CR No.5594 of 2009 (O&M) - 1 - IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CR No.5594 of 2009 (O&M) Decided on: 19.8.2010 **** Smt. Rewti . . . .Petitioner Versus Raj Kumar and another . . . .Respondents **** CORAM: HON’BLE MR.JUSTICE RAKESH KUMAR JAIN **** Present: - Mr.Adarsh Jain, Advocate for the petitioner. Mr.Onkar Rai, Advocate for respondent No.1 Mr.Sandeep Punchi, Advocate for respondent No.2. **** RAKESH KUMAR JAIN, J. (ORAL) This revision petition has arisen out of order passed by the Additional District Judge, Faridabad dated 21.3.2009, who has passed the order as Tribunal constituted for entertaining and deciding the cases of the Wakf Board vide Haryana Government Notification No.18/2/96-3JJ (1) dated 25.9.2001. Petitioner/plaintiff filed a suit for declaration with consequential relief of permanent injunction alleging herself to be the owner and in possession of the agriculture land as a co-sharer bearing Khewat No.203/191, Khatoni No.229, Khasra No.80(16-5) total land measuring 16 kanals 5 marlas situated within the revenue estate of village Narhawali, Tehsil Ballabgarh, District Faridabad. She alleged that the defendant, namely, Haryana Wakf Board has played a fraud upon her and has got executed a Patta order in favour of defendant CR No.5594 of 2009 (O&M) - 2 - No.1 illegally and unlawfully vide order No.25/Lease- Rural/F.No.122/06-14578 dated 30.6.2006 in respect of land measuring 2 kanal in Khasra No.80 for the year 2006-07 & 2007-08 without any right or title. In the prayer clause, she has sought a decree of declaration to the effect that the Patta order No.25/Lease- Rural/F.No.122/06-14578 dated 30.6.2006 is illegal null and void and not binding upon her rights and she is the absolute owner and in physical possession of the land as a co-sharer. In the suit, she had also prayed for consequential relief of permanent injunction for restraining the defendants from interfering in her possession. During the pendency of the suit, defendants filed an application under Order 7 Rule 11 of the Code of Civil Procedure, 1908 (for short ‘CPC’) for rejection of the plaint on the ground that it is barred under the provisions of Section 89 of the Wakf Act, 1995 (for short ‘the Act’). It was submitted that section 89 of the Act provides that “no suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any rules made thereunder, until the expiration of two months next after notice in writing has been delivered to, or left at, the office of the Board, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left”. The learned trial Court non-suited the petitioner and allowed the application of defendant No.2 on the ground of non- compliance of Section 89 of the Act by the plaintiff observing that the provisions are mandatory in nature and since no notice of two CR No.5594 of 2009 (O&M) - 3 - months, as required, was given by the plaintiff, therefore, in the absence of the same, the plaint was rejected. Aggrieved against the impugned order, plaintiff has come up in Civil Revision before this Court in which learned counsel for the petitioner has vehemently argued that the suit is in the nature of declaration in respect of pre-existing title of the plaintiff in the suit property. It is also submitted that in case of any fraud having been played upon her, she has a right to challenge that fraud by way of Civil Suit before the Civil Court and for that purpose Section 89 of the Act would not come in her way as she is not challenging any action of defendant No.2 which is purported to have been taken in pursuance to the Act or Rules. On the contrary, learned counsel for respondent No.2 has submitted that averments made in the plaint by itself suggested that the plaintiff has sought declaration of her title while challenging action of defendant No.2 by which lease of the land of the plaintiff has been given to defendant No.1. He also drew the attention of this Court to Section 32(j) of the Act which provides that the power of respondent “to sanction any transfer of immovable property of a Wakf by way of sale, gift, mortgage, exchange or lease, in accordance with the provisions of this Act”. Learned counsel for defendant No.2 has also relied upon a decision of the Madras High Court in the case of “M.S. Abdul Hameed Vs. S.M. Sheik Mohammed and others” AIR 2003 MADRAS 179 to contend that provisions of Section 89 of the Act are mandatory and also relied upon a decision of this Court in the case of “Arya Prithinidhi Sabha (Punjab), Jullundur now Haryana Sirsa Vs. Punjab Wakf Board, Ambala Cantt.” 2000(1) PLR 92 to CR No.5594 of 2009 (O&M) - 4 - contend that even in case of declaration, this Court has held that notice of two months is mandatory under Section 89 of the Act and if the same has not been given then the suit is bad in law. I have heard both the learned counsel for the parties and perused the record with their assistance. Before adverting to the facts of this case, it would be worthwhile to refer to the provisions of Section 89 of the Act which reads as under: “89. Notice of suits by parties against Board - no suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any rules made thereunder, until the expiration of two months next after notice in writing has been delivered to, or left at, the office of the Board, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left”. No doubt that the plaintiff has filed a suit for declaration but to declare herself to be owner of the property in dispute having been purchased by her being co-sharer of the land measuring 16 kanals 5 marlas she has categorically alleged that out of the said land, 2 kanals of land has been leased out fraudulently by defendant No.2 in favour of defendant No.1 without any authority and have also CR No.5594 of 2009 (O&M) - 5 - prayed for declaration of the said lease by defendant No.2 in favour of defendant No.1 as illegal and not binding on the rights of the plaintiff. Thus, in my view, the suit is basically to challenge the act of the defendant No.2, which has been taken in pursuance of Section 32(j) because Section 32(j) provides power to the defendant No.2 to transfer the immoveable property by way of lease as well. The question as to whether the lease has been rightly executed or it has been illegally executed, as alleged by the plaintiff is a question of fact which is to be decided by the Court. In so far as the nature of Section 89 of the Act is concerned, it is rightly held by the Madras High Court in the case of M.S. Abdul Hameed (Supra) that the provision is mandatory and if it is not complied with then the suit is not maintainable. In the case of Arya Prithinidhi Sabha (Punjab), Jullundur now Haryana Sirsa (Supra) this Court had allowed an application filed under Order 7 Rule 11 of the CPC where plaint filed by the appellant was rejected on the ground that as per Order 7 Rule 11 of the CPC where the suit appears from the statement in the plaint to be barred by any law the plaint has to be rejected. Thus, the upshot of the entire discussion is that there is no error in the order of the learned Court below as the suit has been filed without complying the provisions of Section 89 of the Act, which are mandatory in nature. In view thereof, the present revision petition is dismissed, though, without any order as to costs. (RAKESH KUMAR JAIN) 19.08.2010 JUDGE Vivek