IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. R.S.A. No.1212 of 2005 Date of Decision: 15.04.2009 Mahant Hari Gir Chela Baba Nihal Gir Chela Bankandhi Gir, resident of Pucca Pul, village Uncha Samana (since deceased) through Legal Representative Mahan Shiv Gir Chela Baba Nihala Gir and another. ....... Appellants through Shri I.K.Mehta, Senior Advocate with Shri M.S.Kohli,Advocate. Versus Punjab Wakf Board, Ambala Cantt. Through its Estate Officer. ....... Respondent through Shri Arun Palli, Senior Advocate with Shri Parminder Singh,Advocate. CORAM: HON'BLE MR.JUSTICE MAHESH GROVER .... 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? .... Mahesh Grover,J. This Regular Second Appeal is directed against judgment and decree dated 24.12.2004 passed by the Additional District Judge, Karnal (hereinafter described as `the First Appellate Court') whereby the judgment and decree dated 30.8.2003 of the Civil Judge (Junior Division), Karnal (referred to hereinafter as `the trial Court') were set aside and the suit of the plaintiff-respondent was decreed. The respondent filed a suit for possession of the suit land which R.S.A.No.1212 of 2005 - -2- .... was fully described in the plaint by alleging that the same is Wakf property and was notified as such on 19.12.1970 vide notification (Annexure P3) by the Government of India. It was averred that the appellants and before them, their predecessors had illegally occupied the suit land since the year 1975 and that this property was being used as a Kabristan (grave-yard) since time immemorial and at the time of partition also, it was being used as such. It was further averred that the suit land is attached to Dargah of Muslim Peer known as Illahi Baksh and the area being the grave-yard is a public wakf. It was pleaded that since the appellants were in unauthorised possession of the suit land, the respondent was entitled to mesne profits at the rate of Rs.5000/- per annum from the date of filing of the suit till its decision. Upon notice, the appellants appeared and resisted the suit and pleaded that the suit land does not vest in the respondent and was never used for burying dead bodies of Mohammedans and, therefore, it cannot be treated as a grave-yard. The unauthorised occupation thereof was denied. The factum of the suit land being attached with the Dergah of Muslim Peer was also denied. It was pleaded that after the partition of the country in the year 1947, the land in dispute was never used as a burial ground and consequently, was put to use of the Gram Panchayat and in this way, the respondent had no right or interest therein. On the pleadings of the parties, the following issues were framed by the trial Court:- 1. Whether the plaintiff is entitled for decree of possession of R.S.A.No.1212 of 2005 - -3- .... the land fully detailed in plaint?OPP 2. Whether the plaintiff is entitled to decree for recovery of mense profits at the rate of Rs.5000/- per annum from the filing of suit till its realisation?OPP 3. Whether the plaintiff has no right, title or interest in the land in question and has no locus standi to file and maintain the present suit?OPD 4. Whether the plaintiff has no cause of action to file and maintain the present suit?OPD 5. Whether the present suit is barred by doctrine of res judicata?OPD 6. Whether the suit is time barred/OPD 7. Whether the suit is not properly valued for the purpose of court fee and jurisdiction?OPD 8. Relief. After appraisal of the entire evidence on record, the trial Court dismissed the suit of the respondent and held that over the period of time, there was non-user of the suit land as grave-yard and as a result of this, it cannot be termed as such. In appeal, the findings of the trial Court were reversed and it was concluded by the First Appellate Court that the suit land was a wakf property. Hence, this Regular Second Appeal. R.S.A.No.1212 of 2005 - -4- .... Learned counsel for the appellants has contended that the respondent has failed to prove that the suit land was ever given for charitable purpose by a pious Muslim and was dedicated for the similar purpose. It was further contended that there is no cogent evidence on record to show that the suit land was ever used as a burial-ground and the fact that after partition of the country, one Muslim woman is said to have been buried therein is also suspicious because except the oral testimony of one of PW1-Fateh Mohammad, who testified to this effect, there is nothing to prove it. It was argued that there is complete non-user of the suit land as grave-yard and the same was being used for other purposes, such as temple, bagichi etc. and, therefore, the findings recorded by the First Appellate Court are liable to be set aside. To support his contentions/ argument, learned counsel for the appellants placed reliance on a Division Bench judgment of this Court in Punjab Wakf Board Versus Joint Development Commissioner and others, 2008(4) P.L.R. 777. It was next contended by the learned counsel for the appellants that the observations of the First Appellate Court that a suit ought to have been filed within one year of the date of notification declaring a property to be wakf for claiming relief otherwise, is also erroneous for the simple reason that the Apex Court in Punjab Wakf Board Versus Gram Panchayat alias Gram Sabha, AIR 2000 S.C. 3488, this provision of law does not bind a third party and since the appellants being a third party, the said provision of law would not be attracted and consequently, the aforementioned R.S.A.No.1212 of 2005 - -5- .... observations of the First Appellate Court are erroneous. On the other hand, learned counsel for the respondent contended that there is cogent evidence in the shape of revenue record to show that the suit land was being used as a grave-yard since the year1954- 55 and from this fact, as also coupled with the factum of notification, Exhibit P3, of the year 1970 listing it as wakf property, there was no escape from the conclusion that the suit land belonged to the respondent and was being used as grave-yard. Reliance was placed on a judgment of the Supreme Court in Syed Mohd. Salie Labbai (Dead) by L.Rs. and others Versus Mohd. Hanifa (Dead) by L.Rs. and others, AIR 1976 S.C. 1569, wherein it was observed as under:- “Under the Mohammedan Law the grave-yards may be of two kinds a family or private grave-yard and a public grave-yard. A grave-yard is a private one which is confined only to the burial of corpses of the founder, his relations or his descendants. In such a burial ground no person who does not belong to the family of the founder is permitted to bury his dead. On the other hand, if any member of the public is permitted to be buried in a grave-yard and this practice grows so that it is proved by instances adequate in character, number and extent, then the presumption will be that the dedication is complete and the grave-yard has become a public grave-yard where the Mohammedan public will have the right to bury their dead. It is R.S.A.No.1212 of 2005 - -6- .... also well settled that a conclusive proof of the public grave- yard is the description of the burial ground in the revenue records as a public grave-yard. xx xx xx xx xx xx xx xx xx xx Once a Kabristan has been held to be a public grave-yard then it vests in the public and constitutes a Wakf and it cannot be divested by not-user but will always continue to be so whether it is used or not. The following rules in order to determine whether a grave-yard is a public or a private one may be stated: (1) that even though there may be no direct evidence of dedication to the public, it may be presumed to be a public grave-yard by immemorial user, i.e., where corpses of the members of the Mohammedan community have been buried in a particular grave-yard for a large number of years without any objection from the owner. The fact that the owner permits such burials will not make any difference at all; (2) that if the grave- yard is a private or a family grave-yard then it should contain the graves of only the founder, the members of his family or his descendants and no others. Once even in a family grave-yard members of the public are allowed to bury their dead, the private grave-yard sheds its character and becomes a public grave-yard; (3) that in order to prove that a grave-yard is public R.S.A.No.1212 of 2005 - -7- .... by dedication it must be shown by multiplying instances of the character, nature and extent of the burials from time to time. In other words, there should be evidence to show that a large number of members of the Mohammedan community had buried their corpses from time to time in the grave-yard. Once this is proved, the Court will presume that the grave-yard is a public one; and (4) that where a burial ground is mentioned as a public grave-yard in either a revenue or historical papers that would be a conclusive proof to show the public character of the grave-yard.” I have thoughtfully considered the rival contentions and have perused the record as well as the judgments relied upon by the learned counsel for the parties. There is no quarrel with the proposition that once a property is held to be a wakf property, the same continues to be as such. Once a `wakf' always a `wakf'. But, in Punjab Wakf Board Versus Joint Development Commissioner and others (supra), the Division Bench has also held that merely because a notification has been issued, it would not be a conclusive indicator of the fact that a property is a wakf property. The observations of the Division Bench are clear on this aspect that according to Section 3(1) of the Wakf Act,1954 (for short, `the Act'), the essentials of Wakf are (i) dedication by a person professing Islam for a pious, religious or charitable R.S.A.No.1212 of 2005 - -8- .... purpose, (ii) by way of user. In paragraphs 16 and 17 of the judgment, their Lordships of the Division Bench observed as under:- “16. As per Section 310 [sic. 3(1)] of the Wakf Act,1995 (sic. 1954), the essentials of Wakf are (i) dedication by a person professing Islam for a pious, religious or charitable purpose, (ii) by way of user. Both the ingredients are missing in the present case. Moreover, notification is not conclusive of ownership of Wakf Board and Wakf Board has to show that the land was dedicated by a Muslim i.e. person professing Islam for charitable purposes and it has to be proved that the land was used as a Kabristan but in the case in hand, none of the ingredients is present. The issue in dispute has been discussed in the case reported as Dev Raj v. Teja Singh, (2004-2) 137 P.L.R. 709. 17. The argument of the learned counsel for the petitioner does not carry weight as admittedly no notice as per notification was issued to the Panchayat before inclusion of time property in Wakf properties. Moreover,limitation of one year does not apply for filing the suit by the Panchayat who is a third party as held by the Supreme Court in Punjab Wakf Board's case (supra) and in Abdul Rais and others v. Madhya Pradesh Wakf Board and others, 2005(1) Apex Court Judgments 433.” R.S.A.No.1212 of 2005 - -9- .... Now, it is to be seen from the evidence on record as to whether the aforementioned ingredients were satisfied by the respondent while invoking the jurisdiction of the civil Court. A perusal of the record of the Courts below shows that there is nothing therein to suggest that the suit land was dedicated by a pious Muslim for charitable purposes which is the first requirement. All that has been pleaded is that the suit land is a wakf property and was being used as a grave-yard even prior to the year 1947 and after the migration of the minority community, the same continued to be recorded as grave-yard in the revenue records. As observed earlier, there is no evidence to suggest such a dedication of the suit land by a pious Muslim. No such fact has been pleaded in the plaint. The jamabandis which are on record do also not conclusively indicate the same to be in favour of the respondent. The jamabandis for the years 1955-56 (Exhibit P9), 1974-75 (Exhibit P6), 1979-80 (Exhibit P5), 1984-85 (Exhibit P7), 1994-95 (Exhibit P4) and 1999-2000 (Exhibit P8) have been placed on record. In the jamabandis for the years 1955-56, 1974-75 and 1979-80, the Gram Panchayat of Village Uncha Samana has been shown to be the owner of the suit land, whereas in the jamabandis for the years 1984-85, 1994-95 and 1999-2000, the respondent has been recorded as owner thereof. In so far as the possession of the suit land is concerned, Ahle Islam has been recorded in possession thereof. It is also clear from these jamabandis that the total area of the suit land is 11 kanals 14 marlas, out of which in some of the R.S.A.No.1212 of 2005 - -10- .... jamabandis, 9 kanals 14 marlas has been shown under cultivation, whereas 2 kanals has been recorded as gair mumkin. However, in the jamadandi for the year 1974-75, the whole of the suit land has been shown as gair mumkin kabristan. In the jamabandis for the years 1984-85 and 1999-2000, the gair mumkin land has been recorded as 3 kanals 4 marlas, whereas 9 kanals 14 marlas has been shown as chahi land. Therefore, merely because the suit land has been described as grave-yard (kabristan) at some point of time would not imply that it has continued as such. The majority of the jamabandis are subsequent to the issuance of notification listing the suit land as wakf property in the year 1970. It is not the case of the respondent that it had ever made any attempt to challenge these entries in the jamabandis. In this view of the matter, it can safely be presumed that the suit land was never used as a grave-yard after the minority community had migrated out of the country. So, even if the first part of satisfaction of requirement of Section 3(1) was to be ignored, yet, it had to be established that it was wakf property by way of user as held by the Supreme Court in Syed Mohd. Salie Labbai (Dead by L.Rs. and others (supra). At the cost of repetition, the relevant observations made by their Lordships in the aforesaid case are extracted below:- “that even though there may be no direct evidence of dedication to the public, it may be presumed to be a public grave-yard by immemorial user, i.e., where corpses of the members of the Mohammedan community have been buried in R.S.A.No.1212 of 2005 - -11- .... a particular grave-yard for a large number of years without any objection from the owner. The fact that the owner permits such burials will not make any difference at all;” Apart from this, it has been stated by PW1-Fateh Mohammad that only one Muslim woman was buried in the suit land. No particulars of the same have been given by producing any documentary evidence and except for the bald statement, the credible evidence is woefully short. Even if the statement of this witness to the above effect is accepted, even then it does not imply that the suit land continued to be used as a grave-yard. Therefore, the second feature to describe the suit land as wakf property is also not conclusively proved. In view of the above conclusion, the observations of the Division Bench of this Court in Punjab Wakf Board Versus Joint Development Commissioner and others (supra) are clearly attracted to the facts of this case, while the observations of the Apex Court in Syed Mohd. Salie Labbai (Dead) by L.Rs. and others Versus Mohd. Hanifa (Dead) by L.Rs. and others (supra) are not applicable here for the simple reason that the respondent has failed to establish the first ingredient of Section 3(1) of the Act by way of direct evidence that the suit land was dedicated by a pious Muslim for charitable purpose. Consequently, in my opinion, the following question of law arises for determination in this appeal:- “Whether in the absence of the ingredients of Section 3(1) of R.S.A.No.1212 of 2005 - -12- .... the Wakf Act,1954 being established by way of evidence, the suit land can still be termed to be wakf property merely because a notification has been issued describing it as such?” For the reasons recorded above, I am of the opinion that the respondent has failed to prove that the suit land was ever dedicated by a pious Muslim for charitable purpose and even though in some of the jamabandis, it has been recorded as grave-yard, yet, there is no evidence to establish that such user had continued after the partition of the country and merely because a notification had been issued describing it as a wakf property in the year 1970 would not ipso facto imply that the suit land belonged to the respondent. That apart, some of the jamabandis also reflected the ownership of the Gram Panchayat to the detriment of the respondent, which it has not assailed at any stage prior to the filing of the suit implying the inconclusive character of the case set up by the respondent. In the result, this appeal is accepted, the impugned judgment & decree of the First Appellate Court are set aside and those of the trial Court are restored. April 15,2009 ( Mahesh Grover ) “SCM” Judge