SARDAR SINGH Vs. PUNJAB WAKF BOARD, AMBALA CANTT

JUDGEMENT

(1.) This judgment will dispose of the present appeal and the connected Regular Second appeal No. 1873 of 1970, as the points involved in both the appeals are the same. For the purpose of facility, the facts pertaining to Regular Second Appeal No. 1872 of 1970 shall be noticed. The Punjab wakf Board, Ambala Cantt, filed a suit against Sardar Singh appellant for possession of the property, which was described as Mosque No. 4668. The allegation of the plaintiff -respondent was that the appellant had illegally occupied the Mosque in the year 1948.49, and the Mosque being wakf property vested in the respondent, the appellant was a trespasser. The respondent, therefore, claimed possession of the suit property. The suit was resisted by the appellant on various grounds. On merits, his plea was that he had taken lawful possession of the property after migrating to India in the year 1947, and had remained in possession thereof since then. Thus, he had acquired ownership of the property by way of adverse possession. The competence of the respondent 10 file the present suit as well as the nature of the property, were also disputed. The trial Court framed the necessary issues to cover the points in controversy. After considering the material produced by the parties on the record, the trial Court decided crucial issues Nos. 2 and 3 against the plaintiff -respondent though issue No. 1 was found in its favour. The suit was, therefore, dismissed. The Wakf Board, however, preferred an appeal against the decision of the trial Court, which was heard by the District Judge, Ambala. The learned District Judge reversed the findings of the trial Court on issues Nos. 2 and 3, and in consequence thereof, decreed the suit of the respondent in terms of the prayer. The present Regular Second Appeal has been filed, in order to impugn the judgment and decree of the lower appellate Court

(2.) Mr. H.L. Sarin, Learned Counsel for the appellant has made two basic submissions in this appeal, which may be noticed hereunder. The first contention of Mr. Sarin, which relates to the finding on issue No. 1, is that the lower appellate Court had not given due consideration to the provisions of Sec. 11 of the Administration of Evacuee Property Act. 1950 Under the said provision, where any evacuee property which has vested in the Custodian, is property, in trust for a public purpose of a religious or charitable nature, it shall be lawful for the Central Government, notwithstanding any provision to the contrary, to appoint new trustees in place of the evacuee trustees and the property shall remain vested in the Custodian only until such time as the new trustees are so appointed. The argument is that admittedly the property in dispute had vested in the Custodian, and this was also the finding of the lower appellate Court. That being so, it was incumbent upon the Central Government to appoint new trustees, in order to carry out the affairs connected with the trust in question. However, there was no evidence on the record to show that this had been done. The plaintiff -respondent Wakf Board was, thus, not competent to bring the present suit for recovery of the property in dispute. Mr. Sarin relies under Prithipal Singh v/s. Punjab Wakf Board and another, (1977) 79 P.L.R. 3 (S.N.):, 1977 P.L.J. 271 in support of argument, wherein the legal position as noticed above, was inter by a learned Single Judge, O.P. Chinnappa Reddy, J. Hon'ble Judge the Supreme Court). Mr. Sarin, has also referred to the Division Bench decision, reported in Khusi Ram, etc. v/s. Punjab Wakf Board, 1980 C. J. (Civil) 401 in which the law as enunciated in Prithlpal Singh's case (supra) was affirmed. The objection in regard to the non appointment of new trustees by the Central Government after the property had vested in the Custodian, has not been refuted by the Learned Counsel for the respondent, nor could it have been done, in view of the complete lack of evidence on the point. The suit of the respondent had to fail on this ground alone.

(3.) On the question of adverse possession, Mr. Sarin has rightly relied upon the finding of the trial Court in favour of the appellant. However, tin so far as the lower appellate Court is concerned, it had ignored the finding on the ground that the property had vested in the Wakf Board and, therefore, the question of adverse possession, would not arise. These observations of the lower appellate Court are not justifiable. There is absolutely no evidence on the record to show that the property in dispute had been transferred by the Custodian Department, in favour of the Wakf Board in the year 1961, as wrongly accepted by the lower appellate Court. The notification in this behalf (copy Exhibit P/6) has nothing to do with the transfer of the property. On the other hand the crucial witness produced by the respondent Board, namely, Krishan Lal (P.W. 1) categorically admitted in his cross -examination that there was no mention in the records, of any dedication or transfer of the property in dispute to the Wakf Board by anyone. The finding of the trial Court in regard to issue No. 2 that the property in dispute is not proved to be a Wakf Property is, therefore, quite correct and the conclusion arrived at by the lower appellate Court to the contrary, is obviously wrong.