2010 Supreme(P&H) 1567

PUNJAB & HARYANA HIGH COURT
Vinod K.Sharma, J.
Shrimati Lakhwinder Kaur
Versus
Sadar Anjuman Ahmediyya Qadian
Regular Second Appeal No. 3120 of 1984,
Decided On : MAY 4, 2010

Headnote:

SOCIETIES REGISTRATION ACT, 1860 - SECTION 3 - REGISTRATION OF SOCIETY - PROOF - EVIDENCE ACT, 1872 - SECTION 78(6) - CERTIFIED COPY OF REGISTRATION CERTIFICATE - ATTESTATION BY INDIAN CONSUL - SUFFICIENCY - POSSESSION OF SUIT PROPERTY - PROOF - REVENUE RECORD - PRESUMPTION OF TRUTH - DISPOSSESSION - TRESPASSER - RIGHT TO POSSESSION.

Fact of the Case:

Plaintiff/respondents, a registered society, filed a suit for possession of land measuring 33 kanals 1 marla situated in Qadian, Tehsil Batala, District Gurdaspur. The suit was filed against S/Sh. Balbir Singh and Amarjit Singh, and on death of Sh. Balbir Singh, Smt. Lakhwinder Kaur, Rammi and Bablu were brought on record as the legal representatives. The plaintiffs/respondents claimed that the suit land belonged to Sadar Anjuman Ahmediyya Qadian. The land was being used as gair mumkin kabristan and as gair mumkin idgah by the Ahmediyya community for last over a century. Plaintiff No. 1 i.e. Sadar Anjuman Ahmediyya Qadian, is a registered society, duly registerred under the Registration of Societies Act, 1860, whereas plaintiff No. 2 Mirza Wazim Ahmad was its Nazir-ala, i.e. the Principal Secretary, Trustee and President and he had the right to file the suit. Sh. Sayeed Ahmad was general attorney of Sadar Anjuman Ahmediyya Qadian, having been appointed vide resolution No. 344 dated 11.9.1961. It was the case of the plaintiffs, that the governing body of Sadar Anjuman Ahmediyya Qadian vide its resolution No. 306 dated 2.12.1979 had authorised said Sh. Sayeed Ahmad to file the present suit. The case of the plaintiffs was, that Balbir Singh, defendant, on instigation, and with the help and connivance of defendant No. 2, entered into illegal possession of the land for about last six years. That the defendants had no right, title or interest in the land in dispute, and that the possession of the defendants over the suit land was illegal and wrongful. It was also the pleaded case of the plaintiff/respondents, that entries in the revenue record, relating to the possession of the defendants were forged and fabricated by the defendants, in collusion with the revenue authorities. While entering into illegal possession of the suit land, the defendants also demolished the graves and damaged the idgah, thus, injured the religious feelings of the Ahmediyya community in general, and that of the plaintiffs in particular, for which separate legal action under the criminal law was taken by the State against the defendants. Plaintiff No. 1 claimed right to manage/possess the suit land through its manager or mutwalli. It was claimed, that plaintiff No. 1 being in lawful and in legal possession, had the legal right to occupy the land, whereas the defendants had no right to take forcible possession, and were bound to deliver the possession of the suit land to plaintiff No. 1. But as the defendants had refused to accept the request of the plaintiffs, thus, the suit was filed.

Finding of the Court:

The learned lower appellate Court held, that in the jamabandi for the year 1943-44, Mirza Bashir-Ud-Din Mahmud Ahmad etc. sons of Mirza Gulam Ahmad of Qadian were shown to be the owners of khasra Nos. 361 and 363. These persons had migrated to Pakistan and thereafter these khasra numbers vested in the custodian and eventually in the Central Government. The learned lower appellate Court held, that in the year 1939 a suit was filed for permanent injunction by Mirza Bashir Ud Din Mahmud Ahmad etc sons of Mirza Gulam Ahmad,Sadar Anjuman Ahmediyya Qadian against Mehar Din son of Gulam Muhammad Rajput and others, restraining them and the Mohamaden residents of village Qadian, Rampur Rajada and Nathpura from burying their dead in khasra No. 361. The suit was decreed in favour of Sadar Anjuman Ahmediyya Qadian, Mirza Bashir-Ud-Din and others were also joined in the suit, but they were the persons from whom the Anjuman derived title, but they were not interested in the suit. In the said suit Sadar Anjuman Ahmediyya Qadian was held to be owner of khasra No. 361. The learned lower appellate Court, took note of the contention of the learned counsel for the plaintiff/respondents, that even if it is assumed that Sadar Anjuman Ahmediyya Qadian was not owner of the land in dispute and the land in dispute being religious and trust property could only be managed by a trust, then also the Central Government had appointed plaintiff No. 1 as mutwalli of the suit property vide letters Ex. PW7/1 and PW7/2. The plea of the learned counsel for the defendant/appellants that Central Government had no right to appoint mutwalli, so far as evacuee property was concerned in view of Section 11 of the Administration of Evacuee Property Act, 1950, was thus not accepted by the learned lower appellate Court in view of the finding that the dispute, if any, was between the custodian and plaintiff No. 1 regarding validity of appointment. The property in dispute being a religious and charitable property, the Central Government appointed plaintiff No. 1 as manager of the property, therefore, was entitled to possession of the property. The learned lower appellate Court held, that in a way plaintiff No. 1, was appointed as trustee by custodian for carrying out the purposes of the trust. Plaintiff/respondents, therefore, were held entitled to restoration of possession in view of their previous possession.

Issues: 1. Whether plaintiff No. 1 is a registered society ? 2. Whether plaintiff No. 2 is President of plaintiff No. 1 and is authorised to prosecute the case ? 3. Whether plaintiff is owner of property in dispute ? 4. Whether the plaint has been properly signed and verified and suit has been properly presented ? 5. Whether suit is properly valued for the purposes of court-fee and jurisdiction ? 6. Whether suit is bad for misjoinder or cause of action ? 7. Whether suit is bad for misjoinder of necessary parties ? 8. Whether defendant is in possession of suit land as tenant ? 9. If issue No. 8 is proved whether plea of tenancy is vague and requires better particulars, if so its effect ? 10. Whether the suit is within time ? 11. Whether this court has no jurisdiction to try the present suit ? 12. Relief.

Ratio Decidendi: The learned lower appellate Court held that Sadar Anjuman Ahmediyya Qadian was a society registered under the Societies Registration Act, as recited in the certificate of registration, the memorandum of association and copy of the rules of the Sadar Anjuman Ahmediyya Qadian, District Gurdaspur were shown to have been filed and registered. The learned lower appellate Court also referred to Section 3 of the Act to hold, that every Diplomatic or Consular Officer in any foreign country, or a place where he is exercising his function, administer any oath and take any affidavit and also do any notarial act which any Notary Public may do within a State. Every oath, affidavit and notarial act administered, sworn or done by or before any such person shall be as effectual as if duly administered, sworn or done by or before any lawful authority in a State. Any document purporting to have been affixed impress or subscribed thereon or thereto, the seal and signature of any person authorised by this Act to administer an oath in testimony of any oath, affidavit or act, being administered, taken or done by or before him, shall be admitted in evidence, without proof of the seal or signature being the seal or signature of that person or of the official character of that person. The plea of the defendant/appellants, that authentication under Section 85 of the Evidence Act, was not mere attestation but means that the person authenticating is to assure himself, of the identity of the person, who had signed the instrument as well as the fact of execution was rejected for the said reason, that the presumption under the Diplomatic or Consular Officers Oath and Fees Act, unless rebutted, stands and the document could be admitted in evidence. The learned lower appellate Court held, that under Section 78(6) of the Evidence Act, in order to admit the documentary evidence, it was required to be certified by legal keeper of the original document and by the Consul General. Proof of this was required to be given by direct or circumstantial evidence. The learned lower appellate Court, on appreciation of respective contentions, recorded a finding, that it stood clearly proved that Sadar Anjuman Ahmediyya Qadian, District Gurdaspur, was a society registered under the Societies Registration Act, in June, 1906.

Final Decision: The appeal is ordered to be dismissed, by upholding the judgment and decree passed by the learned lower appellate Court, but with no order as to costs.