C.R. No. 4633 of 2006 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 4633 of 2006 (O&M) Date of decision: January 19, 2009 Punjab Wakf Board .. Petitioner v. Haryana Urban Development Authority and another .. Respondents CORAM: HON'BLE MR. JUSTICE RAJESH BINDAL Present: Mr. Parminder Singh, Advocate for the petitioner. Mr. J. P. Bhatt, Advocate for respondent No. 1. Mr. Pritam Saini, Advocate for respondent No. 2. .. Rajesh Bindal J. Challenge in the present petition is to the order, passed by the Tribunal constituted under Section 83 of the Wakf Act, 1995 (for short, `the Act'), whereby the suit for possession and recovery of mesne profits filed by it was dismissed. Briefly, the facts are that the petitioner, claiming ownership of khasra No. 122, measuring 10 marlas of land, situated within the revenue estate of Village Ballabgarh filed a suit for possession and recovery of mesne profits of Rs. 25,000/- per month. It was claimed that the property as per the jamabandi for the year 1996- 97 was declared as wakf property vide notification dated 21.11.1997. Though the same was never acquired by the Haryana Urban Development Authority (for short, `HUDA'), but it is in illegal possession thereof. On the other hand, the stand of HUDA was that the property is not comprised of khasra No. 122 as is sought to be alleged by the petitioner, whereas respondent No.2, allottee of the plot on the alleged area, stated that it is in possession of a plot measuring 10083.33 square yards comprised in plot No. 12, Industrial Area, Sector 6, Faridabad, initially allotted to its predecessors-in-interest on 4.6.1965, the possession of which was delivered on 2.8.1966. Even the sale deed was also registered on 12.8.1999. The Tribunal, after considering the material on record, recorded a finding that the petitioner has not been able to prove its case to show that possession of the plot C.R. No. 4633 of 2006 [2] measuring 10 marlas, forming part of khasra No. 122, was taken by HUDA authorities without acquisition. Learned counsel for the petitioner submitted that the findings recorded by the learned Tribunal are contrary to the record as the report of the Local Commissioner appointed by the Tribunal, i.e., Tehsildar, Ballabgarh dated 29.9.2004 was not considered, which concluded that the area forming part of khasra No. 122 is, in fact, a part of plot No. 42, Sector 6, Faridabad allotted by HUDA, where a factory is running. On the other hand, learned counsel for the respondents submitted that the report of the Local Commissioner could not be relied upon as such as he had measured the land totally in violation of the standing instructions of the Financial Commissioner, Haryana as no pucca point was fixed. Learned counsel for respondent No. 2 submitted that initially the plot was allotted by HUDA to M/s Auto Steel on 4.6.1965 and possession was delivered to them on 2.8.1966. Thereafter, it changed hands many times and now in possession of respondent No.2, where the factory is running. The submission is that it is a dispute between the petitioner and respondent No.1, if any, and respondent No.2 cannot be made to suffer. It has paid full price of the area which was transferred to the allottee by HUDA. The suit was filed by the petitioner on 3.4.2002, nearly 37 years after the allotment of plot by HUDA to the predecessors-in-interest of respondent No. 2. Heard learned counsel for the parties and perused the record. A perusal of the impugned order shows that the report of the Local Commissioner was rightly discarded by the learned Tribunal. The plot in question measures 10 marlas. The petitioner owns another piece of 8 kanals and 14 marlas of land forming part of khasra No. 123, which is adjoining, where one Idgah is situated. There is no dispute regarding that khasra number. The dispute is regarding only land of khasra No. 122. A perusal of the impugned order shows that in his cross-examination, the Local Commissioner admitted that no pucca point existed at the spot. Idgah was taken as pucca point which is comprised of khasra No. 123. However, the exact length and width of khasra No. 123 or the existing Idgah is not mentioned, meaning thereby that the point from where the measurement was sought to be carried out was itself not established. Even it was not mentioned in the report that in how much area, Idgah was constructed. In addition to this, a perusal of the cross-examination of PW1- Khaleel Ahmad, Estate Officer, shows that the suit was filed only on the basis of information given to him by the Muslim inhabitants of the area, meaning thereby even he was not sure as to whether there was any encroachment by HUDA authorities on the small C.R. No. 4633 of 2006 [3] area in question. Though there is no limitation as such in the Act, but still the fact cannot be lost sight of that the plot, which is claimed to be comprised of some portion of khasra No. 122 (10 marlas) was allotted way back on 4.6.1965 to the predecessors-in-interest of respondent No.2. They are in possession since 2.8.1966 and the suit was filed on 3.4.2002. For the reasons mentioned above, I do not find any merit in the present petition. Accordingly, the same is dismissed. (Rajesh Bindal) Judge 19.1.2009 mk