Zahir Ahmad And Others vs Waqf Allah Tala
2023 Latest Caselaw 1261 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


 
Reserved
 
Reserved on 01.12.2022
 

 
Case :- SECOND APPEAL No. - 2142 of 1981
 
Appellant :- Zahir Ahmad And Others
 
Respondent :- Waqf Allah Tala
 
Counsel for Appellant :- Neeraj Kumar Srivastava
 
Counsel for Respondent :- Chandra Prakash,Anubhav Chandra,C.P. Srivastava,Pavan Kumar
 

 
Hon'ble Vivek Chaudhary,J.

1. By the present second appeal, the appellant is challenging the order dated 31.07.1981 passed by learned IVth Additional District Judge, Bijnor in Civil Appeal No. 80 of 1980 ( Waqf Allah Tala (Graveyard Moh. Nelbandan) vs. Zahir Ahmed and 10 others).

2. A suit for permanent injunction and delivery of possession bearing Suit No, 560 of 1973 (Waqf Allah Tala vs. Zahir Ahmed and others), was filed by the Waqf Allah Tala through its Mutwalli/Manager Sharafat Ali. By order dated 08.12.1979, Munsif, Nagina dismissed the suit. Against the same, the plaintiff-respondent filed an appeal which was allowed by the first Appellate Court by its judgment dated 31.07.1981.

3. Brief facts of the case before this Court are that the Waqf through its manager filed a suit against the defendants-appellants praying for permanent injunction and delivery of possession claiming that the land belongs to the qabristan and the defendants have occupied and raised construction on some of the encroached portions of qabristan.

4. Learned Counsel for the defendant-appellant submits that he presses for the following substantial question of law:

whether the judgment of the First Appellate Court is perverse?

5. I have heard counsel for both parties and pursued the record with their assistance.

6. The plaintiff-respondent in his plaint has averred that the land in question is being used by local Muslims for cremating dead bodies of their departed ones. In the plaint it is claimed that for the past 100 years the disputed land is being used as a qabristan and is a Waqf, being a qabristan.

7. In its judgment, the Trial Court has held that nothing on record could show that Waqf Allah Tala was ever created and that Sharafat Ali was ever appointed as the Mutwalli/Manager of the Waqf. The First Appellate Court, without referring to any evidence reversed the finding of the Trial Court and held that Sharafat Ali is the defacto Mutwalli of the Waqf and therefore his suit for injunction on behalf of the Waqf is maintainable. There is also no finding by the First Appellate Court as to when the Waqf for management of qabristan was created. Furthermore, a perusal of the case records affirms the decision by the Trial Court that the plaintiff-respondent has not produced any evidence as to how and when the Waqf was created and he became its Mutwalli. Without referring to any evidence in this regard it was improper for the First Appellate Court to reverse the finding of the Trial Court.

8. Furthermore, it is a settled law that the estate of qabristan belongs to the State, people only have rights with regard to cremation. With the coming into force of the U.P Zamindari Abolition and Land Reforms Act, 1950 (hereinafter referred as "the Act, 1950"), it has now vested in the State. With regard to any dispute over an estate which has vested in State, the State of Uttar Pradesh is a necessary party, which is not impleaded in the suit. Therefore, a suit for settling a dispute over the property of qabristan by a Waqf or through its Mutwalli is not maintainable. Law in this regard has long been settled by a Division Bench of this Court and is still being followed. The Division Bench, while interpreting the provisions of the Act, 1950, in the case of Mohd. Naqi Khan v. State of U.P., 1965 All LJ 609 has held in paragraphs 11 to 19 as under;

"11. Sec. 4 of the Act provides for vesting of estates in the State. The question, therefore, arises whether the plot in dispute ever formed an estate as defined by the Act. For this purpose, we have to turn to the definition of ''estate' contained in Cl. (8) of Sec. 3 of the Act.

"''estate' means and shall be deemed to have always meant the area included under one entry in any of the registers described in Cl. (a), (b), (c) or (d)..... of Sec. 32 of the U.P. Land Revenue Act, 1901,...."

12. Sec. 32 of the land Revenue Act provided for the record of rights. A number of registers were prescribed by Sec. 32, Land Revenue Act. Cl. (a) of Sec. 32, Land Revenue Act prescribed a register of all the proprietors in the mohal including the proprietors of specific areas.

13. There is on the record an extract of the Khasra for village Jeanpur. In this extract plot No. 28 with an area of 304 links was recorded as grave-yard. There is also reference to khata No. 149. Neither party has filed any extract from the khewat or the khatauni. It may safely be assumed that this plot must have been comprised in some khewat khata. The learned Civil Judge remarked:

"It was not asserted before me that the land was not situated within an estate and as such I shall presume that it was situated within an estate."

14. In the grounds specified in the second appeal there is no specific ground that the learned Civil Judge was wrong in making that presumption. We have found that the plot in question was at one time wakf property. It meant that the property vested in God. That would not preclude an entry in the register prescribed by Cl. (a) of Sec. 32 of the land Revenue Act. Whether land belonged to a private person or vested in the Almighty, the land had to be mentioned in the register of proprietors. So, even wakf land will be covered by the definition of estate given in Cl. (8) of Sec. 3 of the Act.

15. Chapter IV of the Act provides for payment of compensation for loss of rights of intermediaries. Sec. 69 provides for payment of compensation to wakf, trust or endowment. Sec. 69 gives an indication that even wakf lost rights under the provisions of the Act. Considering the definition of the terms estate given in Sec. 3 of the Act and the liability of the State Government to pay compensation to wakf, it appears that even wakf property vested in the State under Sec. 4 of the Act.

16. In State of Bihar v. Kameshwar Singh it was pointed out that, a charity created by a private individual is not immune from the sovereign's power to compulsorily acquire that property for public purposes. It is incorrect to say that the vesting of these properties in the State under the provisions of the Act in any way affects the charity adversely because the net income that the institutions are deriving from the property has been made the basis of compensation awarded to them.

17. There is no indication in the Act that wakf property is exempted from the operation of Sec. 4 of the Act. On the contrary, there is specific provision for payment of compensation for wakf property. It, therefore, appears that Sec. 4 of the Act operates as regards wakf property also. So, although the plot at one time vested in the Almighty, the plot vested in the State under Sec. 4 of U.P. Act No. 1 of 1951. In spite of the vesting of the land, the defendants have recognised the right of Muslim residents of the village to bury dead bodies in the plot. The plaintiffs should have, therefore, no grievance on this ground.

18. Now we have to consider the question of ownership of the trees, Sec. 6 of the Act describes the consequences of vesting of an estate in the State. Various rights of all intermediaries vest in the State. According to sub-Cl. (1) of Cl. (a) of Sec. 6 of the Act, trees other than trees in village abadi, holding or groves vest in the State. In the present case we are dealing with trees standing on grave-yard. This is not abadi, holding or a grove. So, under Sec. 6 of the Act, all these trees vested in the State.

19. Sec. 117 of the Act provides for vesting of certain property in Gram Samaj. The property so vesting in Gram Samaj includes all trees other than trees in a holding or on the boundary thereof or a grove or abadi. The present case does not fall within the exceptions given in Cl. (3) of Sec. 117 of the Act. The combined effect of Secs. 4, 6 and 117 of the Act is that the trees in dispute now vest in the Gram Samaj. The Gram Samaj is competent to dispose of the trees. The plaintiffs cannot claim any injunction with respect to the trees."

9. Thus, from the above discussion it is clear that without proving the title, the suit on behalf of the Waqf is not maintainable. Furthermore, all qabristan existing prior to the enactment of the Act, 1950 vests in the State therefore, State of U.P. is a necessary party and without impleading the same, the suit is not maintainable. The Second Appeal is allowed, the judgment dated 31.07.1981 by the First Appellate Court is set aside.

.

(Vivek Chaudhary,J.)

Order Date :- 12.1.2023

Arjun/-