IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA FAO No. 53 of 2009 Date of Decision: 10th November, 2010 __________________________________________________________ H.P. Wakf Board ….Appellant Versus Nayab and others ….Respondents. ___________________________________________________________ Coram The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 No. ___________________________________________________________ For the Appellant: Mr. Imran Khan, Advocate For the Respondents: Mr. Satyen Vaidya, Advocate. __________________________________________________________ Dev Darshan Sud, J (oral). The appellant is the respondent who has preferred this appeal against the order passed by the learned District Judge, exercising the powers of the Tribunal under the Himachal Pradesh Wakf Board, Shimla allowing the application under Order 39 Rules 1 and 2 of the Code of Civil Procedure preferred by the respondents-plaintiffs praying for an ad-interim injunction restraining the appellant herein from evicting them from a hall situated in the floor above the Qutab Mosque situated in building comprised in khasra No. 803 in lower bazaar, Shimla. The pleading of the respondent was that their possession be protected till the disposal of application under Section 7 read with Section 83(2) of the Wakf Act instituted by them. 1 Whether Reporters of Local Papers may be allowed to see the judgment? Yes. 2 2. The pleading of the respondents-applicants herein is that they profess Islam and have been residing in Shimla for the last more than 50 years to earn their livelihood by selling fruits and vegetables through hawking. They are poor and illiterate and survive on manual labour. They state that they received registered notice/orders from the Chief Executive Officer under Section 54 of the Act on the ground that the hall, where they are residing, is wakf property which has been encroached by them and therefore, deserve to be evicted therefrom. 3. An application under Order 39 Rules 1 and 2 of the Code of Civil Procedure was filed by the respondents alleging that they are in occupation and such occupation be protected till the disposal of the main petition instituted by them. The Wakf Board pleaded that they are migrants from Uttar Pradesh and under the garb of offering prayers in the mosque they are unauthorizedly occupying it. 4. Learned District Judge noticed that one of the grounds urged by the respondents is that the property is not wakf property till and so long it is established in accordance with law and in these circumstances; the provisions of the Act are not applicable to them. The respondents also pleaded that the property including the hall in question is owned by the State of Himachal Pradesh and is in constructive possession of the Custodian Department. 5. What I find from the pleadings is that State of Himachal Pradesh and the Custodian Department have not been impleaded as party. Reliance was placed on the Missal Hakiyat for the year 2002-03 in which the property known Qutab Masjid has been recorded in the ownership of the State of Himachal Pradesh and in possession of the Custodian Department through different departments. Since the respondents are in occupation of it till and so long, their possession cannot be disturbed except in accordance with law. 3 6. Learned counsel appearing for the appellant urges that the respondents being trespassers do not deserve any protection under law as they cannot invoke an equitable provision, seeking to protect their possession. He submits that the respondents have not shown their lawful occupation under any authority and they can be treated as encroachers who cannot exercise a better right than the true owner. There cannot be any dispute with this proposition. However, since the case is pending for disposal and the respondents are in admitted possession, in case this order is vacated it would cause irreparable loss and injury to them. The balance of convenience also appears in favour of the respondents. 7. Learned counsel then urges that by disposing of this application dismissing the case of the Wakf Board/appellant the learned Tribunal has not only exceeded its jurisdiction but has determined the entire controversy at the initial stage itself. This submission cannot be accepted. It is but obvious that inte rim order cannot determine the rights of the parties finally. It will be for the Tribunal to determine, on the settled issues and on the evidence to be recorded, the respective rights of each of the parties herein. Needless to say that the observations made in the interim order do not in any manner finally determine the final rights of the parties. This appeal is accordingly dismissed. A direction is issued to the trial Court that he shall dispose of the case expeditiously more especially keeping in view the fact that some serious allegations have been made against the respondents that they are encroachers etc. Appeal stands disposed of. No order as to costs. (Dev Darshan Sud) Judge November 10th , 2010(ms) 4