RSA No.5484 of 2003 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. RSA No.5484 of 2003 Date of Decision: 13.07.2009 Gurbir Singh ...Appellant VERSUS Punjab WAKF Board and others ...Respondents CORAM: HON'BLE MR.JUSTICE AJAY TEWARI Present: Mr. P. K. Longia, Advocate for Mr. B. R. Mahajan, Advocate for the appellant. Mr. Arun Palli, Sr. Advocate with Mr. Parminder Singh Kanwar, Advocate for respondent No.1. *** AJAY TEWARI J. This appeal has been filed against concurrent judgments of the Courts below decreeing the suit of the appellant for possession of the properties on the ground that it was a WAKF property. Learned counsel for the appellant has argued that in earlier litigation between him and the respondent No.3 it was conclusively held that he was in possession. However, he is not in a position to deny that respondent No.1 was not a party to the earlier litigation and thus the present suit would not be barred by the doctrine of res judicata. The second argument made by learned counsel for the appellant is that the land was never dedicated exclusively as a Muslim WAKF but had been dedicated by RSA No.5484 of 2003 -2- his forefathers as a cremation/burial ground to be used by all communities and that after 1947, when all the Muslims migrated to Pakistan, his predecessors resumed their possession over the land in dispute. Thereby it should be held that any dedication made came to an end. Learned counsel has proposed the following questions:- i) “Whether the findings of the courts below to the effect that property in dispute is WAKF property, are perverse being contrary to evidence on the record and cannot be sustained? ii)Whether the finding of the courts below to the effect that the suit is within time, is against law and cannot be sustained? iii)Whether the decrees for possession as well as injunction are contradictory in nature and can be sustained? iv)Whether a decree for possession can be passed in the absence of any issue in this regard?” As regards question No.(i), the same is a pure question of fact. Both the courts below have primarily considered the fact that right from the year 1945-46, the property in dispute has been shown as a Kabristan to hold that its dedication as a Muslim WAKF cannot be doubted. Learned counsel has also not been able to point out any evidence which may have been led by the appellant with regard to the allegation that the property was not dedicated only for a Muslim graveyard but was given as a graveyard-cum- cremation ground. In the circumstances, I am not persuaded to hold that RSA No.5484 of 2003 -3- findings of fact recorded on this issue are either based on no evidence or that the same is based on such misreading of evidence so as to render the same perverse. With regard to question No.(ii), it is trite to state that firstly there is no law barring any action to claim possession on the basis of title and consequently the courts below have rightly invoked Section 10 of the Limitation Act. Learned counsel for the appellant has argued that the WAKF Board sought to claim title only on the basis of the notification declaring the property to be a WAKF property issued in the year 1971. He has relied upon the judgment in the case of Punjab WAKF Board v. Natha Singh reported as 1988 RLR 45 where a Division Bench of this Court has held that the mere declaration under Section 5(2) of the WAKF Act, 1954 is not binding on a third person. This point has also been considered by the courts below and it has been held that it is not merely on this basis of notification that the WAKF is claiming title but also on the basis of age old description of property as Kabristan. As regards question No.(iii), learned counsel has not been able to show me any judgment which lays down that a suit for injunction with the alternate relief of possession can never be maintainable in any circumstances. As regards question No.(iv), it is covered by question no.(iii). In my opinion, once this issue is held in favour of the plaintiff-respondents, no prejudice can be held to have been caused to the appellant by non framing of the issue regarding entitlement of the respondents for possession. RSA No.5484 of 2003 -4- Learned counsel has also argued that under Section 85 of the WAKF Act, the Civil Court has no jurisdiction towards entertaining the dispute. Learned Sr. Advocate appearing on behalf of respondent No.1 has however brought to my notice that the first tribunal constituted under Section 82 in the State of Punjab came into existence only after the civil suit filed by the Board was decreed. In the circumstances, it cannot be held that the civil court had no jurisdiction to decide the suit. Thus holding all the questions against the appellant, I dismiss the appeal. No costs. As the main case has been disposed of therefore all the pending civil miscellaneous applications in the case also stand disposed of. ( AJAY TEWARI ) July 13, 2009 JUDGE ashish