Sunita Kumari vs Haryana Wakf Board and Others

L.N. Mittal, J.—In this revision petition filed by defendant no. 3 Sunita Kumari u/s 83(9) of the Wakf Act, 1995, challenge is to judgment and decree dated 15.12.2011 passed by learned Additional District Judge as Wakf Tribunal thereby decreeing suit filed by respondent no. 1-plaintiff Haryana Wakf Board for possession of suit land measuring 182 sq. yards depicted in red colour in site plan Annexure P/3. The suit was initially filed against Ashok Kumar proforma respondent no. 2 only as sole defendant. However, on 6.12.2005, Ashok Kumar made following statement before the Wakf Tribunal:-

The suit property bearing khasra no. 39 is not belong to me and I have no concern with the suit property. My uncle Zile Singh son of Sh. Mela Ram is the tenant of the above said property of the plaintiff. I have also no concern with the construction work. The construction work was also done by my uncle. The present suit was falsely filed against me, whereas I am not interested to contest the same. The contempt application was also filed against me only to harass and humiliate me whereas I never disobeyed any court order in any manner.

Thereupon Zile Singh uncle of Ashok Kumar was impleaded as defendant no. 2 whereas Ashok Kumar was renumbered as defendant no. 1. Zile Singh defendant no. 2 has since died and is represented by proforma respondents no. 3 to 6 as his legal representatives. Sunita Kumari defendant no. 3-petitioner, who is wife of defendant no. 1 Ashok Kumar, was subsequently impleaded as defendant no. 3 in the suit because she alleged to have purchased the suit plot from her husband defendant no. 1 vide sale deed dated 19.9.2005.

The plaintiff claimed in the suit that the suit land is Wakf property and therefore, vests in the plaintiff. Defendant no. 1 was in illegal possession thereof for the last 2/3 years. Accordingly, the plaintiff sought possession of the suit land.

Defendant no. 1 having made above statement on 6.12.2005 did not file any written statement.

Defendant no. 2 Zile Singh filed written statement alleging that he was held to be tenant over the suit land in earlier civil suit no. 212/1 dated 1.1.1972 filed against him by Punjab Wakf Board (predecessor of the instant plaintiff). The plaintiff has thus concealed true and material facts.

Defendant no. 3 controverted the averments of the plaintiff and denied that she has occupied suit land illegally. It was pleaded that she is bonafide purchaser of the suit land by way of registered sale deed and she is owner in possession thereof. Her house is situated in thickly populated area. It was denied that she is in un-authorized possession of the suit land.

The suit stands decreed by the Wakf Tribunal. Feeling aggrieved, defendant no. 3 has filed this revision petition to assail judgment and decree passed by the Wakf Tribunal.

I have heard counsel for the parties and perused the case file including record of the Wakf Tribunal with their assistance.

Counsel for the petitioner contended that defendant no. 3-petitioner is owner in possession of the suit land having purchased it from defendant no. 1 by way of registered sale deed. The contention cannot be accepted because there is not even an iota of material on record to substantiate the said contention. Defendant no. 3 did not even step into witness box in support of her version and therefore, adverse presumption arises against her. Defendant no. 3 has also not produced the sale deed vide which she allegedly purchased the suit land from her husband. For this reason also, adverse presumption arises against her. Even otherwise, the said sale deed had been procured just to lay claim on the suit land. There is no material on record to depict that defendant no. 1 was owner of the suit land. On the contrary, there is material on record to depict that defendant no. 1 was also not owner of the suit land. He himself made statement on 6.12.2005 as extracted hereinbefore that he had no concern with the suit land. He did not state that he had sold the suit land to his wife. He had also filed application dated 3.12.2005 making somewhat similar assertion as made in statement dated 6.12.2005. Even in the witness box, defendant no. 1 as DW 1 tendered his affidavit affirming that defendant no. 2-Zile Singh was bonafide tenant/lessee of the suit land under the plaintiff for the last more than 35 years and the deponent i.e. defendant no. 1 had no concern with the construction over the suit land. He also affirmed that he had no concern with the suit house. Thus, the testimony of defendant no. 1 further demolishes the case of defendant no. 3. Defendant no. 1 has also not stated in the witness box that he sold the suit land to his wife defendant no. 3. Defendant no. 1 also did not state that defendant no. 3 is either owner or in possession of the suit land. Thus, there is not even an iota of material on record to support the version of defendant no. 3-petitioner. On the other hand, sole witness defendant no. 1 who appeared in the witness box on behalf of all the defendants has admitted the claim of the plaintiff by deposing that defendant no. 2 was tenant over the suit land under the plaintiff. There is also finding to this effect in earlier suit filed by plaintiff against Zile Singh decided on 1.8.1972 that Zile Singh was in possession of the suit property as tenant under the plaintiff Wakf Board. Another suit filed by plaintiff against Zile Singh and his son Jaipal for possession of the suit property was decreed vide judgment and decree dated 5.2.2009 (during pendency of the instant suit). Thus, from the entire material on record, it becomes manifest that the plaintiff is owner of the suit property and defendants are in illegal possession thereof. Defendant no. 3-petitioner has no right, title or interest in the suit land as there is nothing on record to depict that she has any right, title or interest in the suit land. On the contrary, the plaintiff has led documentary evidence including gazette notification and judgments of the previous cases to depict that the plaintiff is owner of the suit land. Even defendant no. 1, who is husband of defendant no. 3-petitioner, has admitted that plaintiff is owner of the suit land. There is no evidence to the contrary at all.

In view of the aforesaid, there is no escape from the conclusion that plaintiff is owner of the suit land and therefore, suit filed by the plaintiff has been rightly decreed. Finding of the Wakf Tribunal in this regard does not suffer from any perversity, illegality or jurisdictional error nor the same is based on misreading or misappreciation of evidence on record so as to call for interference by this Court. The revision petition is devoid of merit and is accordingly dismissed. Civil miscellaneous application, if any pending, is disposed of as having been rendered infructuous.