Tirath Singh (Deceased) & Others vs Delhi Wakf Board
2011 Latest Caselaw 982 Del

*             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

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."

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

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.

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 &

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

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

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

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.
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