Punjab-Haryana High Court
Shiromani Gurdwara Parbandhak ... vs Sanatan Dharam Sabha And Anr. on 28 March, 2007
Equivalent citations: (2007)146PLR480, AIR 2007 (NOC) 1471 (P. & H.)
Author: Hemant Gupta
Bench: Hemant Gupta
JUDGMENT Hemant Gupta, J.
1. The plaintiff is in second appeal aggrieved against the judgment and decree passed by the Court below, whereby the suit for possession on the basis of title was dismissed.
2. The present suit is for possession of the land measuring 1 Bigha-10 Biswas of land comprising in Khasra No. 1479. Presently, the land is said to be comprised in Rect. No. 195, Khasra No. 27 (3-7) and Khasra No. 26 (2-4), total measuring 5 Kanals 11 mar-las. It is the case of the plaintiff that Gurdwara Shri Teg Bahadur Sahib Patshahi Naumi, Jind (hereinafter referred to as the Gurdwara) is a scheduled Gurdwara mentioned at Sr. No. 341 of the first schedule to the Sikh Gurdwra Act, 1925 (hereinafter referred to as the Act). The consolidated list of property in terms of Section 3(2) of the Act was published on 21.9.1962. Since no claim by any one against the property mentioned in the notification was raised, another notification under Section 5(3) of the Act was published and, thus, the plaintiff is the owner of the land described above and is entitled to the possession.
3. It was also pleaded that defendant Nos. 2 & 3 took illegal possession of this land in the year 1963. A suit was filed before the learned District Judge, Sangrur on 5.11.1963. The said suit was decreed on 6.12.1965 on the basis of the compromise with the said defendants. The possession was delivered to the plaintiff, but the Hindu Community of Jind raised hue and cry against the possession of the plaintiff over the suit land on 22.12.1965. The proceedings under Section 145 of the Criminal Procedure Code were initiated. The property was attached by the Sub Divisional Magistrate, Jind. The matter was referred to the Senior Sub Judge, Jind for decision over the question of the possession. It was decided on 27.11.1972 by the learned Senior Sub Judge, Jind that the first defendant is in possession of the suit land. The possession was thereafter, delivered to the first defendant on 14.3.1973. The plaintiff, thereafter brought the present suit for possession under Article 65 of the Limitation Act, 1963 alleging that defendant has no right to occupy the suit land.
4. Only defendant No. 1 contested the suit. The title of the plaintiff over the suit land was rebutted. It was pleaded that no notice was issued to it or to any other interested party with respect to the publication of notifications made under the Act. It took up a stand that the said defendant is in possession of the land for the last more than 50 years as owner. A Shiv Mandir, a Wrestling ground called Das Nami Akhara, numbers of rooms stand on the suit land. Various Sadhus come and stay there.The defendant Nos. 2 & 3 occupied this land for some times as agents of the first defendants. The compromise decree was said to be not binding upon the first defendant. On the pleadings of the parties, the following issues were framed in the suit:
1. Whether Shri Pritam Singh and Shri Tarlochan Singh are authorized to file the present suit? OPP.
2. Whether the plaintiff is the owner of the suit land? OPP.
3. Whether the suit land is in adverse possession of defendant No. 1 for the last 15 years and if so, has become owner of the same? OPP.
4. Whether the defendants are estopped from raising any objection of any kind regarding the land in dispute in any Court of law? OPP.
5. Whether the suit is bad for misjoinder of parties in defendants No. 2 and 3? OPP.
6. Whether the suit has not been properly valued for the purpose of Court fee and jurisdiction? OPP.
7. Relief.
5. In fact, issues Nos. 2 to 4 are relevant issues which were decided together by the learned trial Court. Exhibit P-30 is the notification dated 21.9.1962, issued under Section 3(2) of the Act. The Gurdwara in question is said to be situated in land of Khasra No. 1479. Exhibit P-28 is the notification dated 7.8.1963 published under Section 5(3) of the Act on the ground that no claim under Section 5(1) of the Act has been made. The learned trial Court found that the notifications do not specify the total area of Khasra No. 1479 nor do they tell us to how much part of the land is in actual possession of the Gurdwara. It was found that column No. 5 is conspicuous of absence of details of the land though in respect of other properties, the details of the land are mentioned.
6. In appeal, the learned First Appellate Court has taken into consideration that in the written statement Exhibit D-1, filed by defendant Nos. 2 & 3 in the previous suit, it was pleaded that owner in possession of this property was Sanatam Dharam Sabha. If that was so, it was found that defendant Nos. 2 & 3 had no right to enter into compromise nor they are in a position to deliver the possession to the plaintiffs. In any case, the compromise was not binding on defendant No. 1 as it was not a party to that suit and was not made so inspite of an application to that effect. The First Appellate Court found that nature of the property also belies the theory of possession having taken by the plaintiff. The learned trial Court has held that the disputed area is an old Temple of Shivji Maharaj, Desnami Akhara and Samads of Hindus. The said area is in possession of defendant No. 1 for over 50 years. The learned First Appellate Court also found that the suit under Article 65 of the Limitation Act is not competent in view of the provisions of Section 128 of the Act, which contemplates that the possession can be sought on the ground of previous dispossession. The finding regarding identification of Khasra No. 1479 recorded by the learned trial Court were affirmed by the learned First Appellate Court.
7. I have heard learned Counsel for the parties on the following substantial questions of law:
i) Whether the notification issued under Section 5(3) of the Act can be said to be conclusive and binding on a third person when the name of such person was not reflected n the notification under Section 3(2) of the Act?
ii) Whether the present suit is maintainable before the Civil Court on the basis of title under Article 65 of the Limitation Act, 1963?
8. It is finding of fact recorded by both the Courts below that a Mandir is reflected in possession of at least part of the suit property which is evident from the revenue record Exhibit P-14 and P-7 as well as from the documents of 3rd and 4th settlement produced as Exhibit D-4 and D-5. Before consolidation, Khasra No. 1479, measuring 3 bighas and 11 biswas, contains an entry of Mandir and Gurudwara. In subsequent jamabandi, Exhibit P-7, with correction contained in Exhibit P-21, Khasra No. 1479 is again in occupation of gair mumkin Mandir and Gurudwara. The third settlement, Exhibit D-4 would show that the land of Khasra No. 849 was under the ownership of shamlat panna bajran and part of Bhuteshwar tank and thus, the Court found that at one stage the ownership of land of patti bajran came in occupation of Gurudwara. The revenue record indicate that the Mandir and Samadhis were also in existence. Thus, the Khasra No. 1479 was carved out of Khara Nos. 6217, 6211 and 6212. Khasra No. 6211 came in existence in lieu of Khasra No. 849 in the aforesaid settlement, Exhibit D-5.
9. Section 3(1) of the Act contemplates that the name of person in possession of any right title or interest shall be disclosed in the notification. The list is also to contain rights, title of interest of land owner in the property. The notification under Section 3(2) of the Act does not disclose the name of any person in possession of any right, title or interest in the suit land. The learned Counsel for the appellant has vehemently argued that the defendants were not reflected in possession of any right, title or interest in the suit land in the revenue record at the time of publication of the notification dated 21.9.1962, Exhibit P-30. But such argument is not tenable in view of the revenue record Exhibit P-14, P-7, D-4 and D-5. It is recorded that the premises is of Mandir. But still the notification under Section 3(2) of the Act did not contain any particular of defendant No. 1 or the name of Mandir or the person representing the Mandir. Still further, the notification under Section 3(2) of the Act is in respect of Khasra No. 1479, described by boundaries i.e. East burial ground, West Garden of Gurudwara and road to Station, North Samadhies and South agricultural land of the Gurudwara without disclosing the measurement. Thereafter, the notification under Section 5(3) was published on 7.8.1963 vide Exhibit P-28. However, the suit for possession under Section 28 of the Act was filed on 5.11.1963 describing the property in dispute bounded as East Chhappar (Pond), West agricultural land of the Gurudwara and way to Gurudwara, North Chhappar (Pond) and vacant site of the Gurudwara and South main building of the Gurudwara, kitchen and office. Even the notification under Section 5(3) of the Act also does not disclose the area in respect of which such notification is published. The site plan attached to the said notification has not been produced on record. The site plan, Exhibit PW-7/1, produced by the plaintiff does not show that how much land is now under the possession of the defendants, though PW-7 Bharpoor Singh, retired partwari, has alleged that the defendants are in possession of the land to the extent of 15 marlas alone. One part of Khasra No. 1479 is said to be in possession of the defendants. Therefore, it was necessary that notification should have specified the area of the property in respect of which ownership rights are claimed by the Gurudwara. It may be noticed that the dispute is not regarding the Gurudwara, but in respect of the land appurtenant and claimed to be vested with the Gurudwara by virtue of the aforesaid notification.
10. Learned Counsel for the appellant has vehemently argued that since no objections were filed after the notification under Section 3(2) of the Act was published, the notification published under Section 5(3) of the Act is a conclusive proof of the title of the plaintiff. The said argument is not tenable for the reasons that neither the area said to be vesting with the plaintiff was disclosed nor the name of person whose title or interest was likely to be effected in the notifications. Therefore, the publication of notifications without disclosing the interest of the occupier i.e. Mandir in the said notification will not be a conclusive proof of the title of the plaintiff. Under Section 3(1) of the Act, the name of the persons having right, title and interest have sought to be disclosed to facilitate the service of notice under Section 3(3) of the Act and to provide an opportunity of hearing. Since the revenue record, prior to publication of the notification under Section 3(2) of the Act, discloses the Mandir in Khasra No. 1479, therefore, the notification published under Section 5(3) of the Act cannot be said to be conclusive against the interest of the defendants.
11. Learned Counsel for the appellant has relied upon a Division Bench judgment of Lahore High Court reported as Committee of Management of Gurdwaras, Amritsar and Ors. v. Indar Singh and Ors. (1934) 35 P.L.R. 286 : A.I.R. 1933 Lahore 1041 and Kahan Das v. Managing Committee of the alleged Gurudwara of Bacha Nau and Ors. A.I.R. 1934 Lahore 54. However, the said judgments are not relevant as the Court was seized of the matter in pursuance of the objections subsequent to the publication of the notification under Section 3(2) of the Act. The plaintiff has also relied upon a Division Bench Judgment of this Court reported as Mahant Sahib Singh v. Shiromani Gurudwara Prabandhak Committee and Anr. (1971) 73 P.L.R. 558. This judgment is also not helpful to the appellant as in the aforesaid case also, the Court was seized of the petition filed by the appellant under Section 5(1) of the Act i.e. before publication of a notification under Section 5(3) of the Act.
12. Somewhat similar provisions contained in Wakf Act, 1954, were considered by the Hon'ble Supreme Court of India in The Board of Muslim Wakfs, Rajasthan v. Radha Kishan and Ors. , wherein it was held that the list published under Sub-section 2 of Section 5 of the aforesaid Act cannot bind a third person. It was held to the following effect:
It could never have been the intention of the legislature to cast a cloud on the right, title or interest of persons who are Muslims. That is, if a person who is Non-Muslim whether he be a Christian, a Hindu, a Sikh, a Parsi or of any other religious denomination and if he is in possession of a certain property his right, title and interest cannot be put in jeopardy simply because that property is included in the list, published under Sub-section (2) of Section 5.
The Legislature could not have meant that he should be driven to file a suit in a Civil Court for declaration of his title simply because the property in his possession is included in the list. Similarly, the legislature could not have meant to curtain the period of limitation available to him under the Limitation Act and to provide that he must file a suit within a year or the list would be final and conclusive against him. In our opinion, Sub-section (4) makes the list final and conclusive only between the Wakf Board, the mutawali and the person interested in the wakf as defined in Section 3 and to no other person.
The Hon'ble Supreme Court of India has proceeded to hold as under:
It follows that where a stranger who is a non-Muslim and is in possession of a certain property, his right, title and interest therein cannot be put in jeopardy merely because the property is included in the list. Such a person is not required to file a suit for a declaration of his title within a period of one year. The special rule of limitation laid down in proviso to Sub-section (1) of Section 6 is not applicable to him. In other words, the list published by the Board of Wakfs under Sub-section (2) of Section 5 can be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such a suit arises.
Therefore, in respect of first substantial question of law, it is held that in the absence of the disclosure of the name of the person having right, title or interest in the notification under Section 3(2) of the Act, the said notification cannot be said to be binding and conclusive to the interest of such person.
13. In respect of second substantial question of law, it needs to be noticed that the plaintiff has earlier field a suit in the year 1963 under Section 28 of the Act. The said suit was decided on the basis of compromise with defendant Nos. 2 and 3 on 6.12.1865. Section 28 of the Act contemplates that the suit for possession can be filed in the Principal Court of original jurisdiction within 90 days from the date of publication of the notification under Section 5(3) of the Act. Sub-section 2 of Section 28 of the Act further contemplates that the suit for possession can be field later on the ground of dispossession of the Gurudwara after the date of publication of such notification. The present suit for possession has been filed on the basis of allegations of dispossession. Such suit has not been filed under Section 28 of the aforesaid Act before the Principle Court of original jurisdiction, but with a specific plea that the suit is based upon title in terms of Article 65 of the Limitation Act, 1963. The suit has not been filed before the Principal Court of original jurisdiction. Thus, it is apparent that the suit of the plaintiff, though alleged to be on account of dispossession, is not in terms of Section 28 of the Act.
14. It may be noticed that in proceedings under Section 145 of the Criminal Procedure Code, a finding has been returned that the Sanatan Dharam Sabha i.e. defendant No. 1 was in possession of the suit land. It may be further noticed that in the suit under Section 28 of the Act, defendant Nos. 2 and 3 in the aforesaid suit have taken a stand that there is a Mandir of Shivji Maharaj, samadhhies and other construction made for stay of Sadhus, which are of old origin and is a place of worship of Hindus and constructed prior to construction of Gurudwara Sahib. It was also pleaded in the written statement that Shree Sanatan Dharam Sabha, Jind is necessary part)' to the suit. Though the said defendants have taken such stand, but the plaintiff was satisfied with the compromise arrived at with the defendants in the aforesaid suit. The said factual aspects are relevant only for the purpose of returning a finding that the present suit is not filed under Section 28 of the Act.
15. Learned Counsel for the appellant has relied upon a judgment of Hon'ble Supreme Court of India, reported as Mamo and Anr. v. Committee of Management Shri Gurdwara Sahib and Ors. , to contend that the suit on the basis of title under Sub-section 2 of Section 28 of the Act is maintainable. In the said judgment it has been held that in a suit on the ground of dispossession, no limitation is prescribed as it will be governed by the Limitation Act. The question which arises is that in a suit, the plaintiff is required to prove title or it would be sufficient to rely upon the notification issued under the Act.
16. The plaintiff has sought possession of the suit land only on the basis of notification declaring the Khasra No. 1479 as vesting in the Gurudwara. In my opinion, the notification for declaring the Khasra No. 1479 as vesting with the Gurudwara is relevant for the purpose of proceeding under the Act alone. In a suit for possession on the basis of title, before the Civil Court, the plaintiff was required to prove its title over the suit property on the basis of independent evidence. The remedy under the Special Act can be sought by the plaintiff in the manner provided under the Act, but if the plaintiff has sought possession on the basis of title before the Civil Court, the plaintiff was required to prove its title before the Civil Court. Before the Civil Court, the plaintiff has produced certain revenue records, but such revenue records are not sufficient to prove the title of the plaintiff in respect of the land in dispute. The witnesses produced by the plaintiff are not even residents of the area. Their testimony has not found to be relevant by the Courts below in respect of identity of the property. In the absence of any proof of title over the subject matter of the land, the suit of the plaintiff, based on title, cannot succeed. Thus, it is held that though the plaintiff can seek possession from the Civil Court on the basis of title under Section 65 of the Limitation Act, but in such proceedings, the plaintiff cannot rely upon the notification issued under the Act, in support of its title. It may be noticed that even such notification is not valid and binding on the defendant in terms of the answer to the first substantial question of law.
17. In view of the aforesaid findings, the judgment and decree passed by the Courts below cannot be said to be suffering from any patent illegality or irregularity which may warrant interference of this Court in second appeal. Dismissed.