Jai Kishan Saini and Another vs Haryana Wakf Board

K. Kannan, J.—The revision is against the decree for ejectment passed in a suit instituted before the Wakf Tribunal by the Wakf Board. The Wakf Board sought claim to the property as wakf property by reference to a gazette notification issued u/s 5 of the Wakf Act declaring the property to be an endowed wakf property. The Wakf Board also relied on an adjudication between the Municipal Committee and itself where in a suit instituted by the Municipal Committee, the issue for adjudication was as regards the rival claims to title and the suit by the Municipal Committee was dismissed upholding the defence of the Wakf Board claiming title to the property. The present revision petitioner, who was the respondent before the Wakf Tribunal, contested the case on a plea that he was in possession of the property in his own right and at some point of time when the Municipal Committee was asserting right to the property, in order to purchase peace, executed a lease and was continuing possession. A mere notification of a property, according to him, cannot be binding on a third party and, therefore, the Wakf Board could not eject him by mere reference to the gazette notification. It is also a further defence that the property is entered in the jamabandi only as gair mumkin makaan and did not refer to the property as wakf property anywhere before 2001-2002. It is also the contention that the dismissal of the suit by the Municipal Committee cannot be taken as establishing the title of the property with the wakf.

The notification declaring the property wakf u/s 5, though may not be binding, it follows a particular procedure which obtains relevance to what the notification ultimately states. A publication, which is effected u/s 5, is preceded by preliminary survey of wakf u/s 4. The survey shall include summoning of witnesses and allowing for any person making an objection to the property to be treated as wakf and an enquiry which is contemplated, therefore, is to the nature of ascertaining the claims on the property and filing a report on the basis of which, the State Government would ultimately make a notification in the official gazette. It is only after the enquiry that the publication u/s 5 is undertaken. To this extent, therefore, a third party in possession ought to have had an opportunity to stake claim to the property and prevent notifying the property as wakf. Once a property is notified as a wakf, it shall be perfectly legitimate for the Wakf Board to exercise right over the property as a wakf and if we must states that it will not be binding on a third party, it ought to be understood as only that it cannot be conclusive of the entitlement of the wakf. It shall be possible for any person making an assertion of right to contend that it is not wakf property and that it partakes any other character that derogates from the user of the property as wakf itself.

In this case, if a third party, such as, the Municipal Committee has also asserted title to the property and has lost out its claim against the Wakf Board, it also obtains relevance, as a document not inter-partes, where the right was claimed by yet another third party and that was defeated by the Wakf Board. The relevance obtains through Section 13 of the Evidence Act as a transaction where a right was independently asserted in relation to the very same property. If the suit is, therefore, filed for ejectment on the basis of these documents and the person in possession makes out no more claim than by contending that it had taken a lease at some point of time from the Municipal Committee, the fact that the Municipal Committee itself has lost out in its fight against the Wakf Board ought to conclude the issue as far as the person in possession was concerned. It should only be taken that the Wakf Board was entitled to obtain an ejectment on the basis of the documents which were filed.

There is a technical objection taken also by the revision petitioners that at the time when the suit was filed before the Wakf Tribunal, the person, who has instituted the case, had no authority delegated to him and it came only subsequently through a letter of authority filed on 23.11.2005. This, in my view, is merely a matter of procedure and subsequent authority must be taken as a due ratification of the act done on behalf of the Wakf Board. Wakf is a religious Trust and right of representation brought subsequently through a human agency will operate retrospectively to correct all actions done even earlier. A Trust can be represented at any time for its benefit and a technical objection regarding the rule of standing must give way for a larger social purpose of upholding the case of a public trust. The order passed already by the Wakf Tribunal is maintained and the revision petition is dismissed.