Rajasthan High Court - Jodhpur
Gora Devi & Ors vs Raj Board Of Muslim Wakf on 12 November, 2008
Equivalent citations: AIR 2009 (NOC) 1393 (RAJ.), 2010 AIHC (NOC) 101 (RAJ.)
Author: N P Gupta
Bench: N P Gupta
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D.B.S.A.C.Nos.6 & 7 of 1983
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
J U D G M E N T
1.SPECIAL APPEAL CIVIL No. 6 of 1983
GORA DEVI & ORS
V/S
RAJ BOARD OF MUSLIM WAKF
2. SPECIAL APPEAL CIVIL No. 7 of 1983
SMT.SUMITRA DEVI
V/S
RAJ BOARD OF MUSLIM WAKF
Date of Judgment : 12th November 2008
PRESENT
HON'BLE SHRI N P GUPTA,J.
HON'BLE SHRI KISHAN SWAROOP CHAUDHARI,J.
Mr. MC BHOOT, for the appellant / petitioner
Mr. JITENDRA CHOPRA & Mr.VIKAS BALIA, for the respondent
REPORTABLE
BY THE COURT: (PER HON'BLE GUPTA,J.)
These two appeals have been filed by different sets of defendants against the judgment passed by learned Single Judge dated 21.4.1982 dismissing the appeal and thereby affirming the judgment and decree of the learned District Judge, Jodhpur dated 23.3.1971, decreeing the plaintiff's suit for possession of the land in dispute, shown in red colour in the site plan, Ex.5, and described in para 3 of the plaint, against all the defendants, so also passing decree for the mesne profits from the date of suit till delivery, upon payment of requisite court fees, if any.
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D.B.S.A.C.Nos.6 & 7 of 1983 The necessary facts are, that the plaintiff, the Rajasthan Board of Muslim Wakf, Jaipur, filed the present suit against four defendants being Bulidan Singh, Ramgopal, Sumitra Devi and Shivji, for recovery of possession, alleging inter-alia, that in the city of Jodhpur, outside Sojatigate on Mahatma Gandhi Hospital Road in its north there is a big chunk of land situated between Sojatigate Ki Bari and Tejnarayan Kak's land, which land is popularly known as Chand Shah Ka Takiya. This entire land was pleaded to be a graveyard of the Muslims of Jodhpur in the old times, and at present also there are innumerable graves available. There also exists remainants of a mosque, a well, and a Hujara. It is also pleaded that earlier this land was used as common graveyard and is, therefore, a Wakf property. The Commissioner also surveyed the land under Section 4 of the Wakf Act and submitted a report, reporting it to be a Wakf property and the Wakf Board notified the property as a Wakf property vide publication in the official Gazette dated 14.4.1966, which notification has not been challenged under Section 6 of the Wakf Act. With this background, it is pleaded, that vide notification dated 7.3.1968 the Wakf Board has taken the management of the Wakf directly under Section 43 of the Act since 4.2.1965. Then it is pleaded that after partition of India, many persons started committing encroachment on the above land and in that process, started dismantling southern boundary wall and erecting enclosures. In this process, the defendants No.1 and 2 being Bulidan Singh and Ramgopal also encroached upon 60x70 feet portion of the land, by 3 D.B.S.A.C.Nos.6 & 7 of 1983 breaking the wall in the year 1953, then erected stone slabs, and started letting out the land. The description of the precise portion, said to have been encroached by defendants No.1 and 2 has been pleaded in para 3. Then it is pleaded, that the defendants No.2, 3 and 4 have been inducted as tenants by defendant No.1, while the defendant No.1 has no right to so let out the land. Thus, it was pleaded, that the defendants are trespassers, and mesne profits were claimed. It was also pleaded, that the cause of action arose in 1953, and by virtue of the provisions of the Public Wakfs (Extension of Limitation) Act, 1959 the suit is within time. With this pleading, the decree for possession and mesne profits was claimed.
Two separate written statements were filed, one by defendant No.1 Bulidan Singh, and other by the remaining three defendants No.2 to 4. The defendant No.1 in the written statement denied existence of any graves, Masjid or Hujara and denied it to be Wakf property. It was also pleaded that in this chunk of land many shops are constructed and open land is lying beyond those shops. Identity and boundaries of the land were not disputed. Then in para 2 it is pleaded, that the defendant No.1 has always seen Nanne Shah to be the owner of the land, who had been letting out portions to different persons, and had been realising rent, and in that process defendant No.1 has also taken the portion of the land in question at rent from Nanne Shah, at a monthly rent of Rs.30/-. It was denied that any encroachment was done, rather it was pleaded, that the defendant No.1 took 60x70 feet portion of the land on rent from Nanne Shah, then raised a 4 D.B.S.A.C.Nos.6 & 7 of 1983 temporary construction thereon, and inducted defendants No.2, 3 and 4 as sub-tenants, with the permission of Nanne Shah, the owner. Thus, it was pleaded that the defendant is not a trespasser, but is a tenant, and is in permissive possession, having obtained possession from Nanne Shah, with whom there is no dispute, and that if there is any dispute about the title between plaintiff and Nanne Shah, then the plaintiff may sue Nanne Shah, but is not entitled to sue the defendants. Court fees paid, was alleged to be insufficient. Then in additional pleas it was pleaded, that since the owner of the land is Nanne Shah, from whom the defendant has taken land on rent since long, and is paying rent to Nanne Shah, Nanne Shah is necessary party. Nanne Shah and his ancestors were pleaded to be in possession for last about 100 years, and had been dealing with the property as owners.
The defendants No.2, 3 and 4 in their written statement pleaded, that the plaintiff has not correctly given the description of the entire land, measurements have not been given. It was denied that the land is known as Chand Shah Ka Takiya, or that, it was ever a graveyard, nor any graves are there. The existence of Masjid, Hujara etc. was also denied. The publication in the official gazette was denied for want of knowledge. Then it was pleaded that it was not necessary for the defendants to file suit under Section 6 of the Wakf Act. It was denied that simply because a suit under Section 6 has not been filed, the property would be treated to be Wakf property. Rather it was denied to be Wakf property and was also denied to be vesting in the plaintiff. Then replying para 5 D.B.S.A.C.Nos.6 & 7 of 1983 3 it was pleaded that the answering defendants are not trespassers but they are in possession openly and adversely since 1953, and thus, they cannot be dispossessed in the present suit. Thus, they set their adverse title and pleaded the suit to be barred by time. Then in additional pleas, it was also pleaded that with respect to the property described in para 1 of the plaint, the predecessors-in-title of the plaintiff had filed a suit in the Court of Senior Civil Judge, Jodhpur, being suit No.54/52 "Abdul Hakim & Ors. Vs. Nanne Shah & Ors.", which was dismissed on 31.5.1958, thereafter another suit No.1/55 "Hakikatulla Khan & Ors. Vs. Nanne Shah & Ors." was filed in the Court of District Judge, Jodhpur, which was decided on 30.5.1964, and in both those suits, it was held that the suit property is not a Wakf property, and plaintiff is not entitled to possession. Thus, it is clear that the present plaintiff also has no right in the property. It was also pleaded that the aforesaid two judgments are sub-judice in appeal in the High Court, wherein the present plaintiff is also party, and since the controversy involved in the present litigation and the controversy involved in the litigation pending in the High Court is identical, and since those suits are earlier suits, the proceedings of the present suit are required to be stayed under Section 10 CPC.
Rejoinders were filed by the plaintiff, separately to the written statements.
Learned trial Court framed as many as 9 issues, which read as under:-
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D.B.S.A.C.Nos.6 & 7 of 1983
1.Whether the suit property is wakf property and vests in the plaintiff?
2.Whether the plaintiff is entitled to get Rs.
300/- per month as damages for use and occupation from the defendants?
3.Whether defendants Nos. 2 to 4 have acquired their title over the suit property by adverse possession?
4.Whether the plaintiff's suit is barred by time?
5.Whether the defendants have committed trespass in 1953 over the land in dispute?
6.Whether Naneshah has become owner by adverse possession of the suit land?
7.Is the court-fee not sufficiently paid?
8.Is Naneshah a necessary party?
9.Relief?
During trial, the plaintiff examined Allahnoor P.W.1, the Secretary of the Wakf Committee Jodhpur, P.W.2 Mohd. Ibrahim, the then Secretary of the Wakf Committee Jodhpur, and one Imdad Ali, P.W.3, a resident of Jodhpur. While on the side of the defendants only one Gopal Singh appeared as D.W.1.
According to the P.W.1, the land described in para 1 of the plaint was got surveyed and it was surveyed by the Assistant Commissioner, Devsthan in 1962. It was deposed that Assistant Commissioner, Devsthan was also Assistant Commissioner, Wakf. At the time of survey, survey form was filled, copy whereof has been proved as Ex.1, and is deposed to be signed by him. Thereafter the property was notified as Wakf property in the official gazette. He has also deposed to have himself gone on the site, and has deposed the existence of dilapidated mosque, a well, and also the existence of innumerable graves. He has proved the site plan got prepared by him to be Ex.2, and has identified the land in possession of defendant No.1. He has deposed that mosque was at point-A in Ex.2, 7 D.B.S.A.C.Nos.6 & 7 of 1983 and that over the precise land in question described in para 3 of the plaint also, there were graves, then he has proved the certified copy of the judgment of the litigation between Nanne Shah and Fatteh Shah as Ex.3, certified copy of the judgment dated 31.5.58 of the Court of Senior Civil Judge, Jodhpur as Ex.4, in which litigation this witness was a plaintiff. Then he has deposed that defendant No.1 Bulidan Singh has sublet the land to other defendants. In cross-examination he was suggested the genealogy of Nanne Shah and Chand Shah. He has pleaded ignorance about any litigation between Wakf Board and Nanne Shah, and has also deposed that Nanne Shah was in possession as Mutwalli since the judgment of the Chief Court Jodhpur, passed in the year 1943. He has denied that Nanne Shah was receiving rent. Then he has denied that the land was let out by Nanne Shah to Bulidan Singh, however, he has deposed, that he asked the defendants No.2 to 4, and they gave out to be paying rent to Bulidan Singh. Significantly, he was not at all cross- examined on the aspects about existence of innumerable graves on the land in question, existence of the mosque, well etc. so also about the existence of the graves on the land in dispute, despite pleading in para 3 of the plaint as well.
P.W.2 has deposed, that he was looking after the Wakf property as Secretary of the Wakf Committee Jodhpur, he has seen the Chand Shah Ka Takiya, which is old graveyard of Muslims of Jodhpur. Then he has identified the land as "A B C D E F G" in Ex.5 to be the land of Chand Shah Ka Takiya, and has identified the precise land 8 D.B.S.A.C.Nos.6 & 7 of 1983 in question, therein, to be shown by red colour, and to be in possession of Bulidan Singh. Then he has proved Ex.3 to be the judgment, declaring the land to be Chand Shah Ka Takiya Kabristan. Likewise, he has deposed Ex.4 to be also declaring the land to be graveyard, and that appeal against that judgment was filed in the High Court, which too has been decided on 24.2.70, holding the land to be Wakf property. Then he has proved the gazette notification Ex.6. Then he has deposed, that he had himself gone on the land, and has seen that innumerable graves exist there, apart from one dilapidated mosque, one Hujara and one well. Then in cross-examination, he has deposed that he has seeing the graveyard and mosque to be out of use since his attaining senses, and that within his presence nobody was buried there, nor prayers were offered in the mosque, then he deposed that Chand Shah was buried in his presence at place 'X' in the site plan Ex.5, who was buried some 30-35 years ago. He has also deposed that on the land in question there is a grave of his grandfather as well. However, he has deposed to be not in a position to prove the graves, which existed on the |and in question, described in para 3 of the plaint. Then on cross- examination on behalf of the defendant No.1, he has deposed about genealogy of Nanne Shah, and Nanne Shah to be Mutwalli, and to be managing the property. He has deposed to be not aware, as to whether Nanne Shah was receiving rent of the shops. He has also deposed that Hujara, well, Masjid and grave are not situated on the portion of the land described in para 3 of the plaint. Significantly, this witness has also not been cross- examined by any of the defendants, on the aspect, about 9 D.B.S.A.C.Nos.6 & 7 of 1983 the land being graveyard, innumerable graves being existing on the land in question, existence of the mosque, Hujara and well etc., except that prayers are not being offered for last some time.
Then coming to P.W.3, he has also deposed to have seen the land, to be known as Chand Shah Ka Takiya, whereon there is existence of mosque, well and graves. He has shown his age to be 45 years, and has deposed in cross-examination, that before his birth, this land was being used as graveyard, but the land of mosque has been stopped to be used as such. He has also deposed, that he is not aware as to at what precise place, whose grave exists. He has also deposed, that in his presence, prayers were never offered in the mosque, and he was also not aware, as to who has constructed the mosque.
Then comes the evidence led on the side of the defendant, and as noticed above, the only evidence led comprises of the statement of Gopal Singh, who has deposed, that the land is not of graveyard, graves never existed there, mosque never existed, and that he and Shivji are in possession for last seven years. He has deposed, that no notice was ever served by the Wakf Board, claiming the land. Then he has deposed that Sumitra Transport Company is operating on the land for the last 15-16 years. In cross-examination, he has claimed to be in possession of 15x20 feet portion of the land, for which he is paying Rs.25/- per month to Bulidan Singh, and identical amount of rent is being paid by Shivji to Bulidan Singh. He has deposed ignorance about the amount 10 D.B.S.A.C.Nos.6 & 7 of 1983 of rent being paid by Sumitra Devi. This is the entire oral evidence of the parties.
The learned trial court deciding issues no.1 and 5 together, about the land being Wakf property, and the defendants having trespassed in the year 1953, appreciated the evidence led on the side of the defendants, and also the gazette notification dated 14.4.1966, and also noticed, that Nanne Shah has not been produced to prove that land in question was leased out by Nanne Shah, as Mutwalli, nor any rent note has been produced. Bulidan Singh's not appearing in the witness-box was also considered, and it was held, that the land in question is Wakf property owned by the plaintiff, and that Bulidan Singh has illegally occupied it, in the year 1953 by breaking the boundary, and is in unlawful possession thereof. It was also found, that the other defendants could not establish their title over the land, rather they are found to have been put in possession by Bulidan Singh, without any right or authority. Then deciding issues No.3 and 4, about the other defendants having perfected their title by adverse possession, and the suit being barred by time, it was found, that the defendants No.2, 3 and 4 could not prove their adverse possession, and Bulidan Singh has also failed to prove, that the land is belonging to Nanne Shah, who transferred it to him by way of lease, or that he is regularly paying the rent. Thus, issue No.3 and 4 were decided against the defendants. Then issue No.6, being about Nanne Shah having perfected title by adverse possession, it was found against the defendant, for want of even an iota of evidence. Deciding issue No.7, 11 D.B.S.A.C.Nos.6 & 7 of 1983 the Court fees paid was found to be sufficient. Then deciding issue No.8, about Nanne Shah being necessary party, he was not found to be a necessary party. Then deciding issue No.2 about mesne profits, the plaintiff was held entitled to the mesne profits of Rs.160/- per month. Thus, the suit was decreed as above.
Two appeals were filed against the judgment of the learned trial Court, one by Sumitra Devi, being Appeal No.42/1971, and other by Bulidan Singh, being Appeal No.116/1971. Significantly, in the appeal by Bulidan Singh, the only grounds taken were, about the learned District Judge having erred in closing the evidence of the defendant, his having clearly pleaded to be tenant of Nanne Shah, still Nanne Shah having not been added as party in the suit, and that, since in the notification dated 14.4.1966, Nanne Shah was shown to be Mutwalli, from whom the defendant had taken the plot on rent, still his having not been impleaded as party. Then other ground taken was, that since the defendant had taken the plot on rent from Nanne Shah, his possession could not be deemed to be illegal, and that about the learned trial court having erred in dismissing the application filed by the appellant under Order 23 Rule 3 CPC, in default. Thus, in the appeal of Bulidan Singh no objection was raised to challenge the findings about the property being Wakf property. However, in the appeal by Sumitra Devi, being Appeal No.42, various grounds were taken, including to challenge the finding of the learned trial Court about existence of graves, mosques, Hujara and well etc. and its being Wakf property, by taking various grounds. Be that as 12 D.B.S.A.C.Nos.6 & 7 of 1983 it may.
The learned Single Judge rendered, a very detailed, and long judgment, running into 80 pages in the paper book. The learned Single Judge noticed the contentions advanced on behalf of the appellant, being, that there is no evidence worth the name on record, to show, that the property in question was reserved for graveyard, and was used for the burial of the dead bodies of Muslims of Jodhpur, and observed, that in these cases where the origin of Wakf property was lost in antiquity, it is difficult to lead evidence about the creation of the Wakf, and as to whether the property in dispute was part of the Wakf property has to be decided on the basis of evidence on record, and circumstances appearing in the case, and that the oral evidence in the present case is undoubtedly scanty, as the evidence of P.W.1, 2 and 3 only shows, that the land in dispute forms part of the property commonly known as Chand Shah Ka Takiya, and it was entered as Wakf property in the list of such properties published in the official gazette, and that the evidence of the three witnesses disclosed that a well, a dilapidated mosque, a Hujara, and several graves, are situated on the aforesaid land, while Gopal singh has merely stated, that the land in dispute did not form part of the graveyard, and there were no graves on it, and that he was let into possession of a portion of the land in dispute by Bulidan Singh at a monthly rent of Rs.25/-. However, the learned Single Judge was of the view, that there is enough documentary evidence on record, to show, that the property formed part of Chand Shah Ka Takiya, and it was a Wakf 13 D.B.S.A.C.Nos.6 & 7 of 1983 property.
The first and foremost question posed by learned Single Judge was, as to whether land in dispute is a Wakf property.
Learned Single Judge referred to, and relied upon, the earlier document on record, being judgment of the Chief Court of the former State of Jodhpur, being dated 11.11.1943, wherein the Division Bench of the Chief Court, presided by the then Chief Justice, observed that the original ownership of the property is buried in the hoary past, but this much is established on the record, that it was gifted by Mughal Kings to the ancestors of Gulab Shah and Chand Shah, and was for a long time reserved for a graveyard. Though now for the last 30 years, dead bodies have not been allowed to be buried there on account of its close vicinity to the city. There Graves are however in existence on major portion of this land, which also has situated on it, a mosque in dilapidated condition, a Hujara attached to it, and a well. Of course, the dispute in that litigation was about inheritance between the descendants, and the Division Bench held the land to be graveyard, and to have belonged to Wakf property by user, and also held, that the land in dispute is fully established, on the plaintiff's own evidence, to be Wakf property. The statements of P.W.4 Moosa, P.W.5 Nanne Shah, P.W.6 Abdul Gani, P.W.7 Habi Ahmed, and others, show, that it has a Takiya, and also a mosque, which is now in a dilapidated condition, and that it is also clear from this very evidence, that it was a 14 D.B.S.A.C.Nos.6 & 7 of 1983 graveyard, and has old graves, still in existence, though dead bodies are not buried there for the last 30 years, and that the land must be held to be Wakf by user. With this finding Nanne Shah was allowed to remain in possession as Mutwalli, and restrained him from alienating, or encumbering the land in any manner whatsoever. It was also noticed, that subsequently, two suits were filed for declaration, that the land lying outside Sojatigate, Jodhpur, known as Chand Shah Ka Takiya was Wakf property, and Nanne Shah, who managed the said property, had wrongfully alienated the said property, by executing a gift-deed, which gift deed was sought to be challenged, and in those suits, a specific issue was framed, as to whether on the land in dispute there were Mahommedan graves, Hujara, Mosque and Takiya, and in that suit, the trial Court came to the conclusion, that the land in dispute was a Mahommedan graveyard, and that there is a Takiya and some remainants of a mosque. The earlier judgment of the Chief Court dated 11.11.1943, was found to be not capable of operating as res-judicata, but was taken to be a very strong piece of evidence, against Nanne Shah, about the admission made by him, and the trial Court came to the conclusion, that the plaintiffs were entitled to a declaration, that the property in dispute is a Kabristan, and included some remainants of a mosque, and a Takiya, and was consequently Wakf property. The suits however failed, because there was no prayer for possession, and merely giving declaration would be futile. Against that judgment, appeals were filed before the High Court, and a certified copy of the judgment of the High Court dated 24.2.1970, was produced before the learned Single Judge, 15 D.B.S.A.C.Nos.6 & 7 of 1983 which recorded a compromise, whereby it was agreed, that the gift deed dated 17.10.1945 executed by Nanne Shah be declared void, on the ground, that the land in dispute is a Wakf property, and that decree for possession be passed in favour of the Wakf Board, in whom the entire Wakf property of Rajasthan are vested. This compromise was duly verified by the parties, and was accepted by the Court, and in terms of the compromise, the two appeals were allowed, and it was declared that the land in dispute was a Wakf property. The objection was taken before the learned Single Judge against taking of the said judgment on record, however, the learned Single Judge found, that it would be in the interest of all the parties concerned, and it is also necessary in order to give proper decision in the present appeal, that the judgment be taken on record under Order 41 Rule 27 CPC. However, the certified copy of the plaint etc., relating to the same subject were taken on record.
We may observe here, that before us, no objection was taken in this regard, as to whether judgment should have been taken on record or not.
Then the learned Single Judge proceeded to refer to, and rely upon, this judgment dated 24.2.1970 and the pleadings. Then a contention was raised, that even if the land in dispute was at one time used as a graveyard, then also it is established, that it ceased to be used for the said purpose since 1913, i.e. for last more than 40 years, before the present litigation started, and as such it cannot be held, that the property continued to be Wakf 16 D.B.S.A.C.Nos.6 & 7 of 1983 property. Few judgments in this regard were relied upon, and it was found, that those judgments were rendered not on the basis of general law prevailing in the country, but on the basis of special situation arising in the State of Punjab, following on the partition of the country, and particularly, circumstances, that taking advantage of unusual conditions prevailing in that part of the country, immediately after partition and deterioration of law and order situation; and the learned Single Judge expressed his respectful disagreement with the view taken by the Punjab and Haryana High Court. It was held, that law is well established, that if a land once formed part of a burial ground, then under the Muslim law, a graveyard or cemetery will always be regarded as a cemetery, and the mere fact, that it has not been used as a burial ground for several years, is of no consequence. It was noticed, that universally accepted principle in such cases is, that the dead should be allowed to lie undisturbed, and the dead bodies of persons belonging to any religion should not be desecrated. Then the judgment of Hon'ble the Supreme Court, in Syed Mohd. Salie Labbai (dead) by L.Rs. & Ors. Vs. Mohd. Hanifa (dead) by L.Rs. & Ors., reported in AIR 1976 SC 1569 was considered on the aspect of creation of public Wakf, and it was held, that in the present case, though there is no direct evidence to show, that the land was dedicated for use as a graveyard, however, the judgment dated 11.11.1943 clearly shows, that since 30 years before the said decision was given the dead bodies were not allowed to be buried in the said land on account of its close vicinity to the city of Jodhpur, although the said land was used as a graveyard earlier. 17
D.B.S.A.C.Nos.6 & 7 of 1983 Thus, it was found that there could be no evidence either of dedication or of user of the land in dispute as a graveyard, as it was not used for quite long time before filing of the suit, but that gave rise to two questions, being, as to whether in the case of land, which appears to have been dedicated for public purposes, but as long time has elapsed since its dedication, and no direct evidence of dedication is available, could such land be held to be Wakf property, and secondly, if there is no direct evidence of the user of a particular land as a graveyard, but there is positive evidence of its earlier user for such purpose for a long period, could it be held that the land in question ceased to be Wakf property. Then again referring to the judgment of the Chief Court dated 11.11.1943, wherein it was held, that it was established from the record, that the land was gifted by Mughal Kings to the ancestors of Gulab Shah and Chand Shah, and was reserved for a long time as graveyard. Then it was considered, that in the case of dedication, alleged to have been made long back, beyond times immemorial, by persons who are no longer alive, and who are not available after lapse of such a long time to give evidence, then it can very well be held, that the origin of the Wakf has been lost in antiquity, and no direct evidence of dedication can be available, but a presumption about the land having been set apart for the use as a burial ground has been raised from certain circumstances, including it being so described in other old documents, and from existence of several graves over the portion of the land. Learned Single Judge relied upon in this regard judgment of Oudh High Court in Noor Mohammad & Anr. Vs. Ballabh Das 18 D.B.S.A.C.Nos.6 & 7 of 1983 & Ors., reported in AIR 1931 Oudh 293, which was affirmed by the Privy Council, in the judgment reported in AIR 1936 P.C. 83, wherein the Privy Council held, the description of the land in the khasra and map as Takiya or Kabaristan prima-facie evidence of the fact that the land was a graveyard. Then another judgment of Calcutta High Court, in Wards Vs. Ilahi Baksh, reported in ILR 40 Cal. 297, was also relied upon. Then another judgment in Chhutkao Vs. Gambhir Mal, reported in AIR 1931 Oudh 45, was also relied upon, wherein the Oudh High Court has held, that there is no evidence about dedication of the land, but if it is a takiya, there is reason for presuming a dedication, where a plot of land is described as takiya, and has been used for many years as a place for burial by Mahommedans, whether they are members of one family or not, a presumption arises, that there is a Wakf by user, and that burial of dead in a plot of land for a long period of years is proof, of Wakf by user, rather it is one of the strongest proofs. A quotation from Mr. Ameer Ali was quoted, wherein it was said as under:-
"A cemetery or graveyard is consecrated ground and cannot be sold or partitioned. Even lands which are not expressly dedicated but are covered by graves, are regarded as consecrated and consequently inalienable and non-transferable."
Then, another judgment of Allahabad High Court, in Sheo Raj Chamar & Anr. Vs. Mudeer Khan & Ors., reported in AIR 1934 Allahabad 868, was also considered, wherein the origin of the grant or dedication was lost in antiquity, but graveyard existed from time immemorial, it 19 D.B.S.A.C.Nos.6 & 7 of 1983 was considered as a lost grant. Yet another judgment of Lahore High Court, in Imam Baksh Munawar Din & Ors. Vs. Mandar Narsingh Puri Parhalad Puri, reported in AIR 1936 Lahore 246, was also relied upon. Similarly, reliance was also placed on the judgment of Lahore High Court, in M. Misbahuddin & Ors. Vs. Vidya Sagar & Anr., reported in AIR 1935 Lahore 64, wherein it was held, that a judgment in a previous suit, declaring certain property to be Wakf, and containing the previous history of the property, was admissible in evidence, and would constitute an instance, in which the right was claimed, recognized or exercised, for the purposes of Section 13 of the Evidence Act, and can also be used, for the purposes of making the existence of the Wakf, highly probable. This judgment in turn proceeded on the basis of earlier Privy Council Judgment, in Ram Ranjan Chakerbati Vs. Ram Narain Singh, reported in (1895) ILR 22 Cal. 533. Then the judgment in Abdul Gafoor Vs. Rahmat Ali & Ors., reported in AIR 1930 Oudh 245, was also relied, upon for the proposition, that in absence of direct evidence of dedication, Wakf may be established by evidence of user, and that, merely because the property ceased to be used for the purpose of graveyard, now, it cannot be regarded as a private property. Likewise, numerous other judgments were also relied upon. One judgment of Madhya Pradesh High Court, in Mohammad Kasam Abdul Rehman & Anr. Vs. Abdul Gafoor Ahmedji & Ors., reported in AIR 1964 M.P. 227, was also relied upon, wherein it was held, that under the Mahommedan law if a land has been used from time immemorial for burial ground, then the same may be called a Wakf, although there is no express dedication, and that property was used as 20 D.B.S.A.C.Nos.6 & 7 of 1983 graveyard for a number of years, it was ceased to be so used as well, the stoppage will not convert the graveyard, which was once a Wakf property, into a private property, inasmuch as, a public graveyard will always vest in public, and cannot be divested by non-user.
Then the material on record was considered, and it was found, that the facts which emerge from the evidence on record are, that a piece of land situated outside Sojatigate, extending from the Bari of Sojatigate upto the land of Tejnarain Kak, and lying between the city wall and the public street, and enclosed by a wall, is commonly known as Chand Shah Ka Takiya. Secondly there are several graves of Muslims scattered all over the land, and besides the graves, there is a dilapidated mosque, a well and a Hujara. Thirdly the Chief Court of former State of Jodhpur in its judgment dated 11.11.1943, held, on the basis of evidence led in that case, that the said land constituted a takiya, and that there were old graves in existence, though there were no fresh burials, and fourthly, the Chief Court also recorded admission of Nanne Shah, who was held to be entitled to remain in possession of the land in dispute as a Mutawalli, and that he would not alienate or encumber the land in any way, which was in consonance with his capacity as Mutwalli of Wakf property, which was a public trust, and that the Chief Court noticed, that the origin of the Wakf was lost in antiquity, but this much is definite, that there were old graves in existence. Then the treatise 'principles of Mahommedan Law' by Mulla were considered, and it was found, that there is no doubt that the aforesaid land 21 D.B.S.A.C.Nos.6 & 7 of 1983 known as Chand Shah Ka Takiya is a Kabristan or graveyard, and therefore, is a Wakf property. The contentions of the learned counsel for the appellant about there being no evidence of dedication for user of the land as graveyard, was negatived by referring to judgment dated 11.11.1943, and by relying upon the witnesses produced on behalf of the plaintiffs, who have deposed the existence of the old graves, scattered all over the land of Chand Shah Ka Takiya, for holding that the place was used by Mahommedans as grave yard. It was observed, that dedication beyond human memory and the user of such land for burying the dead from time immemorial, is enough to presume on the basis of the evidence on record, and the circumstances appearing in the evidence in the present case, that it is a Wakf property. Then consequences of non-user or disuse of the property were also considered, and the contentions were negatived.
The learned Single Judge then considered the question of limitation, and found, that the provisions of the Public Wakf (Extension of Limitation) Act, 1959 are not available to the plaintiff, as the definition of the Wakf, given therein does not include a Wakf by user, as has been included in the definition given in the Wakf Act of 1954, but it was found, that the present suit falls within Article 65 of the Limitation Act, whereunder a period of limitation begins from the date, when the possession of the defendants became adverse to the plaintiff, as the present suit is based on title, and the difference between Article 142 and 144 of the old act, vis-à-vis Article 64 and 65 of the present Act, was 22 D.B.S.A.C.Nos.6 & 7 of 1983 considered and judgment of Madras High Court, in Bhagwaty Pillai & Anr. Vs. Savarimuthu & Anr., reported in AIR 1976 Madras 124, was considered. Then, another judgment in Saura Bauri & Ors. Vs. Subudhi Laxminarayan & Ors., reported in AIR 1975 Orissa 165, was also considered. Similarly, various other judgments were also considered, including the one in Nair Service Society Ltd. Vs. K.C. Alexander & Ors., reported in AIR 1966 SC 1165, and it was found, that though the plaintiff has alleged that the defendants have trespassed over the property in the year 1953 by demolishing the wall, but in the written statement, the defendant No.1 has denied entering into unlawful possession, and has pleaded the land to have been taken on rent from Nanne Shah, and also admitted other defendants to be sub-tenants, Nanne Shah was pleaded to be the owner, and that, if there is any dispute between the plaintiff and Nanne Shah, plaintiff should settle out the dispute with Nanne Shah in a Court of law. Thus it was found, that on the admission of the defendant No.1 Bulidan Singh himself, in the written statement, it is apparent, that he has claimed himself to be a tenant on behalf of Nanne Shah, who according to the judgment dated 11.11.1943, was merely a Mutwalli. Bulidan Singh has not appeared in the witness-box, and Gopal Singh, who alone appeared on behalf of the defendants, has deposed, that he was a tenant under Bulidan Singh, and that Shivji and Sumitra were also tenants under Bulidan Singh, and thus, it was found, that there is no proof of adverse possession, furnished by any of the defendants. Consequently, even if the plaintiff is not entitled to any extension of period under the 1959 Act, yet Bulidan Singh 23 D.B.S.A.C.Nos.6 & 7 of 1983 must be held to be bound by the admission made by him in the written statement, that he was a tenant of a plot of land in question under Nanne Shah, and it cannot be held that he was in adverse possession, even if he is in continuing possession of the plot with consent of Nanne Shah, the Mutwalli, since Nanne Shah was only the Mutwalli, the plaintiff's suit for possession was certainly within limitation. Then reference was also made to Section 10 of the Limitation Act, and thus, it was found, that the suit cannot be said to be barred by time. In the result the appeal was dismissed.
Arguing the appeal, learned counsel for the appellant invited our attention to the provisions of Mussalman Wakf Validating Act, 1913, Mussalman Wakf Act, 1923, Mussalman Wakf Validating Act, 1930, the Wakf Act, 1954, and submitted, that in order to establish any property to be Wakf, there has to be a permanent dedication by a person following Muslim faith, and for the specified purpose. Then, elaborating argument it was contended, that from entire reading of the pleading and material it is clear, that there is no pleading as to who dedicated the property, and for what purpose. In absence of such evidence, the property could not be found to be Wakf property. Then, the provisions of Evidence Act was referred to, to contend that the judgment dt. 11.11.1043, which is rather the sheet anchor of the impugned judgment, is wholly irrelevant, and was rather inadmissible in evidence. What was the dispute involved in that litigation has nothing to do with the decision arrived at, therein. Likewise, it was contended that the finding about the 24 D.B.S.A.C.Nos.6 & 7 of 1983 Wakf, as arrived at, could possibly not be arrived at, because at that time the law that prevailed required registration of the Wakf, apart from the fact that despite the said judgment, Nanne Shah treated the property in question to be his personal property. During course of arguments, on our quarry it was admitted, that the defendant no. 1 is the tenant since 1953. Then, regarding judgment dt. 24.2.1970 also, it was contended, that that is a compromise decree, and inherently is compromise between the parties with a seal of the Court, and is not a decision of the Court as such, and therefore, the said judgment is also not relevant to decide the question as to whether the property in question is a Wakf property. It was reiterated that in the plaint there is no plea as to how it became a Wakf, or as to how the plaintiff became the owner. The attention of the learned counsel was invited to the pleading in the plaint, wherein it is pleaded, that earlier the land was used as public graveyard, and is therefore, Wakf. It was submitted that it is not specified, as to since when, and for what period of time, it was so used. It was also submitted that on the question as to whether the land in dispute is a part of graveyard, or not, the judgment dt. 11.11.43 was also relied upon in rejoinder only, apart from the fact that there is no pleading in the plaint even about the immemorial user, though in the said judgment dt. 11.11.43 it was presumed. Likewise, there is no evidence at all about the user for time immemorial, rather substantially the suit is based on notification published in the gazette, under Section 4 of the Wakf Act. Then, referring to evidence, it was submitted, that P.W. 1 has been 25 D.B.S.A.C.Nos.6 & 7 of 1983 examined on 14.2.1970, and has deposed to be 65 years of age, and therefore, he could not depose about immemorial user of the property, more so, even in the judgment dt. 11.11.43 it has been noticed that it has not been used as graveyard for the last 30 years. Then regarding limitation it was submitted, the learned Single Judge has held that the Act of 1959 would not apply, still the suit has been held to be within time, as the property is Wakf. However, it was submitted that even qua the Wakf, the suit has to be filed within limitation, and in the present case, even according to the plaint averments the defendant illegally encroached upon the land in question, by breaking open the boundary wall in the year 1953, and from that date itself the suit was required to be filed within 12 years. According to the learned counsel, looking to the averments of the plaint about the nature of the entry of the defendant, the entry was adverse from the very beginning, and since the plaintiff has to stand on its own leg, he cannot rely upon the weakness of the defendant, the suit could not be decreed, and was required to be dismissed, as time barred. Learned counsel cited some of the judgments which were cited before the learned Single Judge as well.
On the other hand, learned counsel for the plaintiff read to us para-1 of the plaint, and the written statement of the defendant no.1, and pointed out, that the pleading of the plaintiff, about the property being the graveyard of the Muslims since old times, and it's being used as a public graveyard has not been denied. Likewise, in para-2 of the written statement, the defendant no.1 has pleaded to be tenant of Nanne Shah. However, the pleadings 26 D.B.S.A.C.Nos.6 & 7 of 1983 taken in para-2 of the plaint have not been denied. Similarly, the pleadings of para-3 of the plaint, of course has been denied, but it has been pleaded that he came in permissive possession. However his entry in 1953 hqs not been denied. Siminarly the pleadings of the plaint in para-5, about the defendant no.1 realising rent from other defendants, has not been denied, rather they have been pleaded to be sub-tenants. Likewise, the pleadings taken in para-10 of the plaint, regarding limitation has not been denied by the defendant. Then in additional pleas also, of course it is pleaded, that he has taken the property on rent from Nanne Shah, but to substantiate this pleading, nobody has been produced on behalf of the defendant, while he could very well produce the receipts about the payment of rent, or other corroborative evidence. Even this much is not pleaded, that when it was taken on rent, and how it was taken on rent. Then, referring to written statement of defendants no. 2 to 4, it was contended, that the defendant no. 1 has pleaded them to be his sub-tenant, while nothing of that sort has been deposed by the defendants no. 2 to 4. Then, in para-3 these defendants have pleaded about litigation of 1958. Thus, it could very well be inferred, that these defendants are aware about the old litigation, still they chose to adopt the course of denial. Then referring to evidence, it was contended, that significantly P.W.1 has not been cross-examined upon the aspect of his deposition, about existence of dilapidated mosque, well, and existence of innumerable graves on the land. Likewise, P.W.2 who deposed himself to have gone on spot, and saw dilapidated mosque, innumerable graves, Hujrah, well, and on that 27 D.B.S.A.C.Nos.6 & 7 of 1983 aspect he has not been cross examined. This witness has also deposed, that his great grand father was also buried on that land, whose grave exists, and on that aspect also he has not been cross examined. Similarly P.W.3 has also deposed about the existence of graves and well, but on that aspect he also has not been cross examined. According to the learned counsel, in view of the judgment of Punjab and Haryana High Court, in M/s. Chuni Lal Vs. Hartford Fire Insurance Co., reported in AIR 1958 Punjab-440, and the judgment of this Court in Gulam Mohammed & Anr. Vs. Mst. Mariyam & Anr. reported in 1984 RLR-511, and that of Calcutta High Court in Traders Syndicate Vs. Union of India reported in AIR 1983 Calcutta-337, it is required to be inferred, that the defendant did not mean to challenge that part of the evidence of the plaintiff, on which evidence there was no cross examination. Likewise, relying upon the judgment of the Hon'ble Supreme Court, in Jahuri Sah Vs. Dwarika Prasad, reported in AIR 1967 SC-109, it was contended, that on the principle of non-traverse also, it is required to be held, that the property in question, being Wakf property, is not in dispute. Then, referring to the memo of appeal filed on behalf of defendant no. 1, it was contended, that all the arguments raised before this Court, were not raised by the defendant before the learned Single Judge, and therefore, cannot be allowed to be raised.
Arguing on the question of limitation, relying on the judgment of the Hon'ble Supreme Court, in The State Bank of Travancore Vs. Arvindan Kunju Panicker & Ors. reported in AIR 1971 SC-996, it was contended, that 28 D.B.S.A.C.Nos.6 & 7 of 1983 permissive possession cannot be converted into adverse possession, unless the person in possession asserts hostile title, and thereafter remains in possession for the last more than 12 years or more. It was also sought to be contended, that the Wakf Board has taken over the management on 14.2.1965, and prior to that, it could not file suit, as the suit filed prior to that was not maintainable. Then, learned counsel sought to rely upon the provisions of the Public Wakfs Act, 1959 again, to contend, that therein the limitation is available uptill 1980, and therefore, the suit is clearly within time. It was contended, that the old Act of 1959 defines Wakf, and does not include Wakf by user, but then according to the learned counsel, it is required to be comprehended, that the user is only mode of establishing the dedication, to make it a Wakf, and therefore, if it is established, that by user it could be inferred, that there is Wakf, it obviously means, that it was a Wakf created by dedication, and thus, the Act of 1959 very much applies. It was then submitted, that in the present case the defendant no.1 has not set up a plea of adverse possession, rather he has come with a plea of permissive possession, having entered in possession as a tenant of Nanne Shah. Of course, the defendants no. 2 to 4 have pleaded adverse possession, but on the face of the pleadings of defendant no. 1, about the other defendants being his sub tenant, that plea is of no consequence, apart from the fact, that on behalf of the other defendants no. 2 to 4, only D.W.1 has appeared as witness, and he has also not supported the plea of adverse possession, as taken in the written statement, rather has clearly deposed, that they are in possession as sub-tenant 29 D.B.S.A.C.Nos.6 & 7 of 1983 from Bulidan Singh. Thus, even the pleadings taken by the defendants no. 2 to 4 is not established by them, rather the pleadings taken by them is not in line with the pleadings taken on the side of the defendant no.1 Bulidan Singh, while in the witness box D.W. 1 has admitted all other defendants to be in possession as sub-tenant of Bulidan singh. Thus, it cannot be said, that the suit is barred by time. Relying upon the judgment of the Hon'ble Supreme Court in State of Punjab Vs. Brigadiar Sukhjit Singh, reported in 1994(2) RCR-66, it was contended, that permissive possession, however long, cannot by itself become hostile, by a long lapse of time. According to the learned counsel, admission is the best evidence against the party admitting, and since the defendant no.1 has admitted to be in permissive possession, and on behalf of other defendants also, D.W.1 has admitted to be in permissive possession, it cannot be said, that the suit is barred by time. Then, regarding the property to be Wakf, learned counsel also relied upon various judgments cited before the learned Single Judge, including the judgment in Mohd. Shah Vs. Fasihuddin Ansari, reported in AIR 1956 SC- 713, as relied upon by the learned counsel for the appellant.
Mr. Vikas Balia was also permitted to assist the Court, as he is appearing in S. B. Civil Writ Petition No. 1467/88, Bhanwarlal Vs. State, which matter has also been tagged with these appeals, and submitted, that user only provides a proof of dedication. Ofcourse, dedication is a must, to establish any property to be Wakf. He has referred to certain quotations from Books on the subject, 30 D.B.S.A.C.Nos.6 & 7 of 1983 by Fyzee, and Ameer Ali, to throw light on the aspect, as to how Wakf is created, and/or creation of Wakf is to be inferred, and that, once the Wakf is created, it does not extinguish, and also pressed into service the Cy-Press doctrine for the purpose. Learned counsel also referred to us the judgment of the Hon'ble Supreme Court, in Sayeed Mohd.'s case reported in AIR 1976 SC-1569, so also the judgment of M.P. High Court, in Mohd. Kasam Vs. Abdul Gaffur, reported in AIR 1964 MP-227. Then, the learned counsel also relied upon the judgment of the Hon'ble Supreme Court, in Onkar Nath & Ors. Vs. The Delhi Administration, reported in 1977(2) SCC-611, to contend, that the judgment and contemporary literature can be looked into, for the purpose of finding, as to whether the particular property is a Wakf property, or not. Then, the judgment, in Wali Mohd. Vs. Rahmat Bee, reported in 1999 (3) SCC-145, was relied upon to contend, that even portions of the compound cannot be excluded from Wakf property. The judgment, in AIR 1963 Patna-98, Mohd. Deen's case was relied upon, to contend, that on user from times immemorial, inference of dedication flows. The doctrine of Res Ipsa Loquitur was also sought to be invoked, to contend, that if it is shown, that there were graves, then by invoking above doctrine, which is a rule of evidence, it can legitimately be inferred, and concluded, that the property is a Wakf property, and if such finding is recorded by the two learned courts below, such finding is not required to be interfered in special appeal. The judgment, in Mohd. Imdad Ullah Vs. Bismillah, reported in AIR 1946 Allahabad-468 was relied upon to contend, that dedication need not be express. Then, the judgment in 31 D.B.S.A.C.Nos.6 & 7 of 1983 Kerala Wakf Board Vs. MR Koya Thangal, reported in AIR 1985 Kerala-228, was relied upon to show, as to what is Takia. Then, certain judgments were referred to contend, that since Wakf property, in the very nature of things, is in-alienable, adverse possession cannot be perfected against such property, as inherently, in the very nature of things, by adverse possession right can be perfected only in respect of alienable property. Since the Wakf property vests in God, and does not vest in any person, Section 27 of the Limitation Act, which extinguishes the right or title on expiry of limitation, and comprehends only right of persons, and not God, and therefore, also adverse possession cannot be perfected.
In rejoinder learned counsel for the appellant also referred to the judgment of the Hon'ble Supreme Court, in Wali Mohd's case, specially para-17, 29, and 30, to contend, that adverse possession can be perfected against the Wakf property. Then, it was reiterated, that dedication is a sine qua non for creation of Wakf. Of course, dedication can be inferred from user, but then, in the present case there is no pleading of dedication, and creation of Wakf by user, was introduced for the first time in 1954, in the Wakf Act, 1954. It was again reiterated, that there is no pleading, as to during what time the public used the land as graveyard, nor is there evidence, or record, which could very well be produced, as in the former State of Jodhpur, there was codified law. Distinguishing the judgment in Syed Mohd.'s (1976) case, it was contended, that there should be large number of graves, while in the present case there is nothing to show 32 D.B.S.A.C.Nos.6 & 7 of 1983 the existence of such requirement, rather no material fact has been pleaded. It was contended, that in the earlier litigation, the controversy was never raised, as to whether the property was graveyard, or not, and by compromise, or consent, or even by mere gazette notification, the property cannot become graveyard. It was also reiterated, that the plaintiff has to stand on his own legs, and he has to claim, and establish, his own rights, since the plaintiff has based the suit on adverse possession of the defendant as trespasser, and the plea taken by the defendant, about permissive possession, can be of no help to the plaintiff. Regarding limitation, it was reiterated, that despite the fact that Wakf by user was recognized as a mode of creation of Wakf in the Wakf Act of 1954, still in the Act of 1959 which was published five years later, in the definition of Wakf, the Wakf by user was not included. As such, the plaintiff was not entitled to any benefit of the Act of 1959. Inter alia on these submissions it was submitted that the suit is required to be required to be dismissed.
We have considered the submissions, have gone through the record, various case laws, and books cited on the subject by either side.
At the outset we may observe that in our view from the submissions made by either side, practically two questions only arise for consideration being; one as to whether the property is a Wakf property, or say it is proved to be Wakf property, and the other being, as to whether the suit is within limitation. All submissions 33 D.B.S.A.C.Nos.6 & 7 of 1983 made practically revolve around these two central questions.
Before proceedings further we may broadly deal with the cases cited by either side.
The Hon'ble Supreme Court in Mohammad Shah Vs. Fashihuddin Ansari reported in 1956 SC-713, has held, that as a matter of law a Wakf normally requires express dedication, but if land has been used from time immemorial for a religious purpose, then the land is by user Wakf, although there is no evidence of an express dedication. In that case certain area was added to the original mosque by Mutawallis, by way of construction of rooms, and that area was used by the public for religious purposes, along with the old mosque, that was regarded as having become Wakf by user. We may observe here that in this very judgment, in para-61, by relying upon the provisions of Section 10 of the Limitation Act, it was held that in a suit for declaration that the property in possession of Mutawalli is a Wakf property, no question of limitation arise in such property, if it is found, that the property comprises of the Wakf. In Mohammad Kasam Abdul Rehman Vs. Abdul Gafoor Ahmedji reported in AIR 1964 Madhya Pradesh-227, it was held that where the land was used as a graveyard for a pretty long time by the members of the public without discrimination about user, the land must be regarded as a public graveyard. It was held that a graveyard cannot be a private graveyard unless it is used for the family members exclusively. It was also held that under the Muhammadan Law, if a land has been used from time immemorial as 34 D.B.S.A.C.Nos.6 & 7 of 1983 burial ground, then the same may be called a Wakf, although there is no express dedication, and that, in order to prove dedication by evidence of burials in the land and to justify the inference that the land is a cemetery, it is necessary to prove instances adequate in number and extent. Likewise it was also held that where land was being used as a burial ground by the public from time immemorial, but it ceased to be so used in recent years, that stoppage of user will not convert the graveyard which was once a Wakf property into a private property. A public graveyard continues to be so, whether it is so used or not. A graveyard, will always vest in public and it cannot be divested by non-user; this being an idea inherent in Wakf. In this case of course on certain portions of land there was a building and construction, which was in possession of Mutawalli, but then it was quite separate, and distinct, and was shown in the settlement papers as personal property of Mutawalli. Likewise, there was no evidence to show, that at any time there was any burial in the built portion, and therefore, the built portion was not held to be Wakf. The judgment in Wali Mohammed Vs. Rehmat Bee reported in (1999) 3 SCC-145 was cited only for the purpose of contending, that stranger may perfect adverse title to the Wakf property. Since this legal proposition does not arise in the present case, we need not detain ourselves on it. The judgment in K.G. Premshanker Vs. Inspector of Police reported in (2002) 8 SCC-87 was cited for the purpose of contending, that the decision of the Civil Court would be relevant only if condition of any of the Section 40 to 43 are satisfied, but it cannot be said, that the same would be 35 D.B.S.A.C.Nos.6 & 7 of 1983 conclusive, except as provided in Section 41. This was a case where the findings recorded by the Civil Court, were cited to be held to be binding in criminal litigation, and in that regard the principles were propounded. There is no dispute about the legal proposition, as propounded by the Hon'ble Supreme Court. This was cited for the purpose of showing, rather contending that the learned Single Judge, and the learned trial court were in error in proceeding on the basis of the judgment of the Chief Court dated 11.11.43. We may observe here, that under Section 42 the judgments, orders and decrees, other than those mentioned in Section 41, are provided to be relevant, if they relate to matters of public nature, relevant to the enquiry. However, such judgments and orders are not conclusive proof of that, which they state. Thus, on the face of language of Section 42, since the earlier judgment relates to public nature, being as to whether this property was a Wakf property, or not, obviously a public Wakf, because it is nobody's case about it being a private Wakf, the judgment dt. 11.11.43 cannot be said to be not relevant. Obviously, even the learned courts below have not proceeded on the basis of it, presuming to be conclusive, rather it has only been considered as a circumstance, which obviously could be a relevant material.
So far as the cases cited by the learned counsel for the plaintiff are concerned, all of them have been cited before the learned Single Judge, and have already been considered by him at length, therefore, we need not repeat them over again. The judgment in M/s. Chuni Lal Dwarka Nath's case, Traders Syndicate's case, and Gulam 36 D.B.S.A.C.Nos.6 & 7 of 1983 Mohammed's case have been cited to show the effect of non- cross examination of a witness, On a particular part of his testimony, and it is held, that it shall be deemed, that the party cross examining does not seek to challenge that part of the testimony. Then, the judgment of the Hon'ble Supreme Court in Jahuri Shah Vs. Dwarika Prasad, reported in AIR 1967 SC-109 has been cited to contend, that the pleadings taken in the written statement do not constitute denial of existence of fact, as alleged by the plaintiff. In our view, the legal proposition propounded therein, about as to what constitute denial, is not a matter of dispute, and the question as to whether in the present case the pleadings taken constitute denial will be considered on merits. Then, the judgment of Orrisa High Court in Jagamohan Garnaik Vs. Sankar Samal, reported in AIR 1990 Orissa-124 has been cited, which takes a view, that when a plaintiff files a suit for declaration of title and possession, basing his claim on his title, and admits dispossession, then he is not to be required to prove, that his dispossession was within twelve years of the filing of the suit, and he can succeed on establishing his title, and will fail only when the defendant proves, that he has perfected his title by way of adverse possession. The distinction between old Articles 142 and 144 vis-à-vis Article 64 and 65 of the new Act has been considered, and highlighted in this judgment, which were rendered by Hon'ble Mr. Justice G.B. Patnaik, as His Lordship then was. Then, another judgment of the Hon'ble Supreme Court in State of Punjab Vs. Brigadier Sukhjit Singh reported in 1994(2) RCR-66 has been cited, wherein considering the provisions of Article 64 and 65, it has 37 D.B.S.A.C.Nos.6 & 7 of 1983 been held, that mere fact that the licensee has remained in possession for long duration, is of no consequence, as, permissive possession, however long, cannot by itself be said to have become hostile by a long lapse of time.
Mr. Balia has cited the judgment of the Hon'ble Supreme Court in Syed Mohd. Salie Labbai Vs. Mohd. Hanifa reported in (1976) 4 SCC-780, specially para-28. In this para the Hon'ble Supreme Court has laid down, rather recapitulated the Mahommedan Law on the subject being clear, to the effect, that the graveyards may be of two kinds; a family or private graveyard and a public graveyard, and a graveyard is a private one which is confined only to the burial of corpses of the founder, his relations or his descendants, and in such a burial ground no person who does not belong to the family of the founder is permitted to bury his dead. On the other hand if any member of the public is permitted to be buried in a graveyard and this practice grows, so that it is proved by instances adequate in character, number and extent, then the presumption will be, that the dedication is complete, and the graveyard has become a public graveyard. Then, in Wali Mohammed Vs. Rahmat Bee reported in (1999) 3 SCC-145 the Hon'ble Supreme Court has held, that the house constructed in the graveyard, which was a Wakf property, it had been constructed for use of religious purposes, was held to be accretion to the Wakf property, and therefore bore the same character as was borne by the other properties in that compound. Thus, the whole compound was held to be Wakf property. Then, certain judgments were cited on the aspect, as to whether adverse possession can 38 D.B.S.A.C.Nos.6 & 7 of 1983 accrue against the Wakf property, or not. For the reasons to be enumerated in the forthcoming paragraphs, we do not stand advised to go into that aspect of the matter.
Thus, from the judgments cited at the Bar, and the judgments considered by the learned Single Judge, this is clearly deducible, that for creation of Wakf, dedication for the specified purposes is required, and inference of dedication can be drawn, or factum of dedication can be inferred, by user of the property for that particular Wakf purpose, for the times immemorial. Neither of the learned counsel cited any judgment on the aspect, as to what period of time should be considered to be a time immemorial, i.e. 10 years, 20 years, 50 years, 100 years, or whether any particular length of time, even it starches over a period of half a century, upto which the property was shown to have been so used, then it would not be constituting user from time immemorial.
Thus, essentially it remains a question of fact, rather a brass question of fact, as to whether from the evidence, and/or material on record, a particular property is established to be a Wakf property, or in other words dedication for Wakf purpose can be inferred by user for a long period of time, if it is shown to be continued at least upto somewhere the first or second decade of the 20th Century.
As noticed above, much stress was laid to the effect, that there is no evidence on record to show, that the property in question was reserved for graveyard, and 39 D.B.S.A.C.Nos.6 & 7 of 1983 was used, for burial of the dead bodies of the Muslims.
We may recall, that the learned Single Judge has found, that there is enough documentary evidence on record to show, that the property in dispute formed part of Chand Shah Ka Takiya, and the earliest document relied upon was the judgment of the Chief court of the former State of Jodhpur dated 11.11.43. It may be observed here, that the learned Single Judge has not proceeded on the basis of taking that judgment to be conclusive, but has only considered it as the "earliest document on record". Thus, the judgment was considered as the relevant piece of evidence, which, as held by us above, is relevant under Section 42 of the Evidence Act, and in that judgment, from the plaintiff's own evidence it was found to be fully established, that the property is a Wakf property, as from the statements of P.W.4 Moosa, P.W.5 Nanne Shah, P.W.6 Abdul Gani, P.W.7 Habi Ahmed and others do show, that the land has a Takiya and also a mosque in a dilapidated condition, and that it is also clear from this very evidence, that it was a graveyard, and has old graves in existence, though dead bodies are not buried there for the last 30 years. Then, the learned Single Judge has also referred to the judgment of this Court dt. 24.2.1970, which was taken on record, under O. 41 Rule 27. At this place we may pause, and notice, and observe, that a look at the written statement of defendant no.1, as referred to above, does show, that he claims to be a tenant in the property, having been inducted by Nanne Shah, and has been paying rent to Nanne Shah. Thus, it is clear, that this defendant claims his possession through Nanne Shah. Then, 40 D.B.S.A.C.Nos.6 & 7 of 1983 a look at the statement of D.W. 1, who appeared on behalf of other defendants no. 2 to 4, shows, that he has admitted the other defendants to be in possession as a sub tenant from defendant no. 1 Bulidan Singh. Thus, the defendants relate their possession to be through Nanne Shah. In this background the judgment dt. 11.11.43, and 24.2.1970 become relevant, inasmuch as the judgment dt. 11.11.43, which has been produced on record as Ex. 3, shows that thereby suit of Nanne Shah was decreed, and held to be entitled to remain in possession of the land in dispute as a Mutawalli, with a restriction, not to alienate or encumber the land in any manner whatsoever, after finding the land to be established to be Wakf by user. Thus, Nanne Shah had no right to alienate or encumber the land, and thereafter Nanne Shah alienated the land in the year 1945, on 17.10.45 to be precise, whereupon another litigation was initiated, which culminated into compromise, as recorded in the judgment dt. 24.2.1970, and therein Nanne Shah was the party, and the present plaintiff, Wakf Board, was also a party, and it was agreed, that the gift deed executed by Nanne Shah dt. 17.10.45 be declared void, because the land in dispute is Wakf property, and that, decree for possession of the land in dispute be passed in favour of the Board of Muslim Wakf (the present plaintiff) in whom all the Wakf property is now vested. Thus, by the judgment dt. 24.2.1970 also, whatever right, title and interest, or say, even possession, was there with Nanne Shah, was given to the present plaintiff Wakf Board. In that view of the matter, since the defendants claim through Nanne Shah, these two judgments are very much relevant to show, that whatever 41 D.B.S.A.C.Nos.6 & 7 of 1983 rights were possessed by Nanne Shah, were given by Nanne Shah to the present plaintiff, and thus in a way, it did not at all remain necessary for the plaintiff to prove in the present case afresh, that the property is a Wakf property. This is one additional aspect of the matter.
However, examining the question, as to whether the plaintiff has been able to establish the property to be Wakf property, even de hors these two judgments, we may refer to the pleadings, inasmuch as in para-1 of the plaint, the plaintiff has interalia pleaded existence of big chunk of land described in para-1 to be an old graveyard of Musalmans, and even as on date innumerable graves do exist there, apart from dilapidated mosque, Kua and Hujrah, and that, earlier this land was used as a public graveyard, and is therefore, a Wakf property. The defendant no. 1 in his written statement admitted the existence of the land, and has only pleaded, that no graves exist, nor any mosque or Hujra exists, and simply denied the property to be Wakf property. We may make it clear, that on the principles propounded by the Hon'ble Supreme Court, the defendant has not denied the fact, that the land was earlier used as a graveyard of Musalmans, and earlier the land was used as a public graveyard. In this sequence, in para-3 the suit property is said to be a part of the property mentioned in para-1. Then, coming to the written statement of the defendants no. 2 to 4, they of course have denied the land to be ever a graveyard, but then, the fact remains, that the defendant no.1 from whom the other defendants claim to be the sub tenant, has not denied. Then, coming to the evidence, P.W. 1, who had been 42 D.B.S.A.C.Nos.6 & 7 of 1983 the secretary of the Wakf Committee for five years since 1962, has deposed, that the property Chand Shah Ka Takia was got surveyed, and was surveyed by the Assistant Commissioner, Devasthan Department, which Assistant Commissioner was Assistant Commissioner of Wakf as well. He has proved survey form being Ex.-1, and to be bearing his signature. Then he has deposed, that he himself visited the land, and seen existence of dilapidated mosque, a well and innumerable graves. He got prepared site plan Ex.-2, wherein mosque, and well have been shown at figure A and B. Significantly, on this part of the evidence, there is no cross examination worth the name. Then, coming to P.W.2, he is the present Secretary of the Wakf committee, and has deposed the land to be old graveyard of Musalmans. He has identified the entire chunk of land in Site plan Ex. 5, has proved the judgment dt. 11.11.43 as Ex. 3, and has deposed about the judgment dt. 24.2.1970, having been rendered. Then he has further deposed, that he himself has gone on the land, and seen that innumerable graves exist on the land, so also a dilapidated mosque, Hujra, and well also exist. In cross- examination rather he has asked, that he has seen the graveyard to be closed since he gained conscious, and has deposed, that Chand Shah was buried some 30 to 35 years ago. He claims his grand father to have been buried here. Significantly he too has not been cross examined on the aspect of existence of innumerable graves on the land in question, rather the tenor of questions does show, that he has been asked question on burial having been stopped since long. Then, coming to P.W.3, he has also deposed to have seen the land, and has deposed existence of graves on 43 D.B.S.A.C.Nos.6 & 7 of 1983 the land, and existence of dilapidated mosque, and well. The tenor of cross examination to this witness also shows, that the cross examination was directed in the direction of land having been stopped to be used for burial, but then nothing was put to him to discredit his testimony about existence of innumerable graves. With this, to add, there is no evidence in rebuttal, worth the name, on the side of the defendant. Thus, for want of cross examination, and for want of any evidence in rebuttal, in our view, on the preponderance of probabilities, if the statement of three witnesses, P.W. 1, 2 and 3 are read independently, and also if read in conjunction with the judgments Ex. 3 and judgment dt. 24.2.1970, there remains no doubt, that the land had been used as public graveyard of Muslims of Jodhpur from times immemorial, so much so that in the judgment Ex. 3 dt. 11.11.43 it is noticed, that burial had been stopped for the last some 30 years. Obviously, the suit had been filed in the year 1969, and the burial had been stopped for the last more than 50 years before filing of the suit, and innumerable graves could not come into existence over night. Obviously, persons must have been buried during long period of time, and since the origin, i.e. the time since when the land was started to be used as public graveyard is not within the memory of any one of the parties, or witnesses, and it obviously does appear to be far far beyond more than 50 years since the date of the filing of the suit, it is natural to infer, that the land had been used for the public graveyard of Muslims from time immemorial, and the burial had been stopped since the period as noticed in Ex. 3, and thus the dedication of the land for being used as 44 D.B.S.A.C.Nos.6 & 7 of 1983 public graveyard of Muslims can very reasonably, and safely, be inferred.
We are alive of the judgment of the Hon'ble Supreme Court in Board of Muslim Wakf Vs. Radha Kishan, reported in AIR 1979 SC-289, wherein the Hon'ble Supreme Court held, that if the property in possession of the stranger is included in the list published under Section 5 of the Wakf Act, the stranger is not under obligation to file suit within one year, and the list is not conclusive against him. But then, in that case it was also held in para-44, that the parties are left to take recourse to their remedies according to law, with advertence to the observations made in the judgment. Earlier in para-43 it was held, that the rights of the respondents no. 1 and 2 in respect of the disputed property, if at all they have any, will remain unaffected by the impugned notification, and they are at liberty to bring a suit for establishment of their right, and title, if any, to the property. Thus, this judgment rather only dilutes the binding force of the notification against stranger, but then it requires the person claiming any interest in the property to establish his right, title, or interest in the property, if there exist any. Obviously meaning thereby, that the notification also does prima facie show, the property to be Wakf property, and the person claiming any right, title, or interest therein may not be estopped, merely by issuance of notification, but then he has to establish his right, title, or interest. In other words, it is not required of the Wakf Board, in each and every litigation to independently establish, every time, against each and 45 D.B.S.A.C.Nos.6 & 7 of 1983 every defendant, if the Wakf Board happens to require to initiate litigation against innumerable persons, to independently establish the property to be the Wakf property, rather the notification would be sufficient to proceed with the presumption of the property being Wakf, and the person disputing it, who is stranger to the Wakf would obviously not be bound by the notification, but then it will have to be established by him, that it is not a Wakf property. In case such persons leads reliable and cogent evidence about his right, title or interest, in that event ofcourse it will have to be proved by the Wakf Board, by leading evidence in rebuttal, that the property is a Wakf property. In the present case both the learned courts below, i.e. learned trial court, and the learned Single Judge, in our view, have not considered this aspect of the matter at all, and they have not expected any evidence to be led on the side of the defendants, with regard to their right, title or interest over the property, or it to be not a Wakf property.
Be that as it may. Even de-hors this we have already considered even the evidence led on the side of the plaintiff, and found the evidence on record to be sufficient to prove the property to be Wakf property, and there being no evidence in rebuttal, on the side of the defendant. Thus, for the above additional reasons, we concur with the findings of the learned courts below, about the entire property being Wakf property, and the plaintiff being entitled to sue.
The second question, then comes is, about 46 D.B.S.A.C.Nos.6 & 7 of 1983 limitation. In this regard two different sets of arguments were raised, being applicability of the provisions of the Act of 1959, and the requirement of the plaintiff, to be only to prove title, and then it to be the requirement of the defendant to prove his adverse possession, and it was contended, that since even according to the plaintiff the defendant forcefully entered into possession of the property, the entry since beginning was hostile, and therefore the suit was barred by time, and so on.
We may straight-way observe that all this controversy need not be gone into by us at all, for the simple reason, that as noticed above, it is admitted position, on the side of the defendants, that they do not claim to be in adverse possession, rather claim to be in permissive possession, as tenants or sub-tenants. To repeat, defendant no.1 has admitted in written statement, that he is in possession as a tenant from Nanne Shah, and D.W. 1 has admitted, that other defendants are sub-tenants of defendant no.1, and at the same time, defendant no. 1 has also pleaded in written statement, that other defendants are his sub-tenants. The party to litigation is very much bound by the admission made in the pleadings, so also while in the witness box. May be that the plaintiff had pleaded the defendant to have forcefully entered into possession, but then, from reading of the statement of the witnesses, produced on behalf of the plaintiff, in our view, the pleading, as taken in the plaint in this regard is not substantiated, apart from the fact, that the defendants themselves have admitted to be in permissive possession, and claim to be in possession through Nanne 47 D.B.S.A.C.Nos.6 & 7 of 1983 Shah, which Nanne Shah surrendered all his right, title, or interest in favour of the present plaintiff. As such there is no question of any limitation, or adverse possession being their. This is apart from the fact, that since the defendants claim through Nanne Shah, and vide Ex. 3 Nanne Shah was held to be Mutawalli, no limitation is available against the plaintiff, in case where the suit is filed for possession against a person claiming through Mutawalli. Thus, for different reasons, we find, that the suit cannot be said to be time barred.
Then, yet another question arise, as to whether the defendants would be ordered to be dispossessed in this suit? In our view, the answer has to be in negative, inasmuch as when the defendants claim to be in possession as tenants, and sub-tenants of Nanne Shah, and vide judgment dt. 24.2.1970 Nanne Shah surrendered all his right, title or interest, and possession, in favour of the present plaintiff, the natural consequence is, that the defendants become tenant and sub-tenants correspondingly, and the appropriate remedy for the plaintiff could be to take legal action for eviction against the tenants or sub- tenants, in accordance with law, as may be available to the plaintiff. The tenant cannot be evicted, or sought to be dispossessed, as a trespasser. Thus, the plaintiff cannot be held to be entitled to the decree for possession, as granted by the learned courts below, treating the defendant to be trespasser.
The net result of the aforesaid discussion is, that the property in question is held to be Wakf property, 48 D.B.S.A.C.Nos.6 & 7 of 1983 and to be vesting in the plaintiff. It is also held, that the suit was not time barred. At the same time it is also held, that the plaintiff could not be granted decree for dispossession of the defendants, treating them to be trespassers, rather they could be proceeded against in accordance with law, only treating them to be tenant and sub-tenants of the plaintiff.
Consequently, with the aforesaid findings, the two appeals are partly allowed, the impugned judgments and decrees are partly set aside, and the plaintiff's suit for possession is dismissed, and rest of the judgment is affirmed.
(KISHAN SWAROOP CHAUDHARI),J. (N P GUPTA),J. /tarun/ /sushil/