Monday, 29 May 2017

Whether nature of Wakf property changes if it is leased?

It is settled principle of law that once a wakf always a
wakf. The property which has been found as a wakf always retain its
character as a wakf. Mere leasing out of such property in any manner

will not nullify the original character of the property.
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
 Civil Revision No.2042 of 2016 (O&M)
 Date of decision : 03.05.2016
Kullu Ram
V
Punjab Wakf Board, Ambala.
CORAM : HON'BLE MR. JUSTICE DARSHAN SINGH
Citation: AIR 2017 (NOC) 10 P&H

 The present revision petition has been preferred against
the judgment dated 16.11.2015, passed by the learned Additional District
Judge, Palwal (exercising the powers of the Tribunal under Section 83 of
Wakf Act, 1995).
2. The petitioner-plaintiff has filed the suit for declaration
that the suit property is not the wakf property. In the consequential relief,
he sought a decree for permanent injunction restraining the defendants
from dispossessing the plaintiff from the suit land measuring 1 Kanal 4
Marla detailed and described in para No.1 of the plaint within the revenue

estate of Palwal, illegally and from raising any unauthorized construction
on any part thereon and from alienating the same in any manner. In the
alternative relief, the petitioner-plaintiff has sought the decree for
possession with mandatory injunction in case the defendants are found to
be in possession of the suit property.
3. As per the case of the petitioner-plaintiff Shamlat Patti
Khel was owner in possession of the land measuring 1 Kanal 4 Marla
detailed and described in para No.1 of the plaint situated within the
revenue estate of Palwal. Before consolidation an area measuring 0-5
Biswa was shown as Banjar Kadeem and remaining 0-5 Biswa was
shown as Kabristan (graveyard) in old Khasra No.4952, which has now
been converted to Khasra No.400/1 (1 Kanal 4 Marla). The land
measuring 5 Biswa was in possession of Mangal Sain, the father of the
plaintiff, bawaja panditai. It was donated to him by way of oral gift by the
proprietors of Shamlat Patti Khel and as such the name of his father was
entered in the revenue record. It was agreed that proprietors of the
Shamlat Patti Khel will not take back the said land from Mangal Sain, the
father of the plaintiff and he will remain in possession of the land for ever
being Pandit. Mangal Sain has died. After his death the plaintiff, his son,
is owner in possession of the land in dispute and defendants have got no
right, title or interest therein. There is other Kabristan in the area of
Palwal city and is being used by the Muslims for burial purpose. The
plaintiff is in possession of approximately 200 square yards area.
Defendant No.1 claims the suit property to be as Kabristan, whereas

defendants No.2 to 6 are claiming that the same is owned by them by
virtue of oral or written purchase from the unauthorized persons. The
notification declaring the suit property as wakf property is null and void.
The suit property is not wakf property and it does not vest in the Wakf
Board. The proprietor of Shamlat Patti Khel had never withdrawn the
property from Mangal Sain nor they have transferred the land in dispute
in any manner. Defendant No.1 has got recorded the entries in his name
in the Jamabandies and Khasra Girdawaries illegally and in collusion
with the revenue authorities. The said change in the revenue record is
illegal and does not affect the rights of the plaintiff. He is still owner in
possession of the suit land. Hence the suit.
4. Defendant No.1 contested the suit on the grounds inter
alia that the suit property is a wakf property. It has vested in the Wakf
Board vide notification dated 11.04.1987. Before leasing out the said
property to defendants No.2 to 6, the same was used as Kabristan by the
Muslim community. In future also the suit property will be used as
Kabristan. The other averments in the plaint regarding oral gift by the
proprietors of Shamlat Patti Khel to Mangal Sain, the father of the
plaintiff and that the plaintiff being in possession of the land in dispute,
have been controverted.
5. Defendants No.2 to 6 are claiming themselves to be the
tenant in possession over the suit property under respondent No.1 Wakf
Board on the basis of allotment/lease.
6. From the pleadings of the parties, the following issues are

framed:-
1. Whether the property in dispute is not wakf property? OPD
2. Whether the plaintiff is entitled to relief of permanent
injunction as prayed for? OPP
3. Whether the suit of the plaintiff is not maintainable? OPD
4. Whether the suit of the plaintiff is barred by the provisions of
the Limitation Act? OPD
5. Whether the suit of the plaintiff is barred by the provisions of
res judicata? OPD
6. Whether the Court has got no jurisdiction to try the present
suit? OPD
7. Whether the suit of the plaintiff has not been properly valued
for the purpose of court fee and jurisdiction? OPD
8. Relief
7. On appreciating the evidence on record and contentions
raised by learned counsel for the parties, the learned Additional District
Judge dismissed the suit with cost. Aggrieved with the aforesaid
impugned judgment and decree dated 16.11.2015, the present revision
petition has been preferred by the petitioner-plaintiff.
8. I have heard learned counsel for the petitioner and gone
through the paper-book carefully.
9. Learned counsel for the petitioner contended that the suit
property was given to Mangal Sain, the father of the plaintiff by virtue of
oral gift by the proprietors of Shamlat Patti Kehl with promise that they
will never take back the land from his father and they will remain in
possession thereof. He contended that the suit property had never vested
in respondent No.1 Wakf Board. It was never used as Kabristan. The

notification dated 11.04.1987 is null and void and is liable to be set aside
as the suit land was never declared as wakf property nor there exist any
grave over the suit land. He further contended that from the documentary
evidence placed on record it is established that the petitioner-plaintiff and
prior to him, his father was in possession of the suit property as a result of
oral gift. The revenue entries have been changed without following the
due procedure of law. Hence, these revenue entries are illegal and cannot
be taken into consideration in favour of the respondents. Thus, he
contended that the petitioner-plaintiff is owner in possession of the suit
property and the Wakf Tribunal has wrongly dismissed the suit.
10. I have duly considered the aforesaid contentions.
11. It is settled principle of law that the plaintiff has to stand
on its own legs. He cannot take the benefit of weakness in case of
defendants. The plaintiff has laid the foundation of the case on the plea
that the land in dispute was owned by the proprietors of Shamlat Patti
Khel and the same was orally gifted to his father Mangal Sain by the
proprietors with a promise that they will not take back the land from him
and he will always remain in possession. So, it was incumbent upon the
petitioner-plaintiff to establish that the suit property was donated by the
proprietors of Shamlat Patti Khel to Mangal Sain the father of the
plaintiff. The petitioner-plaintiff has only produced in evidence the copy
of the Khasra Girdawari Ex.P5 for the year 1963-1965 and Khasra
Girdawari Ex.P6 for the year 1965-69 showing the Mangal Sain the
father of the plaintiff to be in possession of the land measuring 5 Biswa

out of the total land. But the petitioner has not led any evidence to
establish as to how these entries came to be recorded in favour of Mangal
Sain the father of the plaintiff. If there would have been any oral gift by
the proprietors of Shamlat Patti Khel, there must have been entered a
mutation in favour of the father of the plaintiff, but no such mutation has
been brought on record. The name of the father of the plaintiff does not
figure in the Jamabandi for the year 1957-58 Ex.P8 and then in the
Jamabandi Ex.P15 for the year 1974-75. Thus, some entries in the
revenue record without any foundation in favour of father of the
petitioner-plaintiff will not establish the plea raised by the petitionerplaintiff
that the land in dispute was donated to his father by the
proprietors of Shamlat Patti Khel. Had there been any such oral gift, the
entries thereof must have been recorded in the revenue record.
12. The plaintiff while appearing in the witness box has
stated in the cross-examination that he had last seen the gift deed when
the present suit was filed. On one hand, the plaintiff has pleaded in the
plaint that there was oral gift in favour of his father, whereas in the crossexamination
he has taken the stand that he has seen the gift deed when
the present suit was filed, which shows a clear cut contradiction in the
stand of the petitioner-plaintiff with respect to the mode of gift.
13. In the copy of Jamabandi for the year 1957-58 Ex.P8 and
1974-75 Ex.P15 Makbuja Malkan have been shown to be in possession of
the suit land.
14. The suit property has vested in the Punjab Wakf Board

vide notification dated 11.04.1987 Ex.D6. Plaintiff Kallu has stepped
into the witness box as PW1. He has admitted in the cross-examination
that after the year 1972, the Wakf Board has been recorded as owner of
the suit property in the revenue record. He has further admitted that
Punjab Wakf Board has been leasing out the land in question after the
year 1973 continuously which proves that at least since the year 1973 the
plaintiff is not in possession of any part of the suit land. The notification
declaring the suit property as the Wakf property has been issued on
11.04.1987 and much prior to that plaintiff was out of the possession of
the suit property. So, obviously he had no locus standi to challenge the
notification dated 11.04.1987 and seeking the declaration that the suit
property is not the Wakf Board.
15. As the plaintiff-petitioner is not proved to be in
possession of the suit property, so he is not entitled for the relief of
injunction. The plaintiff has also sought the relief of possession, in case it
is found that he is out of possession. For claiming that relief of
possession, the plaintiff was required to establish his title to the suit
property but the plaintiff has not been able to establish that the suit
property was ever orally gifted to his father Mangal Sain, rather the
revenue record and notification dated 11.04.1987 shows the same to be
wakf property.
16. It is settled principle of law that once a wakf always a
wakf. The property which has been found as a wakf always retain its
character as a wakf. Mere leasing out of such property in any manner

will not nullify the original character of the property. Reference can be
made to case Sayyed Ali Vs. Andhra Pradesh Wakf Board, Hyderabad,
1999 (2) RCR (Civil) 32.
17. The suit of the plaintiff is also barred by the limitation as
the notification declaring the suit property as wakf property has been
issued on 11.04.1987 and the present suit has been filed on 11.09.2013,
which should have been filed within three years from the date of the
notification. Moreover, the plaintiff is also out of possession as he has
admitted that the suit land has been lease out by the Wakf Board since the
year 1973.
18. Thus, keeping in view my aforesaid discussion, the
petitioner-plaintiff is not entitled for the relief of declaration, injunction
and possession as prayed for in the suit and I do not find any illegality in
the findings recorded by the learned Tribunal.
19. Consequently, the present revision petition being without
any merits is hereby dismissed.
03.05.2016 ( DARSHAN SINGH )

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