Kartar Singh and Ors v. Pb. Wakf Board

IN T

(103) Kartar Singh Punjab Wakq CORAM:

Present:

ALOK JAIN

respondent-P respect of la Khatoni No. jamabandi fo Tehsil Tarn T

¶2Kabristan an Notification, stand that the Corporate bo by the appell said property

THE HIGH COURT OF PUNJAB CHANDIGAR h and others Versus q Board HON'BLE MR. JUSTICEALO

**** Mr. Baldev Raj Mahajan, Senior Mr. Mayank Vashishth, Advoca Ms. Prerna Malhotra, Advocate Mr. Manoj K. Sharma, Advocate

**** N, J. (Oral) The present appeal arises out o Punjab Wakf Board, whereby, th and measuring 23 kanals 4 ma 400 comprising Khasra Nos. 19 for the year 1983-84 situated in Taran, District Amritsar. The plaintiff claimed the suit nd claimed itself to be the owne however, the appellants-defend e suit was barred by limitation a ody.It was also submitted that th lants(herein) on 02.04.1969 and y since then and hence, they are B AND HARYANA AT RH RSA-1684-1992 Date of Decision:-20.11.2024 ……Appellants ……Respondent OK JAIN r Advocate with ate and for the appellants. e for the respondent. of the litigation initiated by the hey filed a suit for possession in arlas bearing Khewat No. 191, 98, 197, 196 as mentioned in the n the area of village Fatehabad, land to be the Gair Mumkin er on the strength of the Gazette dants in their defence took the and the Board is not a registered he said suit land was purchased d they were in possession of the the bona fide purchasers of the

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¶3first issue as regard, PW-1 Gazette Noti plaintiff-Boa exercise all t defend the su that the prop for which the Officer as PW dispute was plaintiff also 1983-84 asE that of the y 1962-63 as E of the suit lan present appe the land in d the year 1965 Muslim gra defendants/p dated 02.04. proved the e the basis of w

valuable consideration, without t r. Both the parties led extensive to whether Sh. K. Sheikh, is co 1 Sadik Hussain, Estate Officer ification dated 15.03.1988 issue ard testified that the said person the powersas mentioned in the uit(s) on behalf of the plaintiff B erty in dispute was Gair Mumki e plaintiff examined two witness W1 and Sh. Amir Hassan as PW Kabristan and same was own o tendered in its evidence, the c x. P-3, jamabandi for the year ear 1968-69 as Ex. P-5 and cop Ex. P-7. In addition to the above, nd was also marked as Ex. P-7. H llants-defendants adduced coge dispute was an agricultural land 5-66 and the land in dispute wa aveyard. Further, the evidenc resent appellants, including the .1969, whereby, the present a xecution of the same in favour which they claimed themselves t therebeing any defect in the title evidence and in order to prove ompetent to file civil suit, in this on the basis of Ex. P-1 i.e. the ed by the Administrator of the n was authorized asSecretary to said notification toinstitute and Board. Further the onus to prove in Kabristan was on the plaintiff ses i.e. Sh. Sadik Hussain Estate W2, who testified that the land in ned by the plaintiff-Board. The copy of jamabandi for the year 1973-74 as Ex. P-4 and further py of the jamabandifor the year , a copy of the Khasra girdawari However, on the other hand, the ent evidence to demonstrate that and was being cultivated since s never used for the burial or as e was also adduced by the certified copy of the sale deed appellants (original defendants) of the appellants-defendants on o be the bonafide purchasers for

e e s e e o d e f e n e r r r i e t e s e d ) n r a valuable c appellants-de the year 196 jamabandi o the said land Court after a which read a

consideration in possession of efendants also tendered into evid 68-69, 1973-74, 1978-79 and th f the year1958-59 and 1983-84 d with the Maharaja Jagjit Singh appreciating the entire evidence s under:

"As a result of myd land in dispute is neither same is owned by the pla I hold defendant Kartar S suit land from Sunder Si vide sale deed dated 2.4. is Ex. D1 and they are o in dispute by virtue of the that the defendants did from the revenue record b as such, they are held to the land in dispute for v have purchased this land the title of their vendor a contained in the copy of th 84 Ex. D16 showing the P are wrong and are liable said revenue document vendees of the said suit la ownerof the land in dispu plaintiff has failed to prov dispute, as such, it is hel entitled to the possession decide issue nos. 2,5,6, a the defendants and agains the suit property. The present dence the copy of Jamabandi for he Khasra girdwari and also the which showed the ownership of of Kapurthala. The learned trial held the following observations discussion above, I hold that the r gair mumkin kabirstan nor the intiff Board. On the other hand, Singh etc. validly purchased the ingh for valuable consideration 1969, a certified copy of which wners in possession of the land e sale deed. It is further proved verify the title of their vendor before purchasing the same and o be the bonafide purchasers of valuable consideration and they d without notice of any defect in and its effect is that the entries he jamabandi for the year 1983-Punjab Wakf Board as its owner e to be set aside. Instead in the ts, the defendants being the and are liable to be recorded as ute. It is further held that as the ve that it is owner of the land in ld that the plaintiff Board is not of the land in dispute. As such, I and 7 accordingly in favour of st the plaintiff."

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¶4preferred an first Appella returned a fin change of ow record and th same being b at the time, a brought abou and hence v lengthy argu by the prese decreed the s

¶5appeal and t notice of mot admitting the was stayed s for the mesn shall be accep

¶6upon the judg of "Bhagwa others", 202 remanded ba

Feeling aggrieved by the dism appeal which came to be allow ate Court discussed with regard nding that the objection raised b wnership in favour of the plain he alleged relevant mutation whi brought at the back of the parties as untenable due to the fact tha ut in the jamabandi after the yea void. The first Appellate Court uments and the alternative plea o ent appellants and reversed the suit. Thereafter, the present appellan this Hon'ble Court vide order d tion granted status quo in favour e present appeal vide order date subject to the condition that the ne profits within six weeks befo pted by the trial Court after notic Learned counsel for the appella gment passed by the Co-ordinate anti (Deceased) Through LRs 24 SCC Online P&H 9621, ack to the first Appellate Court missal of the suit, Wakf Board wed on 29.05.1992 in which the to the various jamabandies and by the present appellants that the ntiff-Wakf Board in the revenue ich were stated to be void as the s who were owner in possession at the very change of ownership ar 1947 was per se unauthorized t resisted itself to consider the of the adverse possession made findings of the trial Court and nts preferred the present second dated 26.08.1992 while issuing r of the appellants. Further while ed 24.12.1992, the dispossession appellantsshall furnish security ore the trial Court. The security ce to the respondent. antsat the very outset has relied e Bench of this Court in the case Vs. Punjab Wakf Board and wherein, the matter has been t with a direction to decide the

d e d e e e n p d e e d d g e n y y d e d n e matter afresh judgment pas property is re the case of "S of Tamil N parameters a paragraphs:

h, after considering all the aspe ssed by the Hon'ble Apex Court equired to be proved. The Apex "Salem Muslim Burial Ground P Nadu and others," 2023 AIR and it would be imperative to re "24. Only two argumen before us. The first is tha and, therefore, mere non "suit land" over the last its nature so as to confe respondents much less th of power under Section secondly, the claims of cl land having been dism Officer, Director of Sur Revenue and by the High Division Bench of the H appellate power could ha the writ appeals but consideration of the cla Abolition Act that too whi

¶25Under the Muslim several ways but primar any movableandimmova professing Islam for any law as pious, religious or absence of such dedicatio come into existence by lon

¶26Ordinarily, a wakf express dedication of mov ects of the matter including the t explaining as to how the Wakf Court in the judgment passed in Protection Committee Vs. State SC 2769, has laid down the eproduce the following relevant nts were advanced by Mrs. June at once a wakf is always a wakf burial of the dead bodies on the 60 years or so would not alter er any right upon the claimants hat of ryotwari patta in exercise n 19A of the Abolition Act; laimants respondents in the suit issed by the ASO, Settlement rvey and Settlement, Board of h Court in writ jurisdiction, the High Court in exercise of its ave either dismissed or allowed could not have directed for aims under Section 19A of the ile dismissing the writ appeals. law, a wakf can be created in rily by permanent dedication of able property by a person purpose recognized by Muslim r charitable purpose and in the on, it can be presumed to have ng use. f is brought into existence by any vable or immovable property for

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religious or charitable pu Law. Once such a ded sought to be dedicated ge the person creating or Almighty Allah. The w permanent nature and ca subsequently. The propert cannot be sold or transfer

¶27The dedication res may at times in the abse may also be reasonably circumstances of the ca property as a wakf prope use for religious or publ regard, reference may Bench decision of this Co Vs. Mahant Suresh Das a

¶28In the case at han from the very inception a the suit land for any p purpose by anyone profe admitted facts, the wakf b ruled out.

¶29The only issue, the would constitute a wakf by ground which practice ha last over 60 years since t even no concrete evidence land prior to the year 19 used as a burial groun alleged use of the suitland or 1867 is not sufficient to absence of evidence to sh cannot constitute a wak urpose as recognized by Muslim dication is made, the property ets divested from the wakif, i.e., dedicating it and vests in the wakf so created acquires a annot be revoked or rescinded ty of the wakf is unalienable and rred for private purpose. ulting in the creation of a wakf ence of any express dedication y inferred from the facts and ase such as long usage of the erty provided it has been put to lic charitable purposes. In this be had to the Constitution ourt in "M. Siddiq (D) thr. L.Rs. and Ors.", (2020) 1 SCC 1. nd, there is no iota of evidence as to any express dedication of pious, religious or charitable essing Islam. Therefore, on the by dedication of the suit land is erefore, is whether the suit land by user as it was used as a burial as been stopped at least for the the year 1900 or 1867. There is e on recordto prove that the suit 900 or 1867 was actually being nd (kabristan). Therefore, the d as burial ground prior to 1900 o establish a wakf by user in the how that it was so used. Thus, it kf by user also. The alleged

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recording of the suit land ground is a misnomer or the suit land, if at all rudrabhoomi which deno cremation ground and kabristan. It was only Za No.2253 (new T.S. No.1) alone was recorded as a specifically demarcated a The said burial land had a Wakf Board and its recor upon the nature of the sui a burial ground or a kab was not proved to be a There is no evidence to p suit land either by dedicat

¶30The another limb o land has been declared notification dated 29.04.1 noted that such a declar with the provisions of th Act, 1995. Both the a procedure for issuing not as a wakf.

¶31The Wakf Act, 1954 our purpose, provides tha wakfs has to be conducte shall, after such inquiry submit its report to the S factors enumerated th Government by a notifica for a second survey to procedure of survey is com thereto have been settled d as a kabristan or as a burial r a misconstruction inasmuch as l, came to be recorded as a otes 5 (2020) 1 SCC 1 Hindu not a burial ground or a amin Survey No.5105 or O.T.S. with two tombs existing which burial ground. The said land is and separated from the suit land. already been handed over to the rding as such would not impact it land so as to constitute it to be bristan. Therefore, the suit land wakf land by long usage also. prove creation of a wakf of the tion or by usage. of the argument is that the suit d to be a wakf property vide 1959. In this regard, it has to be ration has to be in consonance he Wakf Act, 1954 or the Waqf aforesaid Acts lay down the tification declaring any property 4, which actually is relevant for at, first, a preliminary survey of ed and the Survey Commission y as may be deemed necessary, State Government about certain herein whereupon the State ation inthe official Gazette direct be conducted. Once the above mpleted and the disputes arising d, on receipt of the report, the

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State Government shall f The Wakf Board on exam listof wakfs in existence official Gazette as conte Act. Similar provisions ex

¶32A plain reading of Acts would reveal that the both the Acts declaring th published after completio under Section 4 of the abo surveys, settlement of di submission of the report the Board. Therefore, co declaring a property a w In the case at hand, ther record that before issuing the Wakf Act, 1954, any conducted as contemplate absence of such a mate notification under Sectio constitute a valid wakf Therefore, the notificatio conclusive proof of the fa property. It is for this rea Committee had never pr service up till 1999.

¶33In "Tamil Nadu W

(Dead) by Lrs. Etc.", AIR that the Wakf Board sh required under Section Wakf Act before notifyin the Act.

¶34In "Madanuri Sri Syed Jalal,(2017) 13 SCC forward it to the Wakf Board. mining the same shall publish the e with full particulars in the emplated under Section 5 of the xist under the Waqf Act, 1995. f the provisions of the above two e notification under Section 5 of he list of the wakfs shall only be on of the process as laid down ove Acts, which provides for two isputes arising thereto and the to the State Government and to onducting of the surveys before wakf property is a sine qua non. e is no material or evidence on g notification under Section 5 of y procedure or the survey was ed by Section 4 of the Act. In the erial, the mere issuance of the on 5 of the Act would not f in respect of the suit land. on dated 29.04.1959 is not a fact that the suit land is a wakf ason probably that the appellant ressed the said notification into Wakf Board Vs. Hathija Ammal R 2002 SC 402, it was observed hould follow the procedure as 4, 5 and 6 or Section 27 of the ng the wakfs under Section 5 of i Rama Chandra Murthy Vs. C 174, it was observed as under:

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"16. Thus, it is amp survey by the Surve a report and forwa the Wakf Board pr such list in the Off the 1995 Act (it wa Act). As mentioned 2002 SC 402 7 (201 Survey Commissio and after valid s application of min under sub-section ( informal enquiry b at the grass root le is a wakf propert Board will once ag with due applica thereafter the same for notifying the sam

¶35It may be noted th authority under the Wak Gazette is bound to carry of the Wakf Board but no is not bound by such a published in the official that it has been so p Pradesh Vs. A.P. State SCC Online SC 159, thi (V. Ramasubramanian, J publication of a notificati presumption of knowledg an advertisement publish notification published at in the 2022 SCC OnLin mply clear that the conducting of ey Commissioner and preparing arding the same to the State or recedes the final act of notifying ficial Gazette by the State under as by the Board under the 1954 d supra, the list would be AIR 17) 13 SCC 174 prepared by the oner after making due enquiry survey as well as after due nd. The enquiry contemplated

(3) of Section 4 is not merely an but a formal enquiry to find out evel, as to whether the property ty or not.Thereafter the Wakf gain examine the list sent to it ation of its mind and only e will be sent to the Government me in the Gazette…." that Wakf Board is a statutory kf Act. Therefore, the official y any notification at the instance netheless, the State Government publication of the notification Gazette merely for the reason ublished. In "State of Andhra Wakf Board and Ors.",2022 is Court consisting of one of us J. as a Member) held that the ion in the official Gazette has a ge to the general public just like ed in the newspaper but such a the instance of the Wakf Board e SC 159 State Gazette is not

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¶7settled princ Hon'ble Ape and order dat aside and the it afresh after passed by th property is re their counsel

¶8prayed that l to substantia circumstance point of time

binding upon the State G notification, if any, publis behest of the Wakf Act giv a conclusive proof that a property especially, whe under Section 4 of the W issuing the same.

¶36In view of the afor we do not find any substan land is or was a wakf continue to be a wakf a evidence of valid creation property, it cannot be rec it to be continued as a w use or disuse as a burial g In light of the facts and circums iple of law and keeping in vie ex Court (supra), the present app ted 29.05.1992 passed by the fir e matter is remanded back to the r considering all the aspects of th he Hon'ble Supreme Court, ex equired to be proved. The partie ls before the first Appellate Cour The counsel for the responden liberty be granted to the parties ate their claims in accordanc es, as the evidence led earlier wa e and now for considering the ma Government. It means that the shed in the official Gazette at the ving the lists of the wakfs is not a particular property is a wakf en no procedure as prescribed Wakf Act has been followed in resaid facts and circumstances, nce in the argument that the suit f property and as such would always. In the absence of any n of a wakf in respect of the suit ognized as a wakf so as to allow wakf property irrespective of its ground." stances of the case along withthe ew the judgment passed by the peal is allowed and the judgment rst Appellate Court is hereby set e first Appellate Court to decide hematter including the judgment xplaining as to how the Wakf es are directed to appear through rt on 15.01.2025 at 10:00 A.M. nt-Wakf Board at this stage has to give any additional evidence e with the present prevailing as as per the requirement at that atter afresh in terms of the order

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¶9to move an additional ev the case.

20.11.2024 Parul

the Hon'ble Apex Court and be granted to the parties. In addition to the above, the libe appropriate application in acco vidence is required to be relevan

Whether Reportable:- for the reason stated above, erty is also granted to the parties ordance with law, in case, any nt for the proper adjudication of

(ALOK JAIN)

JUDGE :-

, s y f