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PUNJAB & HARYANA HIGH COURT
R.S.Narula and C.G.Suri JJ.
Punjab Waqf Board Ambala
Versus
Panchayat Deh
of,
Letter Patent Appeal No. 336 of 1969,356 of 1969,362 of 1969,364 of 1969,
Decided On : OCTOBER 7, 1970
WAQF - GHAIRMUMKIN KABARSTAN - VESTING IN GRAM PANCHAYAT - PUNJAB VILLAGE COMMON LANDS (REGULATION) ACT, 1953 (NO.1 OF 1954) - LIMITATION ACT, 1963 - ART.65 - ADVERSE POSSESSION.
Fact of the Case:
The plaintiff-appellant, Punjab Waqf Board, filed 9 suits for possession of separate pieces of land shown in plans. Exhibits P.1 to P.9 and P. W 1/1, in February 1964. The person who was described to be in illegal possession of each piece of land was impleaded as defendant No.1 in the suit for possession of that separate piece forming part of Khasra No.247. Panchayat Deh was impleaded as respondent No.2 in all these cases. It was alleged that Khasra No.247 being a Ghair-mumkin Kabarstan was Waqf property and that the plaintiff Board was vested with general superintendence and control over all waqfs in the State and was in possession until it had been illegally disposed in August 1963.
Finding of the Court:
The High Court found that the land had not been used as a graveyard since 1947, and therefore, it had vested in the Gram Panchayat under Punjab Acts. Nos.1 of 1954 and 18 of 1961. The suits were also found to be time-barred as it had been admitted on behalf of the plaintiff Board that it had not been in possession of the land at any time within 12 years preceding the filing of the suits.
Issues: 1. Whether the land in dispute was a Ghair-mumkin Kabarstan and therefore, Waqf property? 2. Whether the land had vested in the Gram Panchayat under Punjab Acts. Nos.1 of 1954 and 18 of 1961? 3. Whether the suits were time-barred?
Ratio Decidendi: 1. The Court held that the evidence about user as a graveyard for a period of about 40 years before the partition of the country was not of a very satisfactory character. As against this, there was reliable evidence that the land had not been used as a graveyard for very nearly a quarter of a country. The land in dispute cannot therefore be said to have had such a character in 1954 so as to prevent the vesting of that land in the Gram Panchayat under Punjab Act No.1 of 1954. 2. The Court held that the land had vested in the Gram Panchayat under Punjab Acts. Nos.1 of 1954 and 18 of 1961, as the definition of Shamlat Deh in these Acts would not seem to except from the operation of that Act any graveyards and the land may seem to have vested in the Gram Panchayat in early 1954. 3. The Court held that the suits were not time-barred as the new Limitation Act of 1963 which came into force on 1-1-1964 would be applicable to the case and the part of the Schedule to the Limitation Act of 1963 that would therefore be applicable is Art.65 and not Art.64. The burden of proving the date when the defendants possession became adverse to plaintiff is on the defendant under the new law of limitation.
Final Decision: The appeals were dismissed and the direction by the learned Single Judge that the parties may be left to bear their own costs throughout shall hold good upto the present stage of the proceedings.
1. Nine Appeals under Clause 10 of the Letters Patent being L. P. A. Nos.336, 356 to 362 and 364 of 1969 have been filed against the judgment dated 28-1-1969 of our learned brother, Tuli, J. My Lord had accepted 9 connected second appeals to set aside the judgments and decrees granted in favour of the plaintiff-appellant, Punjab Waqf Board, by the Court of first appeal, who had in turn set aside the judgments and decrees of the trial Court dismissing 9 suits for possession of land filed by the plaintiff-appellant. The proceedings in all these connected cases had been consolidated in these three Courts as the questions of law and fact involved were almost the same. We find it possible for the same reasons, to dispose of these 9 appeals by one judgment.
2. A piece of land which is a part of the current Khasra No.247, corresponding to Khasra No.198 of the earlier settlement, is shown in the Revenue records of village Garhi Brahmanan, Tehsil Sonepat, District Rohtak, as uncultivable or barren grave yard (Ghairmumkin Kabarstan ). The area of this graveyard was given as 3 Bighas 4 Biswas in these records from 1909-10 to 1945-46 vide copies of Jamabandis, Exhibits P.19 and D.1, but in the Jamabandis of 1957-58, copy Exhibit D.2, the area of the graveyard is shown as 5 Bighas 7 Biswas. The entries before the partition of the country in 1947 show that this land was a part of the Shamlat Deh and that the proprietors had shares in this Shamlat in proportion to the areas of their respective holdings (Shamlat Deh Hasab Rasad Rakba Khewat ). This is the entry in the column of ownership. In the column of cultivation the Kunjra community residents of the nearby town of Sonepat, are shown to be in possession as tenants-at-will. This entry continued upto the time of the partition of the country in 1947. Thereafter the Jamabandi for the year 1957-58 shows the Panchayat Deh to be the owner of the land while the possession is described to be of the Muslim Community (Ahle-Islam ). In the Jamabandi for 1961-62, copy Exhibit D.3, another tract of land comprising of Khasra No.169/1 and having an area of 6 Bighas 12 Biswas is similarly described as Ghair-mumkin Kabarstan besides the area of 5 Bighas 7 Biswas forming part of Khasra No.247.
3. The plaintiff Board filed these 9 suits for possession of separate pieces of land shown in plans. Exhibits P.1 to P.9 and P. W 1/1, in February 1964. The person who was described to be in illegal possession of each piece of land was impleaded as defendant No.1 in the suit for possession of that separate piece forming part of Khasra No.247. Panchayat Deh was impleaded as respondent No.2 in all these cases. It was alleged that Khasra No.247 being a Ghair-mumkin Kabarstan was Waqf property and that the plaintiff Board was vested with general superintendence and control over all waqfs in the State and was in possession until it had been illegally disposed in August 1963. The Panchayat Deh came forward to contest all these suits but the persons who had been impleaded as Defendant No.1 in each case did not care to put in appearance. It has appeared in evidence that the Gram Panchayat has obtained eviction decrees against all these persons and they would naturally be interested in a decision of the case which has the effect of depriving the Gram Panchayat of the right to execute, temporarily or permanently, these decrees. The plaintiff Board not being a party may not be in a position to take advantage of these decrees.
4. The trial Court dismissed these suits on the grounds, inter alia, that the plaintiff Board was not empowered to file suit against persons unconnected with the Waqf and that the land had vested in the Gram Panchayat under the Punjab Village Common Lands (Regulation) Act, 1953 (No.1 of 1954 ). It was also observed that the suits were time-barred as it had been conceded that the plaintiff Board was never in possession of the land in suit within 12 years. As there was nothing to show that the dispute
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