ivil Appeal No 1484 of 1974
From the Judgment and Decree dated 2641974 of the Jammu  Kashmir High Court in Civil Second Appeal No 4 of 1973
AK Sen EC Agrawala Ms Purnima Bhat Atul Sharma and A V Palli for the Appellant
SK Bhattacharya NP for the Respondent
The Judgment of the Court was delivered by KULDIP SINGH J
Hazrat Baba Ibrahim a Saint lived in the area called Rakhbahu in the city of Jammu
After his demise in the year 1872 his grave became a place of worship for those who had faith in him
The place was called Ziarat Hazrat Baba Ibrahim hereinafter called the Ziarat
The Ziarat was managed by Sain Ladha a nephew of Baba Hazrat Ibrahim After Sain Ladha s death his son Mian Lal Din succeeded him
At present the Ziarat is being managed by the sons of Mian Lal Din who died in the year 1963
The Jammu  Kashmir Muslim Wakf Act came into force in the year 1959 hereinafter called the Act whereunder a committee of muslim Wakf hereinafter called the Committee has been incorporated
The Committee filed a suit against Anayatullah and eight others sons of Mian Lal Din restraining them from alienating raising construction or recovering the rent from the Wakf land in dispute vested in the Ziarat
According to the plaintiff the Government of Jammu  Kashmir vide two orders dated September 22 1955 and November 29 1958 granted land measuring 3 acres and 6 acres 2 kanals 6 Marlas respectively to the Ziarat
It was alleged that the defendants were treating the property to be their personal property
They were mismanaging and also alienating the same
The defendants in their written statement resisted the suit on a number of grounds and 256 stated that the land in dispute was transferred by the Government in favour of their father in lieu of his possessory right over about 400500 Kanals of land which was taken over by the Government
It was further claimed that the land was the absolute property of their father and the same has devolved upon the defendants by succession
It was further claimed that notwithstanding the word Ziarat in the Government Orders the grants were in favour of the defendants father in his personal capacity
The transfer of the land was not in the form of any dedication and as such was not a property of the Ziarat
The defendants claimed the right to deal with the property in any manner they liked on the ground that the same belonged to them
The Trial Court by its Judgment dated August 6 1970 came to the conclusion that the two grants by the State Government were in fact made in favour of Mian Lal Din and not in favour of the Ziarat
The suit of the committee was dismissed with costs
The District Judge Jammu by his Judgment dated February 28 1973 upheld the findings of the Trial Court and dismissed the appeal of the committee
The committee went up in second appeal before the Jammu  Kashmir High Court
Murtaza Fazal Ali CJ as the learned Judge then was by his judgment dated April 26 1974 set aside the judgments of the courts below and allowed the appeal of the committee
The Learned Chief Justice decreed the plaintiff s suit for injunction as prayed for
This appeal via Special Leave Petition is against the judgment of the High Court
Mr Ashok Sen learned counsel appearing for the appellant has taken us through the judgment of the Trial Court and that of the Lower Appellate Court
According to him the High Court has erred in upsetting the findings of the courts below based on appreciation of evidence
Mr Sen contended that the appellant s ancestors were in possession of  more than 140 Kanals of land for a very long period and had established possessory title over the said land
According to him the Government took over the said land from the father of defendants and in lieu of that two grants in the years 1955 and 1958 were given to Mian Lal Din in his personal capacity
It was contended that on appreciation of the evidence produced before the Trial Court the courts below found as a fact that the defendants were the owners of the property subject matter of the Government grants and as such the High Court acted illegally in upsetting the same
The learned counsel relied upon the following findings of the Lower Appellate Court in support of his contention 257 As discussed above the possession of the defendants and their father and grand father and Hazrat Baba Ibrahim over 40 kanals of land as Arak and about 100 kanals of land under cultivation is proved and it is further proved from the Government order Ext
DA4 refusing the recommendation of the Financial Commissioner that the basis for the grant of proprietary rights in respect of 74 kanals of land was the personal possession of the father of the defendants and his predecessors and it was in lieu of the possession of that chunk of land that the Government parted with 74 kanals of land
The counsel for the plaintiff has further argued that because the Government orders of 1955 and 1958 mentions the word Ziarat as the grantee it is not permissible for the Civil Court to hold that the grant was in favour of the father of the defendants
Keeping in view the back ground as discussed above I am unable to agree with the contention of the learned counsel for the plaintiff
The mere fact that Mian Lal Din was associated with the Ziarat as a descendant of Hazrat Baba Ibrahim Sahib and the mere fact that the word Ziarat was used in the Government orders of 1955 and 1958 would not preclude this Court from holding that the grant was not in favour of the Ziarat but was in fact in favour of the father of the defendants
The contents of the Government orders of 1955 and 1958 referred to above are to be considered with the facts that Mian Lal Din and his ancestor possessed the land in their individual capacity that the Government repelled the claim of Mian Lal Din for additional grant of land on the simple ground that the land already granted to him was costlier than the land which he held in possession that there was no intention on the part of the Government to dedicate the land to the Ziarat out of any pious intention that it was a sort of bargain between Mian Lal Din the father of the Defendants and the Government where under the land measuring 74 kanals was parted within the proprietary rights by the Government in consideration of Lal Din s having abandoned possession of over 400 kanals Of land the fact that the Committee plaintiff also treated the grant in favour of Lal Din as is evident from Ext
PD also supports my view
The fact that the defendants and their father leased out a part of the property on a long lease to third parties the fact that the defendants got compensation for a portion of the land acquired by the Government the fact that there was no claim laid to the land by the Wakf 258 Committee upto the year 1966 even when the Government orders were passed in 1955 and 1958 the fact that no demand was ever made from Lal Din to render accounts in respect of the income specially derived by him from the suitland the fact that a large number of shops khokhas and buildings have been constructed by the defendants assuming that one room was constructed by the Wakf Committee also is determinative of the fact that the transfer was infact made in favour of Lal Din and not in favour of the Ziarat as such
 It is not disputed that the property which is subject matter of the dispute was granted by the State Government under the two orders dated September 22 1955 and November 29 1958
The respondent plaintiff claims that the grant was in favour of the Ziarat whereas the appellant defendants claim that the property was given to the father of the defendants absolutely and in his personal capacity
The two documents of title by which the grant was made may now be referred to
The Government order dated September 22 1955 is as under It is ordered that 3 acres of land of Rakhbahu of the Rakhs and Farms Deptt
surrounding the Ziarat Shareef of Baba ibrahim Shah be granted to the said Ziarat e Shareef permanently
By order of the Cabinet
Sd GM Bakshi Prime Minister
The Government order dated November 1958 runs thus 1 The confirmation of the action taken by the Prime Minister in granting land measuring 6 acres 2 kanals and 6 marlas to Ziarat Shareef Baba Ibrahim Shah Sahib at Ghandi Nagar Jammu and 2 The grant of compensation amounting to Rs 12500 by debit to Housing grant in favour of the said Ziarat for 125 kanals of land  Rs 1000 per kanal taken over by the Public Works Department for development of Gandhi Nagar out of the area of 3 acres sanctioned vide Cabinet Order No 1418 C dated 20955
By order of the Jammu and Kashmir Government Sd Noor Mohd Secretary to Government 259 The above quoted orders of the Government are absolutely clear and unambiguous and can admit one and only one interpretation that the Government intended to grant the land to Ziarat alone and not to the appellant defendants in their personal capacity
In fact the names of the appellants defendants or their ancestors are not even mentioned in the two orders
The High Court interpreted the above quoted two orders as under  The order of 1955 specifically stated that the lands in Rakhbahu surrounding the Ziarat Shared of Baba Ibrahim Shah be granted to the said Ziarat permanently
The later order of 1958 also says the same thing
It is nowhere mentioned in any of these orders that the land was given not to the Ziarat but to the defendant who was Mujawar of the Ziarat either in his personal capacity or in lieu of compensation for his personal lands acquired by the Government
Since the recitals in the documents are absolutely clear and are expressed in unmistakable terms there is no room for adducing evidence adduced to contradict the recitals of these two documents
Thus the evidence adduced by the defendants to show that the grant was made not to the Ziarat but to them is clearly hit by sections 91 and 92 of the Evidence Act and is therefore inadmissible
Further more the grant was made in 1955 and 1958 that is to say several years before and the Government has not come forward after such a long lapse of time to support the stand of the defendants that the grant was intended for them in their personal capacity and not for the Ziarat
I fail to understand how in face of such clear recitals in the documents the courts below have by a process of evisceration and interpolation construed the documents to means as if it was a grant in favour of the defendants
The courts below appear to have been influenced by the fact that when the defendants represented to the Government that the lands in their cultivating possession had been taken over by the Government without paying compensation some Government Officers replied that a substantial grant of land had been made to the Ziarat
This obviously was a wrong stand taken by the Government Officers and could not clothe the defendants with the right of wiping out the legal validity of the grant made year before the officers gave this reply
Indeed the remedy of the defendants was to sue for damages or for compensation for the land unlawfully acquired by the Government
There was no justification for the 260 defendants to cast their covetous eyes on the property of the Ziarat taking advantage of their possession over the same which was an managers or trustees and asset a hostile title to it
The law on the subject is absolutely clear that a manager or a trustee in possession of a religious shrine cannot be allowed to asset a hostile title unless he formally surrenders possession to the lawful authority
Before going into this point of law at some length it may be necessary to refer to certain proved facts in the case 1 It is not disputed that the present Ziarat existed since a long time and became a Wakf by long public user
2 That the first defendant was the Sajadanashin or caretaker of the Ziarat
3 That the land belonged to the Government originally
4 That the Government granted the land in dispute to the Ziarat and not to the defendants
5 That the defendants were admittedly in possession of the Ziarat as also the properties appurtenant thereto
In these circumstances it is clear that even if the defendants were in possession of the lands their possession would have to be referable to a lawful title and cannot be treated to be adverse to the Ziarat
In other words the possession of the defendants would be for the benefit of the Ziarat
We agree with the above quoted findings of  the High Court and approve the same
We do not agree with the argument of Mr Ashok Sen that the High Court was in error in upsetting the findings of the courts below
The question before the High Court was the interpretation of two government orders which was essentially a question of law
The High Court was justified in observing that in the face of clear and unambiguous terms of the Government orders it was not permissible for the appellant defendants to adduce evidence to show that the grant was made to them and not to the Ziarat
No other point was raised before us
We therefore dismiss the appeal
The respondent plaintiff shall be entitled to costs throughout which we quantify as Rs 15000
N P V Appeal dismissed


Summary:
The appellant contested the election to the Karnataka State Legislative Council from the Chitradurga Local Author ities Constituency comprising 121 Mandal Panchayats
The last date and time fixed for receiving nomination papers was 300 pm on 361988
and revision if any of the elector al roll had to be completed before that time
The polling took place on 371988 and the appellant was declared as the successful candidate
Earlier a decision had been taken by the Chitradurga Zilla Parishad on 2851988 to nominate two members from each Mandal Panchayat that is a total number of 242 mem bers
With a view to complete the nomination the Deputy Commissioner took the necessary steps in accordance with the Karnataka Zila Parishads Taluk Panchayat Samithis Mandal panchayats and Nyaya Panchayats Act 1983 read with the rules framed thereunder and sent out the names for affixing the same on the notice boards of the office of the concerned Tehsildar and Mandal Panchayat and in the Chavadis
On his satisfaction that the publication of 23rd of the total number of the names was complete the Deputy Commissioner was free to proceed further and to revise the electoral roll under the Representation of the People Act 1950 by includ ing all the nominated members
In this regard in his writ ten statement before the High Court the Deputy Commissioner stated that the electoral roll had been up dated and a copy pasted in the office on 361988 at 855 pm Sub section 1 of section 40 of the Parishads Act made it abundantly clear that a nominated person became the member of a 337 Panchayat only on the publication of his name under section 59 of the Parishads Act read with rule 73 of the Parishads Rules
A petition was filed in the High Court challenging the appellant s election on the ground that the inclusion of the 242 nominated members in the electoral roll took place after the period for nomination was over and they were therefore not included in the electoral roll in the eye of law
After examining the evidence led by the parties the High Court held that the names were not included in the electoral roll by 300 pm on 361988
Accordingly the High Court set aside the election of the appellant and directed recount of votes after excluding those of 242 members
Before this Court in appeal it was inter alia contended on behalf of the appellant that i the evidence on the record established that information of the publication of the names of more than 23rd of the total number of nominat ed persons had reached the Deputy Commissioner in time for the amendment of the Council Constituency roll and that the Deputy Commissioner had actually made an order for the inclusion of the names in the roll on 261988 ii putting the final voters list on the notice board was not a neces sary requirement under the law and iii since the burden was on the election petitioner to prove such facts which may vitiate the election he must fail in the present state of evidence
On behalf of the respondents it was contended that the electoral roll must be held to have been modified in the eye of law only at 855 pm on 361988 when the alleged inclu sion of the names was made public and not earlier
Dismissing the appeal this Court HELD 1 A plain reading of the evidence suggests that both the up dating of the electoral roll and pasting a copy thereof took place on 381988 at 855 pm 346G 2 The circumstances that i the Deputy Commissioner was not able to assert in his evidence before the Court that the revision of the roll had taken place before 300 pm ii he was under an impression that the revision was per missible till the midnight and iii in spite of the docu ments available to him he was not in a position to assert that the 338 report of publication of the names of 23rd or more of the nominated persons in the offices of the Mandal Panchayats had been received in his office before the deadline strong ly support the case of the election petitioner
346H 347A 3 Besides fixing the identity of the persons to be allowed to vote at the election the purpose of the prepara tion of the roll is to enable the persons included therein to decide as to whether they would like to contest the election and to help such persons in assessing their chances of success
348F 4 The intending contestants and their supporters thus heavily depend upon the final electoral roll for deciding their future conduct and it is therefore extremely essen tial that it is made available to them before the expiry of the period fixed for filing the nomination papers
348G 5 If the roll as it stood earlier was confidentially corrected by the Electoral Registration Officer concerned sitting in his office which did not see the light of the day the same cannot be considered to have been prepared accordingly to law
348H Bachhittar Singh vs The State of Punjab 1962 Supp 3 SCR 713 referred to
6 It is correct that putting the final voters list on the notice board is not a necessary requirement under the law
But that does not lead to the further conclusion that the electoral roll can be prepared secretly and kept in the drawers of the Officer without any information knowledge to persons who are interested in finding out its final shape
349B SK Srinivasan and others vs State of Karnataka and Others  referred to
7 The Acts of the legislature are passed by the ac credited representatives of the people who in theory can be trusted to see that their constituents know what has been done and this is done only after debates take place which are open to the public
The matter thus receives wide pub licity through the media
But the case is different with the delegated legislation and if one may add also in the case of orders passed by the authorities like that in the present appeal
The mode of publication can vary but there must be reasonable publication of some sort
349H 350A B 339 Harla vs State of Rajasthan   Fatma Haji Ali Mohammad Haji vs State of Bombay   State of Maharashtra vs Mayer Hans George  and Johnson vs Sargant  Sons  referred to