R.S.A. No. 3120 of 1984 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A. No. 3120 of 1984 Date of decision: 04.05.2010 Shrimati Lakhwinder Kaur and others ....Appellants versus Sadar Anjuman Ahmediyya Qadian and another ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Arun Jain, Sr. Advocate, with Mr. Sunil Chadha, Advocate, for the appellants. Mr. M.L. Saggar, Sr. Advocate, with Mr. S.S. Khaira, Advocate, for the respondents. *** VINOD K. SHARMA, J. This is defendants' appeal against the judgment and decree dated 28.9.1984, passed by the learned lower appellate Court, decreeing the suit for possession of land measuring 33 kanals 1 marla situated in Qadian, Tehsil Batala, District Gurdaspur. The plaintiff/respondents filed a suit for possession of land measuring 33 kanals 1 marla comprised in khasra Nos.92 (12 kanals) and 94 (21 kanals 1 marla) situated in Qadian, Tehsil Batala, District Gurdaspur. The suit was filed against S/Sh. Balbir Singh and Amarjit Singh, and on death of Sh. Balbir Singh, Smt. Lakhwinder Kaur, Rammi and Bablu were brought on record as the legal representatives. The pleaded case of the plaintiff/respondents was, that the suit land belonged to Sadar Anjuman Ahmediyya Qadian. The land was R.S.A. No. 3120 of 1984 -2- being used as gair mumkin kabristan and as gair mumkin idgah by the Ahmediyya community for last over a century. Plaintiff No.1 i.e. Sadar Anjuman Ahmediyya Qadian, is a registered society, duly registerred under the Registration of Societies Act, 1860, whereas plaintiff No.2 Mirza Wazim Ahmad was its Nazir-ala, i.e. the Principal Secretary, Trustee and President and he had the right to file the suit. Sh. Sayeed Ahmad was general attorney of Sadar Anjuman Ahmediyya Qadian, having been appointed vide resolution No.344 dated 11.9.1961. It was the case of the plaintiffs, that the governing body of Sadar Anjuman Ahmediyya Qadian vide its resolution No.306 dated 2.12.1979 had authorised said Sh. Sayeed Ahmad to file the present suit. The case of the plaintiffs was, that Balbir Singh, defendant, on instigation, and with the help and connivance of defendant No.2, entered into illegal possession of the land for about last six years. That the defendants had no right, title or interest in the land in dispute, and that the possession of the defendants over the suit land was illegal and wrongful. It was also the pleaded case of the plaintiff/respondents, that entries in the revenue record, relating to the possession of the defendants were forged and fabricated by the defendants, in collusion with the revenue authorities. While entering into illegal possession of the suit land, the defendants also demolished the graves and damaged the idgah, thus, injured the religious feelings of the Ahmediyya community in general, and that of the plaintiffs in particular, for which separate legal action under the criminal law was taken by the State against the defendants. Plaintiff No.1 claimed right to manage/possess the suit land through its manager or mutwalli. It was claimed, that plaintiff No.1 R.S.A. No. 3120 of 1984 -3- being in lawful and in legal possession, had the legal right to occupy the land, whereas the defendants had no right to take forcible possession, and were bound to deliver the possession of the suit land to plaintiff No.1. But as the defendants had refused to accept the request of the plaintiffs, thus, the suit was filed. The suit was contested by the defendants by pleading, that the suit land did not belong to Sadar Anjuman Ahmediyya Qadian. It was also denied that the land was being used as gair mumkun kabristan and gair mumkin idgah by Ahmediyya community since about a century. It was denied that defendant No.1 was a registered society under the Registration of Societies Act, 1860. The factum, validity and genuineness of the registration of plaintiff No.1, as a registered society was denied. It was pleaded that plaintiff No.1 had no locus standi to file the suit, and that the suit by plaintiff No.1 was not maintainable. It was also denied that Sh. Sayeed Ahmad was attorney of plaintiff No.1. It was also pleaded that the suit was not validly filed and that the suit was not properly signed and verified. It was denied for want of knowledge, if plaintiff No.2 was Nazir-Ala or the Principal Secretary, Trustee and President of plaintiff No.1. His competence to file the suit was also denied. It was denied, that the suit property was a trust property. It was also denied, that the suit property belonged to the plaintiffs and their possession over the suit property was denied. It was pleaded that khasra No. 361 (present khasra No.92) and khasra No.363 (present khasra No.94) were previously owned by Sh. Bashir-U-Din Ahmad and others, who after partition of the country migrated to Pakistan and thereafter the said land vested with the custodian and eventually with the Central R.S.A. No. 3120 of 1984 -4- Government. It was the case of the defendant/appellants. That the plaintiffs in collusion and in connivance with the revenue and other officials concerned illegally and unauthorisedly got the name of plaintiff No.1 entered as owner in the relevant revenue record, without the sanctioning of any mutation in their favour. This act was alleged to be outcome of connivance with the revenue officials. The entries in the name of plaintiff No.1 as owner of the suit land were said to be false, baseless, wrong, incorrect, fictitious, void, inoperative, mala fide and not binding on the defendant/respondents, thus, were procured by secret, clandestine and underhand means in collaboration with the revenue and other officials concerned. It was denied that plaintiff No.1 was authorised to file the suit through resolution. It was also denied that specific authorisation was given to Sh. Sayeed Ahmad to file the suit on the basis of resolution of the society. It was denied that defendant No.1 had entered into possession in connivance with defendant No.2 for about six years. It was pleaded, that defendant No.2 had been unnecessarily dragged in litigation and his name deserved to be deleted from the array of defendants. It was denied, that defendant No.1 had no right, title or interest of any kind in the suit property. It was also denied that possession of defendant No.1 was illegal and wrongful. It was denied that entries in favour of defendant No.1 were forged and fabricated, by the defendants in collusion with the revenue authorities. The demolition of graves and idgah was also denied. It was denied, that the religious feelings of the community or plaintiffs were injured by the defendant/respondents. It was alleged that false criminal case was registered against the defendants but they were acquitted. It was asserted R.S.A. No. 3120 of 1984 -5- that the possession over the suit property was that of defendant No.1. Plaintiffs were said to be neither owner nor in possession of the suit property. Defendant No.1 claimed to be in possession of the suit property as tenant under its owner, since the partition of the country on a yearly rent of Rs.50/- (Rupees fifty only) per acre. It was denied, that suit land was used as kabristan or idgah. It was also denied the suit property was trust property. It was denied that plaintiff No.1 had any legal right to occupy the suit land. Allegations of forcible possession were also denied. It was denied that the defendants were liable to restore possession to the plaintiffs. Defendant No.1 claimed to be in lawful possession of the suit property, as tenant under its lawful owner and that the plaintiffs had no right, interest or title of any kind in the land. The suit was said to be not maintainable in the present form. The cause of action to file the suit was also denied. The suit was said to be beyond limitation, and further that the suit was not correctly valued for the purposes of court fee and jurisdiction. The suit was said to be bad for misjoinder of parties and cause of action. After filing of the replication, the learned trial Court framed the following issues: - “1. Whether plaintiff No.1 is a registered society? OPP 2. Whether plaintiff No.2 is President of plaintiff No.1 and is authorised to prosecute the case? OPP 3. Whether plaintiff is owner of property in dispute? OPP 4. Whether the plaint has been properly signed and verified and suit has been properly presented? OPP R.S.A. No. 3120 of 1984 -6- 5. Whether suit is properly valued for the purposes of court-fee and jurisdiction? OPP 6. Whether suit is bad for misjoinder or cause of action? OPD 7. Whether suit is bad for misjoinder of necessary parties? OPD 8. Whether defendant is in possession of suit land as tenant? OPD 9. If issue No.8 is proved whether plea of tenancy is vague and requires better particulars, if so its effect? OPP 10. Whether the suit is within time? OPP 11. Whether this court has no jurisdiction to try the present suit? OPD onus objected to. Objection over ruled. 12. Relief.” In support of the case, plaintiffs examined Fateh Mohammad as PW1, Iftkar Ahmad as PW2, Abdul Latif as PW3, Fazal Illahi Khan as PW4, Sharif Ahmad as PW5, Sayed Ahmad attorney of the plaintiff as PW6, Yamuna Dass as PW7 and also placed on record the copies of jamabandi Ex. P1 and Ex. P2, Khatoni Paimash Ex. P3, Khatoni Istmal Ex. P4, copy of judgment Ex. PA, copy of decree sheet Ex. PB, jamabandi Ex.PC, copy of statement Ex. PD, copies of khasra Girdawaries Ex. PE, PF, Ex. PG, copy of order Ex. PH, copy of registration certificate Ex. PW6/A, copy of memorandum of association Ex. PW6/B, copy of rules and regulations Ex. PW6/C, copies of list of members Ex. PW6/D, Ex. PW6/E, Ex. PW6/F and copies of dicuments Ex. PW6/G, Ex. PW6/H, copies of letters Ex.PW7/1 and Ex PW7/2. The defendant/appellants in their defence examined Harnam Singh, Qanungo, DW1, Virsa Singh, Office Qanungo, DW2, Gopal R.S.A. No. 3120 of 1984 -7- Dass, Girdawar, DW3, Tara Singh DW4, Amarjit Singh, defendant, DW5, Lakhwinder Kaur DW6 and placed on record jamabandi Ex. D1, khatoni istmal Ex. D2, copy of mutation Ex. D3, copy of order Ex. D2/A and jamabandi Ex. D4. The learned trial Court took up issues No.1, 2 and 4 together. On issues No.1, 2 and 4, the learned trial Court held, that in order to prove that plaintiff No.1 was a registered society, reliance was placed on registration certificate Ex. PW6/A. The copy of Ex. PW6/A was said to be a public document falling under Section 74(a) of the Evidence Act, 1872, therefore, certified copy was admissible in evidence, under Section 76 of the Evidence Act. The contention of the learned counsel for the defendants was, that Ex. PW6/A was not a public document, but was covered under Section 74(2) of the Evidence Act, therefore, it was required to be proved in terms of Section 78(6) of the Evidence Act. It was further the case, that as there was no certificate as required under Section 78(6) of the Evidence Act given on Ex. PW6/A, it was inadmissible in evidence and it could not be read in evidence. The contention was that, if this document was taken out of consideration, then it was not proved that plaintiff No.1 is a registered society. In the alternative it was contended, that even if the document was taken to be covered under Section 74(1) of the Evidence Act, still it would be inadmissible because requirement of Section 76 of the Evidence Act was not met. The learned trial Court considered the provisions of Section 74 as well as Section 78(6) of the Evidence Act, and held that the document Ex.PW6/A was neither certified by the notary public nor by any legal R.S.A. No. 3120 of 1984 -8- keeper thereof, furthermore the Indian Embassy had not appended the requisite certificate. The ingredients of Section 78(6), therefore, were also not fulfilled and Ex. PW6/A was, therefore, held to be inadmissible in evidence. The learned trial Court held that at the time of exhibiting the document, objection was raised by the learned counsel for the defendants, which was kept open. The learned trial Court on consideration of provisions of the Evidence Act held, that Ex. PW6/A was inadmissible in evidence and recorded a finding, that the plaintiff No.1 failed to prove that it was a registered society. The other limb of the arguments of the learned counsel for the plaintiffs, that in view of statement of PW6, that the original registration certificate was lost and the certified copy was admissible in evidence, was also not accepted, for the reason that before leading secondary evidence plaintiffs were required to prove its loss, and further prove that every available source was exhausted to bring the original to the Court. The learned trial Court did not accept the statement of PW6, with regard to loss of original. The learned trial Court held, that PW6 was not able to tell the date, month and year, or the number and description of the case in which the original certificate was said to have been given to the Government of India as deposed by him. The learned trial Court, therefore, held that it was not proved that the original was lost. The learned trial Court, further held that there was no evidence to prove that Ex.PW6/A was the correct copy of the original one. The learned trial Court held, that the grounds for leading secondary evidence were not proved. The plea that the certified copy could be taken into evidence, was also not accepted. The learned trial Court further held, R.S.A. No. 3120 of 1984 -9- that as Ex. PW6/A, was not attested by the Embassy of India, in Islamabad to be the true copy of original not it bore the certificate, as to in whose custody the original document was in Pakistan. It was also not proved who prepared copy Ex.PW6/A, it was, thus, not admissible in evidence. The contention, that after the partition of the country, plaintiff No.1 was required to get it registered in India and having not done so, plaintiff had failed to prove, that it was a registered society, was accepted. The provisions of Section 3 of the Societies Act were invoked to hold, that the plaintiffs had no locus standi to file the present suit. The learned trial Court held that if it was a registered society under the Societies Registration Act, then it was required to submit the list of managing body, the names, addresses and occupation of the Governors, Counsils/Directors etc. every year, but plaintiff No.1 failed to comply with the provisions of the Act. The learned trial Court, therefore, held, that there were different nomenclature of the society as given in Ex.PW6/A and Ex. PW6/B. In Ex. PW6/A there are no words “Punjab (India)” which are added on the copy of memorandum of Association Ex. PW6/B. In the later document, the name of District Gurdaspur was missing which was on Ex.PW6/A. The learned trial Court held, that plaintiff No.1 of its own, could not change the name of the society if plaintiff No.1 was registered society. Plaintiff No.2 was only a self-styled President, therefore, Ex. PW6/B to Ex. PW6/H had no significance. Therefore, in view of the evidence, the learned trial Court held, that the plaintiffs failed to prove, that they were mutwalli of the suit land and further that letters Ex. PW7/A and Ex.PW7/2 did not prove the R.S.A. No. 3120 of 1984 -10- appointment of plaintiff No.1 as mutwalli for the reason that in Section 11 of the Administration of Evacuee Property Act, 1950, there was no word “mutwalli”. The Central Government was, therefore, not competent to appoint plaintiff No.1 as “mutwalli” of the suit land. The learned trial Court held that the first letter was addressed by the Custodian Department, Punjab, to the District Rent and Managing Officer, Gurdaspur, stating that Central Government has appointed plaintiff No.1 as mutwalli, and on the basis of the letter Ex. PW7/1, the District Rent and Managing Officer, Gurdaspur, sent intimation to the Tehsildar, Batala (Ex. PW7/2). In both the letters, it was mentioned, that under Section 11, the Central Government had appointed plaintiff No.1 as mutwalli. The learned trial Court held, that under Section 11(1), it was within the competence of the Central Government, to exercise the jurisdiction to appoint trustees in place of evacuee trustees. The plaintiffs having failed to prove any document, showing that the Central Government exercised power under Section 11, by passing any general or special order in favour of plaintiff No.1, and also as under Section 11(1) there was no word “mutwalli”, the plaintiff No.1 could not be appointed as mutwalli. Under Sub-section 2 of Section 11, the appointment of mutwalli is when the evacuee property is of Wakf-alal-aulad. The learned trial Court, therefore, held, that no mutwalli could be appointed qua the suit land. The learned trial Court decided all these issues against the plaintiffs. On issue No.3, the learned trial Court did not accept the R.S.A. No. 3120 of 1984 -11- contention of the plaintiff/respondents that the ownership of the plaintiffs was proved by way of entries in jamabandi Ex. P1 and Ex. P2, in view of the deposition of DW1 to DW3, who were the revenue officials, and deposed that the ownership in the revenue record could be changed, only on the basis of mutation, allotment letter or repat roznamcha. It was also deposed by them, that till the preparation of “istmal” and during consolidation and even thereafter, there was no mutation, allotment or rapat roznamcha, on the basis of which the ownership could be transferred in the name of plaintiff No.1. The learned trial Court held, that PW6 rather admitted that there was no dedication or gift in favour of plaintiff No.1, nor there was any document to prove the ownership of the plaintiffs. The learned trial Court held, that in view of the evidence led, it is proved that entries in the “khatoni istmal” and the jamabandi Ex. P1 for the year 1965-66, were got incorporated by plaintiff No.1 in collusion with the revenue staff. The learned trial Court further held that original owners of the land were Bashiru Dun, Mohmad Ahmed, Bashir Ahmed and Sharif Ahmed, who migrated to Pakistan in 1947, and the suit land thereafter vested in the custodian, therefore, the ownership for the first time in the year 1965-66 could not be changed in favour of plaintiff No.1, without any mutation, “allotment letter” or “rapat roznamcha”. The learned trial Court held, that the entries Ex. P1 and Ex. P2, stood belied being incorrect entries. The learned trial Court held, that presumption of truth attached to the revenue entries stood negatived, by the testimony of the revenue officials examined by the defendants. The learned trial Court R.S.A. No. 3120 of 1984 -12- further held, that jamabandi Ex. D1 for the year 1943-44 showed the land in khasra Nos. 361 and 363 to be “kabristan” and “idgah pond”, which was not capable of cultivation, therefore, there was no presumption of title, in favour of custodian on migration of original owners to Pakistan. The learned trial Court held that the entries, therefore, could not be changed in the name of plaintiff No.1, without “allotment”, “mutation” or “rapat roznamcha”. The learned trial Court held, that the plaintiffs had failed, to prove their ownership qua the property in dispute. Issues No.5, 6, 7, 9, 10 and 11 were decided as not pressed. On issue No.8, the learned trial Court, on appreciation of evidence, held, that possession of Balbir Singh and now that of Lakhwinder Kaur, was not in the capacity of tenant, but as trespasser. The learned trial Court held, that the suit has been filed without any cause of action, as in the plaint it was pleaded that illegal possession was taken by Balbir Singh about six years prior to filing of the suit, accordingly in view of pleading the said period of six years came to year 1974, but PW1 to PW4 had deposed that Balbir Singh was in possession for for the past 10 years. The learned trial Court held that if this was taken into consideration then Balbir Singh was proved to come in possession in the year 1971. The learned trial Court held that the the evidence of the plaintiffs being not consistent, qua possession of Balbir Singh, the suit filed was, therefore, without any cause of action. Though the defendants were trespassers, but the custodian alone could file the suit for possession of the suit land. Issue No.8 was accordingly decided in terms as referred to above. R.S.A. No. 3120 of 1984 -13- In view of the findings on issues No.1, 2, 3, 4 and 8, the suit filed by the plaintiff/respondents was ordered to be dismissed. The plaintiff/respondents preferred an appeal against the judgment and decree passed by the learned trial Court. In appeal, the learned lower appellate Court, on consideration of the arguments raised by the respective parties, came to the conclusion, that there was no doubt, that Sadar Anjuman Ahmediyya Qadian was a registered society under the Societies Registration Act, as recited in the certificate of registration, the memorandum of association and copy of the rules of the Sadar Anjuman Ahmediyya Qadian, District Gurdaspur were shown to have been filed and registered. In the Diplomatic and Consular Officers Oath and Fees Act, 1948, the Consular Officer is defined to include Consul General, Consul, Vice Consul, Consular Agent, Proconsul and any other person authorised to perform the duties of Consul General, Consul, Vice Consul and Consular Agent. The learned lower appellate Court also referred to Section 3 of the Act to hold, that every Diplomatic or Consular Officer in any foreign country, or a place where he is exercising his function, administer any oath and take any affidavit and also do any notarial act which any Notary Public may do within a State. Every oath, affidavit and notarial act administered, sworn, or done by or before any such person shall be as effectual as if duly administered, sworn or done by or before any lawful authority in a State. Any document purporting to have been affixed impress or subscribed thereon or thereto, the seal and signature of any person authorised by this Act to administer an oath in testimony of any oath, R.S.A. No. 3120 of 1984 -14- affidavit or act, being administered, taken or done by or before him, shall be admitted in evidence, without proof of the seal or signature being the seal or signature of that person or of the official character of that person. The plea of the defendant/appellants, that authentication under Section 85 of the Evidence Act, was not mere attestation but means that the person authenticating is to assure himself, of the identity of the person, who had signed the instrument as well as the fact of execution was rejected for the said reason, that the presumption under the Diplomatic or Consular Officers Oath and Fees Act, unless rebutted, stands and the document could be admitted in evidence. The learned lower appellate Court held, that under Section 78(6) of the Evidence Act, in order to admit the documentary evidence, it was required to be certified by legal keeper of the original document and by the Consul General. Proof of this was required to be given by direct or circumstantial evidence. The learned lower appellate Court, on appreciation of respective contentions, recorded a finding, that it stood clearly proved that Sadar Anjuman Ahmediyya Qadian, District Gurdaspur, was a society registered under the Societies Registration Act, in June, 1906. The certified copy of the certificate of registration, was issued by the Assistant Registrar, Office of the Registrar, Joint Stock Companies, Punjab (Pakistan), who attested it to be true copy. It was also authenticated by Embassy of India, Islamabad. The learned lower appellate Court on appreciation of evidence held, that there was a presumption regarding official acts, and in case, the defendant/appellants,