* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No. 359/1996
% 18th February, 2011
TIRATH SINGH (DECEASED) & OTHERS ...... Appellants
Through: Mr. Vishrov Mukherjee, Advocate.
VERSUS
DELHI WAKF BOARD ...... Respondent
Through: Mr. Javed Ahmed, Advocate.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest? Yes VALMIKI J. MEHTA, J (ORAL)
1. The challenge by means of the present Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned judgment and decree dated 8.7.1996 whereby the suit of the respondent-plaintiff/Wakf Board was decreed for possession against the appellants/defendants for the property Shahji Ghatali Ka Gumbad, Khasra No.9 Hauz Rani, Malviya Nagar, New Delhi shown in red colour in the site plan Ex.PW3/1.
2. The facts of the case are that the subject property was recognized as Wakf property by virtue of a notification Ex.PW1/2 dated RFA No. 359/1996 Page 1 of 9 16.4.1970. In terms of the provision of Section 6 of the Wakf Act, 1954 as applicable in the year 1970, if any person disputed the property as not being a Wakf property, such a person had to file a suit in a Civil Court within one year of the publication of the list of Wakfs under sub section (2) of Section 6. No such suit was filed by the appellants/defendants. The respondent/plaintiff filed the subject suit for possession on 2.1.1986.
3. The appellants/defendants appeared and contested the suit and took up various defences. The first defence was that they were displaced persons from Pakistan and were therefore allotted the property by government officials. The second defence was that the appellants were in adverse possession of the subject property.
4. The trial Court after completion of pleadings framed issues on 22.7.1991 and which read as under:-
"1. Whether the plaintiff is entitled to recover the possession of the suit land from the defendants? OPP
2. Whether the plaintiff is entitlement to get the super structure demolished by the defendant on the suit land? OPP
3. Whether the present suit is barred by limitation? OPD
4. Whether the suit is bad for non-joinder and mis-joinder of necessary parties? OPD
5. Whether the suit has not been properly valued for the purpose of court fees and jurisdiction? OPD
6. Whether the suit is not maintainable in the present form? OPD
7. Whether the plaintiff is not the owner of the suit property? If so, its effect? OPD
8. Relief."RFA No. 359/1996 Page 2 of 9
5. Out of the above issues, we are concerned with issue Nos.1, 3 and 7 as it is the decision on these issues which have been challenged by the appellants. These issues have been dealt with together by the trial Court from paras 33 to 62 of the impugned judgment and decree wherein it has been held that the respondent was the owner and that the appellants had not become the owners by adverse possession.
6. The trial Court while dealing with issue Nos.1, 2 and 7 has arrived at the finding/conclusion that the respondent was the undoubted owner of the suit property because the subject property was declared as Wakf property by the notification dated 16.4.1970 exhibited as Ex.PW1/2 and to which there was no challenge. I agree with this conclusion because once the property was declared as a Wakf property, any person who sought to challenge the ownership of the Wakf Board had to file a suit in a Civil Court under the Wakf Act, 1954, as per Section 6, to challenge the publication of the property as a wakf property and which admittedly the appellants failed to do. The consequence was, and was so rightly held by the trial Court, that the subject property is undoubtedly a Wakf property and the respondent was entitled to file the suit for possession of the Wakf property. The trial Court has further disbelieved the plea of adverse possession as was the case of the appellants/defendants, on the ground that the appellants claimed to have been allotted the property by the government and since the ownership was claimed by allotment, there did not arise any issue of claiming adverse possession to the self ownership. Further, the trial Court has also arrived at a finding that the adverse RFA No. 359/1996 Page 3 of 9 possession has not been proved as a matter of fact and that merely because the appellants are sitting on the wakf property since 1947-48 will not mean that this possession will be adverse possession. Mere actual physical possession and adverse possession are two totally separate concepts. A person may be in possession, however, to claim the right of adverse possession, it is necessary that there is an overt act of claim of ownership of the property and which must be very clearly and categorically proved to have commenced at a specific point of time i.e. the month and year from which such adverse possession began, for the period of limitation, so as to give ownership rights by adverse possession to the tresspassers. I also note that the appellants failed to lead any documentary evidence whatsoever to substantiate their claim of adverse possession from the year 1947-48 or even from a later period so as to claim ownership of the property by adverse possession. Mere, oral statements/depositions cannot discharge the onus of proof which is indeed strict in the case of adverse possession which is ordinarily frowned upon by the Courts.
7. Learned counsel for the appellants basically argued the appeal under two broad heads. The first head was that the respondent was not the owner of the property and therefore the suit for possession did not lie. The second head of argument was that the appellants being in possession since 1947-48, they are therefore in adverse possession of the property and hence became owners thereof.
RFA No. 359/1996 Page 4 of 9
I may, at this stage, state that an issue came up before the trial Court as to whether at all there was a period of limitation for the Wakf Board to sue for possession of property inasmuch as the Wakf Act, 1954 was amended in the year 1985 whereby Section 66(G) was brought into effect for the first time and as per which it was stated that there is period of 30 years for the Wakf to file a suit for possession of the property. In fact, in the extant Wakf Act, 1995, there is no period of limitation because there is a specific provision, being Section 107, to the effect that the provisions of Limitation Act, 1963 will not apply for filing suits for the recovery of Wakf property. This issue of the period of limitation required of 30 years or 12 years or no period at all does not detain me because I am presuming that Article 65 of the Limitation Act, 1963 applies and in which a period of 12 years is prescribed for adverse possession to fructify into the ownership rights when read alongwith Section 27 of the said Act.
8. I am afraid I am unable to agree with any of the arguments as raised on behalf of the appellants. Firstly, the trial Court has rightly arrived at a finding that by virtue of the notification dated 16.4.1970 Ex.PW1/2, the respondent became owner of the property. Admittedly, the appellants did not file any civil suit to challenge the declaration of the property as a Wakf property. The trial Court has therefore rightly held the respondent to be the owner of the property. The counsel for the appellants sought to place reliance upon a judgment of the Apex Court reported as Board of Muslim Wakfs, Rajasthan Vs. Radha Kishan & RFA No. 359/1996 Page 5 of 9 Ors. AIR 1979 SC 289 and paragraph 39 thereof to contend that the appellants are entitled to question the ownership of the Wakf because a non-muslim can always challenge the ownership rights of the Wakf in a Wakf property and also that there was no requirement of the appellants to have filed the suit in the Civil Court within one year as provided in Section 6 of the Wakf Act, 1954. I do not understand as to how the decision in the case of Radha Kishan & Ors.(supra) would apply because this case dealt with the transfer of a wakf property and which transfer was under challenge. This case did not pertain to an issue as to declaration of ownership of the Wakf property on the ground of adverse possession.
So far as the argument that the appellants had become owners by adverse possession is concerned once again the argument is devoid of any merit. It is now settled law that the plea of adverse possession has to be very categorical and clearly proved. This plea of adverse possession must be proved by showing a clear overt act claiming ownership of the property and which is adverse to the owner or the world at large. I have already noted above that the case of the appellants was firstly that they were allotted this property being displaced persons by government officials. This plea, of course, was not proved before the trial Court. The case, therefore, of the appellants was not of adverse possession but possession through ownership by virtue of allotment. In any case, even assuming that the appellants could set up the plea of adverse possession, it had to be established by showing documents such as mutation in the municipal records, income tax records claiming RFA No. 359/1996 Page 6 of 9 ownership or other unquestionable documents to show claim of ownership of the subject property and which is something more than mere possession of the subject property.
Though the findings of the trial Court in this regard are extensive from paragraphs 33 to 62 and therefore cannot be reproduced as a whole, I would refer to some of the paragraphs and which read as under:-
"44. DW 2 has also not challenged the veracity or the authenticity of Ex.PW3/1; in fact no dispute has been raised about the area shown in occupation of the defendants or the demarcation affected by the draftsman. No objection had also been filed to the report of the Local Commissioner who had filed the site plain in court in terms of order of this court dated 14.2.1989.
48. PW 1 has proved the Gazette Notification dated 16.4.1970 as Ex.PW1/2; this notification is published in the official Gazette Under Section 5 of Delhi Wakf Act, 1954. Admittedly no challenge has been made to the aforestated publication. Under Section 6 of the said Act the suit shall be entertained by a Civil Court after the expiry of one year from the date of such a publication, Under Section 5 of the said Act.
49. In the present case if the defendants claim to be the owners of the suit property and were aggrieved by the notification dated 16.4.1970 which was a public notice and which was admittedly known to them they should have taken appropriate remedial action and challenged the same. Admittedly no such challenge was made defendants. Xxxxx
51. In the present case on 16.4.1970 it was publicly notified that the suit property had become Wakf Property. Defendants in spite of opportunity failed to challenge the aforestated notification. In fact even in their written statement there is no specific dispute raised by them that the suit property does not form a part of the Wakf Property. Had they been aggrieved by the aforesaid notification they should have filed a conderatory suit for the cancellation of the aforestated notification.
Xxxxxxx RFA No. 359/1996 Page 7 of 9
58. The defence of the adverse possession set up by the defendants is clearly sham and bogus. They have failed to establish the ingredients of the same. The plea of adverse possession can be set up only when the defendants openly and categorically claimed possession of the suit property adversely to that of the plaintiff. In the present case the possession of the defendant became adverse qua the plaintiff only on 16.4.1970 when notification to the said effect was published that the suit property was a part of Wakf Property. The defendants have been merely sitting on the Wakf property since 1947-48. Admittedly no user charges either in the form of lease money or licence fee had been paid to any person. The plea of adverse possession cannot be sustained especially in law of the admission of the defendant himself i.e. in the deposition of DW1 Shri Ajit Singh who has stated that he is the owner of the suit property and the suit property belongs to no other person. Plea of adverse possession has to be taken against the owner. In this case DW1 has stated in his examination-in-chief that this property is not owned by any other person and he is the owner of the same. In these circumstances this plea of adverse possession cannot be sustained. Even otherwise the defendant has failed to lead any evidence to the aforestated effect.
59. In view of the above discussion I am satisfied that the plaintiff has been able to establish his ownership over the suit property which has been depicted in red colour in Ex.PW3/1 which is admittedly a Wakf property. Plaintiff is clearly entitled to recover possession of the same from the defendants. It is not in dispute that apart from one room there is one tin shed apart from any open space which is in occupation of the defendants. DW 1 has admitted that certain repairs in the suit property has been carried by him. DW 2 has admitted that he has constructed one room a boundary wall therein. It is admitted in the cross examination that no permission had been taken from any authority for the aforestated construction. It is admitted that there is no bathroom in the suit property land a temporary arrangement is made there. In these circumstances it is clear that illegal construction had been made in the suit property and the plaintiff is entitled to seek demolition of the same."
9. I do not find any illegality or perversity in the aforesaid findings and conclusions of the trial Court. This Court is not entitled to interfere with the detailed findings and conclusions of the trial Court merely because two views are possible. The trial Court is entitled to take one plausible view and which view cannot be interfered with, unless the RFA No. 359/1996 Page 8 of 9 said view is perverse and causes grave injustice. I do not find that any of such ingredients exist to enable this Court to interfere with the impugned judgment and decree.
The appeal, therefore, being devoid of merits is dismissed, leaving the parties to bear their own costs. Interim orders are vacated. Trial Court record be sent back.
FEBRUARY 18, 2011 VALMIKI J. MEHTA, J.
Ne
RFA No. 359/1996 Page 9 of 9