Punjab-Haryana High Court
Punjab Wakf Board Through Its Secretary vs Shri Neeko on 21 April, 2004
Equivalent citations: (2004)137PLR851
JUDGMENT V.K. Bali, J.
1. By this common order, I propose to dispose of three connected Regular Second Appeals bearing Nos. 1998, 2000 and 2001 of 1983 as the points involved in all these appeals, as conceded by learned counsel representing the parties, are absolutely the same. The bare minimum facts that need a necessary mention have, however, been extracted from Regular Second Appeal bearing No. 1998 of 1983.
2. The Punjab Wakf Board, which is a corporate body, filed a suit for possession of plot, dimension whereof has been given in the plaint, situated in the area of Panipat against respondent, Neeko. The plot was shown by the letters ABCD in red colour in the site plan, attached with the plaint. Suit was filed through Faiz Ahmad Aukaf, Officer of the Board. Case of the Board is that the plot, subject matter of dispute, comprised in Khasra Nos. 3421, 3422 and 3423, situated in the revenue estate of Panipat, was dedicated by some Muslims in very remote times for being used as a graveyard. Khasra numbers, as referred to above, as per the averments made in the plaint, were shown in the revenue record as Gair Mumkin Kabristan. In the absence of the plaintiff, the defendant took possession of the plot, subject matter of dispute, somewhere in November/December, 1971 and constructed boundary walls, knowing fully well that the plot in dispute was a part of graveyard. It is then pleaded that the Punjab Wakf Board duly constituted under the Central Wakf Act, 1954, is authorised to administer all public wakfs and properties belonging to it and to institute suits and to take other proceedings relating to recovery of wakfs' properties. Suit of the plaintiff was resisted on the preliminary, and technical grounds. However, insofar as merits of the case are concerned, the defendant pleaded in the written statement filed on his behalf that he was in adverse possession of the plot in dispute since 1960. He also denied that the suit property was part of Khasra Nos. 3421, 3422 and 3423. On the pleadings of the parties, learned trial Court framed the following issues:-
"1. Whether the suit has been filed by a duly authorised person? OPP
2. Whether the property in suit is Gair Mumkin Kabristan forming part of Khasra Nos. 3421, 3422 and 3423 as alleged? OPP.
3. If issue No. 2 is affirmed, whether the property in disputes vests in the plaintiff? OPP
4. Whether the suit has been properly valued for purpose of Court fee and jurisdiction? OPP
5. Whether the suit is not maintainable without claiming relief of possession? OPD
6. Whether the defendant has become owner of the property by adverse possession? OPD
7. Whether the suit is within time? OPP
8. Whether the plaint is vague and indefinite for the reasons stated in preliminary objection No. 8? OPD
9. Whether the suit has been filed on the basis of a wrong site plan and if so to what effect? OPD
10. Relief."
3. The resultant trial culminated into the judgment and decree vide which, suit of the plaintiff was dismissed on 15.6.1982. Learned trial Court held that insofar as issues 7, 8 and 9 are concerned, same were not pressed. The suit was held to be properly valued for the purpose of court fee and jurisdiction. Insofar as, issue No. 5 is concerned, the same was held to have become redundant. It was also held that the defendant failed to prove that he had become owner of the suit property by way of adverse possession. However, while returning finding under Issue No. 2, it was held that the plaintiff failed to prove that the suit property vested in it as it could not prove that the same was forming part of Khasra Nos. 3421, 3422 and 3423. Aggrieved, the plaintiff-Board filed appeal, which too has been dismissed, confirming the judgment and decree passed by learned trial Court, on the same grounds that prevailed upon learned trial Court. Hence, present Regular Second Appeal.
4. Mr. Arun Palli, learned counsel representing the appellant, vehemently contends that even though it may be true that while leading evidence before learned trial Court, the plaintiff had not led any evidence to prove that the plot in dispute formed part of Khasra Nos. 3421, 3422 and 3423 but the suit plan, Ex.P-1, depicts the site as forming part of Khasra Numbers, referred to above. However, no Local Commissioner was got appointed nor any demarcation report was placed on the records and the courts below have returned finding on Issue No. 2 against the plaintiff. During the pendency of the appeal, an application under Order 41 Rule 27 was also filed for appointment of Local Commissioner but the same was dismissed even though by a separate order on the same date when appeal was dismissed, i.e., 17.5.1983. Relevant part of the order declining the prayer of the plaintiff for leading additional evidence by way of appointing Local Commissioner, reads thus:-
"The plaintiff took no steps to prove this fact at the trial. No application for appointment of a Local Commissioner for getting the demarcation was moved before the trial Court. The Board also did not get the demarcation done by the officials of the revenue department and prove their report on the file. Even with the memorandum of appeal, no such application was moved. It was only today when the appeal had come up for final arguments before me that this application was moved. The case of the appellant does not fall under Order 41, Rule 27 C.P.C. The applicant cannot be allowed to fill in the lacuna in its evidence. At this appellate stage this application cannot be allowed, which is hereby dismissed with no orders as to costs."
5. While returning finding on crucial issue, i.e., issue No. 2, learned appellate Court observed us follows:-
"No doubt, as discussed herein before Ex.P-3 shows that Khasra Nos. 3421, 3422 and 3423 were the Wakf properties and the nature of the Wakf was religious but in view of the fact that the Wakf Board has failed to prove that the suit property was part of the above said three Khasra Nos., it cannot be said that it vested in the Board."
6. Learned appellate Court also observed that "the area of the property in dispute is 34'-6" in South. No steps whatsoever have been taken on behalf of the Board to get the demarcation at the spot either by the revenue authorities or through a Local Commissioner, in order to prove that the suit property was part of either of the above three Khasra numbers. That having not been done, an irresistible presumption against the Board is raised to the effect that had it been done, it would have gone against it." Mr. Palli contends that if, proof of the site in dispute being a part of Khasra Nos. 3421, 3422 and 3423 was so crucial to determine the controversy in hand, in order to do complete justice, the Court could, suo motu, appoint a Local Commissioner as would be clearly made out from the provisions of Order 26 Rule 9 of Code of Civil Procedure and, in any case, when an application was moved for the same very purpose, even though under Order 41 Rule 27 of Code of Civil Procedure, same ought to have been allowed as, it is in that manner alone that proper justice could have been done in this case. He further contends that stage of making an application for leading additional evidence is not crucial and the mere fact that the application had been moved at the fag end of pendency of the appeal could, at the most, entail an order of costs. If, therefore, the issue as such was crucial to do complete justice to the parties, application filed under Order 41 Rule 27 of Code of Civil Procedure ought to have been allowed, further contends learned counsel.
7. Mr. C.B. Goel, who represents the respondent, arrayed as defendant in the original lis, naturally, contests what has been urged by Mr. Arun Palli, learned counsel for the appellant, and stated that appellate Court was justified in the facts and circumstances of this case to decline the prayer of the appellant for appointment of Local Commissioner.
8. I have heard learned counsel representing the parties and with their assistance examined the records of this case. It is significant to mention that a firm finding of fact has been recorded that Khasra Nos. 3421, 3422 and 3423 are the Wakf properties. It was not the case of the defendant so pleaded, either in the written statement or even during the course of argument at any stage, that the suit property was not recorded as part of Khasra Nos. 3421, 3422 and 3423. It was also not the case so pleaded by the defendant that the plot, subject matter of dispute, was situated in an area, which would not form part of any Khasra Number. Any land situated within the abadi of the village would not have any khasra number but land out side the abadi has to be recorded in some khasra number. When the parties go to a trial, it is the preponderance of the evidence, which clinches the issues. No doubt, initial burden of proving that the site, subject matter of dispute, formed part of Khasra Nos. 3421, 3422 and 3423, was upon the plaintiff. Some evidence was, indeed, led by way of site plan, Ex.P-1, which was supported by PW-2, who, stated that the site in dispute was being used as graveyard even prior to 1924-25. The defendant led no evidence to prove that the plot in dispute did not form part of any khasra number. Be that as it may, even if it is assumed for the sake of argument that the plaintiff had led no evidence to clinch the issue and same could be clinched by appointing Local Commissioner or producing on record demarcation report by some revenue official, there was no question, in case of the kind, where application for additional evidence also should have been dismissed. Once, the Court was convinced, and it was so, indeed, that the issue in question could be fully and effectively determined by way of appointment of Local Commissioner or producing on record demarcation report as per the provisions of Order 26 Rule 9 of Code of Civil Procedure, it could even, suo motu, issue order of appointment of Local Commissioner. Provisions of Order 26 Rule 9 of Code of Civil Procedure are reproduced for ready reference:-
"9. Commissions to make local investigations.- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court.
Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules."
9. A bare look at the provisions of Order 26 Rule 9 of the Code, reproduced above, would demonstrate that powers of the Court to order appointment of Local Commissioner is not dependent upon an application to be made by a party. If, therefore, the Court may be of the view that in a suit appointment of a local investigation is requisite or proper, it can surely exercise its powers in, suo motu, appointing a Local Commissioner. This view is supported by a Single Bench judgment of Hon'ble Allahabad High Court in Gajraj and Ors. v. Ramadhar and Ors., A.I.R. 1975 Allahabad 406. In the present case, there was available an application by a party seeking appointment of a Local Commissioner, even though by way of additional evidence under the provisions of Order 41 Rule 27 of Code of Civil Procedure, but the same, as mentioned above, has been dismissed on the ground that it was filed at a belated stage. The mere delay in filing the application can never be fatal. The Court has to impart justice to the parties and if the Court may require some evidence, such evidence can be even ordered to be brought by the Court under the provisions of Order 41 Rule 27 and in any case such a course should be adopted when a party makes an application for the said purpose. For delay, of course, as mentioned above, the other party can be duly compensated by way of costs. This Court is of the firm view that learned Appellate Court should have allowed the application filed under Order 41 Rule 27 of the Code of Civil Procedure so as to do complete justice between the parties.
10. In view of the discussion made above, I allow these appeals and set aside the order passed by learned Appellate Court. Order passed by learned Appellate Court on the same date dismissing the application for additional evidence is also set aside. Resultantly, application filed under Order 41 Rule 27 of Code of Civil Procedure is allowed subject to payment of Rs. 500/- as costs. Learned appellate Court would now ask for a report on the additional evidence that may be recorded by learned trial Court and I may mention that the defendant would be given adequate opportunity to lead evidence in rebuttal to the additional evidence to be led by the appellant. It is in the light of the report that may be received by learned appellate Court that the matter shall be decided afresh, in accordance with law.
11. Parties, through their counsel, are directed to appear before learned trial Court on 14.5.2004.