Judgment:
ORDER
N.K. Kapoor, J.
1. Briefly stated the Punjab Wakf Board (hereinafter referred to as 'the Board') filed a suit for possession in respect of land fully detailed in the heading of the plaint claiming to be its owner being a graveyard from the time immemorial. The plaintiff further averred that the defendants without any right or authority have constructed a building over the said property sometime in the year 1951-52 and so their possession is that of the trespasser who, thus, in law, are bound to surrender its possession to the Board-its true owner.
2. State of Punjab put in appearance, filed written statement and controverted the various averments made in the plaint.
3. Punjab State Electricity Board too contested this suit and denied all the material averments of the plaintiff-board and claimed themselves to be owner of the suit property. Besides these, Punjab State Electricity Board raised objections with regard to the plaint having not been signed and verified by a duly authorised person, the suit having not been properly instituted, that the suit is bad for misjoinder of parties etc...................
4. On the pleadings of the parties, the following issues were framed : -
1. Whether the management and control of the property in dispute vests in the plaintiff OPP.
2. Whether the suit property has been acquired by the State and its compensation has been paid If so, its effect? OPD
3. Whether the defendants ate in adverse possession OPD.
4. Whether the proper court fee has not been paid OPD.
5. Relief.
5. The trial court vide judgment dated 12 1.1976 held that the management of the property did not vest in the Board and that the land in suit has been duly acquired by the Punjab State for the Electricity Board who in fact has become owner by adverse possession as well. Resultantly, the suit of the plaintiff was dismissed.
6. Before the lower appellate court, the matter was once again examined in the light of submissions made by the appellant The lower appellate court re-affirmed the findings on issue No.. 1 on the ground that there is no direct evidence of dedication, or of user since time immemorial and thus the plea that the land in dispute forms part of a graveyard is without any merit. The appellate court specifically came to the conclusion that khasra No. 21 was never entered in revenue papers as a burial ground. Under issue No. 2 the lower appellate court came to the conclusion on the basis of gazette notification Exhibit D-1, award Exhibit D 2 and other documents en record that in fact the Punjab State under the Patiala Acquisition Act, 1995 BK acquired the land measuring 221 bighas 5 biswas including the land comprised in khasra Nos. 394 and 395. The Court farther came to the conclusion that compensation had been duly paid to the shamlat holders and thus affirmed the finding in respect of issue No. 2.
7. Even as regards the finding on issue No. 3, i. e. whether the defendants are in adverse possession, the court came to the conclusion that the Electricity Board raised constructions upon the land in dispute in the year 1951 52 whereas the present suit for possession has been filed on 27 1.1969 i. e., after a gap of more than 12 years and thus decided this issue in favour of the defendants and against the plaintiff. This way the appeal too was dismissed by the Additional District Judge vide order dated 5 12.1978.
8. Before me, the learned counsel for the appellant has assailed the findings of the courts below terming these to be wholly erroneous on the ground that the revenue entries clearly record the suit land as a gair mumnin Kabaristan and Masjid, which itself is a conclusive proof of the fact that it is a public graveyard. This way the courts below have clearly erred in comprehending the matter in controversy. In support of his contention, counsel relied upon Syed Mohammed Salie and Ors. v. Mohammed Hanifa, A. I. R. 1976 S. C. 1569. I find sufficient merit in the contention of the learned counsel for the appellant yet the matter is not free from other hurdles, i. e. proof of acquisition of land in dispute by the State of Punjab by gazette notification Exhibit D-1, award Exhibit D-2. The State of Punjab acquired the land measuring 221 bighas 5 biswas including the land comprised in khasra Nos. 394 and 395 for the Punjab State Electricity Board and paid the amount of compensation vide Exhibit D-4. Admittedly these acquisition proceedings have not been challenged by the appellant in the present suit or before any other competent authority earlier. Thus, in view of the findings of the courts below in respect of issue No. 2 the appellant can hardly be said to be entitled to possess a right to file the present suit. Even otherwise, as per the averments made by the appellant, the Punjab State Electricity Board respondent No. 3 raised construction upon the land in the year 1951-52 whereas the present suit was filed in the year 1969, i. e after a gap of about 17 years. As held in Panchayat Deh v. Punjab Wakf Board, and Anr., (1969) 71 P. L. R. 1081 even Wakf property can be adversely possessed. For this view, the court relied upon the Full Bench Judgment of Lahore High Court in Masjid Shahid Ganj v. Shiromani Gurdwara Parbandak Committee, Amritsar, (1938) 40 P. L. R. 319(F.B.) (head note B') :-
'The title of a person claiming adverse possession over dedicated property rests not on Mahomedan or Hindu Law but on the law of limitation and prescription as it prevails in British India and if personal law has been modified by the statute of limitation, the courts in British India have no option but to give effect to that statute. Hence a mosque can be adversely possessed. It is difficult to see why the building of a mosque or its site cannot be looked upon as 'property' merely because the 'mosque' has been held to be capable of suing or being sued as a 'juristic' person. A mosque is the house of God but is not the deity. A mosque as a building is clearly property.'
9. Accordingly I find no merit in the appeal and thus dismiss the same. The parties are, however, left to bear their own costs.