R.S.A.No.163 of 2009(O&M) {1} In the High Court of Punjab and Haryana at Chandigarh R.S.A.No.163 of 2009(O&M) Date of Decision:July 06, 2009 Punjab Wakf Board(now known as Haryana Wakf Board) ---Appellant versus Santokh Singh and others ---Respondents Coram: HON'BLE MRS. JUSTICE SABINA *** Present: Mr. Arun Palli, Senior Advocate with Mr. Jai Bhagwan, Advocate, for the appellant *** SABINA, J. Plaintiff -Punjab Wakf Board Ambala Cantt. (hereinafter referred to as “Wakf Board”) has filed a suit for possession by way of ejectment of defendant-Santokh Singh from the property in dispute. Defendant-Santokh Singh filed a suit for permanent injunction. The suit of the Wakf Board was decreed by learned Additional Civil Judge (Sr. Division), Sirsa vide judgment and decree dated 8.6.2005. Aggrieved by the same, defendant – Santokh Singh filed an appeal and the same was allowed by Additional District Judge, Sirsa vide judgment and decree dated 28.8.2009 and resultantly the suit of the Wakf Board for possession of the R.S.A.No.163 of 2009(O&M) {2} suit property was dismissed. Hence, the present appeal. The case of the parties, as noticed by the learned trial court, in paras 2 and 3 of its judgment `is as under:- “Brief facts of the first civil suit No. 1496-C of 1998 are that the plaintiff i.e. Punjab Wakf Board is a body corporate and constituted under the Wakf Act, 1954 as amended upto date i.e. The Wakf Act, 1995 and the present suit is being filed through its Estate Officer at Sirsa, who is competent and authorised to file the same on behalf of the Board. The property in dispute bounded as on North-House of Madan Lal Mehta Advocate, 74 feet South Street 74 feet, East-46 feet wakf property under the tenancy of Sahab Devi wife of Daulat Ram and West House of Madan Lal 45 feet is mosque i,e, place of worship for Muslims. As per the provisions of the Places of Worship (Special Provisions) Act, 1991 No. 42 of 1991, the place of worship means temple, Mosque Gurudwara, Church monastery or any other place of worship and no person shall convert any place of worship or convert the change of alteration to the place of worship. The suit property has also been notified as wakf property in the Gazette of Govt. of India dated 17.10.1970 at Serial No. 1547 in the name of “mosque Gali Talianwali”, Sirsa. This property is under the management control and supervision of the plaintiff Board including the other properties which are notified as “ Wakf property”. The plaintiff board is a Board for Wakfs, situated in Punjab, Haryana and Himachal Pradesh States. Hence, property R.S.A.No.163 of 2009(O&M) {3} situated at Sirsa is vested in the plaintiff Board as owner and landlord. The defendant is in illegal possession of the suit property after the death of his father. Previous to the defendant, his father Harnam Singh and Dayal Singh son of Ganda Singh were in possession of the mosque in suit i.e. the suit property since partition of the country. The suit property is a place of worship for the Muslims and the defendant has no right to remain in possession of the same and plaintiff Board is entitled to recover the possession of the property as per rules. It is further asserted that earlier suit for possession regarding suit property against Harman Singh and Dayal Singh was filed which was dismissed on 20.10.1971 by the then Sh. B.R.Gupta, the then Learned Sub Judge Ist Class, Sirsa and in that gery judgment the court had held that the suit property might be a mosque but dismissed the suit on the ground of user of the suit property after 15.8.1947 and in that very suit defendant Harnam Singh, who is father of the present defendant and Dayal son of Ganda claimed their adverse possession of the suit property but the court did not decide the issue of adverse possession in that suit but now legal position has been changed and suit property has been notified as “Wakf property” u/s 5 of the Wakf Act in the Gaz. Of Govt. of India dated 17.10.1970 at S. No. 1547. As per the provisions of the place of worship Act, 1991 no person can change, alter the grammatical variation of the place of worship. This mosque has three ' Gumbads' on the building situated on the Western portion of the mosque i.e. R.S.A.No.163 of 2009(O&M) {4} the suit property. The building under the Gumbads is still existing in good condition on the spot and the plaintiff has got powers under section 107 of the Wakf Act, 1955 for taking possession of the property without having any fact of limitation, so, this suit is also not covered under Limitation Act. The defendant had wrongly, illegally and unauthorized has raised the illegal structure on the eastern portion of the suit property which was open space ' lawn'/court-yard of the mosque without seeking permission from the Board, so, the construction is also liable to be demolished. The plaintiff approached many a times to the defendant not to raise any construction and to hand over the peaceful possession to the plaintiff but all the request of the plaintiff remained barren of results. All these facts and circumstances necessitated to file the present suit. On the other hand, the defendant appeared and filed written statement refuting the stand taken by the plaintiff. The defendant has vehemently pleaded that all the contents of the plaint are wrong and hence denied. As a matter of fact, the question was decided whether suit property is Wakf property or the plaintiff or not by the then learned Sub Judge Ist Class vide his judgment and decree dated 20.10.1972 passed in civil suit No. 1 of 2.1.1971 in which it was categorically held that suit property was not Wakf property and that issue was decided in favour of the defendant. Even the suit bearing No. 1 of 1971 filed by Punjab Wakf Board for possession of the suit property R.S.A.No.163 of 2009(O&M) {5} was dismissed and judgment and decree dated 20.10.1872 referred in Civil suit No. 1 of 2.1.1971 have already become final and conclusive qua Punjab Wakf Board in all regards. The property which is subject matter of the present suit was also subject matter of the civil suit No. 1 of 2.1.1971 and thus controversy between the parties in civil suit was materially and substantially is the same rather identical as is raised by the Punjab Wakf Board in the present suit. Punjab Wakf Board is again seeking possession of the suit property even after a period of twenty six years which is wholly impermissible under the law. The suit in hand does not disclose any cause of action and even from the submission made in the plaint, the same is proved to be barred by law. Moreover, no second suit can be filed by the Punjab Wakf Board under the Law because the matter in issue in the present suit was already directly and substantially in issue in Civil suit No.l /1971 so the present suit is an abuse of process of law. It is further alleged that the suit property on the spot is neither a mosque nor any notification with regard to the same was ever issued legally and no Gaz. Notification in that behalf was ever made as alleged by the plaintiff. Moreover, any such Gaz. Notification is not binding upon the defendant as the same cannot be termed as Gaz. Notification duly published in accordance with law. The contention of the plaintiff showing the management control and supervision of the suit property by it in the shape of Wakf property is also wholly wrong and incorrect. Moreover, R.S.A.No.163 of 2009(O&M) {6} provisos suit was decided against the present plaintiff, so, at this stage the plaintiff Wakf Board cannot claim any right or possession of the property in dispute. So, the suit of the plaintiff is liable to be dismissed. The suit of the plaintiff is also agitated by the defendants on the basis of preliminary objections of cause of action, maintainability, locus-standi, estoppel, limitation. It is, therefore, requested that suit of the plaintiff may kindly be dismisses with special costs and civil suit No. 380-C of 1997 is liable to be decreed.” On the pleadings of the parties, following issues were framed by the trial court:- “(1)Whether the plaintiff is entitled to seek possession as alleged? OPP (2)Whether the suit of the plaintiff is hit by the principal of res judicata? OPD. (3)Relief” After hearing learned counsel for the appellant, I am of the opinion that no ground for interference by this Court is made out. Wakf Board has filed a suit for possession on the basis of Gazette Notification dated 17.10.1970(Ex. A-2), as per which the suit property had been described as wakf property at Sr. No. 1547. However, the Wakf Board had earlier filed a suit for possession against Dayal Singh and present defendant-Santokh Singh bearing Civil Suit No. 1 dated 2.1.1971. In the said suit, issue No. 1 was framed to the effect as to whether the property in dispute was wakf property of the Board as alleged, and if so, to what effect. While deciding the said issue it was held that the R.S.A.No.163 of 2009(O&M) {7} Wakf Board had failed to prove that the suit property was Wakf property by leading any positive and believable evidence. Since, the Wakf Board had failed to establish that the suit property was Wakf property, learned District Judge, Sirsa has rightly held that the Wakf Board could not re-agitate the matter regarding its ownership by way of present suit and hence, the suit was barred by principal of res judicata. The issue of ownership of the suit property was directly in issue in the earlier suit and it was decided against the Wakf Board. In these circumstances, learned Additional District Judge, Sirsa has rightly held that the plaintiff -Wakf Board was not entitled to seek possession of the property in dispute, which was the suit property in an earlier suit and the Wakf Board had failed to establish its ownership qua the suit property. No ground for interference by this Court is made out. No substantial question of law arises in this appeal. Accordingly, the same is dismissed. (SABINA) JUDGE July 06, 2009 PARAMJIT