C.R. No. 3006 of 2009 [1] IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. C.R. No. 3006 of 2009 Date of Decision: August 17, 2009 Jodha Khan …..Petitioner Vs. Punjab Wakf Board and others …..Respondents CORAM: HON’BLE MR. JUSTICE M.M.S. BEDI. -.- Present:- Mr. Mohd. Yousaf, Advocate for the petitioner. -.- M.M.S. BEDI, J. Petitioner is a plaintiff in a case pending before the Wakf Tribunal, Sangrur. He has sought relief of permanent injunction against respondent No.1 Punjab Wakf Board, restraining it from leasing out the suit land to defendant- respondents No.3 to 5 as the suit property is Gair Mumkin Kabristan of Muslims as such the defendant- respondent No.1 has got no right to change the nature of Kabristan. The stand of defendant- respondents No.1 and 2 in the written statement is that the whole of the suit C.R. No. 3006 of 2009 [2] land is not used as burial ground but only 14 kanals of land out of the suit land has been reserved for graveyard. 16 kanals of land comprised of Khasra Nos. 151/1 min, 151/2, 151/1 has been leased out by Punjab Wakf Board to defendants No.3 to 5 for the year 2006-07. Alongwith the suit, the plaintiff- petitioner has filed an application under Order 39 Rules 1 and 2 CPC to restrain the defendants from changing the nature of the Kabristan and from changing of the suit land to respondents No.3 to 5. The said application has been dismissed vide impugned order dated March 13, 2009 observing that 16 kanals of land mentioned in the written statement being owned by Wakf Board has been leased to defendants No.3 to 5 and the plaintiff has not placed on record any document to show that the entire land is being used as burial ground. Counsel for the petitioner has contended that the plaintiff had earlier filed a suit against Sham Singh and five others and Punjab Wakf Board, Ambala Cantt., in representative capacity and sought a permanent injunction to restrain the defendants in that case from taking possession of the suit land otherwise than in due course of law and from raising construction on the same land in dispute. The said suit was not contested by Punjab Wakf Board and the Court of Sub Judge, Ist Class, vide order dated November 17, 1990 partly decreed the suit of the plaintiff and the private defendants were restrained from taking possession of the land measuring 29 kanals 6 marlas out of the land in dispute and they were also restrained from raising any construction on the land measuring 29 kanals 6 marlas. Counsel for the petitioner has contended that in view of the earlier judgment, the C.R. No. 3006 of 2009 [3] property in dispute in this case is prima facie a kabristan and a kabristan cannot be converted for any other use. He referred to Punjab Wakf Board Vs. Smt. Simli and others, 1992 (1) Revenue Law Reporter 467, in which in context to Section 15 of Punjab Wakf Act, it was held that Wakf once created cannot be alienated or revoked and the same lasts upto perpetuity. A perusal of the said judgment indicates that in the said case it was an admitted case of the party that the disputed land was a graveyard and was being put to this use even before 1947. He also placed reliance on the judgment of this Court in Abdul Rehman Vs. Khuda Bax and others, 2000 (3) AIJ 188 , wherein it was observed that a property described as gair mumkin kabristan in revenue record cannot be partitioned and the nature of kabristan can also not be changed. Reliance was also placed on Sayyed Ali Vs. Andhra Pradesh Wakf Board, Hyderabad, AIR 1998 SC 972 to contend that the Wakf property having been found as Wakf would always retain its character as Wakf. I have heard counsel for the petitioner at length and considered his contentions and gone through the earlier judgment passed by Sh.T.K.Goyal, Sub Judge, Ist Class, Sunam. The plaintiff seems to have earlier filed a suit regarding the same land. In the said case, the Punjab Wakf Board was impleaded as a proforma defendant and the Wakf Board had not contested the suit. The private defendants had taken up a plea that the land measuring 10 kanals comprised in khasra No. 151/1/34-17 is in their possession since 1950 and they had constructed houses on the land. Witnesses had also been examined by the private defendants who had C.R. No. 3006 of 2009 [4] sought to establish that in 10 kanals of land, the private defendants were in possession having constructed their houses. A Government Dispensary has been constructed on 2 kanals of land. Houses of Bazigars were existing on 10 kanals of land. One of the defendant witnesses Hazara Singh had tried to prove that 36 kanals 2 marlas of land did not have any kabristan in the land. The petitioner had been granted injunction restraining the private defendants from using 29 kanals 6 marlas of land out of 36 kanals of land, the subject matter of that suit and they were restrained from taking forcible possession of the land and raising any construction on the land while deciding issue No.2. Taking into consideration all the circumstances, the three ingredients which are required for getting interim injunction do not seem to be fulfilled. The petitioner- plaintiff might be having prima facie a good case qua a part of the property, but the counsel for the plaintiff- petitioner has not been able to satisfy this Court as to what irreparable loss would be caused in case during the pendency of the suit owner of the property i.e. the Wakf Board leases a portion of the land which is not being used as kabristan. The balance of convenience also does not lie in favour of the plaintiff. The plaintiff- petitioner might be a member of Muslim community and beneficiary of the Wakf property, but in order to get interim injunction he has to establish clearly the irreparable loss which is going to be suffered besides establishing prima facie a strong case and establishing that balance of convenience lies in his favour. It is only on the basis of the evidence that the trial Court will arrive at a conclusion as to in what part of the suit land C.R. No. 3006 of 2009 [5] kabristan exists and what is the area which has to be inhabited by the residents of village or members of Muslim community. In view of the above, no ground is made out for interference. Dismissed. August 17, 2009 (M.M.S.BEDI) sanjay JUDGE