Hira Singh (Since Deceased) ... vs Delhi Wakf Board
2010 Latest Caselaw 4496 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                      Judgment Reserved on: 21.09.2010
%                     Judgment Delivered on: 24.09.2010

+                        RSA No.53/1989

HIRA SINGH (since deceased)
THROUGH L.Rs                                   ...........Appellant
                   Through:          Mr.V.Shukla, Advocate

                   Versus

DELHI WAKF BOARD                                ..........Respondent
                Through:             Mr.Javed Ahmed, 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 appeal has impugned the judgment and decree dated

4.2.1989 which had endorsed and confirmed the findings of the

trial judge dated 25.10.1982 whereby the suit of the plaintiff i.e. of

the Delhi Wakf Board had been decreed in its favour.

2. The plaintiff/respondent i.e. Delhi Wakf Board had filed a suit

for possession against the defendant Hira Singh. It was alleged

that the property in dispute i.e. a mosque at Village Oldenpur,

Shahdra bearing No.610/403 is a wakf property and has been used

as a wakf since time immemorial. This property has been notified

in the notification of gazette on 3.12.1970; subsequently corrected

by another notification dated 29.4.1978 published in the Delhi

Gazette on 18.5.1978. The defendant‟s contention that he was in

lawful possession of the suit property is liable to be rejected.

3. Defendant had contested the suit. The preliminary objection

was that suit was time barred. Property is not a wakf property; the

owner of the property Mohd.Ahsaan had sold it to the defendant in

the year 1953. The premises in dispute is being used as a

Gurdwara and is being managed by the Gurudwara Managing

Committee. The earlier two suits filed by the plaintiff had been

dismissed as withdrawn on 23.1.1970 and 22.8.1978. The present

suit is not maintainable.

4. Trial judge had framed seven issues. They read as follows:

1. Whether the suit is within time? OPP

2. Whether the plaintiff has locus standi to file the suit? OPP

3. Whether the property in dispute is a wakf property? OPP

4. Whether the Managing Committee is necessary party? OPD

5. Whether the suit is properly valued for purposes of court fees and jurisdiction? OPP

6. Whether the defendant is in adverse possession since 1954. If so its effect? OPD

7. Relief.

5. Issue no.2 and Issue no.3 were the relevant issues.

Testimony of PW-1 had been considered. He had deposed about

the notification of the suit property in the gazette is as a wakf

property. The gazette notification dated 3.12.1970 has been

proved as Ex.P-2 and its corrigendum dated 29.4.1978 has been

proved as Ex.P-3. Site plan Ex.P-7 had been proved through the

version of PW-2. Testimony of PW-3 had also been considered; he

had been deposed that the disputed property is a Masjid and a

wakf property; muslim community used to pray in it; the masjid is

in existence since long. Version of DW-1 and the documents of the

earlier litigation between the parties i.e. Ex.DW-1/1, Ex.DW-1/2 &

Ex.DW-1/5 had been examined and repelled. Trial court decided all

issues in favour of the plaintiff and against the defendant. Suit of

the plaintiff was decreed.

6. The first appellate court vide judgment and decree dated

4.2.1989 endorsed the findings of the trial judge.

7. This is a second appeal. After admission of the appeal, on

9.5.1989 the following questions of law were formulated. They

have been described as questions of law but it is not disputed

before this court that these may be read as substantial questions of

law. They inter alia read as follows:

(1) Whether it was necessary for the appellant/defendant who was admittedly a third party and not connected with the alleged "Waqf" to file a suit for challenging the validity of the notification of Gazette dated 31.12.1970 and 18.5.1978 exhibits P/2 and P/3 publishing the disputed property as public Waqf, within one year of the dates of notifications?

2) Whether the limitation for the instant suit stood extended by virtue of the notification Ex.P/5 of the Central Govt. made with reference to Sec.3 of the Public Waqf (Extension of Limitation Act, 1959) upto 31st December, 1980, even though the appellant/defendant came into illegal possession in 1955-56?

(3) Whether the property in dispute was public Waqf and not a private Mosque, on the interpretation of the revenue records and especially the Jamabandi of the year 1943-44 Ex.P-6 and Plan Ex.P/7?

(4) Whether the appellant/defendant has acquired title to the property in dispute by constructing and converting it into a gurdwara since 1955-56 by way of adverse possession?"

8. On behalf of the appellant it has been urged that the

judgment of the two courts below is perverse. Attention has been

drawn to para 2 of the plaint and the definition of „wakf‟ as

contained in Section 3 (l) of the Delhi Wakf Act, 1954. It is

submitted that the averments in the plaint are vague. There is no

averment that the owner of the property had made any permanent

dedication of this property in favour of the wakf board; no dates

have been given as to since when this property was being used as a

wakf property. A mere submission that it has been used since time

immemorial is not by itself sufficient to satisfy the definition of

„wakf‟ as per the aforenoted statutory provision. Attention has

been drawn to Section 6 of the Wakf Act. It is submitted that

under this statutory provision, when a question arises about the

title of the wakf land; whether it is a wakf property or not, the civil

court is vested with the jurisdiction to decide this dispute; in such a

situation notification under Section 5 (2) of the said Act would not

prevail. It is submitted that Section 3 (h) of the said Act defines a

person interested in a wakf. This definition inter alia reads as

follows:

3. (h) "person interested in a wakf" means any person who is entitled to receive any pecuniary or other benefits from the wakf and includes.--

(i) any person who has a right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, khangah, maqbara, graveyard or any other religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf;

(ii) the wakif and any descendant of the wakif and the mutawalli;

9. Reliance has been placed upon a judgment reported in AIR

1967 Rajasthan 2 Radhakishan and Anr. vs. State of Rajasthan and

Ors. to support his submission that the plaintiff in the instant case

was a person who did not come within the ambit of the definition of

"any person interested therein" as such he does not fall in the

category of interested person who could file a suit under Section 6

of the said Act. Attention has been drawn to the documents of title

of the suit property. Ex.P-6 is the Jamabandi of the suit property

evidencing ownership of the suit property in the name of Khan

Bahadur Wahiduddin; the Khasra Girdawari of the suit property

which has been proved on record as Ex.DW-1/3 and Ex.DW-1/4 has

evidenced the name of Abdul Wahid. It is stated that this

documentary evidence clearly show that this was a private

property and there being no permanent dedication of this property

by the owner as a wakf, it did not become a wakf property. These

documents of title had been illegally and erroneously ignored and

misread by the courts below. Attention has also been drawn to the

version of PW-3. It is pointed out that his oral version cannot be

read over and above the written documents which are the

aforenoted documents i.e. Ex.P-6, Ex.DW-1/3 & Ex.DW-1/4. Section

91 of the Indian Evidence Act bars such an operation. It is pointed

out that the defendant was in possession of this property, even as

per the version of PW-3 after partition i.e. since the year 1947.

Under Article 64 of the Limitation Act a suit for recovery of

possession of this property could have at best filed within 12 years

from the date when the right to sue accrued; in this case, suit

having filed on 31.12.1980 is hopelessly time barred.

10. Arguments have been countered by learned counsel for the

respondent. It is submitted that there are concurrent finding of fact

by the two fact finding courts below which cannot be interfered

with lightly. The oral and documentary evidence proved before the

courts below had led to the passing of the decree in favour of the

respondent. It is pointed out that the respondent in his written

statement stated that he has purchased this property but he has

failed to produce any document of title to substantiate this version

in the absence of which the gazette notification proved by the

plaintiff was rightly held to have proved the case of the plaintiff.

This gazette notification was also admittedly not challenged by the

appellant. It is pointed out that under Section 3 (h) of the Wakf Act

the appellant was a "person interested"; he had as per his own

showing purchased this property; if it had been notified in the

gazette to have become a Wakf property, he would have been

entitled to a pecuniary compensation. In these circumstances his

plea that he was a stranger is not correct. Learned counsel for the

respondent has placed reliance upon a judgment reported in AIR

1976 SC 1569 Syed Mohd. Salie Labbai (Dead) by L.Rs. and Ors.

vs. Mohd. Hanifa (Dead) by L.Rs. and Ors. to substantiate his

argument that the oral testimony of his witnesses coupled with the

documentary evidence i.e. the notification notifying the suit

property as a wakf property had established the case of the

plaintiff.

11. In rebuttal, learned counsel for the appellant has placed

reliance upon a judgment of the Apex Court reported in AIR 1975

SC 1891 Punjab Wakf Board vs. Capt. Mohar Singh and Ors. It is

pointed out that when there is an absence of evidence to show that

the property was ever used as a wakf property, it could not be held

to be a wakf. Reliance has also been placed upon a judgment of

Punjab & Haryana High Court reported in 2009 PLR Vol.2 596

Mahant Hari Gir Chela Baba Nihal Gir Chela Bankandhi Gir (since

deceased) & Anr. vs. Punjab Wakf Board. In this case it had been

held that merely because there was a notification issued describing

the suit property as a wakf property it would not ipso facto imply

that the suit land was a wakf. Reliance has also been placed upon

a judgment reported in AIR 2000 SC 3488 Punjab Wakf Board vs.

Gram Panchayat @ Gram Sabha as also a judgment reported in AIR

1979 SC 289 The Board of Muslim Wakfs, Rajasthan vs. Radha

Kishan & Ors. wherein the concept of "interested person" has been

dealt with; it is pointed out that the latter judgment had upheld the

judgment of the High Court of Rajasthan which had been relied

upon by the appellant supra i.e. The Board of Muslim Wakfs,

Rajasthan (supra); in view of the ratio of the aforestated judgment,

it is clear that the appellant was a stranger and he would not

qualify as "any person interested therein" who could file a suit

under Section 6 of the Delhi Wakf Act.

12. This is a second appellate court. It is not in dispute that an

incorrect interpretation of a document of title i.e. by misconstruing

it or misreading it does raise a substantial question of law on which

interference is called for by the second appellate court. This was

held by the Supreme Court in AIR 1972 SC 1524 I.C.I. (India)

Private Ltd. vs. I.T.Commr. W.B.

13. The substantial question of law in this case, as aforenoted,

had been formulated on 9.5.1989. This was a suit for possession.

It had been filed by the Delhi Wakf Board. In para 2 it was stated

that the suit property is a Mosque of village Oldenpur, Shahdara

bearing Khasra No.610/403 situated near Shahi Bagh, G.T. Road,

Shahdara, Delhi; it has been used as a wakf property since time

immemorial. No dates were given; even in the replication there

were no dates as to from which date the property was being used

as a masjid and this assumes special relevance as the defendant in

his written statement had specifically controverted this stand. It

was notified in the official gazette as wakf property on 3.12.1970

and corrected by subsequent notification dated 29.4.1978

published on 18.5.1978. To substantiate this submission oral

evidence had been led. PW-1 has deposed that the mosque was

constructed by the muslims who were the owners; defendant has

occupied it illegally since 1948; he has not seen the record of the

property prior to 1948. He had proved the notifications i.e.

notification dated 31.12.1970 Ex.P-2 and the corrigendum as Ex.P-

3 which is dated 29.4.1978; further the property in question has

been recorded in the revenue record as Ex.P-6. Ex.P-6 is the

Jamabandi for the year 1993-1994. This shows that the property is

in the name of Khan Bahadur Wahiduddin. In his cross-

examination PW-1 has stated that he had become the Assistant

Secretary of the Wakf Board in 1963; he had first seen the property

in 1972 or 1973. He denied that this property is a private property

of Mohd.Ahsan; he has no knowledge that this property has been

sold to the defendant. PW-2 had proved the site plan Ex.P-7. He

has deposed that the defendant Hari Singh was in possession of the

disputed mosque where he has made a Gurudwara. In his cross-

examination he has stated that he went to the site for the first time

on 3.5.1980, the date on which he had prepared the site plan. PW-

3 has deposed that the suit property is a wakf property; muslim

community used to pray there. Masjid is in the middle portion of

the land; defendant is in possession of the property and he has

made a Gurudwara there since after partition i.e. from 1948; he

had seen muslims praying in the masjid upto 1948; it was on the

site since he attained age of discretion. PW-3 was 47 years of age

when he deposed on 6.1.1982; meaning thereby that he was about

12 years of age in the year 1948. In his cross-examination PW-3

has admitted that Masjid is situated in village Oldenpur; this

village was owned by Nawab Sahib called Maki Sahib; Mohd.

Hassan is his son-in-law; in his cross-examination he turned turtle

and denied the suggestion that Makki Sahib owned the masjid; PW-

3 was blowing hot and cold in the same breath. He further denied

the suggestion that this was a private mosque of Maki Sahib or that

Mohd. Hassan had given it to the defendant to use it as a

Gurudwara. He admitted that he has never lived in Oldenpur;

before partition he was living in Teliwara.

14. This was the sum total of the evidence adduced by the

plaintiff both oral and documentary to establish his claim that this

property was a Wakf property.

15. Section 3 (l) of the Delhi Wakf Act defines a Wakf which inter

alia reads as follows:

"3 (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;"

16. A perusal of this definition shows that there must be a

permanent dedication by a person professing Islam or otherwise of

movable or immovable property for any purpose recognized by

muslim law as pious, religious or charitable. Creation of "wakf"

can also be inferred by its user. A permanent dedication/ user is

a pre-requisite for proof of this property as a wakf property. In AIR

1956 SC 713 Mohammad Shah Vs. Fasihuddin Ansari the Supreme

Court 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."

17. 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.

18. Ex.P-6 which is the Jamabandi for the year 1993-94 shows

that this suit property was in the name of Khan Bahadur

Wahiduddin; Ex.DW-1/3 and Ex.DW-1/4 were the Khasra

Girdawaris which had been produced by the defendant. Ex.DW-1/3

was for the year 1960-61 evidencing that this property was in the

name of Abdul Wahid. Ex.DW-1/4 was of the year 1980 evidencing

the same position. PW-3 had deposed that this village was owned

by Makki Sahib. This oral and documentary evidence establishes

that the suit property was a private property. There is no evidence

forthcoming to substantiate the submission of the plaintiff that

thereafter there was a permanent dedication of the suit property

by the owner as a wakf property; there is not a whisper of this

either in the pleadings or in the oral version of the witnesses. A

mere bald statement in the plaint that this property was being used

since time immemorial as a wakf property was not sufficient to

establish this plea; this has not been corroborated by any of the

witnesses of the plaintiff on oath. In fact, PW-3 has admitted that

this Gurudwara is functioning in this property since partition i.e.

since the year 1947; PW-3 was the star witness of the plaintiff; he

was living in Teliwara before partition i.e. before 1947; he had

never lived in Oldenpur; his version that he used to see muslims

praying in the mosque before 1947 is clearly contrary to that part

of his testimony that he never lived in this area. Documentary

evidence i.e. Jamabandi Ex.P-6 and Khasra Girdwaris Ex.DW-1/3

and Ex.DW-1/4 also shows that this property has not been recorded

as a public wakf. The site plan Ex.P-7 in fact shows that the masjid

occupies only a small portion of the disputed land which was

owned by Makki Saheb; his kothi has also been depicted; that this

masjid was his private prayer house which was the contention of

the defendant all along and as set up in the suggestions given to

the witnesses of the plaintiff can also neither be ignored and nor

ruled out.

19. Admittedly, the notification Ex.P-2 and Ex.P-3 had been

issued by the State government which were gazetted; Ex.P-2 is

dated 31.12.1970 and Ex.P-3 which was corrigendum dated

29.4.1978. Under Section 4 of the Said Act a preliminary survey of

wakfs is made by the Commissioner; the Commissioner appointed

under Section 4 (i) has the power to make a preliminary enquiry

whether a particular property is a wakf property or not. It is

however clear from this section that this is only a preliminary

survey. On the receipt of the report of the Commissioner under

Section 4 (3) a publication of the wakfs is made by the State

government which is then notified in the list of wakfs in the Official

Gazette. Under Section 6 if there is any dispute as to whether a

particular property is a wakf property or not a wakf property, the

Board, Mutawalli or "any person interested therein" may institute a

civil suit on this question which decision of the civil court will then

be final.

20. There are thus three categories of persons who are referred

to in Section 6 of the said Act who may institute such a suit. They

are the Board, the Mutawalli or "any person interested therein".

The words "any person interested therein" had been expounded by

the Rajasthan High Court in the judgment of Board of Muslim

Wakfs, Rajasthan (supra). "Any person interested therein"

appearing in Section 6 (1) could not be more than „a person

interested‟ in a wakf as defined in Section 3 (h); the words if "any

person interested therein" appears soon after the words "mutawalli

of the wakf" and therefore the word "therein" has been used to

avoid repetition of the words "in the wakf" and not to extend the

scope of this section to include a person who falls outside the scope

of these words. This had been reiterated by the Supreme Court in

Board of Muslim Wakfs, Rajasthan (supra) which was an appeal

against the judgment of the Rajasthan High Court. It had been

held that the word "therein" in the expression "any person

interested therein" appearing under Section 6 (1) must necessarily

refer to the word "wakf" which immediately precedes it. These

words have to be read ejusdem generis. In this context the

Supreme Court had inter alia held as follows:

"Where a stranger who is a non-Muslim and is in possession of a certain property his right, title and interest therein cannot be put in jeopardy merely because the property is included in the list published under sub-s. (2) of S.5 of the Act. The failure of such a person to institute a suit in a civil court of competent jurisdiction for decision of such question within a period of one year, as provided for under sub-s. (1) of S.6 does not make the inclusion of such property on the list of wakfs published by the Board under sub-s. (2) of S.5 of the Act final and conclusive under sub-sec. (4) of S.6.

..... ..... ..... ...... Thus the list published under sub-s. (2) of S.5 will not bind a stranger who is in possession of the property merely because he happens to be a person affected by the publication of the list of wakfs."

21. It is thus clear that the list of wakfs published under Section

5 (2) would not be binding upon a stranger or a person who does

not fall in the category of "person interested in a wakf" as defined

under Section 3 (h).

22. Question which has to be decided by this court is as to

whether the appellant before this court falls within the definition of

3 (h) or not. In this context, learned counsel for the respondent

has urged that the case of the plaintiff was that he had purchased

this property and as such he would be entitled to receive a

pecuniary benefit covering him within the definition of Section 3

(h). This contention is bereft of any merit. Section 3 (h) as defined

in the Act refers to any person who is entitled to receive any

pecuniary benefit from the wakf. This pecuniary benefit has to be

derived from the wakf. The case of the appellant is that there is no

wakf; the respondent/plaintiff has also failed to establish that there

was any wakf in the suit property. In this view of the matter, it is

clear that the appellant/defendant has to be construed as a

stranger. He was not "any person interested therein" who could

file a suit challenging the aforenoted notification.

23. It is a golden rule of evidence that the plaintiff must establish

his own case. Section 101 of the Evidence Act clearly stipulates

this. Plaintiff has failed to prove that the suit property was a wakf

property. Neither the permanent dedication/user since time

immemorial of the suit property as a wakf property has been

proved and nor does the documentary evidence come to his aid.

The document i.e. P-6 read with Ex.DW-1/3 and Ex.DW-1/4 shows

that this property was a privately owned property. There was no

intention to create a wakf; the intention and user has to be

coupled. None of the witnesses of the plaintiff has established

user since time immemorial of this property as a wakf property.

PW-3 has in fact stated that this property was being used as a

Gurudwara since 1947. 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."

24. Defendant was admittedly in occupation of this property

since 1947-48. It is also true that the defendant was not able to

adduce any document of title to evidence the purchase of this

property, yet this does not in any manner benefit the plaintiff who

has to establish his own case and prove it to enable him to obtain a

decree of possession. Ex.DW-1/2 and Ex.DW-1/5 were the orders

dated 23.1.1970 and 22.8.1978 of the two courts permitting the

plaintiff i.e. the Delhi Wakf Board to withdraw these suits with

liberty to file a fresh suit.

25. Issue No.6 had been framed by the Trial Court as to whether

the defendant had become an owner by adverse possession. This

issue had been decided against the defendant. In the written

statement a plea has been taken by the defendant that he is the

owner of the suit property; DW-2 had deposed that he purchased

this property from Mohd.Ahsan but he failed to produce the sale

deed. Ownership by purchase and ownership by adverse possession

are two contrary claims; they cannot go hand in hand. This finding

calls for no interference.

26. Defendant being a stranger was not obliged to challenge

these notifications Ex.P-2 and Ex.P-3 under Section 6. As had been

held by the Supreme Court in case of Board of Muslim Wakfs,

Rajasthan (surpa), the failure of the defendant/respondent to

institute a suit in a civil court within one year of the notification

would not jeopardize his possession or right/interest in the

property. This is a clear case of perverse finding of the two courts

below. A perverse finding does raise a substantial question of law

as has been held in AIR 2004 SCC 468 Krishna Mohan Kul & Anr.

vs. Pratima Maity & Ors.

27. Issue no.1 related to limitation for the filing of the suit. No

argument has been addressed by the appellant on this score. The

notification Ex.P-5 had been proved by PW-1 as per which the

limitation for filing a suit for recovery of possession of wakf

property against an unauthorized occupant was extended up to

31.12.1980. Suit had been filed on 30.6.1980. It was held to be

within limitation. No interference is called for in this issue.

28. The aforenoted substantial questions of law have been

answered.

29. In view thereof the appeal is allowed; the consequence of

which is that the suit of the plaintiff stands dismissed.

INDERMEET KAUR, J.

SEPTEMBER 24, 2010 rb