Civil Revision No. 719 of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Civil Revision No. 719 of 2006 Date of decision: 27.01.2010 Punjab Wakf Board (A body corporate) ....Petitioner Versus Bimal Kumar and another ....Respondents CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA Present: - Mr. Arun Palli, Sr. Advocate, with Mr. Kanwal Goyal, Advocate, for the petitioner. None for the respondents. VINOD K. SHARMA, J.(ORAL) The petitioner has invoked the supervisory jurisdiction of this Court under Article 227 of the Constitution of India, to challenge the judgment and decree dated 6.10.2005, passed by the learned Additional District Judge, Bathinda, dismissing the suit filed by the petitioner. The plaintiff/petitioner filed a suit for possession in respect of shop having an area of 121.05 sq. feet, comprised in khewat No.1, khatauni No. 16, khasra No. 13/13/1min, situated within the revenue limits of village Haji Rattan, Bathinda, Tehsil and District Bathinda. It was the case of the plaintiff/petitioner, that the shop in dispute was property of Dargah Haji Rattan, Bathinda, and vests in the Board, in pursuance to the gazette notification of the Government of India dated 7.8.1971. The possession of defendant/respondent No.1 over the shop was said to be illegal, unauthorised and against the law and the rights of the Board. It was claimed, that the plaintiff/petitioner was Civil Revision No. 719 of 2006 -2- entitled to possession of the shop. The suit was contested, wherein the averments made in the plaint were controverted by asserting, that the suit property was not Wakf property. It was also pleaded, that ad valorem court fee has not been paid. The suit was said to be bad for mis-joinder and non-joinder of necessary parties. It was claimed, that defendant/respondent No.2 was recorded as owner of the suit property in the municipal record since 1970-71. The electric connection was in his name for last 27 years. The medical shop was being run under a valid licence. Plea of adverse possession was also taken. The learned Tribunal, on appreciation of evidence, recorded a positive finding, that the suit property did not vest in the Punjab Wakf Board and the plaintiff/petitioner was not entitled to possession of the premises. It was also held, that the plaintiff had no locus standi to maintain the suit. The learned Tribunal also recorded a finding, that defendant No.2 had become owner of the property by way of adverse possession, as his possession was open, notorious, continuous and hostile against the true owner. The suit was held to be filed by duly authorised person, but held to be not maintainable. The learned Tribunal also held, that the suit was properly valued for court fee and jurisdiction. It was also held, that the plaintiff was not estopped by its conduct from filing the suit. The suit was also held not to be frivolous and vaxatious. As a result of the findings referred to above, the suit filed by the plaintiff/petitioner was dismissed. Mr. Arun Palli, learned senior counsel, appearing on behalf of the petitioner, vehemently contended, that the learned Tribunal wrongly Civil Revision No. 719 of 2006 -3- held that respondent No.2 had become owner by way of adverse possession. This finding recorded by the learned Tribunal cannot be sustained, as according to the Wakf Act, the plea of limitation is not available against the Board, therefore, there can be no question to declare the occupant of the Wakf property to have become owner by way of adverse possession. There is force in this contention of the learned senior counsel. The finding of the learned Tribunal, holding defendant/respondent No.2 to be owner by way of adverse possession cannot be sustained. The reversal of this finding will not change the fate of the case, as in order to succeed in the suit of possession, it was for the plaintiff/petitioner to prove its ownership over the suit property, and further that defendant No.1 was in unauthorised possession. The petitioner failed to prove both these requirements. The learned senior counsel for the petitioner contended, that the finding of the learned Tribunal, that the plaintiff/petitioner failed to prove ownership, cannot be sustained, as the notification describing the property to be that of Wakf, was not challenged before any Court. Therefore, this was sufficient to prove the fact that the petitioner was the owner of the property in dispute and entitled to possession. This plea of the learned senior counsel deserves to be rejected for more than one reasons. Firstly, that the notification, on which the reliance is placed, cannot be treated to be binding upon the persons other than the persons interested in the Wakf. It does not bind a stranger in possession of the property. Civil Revision No. 719 of 2006 -4- This view finds support from the Hon'ble Division Bench judgment of this Court in Punjab Wakf Board Vs. Natha Singh, 1988 Revenue Law Reporter 45, wherein this Court has been pleased to lay down as under: - “10. The judgment of the High Court of Rajasthan in Radhakishan and another case (supra), was later affirmed by the Supreme Court in The Board of Muslim Wakf Rajasthan v. Radha Kishan and others, where it was held that the list of properties declared to be Wakf properties in the notification published under section 5(2) of the Act would not bind a stranger who is in possession of the property, merely because he happens to be a persons affected by the publication of the list of Wakfs. The court went on to observe as under: - “It follows that where a stranger who is a non-Muslim and is in possession of a certain property his right, title and interest therein cannot be put in jeopardy merely because the property is included in the list. Such a person is not required to file a suit for a declaration of his title within a period of one year. The special rule of limitation laid down in proviso to sub section (1) of Sec. 6 is not applicable to him. In other words, the list published by the Board of Wakfs under Sub-section (2) of S. 5 can be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises.” 11. The law thus having been settled by the higher Court of the Land, no scope survives for any Civil Revision No. 719 of 2006 -5- different view holding the field. This being so, we are with respect constrained to hold that the judgment of this Court in Avtar Singh's case (supra) does not lay down correct law, whereby it was held that by virtue of Section 6 of the Act, the list of Wakf properties published in the notification under Section 5(2) of the Act, becomes final and conclusive and is to be treated as Wakf property without any further evidence or proof. It deserves mention here that in this case, neither the earlier judgment of R.N. Mittal, J. in Punjab Wakf Board's case (supra), nor that of the Supreme Court in The Board of Muslim Wakf Rajasthan's case (supra), was cited or noticed, therefore, but for this omission, we have no doubt that Avtar Singh's case (supra), would have been decided differently. 12. It follows, therefore, that the notification under Section 5(2) of the Act declaring property mentioned therein to be Wakf property, cannot be treated as binding upon the persons other than “persons interested in the Wakf”, as defined in clause (h) of Section 2 of the Act. In the present case, besides this notification, there is no other evidence, as found by the lower appellate court, to hold that the property in suit to be Wakf property. This being so, no exception can be taken to the judgment and decree of the Lower appellate court setting aside the decree for possession granted to the Punjab Wakf Board.” Secondly, in the present case, the plaintiff/petitioner failed to connect the property with the notification. The petitioner sought possession on the basis of demarcation carried out by the officer of the Civil Revision No. 719 of 2006 -6- Board, who was also not examined either to prove the demarcation report or to connect the property, which was admittedly registered in the ownership of defendant/respondent No.2 in the revenue record for the last more than 27 years. The finding of the learned Tribunal, holding that the petitioner had failed to prove its ownership over the suit property, therefore, is upheld. Once it is held, that the plaintiff/petitioner has failed to prove that the Wakf Board was the owner of the property, it had no right to maintain the suit for possession against the defendants by claiming them to be trespassers, though duly recorded as owners in the municipal record. No ground is, therefore, made out to interfere with the well- reasoned judgment passed by the learned Wakf Tribunal. No merit. Dismissed. (Vinod K. Sharma) Judge January 27, 2010 R.S.