Punjab Wakf Board vs Sadhu Singh

K. Kannan, J.—The following substantial questions of law arise for consideration in the second appeal:--

Whether the property which is claimed as wakf namely a dedication as Kabristan will cease to obtain such character by cessation of such use.

Whether the plaintiffs were entitled to the relief of injunction on the ground of their being in possession of the property notwithstanding the fact that they had failed to establish their ownership over the property as claimed by them.

Whether the property was the property belonging to the Gram Panchayat as a common land and the plaintiffs as representatives of a community of all villages entitled to seek for user of the property as common land.

The suit by the plaintiffs was filed in representative capacity claiming that the two items of property described in suit Khasra No. 2167 4 kanals 3 marlas and 2168 4 kanals 16 marlas belonged to them as proprietors of the village and entered in the records as kapura hasab rasad zar khewat. While the first item of property described above was referred to be the property used as a grazing ground for cattle, the second item of property was stated to be a property of the scheduled caste persons in the village for housing purposes.

The Wakf Board entered a defence contending that the property had not been used in the manner asserted by the plaintiffs and that the mutation that had been effected in the name of the Wakf Board was correctly done. It was more a case of denial of every one of the averments contained in the statement but nothing substantial was brought in their pleadings except to assert that the property belonged to wakf. The replication has been filed again taking note of the subsequent event that the Wakf Board had attempted to lease out the property to one Santokh Singh and the plaintiffs had, therefore, claimed that defendant''s attempt to lease the property and disturb the possession of the plaintiffs must be thwarted by the relief of injunction.

Before the trial Court, the parties had adduced documentary and oral evidence and the plaintiffs'' documents revealed that in the jamabandi for the year 1951-52 and later for the year 1958-59, the properties had been shown as shamlat patti kapura hasab rasad zar khewat and the manner of user of the property had been referred to as makbooja chamaran and in the reference in column Nos. 8 and 9 to the area, the property had been referred to as gair mumkin kabran. In the year 1958-59 while the particulars of owners and the particulars of the cultivators had been shown respectively as shamlat patti kapura hasab rasad zar khewat and makbooza malkan the column Nos. 8 and 9, the reference had been to the property as kabristan ahle islam. In the jamabandi of the year 1974-75 after the consolidation had been completed, the property was still entered as shamlat patti. The entries in column Nos. 4 and 5 regarding the ownership and particulars of cultivation had been retained as before but only in column Nos. 8 and 9, the property had been reiterated as gair mumkin kabristan. The defendants had relied on the subsequent mutation proceedings directing the property to be entered as the property of Wakf Board. The trial Court found that the property had been entered in the revenue records from the year 1971 as shamlat patti and therefore, found that neither the plaintiffs nor the defendant were the owners of the property as claimed by them. The Court further granted a relief of injunction restraining the defendant in any manner interfering with the possession. The same judgment was also, confirmed in the appeal.

In the manner of disposal of the case, the Court referred to the fact that the property although referred to as kabristan and that dead bodies were buried, all the Muslims who resided in that village Kheri Chehlan had fled to Pakistan at the time of partition and the property had been ceased to be used as kabristan. These are the judgments of these Courts that come for challenge before this Court and substantial questions of law arose which I have settled already.

On an issue relating to the nature of property in the manner in which the revenue records had depicted them, it leaves no doubt that from the year 1951-52, the property had been shown to be kabristan although there is also a reference in column No. 4 relating to the particulars of ownership that it was a shamlat patti. The document of dedication of the property as wakf was not brought before Court and the entire reliance of the defendant was on the basis of the proceedings of the Director of Land Settlement that the property was to be treated that has vested in the Wakf Board and that Wakf Board''s name must be entered in the column of ownership. If the revenue records had at all times shown that the property was entered as gair mumkin kabristan alongside the other entries relating to ownership and cultivation right from the year 1951-52 and the Government had also passed proceedings through the Director recognizing the title of the Wakf Board, in my view, it shall not be possible to enter a different finding and hold in favour of the plaintiffs that the property belongs to the plaintiffs or to the Gram Panchayat. The Gram Panchayat itself is not a party and any observations made by me with reference to whether the property belonged to Gram Panchayat or to the Wakf Board will not conclude the issue and therefore, I will not venture upon any pronouncement regarding the ownership except to state that the Government had directed the ownership and that the mutation had been effected in the name of the Wakf Board. Mutation entries are surely evidence of title though not documents of title in themselves and I would enter this finding only to assess the assertion made by the plaintiffs that they were the proprietors in relation to the property. Such a contention cannot be accepted. I would find that even the decision rendered by the Courts below holding property to be the property vesting with the Gram Panchayat and that the Gram Panchayat was the owner ought to be vacated, for it was nobody''s case that the property belonged to the Gram Panchayat. The plaintiffs were asserting title to the property as proprietors of the property subject to certain uses but it is not the same thing as constituting title in Gram Panchayat. When the property was asserted to be held in ownership by the Wakf Board, it was relying on no more than a statement made by the Director that the ownership must be entered in the name of the Wakf Board and their own reliance was only with reference to jamabandi entries which had referred to the manner of user of the property as kabristan. The manner of user would show a manner of dedication as well, but it is not the same thing as stating whether it could be treated as sufficient for vesting with a claim of ownership of Gram Panchayat, since it was a property reserved in common for the benefit of public. Even while affirming the rejection of the Courts below regarding the plaintiffs'' contention that they are the proprietors, I will also reject the contention of the Wakf Board that its own title to the property had been established in their defence.

The issue will not still conclude for us, for the plaintiffs were seeking for injunction and the defendant''s contention was that the property had been dedicated for use as a kabristan. A user of property which is in the nature of dedication as kabristan would take away the manner of user for any other purpose. A dedication made for a wakf is defined u/s 3(r) of the Wakf Act, 1995, which is a reproduction of the definition already rendered under the 1954 Act reads as under:--

3(r) "wakf" means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes

(i) a wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser;

(ii) "grants", including mashrut-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and

(iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, and" wakf means any Person making such dedication.

A permanent dedication made in respect of immovable property does not cease to be a wakf by only of the fact of its cessation of such user, as the definition reveals. If the property had been shown as a property dedicated for a particular user, I would find that the decisions rendered by the two Courts below that the muslims of the village had fled to Pakistan and therefore, it has ceased to be a wakf property are out of consonance with the law laid down by the Supreme Court in Syed Mohd. Salie Labbai (Dead) by L.Rs. and Others Vs. Mohd. Hanifa (Dead) by L. Rs. and Others, where the Supreme Court held that "once a kabristan has been held to be a public graveyard that it vests in the public and constitutes a wakf and it cannot be divested by non-user but always continued to be so whether it is used or not" The finding of the Court below to the contrary that it is ceased to be a wakf property by its non-user is erroneous and against law. I, therefore, reverse that finding and answer the substantial question of law raised as above.

The final issue that has to be still seen is whether the plaintiffs are entitled to relief of injunction by the fact of their alleged possession and as justifiable when there was a threat of their being dispossessed by the Wakf Board granting a lease in respect of the property to another person. That there had been a tease of property was not in denial at the trial. That the property classified as wakf was not being used as kabrtstan when all the muslims had gone away from the village was also not denied. Whether the plaintiffs could have been granted the benefit of injunction could be only seen of whether the plaintiffs had any ownership over the property that could justify them to ask for relief of injunction. Their own possession could have also allowed for injunction if they were prepared to concede the manner of dedication as found in the records and if the relief had been that the property shall not be put to any use other than for the purpose for which it was dedicated. The injunction was, however, for the relief of restraint against the Wakf Board from interfering with the possession. In my view, the injunction cannot be granted against Wakf Board when the property was shown to be in the village records entered as kabristan and a non-user if it was not to be construed as cessation of wakf, a protection of alleged possession of the plaintiffs was just not ''possible. The only relief which the Court could have granted was to ensure that the Wakf Board itself would not put the property to any user in derogation of the particular grant which it was pleading for. It is possible under law for a wakf to modify the nature of wakf by application of doctrine of Cy pres if the particular dedication is not capable of being performed. We are not here to say how the property shall be used by the Wakf Board but I am convinced that the Wakf Board is not competent to allow for lease of property for character of property to be changed unless recognized under the Act. The property can be used for such purpose as it retains the character of such wakf. The restraint of injunction which was granted must stay restricted to user which is not in derogation of the wakf which it seeks to espouse.

The decree of the Court below had to be modified to that extent and the appeal by the Wakf Board is allowed to the extent to which the character of wakf is upheld and the relief of injunction in the manner sought for by the plaintiffs is declined but there shall be a restraint by an order of injunction restraining the Wakf Board from modifying the character of property as wakf. It will be left to the Gram Panchayat to take any action for reservation of the property as common land. If it seeks to make such an assertion, it will be done in the presence of the Wakf Board and this decision itself will abide by an inter se dispute between the Wakf Board and the Gram Panchayat in the manner referred to above. The second appeal is disposed of.