Civil Revision No. 5387 of 2008 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 5387 of 2008 Date of decision : February 26, 2010 Punjab Wakf Board Ambala Cantt. ....Petitioner versus Mohinder Singh and others ....Respondents Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Kanwalvir Singh Kang, Advocate for Mr. Jai Bhagwan, Advocate, for the petitioner Mr. Rahul Chhatwal, Advocate, for the respondents L.N. Mittal, J. (Oral) This is revision petition under Article 227 of the Constitution of India read with section 83(9) of the Wakf Act, 1995 impugning judgment and decree dated 13.5.2008 passed by Wakf Tribunal, Faridkot. Appellant Punjab Wakf Board filed suit for possession by ejectment of defendants from suit land measuring 25 kanals 13 marlas and for recovery of Rs 6 lacs for illegal use and occupation of the suit land. Plaintiff's case is that the plaintiff is owner of the suit land. The plaintiff leased out 20 kanals out of it to defendants in the year 1983-84 on rent of Rs 510/- for one year whereas remaining 5 kanals 13 marlas land which was reserved for burial purposes has been cultivated by the defendants Civil Revision No. 5387 of 2008 -2- unauthorisedly. After expiry of lease period of one year, lease was never extended nor the defendants paid any rent to the plaintiff. The defendants possession thus became unauthorised. Defendant nos. 1 and 2 in their written statement, interalia, pleaded that they had taken the entire suit land on lease from the plaintiff- appellant in the year 1978-79 and not in the year 1983-84. It was denied that part of the suit land was reserved for burial purposes. Since plaintiff shifted its office from Faridkot to some other place without intimating the defendants, the patta or lease could not be renewed. The defendants pleaded that they have become owners of the suit land by adverse possession for which they had also filed a separate suit against Gram Panchayat etc. The plaintiff never demanded lease money from the defendants. Defendant no. 3 also pleaded same version as that of defendants no. 1 and 2. The following issues were framed:- “1. Whether the suit has been filed within the limitation ? OPP 2. Whether the suit is not maintainable in the present form ? OPD 3. Whether the plaintiff is entitled for possession of the suit land ? OPP 4. Whether the plaintiff is entitled to recover Rs 6,00,000/- as compensation on account of illegal use and occupation of the suit property ? OPP 5. Relief.” Learned Wakf Tribunal vide impugned judgment held that the suit is barred by limitation and the suit is not maintainable and plaintiff is Civil Revision No. 5387 of 2008 -3- not entitled to relief of possession. It was also held that plaintiff is not entitled to recover any amount from the defendants on account of use and occupation of the suit land. The suit was accordingly dismissed. Feeling aggrieved, the instant revision petition has been preferred because there is no provision of filing any appeal against the impugned judgment and decree of the Wakf Tribunal. I have heard learned counsel for the parties and perused the case file. Learned counsel for the respondents fairly conceded that the suit is not barred by limitation since it is based on title. Even otherwise, the defendants have admitted that they had taken the suit land on lease from the plaintiff. In view thereof, the defendants cannot plead adverse possession or title by adverse possession. In addition thereto, there is no cogent evidence to depict that the defendants' possession became adverse at some point of time after taking suit land on lease from the plaintiff. On the other hand, in view of section 116 of the Indian Evidence Act, 1872, the defendants are estopped from denying the title of the plaintiff to the suit land. Since the defendants had taken the suit land from the plaintiff on lease in beginning, the plaintiff is entitled to seek possession of the suit land from the defendants by way of their ejectment. Learned counsel for the respondents vehemently contended that in revenue records, the suit land is recorded as “Shamlat Taraf Sayal Hasab Rasad Rakba Khewat” and therefore the suit land vests in Gram Panchayat. However, no such plea has even been raised in the written statement nor Gram Panchayat is party to the suit. Learned counsel for the Civil Revision No. 5387 of 2008 -4- respondents also contended that the plaintiff has failed to prove its ownership. However, respondents cannot raise this plea in view of section 116 of the Evidence Act. In addition thereto, even in the written statement, the defendants did not deny the ownership of the plaintiff although the plaintiff specifically pleaded that the plaintiff is owner of the suit land. Learned counsel for the respondents also contended that the plaintiff has not led any evidence or notification to depict that the suit land has vested in Punjab Wakf Board. However, since the petitioner did not deny the ownership of the plaintiff in the written statement, the plaintiff was not required to produce any such evidence. On the other hand, the defendants admitted that they had taken the suit land on lease from the plaintiff and therefore, no other evidence was required to be produced by the plaintiff regarding its ownership. The defendants are estopped from denying the title or ownership of the plaintiff in view of section 116 of the Evidence Act. In view of the aforesaid discussion, findings of learned Wakf Tribunal on issue nos. 1 to 3 framed in the suit are patently illegal and unsustainable and are, therefore, reversed. It is held that the plaintiff is entitled to relief of possession of the suit land from the defendants. The suit is very much maintainable in the present form and the suit is not barred by limitation. As regards issue no. 4, the suit land was leased out at the rate of Rs 510/- per year. According to the plaintiff, the suit land was leased out in the year 1983-84 whereas according to the defendants, the suit land was leased out in the year 1978-79. No other evidence has been led regarding Civil Revision No. 5387 of 2008 -5- the amount which the suit land could have fetched except that the plaintiff produced evidence of its own revised rate of rent. However, the plaintiff is entitled to seek compensation for use and occupation of the suit land from the defendants for only three years preceding the institution of suit which was instituted on 30.8.2006. If rate of rent was Rs 510/- per year in the year 1983-84, in the year 2003-04, it must have increased substantially. The suit land is more than three acres. Although agricultural land is fetching very high rent, yet in the absence of any evidence, it would be appropriate to award compensation for use and occupation of the suit land at the rate of Rs 5000/- per annum for three years preceding the filing of the suit and also at the same rate since the filing of the suit till delivery of possession of the suit land to the plaintiff. Issue no. 4 is decided accordingly. For the reasons recorded hereinabove, the instant revision petition is allowed and the impugned judgment and decree dated 13.5.2008 passed by learned Wakf Tribunal are set aside and suit filed by plaintiff is decreed for possession of the suit land as well as for recovery of Rs 15,000/- as compensation for use and occupation of the suit land for three years preceding the filing of the suit and mesne profits at the rate of Rs 5000/- per annum since the date of filing the suit i.e. 30.8.2006 till delivery of possession of the suit land to the plaintiff. ( L.N. Mittal ) February 26, 2010 Judge 'tiwana'