit is liable to be dismissed.

Parties led evidence in support of their respective pleas.

After hearing arguments, trial Court decreed the suit of the plaintiff with

costs and a decree for possession of the suit land by way of ejectment of

the defendants was passed in favour of the plaintiff and defendants were

directed to hand over the vacant possession to the plaintiff within two

months.

Feeling dissatisfied with the aforesaid judgment and decree

dated 27.08.2004, the defendant Nos. 1 to 4 preferred an appeal, which

was also dismissed by the Additional District Judge, Jagadhari, vide

impugned judgment and decree dated 14.02.2007.

Still not satisfied, the appellants have filed the present

appeal challenging the judgment and decrees of the Courts below.
RSA No.1585 of 2008 3

Learned counsel for the appellants has argued that the

father of the appellants was in possession of the property in dispute, as

mohatmims and after their deaths, they are continuing in possession

without payment of any rent and therefore the suit of the plaintiff-

respondents is liable to be dismissed.

I have heard learned counsel for the appellants. The

contention raised by the learned counsel for the appellants is without any

merit. Admittedly, the defendants have come into possession of the

property in dispute being the sons of mohatmim i.e.Manager of the Wakf

property. Thus, they have no independent right. Their possession over the

suit land could not be in their individual capacity, rather the same was for

the benefit of the Wakf, which was under the control and management of

the Board. The appellants at the most can be said to have stepped into

the shoes of Mohabbat and Piru which came to an end the moment they

died and the defendants could not claim their possession over the disputed

land in the capacity of mohatmim.

The argument of the appellants that they are continuing in

possession of the suit land since the time of their forefathers without

payment of any rent and in this way their possession as owner is hostile to

the whole world and therefore they have acquired ownership rights by way

of adverse possession is also liable to be rejected. The defendants in their

written statement have claimed their right to possess the suit land through

Piru and Mohabbat who were mohatmims and it was not asserted that their

title was hostile to the true owner. In any case, there is no evidence to

establish their right on the property in dispute on the plea of adverse

possession. Even otherwise, their plea is that their possession is

permissive and in these circumstances, the plea of adverse possession

was not available to them. The Hon’ble Supreme Court of India in the case

of The State of Punjab versus Brigadier Sukhjit Singh 1993(3) RRR
RSA No.1585 of 2008 4

209 has held that permissive possession, however long, cannot itself be

said to have become hostile by a long lapse of time. Hence, this appeal is

without any merit.

No substantial question of law arises.

Dismissed.

(RAKESH KUMAR GARG)
JUDGE
15.12.2008
neenu