Case: Punjab Wakf Board, Ambala Cantt Vs. Capt. Mehar Singh and Others

2. The appellant brought this suit against the respondents for possession of a plot of open land. The land bears plot No. 32. The appellant alleged that plot No. 32 formed part of plot No. 116 and the land was Idgah. Idgah means a place of public worship. The appellants case was that the land was wakf property and was transferred to the appellant by the Custodian of Jullundur. The respondents were alleged by the appellant to be in unlawful occupation of the plot of land after the partition of India.3. The trial Court held that the land in dispute was not Idgah and there was no wakf. The suit was dismissed.4. The Additional District Judge affirmed the decision of the trial Court.5. The High Court did not admit the appeal.

Reasoning: 7. The first contention of the appellant is not supported by pleadings and proof at the trial. The appellant did not plead that there was any anterior wakf of the property prior to declaration of the same by the Custodian to be evacuee property. There is no evidence that the Custodian decided that the property was wakf property. Section 46 of the Act is not attracted.The concurrent findings in the present case are these. There is no evidence that the property in question was used as wakf property. There is no dedication of the property to be wakf property. There is no evidence that the property was determined to be wakf property by the Custodian.The appellant relied on the decision in Mazhar Husain v. Rao Bahadur Adiya (AIR 1948 PC 42  : (1948) 1 MLJ 259 ) in support of the proposition that where there is no evidence that a person ever executed a wakfnama and no direct evidence of any oral dedication by him is available the proper inference from the history of the matter, the dealings with the parties in dispute, the litigation that has affected it and the admissions and assertions made by the predecessors in title of the persons who dispute the wakf can be made about the valid creation of a wakf attaching to the properties.