R.S.A. No. 1759 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 1759 of 2009 (O&M) Date of Decision : 27.4.2009 Haryana Wakf Board .......... Appellant Versus Mahinder & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. A.R. Takkar, Advocate for the appellant. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 1.8.2008, passed by the learned Courts below, vide which suit for declaration, filed by the plaintiff / respondents, stands decreed. The plaintiffs brought a suit, seeking declaration, that sanction of mutation No. 646, in favour of defendant No.2, in pursuance to gazette notification No. 42 dated 17.10.1970, and subsequent entries in the revenue record, qua land bearing khasra No. 30/25(8-0), situated in village Dhad, Tehsil and District Hisar are illegal, null and void, and not binding on the , rights of the plaintiffs, and further that the revenue authorities were liable to correct the revenue entries. A consequential relief of permanent injunction, restraining the defendant No.2, from interfering in possession of the plaintiff and defendant R.S.A. No. 1759 of 2009 2 No.1, over the suit land or alienating or creating any charge thereon, was also prayed for. The plaintiffs are the proprietors of the village Dhar, and since the inception of the village, there are two Panas in the village i.e. Pana Nehra and Pana Beniwal. The suit was filed, in representative capacity, in the interest of 20 families of Nehra, who were interested in the subject matter of the suit. The defendants claimed the property to be Wakf property, on the basis of gazette notification, and also entries in the revenue record, showing the property to be 'Makbuza Gosiyan Kabristan', whereas the property was shown under the ownership of Shamlat deh, in the revenue record. It was also the case of the defendant / respondents, that even before partition, the property was used by Muslims, as graveyard. The plea, that there has been violation of Sections 4, 5 & 6 of the Wakf Act, in recording the property to be Wakf property, was denied. The property in dispute was said to be reserved as graveyard, and used by the Muslim population. Defendant No.1, supported the case set up by the plaintiff / respondent. The case was also set up, that property has been described as Wakf property, in view of the gazette notification dated 17.10.1970, thus, the plaintiff / respondents have no right or interest in the property. On the basis of property being described as Kabristan, the appellant / defendant No.2 claimed the ownership thereon. R.S.A. No. 1759 of 2009 3 After filing of the replication, the learned trial Court framed the following issues :- 1. Whether the sanctioning of mutation No. 646 in favour of the defendant No.3 in pursuance of gazette No. 42 dated 17.10.1970 and subsequent jamabandi for the year 1987 and 1992-93 on the basis of said mutation No. 646 in respect of land bearing khasra No. 30/25(8-0), situated in village Dhad, Tehsil and District Hisar is wrong, illegal, nullity and void, ab initio and is based upon collusion, against the mandatory provisions of law ? OPP 2. If issue No.1 is proved, whether the revenue entries are liable to be corrected in accordance with the previous revenue entry relating to ownership and possession ? OPP 3. If issues No.1 and 2 are proved, whether the plaintiff is entitled to an injunction against the defendant No.2 from interfering in the physical possession of the plaintiff and defendant No.1 as owner and their dispossession from the suit land and transferring or alienating the suit property in any manner ? OPP 4. Whether the plaintiffs are entitled to an injunction restraining the defendant No.2 from changing the nature of the suit property in pursuance of void and null entry forcibly and illegally, without the due process of law ? OPP 5. Whether the suit of the plaintiff is not maintainable in present form ? OPD 6. Whether the plaintiffs have no locus standi to file present suit ? OPD R.S.A. No. 1759 of 2009 4 7. Whether the civil court has got no jurisdiction to try and entertain present suit ? OPD 8. Whether the plaintiff has no cause of action to file present suit ? OPD 9. Whether the plaintiff is estopped by his own act and conduct from filing present suit ? OPD 10. Whether the plaintiff has not complied with the provisions of Order 1 Rule 8 CPC ? OPD 11. Whether the plaintiffs have not come to the Court with clean hands ? OPD 12. Whether the suit of the plaintiff is time barred ? OPD2 13. Whether no notice under Wakf Act has been given to the defendant No.2 ? OPD No.2 14. Relief.” The learned trial Court dismissed the suit filed by the plaintiff / respondent. However, in appeal the judgment and decree passed by the learned trial Court has been reversed by recording the following finding :- “16. So as discussed earlier a perusal of the recital in the jamabandi for the year 1955-56 shows that it was left as a “Kabristan Gosaiyan” and the evidence led by both the parties shows that it was never used by the Muslims as their Kabristan. The word 'Gosaiyan' itself does not refer to the community of Muslims rather the word 'Gosaiyan' refer to the person of Hindu community. The Gram Panchayat was recorded as owner since 1955-56. More so, there was no notice before change of mutation given to the Gram Panchayat. The mutation by itself does not create any title. The nature of the property as Wakif by the user is also not proved on the file. Therefore, the necessary ingredients to make disputed R.S.A. No. 1759 of 2009 5 property merely on the basis of Kabristan cannot be treated as a Wakf property. Thus, the learned trial court failed to appreciate the evidence on the record and the findings in this regard is liable to be modified and the impugned mutation No. 646 is set aside.” The learned counsel for the appellant contends that this appeal raises the following substantial question of law for consideration :- “Whether the judgment and decree passed by the learned lower appellate Court, is outcome of misreading of documentary evidence, showing the property to be graveyard ? In support of the substantial question of law, the learned counsel for the appellant contends, that though previously the property was recorded as “Kabristan Gosaiyan”, however, after consolidation, it was shown to be Kabristan, therefore, the property vested in the Haryana Wakf Board, and no fault could be found with the notification issued in this regard, therefore, the learned lower appellate Court was not justified, in reversing the finding recorded by the learned trial Court. It is the contention of the learned counsel for the appellant, that the learned lower appellate Court misinterpreted the jamabandi placed on record by way of documentary evidence. There is no force in this contention. The learned lower appellate Court rightly held that “Gosaiyan” are not Muslims ,therefore, the property reserved for them, could not be treated to be Wakf property, even otherwise, there has been violation of provisions of the Act, in changing the R.S.A. No. 1759 of 2009 6 revenue entries, in favour of the appellant / defendant No.2 by not complying with Sections 4, 5 & 6 of Wakf Act. The substantial question of law referred to above deserves to be answered against the appellant, and in favour of the respondent / defendant. The appeal is also accompanied by an application for condoning the delay of 127 days in refiling the appeal. The grounds taken for seeking the condonation of delay reads as under :- “That thereafter the RSA got misplaced in the stack of old/ closed briefs in the office of the counsel for the appellant. However, the same after thorough search could be traced now and is being filed and, therefore, a delay of 127 days has occurred in refiling the same.” However, this plea of the learned counsel for the applicant / appellant cannot be accepted for condoning the delay of 127 days, in view of the law laid down by this Court in the case of Krishan Dev Dhiman Vs. Mahesh Bhatia & others 2008(4) P.L.R. 23. Consequently, this appeal is dismissed on merit, as well as being time barred. 27.4.2009 ( VINOD K. SHARMA ) 'sp' JUDGE