Punjab-Haryana High Court
The Punjab Waqf Board, Ambala vs The Panchayat Deh And Anr. on 7 October, 1970
Equivalent citations: AIR 1971 PUNJAB AND HARYANA 482
JUDGMENT G. Suri, J.
1. Nine Appeals under Clause 10 of the Letters Patent being L. P. A. Nos. 336, 356 to 362 and 364 of 1969 have been filed against the judgment dated 28-1-1969 of our learned brother, Tuli, J. My Lord had accepted 9 connected second appeals to set aside the judgments and decrees granted in favour of the plaintiff-appellant, Punjab Waqf Board, by the Court of first appeal, who had in turn set aside the judgments and decrees of the trial Court dismissing 9 suits for possession of land filed by the plaintiff-appellant. The proceedings in all these connected cases had been consolidated in these three Courts as the questions of law and fact involved were almost the same. We find it possible for the same reasons, to dispose of these 9 appeals by one judgment.
2. A piece of land which is a part of the current Khasra No. 247, corresponding to Khasra No. 198 of the earlier settlement, is shown in the Revenue records of village Garhi Brahmanan, Tehsil Sonepat, District Rohtak, as uncultivable or barren grave yard (Ghairmumkin Kabarstan). The area of this graveyard was given as 3 Bighas 4 Biswas in these records from 1909-10 to 1945-46 vide copies of Jamabandis, Exhibits P. 19 and D.1, but in the Jamabandis of 1957-58, copy Exhibit D. 2, the area of the graveyard is shown as 5 Bighas 7 Biswas. The entries before the partition of the country in 1947 show that this land was a part of the Shamlat Deh and that the proprietors had shares in this Shamlat in proportion to the areas of their respective holdings (Shamlat Deh Hasab Rasad Rakba Khewat). This is the entry in the column of ownership. In the column of cultivation the Kunjra community residents of the nearby town of Sonepat, are shown to be in possession as tenants-at-will. This entry continued upto the time of the partition of the country in 1947. Thereafter the Jamabandi for the year 1957-58 shows the Panchayat Deh to be the owner of the land while the possession is described to be of the Muslim Community (Ahle-Islam). In the Jamabandi for 1961-62, copy Exhibit D. 3, another tract of land comprising of Khasra No. 169/1 and having an area of 6 Bighas 12 Biswas is similarly described as Ghair-mumkin Kabarstan besides the area of 5 Bighas 7 Biswas forming part of Khasra No. 247.
3. The plaintiff Board filed these 9 suits for possession of separate pieces of land shown in plans. Exhibits P. 1 to P. 9 and P. W 1/1, in February 1964. The person who was described to be in illegal possession of each piece of land was impleaded as defendant No. 1 in the suit for possession of that separate piece forming part of Khasra No. 247. Panchayat Deh was impleaded as respondent No. 2 in all these cases. It was alleged that Khasra No. 247 being a Ghair-mumkin Kabarstan was Waqf property and that the plaintiff Board was vested with general superintendence and control over all waqfs in the State and was in possession until it had been illegally disposed in August 1963. The Panchayat Deh came forward to contest all these suits but the persons who had been impleaded as Defendant No. 1 in each case did not care to put in appearance. It has appeared in evidence that the Gram Panchayat has obtained eviction decrees against all these persons and they would naturally be interested in a decision of the case which has the effect of depriving the Gram Panchayat of the right to execute, temporarily or permanently, these decrees. The plaintiff Board not being a party may not be in a position to take advantage of these decrees.
4. The trial Court dismissed these suits on the grounds, inter alia, that the plaintiff Board was not empowered to file suit against persons unconnected with the Waqf and that the land had vested in the Gram Panchayat under the Punjab Village Common Lands (Regulation) Act, 1953 (No. 1 of 1954). It was also observed that the suits were time-barred as it had been conceded that the plaintiff Board was never in possession of the land in suit within 12 years. As there was nothing to show that the disputed land was being used as a graveyard when the Punjab Village Common Lands (Regulation) Act, 1953 (No. 1 of 1954), was enacted, there was nothing to prevent the vesting of this land in the Gram Panchayat. The Senior Sub-Judge at Rohtak, who heard the appeals filed by the plaintiff Board relied on the entries in the Jamabandis and some oral evidence examined by the parties to come to the finding that the land was a Ghairmumkin Kabarstan and that it could not vest in the Gram Panchayat. Being Waqf property the general superintendence and control over the property was declared to vest in the plaintiff Board. The suits were found to be within time in view of Section 3 of the Public Waqfs (Extension of Limitation) Act (No. 29 of 1959). The provisions of Punjab Act No. 1 of 1954 were found to have no effect on these suits. The plaintiff Board's appeals were according accepted and the judgments and decrees of the trial Court dismissing the suits were set aside.
5. The Panchayat Deh came up in second appeal to this Court. The entries in the records of rights were found to be against the real facts prevailing after the partition of the country. There was no satisfactory evidence about the dedication of the land as a Kabarstan and so far as the plaintiff's case on the basis of long user was concerned, it was observed that the plaintiff had never set up the case of waqf by user and that the claim for possession was made only on the basis of the Jamabandi for the year 1961-62. A number of cases cited by both the parties were discussed at length and as the land had not been used as a graveyard since 1947, the land was found to have vested in the Gram Panchayat. The suits were also found to be time-barred as it had been admitted on behalf of the plaintiff Board that it had not been in possession of the land at any time within 12 years preceding the filing of the suits. On these findings the second appeals were accepted and the judgments and decrees of the Court of first appeal were set aside while those of the trial Court restored.
6. The first submission made by the learned counsel for the appellant, Shri Kaushal, was that the learned Single Judge had upset a finding of fact of the Court of first appeal which was based on reliable oral and documentary evidence and that this was beyond My Lord's jurisdiction. Reliance was in this connection placed on the case of Paras Nath Thakur v. Smt. Meenakshi Mills Ltd., Madurai v. Commr. of Income-tax, Madras, AIR 1957 SC 49. In the last mentioned case it was observed by the Hon'ble Judges of the Supreme Court that when a conclusion has been reached on an appreciation of a number of facts established by the evidence, whether that is sound or not must be determined not by considering the weight to be attached to each single fact in isolation, but by assessing the cumulative effect of all the facts in their setting in the picture as a whole. The proposition that an inference from facts is one of law will be correct in its application to mixed questions of law and fact but not to pure questions of fact. Inferences from facts would be a question of fact or law according as the point for determination is one of pure fact or a mixed question of law and fact. A finding on a question of fact would be open to attack as erroneous in law if it is not supported by any evidence or if it is unreasonable and perverse.
7. If in the case in hand I find that the Court of first appeal has laid stress on one set of facts which justified the drawing of a particular inference and has altogether ignored another set of facts which could lead to a contrary inference being drawn, then it could be said that the finding was rather perfunctory, if not altogether perverse. Such a careless finding would justify the High Court to re-assess the evidence even at the stage of second appeal. The entries in the revenue records together with some weak oral evidence had been taken into consideration but the conditions admittedly brought about in the wake of the partition of the country and the attending deterioration in the law and order situation leading to the evacuation to Pakistan of the Muslims from this part of the country right from Delhi to West Pakistan had also to be kept in mind while judging the correctness of the entries in the revenue records for the years subsequent to the partition of the country. It cannot therefore be said that there were no just grounds for going all over again into the findings of fact. The question how far the lad had acquired the character of a waqf by long user over a period of about four decades followed by a quarter of a century of disuser and how far this user followed by disuser prevented the vesting of the land in the Gram Panchayat under Punjab Acts. Nos. 1 of 1954 and 18 of 1961 were mixed questions of law and fact which could have been gone into by the High Court.
8. The standards of pleadings being what they are in this country, it cannot be said that the plaintiff Board had not set up a case of waqf by user. Where a pleading is open to criticism that is vague and ambiguous but has been allowed to be used as the basis of the proceedings, it may have the advantage that the party cannot be pinned down or committed to any particular position. The plaintiff Board had alleged that the land in suit was waqf property being Ghairmumkin Kabarstan. This averment cannot be said to have set up only a case of waqf by express dedication. There is nothing to indicate that the plaintiff Board had precluded itself from proving the alleged 'waqf' by any one or more of the modes indicated in the definition of the word as given in Section 3(1) of the Waqf Act, No. 29 of 1954. The rules of the Court then require that a copy of the latest Jamabandi should accompany the plaint in such cases. It is the general practice in such suits that after the plaintiff has made an averment about his title or possession he adds the words that the copy of the latest Jamabandi is attached (in compliance with the rules). That does not however mean that the party relies only on that Jamabandi in support of his averment. The final draft of the plain in these cases is a typed out document and the words 'the plaintiff was in possession of the land' have been added by hand after the reference to the copy of the latest Jamabandi. From pleadings of this type drafted by a muffasil lawyer it cannot be said that the plaintiff waqf by anyone or more of the modes permitted by law. Nor can the reference to the latest Jamabandi be taken to mean that possession was sought to be established only on the strength of that piece of evidence and on no others. Furthermore, we may seem to be entering into a realm of surmises if we say that entries in the records of rights could be due to the mischievous manipulations of any Muslim officials of the Revenue Department. The compact majority community that represented the main proprietary body of the village would not have allowed any adverse entries to go unchallenged for a period of about forty years and the inconsequential changes in the entries in these records for the years subsequent to 1947 A. D. came about after the Muslims had evacuated and the non-muslims had taken over.
9. Most of the rulings which had been cited before the learned Single Judge were of the year prior to the partition of the country or from far off States that had not been directly affected by the partition of the country in 1947 in the same manner in which this part of the country was affected. The conditions brought about by the partition of country could not have been foreseen or visualized by the Courts that decided the cases which had been cited. Any observations made in those rulings were intended to dispose of only those particular cases and these observations have to be taken in the context in which they were made. The Courts could not have had under contemplation the unusual or unforeseen conditions or the deterioration in the law and order situation that followed the partition of the country in far off States or places. It is true that the burying of a few dead bodies could consecrate a piece of land but this observation apparently does not take into consideration the fact that graves can and have been obliterated and that the land has been built upon. The Courts were apparently taking into account the fact that the dead are generally allowed to lie undisturbed. No Courts or the laws of a land can however afford to ignore hard accomplished facts or to remain behind the times. May be that the desecration of the graves has been due to the absence or helplessness or the temporary demoralization of the minority community because of the massacre of life or fear of death that followed in the wake of the partition of the country but where a party is relying upon long user as evidence of dedication of any property in waqf, we have also to keep in mind that this user had been discontinued at a particular point of time. The conversation or consecration of any secular property into a waqf by user would of necessity be a long drawn out and gradual process lasting over a period of years and it is not necessary that the process take only one direction or keeps a uniform pace throughout. In some of the cases discussed in the judgments under appeal the slow process had been continuing from times immemorial before a waqf by user was found to have been established. There can be circumstances that arrest the advance or progress of the process or which may even give it a turn in the wrong or opposite direction. The process has to reach a stage when it can be said to have become absolute a stage of no return whereafter the process cannot take a turn for the worse. There is nothing on record to indicate that this process in our case had reached that absolute stage when the Ahl-i-Islam evacuated from the village in or about the year 1947. A. D. Mohd. Ibrahim of Sonepat whose name and age (70 years) may seem to entitle him to some veneration is the only person examined as a witness by the plaintiff-Board who claims to have any personal knowledge with regard to the conditions prevailing here before the partition of the country. He says that he attended some burials here but he does not give us even approximately the number of graves he found or the area over which these had been spread out. This indifferent evidence of a stray burial or two cannot establish a waqf by user in the absence of evidence of any express dedication. Where a large tract of land is studded with a grave here and a grave there without forming a cluster anywhere, the circumstantial evidence may fail to establish a waqf by user. If the muslim proprietors formed a negligible proportion of the village population and had taken up residence in another town, they may not have always been bringing their dead for burial in the village. In this connection, the observation of their Lordships of the Privy Council in Ballabh Das v. Noor Mohd., AIR 1936 PC 83 may be referred to. These observations have been reproduced in the judgments under appeal. The contrary findings of the High Court which were set at naught by the Privy Council are also reproduced by the learned Single Judge while discussing Noor Mohd. v. Ballabh Das, AIR 1931 Oudh 293.
10. It is then in evidence that no dead bodies have been buried in this graveyard ever since 1947. This village which derives its name from a Hindu community had a small sprinkling of Muslim population before the partition of the country. The Muslims had evacuated from the village and there is no chance that the members of the community who managed to reach Pakistan would be coming back to the village to settle down here. There is also no satisfactory evidence as to the number of dead bodies that had been buried in the piece of land in dispute. The graveyard has been built upon and all traces of any graves have been removed. Under the circumstances, the land may, by long disuser, appear to have been cured of the character which could have prevented it from vesting in the Gram Panchayat on coming into force of the Punjab Act No. 1 of 1954. This Act was repealed by and re-enacted as Punjab Act No. 18 of 1961. The definition of Shamlat Deh in these Acts would not seem to except from the operation of that Act any graveyards and the land may seem to have vested in the Gram Panchayat in early 1954. The plaintiff Board came into existence in 1960 and there is a race between two statutory bodies for the vesting of control or management over the land in dispute. These statutory bodies are vested with control or management of such property for certain purposes and a sort of trust is created for the benefit of the community as a whole or of a certain section thereof. In this case the dispute for the race between the two statutory bodies for the right to control and manage the land cannot be settled without reference to the community or section of the population which is supposed to be the beneficiary under the trust created by force of circumstances. The actual purpose for which the trust property can be utilised has also to be one of the determining factors and as there is now no one in the village who may have occasion to use the land as a graveyard, there was no bar to the vesting of this land in the Gram Panchayat under Punjab Act No. 1 of 1954. The few Muslims who were proprietors in this village having evacuated and there being no immediate prospect of their coming back, it is not known for whose benefit the plaintiff Board seeks to maintain and administer a graveyard.
11. The rulings cited before us had also been cited before the learned Single Judge and have been discussed by him at length. The ruling that may seem to have a direct bearing on the peculiar facts of our case is K. Raushan Din v. H. Mohd Sharif, AIR 1936 Lah 87. In that case there was no direct evidence of dedication and waqf was sough to be established by evidence of user. The evidence showed nothing more than the fact that some persons had been buried in the piece of land in dispute many years ago. This was found to be insufficient to establish the dedicated character of the land by this type of user. In our case also the evidence about user as a graveyard for a period of about 40 years before the partition of the country is not of a very satisfactory character. As against this there is reliable evidence that the land has not been used as a graveyard for very nearly a quarter of a country. The land in dispute cannot therefore be said to have had such a character in 1954 so as to prevent the vesting of that land in the Gram Panchayat under Punjab Act No. 1 of 1954.
12. As regards the question of limitation, it has been observed by the learned Single Judge that it was admitted on behalf of the plaintiff Board that it had not been in possession of the land at any time within 12 years preceding the filing of the suits. From what the appellant's counsel who argued the case before the learned Single Judge tells us, the reference could be to the concession made by the counsel for the plaintiff Board in the trial Court. The admission cannot however be described to be of any damaging character. The plaintiff Board being in possession during the period before the date of its coming into existence. Section 3 of Central Act No. 30 of 1959 which was invoked by the Court of first appeal has apparently no application because it deals with public waqfs as defined in Section 2 of that Act. The extension of limitation is available only in suits for possession of any immovable property forming part of a public waqf. To establish that any property or institution is a public waqf, there has to be evidence of permanent dedication of the immovable property by a person professing Islam. In our case there is no evidence of any express dedication much less that it was by a person professing Islam. In our case the identity or religion of the person or persons making the alleged dedication is not known to either party.
13. It was however conceded by Shri Sibal learned counsel for the respondent Gram Panchayat, that the new Limitation Act of 1963 which came into force on 1-1-1964 would be applicable to our case. I however do not agree with Shri Sibal that this is a suit for possession of immovable property based on previous possession and not on title. To my mind , it is clearly suit for possession of immovable property or any interest therein based on title. The part of the Schedule to the Limitation Act of 1963 that would therefore be applicable is Art. 65 and not Art. 64. The burden of proving the date when the defendant's possession became adverse to plaintiff is on the defendant under the new law of limitation. It has been admitted by Bhim Singh, D. W. 3, that the defendants other than the Panchayat had constructed the houses on this land a few months before the filing of the suits. The Panchayat had been able to secure eviction decrees against these persons in possession which may imply that their adverse possession had not lasted for the statutory period so as to enable these persons to resist their dispossession.
14. On the basis of the entries in the records of rights it can be said that a few dead bodies had been buried in this piece of land during a period of 35 to 40 years before the partition of the country but the circumstances are such that we can believe that the user this land for this particular purpose had discontinued for about two decades after the partition of the country apparently because the minority community had evacuated from the village. It cannot be said that the user before the partition of the country had lasted upto a point of no return and if the land could assume a certain character by user over a period of years, then the discontinuation of that user at a particular time could have cured the land of its consecrated character as waqf so as to justify the vesting of this land in the Gram Panchayat for the benefit of the present residents of the village. The minority community that could have occasion to use the land as a graveyard having evacuated from the village and the particular user having discontinued, there is no point in maintaining or administering the land as a graveyard. The consecration of the land by the burying of a few dead bodies has come to an end with the desecration and obliteration of all traces of these graves and the land has been cured by continued disuser of the character that it may have acquired by indifferent user as a graveyard for a few decades before the partition of the country.
15. In this view of the matter, the appeals are dismissed and the direction by the learned Single Judge that the parties may be left to bear their own costs throughout shall hold good upto the present stage of the proceedings.
R.S. Narulla, J.
16. I agree that all these appeals be dismissed leaving the parties to bear their own costs throughout.
17. Appeals dismissed.