C.R. No. 4357 of 2009 1 IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH C.R. No. 4357 of 2009 (O&M) Date of Decision :4.8.2009 Tilak Raj alias Abdul Gafoor .......... Petitioner Versus Kashmir Singh & others ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present : Mr. Parminder Singh, Advocate for the petitioner. **** VINOD K. SHARMA, J. (ORAL) This revision petition is directed against the order dated 4.4.2009 passed by the learned Tribunal, Kurukshetra, constituted under the Wakf Act. The plaintiff / petitioner filed a suit for possession as well as permanent injunction claiming to be a Muslim by religion, and thus, having interest, in the property in dispute. The case pleaded by the plaintiff / petitioner was that the suit property is under the ownership of defendant No.3 i.e. the Haryana Wakf Board Ambala Cantt. and is recorded as graveyard / Kabristan, measuring 10 Kanal 9 marlas. It was the case of the plaintiff / respondent that the suit land was reserved for graveyard for Muslim community and predecessors of the petitioner / plaintiff used to bury their deads in the said Kabristan. It was claimed that respondents have no right, title or interest in the suit property C.R. No. 4357 of 2009 2 and they have taken illegal possession of the suit land. It was also pleaded that the suit property has been wrongly got mutated as “Gair Morushi” in collusion with the revenue authorities. The possession of the defendants was said to be illegal, null and void and not binding on the rights of ownership of defendant No.3. It was also the case of the plaintiff, that the entries in the revenue record have been made without knowledge of defendant No.3 i.e. the true owner. It was also the case of the plaintiff that though he had approached defendant No.3 to watch its interest but it did not take any steps, thus, the suit. On notice, defendants appeared and filed written statement by taking preliminary objections that the plaintiff / petitioner has no locus standi to file and maintain the suit as he was neither owner nor in possession of the suit property. It was also the case pleaded that the suit property belongs to defendant No.3 i.e. the Haryana Wakf Board. The defendants / respondent were paying 'Patta' money / lease money regularly. The receipt of payment of Rs. 6,000/- ( Rupees six thousand only ) on 10.5.2007 for the year 2007-08, was also produced, qua the agricultural land measuring 9 Kanals. The said agricultural land was 'chahi', and this stood proved by the revenue record. It was also pleaded and proved that even in the previous year lease money was paid by defendants No.1 & 2 to defendant No.3. Other objections qua maintainability were also taken. The learned Tribunal, on appreciation of evidence has recorded a finding that as per the revenue record the total land measuring 10K-9M was 'Chahi' land except land measuring 9 Marlas as per the jamabandi Ex.P- C.R. No. 4357 of 2009 3 1. It was also held that there was an admission by the Estate Officer of Haryana Wakf Board, that out of the total land 9 Kanals land was leased out to defendant No.1 and the payment on account of lease money was being made by defendant No.1. The entry of the land measuring 9 Kanals in revenue record was Chahi and not Kabristan. It was also proved on record that the lease money for the year 2007-08 was also sent but not accepted. The learned Tribunal, thus, recorded a finding that the plaintiff / petitioner has not been able to prove that he was entitled to possession of the suit land or he was entitled to relief of permanent injunction against the defendants. As defendant No.3 was admittedly owner of the land, whereas defendants No. 1 & 2 were in possession of the suit property on payment of lease money on the day of filing of the suit. The nature of the land was also “Chahi' and not “ Kabristran”. Even on issue No.3, it was held that though Haryana Wakf Board was made a party the statutory notice envisaged under Section 89 of the Act was not issued by the plaintiff / petitioner before filing the suit. The suit was also held to be not maintainable for want of notice. In view of the findings recorded above, the learned Tribunal dismissed the suit filed by the plaintiff / petitioner. The learned counsel for the petitioner challenged the impugned order primarily on the ground that prior jamabandies showed that the land to be “Kabristan”. It is settled law that once a “Kabristran” is always a “Kabristan” and, therefore, the petitioner being Muslim had interest in the property, which was not being looked after by respondent No.3 properly. This plea cannot be accepted. Though, the proposition raised C.R. No. 4357 of 2009 4 cannot be disputed. However, in the present case on the basis of evidence on record and admission made by defendant No.3 it was proved, that the land in dispute was not Kabristan, but Chahi land under the ownership of defendant No.3. The land was leased out to defendants No.1, who was regularly paying the lease money. It was not even the case of the plaintiff / petitioner that he was owner or in possession. The learned Tribunal held the possession of defendant No.1 was legal and rightly dismissed the suit. No ground for interference is made out. Dismissed. 4.8.2009 ( VINOD K. SHARMA ) 'sp' JUDGE