CR No.6069 of 2008 1 IN THE HIGH OF PUNJAB AND HARYANA AT CHANDIGARH CR No.6069 of 2008 (O&M) Date of Decision: 24.08.2010 Punjab Wakf Board ..Petitioner Vs. Pawan Kumar ..Respondent Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Dinesh Goyal, Advocate, for the petitioner. Mr.Pankaj Katia,Advocate, for the respondent. --- Vinod K.Sharma,J. (Oral) CM No.5526-CII of 2010 For the reasons stated in the application civil misc. is allowed. The order dated 6.1.2010 is recalled and the case is restored to its original number. CR No.6069 of 2008 This revision petition under Article 227 of the Constitution of India read with section 83 (9) of the Wakf Act, 1995 is directed against the CR No.6069 of 2008 2 order dated 7.6.2008 passed by the Punjab Wakf Board Tribunal, Bathinda, (for short the Tribunal), whereby the application moved by the petitioner under Order 39 Rules 1 and 2 of the Code of Civil Procedure (for short the Code) has been ordered to be dismissed. The petitioner/plaintiff filed a suit for possession with consequential relief of permanent injunction restraining the defendants/respondents from putting lintel on the disputed property. The petitioner claimed to be the owner of the suit property in pursuance to gazette notification dated 7.8.1971. The application was contested on the ground of suppression of material facts. The case set up by the defendants/respondents was, that they were bona fide purchasers of suit property vide registered sale deed No.225 dated 9.4.2007 from the previous owner. The vendor of the defendants/respondents had purchased the property vide registered sale deed dated 6.6.1974. Defendants/respondents, therefore, were put in possession of the suit property under registered sale deed. It was denied, that the property was part of Ahata Niaz Mohd. Idgah. Learned Tribunal, on appreciation of revenue record placed on record, came to the conclusion, that on the date of issuance of notification the property was shown to be in possession of Jagdish Rai Mittal, Advocate. Learned Tribunal by placing reliance on the judgment of this court in the case of Punjab Wakf Board Vs. Natha Singh 1988 PLJ 10, The Board of Muslim Wakfs Rajasthan Vs. Radha Krishan & Ors. AIR 1978 SC 289 recorded a finding that when non-muslim in possession of a property CR No.6069 of 2008 3 declared as Wakf by publication of notification under section 5 (2) of the Wakf Act, he is not bound by the terms of the notification as rights of the person could not be taken away merely by issuance of a notification. The learned Tribunal further held, that plea of bona fide purchaser would be available to the defendants/respondents. The learned Tribunal further held, that in order to prove that the property was wakf property, it has to be established that the property was dedicated for the purposes recognized by Muslim Laws as pious, religious or charitable but there was no material on record till date to prove dedication. The learned Tribunal held, that the petitioner did not have a prima facie case nor the balance of convenience was in favour of the petitioner. The learned Tribunal further held, that the respondents could not be restrained from raising construction on the property belonging to them and dismissed the application. The only contention raised by the learned counsel for the petitioner was, that by way of impugned order a finding has been recorded divesting the plaintiff/petitioner of the property belonging to it. This contention is misconceived, as the finding recorded on an application under Order 39 Rules 1 and 2 of the Code cannot be said to be the final finding of fact, as the learned court while deciding the application under Order 39 Rules 1 and 2 of the Code is only to form a prima facie opinion on the available material. The learned court can grant temporary injunction, only on being satisfied, that the plaintiff has a prima facie case, balance of convenience in favour of the plaintiff/petitioner, and that the plaintiff would CR No.6069 of 2008 4 suffer irreparable loss and injury if temporary injunction is not granted. The learned Tribunal found that none of these ingredients stood satisfied on available material. The final decision will be taken only after the parties are allowed to lead evidence. No ground is made out which may call for interference by this court in exercise of revisional jurisdiction. No merit. Dismissed. (Vinod K.Sharma) 24.08.2010 Judge vsa/rp