Local Commissioner – Report of – If the defendant is not associated at the time of demarcation, such report has to be discarded.

Mr. Raj Mohan Singh, J.:- Petitioner has filed this revision petition under Article 227 of Constitution of India read with Section 83 (9) of Wakf Act, 1995 for setting aside the judgment and decree dated 28.02.2011 passed by Additional District Judge, Sonepat (hereinafter referred to as Wakf Tribunal), Whereby suit of the petitioner-Board for possession and mesne profit was dismissed by the Wakf Tribunal (For short ‘Tribunal’).

2. Petitioner-Board filed a suit for possession and mesne profit against the respondents in respect of khasra No.39 situated in the revenue estate of village Jamalpur Khurd, District Sonepat. Petitioner claimed ownership of the property and asserted that the respondents had taken illegal possession of the plot measuring 121.70 sq. yards comprised in khasra No.39 for the last three years. It was also pleaded that the plot was in unauthorized possession of the respondents. With this background, suit came to be filed.

3. Suit was contested by the respondents. Ownership of the petitioner-Board was denied. It was asserted by the respondents that one Ishwar Singh son of Shiv Lal sold the property to respondent No.2 for a sale consideration of Rs.95/-. Since then, respondent No.2 has been continuing in possession on the plot. Family has been residing in the suit land. Electric connection was got installed by respondent No.2 and necessary documentation in terms of ration card etc. was also done on the address of the suit property. The claim of the petitioner-Board was denied altogether. Tribunal dismissed the suit vide judgment and decree dated 28.02.2011. That is, how, the present revision petition came to be filed.

4. I have heard learned counsel for the parties.

5. The core question for consideration before this Court is whether the suit property is a wakf property or the same is owned and possessed by respondent No.2. In order to prove whether the suit property is wakf property or not, the petitioner got examined Subhash Chander, Kanungo Halqa as PW 2 who on the application of the plaintiff-petitioner had demarcated the suit property. Petitioner asserted that the suit property was found to be part of khasra No.39. The report of aforesaid Kanungo was discarded by the Court as he demarcated the property only after affixing two pucca points to carry out the measurements. The demarcation conducted by the aforesaid Local Commissioner was treated to be against the instructions issued by the Financial Commissioner (Revenue). There was no other cogent evidence led by the plaintiff-petitioner on record to prove that the suit property was a wakf property.

6. The site plan Ex.P2 prepared by PW 3 Mukesh Sharma was disbelieved on the basis of admission of the witness in cross examination that the same was prepared by him in his office at the instance of Patwari. The site plan Ex.P2 showed vacant wakf land on the eastern and western side of the suit. The document was not considered in the absence of formal proof so as to infer the suit property as a wakf property. Plaintiff-petitioner was required to stand on his own legs i.e. on the strength of its own evidence and was not supposed to draw any benefit out of the weaknesses of the defendants’ evidence.

7. The entire controversy hinges upon the legality and validity of the report submitted by the Local Commissioner i.e. Kanungo who tendered his report Ex.P7 and was also examined as PW2. PW 2 has admitted in his cross examination that he was directed by the Court to serve prior notices to the parties before conducting the demarcation. Asha Rani had refused to sign the notice Ex.P5, but he did not mention the factum of refusal by Asha Rani in the said notice. The witness further admitted that he did not issue any other notice to anyone except Wakf Board and Asha Rani. The witness did not know about Radha Krishan-defendant No.2 in the case, nor issue any notice to Radha Krishan. The witness admitted that in the title of the plaint, Radha Krishan was arrayed as defen