Delhi High Court

Union Of India vs The Delhi Wakf Board & Anr. on 18 August, 2010

Author: Indermeet Kaur

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                         Judgment Reserved on: 13.08.2010
%                        Judgment Delivered on:18.08.2010

+                        R.S.A. No.208/1981

UNION OF INDIA                                   ...........Appellant
                         Through:    Mr.Jagjit Singh, Mr.Harkesh
                                     Chand Aggarwal, Advocates.

                   Versus

1.THE DELHI WAKF BOARD
2.THE COMMISSIONER OF WAKFS
                                         ..........Respondents
                         Through:    Ms.Noorun Nahar Firdausi,
                                     Advocate
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR

     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

INDERMEET KAUR, J.

1. This second appeal has impugned the judgment dated

23.3.1981. The first Appellate Court vide the impugned judgment

had set aside the judgment and decree of the Trial Judge dated

31.1.1979. The Trial Judge had decreed the suit of the plaintiff.

The first Appellate court had reserved the finding thereby

dismissing the suit.

2. The factual matrix revealed from the pleadings is that the

Northern Railway through the Union of India had claimed

ownership of the suit property i.e. the property bearing Khasra

No.162 situated inside City wall and within Railway Colony, Mor

Sarai, Delhi described in red in the site plan attached with the

plaint. It was stated that the Union of India was in exclusive

possession of the suit property being owned by them since the last

60 years. The defendant i.e. the Delhi Wakf Board (hereafter

referred to as the "Board") had illegally and unlawfully got it

gazetted in their name as Wakf property on 16.4.1970. The

statutory notice under Section 56 of the Wakf Act 1954 (hereinafter

referred to as „the said Act‟) had also not been issued in the

prescribed manner before institution of the suit.

3. In view of the contest raised by the defendant the Trial Judge

had framed ten issues. The Trial Judge returned a finding that the

plaintiff i.e. the Union of India is the owner of the suit property;

survey report Ex.P1, site plan Ex.P2/1, revenue record Ex.P4/6 and

Ex.P4/7 i.e. the Jamabandi and mutation evidenced the ownership

of the Northern Railway through the Union of India. There was no

evidence to show that the property had been used as a wakf

property and mere publication of the gazette notification did not

divest the ownership of the plaintiff and make it a wakf property.

The defendant had not produced any evidence to rebut the

averments of the plaintiff; there was no evidence to show that the

preliminary proceedings under Section 4 and 5 of the said Act prior

to its notification had been completed. Notice had been duly

served upon the defendant under Section 56 of the said Act before

filing the suit. Plaintiff was entitled to a decree of possession. The

suit was accordingly decreed.

4. The first Appeal Court vide its judgment dated 23.3.1981

reversed the finding of the Trial Court. It held that the Trial Court

had gravely erred in not appreciating the oral and documentary

evidence in its correct perspective. The evidence of PW-1 Sewa

Singh, Assistant Land Control Inspector, Northern Railway, PW-2

V.P.Bhandari Sub Overseer Northern Railway and PW-3 R.S.

Verma, Land Control Inspector was re-appreciated. It was held

that the gazette notification dated 16.4.1970 coupled with the oral

testimony of the aforenoted witnesses which were admissions

made by them that the property in dispute was a wakf property

was sufficient evidence to hold that the plaintiff is not the owner of

the suit property; vide gazette notification dated 16.4.1970 it had

become a wakf property. It was further held that the notice under

Section 56 of the said Act had not been given to the right authority;

it should have been given through the General Manager, Northern

Railway and the notice issued through General Manager, Baroda

House, New Delhi was a defective notice. However, on the

question of limitation the finding of the Trial judge was upheld; it

was held that the suit was within time. The appeal having been

allowed, the judgment and the decree of the Trial Judge was set

aside.

5. This is a second appeal. On 16.11.1981 the appeal was

admitted and the following substantial questions of law were

framed which read as follows:

1. Whether the plaintiff is the owner of the suit property ?

2. Whether sections 4 and 5 of the Wakf Act, 1954 have been complied with by the defendants, if not to what effect?

3. Whether the suit property is Wakf property?

4. Whether the notice under section 56 of the Wakf Act is invalid?

5. Whether the appeal before the first appellate Court was barred by time and if so whether the defendants were entitled to condonation of delay in filing the appeal?

6. On behalf of the appellant, it has been argued that the

findings of the first Appellate Court are a mis-appreciation of the

proposition of law; there was no evidence before the Courts below

to hold that the disputed property was a wakf property; Trial Court

had rightly decreed the suit of the plaintiff in his favour. It is

submitted that a „wakf‟ can be created in terms of the Section 3(l)

of Wakf Act 1954 only in three ways; i.e. either by user, by grant or

by a dedication. None of these aforenoted aspects were proved by

the defendant; the plaintiff on the other hand had proved the

mutation and the jamabandi record showing that the owner of the

disputed property was the Union of India. In view of the this

overwhelming evidence before the Court the impugned judgment

has mis-interpreted these documents of title. The finding in the

impugned judgment that the provision of Section 56 of the said Act

have not been complied with was also an incorrect finding; Section

79 of the Code of Civil Procedure (hereinafter referred to as the

„Code‟) has no application to the instant case; this provision deals

with a suit filed by or against the government; it could not have

been applied in the context of the requirements of a notice to be

served under Section 56 of the said Act. Counsel for the appellant

has placed reliance upon a judgment of the High Court of Punjab

and Haryana reported in AIR 1969 P &H 344 Panchayat Deh Vs.

Punjab Wakf Board to support a submission that in the absence of

evidence to show that the mosque in question had been used from

time immemorial the court could not have concluded that it is a

wakf property. Reliance has also been placed upon AIR 1975 SC

1891 Punjab Wakf Board Vs. Capt. Mohar Singh & Ors. to

substantiate a submission that where there is no dedication of the

property as a wakf property and in the absence of such evidence, it

cannot be termed as a wakf property.

7. Arguments have been countered by the learned counsel for

the respondent. It is submitted that the impugned judgment calls

for no interference. The court has considered the cross-

examination of the witnesses of the plaintiff wherein PW-1,PW-2

and PW-3 had all admitted that the disputed property comprised of

a mosque which is old; this evidence coupled with the notification

Ex.D-1 dated 16.4.1970 had conclusively established that the

disputed property was in fact a wakf property. It is submitted that

the arguments of learned counsel for the appellant that the

defendant had not produced the survey proceedings under Section

4 and 5 of the said Act have no relevancy. The said record is not

with the Wakf Board but it is with the State Government. Reliance

has been placed upon 2007 (4) SCC Chhedilal Misra Vs. Civil

Judge, Lucknow wherein the Supreme Court had held that once a

wakf is created it continues to retain such character which cannot

be extinguished by any act of the Mutawalli or any one claiming

through him. It is submitted that once, it has been established

that the property is being used for a purpose which the Muslim law

recognizes as pious, religious or charitable and the property is

found to be a wakf it will always continue to retain its character;

this character cannot change even if there is a non-user. It is

submitted that this proposition applies to a mosque, Idgah, Dargah

and a graveyard. It is further submitted that the Supreme Court in

CWP No.6757 of 1983 Delhi Wakf Board Vs. Union of India had

even gone on to hold that where there is evidence to show that the

disputed land contains a graveyard, the Land Acquisition Collector

shall exclude it from acquisition. The impugned judgment call for

no interference.

8. The Union of India through the Northern Railway was the

plaintiff before the Trial Court. The plaintiff had instituted a suit

for declaration to the effect that the notification in the Delhi

Gazette Ex.D-1 dated 16.4.1970 notifying the suit property as a

wakf property be declared illegal and ultra vires. Provisions of

Section 56 of the said Act (Section 89 of the Wakf Act 1995) are

mandatory. This provision mandates that no suit shall be instituted

against the Board until a two month notice has been given in

writing and delivered at the office of the Board with the complete

name, description and place of the residence of the plaintiff with

details of the cause of action as also the relief which the plaintiff

claims. In the written statement, the defendant had taken a

preliminary objection that the notice under Section 56 of the said

Act had not been served by the plaintiff and even if the same was

served the same is invalid. No other objection qua the said notice

had been taken. Ex.PW-4\1 was the statutory notice which had

been proved before the Trial Court, A.D. receipts of which has been

proved as Ex.PW-4/4 and Ex.PW-4/5; postal receipts have been

proved as Ex.PW-4/2 and Ex.PW-4/3. Contents of the said notice

have also been perused; they fulfill all the requirements of a valid

notice under Section 56 of the said Act. This issue had been

decided in favour of the plaintiff while disposing of issue no.4. This

finding had been upset by the first Appellate Court; discussion is

authored in para 17,18 and 19 of the impugned judgment. It was

held illegal for the reason that it had been issued by the General

Manager, Baroda House on behalf of the Northern Railway

Administration whereas since the plaintiff in the suit had been

described as Union of India; it should have been issued by the

Union of India through the General Manager, Northern Railway.

Reliance on provisions of Section 79 of the Code had been made.

This is an absolute incorrect application of this provision of law.

Section 79, as is evident from the reading of the said Section, deals

with the forms of suits by or against the government; it does not in

any manner apply to a notice. The finding in the impugned

judgment that where a suit had been instituted by the Union of

India, the notice, in view of the provisions of Section 79 should

have also been addressed in the name of Union of India is a

perverse finding. Even otherwise it was never the case of the

defendant (as is evident from the written statement) that the notice

had not been sent through an authorized person. The mandate

of Section 56 of the said Act had stood proved as has been

correctly appreciated and recorded by the Trial Judge; finding on

this score in the impugned judgment is accordingly set aside.

9. The impugned judgment has also recorded fact findings

based on evidence which was not there. Findings on this score are

also perverse.

10. The suit had been filed by the plaintiff seeking a declaration

that the gazette notification by the State Government declaring the

suit property as wakf property is illegal and ultra vires. The Trial

judge had framed ten issues. Issue no.2 reads as follows:-

"Whether the property in suit is Wakf Property as alleged by the deftd. ?

11. This issue has been framed on the specific plea of the

defendant in his written statement that the property in dispute is a

wakf property. The onus to discharge this issue was on the

defendant. It was for the defendant to establish that the suit

property is a wakf property. His contention is that admittedly the

suit property comprises of a mosque; a mosque is for a religious

purpose, it had become a wakf property by user. No evidence

whatsoever had been led by the defendants. Court had returned

the impugned finding holding it to be a wakf by relying upon the

cross-examination of the witnesses of the plaintiff. In this context

the testimony of the witnesses of the plaintiff have to be

appreciated. PW-1 (Assistant Inspector in the Land Control

Section) had surveyed the mosque area and had prepared the

survey report. In his cross-examination he had stated that the

disputed property is a mosque which is old but he cannot tell the

age. PW-2, (Sub-Overseer in the Northern Railway) had proved the

site plan. In his cross-examination PW-2 he had also stated that the

disputed property is a mosque but he had not seen any muslim

inside; no goods of the Railway were lying there. PW-3, (the

Land Control Inspector) had been assigned the duty to supervise

the properties of the Railway. He had made a survey of the

disputed property. In his cross-examination he had stated that

mosque is old but there is no Mullah there and no prayers are

offered; he could say whether the mosque is 100 years old or not.

This was the sum total of the evidence which has been relied upon

in the impugned judgment to draw a finding that the disputed

property was a wakf property.

12. The first Appellate Court has overlooked the vital documents

i.e. the document of title which the plaintiff possessed. Revenue

record Ex.PW-4/6 and Ex.PW-4/7 i.e. the jamabandhi and mutation

record shows that the Government of India through the Northern

Railway was the owner of the suit property. In the case of

Panchayat Deh (supra) the Bench of the Punjab & Haryana High

Court had held that entries in the jamabandi carry a presumption

of their correctness. In this case the record shows that the

revenue record between the period 1905 to 1961 had conclusively

shown the ownership of the suit property in the name of the

plaintiff. Even otherwise the onus to discharge this issue was on

the defendant but the defendant had not produced any witness in

defence.

13. This Act enacted by the Parliament applies to all wakfs.

Section 4 of the said Act deals with the preliminary survey of

wakfs. Under this provision of law the State Government may by a

notification in the official gazette appoint a Survey Commissioner

of wakfs for the purpose of surveying the wakfs. Under Section

4(3) a report will thereafter be submitted. Under section 5, on

receipt of a report the State Government will forward the same to

the Board who after examination will publish it in the official

gazette. Under section 6, if a dispute arises regarding the wakf as

to whether this property is a wakf property or not a suit may be

instituted by the Board, mutawali or any other person in the

Tribunal for a decision in the case.

14. It is clear from a reading of Section 6 and 5 that the list of

wakfs published in the gazette is only final and conclusive qua the

Board, mutawali of the wakf or any person interested therein; it

cannot be said that the third person is also bound by the

aforestated notification. In AIR 1979 SC 289 Board of Muslim

Wakfs Rajasthan Vs. Radha Kishan & Ors., the Supreme Court had

held that Section 6 does not make the inclusion of a property in the

list of wakfs published by the Board as final and conclusive under

Section 6(4). Thus, in case any dispute arises between the Board

and third persons the notification will not be binding on the third

person. Question of title can only be resolved by the institution of

a suit in a Civil Court.

15. The first point which is thus required to be determined is as

to whether in the instant case the land in dispute is a wakf

property as defined in Section 3(l) of the Act or not.

16. Section 3(l) defines a wakf; it inter alia reads as follows:

3. Definitions. - In this Act, unless the context otherwise required,-

..................................

"(l) "wakf" means the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes -

(i) a wakf by user;

(ii)) grants (including mashrut-ul-khidmat) for any purpose recognised by the Muslim law as pious, religious or charitable; and]

(iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable;

                    and     "wakif"      means   any   person   making    such
                    dedication"

17. The contention of the defendant is that the mosque in the

suit property was a wakf by user immemorial; this has been

admitted by the witnesses of the plaintiff himself, coupled with the

notification dated 16.4.1970 Ex.D-1, this was a conclusive evidence

that the mosque was a wakf property. Since the onus to discharge

this issue was on the defendant, it was incumbent upon the

defendant to produce the survey report i.e. the survey conducted

under Section 4 of the said Act, the report submitted under Section

4(3). In spite of opportunity, the defendant had chosen not to lead

any evidence, in the absence of which the notification Ex.D-1 was

not by itself sufficient to override the documentary evidence of title

produced by the plaintiff showing his ownership i.e. Ex.PW-4/6 and

Ex.PW-4/7.

18. In the case of Capt. Mohar Singh (supra) Supreme Court had

held that where there was no evidence of a wakfnama ever having

been executed, no direct evidence of oral dedication of the suit

property as a wakf property it cannot be held to be a wakf within

the meaning of the definition of the said Act. In the instant case as

well the plaintiff has categorically stated that there was no Mullah

living in the mosque; no Muslims were seen offering prayers. On

the other hand, there was positive evidence produced by the

plaintiff i.e. PW-1, PW-2, and PW-3 who had stated and proved

the documents of title of this property belonging to the Union of

India i.e. Northern Railway. There was no evidence in rebuttal.

The Supreme Court in AIR 1956 SC 713 Mohammad Shah Vs.

Fasihuddin Ansari had held as follows:

"it can also be accepted as a matter of law that a wakf normally requires express dedication but if land has been used from time immemorial for a religious purpose, then the land is by user wakf although there is no evidence of express dedication."

19. There may not always be an express dedication of the

property as a wakf property; the dedication may be implied which

can be inferred through the surrounding circumstances i.e. if from

time immemorial the property is being used for a religious

purpose. In such eventuality the title of the original owner may be

extinguished and it could be said that the ownership of the

property vests in God and it has become wakf property. However,

in the absence of any such evidence no wakf can be created.

Admittedly as per the revenue record i.e. for the period 1905 to

1961 the Union of India has been shown as owner. It was for the

defendant to have shown by evidence that the Union of India had

expressly or impliedly intended or dedicated the mosque to have

become a wakf property. This intention and the user has to be

coupled. There is no evidence of which an intention to create a

wakf; user from time immemorial has also not been established by

the defendant.

20. In AIR 1937 Lah 552 Zafar Hussain Vs. Mohammad Ghiasud-

Din the Bench of Lahore high Court had made the following

observation which is relevant in this context which is reproduced

as under:

"In the absence of any such intention or declaration, no wakf can be said to have been created. It is true that a wakf can be created by user but that user too must be preceded by an intention on the part of the owner to create a wakf. If no such intention is established, user alone will not be sufficient to divest the property of its private character."

21. Impunged judgment is incorrect on this score as well.

22. This Court is fully conscious of the constraints and fetters

imposed upon it by Legislature not to interfere with the findings of

fact. The Supreme Court in the judgment reported in AIR 1972 SC

1524 ICI Ltd. Vs. CIT held that the misconstruction of a document

of title by the fact finding Courts below would raise a substantial

question of law.

23. In this case the documents of title of the plaintiff i.e. Ex.PW-

4/6 and Ex.PW-4/7 have been misconstrued and misread; result is

the impugned finding cannot be sustained.

24. The substantial questions of law were formulated on

16.11.1981. Question no.5 has not been pressed. Questions no. 1