C. R. No. 851 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : C. R. No. 851 of 2009 (O&M) Date of Decision : August 16, 2010 Punjab Wakf Board, Jalandhar .... Petitioner Vs. Nagar Panchayat Shahkot, District Jalandhar .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Denesh Goyal, Advocate for the petitioner. Mr. Amit Singh, Advocate for the respondent. Mr. J. S. Chandail, Advocate for applicant – Mohan Lal. * * * L. N. MITTAL, J. (Oral) : Plaintiff Punjab Wakf Board has filed the instant revision petition under Section 83 (9) of the Wakf Act, 1995 read with Article 227 of the Constitution of India impugning judgment dated 01.12.2008 passed by learned Additional District Judge-cum-Wakf Tribunal, Jalandhar in Civil Suit No.14 of 2002, instituted by petitioner against respondent Nagar Panchayat, Shahkot, thereby dismissing the plaintiff's suit. C. R. No. 851 of 2009 (O&M) 2 The plaintiff-petitioner alleged that the suit property was previously owned by Panchayat Deh and was in possession of Ahle Islam. Government of India, vide notification dated 06.02.1971, transferred the suit land to Punjab Wakf Board i.e. plaintiff and thus, the suit land was transferred from Panchayat Deh to Wakf Board. However, there was clerical error in the notification mentioning khasra number of the suit land as `14' instead of khasra no.13. However, the said error was corrected vide subsequent notification dated 26.02.1994. The plaintiff thus claimed to be owner in possession of the suit land measuring 11 kanals 14 marlas comprising of khasra no.13 and sought declaration to this effect. The plaintiff also sought permanent injunction restraining the defendant from alienating the suit property and from interfering in plaintiff's peaceful possession thereon through its Pattedar (lessee). The defendant Nagar Panchayat repudiated the claim of the plaintiff and pleaded that defendant is owner in possession of the suit property. The defendant's possession was through its tenant Rajinder Lal. On eviction petition filed by the plaintiff, Rajinder Lal was ordered to be ejected from the suit land. However, one Mohan Lal came forward and claimed to be tenant over the suit land under the plaintiff-petitioner. Ownership of the plaintiff over the suit land was controverted. Learned Wakf Tribunal, vide impugned judgment dated 01.12.2008, dismissed the plaintiff's suit. Feeling aggrieved, the plaintiff C. R. No. 851 of 2009 (O&M) 3 has preferred the instant revision petition. I have heard learned counsel for the parties and perused the case file. Mohan Lal aforesaid has moved C. M. No. 15244-C-II of 2009 under Order 1 Rule 10 of the Code of Civil Procedure for becoming party to the revision petition alleging that the applicant is lessee in possession of the suit land under the plaintiff-petitioner. Learned counsel for the applicant vehemently contended that interest of the applicant is involved in the case and therefore, he is necessary party to the revision petition as he is in possession of the suit land as lessee under the plaintiff-petitioner. I have carefully considered the aforesaid contention, but find no merit therein. Applicant Mohan Lal even appeared as witness in the trial court and thus, he was aware of the pendency of the suit. Learned counsel for the applicant also stated that defendant Nagar Panchayat had filed eviction petition against applicant Mohan Lal in the year 2000. In spite thereof, the applicant did not make application in the trial court for becoming party to the suit. Consequently, at revisional stage, the applicant cannot be impleaded as party. Even otherwise, the applicant is not necessary party to the suit or the revision petition because the dispute is regarding ownership of the suit land and the applicant, as per his own version also, does not claim ownership of the suit land. Accordingly, the aforesaid application moved by Mohan Lal is dismissed. C. R. No. 851 of 2009 (O&M) 4 Learned counsel for the petitioner vehemently contended that notification issued under Section 5 (2) of the Wakf Act, 1954 (in short – the Act) is final and conclusive as the same was not challenged by the defendant-respondent within one year of the issuance of the notification, as required by Section 6 of the Act and therefore, in view of notification declaring the suit property to be Wakf Property, it is conclusively established that suit property is Wakf Property and therefore, plaintiff- petitioner is owner thereof. Reliance in support of this contention has been placed on judgment of Hon'ble Supreme Court in the case of Sayyed Ali and others vs. Andhra Pradesh Wakf Board, Hyderabad and others reported as AIR 1998 Supreme Court 972, judgment of Karnataka High Court namely Sayyad Badruddin and others vs. Karnataka State Board of Wakfs and others reported as 1995 (2) Cur. L. J. 429, three judgments of this Court in the cases of Punjab Wakf Board, Ambala Cantt vs. Punjab State through the Collector, Hoshiarpur reported as (1997-3) The Punjab Law Reporter 155, Punjab Wakf Board vs. Chhailu reported as 1986 P. L. J. 455 and Tara Singh and another vs. Financial Commissioner (Appeals), Punjab and others reported as (1994-1) The Punjab Law Reporter 155. On the other hand, learned counsel for the respondent contended that notification issued under Section 5 (2) of the Act is binding on Wakf Board or Mutwalli of the Wakf or any other person interested in C. R. No. 851 of 2009 (O&M) 5 the Wakf, but not on third party. Consequently, the said notification is not binding on the defendant-respondent. It was also contended that the plaintiff-petitioner has neither pleaded nor proved that the suit property was ever dedicated to any Wakf or it has become so by long user and consequently, the suit property is not proved to be Wakf property. In support of these contentions, learned counsel for the respondent has placed reliance on two judgments of this Court namely Punjab Wakf Board vs. Commissioner, Patiala Division and others reported as 1973 Revenue Law Reporter 467 and Punjab Wakf Board vs. Kartar Singh reported as 1987 P. L. J. 95 and also a judgment of Hon'ble Supreme Court in the case of Karnataka Board of Wakf vs. Anjuman-E-Ismail Madris-Un- Niswan reported as J. T. 1999 (5) S. C. 573. I have carefully considered the rival contentions. In the instant case, the petitioner-plaintiff has neither pleaded nor proved that the suit property was ever dedicated to any Wakf or that suit property had become Wakf property by long user. Section 3 (l) of the Act defines Wakf to mean permanent dedication of any movable or immovable property for any purpose recognized by Muslim law as pious, religious or charitable and it includes a Wakf by user and a Wakf-alal-aulad. In the instant case, however, the plaintiff-petitioner has not pleaded the suit property to be falling within the meaning of Wakf, as defined in Section 3 (l) of the Act nor there is any evidence to depict the same. On the contrary, revenue C. R. No. 851 of 2009 (O&M) 6 record produced in evidence depicted the suit property to be owned by Gram Panchayat (predecessor of the defendant) and subsequently, owned by the defendant and in possession of maqbuza malkan initially. There is thus no evidence of creation of Wakf relating to suit property by dedication or even by long user. On the contrary, the evidence depicts that it was neither dedicated to Wakf nor used as Wakf property. In the case of Karnataka Board of Wakf (supra), the Hon'ble Supreme Court held that Wakf is proved by dedication or user. Similar proposition of law was laid down in the cases of Punjab Wakf Board vs. Commissioner, Patiala Division and others (supra) and Punjab Wakf Board vs. Kartar Singh (supra). Consequently, in the instant case, the plaintiff has miserably failed to prove that suit property is Wakf property or that petitioner-plaintiff is owner thereof. As regards notification issued under Section 5 (2) of the Act, it has been held in the case of Punjab Wakf Board vs. Kartar Singh (supra) and also Punjab Wakf Board vs. Commissioner, Patiala Division and others (supra) that such notification is binding on Wakf Board or Mutawallis of Board and any other person interested therein, but is not binding on third party. Consequently, in the instant case, the notification issued under Section 5 (2) of the Act is not binding on the defendant-respondent. In the case of Sayyad Badruddin (supra), suit was instituted to challenge the notification issued under Section 5 of the Act, C. R. No. 851 of 2009 (O&M) 7 but the plaintiffs failed to prove their case. On the contrary, it was found that the suit property in that case had been used for religious purpose i.e. for mosque or burial ground or for maintenance of mosque from time immemorial. Accordingly, this judgment has no applicability to the facts of the instant case. Much emphasis on behalf of the petitioner was laid on the case of Sayyed Ali (supra). In that case, there was some suo motu inquiry by Tehsildar. It was held that finding of Tehsildar that property in dispute is not Wakf property is erroneous and without jurisdiction. In that case, Mutawallis managing the property involved in that case had executed long term lease in favour of the defendants. Thus, in that case, dispute was between Wakf Board and Mutawallis and in view thereof, the notification under Section 5 (2) of the Act was held to be binding on Mutawallis. In the instant case, however, the dispute of Wakf Board is with Nagar Panchayat and therefore, notification under Section 5 (2) of the Act is not binding on the defendant. Judgments in the cases of Punjab Wakf Board, Ambala Cantt vs. Punjab State through the Collector, Hoshiarpur (supra) and Punjab Wakf Board vs. Chhailu (supra) are not applicable because in those cases, there were jamabandi entries conclusively proving that the land in dispute was for the graveyard. In the instant case, revenue records depicts to the contrary. The plaintiff, on the other hand, has not even pleaded that the suit land was graveyard or was being used as such. There is also no pleading or evidence to depict that there is Muslim population in the C. R. No. 851 of 2009 (O&M) 8 Village, who may possibly use the suit land as graveyard. Consequently, these judgments are also not applicable. Judgment in the case of Tara Singh (supra) is also not applicable as it was judgment in writ petition and it was held that notification under Section 5 (2) of the Act can be challenged in Civil Court. From the aforesaid discussion, it emerges that the judgments relied on by counsel for the plaintiff-petitioner are not applicable to the facts of the instant case. On the other hand, judgments cited by counsel for respondent-defendant are fully applicable and notification issued under Section 5 (2) of the Act is not binding on the third parties including the defendant in the instant case, but is binding on Wakf Board, Mutawallis and persons interested in the Wakf. Except the notification, there is no pleading or evidence on behalf of the petitioner to prove that the suit property is Wakf property or that plaintiff-petitioner is owner thereof. Merely on the basis of notification, which stands rebutted by the revenue record, the suit property cannot be held to be Wakf property nor plaintiff-petitioner can be said to be owner thereof. There is, therefore, no illegality in the impugned judgment of the trial court warranting interference in exercise of revisional jurisdiction. The revision petition is thus found to be without merit and is accordingly dismissed. August 16, 2010 ( L. N. MITTAL ) monika JUDGE