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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 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, 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.

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, 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 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.