IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Regular Second Appeal No.4677 of 2009 (O&M) Date of decision: 22nd July, 2011 Nazir Mohd. and another … Appellants Versus Nirmal Kaur … Respondent CORAM: HON’BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Pawan Kumar Mutneja, Advocate for the appellants. None for the respondent. Mr. S.K. Jain, Advocate for Punjab Wakf Board. KANWALJIT SINGH AHLUWALIA, J. (ORAL) Present regular second appeal has been filed by defendants to the suit. The respondent-plaintiff instituted a suit seeking a perpetual injunction against the appellants-defendants restraining them from forcibly dispossessing her from the land in her possession. The suit was decreed and the appeal filed before the lower appellate Court by the appellants-defendants was also dismissed. Hence, present regular second appeal has been filed. The respondent-plaintiff had set out a case that the suit property vested in the Punjab Wakf Board (hereinafter referred to as, ‘the Board’). In the year 1984, the Board had executed Kabuliatnama in favour of her husband namely Joginder Singh and the land was given on lease at yearly Chakota of Rs.360/-. The lease was again renewed in the year 1985-86 at the same rate. Chakota for the year 1986-87 was also Regular Second Appeal No.4677 of 2009 (O&M) paid. It was further pleaded that husband of the respondent-plaintiff planted Kikkar trees in the suit land and the same is being used for grazing cattle and that since the year 1984 tenancy rights are being enjoyed by the respondent-plaintiff and she is in continuous possession of the suit land. Upon notice, appellants-defendants caused appearance. They stated that the suit land is a graveyard and any Kabuliatnama executed or renewed by the Board carries no value as the graveyard could not be leased-out. It was further stated that a truck load of bricks belonging to Muslim community of the village was lying at the spot. It was further pleaded that one Satpal had got a lease deed prepared in his favour from the Board in the year 1991 but on the representation of Muslim community the lease was cancelled by the Secretary of the Board. It was further pleaded that in October, 1991 Nazir Mohd.- defendant No.1 had filed an application before the Tehsildar Kharar for correction of the entry in the Khasra Girdawari. It was stated in the application, wrongly the name of Joginder Singh has been entered into the column of Cultivation. It was further averred that the Assistant Collector, Kharar after hearing the parties had ordered correction of the Khasra Girdawari from the name of Joginder Singh since Rabi 1992 to the name of Ahele Eslam on 23rd November, 1992. An appeal was filed by the respondent-plaintiff which was dismissed by the Court of Collector, Kharar on 31st October, 1995. The respondent-plaintiff had filed replication in which the averments made in the written statement were denied and that of the suit were reiterated. The trial Court formulated following issues: “1. Whether the plaintiff is entitled to the permanent injunction as prayed for? OPP. 2. Whether the suit is not maintainable? OPD 2 Regular Second Appeal No.4677 of 2009 (O&M) 3. Relief.” The trial Court after taking the entire evidence into consideration noted that entry in the Khasra Girdawari has been corrected from the name of Joginder Singh to that of Ahele Eslam and the appeal filed against the same has been dismissed but the plaintiff is in possession of the suit land being a tenant. Therefore, issue No.1 was decided in favour of the respondent-plaintiff and against the appellants- defendants. Qua issue No.2 it was held that the civil suit is maintainable. Therefore, the trial Court decreed the suit of the respondent-plaintiff and appellants-defendants were restrained from interfering with the possession of the respondent-plaintiff. The Court further held that the respondent-plaintiff can be dispossessed in due course of law. The lower appellate Court had also dismissed the appeal preferred by the appellants-defendants. The Court primarily held that the respondent- plaintiff had proved on record certified copy of the lease deed Ex.P6 and in the jamabandi Ex.P5 husband of the respondent-plaintiff has been shown to be in possession of the suit land. In the jamabandi for the year 1985, the Board is owner of the suit land and in the column of Cultivation it is stated that the land is on Chakota of Rs.360/- per annum with Joginder Singh husband of the respondent-plaintiff. The Court held that the Board is competent to initiate proceedings for ejectment of the respondent-plaintiff and the appellants-defendants have no legal right to forcibly dispossess the respondent-plaintiff. The Court held that the possession of the respondent-plaintiff as a tenant on the suit land is fully established. The appellate Court upheld the findings given by the trial Court. It will be apposite to reproduce findings returned by the lower appellate Court: “13. In the case in hand, the respondent-plaintiff has sought the relief of perpetual injunction on the plea that the 3 Regular Second Appeal No.4677 of 2009 (O&M) property in dispute belongs to Punjab Wakf Board and the same was taken on lease by Joginder Singh, husband of the respondent-plaintiff on annual Chakota of Rs.360/- through Kabuliat-nama executed in favour of Punjab Wakf Board for the years 1984-85 and the same was renewed on the same yearly rent of Rs.360/- and the husband of the respondent- plaintiff had planted some kicker trees in the land in suit and now the respondent-plaintiff is using the suit land for the purpose of grazing cattle and even entries in the Girdwaries support her claim. The respondent-plaintiff has also placed on record copy of judgment Ex.P-2 and copy of Ex.P-3 passed by the Court of Shri B.C. Gupta, Sub Judge 1st Class, Kharar dated 14.5.1992 which shows that earlier one Satpal son of Bahal Singh tried to dispossess the plaintiff from the suit land and the suit filed by the respondent- plaintiff was decreed against said Satpal. The respondent- plaintiff has also placed on record certified copy of lease deed Ex.P-6 which also supports the case of the respondent-plaintiff. Ex.P-5 is the copy of jamabandi for the year 1985-86 and in the said jamabandi, Punjab Wakf Board is shown to be owner of the suit land and in the column of cultivation, the same is shown as on Chakota of Rs.360/- per annum with Joginder Singh. It is thus evident that only Punjab Wakf Board is competent to initiate proceedings for ejectment of the respondent-plaintiff and appellants- defendants have no legal right to forcibly dispossess the respondent-plaintiff from the land in suit. The possession of the respondent-plaintiff as tenant is fully established from the above discussed evidence and as such respondent-plaintiff has rightly been held entitled to the relief of permanent injunction restraining the appellants-defendants from forcibly dispossessing the respondent-plaintiff from the land in suit except in due course of law. As such, the findings recorded by the learned trial Court on this issue calls for no interference and the same are upheld.” 4 Regular Second Appeal No.4677 of 2009 (O&M) The affirmation of lower appellate Court to the above said findings returned by the trial Court is in consonance with the observations made by Hon’ble the Apex Court in ‘Rame Gowda (D) by LRs v. Varadappa Naidu (D) by LRs and another’ 2004(1) RCR (Civil) 519 that a person in settled possession of the property is entitled to injunction and cannot be dispossessed forcibly, except in due course of law. In the present case, it is not disputed that the Board is true owner of the property. The appellants-defendants assert their concern qua the property being members of the Muslim community. Mr.Pawan Kumar Mutneja, Advocate appearing on behalf of the appellants-defendants, has stated that the graveyard could never be leased out and if a lease deed has been executed by the Board, the same is void ab-initio. Learned counsel has referred to Section 32 of the Punjab Wakf Act, 1954 to state that the overall superintendence of all properties and graveyards vests in the Board and if the Board had acted wrongly, it will have no effect upon the rights of the Muslim community which was using the suit land as a graveyard. In response to this argument, all this Court can say is that the appellants-defendants if so advised can avail legal remedy and seek a mandate from appropriate forum that the Board should maintain, preserve and not change the alleged nature of the suit property. But the same gives no right to the appellants-defendants to forcibly dispossess the respondent-plaintiff even though after expiry of lease, her possession over the suit land has become unauthorized. Whether the respondent-plaintiff is in possession of the suit land or not, is a question of fact. Both the courts below have given a concurrent finding of fact that the respondent-plaintiff is in possession of the suit land. The Punjab Wakf Board as per evidence of the case had executed the lease deed Ex.P6 in favour of Joginder Singh 5 Regular Second Appeal No.4677 of 2009 (O&M) husband of the respondent-plaintiff and he had been paying Chakota. This fact is reflected from the jamabandi Ex.P5. At this stage, Mr.Mutneja has submitted that the lease deed was executed in the year 1984 and subsequent thereto no lease deed has been executed. He has further submitted that the jamabandi pertains to the year 1989 and subsequently, a correction of the Khasra Girdawari has been made. Another argument raised that the Civil Court has no jurisdiction, no longer survives in view of the ratio of law laid down in ‘Ramesh Gobindram (Dead) through LRs v. Sugra Humayun Mirza Wakf’ (2010) 8 Supreme Court Cases 726. From the evidence led in this case, it is evident that Joginder Singh, husband of the respondent-plaintiff, came into possession of the suit land. It has been nowhere pleaded that he was dispossessed or the possession from him was restored to the Board. The lower appellate Court has rightly granted a right to the Board, i.e. owner of the suit property, to initiate proceedings for ejectment of the respondent-plaintiff. A Coordinate Bench on March 23, 2010 had issued a notice to the Punjab Wakf Board. Mr.S.K. Jain, Advocate has caused appearance on its behalf and has stated that even though the lower appellate Court had recognized the rights of the Board to initiate proceedings for ejectment of the respondent-plaintiff, but since the Board was not a party to the suit anything said therein should not affect rights of the Board. This Court need not to decide the prayer made by the Board for the reason that it is a settled legal position that any finding returned that the respondent-plaintiff is in possession cannot bind the Board, as it was not a party before the courts below. The respondent-plaintiff will 6 Regular Second Appeal No.4677 of 2009 (O&M) have to prove her possession against the Board by leading evidence. Furthermore, the Board can dispute this fact by leading evidence to the contrary. However, so far as the permanent injunction is concerned it was only against two persons, i.e. present appellants-defendants to the suit and they have been restrained from forcibly dispossessing the respondent-plaintiff. Hence, no interference is warranted and the present appeal is hereby dismissed. As observed earlier, the appellants-defendants, being members of the Muslim Community, in accordance with the provisions of law can exercise and exert their rights individually to compel the Punjab Wakf Board to take action against the person who is held by the courts below to be in possession, i.e. respondent-plaintiff; or they can also initiate action at their own end for recovery of possession and handing it over to the trustees of the Board for its administration in the manner that the property ought to be preserved, maintained and managed. [KANWALJIT SINGH AHLUWALIA] JUDGE July 22, 2011 rps 7