Section 107 of wakf act 1995
Guest
(Querist) 26 October 2011
This query is : Resolved
pls guide me about Section 107 of Punjab Wakf Act. Also intimate me latest amendment in this Section and latest citation
on this section
ajay sethi
(Expert) 26 October 2011
Section 107 of the Wakf Act reads as follows:- "Nothing contained in the Limitation Act, 1963
shall apply to any suit for possession of immovable property comprised in any wakf or for possession of any interest in such property"
in other words if property belongs to wakf board , it can file suit for taking posession of said property and no defence can be raised that it is barred by limitation
ajay sethi
(Expert) 26 October 2011
www.indiankanoon.org/doc/265356
Punjab Wakf Board Through Is ... vs Arjun Dev Chawla And Others on 10 September, 2009
C.R. No.4672 of 2005 -1- IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
C.R. No.4672 of 2005
Date of Decision:10.09.2009
Punjab Wakf Board through is Estate Officer, Rohtak (Now Haryana Wakf Board).
.....Petitioner
Versus
Arjun Dev Chawla and others ...Respondents Present: Mr. Arun Palli, Sr. Advocate
with Mr. Jai Bhagwan, Advocate and
Mr. K. V. S. Kang, Advocate
for the petitioner.
CORAM:HON'BLE MR. JUSTICE K. KANNAN
1. Whether Reporters of local papers may be allowed to see the judgment ? Yes.
2. To be referred to the Reporters or not ? Yes.
3. Whether the judgment should be reported in the Digest?Yes. -.-
K. KANNAN J.(ORAL)
1. The order which is challenged in this civil revision is one passed by the Wakf Tribunal dismissing the suit filed by the Punjab Wakf Board through its Estate Officer for recovery of possession of the property in khasra no.7808 measuring 7 bighas 18 biswas situated at Gohana Road, Rohtak. The points that found favour with the Tribunal were that the suit was barred by limitation and that the plaintiff had not established his title to the property. The Tribunal held, while rejecting the evidence relied on by the Wakf Board that then had been a notification issued under Section 5(2) of the Wakf Act that the notification can not operate to affect the rights of defendants. C.R. No.4672 of 2005 -2- The right which the tribunal held as having accrued to the defendants were that they had shown themselves to be in possession over several number of years and therefore the Wakf Board not having shown to be in possession for 12 years from the date of filing of the suit had not been able to establish its ownership.
2. The learned counsel appearing for the Wakf Board has three submissions to make: one, there could be no claim to a bar of limitation institute for a suit instituted by Wakf Board by virtue of Section 107 of the Wakf Act. Two, the property which had been declared as Wakf in revenue records of the year 1946 and which stood confirmed by a notification which is made in the year 1978 evidenced the existence of a Wakf and once a Wakf it would not lose his character, whether it was used as such or not. Three, as last part of an argument if the plaintiff's right to title had been established it was unnecessary for the plaintiff to show 12 years' possession prior to the institution of the suit. On the other hand, the plaintiff's title can be non-suited by the defendants only by showing title in the defendants which was better than the plaintiff.
3. The contentions raised by the revision-petitioner would, therefore, require an examination of whether the plaintiff has been able to show his title to the property. The contention was that the source of title was lost in ambiguity and that it had been shown in the jamabandi of the year 1946-47 (Ex.PW2/A) that showed that property had been entered in the revenue records showing the character of property as shamlat deh with possession of Ahale Islam Gair Mumkin Kabristan. The notification was subsequently issued under the Wakf C.R. No.4672 of 2005 -3- Act on 6.5.1978 under Ex.PY which depicts khasra No.7808 besides other khasra numbers as graveyard and that had been vested in the Wakf Board by virtue of notification dated 17.4.1978. The Section 5 which deals with publication of the Wakf Act shall itself be a resultant act to a survey which shall be done under Section 4 of the Wakf Act. The preliminary surveys of Wakf would require a State Government to appoint a Survey Commissioner of Wakfs and other Deputies to make field inspection and identify the actual dedication. It is only after the preliminary survey that a publication could be issued under Section 5 of the Wakf Act. Section 6 Clause 4 itself makes the list of Wakf as it is notified to be final and conclusive unless it is modified in pursuance of a decision of tribunal. The publication would obtain a statutory presumption as to its correctness and the presumption that all official acts are properly done would avail to the Wakf also under Section 114 of the Indian Evidence Act. By virtue of the entry in the revenue records of the year 1946 coupled with a notification under the Wakf Act, the title to the property as Wakf shall be taken as sufficiently established. The finding to the contrary by the the Wakf Tribunal below would, therefore, require to be set aside.
4. The subsequent issue would be whether the defendants who were admitted to be in possession of the property could be directed to hand over the possession of the same to the plaintiff. Parma Nand Lal Charitable Society claims the property as belonging to it. It is admitted that it has created lease in respect of lands surrounding the building that it had put up. The Articles 64 and 65 of the Limitation Act of 1963 was a departure from the earlier enactment of the C.R. No.4672 of 2005 -4- Limitation Act of 1908. Article 64 refers to a suit for possession of immovable property based on previous possession and not on title, while Article 65 refers to possession of immovable property based on title. The period of limitation is 12 years when the possession of defendants becomes adverse to the plaintiff. The legal consequence of the language employed under Article 65 is that a suit filed on title can fail only if the defendant establishes his possession and shows that it has become adverse to the plaintiff. In other words, the plaintiff need not to show possession within a period of 12 years if it is based on title. On the contrary, it shall be the defendant who shall show his possession to have prescribed title. In this case, the tribunal misdirected itself to examining that the plaintiff had not established its possession for 12 years prior to suit. On the other hand, the inquiry which the tribunal must have undertaken was whether the defendant was able to establish that it had prescribed title to the property. Such a prescriptive right against Wakf Board itself is barred statutorily under Section 107 of the Wakf Act reads as follows:- "Nothing contained in the Limitation Act, 1963
shall apply to any suit for possession of immovable property comprised in any wakf or for possession of any interest in such property"
The plaintiff could not have been therefore non-suited by any claim of defendant under adverse possession, unless such adverse title had been acquired by the defendant even prior to the commencement of the 1963 Act.
5. Learned counsel appearing for the Wakf Board has other C.R. No.4672 of 2005 -5- contentions as well that the property which had become vested with the Custodian under Section 11 of the Administration of Evacuee Property Act would have the effect of the custodian to hold the property in trust for the trustee by the Wakf. The constitution of the Wakf itself and its notification on the Wakf Act will enable the transfer of ownership in favour of the Wakf. Reference was made to the decision of the Hon'ble Supreme Court in Punjab Wakf Board Vs. Nath Singh 1988 PLJ 10 that held that Wakf property could vest in a Wakf Board in the same manner and in the same effect as a trustee of such property for purposes of sub-section 1 of Section 11 of Administration of Evacuee Property Act with effect from the date of such entrustment. The actual date of entrustment is not specifically pleaded or proved but, in my view, it will have no bearing by virtue of the fact that notification had been issued in the year 1978 after a due survey of Wakf and Wakf Board itself through duly appointed trustees shall have a right of control over the property. Learned counsel refers to a decision of Hon'ble Supreme Court in Syed Mohd. Salie Labbai (Dead) by Lrs and others Vs. Mohd. Hanifa (Dead) by Lrs and others, AIR 1976 Supreme Court 1569 that once a Kabristan has been held to be a public grave-yard, then it vests in the public and constitutes a Wakf and it cannot be divested by not-user but will always continue to be so whether it is used or not. The corollary to this judgment is that if a property could have shown to have been dedicated to a Wakf, its mere non-user as such will not divest its character as Wakf. The suit for a declaration that it is a Wakf property and for a recovery of possession in a case where the defendant had not C.R. No.4672 of 2005 -6- established any independent title to the property by any manner of law is entitled to succeed. The relief of injunction against further alienation would also be required to be upheld in favour of the plaintiff for, the defendants are found to be not in any manner legally entitled to the property and cannot fetter the plaintiff's entitlement or indulge in any act that can jeoparadise the interest of the plaintiff. The plaintiff had sought for an injunction in a mandatory form for removal of construction and possession. The plaintiff shall be so entitled.
6. The revision petition is allowed in the above terms. There shall be no order as to costs.
( K. KANNAN )
JUDGE
September 10, 2009
ashish
Shonee Kapoor
(Expert) 26 October 2011
Ld. Mr. Sethi is right as always.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
prabhakar singh
(Expert) 26 October 2011
Well n appropriate guidance given by Mr.Sethi.
