RSA No.3512 of 2008 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3512 of 2008 (O&M) Date of Decision: 2.2.2009 Punjab Wakf Board & Ors. ..Appellants Vs. Vijay Kumar & Anr. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.A.R.Takkar, Advocate, for the appellants. Vinod K.Sharma,J. (Oral) This regular second appeal is directed against the judgments and decree dated 8.6.2006 and 7.6.2008 passed by the learned courts below decreeing the suit of the plaintiff/respondents for declaration that the entries of grave yard (Gairmumkin Kabristan) in column No.8 of the Jamabandi for the year 1987-88, 1992-93 and 1997-98 are illegal, void and that the plaintiff is the owner/co-sharer of the agricultural land measuring 3 kanals 9 marlas out of 6 kanals 9 marlas bearing Khasra No.33//8, Khewat No.7/5 and Khatoni No.8, situated in Mauza Nagawan Sarkar, Tehsil RSA No.3512 of 2008 (O&M) 2 Jagadhri District Yamuna Nagar. The plaintiff further claimed that she was in cultivating possession of the suit land along with other co-sharers through her tenant. Relief claimed was that the entries are liable to be substituted as 'Bagh Barani'. Consequential relief of permanent injunction was also sought restraining the defendant-appellants from interfering in the possession of the plaintiff as co-sharer. The plaintiff also claimed a sum of Rs.30,000/- along with interest at the rate of 18 per cent per annum from the date of cutting and removing the standing trees till the date of payment. Suit was contested by the defendant-appellants on the plea that the civil court had no jurisdiction to entertain and try the suit in view of the bar contained under section 83 of the Wakf Act, 1995. Learned courts below on appreciation of evidence on issue No.1 held that the entries of grave yard (Gair Mumkin Kabristan) in column No.8 of the Jamabandi for the year 1987-88 and subsequent years were illegal and void as the entries were made in violation of instructions of the Financial Commissioner. They were not binding on the plaintiff. The learned courts below also held that the plaintiff was owner/co-sharer of agricultural land measuring 3 kanals 9 marlas of Khasra No.33/8 situated in Mauja Nagawan Sarkar. The plaintiff was found to be in possession through tenant. Iissue No.6 qua jurisdiction of the civil court was decided against the appellant-defendants. Issues No. 8 to 11 were also decided against the appellant-defendants. Consequently, the suit was decreed. RSA No.3512 of 2008 (O&M) 3 Learned courts below held that the revenue entries were changed on 11.10.1983, but it was held that the entries have been changed without observing procedure prescribed and without issuing notice to the parties concerned. In support of this conclusion reliance was placed on the judgment of this court in the case of Megh Raj and others Vs. Raghubir Singh & Ors 1985 PLJ 316. The learned courts below on appreciation of evidence held that the appellants failed to prove that there existed any grave yard over the land in dispute. Learned counsel for the appellants challenged the judgments and decree on the following substantial questions of law:- “1. Whether the suit filed by the plaintiff/respondent was barred under section 83 of the Wakf Act? 2. Whether the courts below were justified in ignoring the provisions of Section 85 of the Wakf Act which bars the jurisdiction of the Civil Court? Learned counsel for the appellants contends that the learned courts below committed an error in view of the provisions of Section 83 of the Wakf Act as the dispute raised in the suit could only be adjudicated by the Tribunal set up under the Wakf Act. However, this plea of the learned counsel for the appellants cannot be accepted. Learned courts below rightly came to the conclusion that mere wrong entry in the revenue record could not vest the property RSA No.3512 of 2008 (O&M) 4 with Wakf Board. Admittedly no notification has been issued by the State Government including the property in dispute to be wakf property. The learned courts also held that no inquiry as envisaged under the Act was held and that there was also violation of Section 27 of the Old Act and section 40 of the later Act. In support of the findings the learned courts below placed reliance on the judgment of Hon'ble High Court of Madras in the case of Tamilnadu Wakf Board Vs. Hathija Ammal (Dead) by L.Rs. 2002 (2) Latest Judicial Reports 111. The contentions raised by the learned counsel for the appellant cannot be accepted. Once it is proved on record that no procedure under the Act was adopted to declare the property to be wakf property, and the revenue entries were found to have been changed without following procedure prescribed, it could not be said that the civil court did not have jurisdiction, to attract the bar under section 83 of the Wakf Act. The substantial questions of law as claimed therefore, do not arise for consideration of this court. Concurrent finding of fact recorded on appreciation of evidence is not open to challenge in regular second appeal. Dismissed. 2.02.2009 (Vinod K.Sharma) rp Judge