Punjab Wakf Board vs Gram Panchayat

R.L. Anand, J.—Unsuccessful plaintiff, Punjab Wakf Board, Ambala, has filed the present Regular Second Appeal and it has been directed against the judgment and decree dated 24.1.1980, passed by the Additional District Judge, Sonepat, who affirmed the judgment and decree dated 3.11.1978, passed by the Sub Judge, 1st Class, Sonepat, who dismissed the suit of the plaintiff for injunction as prayed for.

The brief facts of the case are that plaintiff-Board filed a suit for permanent injunction against the defendants alleging that the suit property is a graveyard and was used as such from the time immemorial by Mohammedans for burying their dead bodies and thus has acquired character of Wakf property by user, dedication and reputation. The Board leased out 2 kanals 16 marlas of land shown in the site plan attached with the plaint to defendants No. 3 and 4 in the year 1971 and from that time onwards they have been in physical possession of the same as tenants under the plaintiff Board. On 24.9.1974 Rattan son of Amar Singh and Kanshi Ram son of Shish Ram filed an application u/s 7 of the Punjab Village Common Lands Act against defendants No. 3 and 4 (Randhir Singh and Amar Singh) and obtained an order of ejectment against them from the Court of Assistant Collector 1st Grade, Sonepat on 19.12.1975.

Aggrieved by the order of the ejectment, the plaintiff-Board had instituted the suit for permanent injunction restraining defendants No. 1 and 2 i.e. the Gram Panchayat and Gram Sabha Tharu-Uldepur, through its Sarpanch, from taking the possession of the suit property on the basis of the order dated 19.12.1975.

Notice of the suit was given to the defendants. Defendants No. 3 and 4 in their joint written statement admitted the claim of the plaintiff-Board. However, the suit was resisted by defendants No. 1 and 2. They asserted that the suit land was a shamilat land and it rightly vested in the gram Panchayat. They further maintained that it has not been used as grave yard after partition and mutation has wrongly been sanctioned in favour of the plaintiff-Board. They justified the eviction order passed by the assistant Collector 1st grade against defendants No. 3 and 4 which was also upheld by the Collector in appeal. They also moved an application u/s 56 of the Wakf Act for setting aside the order of the ejectment but the same was rejected by the Assistant Collector.

Aggrieved by the judgment and decree dated 3.11.1978, passed by the Sub Judge, 1st Class, the plaintiff Board filed the appeal before the Court of Additional District Judge, Sonepat, who vide judgment and decree dated 24.1.1980 and for the reasons given in paras No. 8, 9, 10 and 11 its judgment, dismissed the appeal also.

"8. The plaintiff-appellants have produced documentary evidence which consists of a power of attorney Ex. P.1, site plan Ex. P.2, copy of bahi khata Ex. P.3, copy of Sharat Wajeh-ul-arz Ex. P.4, copy of jamabandi Ex. P6, Ex. P8 and Ex. P9 copy of the order of Collector Ex. P7 and copy of scheme of consolidation Ex. P.10. The oral evidence of the plaintiff-appellant consists of PW1 Mohammad Ishaq Rent Collector of Punjab Board, Sonepat, PW2 Mehar Singh and PW3 Mange Ram.

The evidence of the defendant-respondent consists of the statement of D.W.1 Sh. Gopal Singh Sarpanch of Gram Panchayat Uldepur.

The main case of the plaintiff-appellant is that in the jamabandi Ex. P.8, for the year 1909-10, Ex. P.9 for the year 1955-56 and Ex. P.6 for the year 1973-74 there are entries of gair mumkin Kabristan and that there is also a mention in scheme of consolidation dated 16.12.1953 a copy of which is Ex. P.10 wherein there is a mention of 8 or 9 Mohammadans live in the village and there is a kabristan on an area of about two acres. The learned counsel for the plaintiff-appellant has urged that in the presence of this documentary evidence and the oral corroboration by P.W.1 Mohammad Ishaq and PW2 Mehar Singh who has even named a few Mohammadans who lived there in 1949, 1950, 1970 and 1971, it cannot be said that the land in question is not kabristan and that the learned trial Court should not have ignored this entire documentary evidence and relied upon the sole statement of the sarpanch of the village Gopal Dass who has appeared as D.W.1.

The documentary evidence referred to above in the reality does not depict a true picture and the documents and the evidence of the plaintiff itself demolishes their case. In the jamabandi Ex. P.9 which is for the year 1955-56 the panchayat deh has been mentioned in the column of ownership and the same is the position in the jamabandi Ex. P6 for the year 1973-74. In reality, no Muslims have been residing there after 1947 and there is no reliable evidence that there has been any burials on the land in question. Because, there has been no burials, this was the reason that the Wakf Board themselves created a lease of the land in question in favour of defendant Nos. 1 and 2. It is surprising that on one hand the Punjab Wakf Board has leased the land for the purpose of agriculture by lease or a licence and on the other hand it has come forward to the civil court claiming that it is burial ground. In the facts and circumstances of the present case Syed Mohd. Salie Labbai v. Mohd. Hanifa and Ors. AIR 1976 S.C. 1969 cited on behalf of the appellant is not applicable and on the contrary the Punjab Wakf Board v. The Panchayat Deh (1971)73 P.L.R. 224 cited on behalf of the respondent is attracted wherein it was observed that unless a cluster is formed, the mere circumstantial evidence does not establish a Wakf by suer. It was also a case of Sonepat District, where the present land is situate. Similarly, Ballab Dass and Anr. v. Mohammad and Anr. AIR 1963 PC 83 cited on behalf of the appellant is not attracted because in the case in hand, there are irregular entries since long and the panchayat deh also finds its name mentioned in the revenue records."

Aggrieved by the judgment and decree of the first appellate Court, the present appeal has been filed by the Punjab Wakf Board.

I have heard the learned counsel for the parties and with their assistance have gone through the record of this case.

The only point which survives for determination before this Court is whether the property in dispute is Wakf property and vested in the Wakf Board so as to make its owner. In this regard, the learned counsel for the appellant relies upon (1935)37 P.L.R. 653, Mehar Din v. Hakim Ali 1999(2) R.C.R. 32, and Sayyed Ali v. Andhra Pradesh Wakf Board, Hyderabad, and submitted that Wakf is permanent dedication of property for purposes recognized by Muslim law as pious, religious or charitable and the property having been found as Wakf would always retain its character as Wakf. Once a Wakf always a Wakf and grant of patta in favour of Mokhasadar would not in any manner nullify the earlier dedication made of property and will not change its original character or title.

The reliance was placed by the plaintiff Board on the documentary evidence which I will presently discuss but before I discuss the evidence which has been relied upon by the plaintiff, it will be useful for me to quote the observations of two judgments reported as (1969)71 P.L.R. 1081, Panchayat Deh v. Punjab Wakf Board, Ambala, in which it was held that if a land has been ''recorded in the Jamabandi as Gair-mumkin Kabristan in occupation of Ahl-e-Islam but the village is pre-dominatly consisting of Hindus and only few Muslims who were there leaving for Pakistan and that there is no tomb or graveyard in existence and that the land has been occupied by the persons and has been built, such land will be deemed to be shamilat one being the ownership of the panchayat and the entry in the jamabandi will not be considered as correct. It was further observed by the High Court that dedication of Islam by long user cannot be presumed.

In 1971 C LJ 75, Punjab Wakf Board v. Panchayat Deh it was held as follows :-

"Where a large tract of land is studded with a grave here and a grave there without forming a cluster anywhere, the circumstantial evidence may fail to establish a wakf by user."

The case set up by the plaintiff Board was that the property in dispute was a Kabristan dedicated to Ahl-e-Islam and, therefore, it had vested in the Board.

Let us now examine the documentary evidence which has been led by the Board. Ex. P.1 is only a permission to file the suit. Ex. P.2 is the site plan. Ex. P-4 is an entry of Riwaje-e-am which indicates that in this village which is predominated by Hindus, some Muhammadans had been residing and in Rect. No. 39, there was Kabristan (graveyard) meant for the Mohammadans and beyond that nothing can be inferred. Ex. P.5 is the entry of Jamabandi in which in the column of ownership and in the column of possession the name of the Gram Panchayat figures. This document again does not help the plaintiff. Ex. P.6 is the Jamabandi for the year 1973-74. In the column of ownership the name of the Gram Panchayat has been shown and in the column of area, the area measuring 2 Kanals 16 Marias is shown as Gair Mumkin Kabristan. This entry too cannot be read for the benefit of the plaintiff because in the column of ownership gram Panchayat has been shown as owner. The oldest entry in the revenue record is the Jamabandi of the year 1909-10. In the column of ownership it has been shown as Shamilat Deh Hasab Hisas Malkan shamilat according to the share of the proprietors). In the column of possession, it has been shown as Makbuja Ahl-e-Islam and in the column of area, it has been shown as gair mumkin Kabristan. The Khasra Number of the property has been shown as 40 Min. I had already stated that in the Reiwaja-a-am entry it is clear that there was a Kabristan in the village but it is difficult to connect the suit property with that very Kabristan. The Jamabandi for the year 1955-56 again shows that panchayat is the proprietor and in the column of cultivation and possession Ahl-e-Islam has been shown. Again in the column of area, it has been shown as Gair Mumkin Kabristan.

The next document which can be discussed is Ex. P.10. the copy of the entry of scheme, which was prepared at the time of the consolidation, is dated 16.12.1953. In this entry there is a clear mention that only 8/9 Mohammadans resided in the village. There was a Kabristan already in existence in the village whose area is 2 acres meaning thereby that the graveyard was situated at a different place whose area was about 2 acres and definitely this was not the area which was dedicated to Ahl-e-Islam or which was being used as graveyard by the Mohammadans in order to bury their dead bodies.

In view of the conflicting entries, there cannot be any presumption that the land in question was dedicated to Ahl-e-Islam or that it was being used as graveyard. Even the oral evidence is not convicing. In the cross-examination, PW-1 Mohd. Ishaq admitted that the land in question the area of which is 2 Kanals 16 Marias, was given on rent to defendants No. 3 and 4 for the cultivation purposes on behalf of the plaintiff Board. He could not say whether any Mohammandan was residing in the village or not. He admitted that the present village is pre-dominantly occupied by the Hindus.

On the contrary, Shri Mehar Singh PW-2 stated in the cross-examination that defendants No. 3 and 4 had been occupying the property even prior to 1947. PW-3 Shri Mange ram stated that after 1947 only few Muslim houses were in existence and they had been burying their dead bodies in the property in question. In the cross-examination, he admits that defendants No. 3 and 4 were in possession of the suit property since 1947. there is no indication that there was any regular graveyard in the property in question. If few Mohammadans had been burying the dead bodies of their family members in the land in question, it will not get the colour of a regular graveyard as pointed out by the Hon''ble High court in the judgment quoted above. As against this, there is evidence of Shri Gopal Singh, Sarpanch who deposed that only 5/7 houses of Muslims were in existence prior to 1947 and Mohammadans never buried their dead bodies in the suit property and that no Kabristan existed.

There is no dispute with the proposition of law as laid down by the Hon''ble Supreme court, as discussed above but in the present case it is not established that the land measuring 2 kanals 16 marlas was a wakf property. Inconsistent entries in the revenue record would not make it a wakf land when the scheme and the Riwaje-a-am shows that Kabristan was in an area measuring 2 acres. The plaintiff has not been able to connect the property in question. As I have already stated above, it appears that the residents of this village buried the dead bodies of their forefathers in the land in dispute but regular Kabristan of Mohammadans was totally separate which may be near the land in question.

In this view of the matter, it can be safely concluded that the plaintiff Board only wants to rely upon the inconsistent entries of the revenue record without proving further that the property in question was never dedicated in the name of Ahl-e-Islam or it was a Kabristan of the Mohammadans meant for burying their dead bodies. Both the Courts, thus, have rightly non-suited the plaintiff Board. I do not see any merit in this appeal and dismiss the same with no order as to costs.