Punjab Wakf Board vs Punjab State

B. Rai, J.—This second appeal arises out of a suit filed by Punjab Wakf Board for possession of the land measuring 8 Kanals bearing Khasra No. 40 within the revenue Estate of Mehmudpur in Tehsil Garhshankar, District Hoshiarpur after demolition of the super-structure raised by the defendant.

The facts are that the suit land is a graveyard and is wakf property which was permanently dedicated by a person professing Islam for pious, religious and charitable purposes and also by user. After the partition of the country, the said property vested in the Custodian in trust for public purposes. The State of Punjab has been in possession of the suit property since the year 1953. The graveyards were levelled and the defendant-State constructed building in which a Government Primary School is being run. After the enactment of the Wakf Act, 1954 (for short, the Act) the property in dispute was transferred by the custodian to the plaintiff-Punjab Wakf Board, which is a body corporate capable or suing and being sued in its name. The suit property was registered as Wakf Property u/s 25 of the Act. Its management and general superintendence vests in the Wakf Board. The State of Punjab was only a licencee with permissive possession and a notice u/s 80 of the CPC was served on the State of Punjab calling upon it to admit the claim of the plaintiff, but to no effect.

The suit was not contested by the State of Punjab.

On June 10, 1971, the trial Subordinate Judge passed an ex parte decree in favour of Wakf Board as against the State. On application made by the State, ex parte decree was set aside vide order, dated April 25, 1973.

The State of Punjab by way of written statement admitted the Wakf Board to be a body corporate and the existence of the building of the Government Primary School in Khasra No. 40 in Village Mehmudpur which according to the defendant, was, situated in the land owned by the village Panchayat. Other allegations were controverted. The suit was contested on a number of grounds. From pleadings of the parties following Issues were framed by the Trial Court:

1) Whether the jurisdiction of Civil Court to try the suit is barred under law? OPD. 2) Whether the suit is within time ? OPP.

3) Whether the suit is bad for non-joinder of the necessary parties? OPD.

4) Whether a valid notice u/s 80 C.P.C. was served upon the defendant? If not to what effect? OPP.

5) Whether the plaintiff is estopped from filing the present suit by his acts and conduct? OPD.

6) Whether the property in dispute is a public wakf property? OPP.

7) Whether the property in dispute vests in and is under the management and the superintendence of the plaintiff? OPP.

8) Whether the defendant is in possession of the property in dispute and has raised construction thereon and its effect? OPD.

9) Relief.

Issue No. 1 was decided against the defendant holding that Civil Court had jurisdiction to try the suit. On Issue No. 3 no evidence was led by the defendant. Accordingly this issue was also decided against the defendant. Issues 4 and 5 also went against the defendant. Issue No. 2 was decided in favour of the plaintiff. Issue No. 6 was decided against the plaintiff. In view of the findings on Issue No. 1, Issue No, 7 was also decided against the plaintiff. Issue No. 8 was decided in favour of the defendant. Consequently, the suit was dismissed with costs.

The Wakf Board preferred an appeal before the District Judge, Hoshiarpur who vide his judgment dated March 8, 1979, dismissed the appeal.

I have heard learned counsel for the appellant and have carefully scrutinised the record. A perusal of the record would show that in the Jamabandi for the year 1954-55, Exhibit P5, Khasra No. 40 is recorded to be Gair Mumkin Kabaristan in possession of Ahle Islam. To the same effect, are the entries in the Jamabandi for the year 1967-68, Exhibit P-1 in which suit property is recorded as Gair Mumkin Kabaristan in possession of Ahle Islam. Again in the Jamabandi for the year 1972-73, Exhibit P-6, Khasra No. 40 (8-0) is recorded to be in possession of Ahle Islam through Government Primary School. Entries in the record of rights carry a presumption of truth, though that presumption is rebuttable one. From the documents referred to above, it is clearly proved that the property in dispute is a wakf property. No doubt, in these documents, Panchayat Deh is recorded to be the owner of Khasra No. 40 but no document or decree of any court is available on the record to show how and in what manner Panchayat Deh came to be recorded as owner of the suit property. Statement No. 1, Exhibit P-2, is a statement showing Wakf property situated in Tehsil Garhshankar, District Hoshiarpur, Khasra No. 40(8-0) in the Jamabandi for the year 1962-63 is mentioned as graveyard as before. It is also mentioned therein that there is a Government Primary School in the area of one Kanal and remaining seven Kanal area is vacant.

Exhibit P-3 is the Gazetted Notification publishing a list of Wakfs existing in composite Punjab State containing particulars as prescribed in Rule 4 of the Punjab Wakf Rules 1954 issued by the Punjab Wakf Board exercising the powers conferred by Sub-section (2) of Section 5 of the Act. A perusal of it would show that the Notification contains all the details of the suit property indicating that Khasra No. 40 has an area of 8 Kanals in village Mehmudpur and is a graveyard. Value of this property is shown to be Rs. 2,000/-. In column No. 14, it is recorded to be in physical possession of Government Primary School. No foundation has been laid in the written statement challenging the validity of the statement of Wakf properties, Exhibit P-2 and the Notification Exhibit P-3. The statement, Exhibit P-2 and Notification, Exhibit P-3 the correctness of which was not challenged at any point of time are exclusive and recitals therein have become final. Both the Courts below have not taken note of this aspect of the matter which led them to slip in error. In the revenue record the, property in dispute is recorded as Gair Mumkin Kabaristan and in possession of Ahle Islam, and that by itself goes to show that the property in dispute became the Wakf Property by user. The observations of the first appellate Court that there is not a shred of evidence about permanent dedication of the suit property by a person professing Islam for any purpose recognised by the Muslim law as pious, religious and charitable and that there is no evidence of the suit property having become wakf by immemorial user are not in consonance with law. A reference may advantageously be made to Syed Mohd. Salie Labbai (Dead) by L.Rs. and Others Vs. Mohd. Hanifa (Dead) by L. Rs. and Others, . In view of Sections 5 and 6 of the Act the list of wakfs published in the Gazette shall be final and conclusive qua the Board the Mutwallis of the Wakfs or any other person interested therein. The further observation of the lower appellate Court that there is no evidence that in this district any Muslims were residing after the partition of India sub-continent in the year 1947 is not based on any evidence and is conjectural one. In view of the decision of the apex Court in Syed Mohd. Salie Labhai''s case (supra). the decision in Punjab Wakf Board v. Commissioner, Patiala Division and Ors. 1973 RLR 467 loses its vigour.

The result is that the appeal succeeds, judgments and decrees of both the Courts below are set aside. The suit of the plaintiff-wakf Board for possession of land measuring 8 kanals bearing Khasra No. 40 situated in village Mehmudpur, Tehsil Garshankar, District Hoshiarpur, after demolition of the super-structure raised therein, is decreed with costs.