R.S.A.No. 653 of 2007 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 10.9.2009 R.S.A.No. 653 of 2007 (O&M) Sumitra Devi and others ......Appellants Versus Committee Murti Hanuman Jai Mohalla Sarai Naka, Narnaul and others .......Respondents R.S.A.No. 702 of 2007 (O&M) Sumitra Devi and others ......Appellants Versus Committee Murti Hanuman Jai Mohalla Sarai Naka, Narnaul and others .......Respondents R.S.A.No. 1579 of 2007 (O&M) Haryana Wakf Board ......Appellant Versus Committee Murti Hanuman Jai Mohalla Sarai Naka, Narnaul and others .......Respondents R.S.A.No. 653 of 2007 (O&M) 2 CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Arun Jain, Sr. Advocate with Mr.Vishal Goyal, Advocate, for the appellants. Mr.Arun Palli, Sr.Advocate with Mr.Jai Bhagwan, Advocate, for the appellant (in RSA No.1579 of 2007) **** SABINA, J. Vide this judgment, RSA Nos. 653, 702 and 1579 of 2007 would be disposed of as these have arisen out of same civil suit. Plaintiffs Prem Chand and Punjab Wakf Board had filed two suits separately bearing Civil Suit No.244 for declaration and injunction and Civil Suit No.245 for declaration respectively. Both the suits filed by the plaintiffs were dismissed and counter claim of defendant No.1 filed in first suit was decreed by the Additional Civil Judge (Sr.Divn.), Narnaul vide judgment and decree dated 30.4.2001. Aggrieved by the same, plaintiff Prem Chand (through his L.R.'s) had filed two appeals bearing No. 79 and 80 of 2001, whereas, plaintiff Punjab Wakf Board had filed an appeal bearing No.10 of 2001. All the said three appeals were dismissed by the Additional District Judge, Narnaul vide judgment and decree dated 28.11.2006 and the findings of the lower Court on all the issues were affirmed. Hence, the present appeals. Brief facts of the case, as noticed by the lower appellate R.S.A.No. 653 of 2007 (O&M) 3 Court in para Nos. 2 to 6, 11 and 12 of its judgment, are as under:- “2. The facts of the first suit in brief (as projected by the plaintiff) are as under:- Dispute is over a shop bounded as under:- East Thorough fare West Shop of P.W.B. under tenancy of Ambika diesel pump North Thorough fare South Shop of P.W.B. under tenancy of Giyarsi Lal situated in Mohalla Sarai Nimbi Naka, Narnaul (hereinafter referred to as suit shop). Plaintiff Prem Chand (appellant in appeal No.79 and 80 and respondent No.3 in appeal No.10) claims to be tenant of the suit shop under the Punjab Wakf Board on the basis of rent note dated 1.6.1979 at the rate of Rs.360 per annum. 3. That contesting defendants/respondents No.1 and 2 have nothing to do with the suit shop yet with an intention to eject the plaintiff from suit shop illegally, defendant No.1 filed rent petition in the court of Rent Controller, Narnaul against respondent No.2 Omkar Nath had obtained an ejectment order dated 19.1.1988. Respondent No.2 is father of appellant and relation among them are quite strained and so, respondent No.2 wants to harass the appellant. Respondents R.S.A.No. 653 of 2007 (O&M) 4 colluded under which they prepared a fake and sham rent note and on the basis of same obtained the ejectment order without impleading appellant as a party. Appellant filed an application under Order 1 Rule 10 of CPC in the above referred ejectment petition to implead him as a party but that was dismissed by Rent Controller. According to appellant the said ejectment order is not binding on him. He requested the respondents not to dispossess him under the garb of ejectment order dated 19.1.1988 but to no effect, which gave rise to the filing of the present suit, wherein plaintiff/appellant prayed that a decree for declaration to the effect that he is tenant in the possession under respondent No.3 i.e. Punjab Wakf Board on the suit shop and respondents No. 1 and 2 have no concern with the same. Plaintiff further sought a decree of declaration that ejectment order dated 19.1.1988 passed in petition No.16 of 1983 titled as Murti Hanuman Ji v. Omkar Nath is null, illegal and void and passed on fraud and collusion. Plaintiff further sought a decree of permanent injunction to restrain the defendants from interfering in his possession under garb of impugned ejectment order. 4. Respondent/defendant No.1 Murti Hanuman Ji R.S.A.No. 653 of 2007 (O&M) 5 Maharaj filed written statement along with its counter claim, wherein it controverted the allegations of the plaintiff and denied Punjab Wakf Board to be owner of the suit shop or that plaintiff ever remained in possession of the suit shop as a tenant under defendant/respondent No.3. Boundaries of the suit shop as given by the plaintiff were also disputed in as such as in the Western side there is property of Murti Hanuman Ji and Southern side there is shop of defendant No.1 on which Giyarsi Lal is tenant. It is inter alia pleaded that Punjab Wakf Board had earlier instituted a suit No.45 of 1971 against Giyarsi Lal regarding the shop situated in the Southern side of the suit shop in which Punjab Wakf Board had claimed Giyarsi Lal to be its tenant but that suit was dismissed. Punjab Wakf Board had filed another suit on 7.1.1971 against Prabhati Lal, which was also dismissed on 18.11.1972. In fact respondent/defendant No.2 is tenant on the suit shop since 1978. Before him defendant No.1 had inducted Prem Chand son of Sadhu Ram as tenant on the suit shop since 9.2.1968, then Mussadi Lal was inducted as tenant on 9.1.1969 and thereafter defendant No.2, who is the father of plaintiff Prem Chand had taken suit shop on rent. It is R.S.A.No. 653 of 2007 (O&M) 6 alleged by the defendant No.1 that plaintiff with collusion of defendants No.2 and 3 has concocted a false story regarding his tenancy. Defendant No.2 is doing business on suit shop since 1978 and plaintiff has nothing to do with the same. If defendant No.2 has obtained any licence in the name of his son i.e. plaintiff then it has no effect on the tenancy. Defendant No.1 has already obtained ejectment order against defendant No.2 which is binding on plaintiff. It is further stated by defendant No.1 that in 1982, defendant No.2 executed a rent note in favour of defendant No.1 which was also witnessed by plaintiff/appellant Prem Chand, which clearly stopped the plaintiff for claiming himself to be tenant under Punjab Wakf Board. After dismissal of application of plaintiff under Order 1 Rule 10 of CPC in the ejectment proceedings, he kept silent for more than four years, which also shows his collusion with defendant No.2. It is alleged that in fact defendant No.2 has got instituted the present suit from the plaintiff. Defendant No.1 has also taken some preliminary objections which are reflected in the array of the issues. With these submissions dismissal of the suit was sought. 5. Defendant/respondent No.1 in counter claim R.S.A.No. 653 of 2007 (O&M) 7 pleaded that plaintiff and other defendants are bent upon to change the nature of suit property by raising construction therein. Therefore, a decree of permanent injunction to restrain the plaintiff and other defendants from making impairment, alteration and construction etc. in the suit shop in any manner. 6. Defendant No.2 in his separate written statement admitted that he had taken the suit shop on rent on 9.11.1978 and then he got lifted shutter, got constructed floor and roof etc. in the same and spent a huge amount and then on 1.6.1979 he vacated the shop and delivered the possession to the president of defendant No.1 since 1.6.1979 he was left with no concern with the suit shop. He further pleaded that since 1.6.1979 plaintiff Prem Chand is in possession of the suit shop under Punjab Wakf Board and after his death his LRs are now in possession. He alleged that ejectment order dated 19.1.1988 passed against him is illegal. He has already filed an appeal before appellate authority, wherein statement was made by counsel for defendant No.1that till the decision of the suit titled as Punjab Wakf Board vs. Murti Hanuman Ji (referring to the second suit) no proceedings shall be taken. Defendant No.2 further alleged that a dispute regarding R.S.A.No. 653 of 2007 (O&M) 8 title of the suit shop between Punjab Wakf Board vs. Murti Hanuman Ji was involved and that he had withdrawn his appeal on the undertaking given by counsel for defendant No.1. He refuted any collusion with plaintiff or defendant No.3 and controverting other averments. He prayed for dismissal of the suit. 11. Second suit was filed by Punjab Wakf Board (respondent No.3 in appeal No.79 and 80 and appellant in appeal No.10) impleading respondents No.1 and 2 as proforma defendants, wherein Punjab Wakf Board claimed ownership of the suit shop claiming that said shop was part of mosque No.SA 759. It was alleged that respondent No.3 Prem Chand is a tenant under it and that contesting defendants have nothing to do with the same but they have obtained an ejectment order dated 19.1.1988 from the Court of Rent Controller, Narnaul which is null, illegal and void. Said order is challenged on the ground that no notice was issued to the appellant Punjab Wakf Board and that defendants No.1 and 2 has no concern with the suit shop. Plaintiff, Punjab Wakf Board sought a decree for declaration that it is owner of the suit shop on which defendant No.3 is a tenant and that contesting defendants have no concern with the same. Punjab Wakf Board further R.S.A.No. 653 of 2007 (O&M) 9 sought a decree of declaration that order dated 19.1.1988 passed in ejectment petition No.16 of 1983 titled as Murti Hanuman Ji v. Omkarnath is null illegal and void and same is result of collusion with the contesting defendants. It has also claimed a decree for injunction to restrain the contesting defendants from interfering in the possession of the plaintiff under the garb of impugned order. 12. In his written statement defendant No.1 i.e. Murti Hanuman Ji broadly denied the plaint allegations and took the same stand as taken in suit No.244 and inter alia pleaded that Punjab Wakf Board is estopped from filing the suit and it was with in knowledge of the ejectment petition since very beginning Punjab Wakf Board had filed a petition under Section 57 of the Wakf Act in the court of Additional Senior Sub Judge, Narnaul and so present suit is not maintainable and same is liable to be dismissed as costs.” On the pleadings of the parties, following issues were framed by the trial Court in first suit on 2.8.1991:- “1. Whether the suit property is owned by the Punjab Wakf Board and the plaintiff is tenant under it? OPP 2. Whether the decree dated 19.1.1988 is null R.S.A.No. 653 of 2007 (O&M) 10 and void as alleged? OPD 3. Whether the suit is barred by virtue of the provisions of Order 23 Rule 1 of the CPC? OPD 4. Whether the plaintiff is estopped from filing the present suit? OPD 5. Relief. ” An additional issue was lateron framed vide order dated 23.4.1992, which is as under:- “Whether the suit is bad because of mis-joinder of necessary parties? OPD (defendant No.2)” In second suit, following issues were framed by the trial Court on 6.9.1991:- 1. Whether the plaintiff is owner of the suit property? OPP 2. Whether plaintiff is entitled for injunction as prayed for ? OPP 3. Whether sufficient court fee has been affixed with the plaint ? OPP 4. Relief. Some additional issues were later on framed on 23.1.2001, which are as under:- Issue No.2-A 1. Whether the suit is not maintainable as per Order 7 Rule 1 (j) CPC ? OPD R.S.A.No. 653 of 2007 (O&M) 11 2. Whether the suit is barred by principal of resjudicata on account of previous litigation in suit titled Punjab Wakf Board Vs. Parbhati and Punjab Wakf Board vs. Gyarsi? OPD 3. Whether the suit is barred by limitation? OPD 4. Whether defendant No.1 is entitled to the relief as claimed in counter claim? OPD After hearing learned counsel for the parties, I am of the opinion that the present appeals deserve to be dismissed. Plaintiff Prem Chand had filed a suit for declaration that he was in possession of the disputed shop as a tenant under Punjab Wakf Board by virtue of rent note dated 1.6.1979. Punjab Wakf Board, on the other hand, filed the second suit claiming itself to be the owner of the shop in dispute being part of mosque No. SA 759. Parties led their evidence in support of their case. Both the Courts below, after appreciating the evidence on record, held that the mosque might have been in existence near the house of Bansidhar prior to the year 1947 but the same stood abandoned after communal riots in the country in the year 1947. There was no evidence on record to suggest that the mosque was ever used as such by any Muslim. Punjab Wakf Board placed reliance on notification Ex.PW-9/A dated 28.8.1970 to substantiate its plea that Masjid mentioned at SA No.759 was declared a Wakf property. However, mere publication of a property to be Wakf property in the R.S.A.No. 653 of 2007 (O&M) 12 Gazette is not the conclusive proof. Learned Additional District Judge has observed that in the said notification the measurement or boundaries of the masjid or location had not been mentioned. It was further required to be proved that the property was either dedicated or used for religious/charitable purposes. The plaintiffs had failed to establish that the suit property had ever been dedicated or had been used as a mosque and hence, there was no evidence to the effect that the Punjab Wakf Board had ever come in possession of the property in dispute. It has been noticed by the Courts below that earlier the judgment was passed in Civil Suit No. 36 of 1971 titled Punjab Wakf Board vs. Prabhati and it was held that the Punjab Wakf Board had failed to establish that the property bearing S.A. No. 759 was part of Wakf property. Rather Prabhati was held to be in legal occupation of the disputed property. Consequently suit filed by Punjab Wakf Board was dismissed. Vide order dated 25.1.1972 Ex.DC, suit No.45 of 1971 titled as Punjab Wakf Board v. Giyarsi was dismissed in default. It has been further observed by the learned Additional District Judge that in site plan Ex.PW-4/2, mosque had been shown on the Southern side of the property of Bansidhar. However, no area of the mosque has been mentioned in the site plan. Learned Additional District Judge, after appreciating the various site plans placed on record has observed that all the site plans differ from each R.S.A.No. 653 of 2007 (O&M) 13 other and hence, there was no cogent evidence to the effect that the mosque was ever used as such by any Muslim. It has also been observed by the Learned Additional District Judge that in Ex. PW9/A, the property of the mosque as comprised in SA No.759 was in unauthorised possession of one Dhansi Ram and thus, Punjab Wakf Board never came in possession of the property in question. Rent deed executed between Dhansi Ram and Punjab Wakf Board and the order of allotment issued by Punjab Wakf Board did not relate to SA No.759 but related to EP No.1279. There was no evidence on the record to show that EP No.1279 and SA No.759 were the same. Thus, both the Courts below, after appreciating the evidence on record, held that the property in dispute was not established to be Wakf property nor the Punjab Wakf Board had ever come in possession of the suit property. The said finding of fact arrived at by the Courts below does not call for any interference by this Court in appeal. No substantial question of law arises in these regular second appeals. Accordingly, the same are dismissed. (SABINA) JUDGE September 10, 2009 anita