Mehnga vs Tej Kaur

R.L. Anand, J.

Unsuccessful plaintiff Mehnga has filed the present appeal and it has been directed against the judgment and decree dated 18.8.1999 passed by the Addl. Distt. Judge, Jalandhar, who affirmed the judgment and decree of the trial court and dismissed the suit of the plaintiffappellant.

Mehnga filed a suit for declaration in the representative capacity against Chanan Singh and Punjab Wakf Board, that the land measuring 5 kanals, fully described in the head note of the plaint, was a public graveyard and the entries for the years 199394 shown in the Jamabandi are wrong with consequential relief of possession of the land measuring 4 kanals 10 marlas, out of the suit land, and for mandatory injunction directing the defendant No. 1 to vacate the possession over the land in dispute, and for permanent injunction restraining the defendants from using the land for any other purpose other than graveyard and also restraining defendants No. 2 and 3 from leasing out the land in dispute to any other person, etc.

The plaintiff has been nonsuited by the courts below and it will be useful for me to incorporate the reasoning given by the first appellate court in this regard in para10 of the order, which reads as under :

"I have no quarrel with the proposition of law laid down in the authority cited by the counsel for the appellant that once the land is proved to be dedicated for graveyard, it will always remain graveyard even if traces of deads are not left in it. But in the present case there is no reliable and trustworthy evidence in prove that the property in dispute is graveyard. No notification of the Government issued under the Wakf Act declaring the property to be Wakf has been produced. Much reliance has been placed by the learned counsel for the appellant on the copy of Jamabandi Ex. P1 and Khasra Girdawari Ex. P3 in which the property, in dispute, is described as Kabarstan during the year 196970 but entries in the jamabandi are not documents of title. There is only rebuttable presumption to the entries in the jamabandi and in the present case, the presumption stands rebutted from the latest jamabandi for the year 196970 Ex. P1, the property, in dispute, was owned by Panchayat Deh. In the Jamabandi for the year 199394 the property, in dispute, is recorded to be owned by Punjab Wakf Board. The khasra No. 616 measures 5 kanals out of which 10 marlas is shown as gair mumkin taur in possession of Rajinder Pal Singh while 2 kanals is shown to be cultivated and in possession of Chanan Singh. The learned counsel for the appellant has not been able to show as to how this entry has occurred. Since the land, in dispute, vests in the Punjab Wakf Board and is not recorded as Kabarstan in the latest Jamabandi, it cannot be said to be Kabarstan. Similarly, the mere fact that in the receipt and pattanama the kind of property in dispute is recorded to be Kabarstan cannot be relied upon to hold that it is graveyard when in the revenue record it is shown to be cultivable land. Except the plaintiff no other person of the village has been examined to prove that it is kabarstan. On the other hand, defendant Chanan Singh appeared and examined Shamim Ahmad. Chanan Singh deposed that the land in dispute is being cultivated by him. According to Shamim Ahmad there was no graveyard in the property, in dispute. In this view of the matter, I am of the opinion that there is no reliable and trustworthy evidence that the suit land is Kabarstan. The learned trial court rightly decided issues Nos. 2, 3 and 4 and the findings of the trial court are correct and are affirmed."

It was submitted by the counsel for the appellant that both the courts below committed an error in relying upon the latest jamabandi entries for the year 1993. He submitted that once it is established that the property was being used as Graveyard, it has to be inferred that the purpose remained as a Wakf and it was reserved for Graveyard.

So far as the legal proposition is concerned, there is no dispute but in the present case, the initial entry of Jamabandi has been rebutted. The Wakf Board has not filed any notification on the record to show that this property ever vested in the Board as a Graveyard. In these circumstances, both the courts below have rightly nonsuited the plaintiff.

Dismissed.