Date of Decision:2.7.2014 Vs. M/S Greater Ashoka Land Development Company - Court Judgment

SooperKanoon Citationsooperkanoon.com/1153925
CourtPunjab and Haryana High Court
Decided OnJul-02-2014
AppellantDate of Decision:2.7.2014
RespondentM/S Greater Ashoka Land Development Company
Excerpt:
rs.no.1135 of 1997 1 in the high court of punjab and haryana at chandigarh rs.no.1135 of 1997(o&m) date of decision:2.7.2014 punjab wakf board …appellant versus m/s greater ashoka land development company .....respondent coram: hon'ble mr.justice hemant gupta present: mr.j.s.bhatia, advocate for the appellant. none for the respondent. ****** hemant gupta, j.(oral) the plaintiff is in second appeal aggrieved against the judgment and decree passed by the learned trial court on 20.05.1989 whereby suit for declaration claiming ownership of land comprising in killa no.17(5-5).23(8-0).24(8-0) of rect. no.37, situated in the revenue estate of village sarai khwaja, tehsil and district faridabad was dismissed. the appeal against the said judgment and decree was also dismissed on 19.12.1996. the plaintiff filed a suit for declaration with consequential relief of permanent injunction claiming that the suit land is gair mumkin kabristan and that the defendant is encroacher on the said land. the defendant on the other hand asserted that it is private property and is in his possession as owner. the defendant denied that the khasr.number prior to consolidation was 262, it was alleged to be 210. the defendant also raised a plea that the suit was barred by the principles of res judicata in as much as one irshad ahmed earlier filed a suit in representative capacity which was dismissed on 21.08.1986 by the learned trial court, the firs.appeal was dismissed on 13.12.1986. diwakar gulati 2014.07.04 12:12 i attest to the accuracy and integrity of this document rs.no.1135 of 1997 2 learned counsel for the appellant has vehemently argued that the land in dispute is described as gair mumkin kabristan in the jamabandis for the year 1944-45 (ex.p3).1954-55 (ex.p4).1956-57 (ex.p5).1960-61 (ex.p6).1965-66 (ex.p7).1970-71 (ex.p8).1980-81 (ex.p10).therefore, in terms of the judgment of this court in punjab wakf board versus chhailu, 1986 plj455 such land would vest with the plaintiff-appellant and the non- user of the same for the purpose of a public graveyard will not render the property as non-wakf property. reference is also made to judgment of this court in punjab wakf board, ambala cantt versus punjab state through the collector, hoshiarpur, 1997(3) plr155 ram rattan (deceased through his lrs.versus punjab wakf board, ambala cantt., 2013 (130) aic523 abdul rehman versus khuda bax and others.2000(3) plr743and punjab wakf board versus smt. simli, 1992(2) rrr377 i have heard learned counsel for the appellant and find no merit in the present appeal. no doubt the judgments are to the effect that non-user of the land for the purpose of public graveyard will not render it to be non- wakf property but the fact remains that both the courts have dismissed the suit relying upon earlier judgment and decree whereby representative suit claiming the property to be vesting in the muslims being a gair mumkin kabristan remained unsuccessful. such judgment and decree passed by learned trial court is ex.d1. the issue framed in the aforesaid suit is whether the plaintiffs along with other muslim residents of the area are owners of the land in suit. on the said issue, the plaintiff has produced the jamabandies for the year 1939-40, 1954-55 (ex.p4) and 1970-71 (ex.p8).the learned trial court in the said suit has returned a finding that right from the year 1947, the land is not being used as a graveyard. it has also been found that roads are also in existence in the part of the land. it was thus held that long non-user by the diwakar gulati 2014.07.04 12:12 i attest to the accuracy and integrity of this document rs.no.1135 of 1997 3 muslim community of the land as graveyard is sufficient to dislodge the presumption of possession of ahle islam. the judgment of this court in chhailu’s case (supra) was available when the second appeal arising out of the representative suit came up for hearing on 29.09.1987. since the decree in the earlier suit was in representative capacity, therefore, the decree would be binding on all the persons, claiming same or similar rights including the present plaintiff. it is not open to the plaintiff to re-agitate the issue based upon the judgment in another case. the issue having been raised and decided in a representative suit earlier, the said judgment and decree would be binding on the wakf board as well. in view thereof, i do not find any substantial question of law arises for consideration in the present regular second appeal. dismissed. (hemant gupta) judge july2 2014 ‘d. gulati’ diwakar gulati 2014.07.04 12:12 i attest to the accuracy and integrity of this document
Judgment:

Rs.No.1135 of 1997 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Rs.No.1135 of 1997(O&M) Date of decision:2.7.2014 Punjab Wakf Board …Appellant VERSUS M/s Greater Ashoka Land Development Company .....Respondent CORAM: HON'BLE Mr.JUSTICE HEMANT GUPTA Present: Mr.J.S.Bhatia, Advocate for the appellant.

None for the respondent.

****** HEMANT GUPTA, J.(Oral) The plaintiff is in second appeal aggrieved against the judgment and decree passed by the learned trial Court on 20.05.1989 whereby suit for declaration claiming ownership of land comprising in Killa No.17(5-5).23(8-0).24(8-0) of Rect.

No.37, situated in the revenue estate of village Sarai Khwaja, Tehsil and District Faridabad was dismissed.

The appeal against the said judgment and decree was also dismissed on 19.12.1996.

The plaintiff filed a suit for declaration with consequential relief of permanent injunction claiming that the suit land is Gair Mumkin Kabristan and that the defendant is encroacher on the said land.

The defendant on the other hand asserted that it is private property and is in his possession as owner.

The defendant denied that the KhaSr.Number prior to consolidation was 262, it was alleged to be 210.

The defendant also raised a plea that the suit was barred by the principles of res judicata in as much as one Irshad Ahmed earlier filed a suit in representative capacity which was dismissed on 21.08.1986 by the learned trial Court, the fiRs.appeal was dismissed on 13.12.1986.

Diwakar Gulati 2014.07.04 12:12 I attest to the accuracy and integrity of this document Rs.No.1135 of 1997 2 Learned counsel for the appellant has vehemently argued that the land in dispute is described as Gair Mumkin Kabristan in the Jamabandis for the year 1944-45 (Ex.P3).1954-55 (Ex.P4).1956-57 (Ex.P5).1960-61 (Ex.P6).1965-66 (Ex.P7).1970-71 (Ex.P8).1980-81 (Ex.P10).Therefore, in terms of the judgment of this Court in Punjab Wakf Board versus Chhailu, 1986 PLJ455 such land would vest with the plaintiff-appellant and the non- user of the same for the purpose of a public graveyard will not render the property as non-Wakf property.

Reference is also made to judgment of this Court in Punjab Wakf Board, Ambala Cantt versus Punjab State through the Collector, Hoshiarpur, 1997(3) PLR155 Ram Rattan (deceased through his LRs.versus Punjab Wakf Board, Ambala Cantt., 2013 (130) AIC523 Abdul Rehman versus Khuda Bax and otheRs.2000(3) PLR743and Punjab Wakf Board versus Smt.

Simli, 1992(2) RRR377 I have heard learned counsel for the appellant and find no merit in the present appeal.

No doubt the judgments are to the effect that non-user of the land for the purpose of public graveyard will not render it to be non- Wakf Property but the fact remains that both the Courts have dismissed the suit relying upon earlier judgment and decree whereby representative suit claiming the property to be vesting in the Muslims being a Gair Mumkin Kabristan remained unsuccessful.

Such judgment and decree passed by learned trial Court is Ex.D1.

The issue framed in the aforesaid suit is whether the plaintiffs along with other Muslim residents of the area are owners of the land in suit.

On the said issue, the plaintiff has produced the Jamabandies for the year 1939-40, 1954-55 (Ex.P4) and 1970-71 (Ex.P8).The learned trial Court in the said suit has returned a finding that right from the year 1947, the land is not being used as a graveyard.

It has also been found that roads are also in existence in the part of the land.

It was thus held that long non-user by the Diwakar Gulati 2014.07.04 12:12 I attest to the accuracy and integrity of this document Rs.No.1135 of 1997 3 Muslim Community of the land as graveyard is sufficient to dislodge the presumption of possession of Ahle Islam.

The judgment of this Court in Chhailu’s case (supra) was available when the second appeal arising out of the representative suit came up for hearing on 29.09.1987.

Since the decree in the earlier suit was in representative capacity, therefore, the decree would be binding on all the persons, claiming same or similar rights including the present plaintiff.

It is not open to the plaintiff to re-agitate the issue based upon the judgment in another case.

The issue having been raised and decided in a representative suit earlier, the said judgment and decree would be binding on the Wakf Board as well.

In view thereof, I do not find any substantial question of law arises for consideration in the present Regular Second Appeal.

Dismissed.

(HEMANT GUPTA) JUDGE JULY2 2014 ‘D.

Gulati’ Diwakar Gulati 2014.07.04 12:12 I attest to the accuracy and integrity of this document