Mohd. Shrief and others vs State of J&K and others

The petitioners have filed the instant petition for quashing the order dated 12.09.2014 passed by the Administrator, Auqaf Shahdara Sharief, Tehsil Thanamandi, District Rajouri, respondent No. 2 herein, in file No. 5, tilted, “Zamindaran of Village Dodasan Bala vs. Mohd. Sadiq and others”, whereby the petitioners have been declared as unauthorized occupants and ordered to be evicted from the land comprising khasra No. 1779/1 measuring 46 kanals 4 marlas, khasra No. 1019 measuring 4 kanals 16 marlas, khasra No. 1077 measuring 1 kanal 5 marlas, khasra No. 1076 measuring 10 marlas, khasra No. 1778 measuring 12 kanals 15 marlas, khasra No. 1010 measuring 4 kanals 16 marlas, khasra No. 1774 measuring 9 kanals 16 marlas, khasra No. 1775 measuring 1 kanal 13 marlas and khasra No. 1777 measuring 11 kanals 10 marlas in Village Dodasan Bala, Tehsil Thanamandi, District Rajouri and also for quashing Mutation No. 311, whereby the ownership rights have been conferred upon Khankah Sharief Peer Jeevan Shah in respect of the afore-mentioned land. The petitioners have also sought quashing of the change in Khasra Girdawaris in Khat Chalepa for Rabi 2009, made behind their back and without affording them an opportunity of being heard, along with a further direction to respondent Nos. 4 and 5 to rectify the revenue record and confer ownership rights upon the petitioners. The petitioners have also sought a direction restraining respondent Nos. 1, 2 and 5 from claiming any right, title or interest over the aforesaid land or from evicting the petitioners therefrom in any manner whatsoever.

It is stated that the agricultural land falling under different khasra numbers referred to hereinabove, was owned by Inderjeet and others, who were professing and following Hindu religion and faith. Fazal Din, the grandfather of the petitioner Nos. 1 and 2 was in possession of the land as tenant of Inderjeet and his co-sharers comprising of khasra No. 1779/1 measuring 46 kanals 9 marlas, khasra No. 1019 measuring 2 kanals 8 marlas (out of 4 kanals 16 marlas), khasra No. 1776 (1 kanal 15 marlas) situated at Village Dodasan Bala Tehsil Thanamandi. He was cultivating the said land on galla batai basis. Fazal Din had two sons namely, Munshi and Bala. After the death of Fazal Din, above named sons were cultivating the abovementioned land as tenants. Bala had two sons i.e. petitioner Nos. 1 and 2 herein. Munshi died in the year 1965 and was survived by only one daughter Zahoor Begum. After the death of Munshi, the aforesaid land was being cultivated by Zahoor Begum and Bala in equal shares. Mst. Zahoor Begam, was married to petitioner No. 1. Bala died in the year 1988 leaving behind the petitioner Nos. 1 and 2 as his legal heirs. They, therefore, inherited the tenancy rights in respect of the above-mentioned land. The said land has been and continues to be cultivated by petitioner Nos. 1 and 2 as tenants.

Petitioner No. 3 was also cultivating the land measuring 12 kanals 15 marlas comprising khasra No. 1778 and land measuring 10 marlas comprising khasra No. 1776, situated at Village Dodasan, Tehsil Thanamandi District Rajouri, as a tenant. He was also a tenant of the original owners Inderjeet and his co-sharers and their legal heirs, whereas petitioner No. 4 was in cultivating possession of the land comprising survey No. 1019 measuring 2 kanals 8 marlas, khasra No. 1774 measuring 9 kanals 16 marlas, khasra No. 1775 measuring 1 kanal 13 marlas, khasra No. 1777 measuring 11 kanals 10 marlas and khasra No. 1779/1 measuring 11 kanals 11 marlas being 1/4^th share out of 46 kanals 4 marlas in the aforesaid Village Dodasan Bala, Tehsil Thanamandi District Rajouri. The father of petitioner No. 4 had been in cultivating possession of the said land as a tenant under Inderjeet and his co-sharers even before 1947. He continued to cultivate the aforesaid land as a tenant continuously and without any interruption. He died in the year 1976. After his death, the tenancy rights devolved upon petitioner No. 4 being his son.

It is submitted that Khankah Sharief Peer Baba Jeevan Shah is located on land measuring 2 Kanals and 5 Marlas under Khasra No. 1782 in Village Dodasan Bala, Tehsil Thanamandi, District Rajouri. This property is entirely distinct and separate from the petitioners' land, situated at a distance of approximately 1.5 kilometres.

It is stated that respondent No. 2 started interfering with the peaceful possession of the petitioners over the aforesaid land without any lawful right or authority. Respondent No. 2 approached the revenue authorities seeking demarcation of the land, pursuant to which the Deputy Commissioner constituted a Committee comprising of five revenue officials for carrying out the demarcation. The Committee visited the site on 27.06.2014 for conducting the demarcation. However, respondent No. 2 failed to appear despite having been duly served with notice and, instead, deputed his clerk, who stated that respondent No. 2 was not interested in the demarcation proceedings. Accordingly, the Demarcation Committee submitted its report to the Deputy Commissioner, highlighting the aforesaid facts.

It is urged that in the first week of April 2018, one Lal Hussain, son of Nazir Hussain, resident of Dodasan Bala, informed the petitioners that respondent No. 2 had passed an eviction order against him, his brothers, and the present petitioners in respect of the subject land. He further disclosed that the relevant Khasra Girdawari entries pertaining to the said lands had been unilaterally deleted in the revenue records for Rabi 2009 and that he and his brothers had already challenged the said illegal proceedings before the competent court. Upon scrutinizing the revenue records of Khasra No. 249, it transpired that the petitioners' Khasra Girdawari entries had been discontinued pursuant to an administrative communication/letter dated 30.06.2005 issued by respondent No. 2.

The petitioners thereupon contacted their counsel at Jammu, who had been engaged by the said Lal Hussain and others in the pending litigation. Upon inspecting the record available with the counsel, the petitioners came to know, for the first time, about Mutation Order No. 311 dated 17.09.1958, attested in favour of Khankah Sharief Peer Baba Jeevan Shah, as well as the passing of an adverse eviction order against them. Acting upon legal advice, the petitioners approached the office of respondent No. 2 on 16.04.2018 and requested a certified copy of the eviction order passed against them. Thereupon, respondent No. 2 issued a certified copy of the eviction order dated 12.09.2014, passed in the aforementioned proceedings, thereby bringing the factum of the said eviction order in respect of their land to the actual knowledge of the petitioners.

The core case projected by the petitioners in the present petition is that Mutation Order No. 311 could not have been validly attested in favour of the Khankah Sharief, as the said entity lacks legal or juristic personality and, therefore, was incompetent in law to hold or be in cultivating possession of the land.

It is contended that the land in question admittedly belonged to one Inderjeet and his co-sharers, who professed the Hindu faith. Under principles of Mohammedan Law (Islamic Law), a valid Waqf could be created only by a person professing the Islamic faith, therefore, any purported creation of a Waqf by a Hindu would not be legally recognized and would be unsustainable in law.

Further, it is urged that, although Mutation Order No. 311 purports to record that the predecessors-in-interest of petitioner Nos. 1, 2 and 4 were present at the time of attestation and that their statements were recorded, the petitioners assert that their predecessors were neither present nor did they make any such statements. Had they been present and made any such statements, their signatures/thumb impressions would necessarily have appeared on the mutation record. The conspicuous absence of their signatures/thumb impressions, according to the petitioners, demonstrates that the said mutation was fraudulent, fabricated and manipulated. The petitioners further contend that the subject land, owned by the recorded owners, namely, Inderjeet and Girdhari Lal, being in excess of the permissible ceiling prescribed under the Jammu & Kashmir Big Landed Estates Abolition Act, 2007 (1950 A.D.), was liable, by operation of law, to escheat to the State. Consequently, the ownership rights in respect of the land so escheated ought to have been conferred directly upon the cultivating tenants, including the predecessors-in-interest of petitioner Nos. 1, 2 and 4.

A bare perusal of the impugned Mutation Order No. 311 reveals that, while the ownership rights of the recorded owners, namely, Sh. Inderjeet and others, were extinguished, the revenue authorities, instead of conferring ownership rights upon the cultivating tenants, including the predecessors-in-interest of petitioner Nos. 1, 2 and 4, in accordance with law, impermissibly mutated the subject land in favour of the aforementioned Khankah Sharief. Such a course was wholly impermissible under the prevailing statutory framework and, consequently, rendered Mutation Order No. 311 void ab initio, illegal, inoperative and a complete nullity in the eyes of law.

It is also contended that no Waqf deed was ever executed in respect of the subject property, and in the absolute absence of any such registered instrument, no mutation could have been attested in favour of the Khankah Sharief. The doctrine of "Waqf by user" is wholly unrecognized under Muslim Law in respect of property owned by a person professing the Hindu faith. Consequently, when the impugned Mutation Order was attested on 17.09.1958, the land belonged to non-Muslim owners, thereby precluding any creation or recognition of a Waqf by user. The petitioners have also denied that they were not unauthorized occupants as defined in J&K Wakafs Act. Rather, the petitioners and their predecessors-in-interest were/are in possession of the property for the last 70 years, as they were inducted as tenants by its owners, who were Hindus. They, therefore, acquired the status of protected tenants.

Respondent No. 2 has filed the response, asserting that the centuries-old Khankah (Shrine) of Peer Baba Jeevan Shah exists in Village Dodasan Bala, Tehsil Thanamandi, District Rajouri, and is deeply revered from time immemorial by people of all faiths. According to respondent No. 2, the land in question was originally Shamilat land and has continuously remained in the possession of the said Shrine as an occupancy tenant (Maroosi) in the revenue records, whereas the predecessors-in-interest of the petitioners were merely non-occupancy tenants (Gair-Maroosi) under the Khankah Sharief. In the year 1957-58 (Samvat 2008), the villagers approached the revenue authorities to record the ownership of land measuring 172 Kanals 06 Marlas comprising old Khasra Nos. 804 (7 Kanals 4 Marlas), 775 (3 Kanals 12 Marlas), 743 (23 Kanals 7 Marlas), 727 (7 Kanals 4 Marlas), and 744 (87 Kanals 15 Marlas) in the name of the Khankah Sharief. Pursuant thereto, Mutation No. 311 was duly attested by the competent authority-Tehsildar Settlement, Rajouri (Circle 7). The said mutation was attested in the presence of prominent villagers, including Ahmed Din, the predecessor-in-interest of the petitioners, who unequivocally stated that the subject land ought to be transferred in favour of the Khankah. Since the attestation of the said mutation, the Khankah has remained the owner-in-possession of the subject land, while the petitioners and their predecessors-in-interest became tenants (Gair-Maroosi) under the Shrine. Though they initially paid rent for the land, they subsequently committed default in payment of the same. Respondent No. 2 has placed on record copies of the Misal Haqiyut (Record of Rights), Jamabandi, Khasra Girdawari, and rent receipts spanning various years, establishing that the petitioners and their predecessors were consistently recognized as tenants. Respondent No. 2 submits that the petitioners have not approached this Court with clean hands, having filed the present petition with oblique motives to grab duly notified Waqf property through misrepresentation and suppression of material facts. Consequently, the petition deserves outright dismissal with heavy costs.

Respondent No. 2 further contends that the petitioners have challenged Mutation Order No. 311 dated 17.09.1958, after a delay of several decades. The petitioners and their predecessors had full knowledge of the proceedings, as the order was passed by the Tehsildar Settlement after recording the statements of the petitioners' predecessors as well as Sh. Girdhari Lal, the original co-owner (along with Sh. Inderjeet), prior to the final attestation of the mutation in favour of the Khankah Sharief. It is also averred by respondent No.2 that in the year, 2013, four Panchayats of Village Dodasan Bala submitted a resolution to respondent No. 2 for construction of road from Jama Masjid to Khankah Baba Jeevan Shah. As the petitioners were in unauthorized occupation of said Waqf land, which forms part of the Waqf land in question, eviction proceedings were initiated and notices were issued to the petitioners and other tenants. The petitioners herein attended the proceedings and their statements were recorded, where they admitted that they were in occupation of Waqf land and had not paid rent since the year 2006 and sought time for paying rent but failed to do so. Finally, the answering respondent after considering the relevant revenue record and the law involved, directed the eviction of petitioners from the land in question vide order dated 12.09.2014, impugned in the instant petition. The respondent No. 2 has pleaded that the land claimed by the petitioners belong to Khankah Sharief Peer Baba Jeevan Shah, which is waqf by user within the meaning of Waqf Property as defined under the J&K Wakafs Act, 2001. The order of eviction was subject to appeal before the appellate authority under the Wakafs Act within a period of 30 days which the petitioners did not avail, as such, the order of eviction dated 12.09.2014 has attained finality. It is further stated that it is unbelievable that the petitioners, who are in illegal occupation of the waqf land, were not aware and never saw or checked the revenue record from 1950s to the year 2018, particularly when they claim that their names were entered in the revenue records after the death of their predecessors. Moreover, the petitioners not only participated in the eviction proceedings, but their statements were also recorded, and they even sought time to pay the arrears of rent/use and occupation charges but failed to pay the same despite opportunities granted by the respondent No. 2. It is further stated that in order to effectively protect the Waqf properties, the legislature has given Waqfs Act, 2001 overriding effect over all other laws and also made certain enactments inapplicable to the Waqf properties including J&K Tenancy Act, Big Landed Estates Abolition Act. Similar measures have been provided in other enactments also to protect special properties. The petitioners cannot claim the benefit of such provisions, particularly when the Waqf Act, 2001 itself provides a mechanism for dealing with unauthorized occupants and also provides a remedy against an order of eviction by way of an appeal, which remedy the petitioners did not avail.

Respondent Nos. 3 and 4 have filed their joint response/reply, asserting that the Khankah (Shrine) of Baba Jeevan Shah is situated in Village Dodasan Bala, Tehsil Thanamandi, District Rajouri. According to the said respondents, the subject land was originally Shamilat land and continuously remained in the possession of the Shrine, which was recorded as an occupancy tenant (Maroosi) in the revenue records, whereas the predecessors-in-interest of the petitioners were merely non-occupancy tenants (Gair-Maroosi) under the said Ziarat. In the year 1957–58, the local villagers approached the revenue authorities to record ownership of the land measuring 172 Kanals 06 Marlas, comprising old Khasra Nos. 804 (7 Kanals 4 Marlas), 775 (3 Kanals 12 Marlas), 743 (23 Kanals 7 Marlas), 727 (7 Kanals 4 Marlas), and 744 (87 Kanals 15 Marlas) in Village Dodasan Bala in favour of Khankah Sharief Peer Baba Jeevan Shah. Pursuant thereto, ownership of the land in question was duly attested and entered in the name of Khankah Sharief Peer Baba Jeevan Shah by the competent revenue authority under Mutation Order No. 311. Ever since the attestation of the said mutation, the Shrine has remained the owner-in-possession of the subject property. It is also stated that the petitioners were evicted from the land in question vide order dated 12.09.2014 by the Auqaf Administrator as per the due process of law. It is also urged that challenge to the mutation after a long period of seven decades is impermissible. It is further stated that ownership rights have been conferred upon Khankah Sharief Peer Baba Jeevan Shah and the Auqaf has been recorded as manager of the land in question in the revenue records. Neither the petitioners nor any of the local villagers raised any objection whatsoever to the attestation of the said mutation at the relevant time, and it is only after the passing of the adverse eviction order against them that the petitioners have belatedly sought to challenge the ownership status of Khankah Sharief Peer Baba Jeevan Shah over the subject property, an afterthought that is wholly impermissible and unsustainable in law.

Mr. O. P. Thakur, learned Senior Counsel appearing for the petitioners, has argued that the Khankah Sharief Peer Baba Jeevan Shah cannot claim ownership of the subject land under the Big Landed Estates Abolition Act. He submits that, in terms of Section 5 thereof, the land could be transferred only in favour of a tiller and that Section 20-A also contains a similar provision. He has vehemently argued that the petitioners were tenants of Inderjeet and others, whose rights stood extinguished long ago, and that the petitioners, in fact, were required to be conferred ownership rights. He has also laid considerable emphasis on the contention that Inderjeet and others, who admittedly professed and practiced the Hindu religion, could not have dedicated the subject property by way of Waqf, as a Waqf can be created only by a Muslim.

Per contra, Mr. Aijaz Lone, learned counsel for respondent No. 2 has vehemently submitted that the Khankah Sharief in question was already recorded as Maroosi (protected tenant) even before the attestation of the mutation No. 311 in question and the predecessors-in-interest of the petitioners were the tenants of Khankah Sharief Peer Baba Jeevan Shah. He has further stated the ownership of the landlord cannot be challenged by the tenant in any manner whatsoever, in terms of the provisions contained in Section 116 of the Evidence Act and/or Section 122 of the Bharatiya Sakshya Adhiniyam, 2023. He has further argued that the petitioners have deliberately concealed the material facts from this Court i.e. the factum with regard to payment of rent and participation in the eviction proceedings. He has drawn the attention of this Court towards the various rents receipts and also the statements made by the petitioners regarding the existence of the relationship of the landlord and the tenant between the petitioners and the Khankah Sharief Baba Peer Jeevan Shah. He has further argued that the petitioners, after sixty years, cannot be permitted to challenge the mutation attested in favour of the Khankah Shrine in presence of predecessors-in-interest of the petitioners. He has laid much stress that it is unbelievable that the petitioners were not aware about the ownership of the land, particularly when their names were entered in the revenue record as tenant-at-will after the demise of their predecessors-in-interest. He accordingly submitted that the present petition deserves to be dismissed with exemplary costs. He has relied upon the judgment of the Hon'ble Supreme Court in Anar Devi vs Nathu Ram, (1994) 4 SCC 250, Ambika Savaria and others vs Sanjay Sharma and others, Civil Appeal No. 7360/2016, decided on 09.08.2016, Rafique Bibi (D) by Legal Heirs v Syed Waliuddin(D) By LRs, (2004) 1 SCC 287 and judgment of this Court in Intizamiya Committe e Dargah(I) and anr. vs. U. T. of J&K and others, LPA No. 187/2023, decided on 05.06.2025.

Heard learned counsel for the parties and perused the record.

The first issue that required to be examined is as to whether the petitioners have suppressed the material facts from this Court or not.

The petitioners in the instant writ petition have consistently pleaded that their predecessors-in-interest were tenants directly under the original owners of the subject land. While doing so, the petitioners have maintained a stoic silence regarding the actual factum of tenancy subsisting between themselves and the Shrine. However, the documentary evidence produced on record by respondent No. 2, specifically in the form of rent receipts and the recorded statements of petitioner Nos. 1, 2, and 4, clearly reveals that they have unequivocally acknowledged themselves to be tenants of Khankah Sharief Peer Baba Jeevan Shah. The rent receipts placed on record by respondent No. 2 establish that rent was regularly paid to the Auqaf by the father of petitioner Nos. 1 and 2, as well as by one Nisar Hussain. It is equally pertinent to note that Mutation Order No. 311, attested on 17.05.1958, reflects the subject land as Shamilat, with Khankah Sharief Peer Baba Jeevan Shah recorded as a Maroosi (occupancy tenant) under Section 8, thereby demonstrating that the Shrine was in lawful possession of the said land in the capacity of a tenant. In light of the overwhelming documentary evidence placed on record by respondent No. 2, it stands conclusively established that petitioner Nos. 1, 2, and 4 are, in fact, tenants under respondent No. 2. So far as petitioner No. 3 (Waheed-Ul-Zaman) is concerned, respondent No. 2 has specifically recorded in the impugned eviction order dated 12.09.2014, that notice was duly served upon him. However, despite due service, petitioner No. 3 failed to appear, whereupon ex-parte proceedings were initiated against him. Petitioner No. 3 has failed to produce or place on record any documentary evidence whatsoever to substantiate his claim of being a tenant under the original owners, Inderjeet and others.

The status of the petitioners is nothing more than that of the tenant that too of Khankah Sharief Peer Baba Jeevan Shah and this fact has been concealed by the petitioners by filing the instant writ petition. There is a deliberate suppression of facts by the petitioners for the purpose of seeking relief from this Court and it is settled law that the litigant who approaches the Court with unclean hands and suppresses the facts, having material bearing on the outcome of the litigation, the said litigant is not entitled to any relief. On this count only, the instant writ petition deserves to be dismissed. In this context, it would be apt to take note of the judgment of the Hon'ble Supreme Court of India in “Dalip Singh v. State of U.P.”, (2010) 2 SCC 114, wherein it has been observed as under:

In “K.D. Sharma v. Steel Authority of India Ltd. & Ors.”, (2008) 12 SCC 481, the Hon'ble Supreme Court has held as under:

23 Even otherwise, the petitioners hold the status of mere tenants under the Khankah Sharief Peer Baba Jeevan Shah. Being tenants in possession, they are legally barred from questioning or disputing the title/ownership of their landlord. It is a well-settled principle of law, rooted in the rule of estoppel, that a tenant who has been let into possession cannot be permitted to challenge or deny the landlord's title, no matter how defective or imperfect such title may allegedly be.

In “Anar Devi v. Nathu Ram”, (1994) 4 SCC 250, the Hon'ble Supreme Court has held as under:

The same principle has been reiterated by the Hon'ble Supreme Court of India in “Ambika Savaria v. Sanjay Sharma”, (2016) 15 SCC 185.

The core questions sought to be raised by the petitioners do not arise for consideration in the present proceedings. The petitioners, being tenants under Khankah Sharief Peer Baba Jeevan Shah, are legally estopped from questioning or disputing the title of the said Ziarat. The grounds of challenge sought to be advanced by the petitioners with regard to the validity of the transfer or mutation, at best, could have been available to the original owners, namely, Sh. Inderjeet and others. The petitioners, being mere tenants, have no locus standi to raise such objections or challenge the title of their landlord.

For all what has been said, analysed and discussed hereinabove, the instant petition is found to be devoid of any merit, as such, the same is dismissed.

28 The petitioners filed the instant petition in September, 2014, which was subsequently amended. It is averred in the petition that the predecessors-in-interest of the petitioners, namely, Sh. Ahmed Din and his two brothers, were in cultivating possession of the land, comprising different Khasra numbers, including Khasra Nos. 743 and 744 (old), as tenants since 1956 B.K. and 1957 B.K., corresponding to 1899 A.D., situated at Village Dodasan Balla, Tehsil Rajouri. It is further stated that respondent No. 2 started interfering with the peaceful possession of the petitioners in respect of land measuring 11 kanals 17 marlas falling under new Khasra No. 1779 and land measuring 11 kanals 18 marlas falling under Khasra No. 1779-min, situated in the aforesaid Village Dodasan Balla, Tehsil Rajouri.

The instant petition also raises identical issues as were raised in the connected writ petition, which have already been adjudicated upon by this Court. In the present case as well, petitioner Nos. 1, 2, 4, 5 and 6 have, in their statements, acknowledged their status as tenants of the Shrine, and the rent receipts evidencing the same are also on record. Accordingly, for the reasons recorded and discussed in the connected writ petition, the instant writ petition is also dismissed.

Last opportunity is granted to the respondents to file statement of facts, failing which right to file the same shall stand closed.

List the contempt petition on 23.10.2026.