1 D.B.S.A.C.Nos.6 & 7 of 1983 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T 1.SPECIAL APPEAL CIVIL No. 6 of 1983 GORA DEVI & ORS V/S RAJ BOARD OF MUSLIM WAKF 2. SPECIAL APPEAL CIVIL No. 7 of 1983 SMT.SUMITRA DEVI V/S RAJ BOARD OF MUSLIM WAKF Date of Judgment : 12th November 2008 PRESENT HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J. Mr. MC BHOOT, for the appellant / petitioner Mr. JITENDRA CHOPRA & Mr.VIKAS BALIA, for the respondent REPORTABLE BY THE COURT: (PER HON'BLE GUPTA,J.) These two appeals have been filed by different sets of defendants against the judgment passed by learned Single Judge dated 21.4.1982 dismissing the appeal and thereby affirming the judgment and decree of the learned District Judge, Jodhpur dated 23.3.1971, decreeing the plaintiff's suit for possession of the land in dispute, shown in red colour in the site plan, Ex.5, and described in para 3 of the plaint, against all the defendants, so also passing decree for the mesne profits from the date of suit till delivery, upon payment of requisite court fees, if any. 2 D.B.S.A.C.Nos.6 & 7 of 1983 The necessary facts are, that the plaintiff, the Rajasthan Board of Muslim Wakf, Jaipur, filed the present suit against four defendants being Bulidan Singh, Ramgopal, Sumitra Devi and Shivji, for recovery of possession, alleging inter-alia, that in the city of Jodhpur, outside Sojatigate on Mahatma Gandhi Hospital Road in its north there is a big chunk of land situated between Sojatigate Ki Bari and Tejnarayan Kak's land, which land is popularly known as Chand Shah Ka Takiya. This entire land was pleaded to be a graveyard of the Muslims of Jodhpur in the old times, and at present also there are innumerable graves available. There also exists remainants of a mosque, a well, and a Hujara. It is also pleaded that earlier this land was used as common graveyard and is, therefore, a Wakf property. The Commissioner also surveyed the land under Section 4 of the Wakf Act and submitted a report, reporting it to be a Wakf property and the Wakf Board notified the property as a Wakf property vide publication in the official Gazette dated 14.4.1966, which notification has not been challenged under Section 6 of the Wakf Act. With this background, it is pleaded, that vide notification dated 7.3.1968 the Wakf Board has taken the management of the Wakf directly under Section 43 of the Act since 4.2.1965. Then it is pleaded that after partition of India, many persons started committing encroachment on the above land and in that process, started dismantling southern boundary wall and erecting enclosures. In this process, the defendants No.1 and 2 being Bulidan Singh and Ramgopal also encroached upon 60x70 feet portion of the land, by 3 D.B.S.A.C.Nos.6 & 7 of 1983 breaking the wall in the year 1953, then erected stone slabs, and started letting out the land. The description of the precise portion, said to have been encroached by defendants No.1 and 2 has been pleaded in para 3. Then it is pleaded, that the defendants No.2, 3 and 4 have been inducted as tenants by defendant No.1, while the defendant No.1 has no right to so let out the land. Thus, it was pleaded, that the defendants are trespassers, and mesne profits were claimed. It was also pleaded, that the cause of action arose in 1953, and by virtue of the provisions of the Public Wakfs (Extension of Limitation) Act, 1959 the suit is within time. With this pleading, the decree for possession and mesne profits was claimed. Two separate written statements were filed, one by defendant No.1 Bulidan Singh, and other by the remaining three defendants No.2 to 4. The defendant No.1 in the written statement denied existence of any graves, Masjid or Hujara and denied it to be Wakf property. It was also pleaded that in this chunk of land many shops are constructed and open land is lying beyond those shops. Identity and boundaries of the land were not disputed. Then in para 2 it is pleaded, that the defendant No.1 has always seen Nanne Shah to be the owner of the land, who had been letting out portions to different persons, and had been realising rent, and in that process defendant No.1 has also taken the portion of the land in question at rent from Nanne Shah, at a monthly rent of Rs.30/-. It was denied that any encroachment was done, rather it was pleaded, that the defendant No.1 took 60x70 feet portion of the land on rent from Nanne Shah, then raised a 4 D.B.S.A.C.Nos.6 & 7 of 1983 temporary construction thereon, and inducted defendants No.2, 3 and 4 as sub-tenants, with the permission of Nanne Shah, the owner. Thus, it was pleaded that the defendant is not a trespasser, but is a tenant, and is in permissive possession, having obtained possession from Nanne Shah, with whom there is no dispute, and that if there is any dispute about the title between plaintiff and Nanne Shah, then the plaintiff may sue Nanne Shah, but is not entitled to sue the defendants. Court fees paid, was alleged to be insufficient. Then in additional pleas it was pleaded, that since the owner of the land is Nanne Shah, from whom the defendant has taken land on rent since long, and is paying rent to Nanne Shah, Nanne Shah is necessary party. Nanne Shah and his ancestors were pleaded to be in possession for last about 100 years, and had been dealing with the property as owners. The defendants No.2, 3 and 4 in their written statement pleaded, that the plaintiff has not correctly given the description of the entire land, measurements have not been given. It was denied that the land is known as Chand Shah Ka Takiya, or that, it was ever a graveyard, nor any graves are there. The existence of Masjid, Hujara etc. was also denied. The publication in the official gazette was denied for want of knowledge. Then it was pleaded that it was not necessary for the defendants to file suit under Section 6 of the Wakf Act. It was denied that simply because a suit under Section 6 has not been filed, the property would be treated to be Wakf property. Rather it was denied to be Wakf property and was also denied to be vesting in the plaintiff. Then replying para 5 D.B.S.A.C.Nos.6 & 7 of 1983 3 it was pleaded that the answering defendants are not trespassers but they are in possession openly and adversely since 1953, and thus, they cannot be dispossessed in the present suit. Thus, they set their adverse title and pleaded the suit to be barred by time. Then in additional pleas, it was also pleaded that with respect to the property described in para 1 of the plaint, the predecessors-in-title of the plaintiff had filed a suit in the Court of Senior Civil Judge, Jodhpur, being suit No.54/52 “Abdul Hakim & Ors. Vs. Nanne Shah & Ors.”, which was dismissed on 31.5.1958, thereafter another suit No.1/55 “Hakikatulla Khan & Ors. Vs. Nanne Shah & Ors.” was filed in the Court of District Judge, Jodhpur, which was decided on 30.5.1964, and in both those suits, it was held that the suit property is not a Wakf property, and plaintiff is not entitled to possession. Thus, it is clear that the present plaintiff also has no right in the property. It was also pleaded that the aforesaid two judgments are sub-judice in appeal in the High Court, wherein the present plaintiff is also party, and since the controversy involved in the present litigation and the controversy involved in the litigation pending in the High Court is identical, and since those suits are earlier suits, the proceedings of the present suit are required to be stayed under Section 10 CPC. Rejoinders were filed by the plaintiff, separately to the written statements. Learned trial Court framed as many as 9 issues, which read as under:- 6 D.B.S.A.C.Nos.6 & 7 of 1983 1.Whether the suit property is wakf property and vests in the plaintiff? 2.Whether the plaintiff is entitled to get Rs. 300/- per month as damages for use and occupation from the defendants? 3.Whether defendants Nos. 2 to 4 have acquired their title over the suit property by adverse possession? 4.Whether the plaintiff's suit is barred by time? 5.Whether the defendants have committed trespass in 1953 over the land in dispute? 6.Whether Naneshah has become owner by adverse possession of the suit land? 7.Is the court-fee not sufficiently paid? 8.Is Naneshah a necessary party? 9.Relief? During trial, the plaintiff examined Allahnoor P.W.1, the Secretary of the Wakf Committee Jodhpur, P.W.2 Mohd. Ibrahim, the then Secretary of the Wakf Committee Jodhpur, and one Imdad Ali, P.W.3, a resident of Jodhpur. While on the side of the defendants only one Gopal Singh appeared as D.W.1. According to the P.W.1, the land described in para 1 of the plaint was got surveyed and it was surveyed by the Assistant Commissioner, Devsthan in 1962. It was deposed that Assistant Commissioner, Devsthan was also Assistant Commissioner, Wakf. At the time of survey, survey form was filled, copy whereof has been proved as Ex.1, and is deposed to be signed by him. Thereafter the property was notified as Wakf property in the official gazette. He has also deposed to have himself gone on the site, and has deposed the existence of dilapidated mosque, a well, and also the existence of innumerable graves. He has proved the site plan got prepared by him to be Ex.2, and has identified the land in possession of defendant No.1. He has deposed that mosque was at point-A in Ex.2, 7 D.B.S.A.C.Nos.6 & 7 of 1983 and that over the precise land in question described in para 3 of the plaint also, there were graves, then he has proved the certified copy of the judgment of the litigation between Nanne Shah and Fatteh Shah as Ex.3, certified copy of the judgment dated 31.5.58 of the Court of Senior Civil Judge, Jodhpur as Ex.4, in which litigation this witness was a plaintiff. Then he has deposed that defendant No.1 Bulidan Singh has sublet the land to other defendants. In cross-examination he was suggested the genealogy of Nanne Shah and Chand Shah. He has pleaded ignorance about any litigation between Wakf Board and Nanne Shah, and has also deposed that Nanne Shah was in possession as Mutwalli since the judgment of the Chief Court Jodhpur, passed in the year 1943. He has denied that Nanne Shah was receiving rent. Then he has denied that the land was let out by Nanne Shah to Bulidan Singh, however, he has deposed, that he asked the defendants No.2 to 4, and they gave out to be paying rent to Bulidan Singh. Significantly, he was not at all cross- examined on the aspects about existence of innumerable graves on the land in question, existence of the mosque, well etc. so also about the existence of the graves on the land in dispute, despite pleading in para 3 of the plaint as well. P.W.2 has deposed, that he was looking after the Wakf property as Secretary of the Wakf Committee Jodhpur, he has seen the Chand Shah Ka Takiya, which is old graveyard of Muslims of Jodhpur. Then he has identified the land as “A B C D E F G” in Ex.5 to be the land of Chand Shah Ka Takiya, and has identified the precise land 8 D.B.S.A.C.Nos.6 & 7 of 1983 in question, therein, to be shown by red colour, and to be in possession of Bulidan Singh. Then he has proved Ex.3 to be the judgment, declaring the land to be Chand Shah Ka Takiya Kabristan. Likewise, he has deposed Ex.4 to be also declaring the land to be graveyard, and that appeal against that judgment was filed in the High Court, which too has been decided on 24.2.70, holding the land to be Wakf property. Then he has proved the gazette notification Ex.6. Then he has deposed, that he had himself gone on the land, and has seen that innumerable graves exist there, apart from one dilapidated mosque, one Hujara and one well. Then in cross-examination, he has deposed that he has seeing the graveyard and mosque to be out of use since his attaining senses, and that within his presence nobody was buried there, nor prayers were offered in the mosque, then he deposed that Chand Shah was buried in his presence at place 'X' in the site plan Ex.5, who was buried some 30-35 years ago. He has also deposed that on the land in question there is a grave of his grandfather as well. However, he has deposed to be not in a position to prove the graves, which existed on the |and in question, described in para 3 of the plaint. Then on cross- examination on behalf of the defendant No.1, he has deposed about genealogy of Nanne Shah, and Nanne Shah to be Mutwalli, and to be managing the property. He has deposed to be not aware, as to whether Nanne Shah was receiving rent of the shops. He has also deposed that Hujara, well, Masjid and grave are not situated on the portion of the land described in para 3 of the plaint. Significantly, this witness has also not been cross- examined by any of the defendants, on the aspect, about 9 D.B.S.A.C.Nos.6 & 7 of 1983 the land being graveyard, innumerable graves being existing on the land in question, existence of the mosque, Hujara and well etc., except that prayers are not being offered for last some time. Then coming to P.W.3, he has also deposed to have seen the land, to be known as Chand Shah Ka Takiya, whereon there is existence of mosque, well and graves. He has shown his age to be 45 years, and has deposed in cross-examination, that before his birth, this land was being used as graveyard, but the land of mosque has been stopped to be used as such. He has also deposed, that he is not aware as to at what precise place, whose grave exists. He has also deposed, that in his presence, prayers were never offered in the mosque, and he was also not aware, as to who has constructed the mosque. Then comes the evidence led on the side of the defendant, and as noticed above, the only evidence led comprises of the statement of Gopal Singh, who has deposed, that the land is not of graveyard, graves never existed there, mosque never existed, and that he and Shivji are in possession for last seven years. He has deposed, that no notice was ever served by the Wakf Board, claiming the land. Then he has deposed that Sumitra Transport Company is operating on the land for the last 15-16 years. In cross-examination, he has claimed to be in possession of 15x20 feet portion of the land, for which he is paying Rs.25/- per month to Bulidan Singh, and identical amount of rent is being paid by Shivji to Bulidan Singh. He has deposed ignorance about the amount 10 D.B.S.A.C.Nos.6 & 7 of 1983 of rent being paid by Sumitra Devi. This is the entire oral evidence of the parties. The learned trial court deciding issues no.1 and 5 together, about the land being Wakf property, and the defendants having trespassed in the year 1953, appreciated the evidence led on the side of the defendants, and also the gazette notification dated 14.4.1966, and also noticed, that Nanne Shah has not been produced to prove that land in question was leased out by Nanne Shah, as Mutwalli, nor any rent note has been produced. Bulidan Singh’s not appearing in the witness-box was also considered, and it was held, that the land in question is Wakf property owned by the plaintiff, and that Bulidan Singh has illegally occupied it, in the year 1953 by breaking the boundary, and is in unlawful possession thereof. It was also found, that the other defendants could not establish their title over the land, rather they are found to have been put in possession by Bulidan Singh, without any right or authority. Then deciding issues No.3 and 4, about the other defendants having perfected their title by adverse possession, and the suit being barred by time, it was found, that the defendants No.2, 3 and 4 could not prove their adverse possession, and Bulidan Singh has also failed to prove, that the land is belonging to Nanne Shah, who transferred it to him by way of lease, or that he is regularly paying the rent. Thus, issue No.3 and 4 were decided against the defendants. Then issue No.6, being about Nanne Shah having perfected title by adverse possession, it was found against the defendant, for want of even an iota of evidence. Deciding issue No.7, 11 D.B.S.A.C.Nos.6 & 7 of 1983 the Court fees paid was found to be sufficient. Then deciding issue No.8, about Nanne Shah being necessary party, he was not found to be a necessary party. Then deciding issue No.2 about mesne profits, the plaintiff was held entitled to the mesne profits of Rs.160/- per month. Thus, the suit was decreed as above. Two appeals were filed against the judgment of the learned trial Court, one by Sumitra Devi, being Appeal No.42/1971, and other by Bulidan Singh, being Appeal No.116/1971. Significantly, in the appeal by Bulidan Singh, the only grounds taken were, about the learned District Judge having erred in closing the evidence of the defendant, his having clearly pleaded to be tenant of Nanne Shah, still Nanne Shah having not been added as party in the suit, and that, since in the notification dated 14.4.1966, Nanne Shah was shown to be Mutwalli, from whom the defendant had taken the plot on rent, still his having not been impleaded as party. Then other ground taken was, that since the defendant had taken the plot on rent from Nanne Shah, his possession could not be deemed to be illegal, and that about the learned trial court having erred in dismissing the application filed by the appellant under Order 23 Rule 3 CPC, in default. Thus, in the appeal of Bulidan Singh no objection was raised to challenge the findings about the property being Wakf property. However, in the appeal by Sumitra Devi, being Appeal No.42, various grounds were taken, including to challenge the finding of the learned trial Court about existence of graves, mosques, Hujara and well etc. and its being Wakf property, by taking various grounds. Be that as 12 D.B.S.A.C.Nos.6 & 7 of 1983 it may. The learned Single Judge rendered, a very detailed, and long judgment, running into 80 pages in the paper book. The learned Single Judge noticed the contentions advanced on behalf of the appellant, being, that there is no evidence worth the name on record, to show, that the property in question was reserved for graveyard, and was used for the burial of the dead bodies of Muslims of Jodhpur, and observed, that in these cases where the origin of Wakf property was lost in antiquity, it is difficult to lead evidence about the creation of the Wakf, and as to whether the property in dispute was part of the Wakf property has to be decided on the basis of evidence on record, and circumstances appearing in the case, and that the oral evidence in the present case is undoubtedly scanty, as the evidence of P.W.1, 2 and 3 only shows, that the land in dispute forms part of the property commonly known as Chand Shah Ka Takiya, and it was entered as Wakf property in the list of such properties published in the official gazette, and that the evidence of the three witnesses disclosed that a well, a dilapidated mosque, a Hujara, and several graves, are situated on the aforesaid land, while Gopal singh has merely stated, that the land in dispute did not form part of the graveyard, and there were no graves on it, and that he was let into possession of a portion of the land in dispute by Bulidan Singh at a monthly rent of Rs.25/-. However, the learned Single Judge was of the view, that there is enough documentary evidence on record, to show, that the property formed part of Chand Shah Ka Takiya, and it was a Wakf 13 D.B.S.A.C.Nos.6 & 7 of 1983 property. The first and foremost question posed by learned Single Judge was, as to whether land in dispute is a Wakf property. Learned Single Judge referred to, and relied upon, the earlier document on record, being judgment of the Chief Court of the former State of Jodhpur, being dated 11.11.1943, wherein the Division Bench of the Chief Court, presided by the then Chief Justice, observed that the original ownership of the property is buried in the hoary past, but this much is established on the record, that it was gifted by Mughal Kings to the ancestors of Gulab Shah and Chand Shah, and was for a long time reserved for a graveyard. Though now for the last 30 years, dead bodies have not been allowed to be buried there on account of its close vicinity to the city. There Graves are however in existence on major portion of this land, which also has situated on it, a mosque in dilapidated condition, a Hujara attached to it, and a well. Of course, the dispute in that litigation was about inheritance between the descendants, and the Division Bench held the land to be graveyard, and to have belonged to Wakf property by user, and also held, that the land in dispute is fully established, on the plaintiff's own evidence, to be Wakf property. The statements of P.W.4 Moosa, P.W.5 Nanne Shah, P.W.6 Abdul Gani, P.W.7 Habi Ahmed, and others, show, that it has a Takiya, and also a mosque, which is now in a dilapidated condition, and that it is also clear from this very evidence, that it was a 14 D.B.S.A.C.Nos.6 & 7 of 1983 graveyard, and has old graves, still in existence, though dead bodies are not buried there for the last 30 years, and that the land must be held to be Wakf by user. With this finding Nanne Shah was allowed to remain in possession as Mutwalli, and restrained him from alienating, or encumbering the land in any manner whatsoever. It was also noticed, that subsequently, two suits were filed for declaration, that the land lying outside Sojatigate, Jodhpur, known as Chand Shah Ka Takiya was Wakf property, and Nanne Shah, who managed the said property, had wrongfully alienated the said property, by executing a gift-deed, which gift deed was sought to be challenged, and in those suits, a specific issue was framed, as to whether on the land in dispute there were Mahommedan graves, Hujara, Mosque and Takiya, and in that suit, the trial Court came to the conclusion, that the land in dispute was a Mahommedan graveyard, and that there is a Takiya and some remainants of a mosque. The earlier judgment of the Chief Court dated 11.11.1943, was found to be not capable of operating as res-judicata, but was taken to be a very strong piece of evidence, against Nanne Shah, about the admission made by him, and the trial Court came to the conclusion, that the plaintiffs were entitled to a declaration, that the property in dispute is a Kabristan, and included some remainants of a mosque, and a Takiya, and was consequently Wakf property. The suits however failed, because there was no prayer for possession, and merely giving declaration would be futile. Against that judgment, appeals were filed before the High Court, and a certified copy of the judgment of the High Court dated 24.2.1970, was produced before the learned Single Judge, 15 D.B.S.A.C.Nos.6 &