Shanti Devi and Others vs Punjab Wakf Board and Others

Swatanter Kumar, J.—Plaintiff Punjab Wakf Board filed a suit against one Het Ram and two others defendants for declaration that the suit

property consisting of one storeyed house forming part of house No. 1052/644 Multani Chowk, Hisar, the property being a part of Khanga/Grave

yard - Salami Shah is owned by the board and decree already passed in favour of Het Ram was a nullity. According to the plaintiff, Gobind Ram

was the tenant in the abovesaid building under the plaintiff-Board since 19.1.1950. Civil Court had passed a decree in Civil Suit No. 265 of 1978

titled Het Ram v. Gobind Ram, in favour of Het Ram. Said decree is alleged to be null and void, being against the principles of natural justice and

not binding on the Board as the Board was not party to the said suit. Other relief for injunction from interfering in the peaceful possession of the

plaintiff was also sought. In the previous suit, Het Ram had prayed that he had purchased the property from defendant No. 3 Gobind Ram, while

other property was leased to him by the Punjab Wakf Board. The plaintiff-Board prayed that the said decree be set aside on the ground that the

Board had acquired knowledge of the previous decree in favour of Het Ram very recently and also prayed for other relief as stated above.

Defendants No. 1 and 2 filed written statement. Defendant No. 1 in the suit averred that he had purchased the property from the Municipal

Committee, Hisar vide sale letter No. 355-G dated 6.2.1976 for Rs. 242/-. According to him, defendant No. 3 had forcibly occupied the

property and he had filed Suit No. 265 of 1978 which was decreed by Sub Judge II Class, Hisar on 2.9.1984 and the appeal against the said

decree was dismissed by the learned Additional District Judge, Hisar vide judgment dated 1.5.1985. Gobind Ram, defendant No. 3 in the suit then

filed an appeal in the High Court, which was also dismissed. As such, the decree in favour of Het Ram was upheld upto the Supreme Court.

On these pleadings, the trial Court framed the following issues on 5.8.1987:-

Whether the plaintiff is owner of the property in dispute ? OPP.

Whether the plaintiff is entitled for injunction prayed for ? OPP.

Whether the suit is not maintainable in the present form? OPP.

Whether the plaintiff has no locus-standi to file the present suit? OPP.

Whether the plaintiff has got no cause of action to file the present suit? OPP.

Whether the plaintiff is estopped from filing the present suit due to his act and conduct? OPP.

Whether the suit is barred by principles of res-judicata/constructive res-judicata u/s 11 of CPC? OPP.

Whether the suit has not been filed by the competent authority, if so its effect. OPP.

Whether the Civil Court decree dated 2-9-1984 in Suit No. 265 titled Het Ram v. Gobind Ram is liable to be set aside? OPP.

Relief.

The parties led evidence. The learned trial court decided issues No. 1 to 7 and 9 in favour of the plaintiff and against the defendants. While issue

No. 8 relating to institution of the suit by competent authority was decided against the board. The trial court held that it was the Secretary of the

Punjab Wakf Board who could file such suit or could give permission thereof. As neither such permission was placed on record nor the suit had

been instituted by the Secretary of the board, this issue was decided against the plaintiff Board. As a result of above finding on issue No. 8 the

learned trial court dismissed the suit of the plaintiff-Board vide judgment and decree dated 13-1-1992.

Aggrieved from the above decision of the trial Court, Het Ram preferred an appeal, and the board also preferred an appeal. Both these appeals

were disposed of vide common judgment dated 22.11.1995 by the learned Additional District Judge, Hisar. Learned Addl. District Judge, Hisar

on appreciation of evidence adduced before the trial Court, except issues No. 7 and 9, decided all issues against the Punjab Wakf Board. It was

held that the suit was not properly instituted by competent person and as such, in addition to the findings on merits of the case, the suit of the

plaintiff was liable to be rejected. The learned Ist Appellate Court concluded as under;-

In view of my finding on above issues, appeal No. 45 of 1992 filed by Punjab Wakf Board against Het Ram and others stands dismissed with

costs whereas the appeal No. 46 of 1992 filed by Het Ram against Punjab Walk Board and others stands accepted with costs. Decree-sheet be

prepared accordingly.

It is this judgment of the learned Ist Appellate Court which has given rise to present three appeals. R.S.A. 450 of 1996 has been preferred by

Shanti Devi as heir of deceased Gobind Ram, Defendant No. 3 in the original suit, while R.S.A. No. 1220 of 1996 and R.S.A. No. 1440 of 1996

have been preferred by Punjab Walk Board against both the appeals decided by the learned Ist Appellate Court vide common judgment dated

22.11.1995. I dispose of all the abovesaid appeals by a common judgment.

Learned counsel appearing for respondent Het Ram in R.S.A. No. 450 of 1996 has raised a preliminary objection that Gobind Ram and even

his heir Shanti Devi had never preferred first appeal before the learned Addl. District Judge, Hisar, as such, they cannot file second appeal against

the judgment and decree passed by learned Ist Appellate Court. Learned counsel has contended that the trial Court had decided all the issues

against Gobind Ram and the decree passed by competent Court was not set aside by the trial court. The argument of the learned counsel for the

respondent deserves consideration. Before going into the merits of the case. I consider it appropriate to advert to discussion on issue No. 8

aforesaid.

The plaint was signed and verified and the suit was instituted by one Mohd. Baksh and it was stated in the plaint that he had taken such

permission from the Head Office, Ambala to institute the suit. No permission is placed or proved on record in accordance with law. It is an

admitted case that the Secretary had neither signed and verified the plaint nor instituted the suit. Mohd. Baksh when appeared as P.W.1 was

cross-examined and even in his cross-examination he did not produce any such permission, even if it is assumed that any other person other than

the Secretary of the Board can file the suit with such permission.

Learned Ist Appellate Court while dealing with this issue held that u/s 15(2)(1) of the Punjab Wakf Board, the Board shall be competent to

institute and defend the suits and proceedings in the Court of law relating to Wakf property and u/s 22 of the Act, the Board may delegate its

power on the Wakf Commissioner which Wakf commissioner may be as per the provisions of Section 22A of the Act further delegate such

powers. The power of the Board to delegate its functions is regulated by these two sections. Learned Ist Appellate Court decided the appeal as

already mentioned against the Board even on this score.

There can be no doubt that the Wakf Board is statutory body created under the provisions of the Punjab Wakf Board Act. Being body

Corporate, it has regulated its affairs in accordance with the provisions of the Act. The Wakf Board can delegate its powers and functions within

limitation of Section 15(2)(1), 22 and 22-A of the Act. The Wakf Commissioner has to act not on the powers vested in him under the statute, but

in accordance with the powers conferred upon by him by delegation under the provisions of the Act.

The bare reading of these provisions clearly shows that the Wakf Commissioner does not have powers of delegation of the authority or

powers vested in him. The delegatee himself cannot further delegate powers vested in him by virtue of a statutory provision or rules framed there-

under in absence of a specific provisions for such delegation.

In this case in para No. 1 of the plaint, it has been specifically stated that P.W.1 was duly authorised and was permitted to file the present suit.

A preliminary objection was taken by the defendants in the suit that the suit has not been instituted and the plaint has not been signed and verified

by duly authorised person. In spite of this objection, neither any effort was made to amend the plaint nor the alleged permission was produced on

record. As already noted, even in his cross-examination, PW 1 failed to tender any document to prove the alleged permission. The Board having

miserably failed to discharge its onus on issue No. 8, both the Courts below have rightly decided this issue against the plaintiff-Board. It was

neither contended before the courts below nor before this Court that Mohd. Baksh, Estate Officer was empowered under the provisions of the

Act itself to institute the suit. Thus, admitted case of the plaintiff was that PW 1 Mohd. Baksh was authorised to institute the suit. The plaintiff has

failed to prove on record any authorisation or permission empowering PW 1 to institute a suit or sign and verify the pleadings. This, of course, is

subject to the acceptance of submission by the learned counsel for the Board that Commissioner could delegate such powers to another person.

Another factor which must be taken into consideration in deciding this case is that according to the plaintiff they had come to know of the

decree dated 2.9.1984 very recently and they had instituted the suit in the year 1986. The challenge to the decree on the plea of fraud and

declaring the decree to be a nullity is allegedly based upon the knowledge of the Board about the same decree. This plea of the Board is prima-

facie incorrect because it has been noticed by the Courts below and which is not disputed before me as well that Gobind Ram had summoned a

witness from the Board to prove his case in the previous suit i.e. Suit No. 265 of 1978. The witness who appeared on behalf of the Board not only

stated facts with regard to the property in dispute but also produced certain records in support of Gobind Ram. The Court after consideration of

the complete documents and witnesses had passed a decree in favour of Het Ram. Having appeared as a witness the Board cannot be permitted

to urge that they had no knowledge of the pendency of the suit and the decree passed there-upon.

Learned Ist Appellate Court has appreciated the evidence in consonance with the settled principles of law and its approach cannot be held to

be erroneous. I have no hesitation in up holding the judgment of the learned Ist Appellate Court and consequently, both the appeals preferred by

the Board as well as by Shanti Devi are dismissed. There shall be no order as to costs.