Gian Khan & Anr. v. Haryana Wakf Board & Ors.

Anwar Khan son of Ballu Khan, petitioner-plaintiffs (for brevity “the plaintiffs”) filed the suit (Annexure P1) for a decree of mandatory injunction, directing the Haryana Wakf Board (in short “the Wakf Board”), its Estate Officer and others respondent-defendants (for short “the defendants”), to remove the two shops, foundations and wall shown in the site plan, with a consequential relief of permanent injunction, restraining them (defendants) from interfering in their (plaintiffs) use and enjoyment of the property in dispute, inter-alia pleading that the suit property is owned by the Wakf Board under the provisions of The Haryana Wakf Act, 1995 (hereinafter to be referred as “the Act”) and is being used as a Kabristan/grave-yard by the plaintiffs and other Mohammdans of village Bilaspur, since the time immemorial. Some portion of it is also being used as passage by the inhabitants of the village. It was alleged that defendant Nos.1 & 2 have got no right to change its user, but they leased it out to defendant Nos.3 to 7 and the lessees have started constructing two shops and wall over it illegally, in Civil Revision No.4110 of 2011 -2- connivance with defendant Nos.1 & 2.

2. Levelling a variety of allegations and narrating the sequence of events, in all, according to the plaintiffs that the land in dispute is a Kabristan/grave yard and the defendants have got no right to change its use by raising construction over it. On the basis of aforesaid allegations, the plaintiffs filed the suit against the defendants for a decree of mandatory/permanent injunction, in the manner indicated hereinbefore. They have also filed an application under Order 39 Rules 1 and 2 CPC for ad interim injunction on the same line of pleadings as contained in the plaint.

3. The defendants contested the claim of the plaintiffs and filed the reply to the stay application, in which, it was pleaded that the Wakf Board is the owner of the property and it was rightly leased out to different persons since 1986 and now it is on lease with defendant Nos.3 to 5. It was claimed that under the provisions of the Act, when object ceases to operate any part of the property, then, it can be used for any purpose. Since the disputed property has ceased to be used as Kabristan for the last more than 50 years, so, it was rightly leased out by defendant Nos.1 and 2 to defendant Nos.3 to 5. It will not be out of place to mention here that the contesting defendants have stoutly denied all other allegations contained in the stay application and prayed for its dismissal.

4. The trial Court dismissed the stay application of the petitioner- plaintiffs, by means of impugned order dated 1.4.2011 (Annexure P2).

5. Aggrieved by the decision of the trial court, the plaintiffs filed the appeal, which was dismissed as well, by the Ist Appellate Court, by virtue of impugned order dated 9.5.2011 (Annexure P3).

6. The petitioner-plaintiffs still did not feel satisfied with the impugned orders of the Courts below and preferred the present revision petition, invoking the provisions of Article 227 of the Constitution of India.

7. After hearing the learned counsel for the petitioner-plaintiffs, going Civil Revision No.4110 of 2011 -3- through the record with his valuable assistance and after considering the entire matter deeply, to my mind, there is no merit in the instant revision petition in this context.

8. As is evident from the record that the Wakf Board is the owner of the property in dispute. It was claimed that the land measuring 35 kanals 3 marlas, comprising khasra nos.131/2(20-13), 132/2(10-17) and 133/2(3-13) recorded as Kabristan, whereas the remaining area is being given on lease from time to time due to non user of the same as Kabristan for a long time. Section 32 of the Act authorizes the Wakf Board to use the land for other purposes, if the object or any part thereof has ceased to exist. The trial Court has taken into consideration the entire material on record in the right perspective and negatived the claim of the plaintiffs.

9. Not only that, the decision of the trial Court was upheld by the Ist Appellate Court, by way of impugned order dated 9.5.2011 (Annexure P3), which, in substance, is (para 11) as under:- “In the light of the above observations and examining three ingredients of prima face case, balance of convenience and irreparable injury, I find that as per the latest jamabandi for the year 2002-03, copy of which is placed on file, the suit land has been shown as gair mumkin rasta, which is under the ownership of PWB and in the possession of Ahle Islam, which fact is further substantiated from the copy of khasra/girdawari from Rabi 2008 to Kharif 2010, therefore, prima facie from the documents on record it cannot be accepted that the suit property is being used as Kabristan by the inhabitants of the village. The entries of jamabandi for the year 1982-83 wherein the suit property is shown as Gair Mumkin Kabristan cannot overtake the latest revenue entries especially when the plaintiffs have not produced the intervening copies of jamabandis to prove that entries in the jamabandi were abruptly changed by the revenue authorities, so latest entry in the jamabandi cannot be ignored for the purpose of deciding injunction application. If the nature of suit land shown in the lease order in favour of Neelmani Gupta to be graveyard will not in any way make the suit land to be reserved for graveyard when there is no such entry in the latest jamabandi for the year 2002-03, copy of which is Civil Revision No.4110 of 2011 -4- placed on file. In this way, claim of the plaintiffs to have prima facie case in their favour falls on ground. Apart from this, one Rajesh Khan had filed a suit for declaration of lease deed no.24 dt.27.7.2009 executed by Haryana Wakf Board in favour of defendant Neelmani with regard to the suit land on the same ground being the property used for Muslims community as Graveyard, copy of which is placed on file wherein no injunction seems to have been issued in favour of plaintiffs of that suit. Apart from this, another suit titled Shiv Kumar and Ors. Vs. Neelmani Gupta and Ors. with regard to the same property was filed by Shiv Kumar against Neelmani Gupta, wherein injunction application was dismissed by learned Additional District Judge (Wakf Tribunal), Yamuna Nagar at Jagadhri vide order dt.19.3.2010 and that suit was under order 1 Rule 8 CPC. The order of which cannot be held to be order in personam rather it was an order in rem. Therefore, it is established that the plaintiffs have concealed the material facts from the court by not mentioning the said litigations in their plaint. Therefore, learned lower court has well appreciated all the documents and law on the point while returning the findings against the plaintiffs. Moreover, in view of Section 32(2)(j) of the Act, board was competent to lease out such land in favour of defendants no.3 to 5 as held by our own Hon'ble High Court in Punjab Wakf Board, Ambala v. Gram Panchayat, Mangali Aklan and another, 2005(2) RCR

183.”

10. The learned counsel for the petitioner-plaintiffs did not point out any material, much less cogent, to contend as to how and in what manner, the impugned orders of the Courts below are illegal and would invite any interference in this relevant behalf.

11. Meaning thereby, both the Courts below have recorded the cogent grounds in dismissing the stay application filed by the plaintiffs, through the medium of impugned orders (Annexures P2 and P3). Such impugned orders, containing valid reasons, cannot possibly be set aside, in exercise of limited revisional jurisdiction of this Court under Article 227 of the Constitution of India, unless and until, the same are perverse and without jurisdiction. Since no such patent illegality or legal infirmity has been pointed out by the learned counsel for the petitioner-plaintiffs, so, the impugned orders deserve to be and are hereby Civil Revision No.4110 of 2011 -5- maintained in the obtaining circumstances of the case.

12. No other point, worth consideration, has either been urged or pressed by the learned counsel for the petitioner-plaintiffs.

13. In the light of the aforesaid reasons and without commenting further anything on merits, lest, it may prejudice the case of either side during the course of the trial, as there is no merit, therefore, the instant revision petition filed by the petitioner-plaintiffs is hereby dismissed as such.

14. Needless to mention that nothing observed here-in-above would reflect, in any manner, on the merits of the case as the same has been so recorded for a limited purpose of deciding this revision petition.

27.9.2011 AS (MEHINDER SINGH SULLAR) JUDGE Whether to be referred to reporter?Yes/No