CWP No. 13017 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No. 13017 of 2006 Date of decision : 24.7.2009 Kushi Ram and another ….. Petitioners Versus Haryana Wakf Board, Ambala Cantt. and Others ….. Respondents Present: Mr. M.L. Sarin, Senior Advocate with Mr. Hemant Sarin, Advocate for the petitioners. Mr. Sunil Garg, Advocate for respondent No.1. None for respondents No.2 and 3. *** S.S. SARON, J. This petition under Articles 226/227 of the Constitution of India has been filed seeking quashing of the impugned judgment and decree dated 6.5.2006 (Annexure P15) passed by the Tribunal constituted under the Wakf Act, 1995 (respondent No.2). The Haryana Wakf Board, Ambala Cantt. through its Estate Officer Sh. Jangi Khan posted at Sonepat (respondent No.1) filed a suit dated 16.7.2004 (Annexure P10) for possession of Mosque shown in red colour in the site plan attached. It is inter alia stated in the plaint (Annexure P10) that the property comprised in khasra Nos.237/1, 237/3 and 238 measuring 831 sq. yds situated in the Revenue Estate of Garhi Brahmanan, Sonepat is a Wakf property on which a Mosque is built. The said property was handed over by the Rehabilitation Department to the Punjab Wakf Board. The property bears No.B-VI-85-84/7 and B- CWP No. 13017 of 2006 -2- VI-88-84/8. The copies of the Jamabandi for the year 1957-58 and 2001-02 and certified copies of the demand and collection register handed over by the Rehabilitation Department to the Wakf Board were attached with the plaint. The property is more specifically shown in red colour in the site plan attached. It is alleged that the defendants (petitioners herein) were in illegal and forcible possession of the said Mosque and intended to demolish the same in respect of which a complaint was filed by the Wakf Board before the local Police. Previously also the Wakf Board filed a suit for possession against the defendants (petitioners herein). The said suit came up to this Court and the case was decided against the Wakf Board on the ground that as per Section 11 of the Administration of Evacuee Property Act, 1950, the property still vests in the custodian. As such the Wakf Board had no legal right to file the suit for possession against the defendants (petitioners herein). It is stated that now as per the judgment of the Supreme Court, Wakf Board is a new Trustee as per Section 11 of the Administration of Evacuee Property Act, 1950 and as such the property in dispute vests in the Wakf Board for the purpose of its Management and Control. Therefore, the Wakf Board has a right to manage the property as the same vests in it. The defendants (petitioners herein) were asked to vacate the illegal possession of the aforesaid property which is a Mosque and hand over the vacant possession to the plaintiff (respondent No.1 herein) but they were adamant and had finally refused to oblige about three days earlier to the filing of the suit. Hence the suit. The petitioners filed their written statement (Annexure P11) in which preliminary objections were raised. It was stated that the defendants (petitioners herein) who were filing the written statements were not sons of Budh Ram as given in the plaint (Annexure P10). Besides, the Wakf Board had no locus standi to file the suit against them. The property in question it was stated is not a Wakf property. Therefore, the suit before the Tribunal (respondent No.2) was not maintainable. In any case the suit had not been filed by a proper or duly authorized person. The CWP No. 13017 of 2006 -3- defendants (now petitioners) were in possession of the property in suit since 1947, as of right without any interruption, except that there was a previous suit filed by the Wakf Board which was dismissed by this Court. As such the suit was barred by the principles of res judicata and also estoppel. On merits it was stated that it was incorrect that the property in dispute is comprised in khasra Nos.237/1, 237/3 and 238 of the Revenue Estate of Garhi Brahmanan, Sonepat. It was also denied that it is a Wakf property. It was stated to be incorrect that there was a Mosque built in the said property. It was denied that the property in question was handed over by the Rehabilitation Department to the Punjab Wakf Board or that it bears the numbers given in the corresponding paras of the plaint. The copy of the site plan, it was stated, was not supplied. It was stated to be correct that previous litigation came up to this Court in which the Wakf Board was unsuccessful. It was, however, denied that the Wakf Board is a Trustee as per Section 11 of the Administration of Evacuee Property Act, 1950 or that the property in question vests in the Wakf Board either for its management or control. The Wakf Board had no right to ask the defendants (petitioners therein) to vacate the said property. On the basis of pleadings, the learned Tribunal (respondent No.2) framed the following issues:- “1) Whether the suit has been filed by a duly authorized person? OPP 2) Whether the property in dispute is part of Khasra Nos.237/1, 237/3 and 238 and is situated in the revenue estate of village Garhi Brahamnan? OPP 2A) Whether the property in dispute is Wakf property? OPP 3) Whether the suit is not maintainable? OPD 4) Whether the suit is barred by the principles of res- judicata and estoppel? OPD CWP No. 13017 of 2006 -4- 5) Whether the property in dispute does not fall in Khasra numbers mentioned in Para No.2 of the plaint? If so the effect thereof? OPD 6) Relief.” After considering the evidence and material on record, the suit property was held to be Wakf property and the Wakf Board was held entitled to dispossess the defendants (petitioners therein) from the suit property as per law and rules and regulations. Accordingly, the suit of the plaintiff (respondent No.1 herein) was decreed with costs vide judgment and decree dated 6.5.2006 (Annexure P15). Aggrieved against the same, the petitioners have filed the present petition assailing the said judgment and decree (Annexure P15) passed by the learned Tribunal. Learned Senior counsel appearing for the petitioners has contended that according to the plaint (Annexure P10) that has been filed by the Wakf Board seeking eviction of the petitioners, the property from which eviction of the petitioners is sought is mentioned as comprised in khasra Nos. 237/1, 237/3 and 238 situated in the Revenue Estate of Garhi Brahmanan, Sonepat. However, the identity of the said property is not established inasmuch as in the site plan which is attached to the petition (Annexure P10) though khasra No.237/2 has been mentioned, however, the red colour in which the Mosque is alleged to exist does not mention the khasra No. It is further submitted that in the earlier Regular Second Appeal No. 714 of 1980 which was decided by this Court vide judgment dated 4.6.1981 (Annexure P7), the suit had been filed for possession of public Mosque ‘Immambara’, Sarang Road, Sonepat shown in red colour in the site plan attached with the plaint. The site was bearing No.446, Tehsil and Distt. Sonepat. Therefore, it is submitted that the earlier suit may be of some different locality and it does not establish the identity of the Mosque in the present case. It is also stated that Jangi Khan through whom the plaint (Annexure P10) has been filed, appeared as a witness in the present case as PW1 on behalf of the CWP No. 13017 of 2006 -5- Wakf Board. In his cross-examination (Annexure P13), it is stated that they had not got the khasra Nos.237/1, 237/3 and 238 demarcated from any revenue authority as they did not feel any necessity for the same because the Mosque exists at the spot. The suggestion that no Mosque exists at the site in dispute or that the site in dispute is not part of khasra Nos.237/1, 237/3 and 238 was stated as incorrect. It is also stated that they did not obtain any demarcation of the boundary of Garhi Brahmanan, Sonepat. It is further stated that the property in dispute falls on the Western side of the road leading from Railway Station to Kumharan Gate. It is stated to be correct that the site in dispute is about 4 kms from Garhi Brahmanan, Sonepat. From the said statement, it is submitted by the learned Senior Counsel for the petitioners that the petition has been filed for claiming possession of the property situated in Garhi Brahmanan, Sonepat. However, Jangi Khan (PW1) who is the authorized representative of the Wakf Board and through whom the plaint (Annexure P10) has been filed, has accepted as correct that the site in dispute is about 4 kms from Garhi Brahmanan, Sonepat, whereas the plaint (Annexure P10) is filed for the property in Garhi Brahmanan, Sonepat. It is submitted that in fact the entire matter could have been got clarified by the Wakf Board itself as an application (Annexure P14) was filed for appointment of a Local Commissioner who it was prayed should visit the spot and report about the existing position of the building and various signs of the Mosque present at the spot and also report whether the property in suit forms part of khasra Nos.237/1, 237/3 and 238 within the revenue estate of Garhi Brahmanan, Sonepat. However, the said application (Annexure P14) for the appointment of Local Commissioner was withdrawn by the Wakf Board. It is also submitted that one Promila wife of Om Parkash son of Diwan Chand had filed a suit (Annexure P18) against the Board for declaration with consequential relief of permanent injunction. It was claimed that she was in possession of shop measuring 25 sq. yds as detailed in the plaint (Annexure P18). The said shop was purchased by the plaintiff Promila vide registered sale deed dated 4.12.1997 which was under the ownership and CWP No. 13017 of 2006 -6- possession of Kushi (petitioner No.1). It is submitted that during the pendency of the present petition, the said suit has been decreed in favour of Promila vide judgment and decree dated 10.11.2008 (Annexure P20) passed by the learned Additional District Judge, Sonepat and it was held that the judgment and decree dated 6.5.2006 (Annexure P15) is not binding upon the rights of the plaintiff Promial because the suit property was not covered by the said judgment and decree (Annexure P5). Therefore, it is submitted that the identity of the property is not established and it cannot be said that the respondents are in illegal or unauthorized possession of the property which is in their possession since 1947. It is further submitted that though in writ jurisdiction, the questions of facts are not normally gone into, however, where the Tribunal (respondent No.2) has based its findings on pure assumptions and conjectures and on no evidence then this Court in exercise of its writ jurisdiction under Articles 226 and 227 of the Constitution of India can set aside the impugned order. In this regard reliance is placed on the case of Rukmanand Bairoliya v. State of Bihar and others, AIR 1971 SC 746. In response learned counsel appearing for respondent No.1 Wakf Board has submitted that the identity of the property in dispute is clearly established and the petitioners have raised baseless contentions as regards its identity. It is submitted that in Para No.4 of the plaint (Annexure P10) filed by the Wakf Board seeking eviction of the petitioners, it has been stated that previously also the Wakf Board filed a suit for possession against the defendants (petitioners therein) which came up to this Court. The case was decided against the plaintiff-Board on the ground that as per Section 11 of the Administration of Evacuee Property Act, 1950, the property in dispute still vested in the custodian. The facts of the earlier suit, it is submitted, are admitted by the petitioners in the corresponding para of their written statement (Annexure P11). A reference has been made to the Gazette Notification dated 17.4.1971 wherein at serial No. 413 and 414, the property in khasra No.238 is mentioned as one bhawan and one verandah with house. It is submitted that mere CWP No. 13017 of 2006 -7- slip in the cross examination statement (Annexure P13) of Jangi Khan (PW1) that the site in dispute is 4 kms away from Garhi Brahmanan, Sonepat would not negate the documentary evidence on record which is there in the shape of Jamabandi for the year 1952-53 and 2001-02. Therefore, it is submitted that the petition that has been filed is devoid of any merit and is liable to be dismissed. I have given my thoughtful consideration to the contentions of the learned counsel appearing for the parties and also gone through the records. The scope of jurisdiction of this Court in exercise of its supervisory writ jurisdiction is limited and this Court is not to generally re-appreciate the evidence and material on record. Primarily the Court is concerned with the decision making process and not the decision. However, in case the judgment is based on no evidence or material and on pure assumptions and conjectures, this Court in exercise of its supervisory jurisdiction may interfere. In the present petition, the primary case set up by the learned Senior counsel for the petitioners is that the identity of the property from which eviction is sought, is not established. It is not in dispute that the possession was claimed of the property mentioned in khasra Nos.237/1, 237/3 and 238 measuring 831 sq. yds. in Garhi Brahmanan, Sonepat. In the earlier litigation which was filed the property of which possession was sought, was described as public Mosque, Immam Bara situated in Mohalla Sarang Road, Sonepat shown in red colour in the site plan attached with the plaint bearing No.446 Tehsil and Distt. Sonepat. However, the said description is not there in the present case, although it is the admitted case that previously also the Wakf Board had filed a suit for possession against the petitioners which came up to this Court. The copy of the judgment dated 4.6.1981 (Annexure P7) passed in the earlier litigation i.e. in Regular Second Appeal No.714 of 1980 is on record. In any case, the said suit was dismissed as it was held that the property in dispute had not vested in the Punjab Wakf Board for the purpose of Section 15 of the Wakf Act, 1954. In view of the fact that it was held that the property did not vest in the Punjab CWP No. 13017 of 2006 -8- Wakf Board, a Division Bench while disposing of the aforementioned Regular Second Appeal did not take up any other point except the locus standi for filing the suit. The Wakf Board in its plaint (Annexure P10) has now taken the stand that as per the judgment of the Supreme Court, Wakf Board is a new Trustee as per Section 11 of the Administration of Evacuee Property Act, 1950. As such, the property in dispute vests in the Wakf Board for the purposes of its management and control. Thus as per the judgment of the Supreme Court, it is stated that the plaintiff Board has the right to manage the said property as the same vests in it. The said assertion though has been denied in the written statement (Annexure P11) filed by the petitioners. However, during the course of hearing, the same was not disputed. The primary dispute that has been raised is with respect to the identity of the property. Indeed there are discrepancies with regard to the description of the properties inasmuch as apart from the description in the earlier litigation, it may also be noticed that Jangi Khan (PW1) during his cross-examination (Annexure P13) has stated that they had not got khasra Nos. 237/1, 237/3 and 238 i.e. the property of which possession had been sought, demarcated from any revenue authority as they did not feel any necessity for the same because the Mosque was existing at the spot. They did not obtain any demarcation of the boundary of Garhi Brahmanan, Sonepat. It is stated that the property in dispute falls on the Western side of the road leading from Railway Station to Kumharan Gate. It is stated to be correct that the site in dispute was within the limit of Sonepat Municipal Committee. It was also stated as correct that the site in dispute was about the 4 kms from Garhi Brahmanan, Sonepat. Therefore, according to Jangi Khan (PW1), the site in dispute is 4 kms from Garhi Brahmanan, Sonepat, whereas the possession is claimed of the property in Garhi Brahmanan. According to the learned counsel for the respondent- Wakf Board, the statement of Jangi Khan (PW1) is only a slip and it cannot negate the documentary evidence on record. However, it may be noticed that the documentary evidence on CWP No. 13017 of 2006 -9- record also does not clearly establish the position. In the Gazette Notification dated 17.4.1971, the property in question at Serial No.413 is described as a Takia in Garhi Brahmanan, Sonepat and khasra No.223 has been mentioned measuring 2 kanals. Serial No.414 is described as a Mosque in Garhi Brahmanan, Sonepat which is in khasra No.238 measuring 0-11 marlas. It is recorded as one bhawan and one verandah with house. It is shown under the unauthorized possession of Kushi Ram son of Diwan Chand (petitioner No.1). This khasra No.238 is in Garhi Brahmanan, Sonepat. In the Jamabandi for the year 2001-02 (Annexure P17), the ownership of Khasra Nos.223, 237, 237/3 and 238 are recorded as that of Punjab Wakf Board and in occupation, it is recorded as Makuja Malkan. Khasra No.223(2-0), Khasra No.237/1 (kam aaj marla), 237/3 (0-16) and 238 (0-11) are described as gair mumkin house. The Wakf Board had submitted an application (Annexure P14) for appointment of a Local Commissioner. It is stated that the property in suit was a built Mosque which was handed over to the Haryana Wakf Board by the Rehabilitation Department. The contention of the plaintiff Wakf Board was that the property in suit bears khasra Nos.237/1, 237/3 and 238 situated in the revenue estate of Garhi Brahmanan, Sonepat. It was prayed that a Local Commissioner may be appointed to visit the spot and report about the existing position of the building and various signs of the Mosque present at the spot besides also report whether the property in suit forms part of khasra Nos.237/1, 237/3 and 238 within the revenue estate of Garhi Brahmanan, Sonepat. However, the said application (Annexure P14) as already noticed was withdrawn. Another factor that may be noticed is that Promila had filed a suit (Annexure P18) with regard to part of the property against the Haryana Wakf Board claiming declaration with consequential relief of permanent injunction. It was stated by the plaintiff Promila that she had purchased a shop measuring 25 sq. yds as detailed in the plaint for sale consideration of Rs.1,47,000/- vide sale deed dated 4.12.1997 which was under the ownership and possession of Kushi Ram son of CWP No. 13017 of 2006 -10- Dewan Chand (petitioner No.2) who was vendor/father of the plaintiff Promila. It was stated that on the date of purchase i.e. on 4.12.1997, the plaintiff Promila took possession of the shop and since then she is the owner of the shop. Kushi Ram the original owner of the above said shop had purchased plot No.86-C/B-VI-Sonepat through deed of conveyance dated 13.7.1955 executed by the President of India. The suit filed by Promila against the Haryana Wakf Board has been decreed vide judgment and decree dated 10.11.2008 (Annexure P20) passed by the learned Additional District Judge, Sonepat. It was held that the suit property was not Wakf property and the judgment and decree dated 6.5.2006 (Annexure P15) was not binding on the rights of the plaintiff Promila because the suit property was not covered by the said judgment. The property which is purchased by Promila is a part of the present suit property. In the said case it has been held by the learned Additional District Judge vide judgment and decree dated 10.11.2008 (Annexure P20) that the property which was purchased by Promila is not part of Wakf and neither is the judgment dated 6.5.2006 (Annexure P15) binding on her rights. Therefore, evidently there are discrepancies with regard to the identity of the property and it has indeed not been established. This Court in exercise of its writ jurisdiction is not to embark upon an inquiry to establish the identity of the property in dispute for this is the domain of the Tribunal constituted under the Wakf Act. In Rukmanand Bairoliya v. State of Bihar (Supra), it was held that findings of the revenue authorities based on pure assumptions and conjectures and on no evidence whatsoever should be quashed. In the present case there is no material to clearly identify or establish the property and whether it is same property from which eviction has been sought. In any case, this Court is not to embark into an inquiry of identifying the property for that is the domain of the Tribunal. Therefore, it would be just and expedient that the said exercise is carried out by the Tribunal itself. CWP No. 13017 of 2006 -11- Accordingly, the writ petition is allowed. The impugned judgment and decree dated 6.5.2006 (Annexure P15) is quashed and the matter is remanded back to the Tribunal to identify the property. The parties shall be at liberty to produce additional documents and material on record, if necessary. The parties through their counsel shall appear before the Tribunal on 5.10.2009. Keeping in view the fact that the matter has been considerably delayed, it is hoped that the learned Tribunal would decide the case as expeditiously as possible and preferably within six months from the date the parties put in their appearance. (S.S. SARON) JUGDE July 24, 2009 amit