C.R. No.4672 of 2005 -1-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
C.R. No.4672 of 2005
Date of Decision:10.09.2009
Punjab Wakf Board through is Estate Officer, Rohtak (Now Haryana
Wakf Board).
.....Petitioner
Versus
Arjun Dev Chawla and others ...Respondents
Present: Mr. Arun Palli, Sr. Advocate
with Mr. Jai Bhagwan, Advocate and
Mr. K. V. S. Kang, Advocate
for the petitioner.
CORAM:HON’BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see
the judgment ? Yes.
2. To be referred to the Reporters or not ? Yes.
3. Whether the judgment should be reported in the Digest?Yes.
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K. KANNAN J.(ORAL)
1. The order which is challenged in this civil revision is one
passed by the Wakf Tribunal dismissing the suit filed by the Punjab
Wakf Board through its Estate Officer for recovery of possession of
the property in khasra no.7808 measuring 7 bighas 18 biswas situated
at Gohana Road, Rohtak. The points that found favour with the
Tribunal were that the suit was barred by limitation and that the
plaintiff had not established his title to the property. The Tribunal
held, while rejecting the evidence relied on by the Wakf Board that
then had been a notification issued under Section 5(2) of the Wakf Act
that the notification can not operate to affect the rights of defendants.
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The right which the tribunal held as having accrued to the defendants
were that they had shown themselves to be in possession over several
number of years and therefore the Wakf Board not having shown to be
in possession for 12 years from the date of filing of the suit had not
been able to establish its ownership.
2. The learned counsel appearing for the Wakf Board has
three submissions to make: one, there could be no claim to a bar of
limitation institute for a suit instituted by Wakf Board by virtue of
Section 107 of the Wakf Act. Two, the property which had been
declared as Wakf in revenue records of the year 1946 and which stood
confirmed by a notification which is made in the year 1978 evidenced
the existence of a Wakf and once a Wakf it would not lose his
character, whether it was used as such or not. Three, as last part of an
argument if the plaintiff’s right to title had been established it was
unnecessary for the plaintiff to show 12 years’ possession prior to the
institution of the suit. On the other hand, the plaintiff’s title can be
non-suited by the defendants only by showing title in the defendants
which was better than the plaintiff.
3. The contentions raised by the revision-petitioner would,
therefore, require an examination of whether the plaintiff has been
able to show his title to the property. The contention was that the
source of title was lost in ambiguity and that it had been shown in the
jamabandi of the year 1946-47 (Ex.PW2/A) that showed that property
had been entered in the revenue records showing the character of
property as shamlat deh with possession of Ahale Islam Gair Mumkin
Kabristan. The notification was subsequently issued under the Wakf
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Act on 6.5.1978 under Ex.PY which depicts khasra No.7808 besides
other khasra numbers as graveyard and that had been vested in the
Wakf Board by virtue of notification dated 17.4.1978. The Section 5
which deals with publication of the Wakf Act shall itself be a resultant
act to a survey which shall be done under Section 4 of the Wakf Act.
The preliminary surveys of Wakf would require a State Government to
appoint a Survey Commissioner of Wakfs and other Deputies to make
field inspection and identify the actual dedication. It is only after the
preliminary survey that a publication could be issued under Section 5
of the Wakf Act. Section 6 Clause 4 itself makes the list of Wakf as it
is notified to be final and conclusive unless it is modified in pursuance
of a decision of tribunal. The publication would obtain a statutory
presumption as to its correctness and the presumption that all official
acts are properly done would avail to the Wakf also under Section 114
of the Indian Evidence Act. By virtue of the entry in the revenue
records of the year 1946 coupled with a notification under the Wakf
Act, the title to the property as Wakf shall be taken as sufficiently
established. The finding to the contrary by the the Wakf Tribunal
below would, therefore, require to be set aside.
4. The subsequent issue would be whether the defendants who
were admitted to be in possession of the property could be directed to
hand over the possession of the same to the plaintiff. Parma Nand Lal
Charitable Society claims the property as belonging to it. It is
admitted that it has created lease in respect of lands surrounding the
building that it had put up. The Articles 64 and 65 of the Limitation
Act of 1963 was a departure from the earlier enactment of the
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Limitation Act of 1908. Article 64 refers to a suit for possession of
immovable property based on previous possession and not on title,
while Article 65 refers to possession of immovable property based on
title. The period of limitation is 12 years when the possession of
defendants becomes adverse to the plaintiff. The legal consequence of
the language employed under Article 65 is that a suit filed on title can
fail only if the defendant establishes his possession and shows that it
has become adverse to the plaintiff. In other words, the plaintiff need
not to show possession within a period of 12 years if it is based on
title. On the contrary, it shall be the defendant who shall show his
possession to have prescribed title. In this case, the tribunal
misdirected itself to examining that the plaintiff had not established its
possession for 12 years prior to suit. On the other hand, the inquiry
which the tribunal must have undertaken was whether the defendant
was able to establish that it had prescribed title to the property. Such
a prescriptive right against Wakf Board itself is barred statutorily
under Section 107 of the Wakf Act reads as follows:-
“Nothing contained in the Limitation Act, 1963
shall apply to any suit for possession of immovable
property comprised in any wakf or for possession
of any interest in such property”
The plaintiff could not have been therefore non-suited by
any claim of defendant under adverse possession, unless such adverse
title had been acquired by the defendant even prior to the
commencement of the 1963 Act.
5. Learned counsel appearing for the Wakf Board has other
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contentions as well that the property which had become vested with
the Custodian under Section 11 of the Administration of Evacuee
Property Act would have the effect of the custodian to hold the
property in trust for the trustee by the Wakf. The constitution of the
Wakf itself and its notification on the Wakf Act will enable the
transfer of ownership in favour of the Wakf. Reference was made to
the decision of the Hon’ble Supreme Court in Punjab Wakf Board
Vs. Nath Singh 1988 PLJ 10 that held that Wakf property could vest
in a Wakf Board in the same manner and in the same effect as a
trustee of such property for purposes of sub-section 1 of Section 11 of
Administration of Evacuee Property Act with effect from the date of
such entrustment. The actual date of entrustment is not specifically
pleaded or proved but, in my view, it will have no bearing by virtue of
the fact that notification had been issued in the year 1978 after a due
survey of Wakf and Wakf Board itself through duly appointed trustees
shall have a right of control over the property. Learned counsel refers
to a decision of Hon’ble Supreme Court in Syed Mohd. Salie Labbai
(Dead) by Lrs and others Vs. Mohd. Hanifa (Dead) by Lrs and
others, AIR 1976 Supreme Court 1569 that once a Kabristan has
been held to be a public grave-yard, then it vests in the public and
constitutes a Wakf and it cannot be divested by not-user but will
always continue to be so whether it is used or not. The corollary to
this judgment is that if a property could have shown to have been
dedicated to a Wakf, its mere non-user as such will not divest its
character as Wakf. The suit for a declaration that it is a Wakf property
and for a recovery of possession in a case where the defendant had not
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established any independent title to the property by any manner of law
is entitled to succeed. The relief of injunction against further
alienation would also be required to be upheld in favour of the
plaintiff for, the defendants are found to be not in any manner legally
entitled to the property and cannot fetter the plaintiff’s entitlement or
indulge in any act that can jeoparadise the interest of the plaintiff.
The plaintiff had sought for an injunction in a mandatory form for
removal of construction and possession. The plaintiff shall be so
entitled.
6. The revision petition is allowed in the above terms. There
shall be no order as to costs.
( K. KANNAN )
JUDGE
September 10, 2009
ashish