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Judgment
Indermeet Kaur, J.—This second appeal has impugned the judgment dated 23.3.1981. The first Appellate Court vide the impugned judgment had set aside the judgment and decree of the Trial Judge dated 31.1.1979. The Trial Judge had decreed the suit of the plaintiff. The first Appellate court had reserved the finding thereby dismissing the suit.
The factual matrix revealed from the pleadings is that the Northern Railway through the Union of India had claimed ownership of the suit property i.e. the property bearing Khasra No. 162 situated inside City wall and within Railway Colony, Mor Sarai, Delhi described in red in the site plan attached with the plaint. It was stated that the Union of India was in exclusive possession of the suit property being owned by them since the last 60 years. The defendant i.e. the Delhi Wakf Board (hereafter referred to as the "Board") had illegally and unlawfully got it gazetted in their name as Wakf property on 16.4.1970. The statutory notice u/s 56 of the Wakf Act 1954 (hereinafter referred to as ''the said Act'') had also not been issued in the prescribed manner before institution of the suit.
In view of the contest raised by the defendant the Trial Judge had framed ten issues. The Trial Judge returned a finding that the plaintiff i.e. the Union of India is the owner of the suit property; survey report Ex.P1, site plan Ex.P2/1, revenue record Ex.P4/6 and Ex.P4/7 i.e. the Jamabandi and mutation evidenced the ownership of the Northern Railway through the Union of India. There was no evidence to show that the property had been used as a wakf property and mere publication of the gazette notification did not divest the ownership of the plaintiff and make it a wakf property. The defendant had not produced any evidence to rebut the averments of the plaintiff; there was no evidence to show that the preliminary proceedings u/s 4 and 5 of the said Act prior to its notification had been completed. Notice had been duly served upon the defendant u/s 56 of the said Act before filing the suit. plaintiff was entitled to a decree of possession. The suit was accordingly decreed.
The first Appeal Court vide its judgment dated 23.3.1981 reversed the finding of the Trial Court. It held that the Trial Court had gravely erred in not appreciating the oral and documentary evidence in its correct perspective. The evidence of PW-1 Sewa Singh, Assistant Land Control Inspector, Northern Railway, PW-2 V.P. Bhandari Sub Overseer Northern Railway and PW-3 R.S. Verma, Land Control Inspector was re-appreciated. It was held that the gazette notification dated 16.4.1970 coupled with the oral testimony of the aforenoted witnesses which were admissions made by them that the property in dispute was a wakf property was sufficient evidence to hold that the plaintiff is not the owner of the suit property; vide gazette notification dated 16.4.1970 it had become a wakf property. It was further held that the notice u/s 56 of the said Act had not been given to the right authority; it should have been given through the General Manager, Northern Railway and the notice issued through General Manager, Baroda House, New Delhi was a defective notice. However, on the question of limitation the finding of the Trial judge was upheld; it was held that the suit was within time. The appeal having been allowed, the judgment and the decree of the Trial Judge was set aside.
This is a second appeal. On 16.11.1981 the appeal was admitted and the following substantial questions of law were framed which read as follows:
Whether the plaintiff is the owner of the suit property?
Whether Sections 4 and 5 of the Wakf Act, 1954 have been complied with by the defendants, if not to what effect?
Whether the suit property is Wakf property?
Whether the notice u/s 56 of the Wakf Act is invalid?
Whether the appeal before the first appellate Court was barred by time and if so whether the defendants were entitled to condonation of delay in filing the appeal?
On behalf of the appellant, it has been argued that the findings of the first Appellate Court are a mis-appreciation of the proposition of law; there was no evidence before the Courts below to hold that the disputed property was a wakf property; Trial Court had rightly decreed the suit of the plaintiff in his favour. It is submitted that a ''wakf'' can be created in terms of the Section 3(l) of Wakf Act 1954 only in three ways; i.e. either by user, by grant or by a dedication. None of these aforenoted aspects were proved by the defendant; the plaintiff on the other hand had proved the mutation and the jamabandi record showing that the owner of the disputed property was the Union of India. In view of the this overwhelming evidence before the Court the impugned judgment has mis-interpreted these documents of title. The finding in the impugned judgment that the provision of Section 56 of the said Act have not been complied with was also an incorrect finding; Section 79 of the CPC (hereinafter referred to as the ''Code'') has no application to the instant case; this provision deals with a suit filed by or against the government; it could not have been applied in the context of the requirements of a notice to be served u/s 56 of the said Act. Counsel for the appellant has placed reliance upon a judgment of the High Court of Punjab and Haryana reported in AIR 1969 P & H 344 Panchayat Deh v. Punjab Wakf Board to support a submission that in the absence of evidence to show that the mosque in question had been used from time immemorial the court could not have concluded that it is a wakf property. Reliance has also been placed upon Punjab Wakf Board, Ambala Cantt. Vs. Cpat. Mehar Singh and Others, . to substantiate a submission that where there is no dedication of the property as a wakf property and in the absence of such evidence, it cannot be termed as a wakf property.
Arguments have been countered by the Learned Counsel for the respondent. It is submitted that the impugned judgment calls for no interference. The court has considered the cross-examination of the witnesses of the plaintiff wherein PW-1,PW-2 and PW-3 had all admitted that the disputed property comprised of a mosque which is old; this evidence coupled with the notification Ex.D-1 dated 16.4.1970 had conclusively established that the disputed property was in fact a wakf property. It is submitted that the arguments of Learned Counsel for the appellant that the defendant had not produced the survey proceedings u/s 4 and 5 of the said Act have no relevancy. The said record is not with the Wakf Board but it is with the State Government. Reliance has been placed upon 2007 (4) SCC Chhedilal Misra v. Civil Judge, Lucknow wherein the Supreme Court had held that once a wakf is created it continues to retain such character which cannot be extinguished by any act of the Mutawalli or any one claiming through him. It is submitted that once, it has been established hat the property is being used for a purpose which the Muslim law recognizes as pious, religious or charitable and the property is found to be a wakf it will always continue to retain its character; this character cannot change even if there is a non-user. It is submitted that this proposition applies to a mosque, Idgah, Dargah and a graveyard. It is further submitted that the Supreme Court in CWP No. 6757 of 1983 Delhi Wakf Board v. Union of India had even gone on to hold that where there is evidence to show that the disputed land contains a graveyard, the Land Acquisition Collector shall exclude it from acquisition. The impugned judgment call for no interference.
The Union of India through the Northern Railway was the plaintiff before the Trial Court. The plaintiff had instituted a suit for declaration to the effect that the notification in the Delhi Gazette Ex.D-1 dated 16.4.1970 notifying the suit property as a wakf property be declared illegal and ultra vires. Provisions of Section 56 of the said Act (Section 89 of the Wakf Act 1995) are mandatory. This provision mandates that no suit shall be instituted against the Board until a two month notice has been given in writing and delivered at the office of the Board with the complete name, description and place of the residence of the plaintiff with details of the cause of action as also the relief which the plaintiff claims. In the written statement, the defendant had taken a preliminary objection that the notice u/s 56 of the said Act had not been served by the plaintiff and even if the same was served the same is invalid. No other objection qua the said notice had been taken. Ex.PW-4\\1 was the statutory notice which had been proved before the Trial Court, A.D. receipts of which has been proved as Ex.PW-4/4 and Ex.PW-4/5; postal receipts have been proved as Ex.PW-4/2 and Ex.PW-4/3. Contents of the said notice have also been perused; they fulfill all the requirements of a valid notice u/s 56 of the said Act. This issue had been decided in favour of the plaintiff while disposing of issue No. 4. This finding had been upset by the first Appellate Court; discussion is authored in para 17,18 and 19 of the impugned judgment. It was held illegal for the reason that it had been issued by the General Manager, Baroda House on behalf of the Northern Railway Administration whereas since the plaintiff in the suit had been described as Union of India; it should have been issued by the Union of India through the General Manager, Northern Railway. Reliance on provisions of Section 79 of the Code had been made. This is an absolute incorrect application of this provision of law. Section 79, as is evident from the reading of the said Section, deals with the forms of suits by or against the government; it does not in any manner apply to a notice. The finding in the impugned judgment that where a suit had been instituted by the Union of India, the notice, in view of the provisions of Section 79 should have also been addressed in the name of Union of India is a perverse finding. Even otherwise it was never the case of the defendant (as is evident from the written statement) that the notice had not been sent through an authorized person. The mandate of Section 56 of the said Act had stood proved as has been correctly appreciated and recorded by the Trial Judge; finding on this score in the impugned judgment is accordingly set aside.
The impugned judgment has also recorded fact findings based on evidence which was not there. Findings on this score are also perverse.
The suit had been filed by the plaintiff seeking a declaration that the gazette notification by the State Government declaring the suit property as wakf property is illegal and ultra vires. The Trial judge had framed ten issues. Issue No. 2 reads as follows:
Whether the property in suit is Wakf Property as alleged by the deftd.
This issue has been framed on the specific plea of the defendant in his written statement that the property in dispute is a wakf property. The onus to discharge this issue was on the defendant. It was for the defendant to establish that the suit property is a wakf property. His contention is that admittedly the suit property comprises of a mosque; a mosque is for a religious purpose, it had become a wakf property by user. No evidence whatsoever had been led by the defendants. Court had returned the impugned finding holding it to be a wakf by relying upon the cross-examination of the witnesses of the plaintiff. In this context the testimony of the witnesses of the plaintiff have to be appreciated. PW-1 (Assistant Inspector in the Land Control Section) had surveyed the mosque area and had prepared the survey report. In his cross-examination he had stated that the disputed property is a mosque which is old but he cannot tell the age. PW-2, (Sub-Overseer in the Northern Railway) had proved the site plan. In his cross-examination PW-2 he had also stated that the disputed property is a mosque but he had not seen any muslim inside; no goods of the Railway were lying there. PW-3, (the Land Control Inspector) had been assigned the duty to supervise the properties of the Railway. He had made a survey of the disputed property. In his cross-examination he had stated that mosque is old but there is no Mullah there and no prayers are offered; he could say whether the mosque is 100 years old or not. This was the sum total of the evidence which has been relied upon in the impugned judgment to draw a finding that the disputed property was a wakf property.
The first Appellate Court has overlooked the vital documents i.e. the document of title which the plaintiff possessed. Revenue record Ex.PW-4/6 and Ex.PW-4/7 i.e. the jamabandhi and mutation record shows that the Government of India through the Northern Railway was the owner of the suit property. In the case of Panchayat Deh (supra) the Bench of the Punjab & Haryana High Court had held that entries in the jamabandi carry a presumption of their correctness. In this case the record shows that the revenue record between the period 1905 to 1961 had conclusively shown the ownership of the suit property in the name of the plaintiff. Even otherwise the onus to discharge this issue was on the defendant but the defendant had not produced any witness in defence.
This Act enacted by the Parliament applies to all wakfs. Section 4 of the said Act deals with the preliminary survey of wakfs. Under this provision of law the State Government may by a notification in the official gazette appoint a Survey Commissioner of wakfs for the purpose of surveying the wakfs. u/s 4(3) a report will thereafter be submitted. u/s 5, on receipt of a report the State Government will forward the same to the Board who after examination will publish it in the official gazette. u/s 6, if a dispute arises regarding the wakf as to whether this property is a wakf property or not a suit may be instituted by the Board, mutawali or any other person in the Tribunal for a decision in the case.
It is clear from a reading of Section 6 and 5 that the list of wakfs published in the gazette is only final and conclusive qua the Board, mutawali of the wakf or any person interested therein; it cannot be said that the third person is also bound by the aforestated notification. In Board of Muslim Wakfs, Rajasthan Vs. Radha Kishan and Others, the Supreme Court had held that Section 6 does not make the inclusion of a property in the list of wakfs published by the Board as final and conclusive u/s 6(4). Thus, in case any dispute arises between the Board and third persons the notification will not be binding on the third person. Question of title can only be resolved by the institution of a suit in a Civil Court.
The first point which is thus required to be determined is as to whether in the instant case the land in dispute is a wakf property as defined in Section 3(l) of the Act or not.
Section 3(l) defines a wakf; it inter alia reads as follows:
Definitions.- In this Act, unless the context otherwise required,-
....
(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.
The contention of the defendant is that the mosque in the suit property was a wakf by user immemorial; this has been admitted by the witnesses of the plaintiff himself, coupled with the notification dated 16.4.1970 Ex.D-1, this was a conclusive evidence that the mosque was a wakf property. Since the onus to discharge this issue was on the defendant, it was incumbent upon the defendant to produce the survey report i.e. the survey conducted u/s 4 of the said Act, the report submitted u/s 4(3). In spite of opportunity, the defendant had chosen not to lead any evidence, in the absence of which the notification Ex.D-1 was not by itself sufficient to override the documentary evidence of title produced by the plaintiff showing his ownership i.e. Ex.PW-4/6 and Ex.PW-4/7.
In the case of Capt. Mohar Singh (supra) Supreme Court had held that where there was no evidence of a wakfnama ever having been executed, no direct evidence of oral dedication of the suit property as a wakf property it cannot be held to be a wakf within the meaning of the definition of the said Act. In the instant case as well the plaintiff has categorically stated that there was no Mullah living in the mosque; no Muslims were seen offering prayers. On the other hand, there was positive evidence produced by the plaintiff i.e. PW-1, PW-2, and PW-3 who had stated and proved the documents of title of this property belonging to the Union of India i.e. Northern Railway. There was no evidence in rebuttal. The Supreme Court in Mohammad Shah Vs. Fasihuddin Ansari and Others, 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.
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. Admittedly as per the revenue record i.e. for the period 1905 to 1961 the Union of India has been shown as owner. It was for the defendant to have shown by evidence that the Union of India had expressly or impliedly intended or dedicated the mosque to have become a wakf property. This intention and the user has to be coupled. There is no evidence of which an intention to create a wakf; user from time immemorial has also not been established by the defendant.
In AIR 1937 Lah 552 Zafar Hussain v. 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.
Impugned judgment is incorrect on this score as well.
This Court is fully conscious of the constraints and fetters imposed upon it by Legislature not to interfere with the findings of fact. The Supreme Court in the judgment reported in I.C.I. (India) Private Ltd. Vs. The Commissioner of Income Tax, West Bengal, held that the misconstruction of a document of title by the fact finding Courts below would raise a substantial question of law.
In this case the documents of title of the plaintiff i.e. Ex.PW-4/6 and Ex.PW-4/7 have been misconstrued and misread; result is the impugned finding cannot be sustained.
The substantial questions of law were formulated on 16.11.1981. Question No. 5 has not been pressed. Questions No. 1 to 4 are answered as follows:
The plaintiff is the owner of the suit property. There is no evidence to show that the provisions of Section 4 and 5 of the said Act had been complied with; the onus of which was on the defendant. The suit property is not a wakf property. Valid notice u/s 56 had been sent by the plaintiff before filing of the suit.
Result of the aforenoted discussion is that the appeal is allowed. Impugned judgment dated 23.3.1981 is set aside. Suit of the plaintiff is decreed.