C.R. No.4831 of 2004 (O&M) -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT CHANDIGARH C.R. No.4831 of 2004 (O&M) Date of Decision: 20.10.2009 Punjab Wakf Board (now Haryana Wakf Board) .....Petitioner Versus Amar Nath Malik and others ...Respondents Present: Mr. Jai Bhagwan, Advocate for Mr. Arun Palli, Sr. Advocate for the petitioner. None for the respondents. CORAM:HON'BLE MR. JUSTICE K. KANNAN 1. Whether Reporters of local papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporters or not ? Yes 3. Whether the judgment should be reported in the Digest? Yes -.- K. KANNAN J.(ORAL) 1. The civil revision is against the order of the Wakf Tribunal dismissing the suit for recovery of possession from the hands of the respondents. The contention of the Wakf Board was that the property had been constituted in wakf and that it had granted a licence to one Mangu Ram and after his death, his wife and children were in possession of the property. The contention of the Wakf Board was that they had no right to continue in possession and that the possession was unlawful. A written statement was filed by the respondents denying that there was any instrument of licence in favour of Mangu Ram and contended that Mangu Ram was in possession of property, which was an evacuee C.R. No.4831 of 2004 (O&M) -2- property, in his own right and after his death, all the respondents had been in possession in assertion of their own right and that they had in an event, prescribed title to the property by adverse possession. 2. At the trial before the Wakf Tribunal, some affidavits of the respondents had been filed in Court to show that the respondents had admitted title of the Wakf Board and had sought for permission to continue in possession by suitable allotment to them. These affidavits were themselves not referred to in the plaint but tendered in evidence through a witness, who admitted that he was not personally aware of the affidavits when they were written. Of the defendants, only the 2nd defendant was examined and the affidavit was confronted to the defendant, who denied having executed any such affidavit. The Court found that the Wakf Board had not established its title but held that the defendants had prescribed the title to the property by adverse possession. 3. Learned counsel appearing for the Wakf Board submitted that if it was an evacuee property then the property, which was granted in wakf would be restored only to the Wakf Board and relies in support of his contention the decision in Punjab Wakf Board Vs. Bachan Chand 1988 PLJ 436. The decision of the Hon'ble Supreme Court was with reference to a proposition that title would vest in a Wakf Board in the same C.R. No.4831 of 2004 (O&M) -3- manner and in the same effect as in a trustee of such property for the purposes of sub-section (1) of Section 11 Administration of Evacuee Property Act from the date of such entrustment. A wakf property which was declared evacuee property on account of migration of trustees of wakf to areas now forming part of Pakistan must be treated as having vested in the Custodian under the Administration of Evacuee Property Act and the only fact that the trustees had become evacuees and that new trustees were not appointed, will not cast any impediment for the vesting of the property with the Wakf Board. The judgment of the Hon'ble Supreme Court proceeds on the basis that it was an admitted fact that the property, which was in dispute was a wakf property initially and that the trustees had evacuated by migration to Pakistan. The Wakf Board had itself not appointed any trustees for taking possession of property and the only fact that new trustees had not been appointed in the place of evacuees, would not detract from the vesting of title in favour of the Wakf Board. In this case, there has been no admission at any point of time that it was a wakf property and that there had been an endowment in favour of the wakf. 4. In State of Bihar Vs. Kumar Amar Singh AIR 1955 SC 282, the Hon'ble Supreme Court held that evacuee property may also be wakf property but in yet another case in Punjab Wakf Board Vs. Capt. Mehar Singh (1975) 2 SCC 643, explained that C.R. No.4831 of 2004 (O&M) -4- exercise of powers by the Board under the Muslim Wakf Act in respect of Muslim evacuee property in trust does not establish the ideatily of property to be wakf property. The mere statement in defence that the suit property was evacuee property only meant that the occupiers of the property had migrated during partition and it had fallen vacant. It would be absurd to suggest that every evacuee propery is wakf property. 5. Learned counsel also places reliance on the judgment of the Hon'ble Supreme Court in Syed Mohd. Salie Labbai (dead) by L.Rs and others Vs. Mohd. Hanifa (dead) by L.Rs and others AIR 1976 SC 1569 to the effect that a wakf declared as such shall continue to be a wakf property at all times on a principle that “once a wakf always a wakf”. The conclusive proof of the public graveyard by description of the burial ground in the revenue records was found in that case as sufficient proof of the dedication of the property as wakf. I sought the assistance of the learned counsel appearing for the petitioner to show how the property had first become dedicated in wakf and I am unable to secure any help from the learned counsel except his reliance on the affidavits and a notification, which had been issued on 21.11.1970 that it was a wakf property and that it was in unauthorized occupation. The notification enables a certain evidentiary value as regards persons who become privies to any transaction recognizing the Wakf Board as owner. The dispute C.R. No.4831 of 2004 (O&M) -5- relating to wakf property which the law allows through Section 6 of Wakf Act to be adjudicated within a year only applies to certain classes of persons mentioned in this Section. If the contest in defence is at the instance of a stranger, who set up title in himself, unless the property shown as wakf was constituted in a wakf, the mere notification will not help. In this case, there is no contention or proof that the notification in 1970 had been issued only after notices to the defendants who were admittedly in possession. The Hon'ble Supreme Court in Punjab Wakf Board Vs. Gram Panchayat (2000) 2 SCC 121 has laid down that an utter stranger in occupation of the property, whose occupation is characterized even by the plaintiff as unlawful will not be barred from contending that a particular property found in the notification did not belong to the wakf. 6. If the plaintiff cannot show that the property is the property constituted in wakf, the bar of Section 107 of the Wakf Act from raising a plea of adverse possession will not be operative (see Abdul Rais Vs. M.P. Wakf Board (2005) 1 SCC 741). The inapplicability of the Limitation Act as found in Section 107 of the Wakf Act is itself only prospectus, as held by the Hon'ble Supreme Court in T. Kaliamurti Vs. Five Gori Thaikal Wakf (2008) 9 SCC 306. The defendants had been admittedly in possession of the property more than 12 years prior to the institution of the suit and no documents are forthcoming C.R. No.4831 of 2004 (O&M) -6- from plaintiffs to show that their possession was in any way permissive. The affidavits filed before Court purporting to be statements by defendants had not been referred to in the plaint and the only person to whom it was confronted had denied it. There was no attempt by the Wakf Board to prove that there had been any letters from the defendants admitting the title of the Wakf Board and seeking for allotment of the property to them for their further continuance in occupation. The decision of the Wakf Tribunal rejecting the contention of the Wakf Board under the circumstances was perfectly justified and there is no merit in the revision. 5. The revision petition is dismissed. There shall be, however, no direction as to costs. (K. KANNAN) JUDGE October 20, 2009 Pankaj*