Regular Second Appeal No.2828 of 1988 1 In the High Court of Punjab and Haryana, at Chandigarh. Regular Second Appeal No.2828 of 1988 Date of Decision: 9.12.2010 Custodian Department and Another …Appellants Versus Jagga Singh and Another …Respondents CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA. Present: Mr. K.C. Bhatia, Additional Advocate General, Haryana, for the appellants. Mr. Kabir Sarin, Advocate for respondent No.1. None for respondent No.2. Kanwaljit Singh Ahluwalia, J. (Oral) The present appeal has been filed by the Custodian Department through its Tehsildar (Sales), Hisar and the Haryana State through its Collector of District Hisar. They have assailed the judgment and decree dated 25.1.1988, passed by the Sub Judge Ist Class, Farehabad, whereby the suit, filed by the plaintiff/respondent No.1 Jagga Singh, for permanent injunction restraining the defendants from interfering in his peaceful possession over the suit land measuring 30 kanals, was decreed. Aggrieved against the same, the appellants had filed an appeal. The appeal was also dismissed by the Court of Additional District Judge, Hisar, vide its judgment and decree dated Regular Second Appeal No.2828 of 1988 2 5.9.1988. The plaintiff/respondent No.1 Jagga Singh had set out the case that he is a tenant at will under the Punjab Wakf Board and the suit land is a Wakf property being a Shamlat Musalmanan. It was further stated that the plaintiff was in occupation of the same since Kharif 1965. Furthermore, he had obtained the lease deed from the Wakf Board on 17.10.1973. It was further stated that since the appellants intended to forcibly evict the plaintiff/respondent No.1 from the suit land and auction the same, therefore, the cause of action had arisen to him to approach the Civil Court. The appellants/defendants appeared and filed written statement, wherein it was stated that the suit land was the acquired evacuee property and the Civil/Revenue Court had no jurisdiction to try the suit as envisaged under Sections 36 and 46 of the Displaced Persons (Compensation & Rehabilitation) Act, 1954 (hereinafter referred to as “1954 Act”) and Administration of Evacuee Property Act, 1950 (hereinafter referred to as “1950 Act”). It was further pleaded that the remedy is available under the above said two Acts, which contain special provisions. Further a preliminary objection was raised that the suit was barred by way of res judicata. On merits, it was stated that as per jamabandi for the year 1974-75, the land in dispute was in the ownership of Shamlat Musalmanan and on migration of the Muslims of the village to Pakistan, the property had automatically vested in the Custodian/Government by operation of law as envisaged under Section 4 of the East Punjab Evacuees (Administration of Property) Act, 1947 (hereinafter referred to as “1947 Act”). It was specifically pleaded that Regular Second Appeal No.2828 of 1988 3 the land in question is neither a Wakf property nor has been utilized for Wakf purposes. Therefore, the Wakf Board has nothing to do with the suit land. After completion of the pleadings, the following issues were framed:- “1. Whether the suit land is Wakf property? O.P.P. 2. Whether the plaintiff is in possession of the suit land as tenant at will under the Wakf Board? O.P.P. 3. Whether the Civil Court has no jurisdiction to try the present suit as alleged in preliminary objection No.1 of the written statement of defendants No.1 & 2? O.P.D. (Deftt. No.1 & 2) 4. Whether the suit land is bad for non compliance of provisions of Section 80 CPC? O.P.D. (Deftt. No.1 2) 5. Whether the plaintiff has no locus standi to file the present suit? O.P.D. (defendants No.1 and 2) 6. Whether the suit is not maintainable in the present form as alleged in preliminary objection No.4 of the written statement of defendants No.1 & 2? O.P.D. (Deftt. No.1 & 2) 7. Whether he suit is bad for non joinder of Regular Second Appeal No.2828 of 1988 4 necessary properties? O.P.D. 8. Relief...” The parties had led their evidence. The core issue, to be determined by this Court is as to whether the suit property is a Wakf property or an evacuee property. The trial Court gave a finding that from the jamabandies Ex.P14 and P15, it is established that the suit land was reserved as a grave yard and it has come in the testimony of PW.2 Mohd. Yakub that the Muslims used to bury the dead bodies in the suit land. Thus, the property was reserved as a grave yard for Muslims. The trial Court further relied upon notification Ex. P10 to hold that the suit land has been shown as a grave yard and the said notification had conclusively proved that the property in dispute is a Wakf property. The trial Court further held that no notification has been issued under Section 7 of the 1950 Act to declare the suit land as an evacuee property. The following finding of the trial Court assumes importance:- “...14. Admittedly, there is no notification issued u/s 7 of the Administration of Evacuee Property Act, 1950, to declare the suit land as evacuee property, rather from the documents on the file, it is established that the suit land was grave yard so, it is evidently proved in view of my above discussion that the suit land is a wakf property being grave yard, so this issue is decided in favour of the plaintiff and against defendants No.1 and 2...” Having held the property to be a Wakf property, the trial Court relied upon kabuliyatnamas Ex.P1, Ex.P3, Ex. P7 and Ex.P9, lease Regular Second Appeal No.2828 of 1988 5 deeds Ex.P2, Ex.P4, Ex.P6 and Ex.8 and the revenue record to hold that plaintiff/respondent No.1 Jagga Singh was in possession of the suit property. As the material findings were returned in favour of the plaintiff/respondent No.1 Jagga Singh, the suit was decreed. The above said findings were also affirmed by the lower Appellate Court. I have perused the record and the judgments and decrees rendered by both the Courts below. The concurrent finding of fact has been given that the suit property, being a grave yard, belonged to the Wakf Board and no notification has been issued under Section 7 of the 1950 Act. Thus, neither substantial question of law has been formulated nor raised nor arise to dislodge the well reasoned findings recorded by both the Courts below. Hence, the present appeal is hereby dismissed. (Kanwaljit Singh Ahluwalia) Judge December 9, 2010 “DK”