ADMINISTRATOR AQUAF, JAMMU Vs. DEVINDER KUMAR GUPTA

JUDGEMENT

(1.) ON 27/28 of April 2004, respondent herein instituted a Civil Suit against petitioner seeking to have them perpetually restrained from evicting him forcibly without adopting due course of law prescribed under Wakafs Act, which was contested by defendant -petitioner herein among others on the ground that trial court has no jurisdiction to try the suit in view whereof following issue was formulated on 8.12.2004: "1. Whether the jurisdiction of this court to hear and decide the suit is barred under section 62 of the Jammu and Kashmir Wakafs Act 2001" OPD" And after hearing parties thereupon decided the issue on 25.7.2005 against defendant/petitioner and assuming jurisdiction posted the case on 9.8.2005.

(2.) AGGRIEVED thereby the petitioner herein impugns the order mainly on the ground that learned trial Judge landed into an error by assuming jurisdiction in violation of section 62 of the Wakafs Act even while the judgments relied upon by him ad not apply to the case. During course of submissions while petitioners counsel has reiterate the contents of appeal, none is present to be heard for respondent who appears to have been proceeded against in exparte under interim order dated 1.2.2008 passed by a co -ordinate bench of this court. Similarly delay of one day involved in filing the appeal also appears to have been condoned by another coordinate Bench of this court on 20.11.2005.

(3.) I have heard petitioners counsel and considered the matter. It appears that plaintiffs case before trial court was that the land forming subject matter of the suit, admittedly being Wakaf property had been leased out to one Raj Paul in 1978 on a monthly rent of Rs. 100/ - who together with plaintiff started joint business of building material and furniture etc therein under name and style of "M/s Kundan Lal Raj Paul" where after he voluntarily retired from business with the result that same along with suit premises came under his occupation where he was currently carrying on business to earn livelihood and besides continuously paying rent on behalf of the original lessee namely Raj Paul was also a regular tax payer to different departments of the Government. It was also claimed that he sought regularization of his occupation of the premises from petitioner/authorities while also trying for transfer of land in his favour but still the defendant petitioner were trying to evict him without taking recourse to law. After consideration of the matter, learned trial Judge while recording satisfaction regarding possession of suit property by respondent -plaintiff and observing that the same was admittedly a wakaf property opined that no action whatsoever had been initiated by the authority prescribed under Wakafs Act for eviction of plaintiff the would be entitled to injunctive relief as sought by him, for which reliance was placed on following law declared by Honble Supreme Court in the judgment passed in "Lallu Yashwant Singh v. Rao Jagdish Singh (AIR 1968 SC page 620.) "It is well settled that where a person is in settled possession of the property; ever on the assumption that he has no right to remain on the property, he can not be dispossessed by the owner of the property, except by recourse to law."