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HIMACHAL PRADESH HIGH COURT
Mansoor Ahmad Mir C.J., and Sandeep
Sharma, J.
H.P. Waqf Board —Petitioner
versus
Khwaja Khallilula and Anr. —Respondents
CR No.134 of 2015
Decided on 12.1.2017
Counsel for the Parties:
For the Petitioner:Mr. B.C. Negi, Senior Advocate, with Mr. Raj Negi, Advocate
For the Respondents:Mr. Khaja Mohiuddin, Advocate
IMPORTANT POINT
Court cannot travel beyond pleadings and particulars.
Headnote:Wakf Act, 1995—Section 6—Suit for declaration and possession—Dismissal of suit filed by Wakf Board—Plaintiff-Board has filed suit for declaration to the effect that Board is owner of suit property and also for consequential relief of possession—Neither there are pleadings nor there is iota of proof on record to the effect that suit property was ever declared as Wakf property or it was notified as such—It is also not known whether plaintiff-Board had followed mandate of provisions of Wakf Act and also followed mechanism contained in the Act for declaring the suit property as Wakf property—Court cannot travel beyond pleadings and particulars—Pleadings and particulars are necessary in order to enable Court to decide rights of parties in a trial—Plaintiff-Board has also failed to plead and prove that suit property, being Wakf property, was in its possession at any point of time—There is no averment in plaint or evidence led by plaintiff to the effect that suit property had ever remained in its possession—Besides, suit is highly barred by time—Petition dismissed. (Paras 20, 22, 23, 25, 40, 44 and 46)
Result: Petition dismissed.
Mansoor Ahmad Mir, C.J.—This Civil Revision Petition under Section 83(9) of the Wakf Act, 1995, (for short, the Act), is directed against the judgment and decree passed by Wakf Tribunal, Shimla in Civil Suit No.19-S/1 of 2008, dated 19.3.2015, whereby the suit of the plaintiff-H.P. Wakf Board has been dismissed, (for short the impugned judgment).
2. Plaintiff/H.P. Wakf Board filed a suit for declaration and possession on the averments contained in the plaint and claimed the following reliefs:—
“i) A decree for declaration may be passed in favour of the plaintiff-Board and against the defendants declaring the plaintiff-Board to be the absolute owner in possession of the suit property i.e. four shops bearing No.2 to 5 as entered in Khasra No.200 old and new 218 situated in Middle Bazar, Shimla as per Jamabandi for the year 2002-2003 of Mohal Bara, Shimla, Tehsil Shimla. It is further prayed that the entries showing defendants to be in possession of the suit property on the basis of settlement notings 36 and 37 and the attestation of the mutation dated 25.3.1992 to be declared null and void, illegal, inoperative, against the right, title, interest of the plaintiff-Board.
ii). That decree for possession may be passed in favour of the plaintiff-Board and against the defendants with respect to suit property entered in Khewat No.1 Min. Khatauni 104, Khasra No.200 (old) and 218 (new) measuring 40-38 Sqr. Meter, four shops situated at Mohal Bara Shimla, Tehsil Shimla (Urban), Distt. Shimla as per Jamabandi for the year 2002-2003 as shown in the site plan attached herewith and described in the valuation report.”
3. Facts of the case, as pleaded in the plaint, are that as per Khasra Paimaish 1907, the suit property was owned and possessed by one Kabirjoo, son of Ataljoo, caste Kashmiri and in the remarks column, the possession of the suit property i.e. shops was with the custodian being Muslim property. It was further averred that the revenue agency, vide notes No.36 and 37 entered in Khasra Paimaish of 1907, illegally and without following the due process of law, transferred the suit property in favour of defendants/respondents. It was further averred that the entries were made in favour of the defendants in Khasra Paimaish of 1907 on the basis of statement of one Abdul Gafar Wani and death certificate of Iqbal Begum, who died on 6th June, 1982. Mutation in respect of suit property was entered in favour of the defendants on 20th February, 1992 in the presence of Abdul Gafar Wani. It is also pleaded that in the note, it was mentioned that the owner of the property had died on 5th September, 1975 and was issueless.
4. The plaintiff-Board further averred that the said Kabirjoo had executed a Wakf Nama on 12th August, 1928 in faovur of the plaintiff-Board, and on the basis of this Wakf Nama, the plaintiff pleaded that the suit property was Wakf property and was possessed by the plaintiff.
5. On such averments, the plaintiff has laid challenge to the mutation, dated 20th February, 1992, and sought the decree of declaration and possession.
6. Defendants contested the suit and filed joint written statement. Thereafter, defendant No.1 filed amended written statement after seeking leave and the plaintiff filed rejoinder thereto. Preliminary objections, such as, the suit being not maintainable, plaintiff had no locus standi etc. etc., were taken. On merits, it was admitted that Kabirjoo was the owner of the suit property and after his death, the same was inherited by his daughter Iqbal Begum and the defendants, being the legal heirs of Iqbal Begum, are the owners of the suit property. Therefore, it was pleaded that the entries were rightly made in favour of the defendants. It was denied that Kabirjoo had executed Wakf Nama in favour of the plaintiff-Board. It was also denied that suit property was in the possession of the plaintiff or the Custodian department.
7. On the pleadings of the parties, the following issues were framed by the
