A property claimed as waqf must be registered; unregistered claims do not confer ownership rights, especially when encroaching on public land.

Hon'ble Rohit Ranjan Agarwal,J.

1. The petitioner before this Court had instituted an Original Suit No.9 of 2011 against defendants-respondents No.1 to 3 claiming relief of permanent prohibitory injunction restraining them from demolishing the property in dispute and making new construction over the same.

2. In the plaint, it was averred that plaintiff is the owner and landlord of the property mentioned in the map marked as ‘A’, ‘B’, ‘C’ and ‘D’. It has been let out to defendants No.1 and 2 on a monthly rent of Rs.34/- In para 2 of the plaint, it has been stated that in the aforesaid Madarsa, a Masjid has been constructed where poor children are given basic education and functioning of Madarsa depends upon contribution made. Further in para 3 of the plaint, it is stated that on the said property, a Police Chauki of P.S. Gagalheri is standing, and, as the new building of the police station has been constructed, the aforesaid police chauki has become out of use and a lock is hanging over the police chauki. Further it has been stated in para 4 that the defendants were removing the roof of the police chauki and were demolishing the structure standing therein.

3. The defendants-respondents contested the suit and filed their written statement on 08.03.2011 wherein only tenancy of Rs.34/- per month was accepted but rest of the contents of the plaint were denied. In the additional pleas, it was specifically stated in para 7 that the plaintiff had claimed the property to be a waqf property but the same has not been registered as a waqf before the Waqf Board, thus the plaintiff had no right to maintain the said suit.

4. During pendency of the suit, an amendment application was moved by the defendants on 12.11.2014 for amending their written statement. The said application was allowed by the trial Court on 22.5.2015 against which the petitioner preferred a Revision No.107 of 2015 which has been dismissed vide order dated 18.3.2016, hence the present writ petition.

5. Learned counsel for the petitioner submitted that by the proposed amendment, defendants are trying to withdraw from the admission made in their written statement, which would result in change of defence and would affect the suit proceedings. According to him, the proposed amendment could not be allowed as the defendants have set up a new case that the plaintiffs have no right to prosecute the matter as they are not the owner of the same. Reliance has been placed upon decision of Hon’ble Supreme Court in case of Hiralal vs. Kalyan Mal & Ors. 1998 AIR (SC) 618

6. Sri Sanjai Kumar Singh, learned Standing Counsel appearing for the respondents submitted that it is not a case of withdrawal of admission by the defendants. In fact, after filing of the written statement by the defendants in the year 2011, the defendants received a letter dated 18.9.2014 from Assistant Engineer, National Highway, P.W.D., Saharanpur requiring for removal of Police Chauki, which has been constructed on National Highway No.73, and according to the records, the width of highway is 135 ft.. The Highway was to be transferred to the National Highways Authority of India, Ministry of Road Transport and Highways, Government of India (hereinafter called as “NHAI”). Widening of the highways has been proposed by National Highways Development Programme, Phase-IV B. He then contended that another letter dated 26.9.2014 was received by the office of Assistant Engineer, National Highway Division, PWD, Saharanpur wherein it was requested that unauthorized construction, standing on National Highway No.73, should be immediately stopped. On 13.10.2014,