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