The Wakf Tribunal has exclusive jurisdiction over properties classified as Takia, graveyard, and Maszid, which are deemed public graveyards and cannot be divested by non-user.

JUDGMENT :

Sureshwar Thakur, J.

1. Through the instant civil revision the petitioner seeks the quashing and setting aside of the impugned judgment and decree dated 25.11.2013, passed by Addl. District Judge (Tribunal Constituted under Section 83 of the Wakf Act, 1995), Kapurthala, (hereinafter referred to as ‘the Tribunal’) whereby, the learned Tribunal accepted the suit for declaration and permanent injunction and the defendant No. 1 therein (petitioner herein) was restrained from interfering into the peaceful possession of the plaintiff over the property, in dispute illegally and forcibly.

Facts of the case

2. The Punjab Wakf Board instituted a suit for declaration and permanent injunction to the effect that Punjab Wakf Board is the owner of the property in dispute and is in possession through its tenants and suit for permanent injunction restraining defendant No. 1 (petitioner herein) from interfering illegally and forcibly.

3. The said suit decreed vide impugned judgment dated 25.11.2013, for declaration and permanent injunction and the defendant No. 1 (petitioner herein) was restrained from interfering into the peaceful possession of the plaintiff over the property, in dispute illegally and forcibly.

4. The question of law which requires determination relates to the jurisdiction of the Additional Commissioner to make Annexure A-1, besides relates to whether the jurisdictional competence became vested in the Tribunal constituted under Section 3 of the Wakf Act, 1995.

5. The dispute relates to the purported illegal occupation being made of the suit property which has been declared in Ex.P-4 as became referred in the judgment passed by the Tribunal concerned, as Takia, graveyard and the Maszid, and the said was donated by Maharaja Kapurthala. In consequence, to the said entry vide notification dated 11.09.1971, the disputed property was given to the Wakf Board. The said notification is referred in the verdict drawn by the Tribunal as Ex.P-3.

6. The aggrieved filed an application for correction of the (supra) entries before the Revenue Authorities concerned, but their application as well as their appeal became dismissed. The said dismissal orders become referred in the verdict drawn by the Tribunal concerned, respectively as Ex.R-2 and as R-3. In the verdict of the Tribunal an unrefuted observation occurs that the Gram Panchayat had admitted that the property in dispute was given by the Maharaja Sahib, Kapurthala to Nikke Sha, Slamat Sha sons of Sube Shah on 14 Katak 1922. Furthermore, an unrefuted observation also occurs therein that both the (supra) on the happening of the partition of India, migrated to Pakistan. Subsequently, the land was mutated in the name of the Gram Panchayat. However, after partition a re-survey was conducted in the year 1966, and the apposite Misl Haqiat referred to as Ex.P4 in the verdict drawn by the Tribunal concerned, became prepared wherebys in the ownership column the State was declared to be the owner, whereas, in the relevant classification column the property was described as Maszid, graveyard and Takia.

7. The (supra) revenue entry describing the disputed property as Gair Mumkin Maszid, Takia as well as graveyard, resulted in the Wakf Tribunal, thus passing the impugned judgment.

8. The impugned judgment is grooved in the verdict made by the Apex Court in case titled as Syed Mohd. Salie Labbai (dead) by LRs and others V. Mohd. Hanifa (dead) by LRs and others, and to which Civil Appeal Nos. 1223-1224, and Civil Appeal No. 2026 of 1968 becomes assigned.

9. The rules underlined therein for determination whether a graveyard is a public or a private one become extracted hereinafter:

“We are of the view that once a Kabarstan has been held to be a public graveyard then it vests in the public and constitutes a wakf and it cannot be divested by non-user but will always continue to be so whether it is used or not.

The following rules in order to determine whether a graveyard is a public or a private one may be s