A Wakf property cannot be divested by non-user.

N.K.Kapoor, J.

1. This is plaintiffs appeal against the judgment and decrees of the Courts below by which plaintiffs suit for declaration that Nath plaintiff (now through his sons) was tenant in possession of land measuring 11 Kanals 10 Marlas situate in village Sauna Tehsil Nawanshahr under Defendant No. 2 - Punjab Wakf Board and as a consequential relief for permanent injunction restraining defendant No. 1 from taking possession of the land on the basis of order dated 30th October, 1975, has been dismissed.

2. This suit was originally filed by Nath-plaintiff on the ground that the suit property is a Wakf property and has been declared to be so vide notification Nos. 2(52)/57-Prop. dated 18th March, 1960 and 38(15)-7-J-61/7527 dated 27th February, 1961. It is a graveyard and has been used as such by the persons professing Islam for burying the dead for the last more than a century. This land was leased out to Nath-plaintiff by defendant No. 2 about 6/7 years back and ever since the land has been in possession of the plaintiffs as tenant-at-will. It is further stated that defendant No. 1 filed an application under section 5 of the Punjab Public Premises and Land (Eviction and Rent Recovery) Act, 1973 (for short the Act) in the Court of Collector, who ordered eviction of the plaintiff on 30th October, 1975, which order the plaintiff challenged on the ground that the same is illegal and without any jurisdiction.

3. Defendant No. 1 filed written statement and controverted the averments made in the plaint. The defendant challenged jurisdiction of the Civil Court on the ground that eviction order having been passed under Section 5 of the Act the same cannot be challenged in Civil Court because section 10 of the said Act bars jurisdiction of the Civil Court on merits, the defendant denied that the property in dispute is a Wakf Property or that it was ever a graveyard. It was further urged that Punjab Wakf Board-defendant No. 2 had no right or title in the land, and thus leasing out of the land has no effect on the rights of defendant No. 1.

4. On the pleadings of the parties, the following issues were framed :

1. Whether the land in suit is Wakf property ? OPP.

2. Whether the Civil Court has no jurisdiction to try the suit ? OPD.

3. Whether the suit is not within time OPD.

4. Whether the suit is not maintainable in the present form ? OPD.

5. Whether the suit is bad for non-joinder of necessary party ? OPD.

5A. Whether the land in dispute belongs to the Punjab Government ? If so, its effect ? OPD.

6. Relief."

5. The trial Court decided issues Nos. I and 2 against the plaintiffs. Issue No. 3 was decided against the defendant. Under issue No. 4, it was held that the plaintiff is in possession of the suit land and thus has a right to maintain the suit in the present form. Issue No. 5 was decided against the plaintiff. Issue No. 5-A - whether the land in dispute belongs to the Punjab - Government, if so its effect was decided against the defendant since no evidence was led by the contesting- defendant. The trial Court, resultantly, dismissed the suit of the plaintiff.

6. The appeal preferred against the judgment of the trial Court was also dismissed vide judgment and decree dated 4th April, 1979, passed by the Additional District Judge, Jalandhar.

7. I have heard the learned counsel for the parties and have perused the evidence, oral and documentary, led in the case.

8. The suit property is owned by the Punjab State or is a Wakf property is the vital question determination of which will decide the fate of this appeal. The trial Court rightly framed issues in respect of the above points. The learned counsel for the appellants has challenged the conclusions of the Courts below with regard to these issues contending that the Courts despite having decided issue No. 5 A i.e. whether the land in dispute belongs to the Punjab Government, if so its effect, against the defendant, yet dismissed the suit of the plaintiff on the ground that