SARWAN SINGH Vs. SAWAR DEEN AND ORS.

JUDGEMENT

(1.) The 3rd defendant in suit before the Wakf Tribunal is the revision petitioner before this Court. The suit had been filed by Sawar Deen and Sadeek as residents of village Bariah to contend that the property is a kabristan and a notified wakf and the revenue entry relating to the property measuring 9 kanals 2 marals comprised in Khasra No. 31 situate in village Bariah and the entry made to an extent of 6 kanals as Chahi was erroneous. The whole property must have been shown only as a kabristan. The Wakf Board and the Estate Office were cited as defendant Nos. 1 and 2 and the revision petitioner before this Court, who had been a lessee of the property, was cited as 3rd defendant. The trial Court upheld the contention of the plaintiffs in part and granted an injunction restraining the defendants from using the land in dispute for any other purpose than the purpose for graveyard and preventing the plaintiff and other muslims from using the land for burial of dead bodies. The 3rd defendant, who is also the les-see is aggrieved of the decree passed by the Wakf Tribunal and is in revision before this Court. Learned counsel argues that the revenue entry which the plaintiff was seeking for correction was made in the year 1975-76 and the suit is barred by limitation in seeking for said correction on 24.05.2003. The further contention is that the property was never set apart as kabristan and therefore, the lease created by the Wakf Board cannot be in any way challenged and that in any event there was not even a prayer to challenge the lease executed by the Wakf Board. The Tribunal, therefore, was in error in causing a restraint order in the manner in which it has been done.

(2.) If there is a revenue entry which is erroneous, I do not think there is any issue of limitation that could be urged. A revenue entry which is wrong in law could be an entry which can be corrected any time, for revenue entry by itself does not create any right and it merely records an act consistent with its user. I will not, therefore, take an objection relating to the issue of limitation as worthy of acceptance. I will find, therefore, that suit cannot be decided on the issue of limitation.

(3.) However, I find that there is something much more fundamental about the nature of suit and the relief sought for in the plaint. The Wakf Act of 1995 that constitutes a Tribunal could adjudge a dispute regarding the character of property as wakf or not. There ought to be a contest on the nature of property. If the plaintiffs were contending for a position that it was not a wakf property and the defendants including the Wakf Board were entering a dispute that it was a wakf property then the adjudication could be on the character of property. If the plaintiffs made an assertion that it is a wakf property and the Wakf Board as the respondent also affirmed the same then there is no dispute that the Tribunal can decide. Section 6 of the 1995 Act in clause (1) reads thus:-