Punjab-Haryana High Court
Shrimati Lakhwinder Kaur And Others vs Sadar Anjuman Ahmediyya Qadian And ... on 4 May, 2010
R.S.A. No. 3120 of 1984
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
R.S.A. No. 3120 of 1984
Date of decision: 04.05.2010
Shrimati Lakhwinder Kaur and others
....Appellants
versus
Sadar Anjuman Ahmediyya Qadian and another
....Respondents
CORAM: HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: - Mr. Arun Jain, Sr. Advocate,
with Mr. Sunil Chadha, Advocate,
for the appellants.
Mr. M.L. Saggar, Sr. Advocate,
with Mr. S.S. Khaira, Advocate,
for the respondents.
***
VINOD K. SHARMA, J.
This is defendants' appeal against the judgment and decree dated 28.9.1984, passed by the learned lower appellate Court, decreeing the suit for possession of land measuring 33 kanals 1 marla situated in Qadian, Tehsil Batala, District Gurdaspur.
The plaintiff/respondents filed a suit for possession of land measuring 33 kanals 1 marla comprised in khasra Nos.92 (12 kanals) and 94 (21 kanals 1 marla) situated in Qadian, Tehsil Batala, District Gurdaspur. The suit was filed against S/Sh. Balbir Singh and Amarjit Singh, and on death of Sh. Balbir Singh, Smt. Lakhwinder Kaur, Rammi and Bablu were brought on record as the legal representatives.
The pleaded case of the plaintiff/respondents was, that the suit land belonged to Sadar Anjuman Ahmediyya Qadian. The land was R.S.A. No. 3120 of 1984 -2- being used as gair mumkin kabristan and as gair mumkin idgah by the Ahmediyya community for last over a century. Plaintiff No.1 i.e. Sadar Anjuman Ahmediyya Qadian, is a registered society, duly registerred under the Registration of Societies Act, 1860, whereas plaintiff No.2 Mirza Wazim Ahmad was its Nazir-ala, i.e. the Principal Secretary, Trustee and President and he had the right to file the suit. Sh. Sayeed Ahmad was general attorney of Sadar Anjuman Ahmediyya Qadian, having been appointed vide resolution No.344 dated 11.9.1961. It was the case of the plaintiffs, that the governing body of Sadar Anjuman Ahmediyya Qadian vide its resolution No.306 dated 2.12.1979 had authorised said Sh. Sayeed Ahmad to file the present suit.
The case of the plaintiffs was, that Balbir Singh, defendant, on instigation, and with the help and connivance of defendant No.2, entered into illegal possession of the land for about last six years. That the defendants had no right, title or interest in the land in dispute, and that the possession of the defendants over the suit land was illegal and wrongful. It was also the pleaded case of the plaintiff/respondents, that entries in the revenue record, relating to the possession of the defendants were forged and fabricated by the defendants, in collusion with the revenue authorities. While entering into illegal possession of the suit land, the defendants also demolished the graves and damaged the idgah, thus, injured the religious feelings of the Ahmediyya community in general, and that of the plaintiffs in particular, for which separate legal action under the criminal law was taken by the State against the defendants. Plaintiff No.1 claimed right to manage/possess the suit land through its manager or mutwalli. It was claimed, that plaintiff No.1 R.S.A. No. 3120 of 1984 -3- being in lawful and in legal possession, had the legal right to occupy the land, whereas the defendants had no right to take forcible possession, and were bound to deliver the possession of the suit land to plaintiff No.1. But as the defendants had refused to accept the request of the plaintiffs, thus, the suit was filed.
The suit was contested by the defendants by pleading, that the suit land did not belong to Sadar Anjuman Ahmediyya Qadian. It was also denied that the land was being used as gair mumkun kabristan and gair mumkin idgah by Ahmediyya community since about a century. It was denied that defendant No.1 was a registered society under the Registration of Societies Act, 1860. The factum, validity and genuineness of the registration of plaintiff No.1, as a registered society was denied. It was pleaded that plaintiff No.1 had no locus standi to file the suit, and that the suit by plaintiff No.1 was not maintainable. It was also denied that Sh. Sayeed Ahmad was attorney of plaintiff No.1. It was also pleaded that the suit was not validly filed and that the suit was not properly signed and verified. It was denied for want of knowledge, if plaintiff No.2 was Nazir-Ala or the Principal Secretary, Trustee and President of plaintiff No.1. His competence to file the suit was also denied. It was denied, that the suit property was a trust property. It was also denied, that the suit property belonged to the plaintiffs and their possession over the suit property was denied. It was pleaded that khasra No. 361 (present khasra No.92) and khasra No.363 (present khasra No.94) were previously owned by Sh. Bashir-U-Din Ahmad and others, who after partition of the country migrated to Pakistan and thereafter the said land vested with the custodian and eventually with the Central R.S.A. No. 3120 of 1984 -4- Government. It was the case of the defendant/appellants. That the plaintiffs in collusion and in connivance with the revenue and other officials concerned illegally and unauthorisedly got the name of plaintiff No.1 entered as owner in the relevant revenue record, without the sanctioning of any mutation in their favour. This act was alleged to be outcome of connivance with the revenue officials. The entries in the name of plaintiff No.1 as owner of the suit land were said to be false, baseless, wrong, incorrect, fictitious, void, inoperative, mala fide and not binding on the defendant/respondents, thus, were procured by secret, clandestine and underhand means in collaboration with the revenue and other officials concerned. It was denied that plaintiff No.1 was authorised to file the suit through resolution. It was also denied that specific authorisation was given to Sh. Sayeed Ahmad to file the suit on the basis of resolution of the society. It was denied that defendant No.1 had entered into possession in connivance with defendant No.2 for about six years. It was pleaded, that defendant No.2 had been unnecessarily dragged in litigation and his name deserved to be deleted from the array of defendants. It was denied, that defendant No.1 had no right, title or interest of any kind in the suit property. It was also denied that possession of defendant No.1 was illegal and wrongful. It was denied that entries in favour of defendant No.1 were forged and fabricated, by the defendants in collusion with the revenue authorities. The demolition of graves and idgah was also denied. It was denied, that the religious feelings of the community or plaintiffs were injured by the defendant/respondents. It was alleged that false criminal case was registered against the defendants but they were acquitted. It was asserted R.S.A. No. 3120 of 1984 -5- that the possession over the suit property was that of defendant No.1. Plaintiffs were said to be neither owner nor in possession of the suit property. Defendant No.1 claimed to be in possession of the suit property as tenant under its owner, since the partition of the country on a yearly rent of Rs.50/- (Rupees fifty only) per acre. It was denied, that suit land was used as kabristan or idgah. It was also denied the suit property was trust property. It was denied that plaintiff No.1 had any legal right to occupy the suit land. Allegations of forcible possession were also denied. It was denied that the defendants were liable to restore possession to the plaintiffs. Defendant No.1 claimed to be in lawful possession of the suit property, as tenant under its lawful owner and that the plaintiffs had no right, interest or title of any kind in the land. The suit was said to be not maintainable in the present form. The cause of action to file the suit was also denied. The suit was said to be beyond limitation, and further that the suit was not correctly valued for the purposes of court fee and jurisdiction. The suit was said to be bad for misjoinder of parties and cause of action.
After filing of the replication, the learned trial Court framed the following issues: -
"1. Whether plaintiff No.1 is a registered society?
OPP
2. Whether plaintiff No.2 is President of plaintiff No.1 and is authorised to prosecute the case? OPP
3. Whether plaintiff is owner of property in dispute?
OPP
4. Whether the plaint has been properly signed and verified and suit has been properly presented? OPP R.S.A. No. 3120 of 1984 -6-
5. Whether suit is properly valued for the purposes of court-fee and jurisdiction? OPP
6. Whether suit is bad for misjoinder or cause of action? OPD
7. Whether suit is bad for misjoinder of necessary parties? OPD
8. Whether defendant is in possession of suit land as tenant? OPD
9. If issue No.8 is proved whether plea of tenancy is vague and requires better particulars, if so its effect? OPP
10. Whether the suit is within time? OPP
11. Whether this court has no jurisdiction to try the present suit? OPD onus objected to. Objection over ruled.
12. Relief."
In support of the case, plaintiffs examined Fateh Mohammad as PW1, Iftkar Ahmad as PW2, Abdul Latif as PW3, Fazal Illahi Khan as PW4, Sharif Ahmad as PW5, Sayed Ahmad attorney of the plaintiff as PW6, Yamuna Dass as PW7 and also placed on record the copies of jamabandi Ex. P1 and Ex. P2, Khatoni Paimash Ex. P3, Khatoni Istmal Ex. P4, copy of judgment Ex. PA, copy of decree sheet Ex. PB, jamabandi Ex.PC, copy of statement Ex. PD, copies of khasra Girdawaries Ex. PE, PF, Ex. PG, copy of order Ex. PH, copy of registration certificate Ex. PW6/A, copy of memorandum of association Ex. PW6/B, copy of rules and regulations Ex. PW6/C, copies of list of members Ex. PW6/D, Ex. PW6/E, Ex. PW6/F and copies of dicuments Ex. PW6/G, Ex. PW6/H, copies of letters Ex.PW7/1 and Ex PW7/2.
The defendant/appellants in their defence examined Harnam Singh, Qanungo, DW1, Virsa Singh, Office Qanungo, DW2, Gopal R.S.A. No. 3120 of 1984 -7- Dass, Girdawar, DW3, Tara Singh DW4, Amarjit Singh, defendant, DW5, Lakhwinder Kaur DW6 and placed on record jamabandi Ex. D1, khatoni istmal Ex. D2, copy of mutation Ex. D3, copy of order Ex. D2/A and jamabandi Ex. D4.
The learned trial Court took up issues No.1, 2 and 4 together. On issues No.1, 2 and 4, the learned trial Court held, that in order to prove that plaintiff No.1 was a registered society, reliance was placed on registration certificate Ex. PW6/A. The copy of Ex. PW6/A was said to be a public document falling under Section 74(a) of the Evidence Act, 1872, therefore, certified copy was admissible in evidence, under Section 76 of the Evidence Act.
The contention of the learned counsel for the defendants was, that Ex. PW6/A was not a public document, but was covered under Section 74(2) of the Evidence Act, therefore, it was required to be proved in terms of Section 78(6) of the Evidence Act. It was further the case, that as there was no certificate as required under Section 78(6) of the Evidence Act given on Ex. PW6/A, it was inadmissible in evidence and it could not be read in evidence. The contention was that, if this document was taken out of consideration, then it was not proved that plaintiff No.1 is a registered society. In the alternative it was contended, that even if the document was taken to be covered under Section 74(1) of the Evidence Act, still it would be inadmissible because requirement of Section 76 of the Evidence Act was not met.
The learned trial Court considered the provisions of Section 74 as well as Section 78(6) of the Evidence Act, and held that the document Ex.PW6/A was neither certified by the notary public nor by any legal R.S.A. No. 3120 of 1984 -8- keeper thereof, furthermore the Indian Embassy had not appended the requisite certificate. The ingredients of Section 78(6), therefore, were also not fulfilled and Ex. PW6/A was, therefore, held to be inadmissible in evidence. The learned trial Court held that at the time of exhibiting the document, objection was raised by the learned counsel for the defendants, which was kept open. The learned trial Court on consideration of provisions of the Evidence Act held, that Ex. PW6/A was inadmissible in evidence and recorded a finding, that the plaintiff No.1 failed to prove that it was a registered society.
The other limb of the arguments of the learned counsel for the plaintiffs, that in view of statement of PW6, that the original registration certificate was lost and the certified copy was admissible in evidence, was also not accepted, for the reason that before leading secondary evidence plaintiffs were required to prove its loss, and further prove that every available source was exhausted to bring the original to the Court.
The learned trial Court did not accept the statement of PW6, with regard to loss of original. The learned trial Court held, that PW6 was not able to tell the date, month and year, or the number and description of the case in which the original certificate was said to have been given to the Government of India as deposed by him. The learned trial Court, therefore, held that it was not proved that the original was lost. The learned trial Court, further held that there was no evidence to prove that Ex.PW6/A was the correct copy of the original one. The learned trial Court held, that the grounds for leading secondary evidence were not proved. The plea that the certified copy could be taken into evidence, was also not accepted. The learned trial Court further held, R.S.A. No. 3120 of 1984 -9- that as Ex. PW6/A, was not attested by the Embassy of India, in Islamabad to be the true copy of original not it bore the certificate, as to in whose custody the original document was in Pakistan. It was also not proved who prepared copy Ex.PW6/A, it was, thus, not admissible in evidence. The contention, that after the partition of the country, plaintiff No.1 was required to get it registered in India and having not done so, plaintiff had failed to prove, that it was a registered society, was accepted. The provisions of Section 3 of the Societies Act were invoked to hold, that the plaintiffs had no locus standi to file the present suit.
The learned trial Court held that if it was a registered society under the Societies Registration Act, then it was required to submit the list of managing body, the names, addresses and occupation of the Governors, Counsils/Directors etc. every year, but plaintiff No.1 failed to comply with the provisions of the Act. The learned trial Court, therefore, held, that there were different nomenclature of the society as given in Ex.PW6/A and Ex. PW6/B. In Ex. PW6/A there are no words "Punjab (India)" which are added on the copy of memorandum of Association Ex. PW6/B. In the later document, the name of District Gurdaspur was missing which was on Ex.PW6/A. The learned trial Court held, that plaintiff No.1 of its own, could not change the name of the society if plaintiff No.1 was registered society. Plaintiff No.2 was only a self-styled President, therefore, Ex. PW6/B to Ex. PW6/H had no significance.
Therefore, in view of the evidence, the learned trial Court held, that the plaintiffs failed to prove, that they were mutwalli of the suit land and further that letters Ex. PW7/A and Ex.PW7/2 did not prove the R.S.A. No. 3120 of 1984 -10- appointment of plaintiff No.1 as mutwalli for the reason that in Section 11 of the Administration of Evacuee Property Act, 1950, there was no word "mutwalli". The Central Government was, therefore, not competent to appoint plaintiff No.1 as "mutwalli" of the suit land. The learned trial Court held that the first letter was addressed by the Custodian Department, Punjab, to the District Rent and Managing Officer, Gurdaspur, stating that Central Government has appointed plaintiff No.1 as mutwalli, and on the basis of the letter Ex. PW7/1, the District Rent and Managing Officer, Gurdaspur, sent intimation to the Tehsildar, Batala (Ex. PW7/2).
In both the letters, it was mentioned, that under Section 11, the Central Government had appointed plaintiff No.1 as mutwalli. The learned trial Court held, that under Section 11(1), it was within the competence of the Central Government, to exercise the jurisdiction to appoint trustees in place of evacuee trustees.
The plaintiffs having failed to prove any document, showing that the Central Government exercised power under Section 11, by passing any general or special order in favour of plaintiff No.1, and also as under Section 11(1) there was no word "mutwalli", the plaintiff No.1 could not be appointed as mutwalli.
Under Sub-section 2 of Section 11, the appointment of mutwalli is when the evacuee property is of Wakf-alal-aulad. The learned trial Court, therefore, held, that no mutwalli could be appointed qua the suit land. The learned trial Court decided all these issues against the plaintiffs.
On issue No.3, the learned trial Court did not accept the R.S.A. No. 3120 of 1984 -11- contention of the plaintiff/respondents that the ownership of the plaintiffs was proved by way of entries in jamabandi Ex. P1 and Ex. P2, in view of the deposition of DW1 to DW3, who were the revenue officials, and deposed that the ownership in the revenue record could be changed, only on the basis of mutation, allotment letter or repat roznamcha. It was also deposed by them, that till the preparation of "istmal" and during consolidation and even thereafter, there was no mutation, allotment or rapat roznamcha, on the basis of which the ownership could be transferred in the name of plaintiff No.1.
The learned trial Court held, that PW6 rather admitted that there was no dedication or gift in favour of plaintiff No.1, nor there was any document to prove the ownership of the plaintiffs. The learned trial Court held, that in view of the evidence led, it is proved that entries in the "khatoni istmal" and the jamabandi Ex. P1 for the year 1965-66, were got incorporated by plaintiff No.1 in collusion with the revenue staff.
The learned trial Court further held that original owners of the land were Bashiru Dun, Mohmad Ahmed, Bashir Ahmed and Sharif Ahmed, who migrated to Pakistan in 1947, and the suit land thereafter vested in the custodian, therefore, the ownership for the first time in the year 1965-66 could not be changed in favour of plaintiff No.1, without any mutation, "allotment letter" or "rapat roznamcha". The learned trial Court held, that the entries Ex. P1 and Ex. P2, stood belied being incorrect entries. The learned trial Court held, that presumption of truth attached to the revenue entries stood negatived, by the testimony of the revenue officials examined by the defendants. The learned trial Court R.S.A. No. 3120 of 1984 -12- further held, that jamabandi Ex. D1 for the year 1943-44 showed the land in khasra Nos. 361 and 363 to be "kabristan" and "idgah pond", which was not capable of cultivation, therefore, there was no presumption of title, in favour of custodian on migration of original owners to Pakistan. The learned trial Court held that the entries, therefore, could not be changed in the name of plaintiff No.1, without "allotment", "mutation" or "rapat roznamcha". The learned trial Court held, that the plaintiffs had failed, to prove their ownership qua the property in dispute.
Issues No.5, 6, 7, 9, 10 and 11 were decided as not pressed. On issue No.8, the learned trial Court, on appreciation of evidence, held, that possession of Balbir Singh and now that of Lakhwinder Kaur, was not in the capacity of tenant, but as trespasser. The learned trial Court held, that the suit has been filed without any cause of action, as in the plaint it was pleaded that illegal possession was taken by Balbir Singh about six years prior to filing of the suit, accordingly in view of pleading the said period of six years came to year 1974, but PW1 to PW4 had deposed that Balbir Singh was in possession for for the past 10 years. The learned trial Court held that if this was taken into consideration then Balbir Singh was proved to come in possession in the year 1971. The learned trial Court held that the the evidence of the plaintiffs being not consistent, qua possession of Balbir Singh, the suit filed was, therefore, without any cause of action.
Though the defendants were trespassers, but the custodian alone could file the suit for possession of the suit land. Issue No.8 was accordingly decided in terms as referred to above. R.S.A. No. 3120 of 1984 -13-
In view of the findings on issues No.1, 2, 3, 4 and 8, the suit filed by the plaintiff/respondents was ordered to be dismissed.
The plaintiff/respondents preferred an appeal against the judgment and decree passed by the learned trial Court.
In appeal, the learned lower appellate Court, on consideration of the arguments raised by the respective parties, came to the conclusion, that there was no doubt, that Sadar Anjuman Ahmediyya Qadian was a registered society under the Societies Registration Act, as recited in the certificate of registration, the memorandum of association and copy of the rules of the Sadar Anjuman Ahmediyya Qadian, District Gurdaspur were shown to have been filed and registered. In the Diplomatic and Consular Officers Oath and Fees Act, 1948, the Consular Officer is defined to include Consul General, Consul, Vice Consul, Consular Agent, Proconsul and any other person authorised to perform the duties of Consul General, Consul, Vice Consul and Consular Agent.
The learned lower appellate Court also referred to Section 3 of the Act to hold, that every Diplomatic or Consular Officer in any foreign country, or a place where he is exercising his function, administer any oath and take any affidavit and also do any notarial act which any Notary Public may do within a State. Every oath, affidavit and notarial act administered, sworn, or done by or before any such person shall be as effectual as if duly administered, sworn or done by or before any lawful authority in a State.
Any document purporting to have been affixed impress or subscribed thereon or thereto, the seal and signature of any person authorised by this Act to administer an oath in testimony of any oath, R.S.A. No. 3120 of 1984 -14- affidavit or act, being administered, taken or done by or before him, shall be admitted in evidence, without proof of the seal or signature being the seal or signature of that person or of the official character of that person.
The plea of the defendant/appellants, that authentication under Section 85 of the Evidence Act, was not mere attestation but means that the person authenticating is to assure himself, of the identity of the person, who had signed the instrument as well as the fact of execution was rejected for the said reason, that the presumption under the Diplomatic or Consular Officers Oath and Fees Act, unless rebutted, stands and the document could be admitted in evidence. The learned lower appellate Court held, that under Section 78(6) of the Evidence Act, in order to admit the documentary evidence, it was required to be certified by legal keeper of the original document and by the Consul General. Proof of this was required to be given by direct or circumstantial evidence. The learned lower appellate Court, on appreciation of respective contentions, recorded a finding, that it stood clearly proved that Sadar Anjuman Ahmediyya Qadian, District Gurdaspur, was a society registered under the Societies Registration Act, in June, 1906.
The certified copy of the certificate of registration, was issued by the Assistant Registrar, Office of the Registrar, Joint Stock Companies, Punjab (Pakistan), who attested it to be true copy. It was also authenticated by Embassy of India, Islamabad. The learned lower appellate Court on appreciation of evidence held, that there was a presumption regarding official acts, and in case, the defendant/appellants, had any doubt about the genuineness of this R.S.A. No. 3120 of 1984 -15- certificate of registration, they were to produce evidence to show that it was not genuine.
The learned lower appellate Court also took note of the fact, that another certified copy of the certificate of registration obtained by the plaintiff/respondents, was produced to overcome hyper-technical objections raised by the defendant/appellants. The learned lower appellate Court held, that this certified copy sought to be produced by way of additional evidence, strengthened the view taken by the Court, that the certified copy Ex. PW6/A was genuine and plaintiff No.1 was a registered society under the Societies Registration Act.
The learned lower appellate Court further held, that reading of Section 3 of the Societies Registration Act, did not lead to any conclusion, that the society registered under the Act was required to be re-registered in India after formation of Pakistan.
The contention of the learned counsel for the defendant/appellants, that the suit was not filed by the society registered in the year 1906 at Lahore, but by a new society, which was required to be re-registered under Section 12 of the Societies Registration Act, was not accepted in view of the finding that in the instant case there was no change in the name of the society which was Sadar Anjuman Ahmediyya Qadian.
In the memorandum of association Ex. PW6/B Punjab (India), had been given merely as denoting the address of the society showing that the society had its registered office at Qadian, Punjab (India). The learned lower appellate Court further held that otherwise also under Section 12-B, the change in name of the society did not affect any rights R.S.A. No. 3120 of 1984 -16- or obligations of the society or rendered any legal proceeding defective filed by or against the society, and any legal legal proceeding which might have been continued or commenced by or against it, by its former name may be continued or commenced by or against it by its new name.
The learned lower appellate Court held that even if there was change in name, it did not affect the rights of the plaintiffs to institute proceedings, under the old name.
The learned lower appellate Court also took note of the fact that sons of Balbir Singh had instituted a petition under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 against Sadar Anjuman Ahmediyya Qadian, on the allegations that old khasra Nos. 361, 363 and 365 were the ownership of the Central Government, but during the consolidation proceedings, these khasra numbers have wrongly been shown in the name of Sadar Anjuman Ahmediyya Qadian, and further that old khasra Nos. 338 and 380 were allotted to Sarder Gurdial Singh allottee, but these were wrongly shown in the name of Sadar Anjuman Ahmediyya Qadian, therefore, the necessary corrections be allowed in the revenue record. The petition under Section 42 was allowed by the Additional Director, Consolidation of Holdings, Punjab, Jalandhar, vide order Ex. D2/A. This order, ordering the corrections in the revenue record, was challenged by plaintiff No.1, by filing a writ petition in the Hon'ble High Court.
The learned lower appellate Court held, that though the decision in the writ petition did not operate as res judicata, but the defendant/appellants were definitely estopped from taking up the plea, that Sadar Anjuman Ahmediyya Qadian was not society registered under R.S.A. No. 3120 of 1984 -17- the Societies Registration Act as they had sued plaintiff No.1 through Chaudhary Saeed Ahmad. The learned lower appellate Court further held that even under the rules of the society, Mirza Wasim Ahmad was entitled to sue or to be sued on behalf of plaintiff No.1.
The learned lower appellate Court proceeded to decide the case on merits and held, that in the jamabandi for the year 1943-44, Ex. D1, Mirza Bashir-Ud-Din Mahmud Ahmad etc. sons of Mirza Gulam Ahmad of Qadian were shown to be the owners of khasra Nos. 361 and
363. These persons had migrated to Pakistan and thereafter these khasra numbers vested in the custodian and eventually in the Central Government.
The learned lower appellate Court held, that in the year 1939 a suit was filed for permanent injunction by Mirza Bashir Ud Din Mahmud Ahmad etc sons of Mirza Gulam Ahmad,Sadar Anjuman Ahmediyya Qadian against Mehar Din son of Gulam Muhammad Rajput and others, restraining them and the Mohamaden residents of village Qadian, Rampur Rajada and Nathpura from burying their dead in khasra No. 361. The suit was decreed in favour of Sadar Anjuman Ahmediyya Qadian, Mirza Bashir-Ud-Din and others were also joined in the suit, but they were the persons from whom the Anjuman derived title, but they were not interested in the suit. In the said suit Sadar Anjuman Ahmediyya Qadian was held to be owner of khasra No. 361.
The learned lower appellate Court however held that finding did not have any effect against the defendant/appellants in the appeal. The learned lower appellate Court held, that the custodian Central Government, could come only if Mirza Bashir-Ud-Din etc. were the R.S.A. No. 3120 of 1984 -18- owners. The learned lower appellate Court further held, that khasra No. 361 is "gair mumkin kabristan", whereas khasra No. 363 is "maqbooza ahle islam", which was shown to be under the ownership of Sadar Anjuman Ahmediyya Qadian in jamabandi Ex. P1 for the year 1965-66, Ex. P2 for the year 1974-75. During consolidation, also Sadar Anjuman Ahmediyya Qadian was shown as owner of these khasra numbers. In the jamabandi Ex. D4, for the year 1979-80 also Sadar Anjuman Ahmediyya Qadian was shown to be owner of these khasra numbers.
The learned lower appellate Court held, that in the case, it appeared that the custodian or the Central Government was shown as owner without any basis wrongly.
Mirza Bashir-Ud-Din, Mahmud Ahmad and others, who were owners of the land in dispute had dedicated the land for religious and charitable purpose. They created a "wakf", as they did not claim any title in the land in dispute when Sadar Anjuman Ahmediyya Qadian instituted a suit in the year 1939, for permanent injunction, restraining Mehar Din and others as also other Mohammeden residents of Qadian, Rajada and Nathpura from burying their dead. The learned lower appellate Court, took note of the contention of the learned counsel for the plaintiff/respondents, that even if it is assumed that Sadar Anjuman Ahmediyya Qadian was not owner of the land in dispute and the land in dispute being religious and trust property could only be managed by a trust, then also the Central Government had appointed plaintiff No.1 as mutwalli of the suit property vide letters Ex. PW7/1 and PW7/2.
The plea of the learned counsel for the defendant/appellants that Central Government had no right to appoint mutwalli, so far as R.S.A. No. 3120 of 1984 -19- evacuee property was concerned in view of Section 11 of the Administration of Evacuee Property Act, 1950, was thus not accepted by the learned lower appellate Court in view of the finding that the dispute, if any, was between the custodian and plaintiff No.1 regarding validity of appointment.
The property in dispute being a religious and charitable property, the Central Government appointed plaintiff No.1 as manager of the property, therefore, was entitled to possession of the property. The learned lower appellate Court held, that in a way plaintiff No.1, was appointed as trustee by custodian for carrying out the purposes of the trust.
Plaintiff/respondents, therefore, were held entitled to restoration of possession in view of their previous possession.
The learned lower appellate Court held that plaintiff/respondents were put in possession on 21.4.1959 as mutwalli, and subsequently Balbir Singh entered into possession, whose possession was that of a trespasser and Sadar Anjuman Ahmediyya Qadian, was entitled to restoration of possession, on the ground that against trespasser, possessory title was good title.
To support this finding the support was drawn from Banwari Ram and others Vs. Attar Chand and another, 1983 CLJ (Civil and Criminal) 30. Reliance was also placed on the judgment of the Hon'ble Supreme Court in Somnath Barman Vs. Dr. S.P. Raju and another, AIR 1970 Supreme Court 846, wherein it was held, that prior possession of plaintiff was sufficient title against a trespasser notwithstanding that the suit was brought more than six months after R.S.A. No. 3120 of 1984 -20- dispossession.
The learned lower appellate Court thereafter placed reliance on the judgment of the Hon'ble Privy Council in (Haji) Abdur Rehim Vs. Narayan Dass Aurora and others, AIR 1923 Privy Council 44, wherein it was held, that once a property is wakf and the manager of the wakf is mutwalli, the Governor, Superintendent or Curator, could maintain a suit for possession.
The learned lower appellate Court, reversed the findings of the learned trial Court and held that Sadar Anjuman Ahmediyya Qadian was a society registered under the Societies Registration Act. Chaudhary Saeed Ahmed was its general attorney and was entitled, to sue as general attorney or as authorised by the governing body of the society through resolution No.306 dated 2.12.1979.
The learned lower appellate Court further held, that Mirza Wasim Ahmad being "Nazir-Ala" of society could also sue. Plaintiff No.1 was held to be owner of the property in dispute and further that mutwalli was also entitled to possession on the basis of its previous possession, from the defendant/appellants, who were trespassers.
The appeal was accordingly allowed and the suit was decreed. Mr. Arun Jain, learned senior counsel, appearing on behalf of the appellants contended, that this appeal raises the following substantial questions of law: -
"1. Whether the judgment and decree passed by the learned lower appellate Court is outcome of misinterpretation of documents and provisions of Sections 74 and 78(6) of the Evidence Act, therefore, perverse?R.S.A. No. 3120 of 1984 -21-
2. Whether the learned lower appellate Court was justified in reversing the well-reasoned judgment of the learned trial Court?"
In support of the substantial questions of law, referred to above, the learned senior counsel for the appellants contended, that the case set up by the plaintiff/respondents in their plaint was, that the suit land was under the ownership of Sadar Anjuman Ahmediyya Qadian and was used as "gair mumkin kabristan" and "gair mumkin idgah" by Ahmediyya community since over 100 years. The case further set up by the plaintiff/respondents was, that Balbir Singh defendant No.1 entered into illegal possession of the suit land six years back, and that he demolished the graves and idgah. The claim set up by the plaintiffs, therefore, was, that they had the right to manage or possess the suit land, as its manager and mutwalli, as the land was in lawful and legal possession of plaintiff No.1.
The suit was contested by the defendant/appellants by denying ownership of plaintiff No.1, further it was denied that the land was either "gair mumkin kabristan" or "gair mumkin idgah" at any point of time. Objection was also raised, that plaintiff No.1, was not duly registered society under the Registration of Societies Act, 1860, therefore, it had no locus standi to file the suit. Possession of plaintiff No.1, over the suit land was denied. The case of the defendant/appellants was, that the suit land was originally owned by Bashir-U-Din Ahmad and others and after the partition of the country, the suit land vested with the custodian/Central Government, whereas plaintiff No.1 had illegally got the land entered in its name in the revenue record as its owner during the R.S.A. No. 3120 of 1984 -22- consolidation proceedings in the 1963-64. The defence further set up was, that the suit land was in lawful possession of defendant/appellants as tenant, under its lawful owner and the plaintiffs had no right, title or interest of any kind in the suit land.
The contention of the learned senior counsel for the appellants was, that the learned trial Court rightly dismissed the suit, by recording a well-reasoned judgment by holding, that plaintiff No.1 had failed to prove, that it was a registered society under the Registration of Societies Act. The contention of the learned senior counsel was, that this finding was wrongly reversed.
The contention of the learned senior counsel for the appellants was, that Sayed Ahmad, while appearing as PW6 as attorney of plaintiff No.1, admitted that society was never registered after the partition and Ex.PW6/A, the alleged registration certificate before partition in Pakistan dated 30.6.1906, was not duly proved as required under Section 78(6) of the Evidence Act.
In any case, in absence of its re-registration after 15.8.1947, in view of proviso to Section 3 of the Societies Registration Act, plaintiff No.1 could not be held to be a society, registered under the Societies Registration Act.
It was also the contention of the learned senior counsel for the appellants, that plaintiff/respondents had failed to prove the registration certificate, and this fact coupled with the admission of PW6, that plaintiff No.1 was not registered in India, the finding of the learned lower appellate Court cannot be sustained, as the learned trial Court had rightly held, that plaintiff No.1 was not proved to be a registered society. R.S.A. No. 3120 of 1984 -23-
It was also the contention of the learned senior counsel for the appellants, that Ex. PW6/B to Ex. PW6/E were of no consequence as they merely bore stamp of Register of Firms and Societies, Punjab, which could not advance the case of the plaintiff/respondents.
The learned senior counsel for the appellants also contended, that the plaintiff/respondents had not taken the stand, as in which capacity they were claiming their right over the suit property.
The contention of the learned senior counsel was, that contradictory stand was taken by the plaintiff/respondents, as at one stage they claimed to be owners and on the other hand claimed themselves to mutwalli.
The contention of the learned senior counsel for the appellants was, that once plaintiff No.1 had claimed itself to be mutwalli, then it could not claim itself to be owner of the property.
The learned senior counsel for the appellants also referred to the judgment Ex. PA, to contend that the judgment on which strong reliance was placed by the learned lower appellate Court, did not advance the case of the plaintiff/respondents, as it was merely a suit for permanent injunction filed by three owners against some persons, wherein the relief of injunction was sought, against the defendants in the said suit, though general relief against other Mohammedans was also claimed.
The contention of the learned senior counsel for the appellants was, that the judgment Ex.PA disproved the case of plaintiff/respondents, that there was any dedication of the suit land, measuring 14 kanals 11 marlas by the original owners in favour of R.S.A. No. 3120 of 1984 -24- plaintiff No.1.
Learned senior counsel for the appellants referred to the statement of PW6, attorney of plaintiff No.1, to contend that there was an admission, that there was no dedication of the suit land in favour of plaintiff No.1, by its true owners.
The contention of the learned senior counsel for the appellants further was, that claim of the plaintiffs over the suit land on the basis of jamabandis, which came to be recorded for the first time after consolidation in the year 1963-64, could not advance the case of the plaintiffs.
It was also contended by the learned senior counsel for the appellants, that no document was proved on record, in support of the revenue entries showing plaintiffs to be the owners of the suit property, therefore, the learned trial Court was right in coming to the conclusion, that the ownership of suit land vested with custodian/Central Government and plaintiff No.1 had no right, title or interest in the suit property and, therefore, had no locus standi to file the suit.
The learned senior counsel for the appellants also contended, that objection to Ex.PW7/1, was raised at the time of its exhibition, on the plea that neither the said document, was relied upon, nor it was public document, the said objection was kept open. Learned senior counsel for the appellants contended, that from document Ex.PW7/1 it was shown that plaintiff No.1, was appointed as mutwalli on 29.9.1958, which means that prior to said date the plaintiffs had no right, title or interest over the suit property and in view of claim to ownership, this document was totally irrelevant.
R.S.A. No. 3120 of 1984-25-
The learned senior counsel for the appellants also contended, that judgment Ex.PH passed by this Court was only to consider the order dated 6.9.1982 passed by the consolidation authorities. The contention of the learned senior counsel was, that no finding was given by this Court, qua the status of plaintiff No.1, therefore, could not be a basis to decide the case.
It was then contended by the learned senior counsel for the appellants, that there was no pleading or evidence to show as to when the plaintiffs were dispossessed, much less forcibly.
The contention of the learned senior counsel for the appellants was, that even as per the case set up by plaintiff/respondents, defendant No.1 came in possession of the suit land on 9.4.1971 through report No.249, which was made by Sh. Tilak Raj DW2. The contention of the learned senior counsel was, that DW2 was Virsa Singh not Tilak Raj, who had not supported the case, as he was only Office Qanungo and had nothing to do with the recording of field entries, which was the job of Patwari.
The learned senior counsel for the appellants also contended, that attempt made by the plaintiff/respondents to show that they came in possession of the suit land in pursuance to the documents Ex. PW7/1, Ex. PW7/2 and Ex. PG, cannot be relied upon as these documents were inadmissible in evidence and were otherwise contradictory in nature.
It was also the contention of the learned senior counsel for the appellants, that as per document Ex. PW7/2, possession was restored to plaintiff No.1, through the Rent Controller. The document is dated 6.12.1958. The contention of the learned senior counsel for the R.S.A. No. 3120 of 1984 -26- appellants was, that if possession was restored to plaintiff No.1 on 6.12.1958, then where was the need to re-deliver the same in pursuance to Ex. PG dated 21.4.1959. The contention was that these were mere paper entries, without change in actual possession.
It was then contended by the learned senior counsel for the appellants, that if the defendant/appellants had come into possession of the land in dispute in the year 1971/1974, the suit was filed in the year 1980, therefore, though the suit could not be said to be barred by limitation, but it was certainly barred on the doctrine of acquiescence.
It was finally contended by the learned senior counsel for the appellants that plaintiff No.1 being unregistered society was not competent to maintain the suit.
In view of the contentions raised, the learned senior counsel for the appellants prayed, that the substantial questions of law referred to above be answered in favour of the defendant/appellants and against the plaintiff/respondents and the appeal be accepted, by restoring the decree passed by the learned trial Court.
Mr. M. L. Saggar, learned senior counsel, appearing on behalf of the respondents, supported the judgment and decree passed by the learned lower appellate Court by contending, that plaintiff No.1 was registered as a society on 13.6.1906, for the purposes of management and control of the properties of Ahmediyya community, which are situated all over the world.
It was also the contention of the learned senior counsel for the respondents, that the property belonged to plaintiff No.1, as a suit for permanent injunction was filed in the year 1939 vide Ex. PA and Ex. PB, R.S.A. No. 3120 of 1984 -27- vide which injunction was granted by the civil Court restraining other Muslims from burying their dead in the graveyard measuring 12 kanals, which is part of the present suit land. The suit was decreed on 4.2.1983. The contention of the learned senior counsel for the respondents was, that the said suit having been filed by the registered owner clearly showed that the property was dedicated as "wakf property" in favour of plaintiff No.1.
The learned senior counsel for the respondents thereafter referred to Ex. PW7/1 dated 13.10.1958, which was a letter of the Custodian, Evacuee Property, Jalandhar (Punjab) to the District Rent and Managing Officer, Gurdaspur, regarding the trust properties of the society at Qadian and other places. On 2.12.1958, the District Rent and Managing Officer, Gurdaspur, passed an order Ex. PW7/2 directing the Tehsildar, Batala, to deliver the possession of the suit land to plaintiff No.1. Vide Ex.PG dated 21.4.1963, the Tehsildar, Batala, delivered the possession of the suit land to the society.
It was next contended by the learned senior counsel for the respondents, that from 7.6.1963 to 28.2.1964, the consolidation of holdings commenced under the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 and in khatoni istemal Ex. P8/D2, the society was recorded as owner in column No.4 and in possession in column No.5, which was subsequently carried in the jamabandi for the year 1965-66 Ex. P1 and jamabandi for the year 1969- 70 Ex. P4.
It was only on 9.4.1971 that report was made by DW2 Tilak Raj, Patwari, regarding possession of Balbir Singh on his mere asking. R.S.A. No. 3120 of 1984 -28- It was alleged that it was done under the influence of Sh. G.S. Brar, SDM Batala, husband of sister of appellant Amarjit Singh, whose land adjoined the land in suit.
The contention of the learned senior counsel for the plaintiff/respondents was, that revenue record was manipulated as in Ex.P2, Balbir Singh deceased was recorded as tenant at 'Wil', whereas, the society was dispossessed forcibly in 1974, and graveyard and idgah were damaged on the basis of which criminal case was registered against the appellants (this case was decided in favour of the appellants and they were acquitted of the charge).
The plaintiff/respondents filed a suit for possession on 22.1.1980, whereas on 6.9.1982, the Additional Director, exercising the powers under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 ordered the deletion of name of the society as owner and change it in the name of Central Government, on the petition filed by the appellants.
The order passed by the Additional Director, East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 was set aside by the High Court in CWP No.4691 of 1982 Ex. PH and, thus, plaintiff No.1 was recorded as owners of the suit property.
The contention of the learned senior counsel for the respondents, therefore, was that the facts and circumstances referred to above showed that the society was owner and in possession of the suit property and was illegally dispossessed in the year 1974. The learned lower appellate Court, therefore, was right in decreeing the suit for possession, specially when the appellants have not challenged their R.S.A. No. 3120 of 1984 -29- status, of trespassers as held by both the learned Courts below.
In reply to the contention raised by the learned senior counsel for the appellants, the learned senior counsel for the respondents contended, that as per proviso to Section 3 of the Societies Registration Act, 1860, plaintiff No.1 was registered after partition which is apparent from the certified copy of memorandum of association of the society Ex. PW6/B to PW6/D. The learned senior counsel for the respondents contended, that the Act called "The Administration of Evacuee Property Act, 1950" to protect the properties left by Muslims was enacted. The properties were vested in the custodian, who had the vast powers to take possession of the property and deal it within terms of provisions of the Act. The jurisdiction of the civil Court was barred under Section 56 of the Act, to challenge the order passed by authorities under the Act.
It was the contention of the learned senior counsel for the respondents, that the order passed under the Act, could not be challenged in the civil Court.
This contention was raised to controvert the allegations that the order passed by the custodian was illegal and not warranted under Section 11 of the Administration of Evacuee Property Act, 1950 In support of the contention, that the plaintiff/respondents were owner of the suit property, the learned senior counsel relied on the decree passed in the civil suit wherein the Muslims other than the Ahmediyya Muslims were restrained from burying their dead in the graveyard.
It was further the case of the respondents, that the judgment R.S.A. No. 3120 of 1984 -30- and decree was passed on 4.2.1943, thereafter no jamabandi was prepared during the intervening period till the jamabandi for the year 1965-66.
The contention of the learned senior counsel for the respondents further, was that in pursuance to Ex.PW7/1, the possession was handed over by the authorities under the Administration of Evacuee Property Act, 1950 on 21.4.1963, and after the consolidation, plaintiff No.1 was recorded as owner in possession in the subsequent jamabandi.
As already observed above, the order passed by the Additional Director under Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948 was also set aside by the High Court.
The learned senior counsel for the respondents also contended, that it was not open to the defendant/appellants to plead that the title in the suit land vested in the third person being a trespasser, in view of the law laid down by the Hon'ble Supreme Court in Nair Service Society Ltd Vs. K.C. Alexander and others, AIR 1968 Supreme Court 1165, Somnath Berman Vs. Dr. S.P. Raju and another, AIR 1970 Supreme Court 846, the judgment of this Court in Banwari Ram and others Vs. Attar Chand and another, 1983 CLJ (C&Cr) 30, wherein it was held, that wrong doer cannot successfully resist the suit, by showing that the right and title to possess vest in a third person.
It was also the contention of the learned senior counsel for the respondents, that the contention of the learned senior counsel for the respondents, that by acquiescence the plaintiffs had no right to seek possession, is misconceived as Article 64 of the Limitation Act, 1963 R.S.A. No. 3120 of 1984 -31- prescribes a limitation for possession of immovable property, on the basis of previous possession, which is 12 years. Once the suit was filed within a period of limitation, there was no question of acquiescence, as contended by the learned senior counsel for the appellants.
In reply to the main contention with regard to the admissibility of the registration certificate dated 13.6.1906, the learned senior counsel for the respondents contended, that the admissibility of registration certificate is being challenged mainly in view of the Provisions of Section 78(6) having been not certified by the Indian Embassy at Islamabad.
The contention of the learned senior counsel for the respondents was, that plea of the defendant/appellants, that the word "seen" cannot be said to be compliance of mandatory provisions of Section 78(6) of the Act, cannot be sustained in view of the judgment of this Court in Mehnga Singh and others Vs. Gurdial Singh and others, AIR 1984 (Punjab) 93, wherein this Court has been pleased to lay down as under: -
"21. I have thoughtfully considered the rival contentions made by the counsel for the parties and am of the considered view that this appeal is devoid of any merit. A perusal of Exhibit P-21 makes it obvious that the land covered by Ist mortgage was subject- matter of registered mortgage deed dated 6.7.1928 for a consideration of a sum of Rs.3500/-. The names of the mortgagees i.e. one or the other defendant-appellants/their legal heirs have been mentioned. On 31.8.1928 mutation has been entered as is clear from column No.15 of Exhibit P-21 and the same was sanctioned on 19.8.1928. According R.S.A. No. 3120 of 1984 -32- to the views of both the Courts below, there is presumption of truth in favour of an official document under sub-section (6) of Section 78 because it is a public document coming from a foreign country i.e. Pakistan. A certified copy has been produced on record, which is signed by the Indian Consulate at Islamabad. The provisions of sub section (6) of Section 78 of the 1872 Act read as under: -
"78. Proof of other official documents. - The following public documents may be proved as follows: -
(6) Public documents of any other class in a foreign country - by the original, or by a copy certified by the legal keeper thereof, with a certificate under the seal of a Notary Public or of an Indian Consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original, and upon proof of the character of the document according to the law of the foreign country."
22. A perusal of the above provision shows that the public document belonging to a foreign country can be proved by a copy certified by the legal keeper thereof with a certificate either of a Notary Public or an Indian Consul or a Diplomatic Agent. A perusal of Exhibit P-21/T would make it evident that it is authenticated by the stamp of the legal keeper of the record and the same is duly signed. It is further appropriate to mention that it is certified by the Indian Consulate at Islamabad. Therefore, the document fulfils the requirement of Section 78(6) of the 1872 Act."
R.S.A. No. 3120 of 1984-33- It was also the contention of the learned senior counsel for the respondents, that even otherwise, the society had placed on record the certified copy of the memorandum of association amended on 25.3.1950, 11.2.1976, 27.3.1976, as Ex. PW6/B, PW6/C, PW6/D, showing the list of members and office bearers of the society. These documents were filed along with the suit itself.
In support of the fact, that plaintiff No.1 was able to prove its due registration, the learned senior counsel for the respondents placed reliance on the judgment of the Hon'ble Privy Council in Sunder Singh
-Mallah Singh Sanatan Dharam High School Trust, Indaura Vs. Managing Committee, Sunder Singh-Mallah Singh, Rajput High School, Indaura and others, AIR 1938 Privy Council 73, wherein the Hon'ble Privy Council was pleased to lay down as under: -
"That learned Subordinate Judge held that the Committee was not duly registered, but his decision is visited by his failure to give effect to S.19. He placed the burden of proving the seven signatures to the original memorandum on the plaintiffs, and held that, in the absence of such proof, he could not hold that the Association was duly registered. The High Court reversed this finding, and held that the defendants had failed to disprove the presumption arising on the certificate of the Registrar dated 7th December, 1919. Their Lordships are of the opinion that the presumption arises, not on the certificate of registration granted by the Registrar under S.3, but on the copies of the Rules and Regulations and Memorandum, certified under S.19, which constitutes them prima facie evidence of the matters therein contained. The only evidence by which the appellants sought to overcome the presumption are that of Kharak R.S.A. No. 3120 of 1984 -34- Singh under cross-examination when he stated:
I did not see the original Articles of Association (nor sign them) sent to Registrar. Nor can I tell about the other trustees as to whether they signed or not. I do not know whether Kirpa Ram signed on the letter of consent to the Registrar....Barring the letter of consent I sent no other application or paper to Registrar. I cannot say with regard to this matter anything about Chaudri Sahib. I cannot say who produced the Articles of Association before the Registrar.
Whatever one might think probable, it is left uncertain whether this witness was referring to the Memorandum as the Articles of Association; counsel were unable to inform their Lordships definitely what was the reason of the brackets round the words "nor sign them". If the defendants really desired to displace the presumption in this respect, it was clearly their duty to seek to recover the original memorandum and to put the signature thereon to the witness. Their Lordships are therefore of opinion that the Association was duly registered and had therefore locus standi to maintain the suit."
It was next contended by the learned senior counsel for the respondents, that there was no particular form of dedication and the dedication for a religious and charitable purpose is termed as Endowment under Hindu Law, accordingly it is termed as Wakf under the Muslim Law.
In support of the contention, that Wakf was duly proved, reliance was placed on the judgment of the Hon'ble Privy Counsel in Sunder Singh -Mallah Singh Sanatan Dharam High School Trust, Indaura (supra), wherein it was held as under: -
R.S.A. No. 3120 of 1984-35-
"It is not disputed that for the foundation of a charitable endowment by a Hindu in this Province no writing is required. What is necessary is that the purpose be clearly specified and that the property intended for the endowment should be set apart as dedicated to that purpose. It is necessary that the donor should divest himself of the property. Whether he has done so is to be determined by his subsequent acts and conduct. All these propositions are well established. It is not disputed that a valid endowment once created cannot be revoked by the donor."
The contention of the learned senior counsel for the respondents was, that when the facts and circumstances pleaded and proved are seen with the judgment passed by the civil Court in 1939, the dedication of the property for religious and charitable purpose stood duly proved.
The contention of the learned senior counsel for the respondents was, that once the dispossession was proved, the plaintiffs were entitled to possession from the trespassers.
In view of the submissions referred to above, it was prayed by the learned senior counsel for the respondents, that substantial questions of law be answered against the appellants.
On consideration, I find no force in the contentions raised by the learned senior counsel for the appellants, whereas there is force in the contentions raised by the learned senior counsel for the respondents. In this case, the factum of possession of the plaintiff/respondents was duly proved, as also its ownership as recorded in the revenue record after the consolidation. The attempt of the defendant/appellants to get the R.S.A. No. 3120 of 1984 -36- entry in revenue record set aside by invoking the provisions of Section 42 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, failed when the writ petition filed against the order passed by the Additional Director, Consolidation, was accepted, meaning thereby that entry of ownership of plaintiff No.1 was kept intact.
The plea of the defendant/appellants, that they were put in legal possession in pursuance to the order passed by the revenue officer, was not accepted by the learned Courts below as they were held to be trespassers.
Once, by way of revenue record and other documents, the possession of plaintiff No.1 over the suit property was proved, the very fact that defendant No.1 came in possession by way of illegal means, would show that plaintiff No.1 was illegally dispossessed and was entitled to seek possession from the trespassers, merely on the basis of possession. In view of the law laid down by this court in Banwari Ram and others (supra).
Once, it is proved on record, that plaintiff No.1 was recorded as owner in possession and was illegally dispossessed, we are left only with one contention i.e. as to whether plaintiff No.1 was proved to be a society registered under the Societies Registration Act to maintain the suit.
Ex.PW6/A is registration certificate of plaintiff No.1 showing it as a registered society under the Societies Registration Act. PW6/A, the certificate was attested by the office of the Registrar Societies and Joint Stock Companies, Lahore (Punjab) attesting it to be true copy. It is R.S.A. No. 3120 of 1984 -37- also not in dispute that the said certificate was again signed by the office of the Indian Consul in Islamabad, though the word used was "seen".
The contention of the learned senior counsel for the appellants that the word "seen" did not satisfy the requirement of Section 78(6) cannot be sustained in view of the judgment of this Court in Mehnga Singh and others(supra).
The contentions of the learned senior counsel for the appellants cannot be accepted that plaintiff No.1 had failed to prove that it was a society registered under the Societies Registration Act.
For the reasons stated above, the substantial questions of law raised, are answered against the appellants.
Consequently, the appeal is ordered to be dismissed, by upholding the judgment and decree passed by the learned lower appellate Court, but with no order as to costs.
(Vinod K. Sharma) Judge May 04, 2010 R.S.