PETITIONER:
ANAYATULLAH AND ORS.
Vs.
RESPONDENT:
COMMISSIONER OF MUSLIM WAKF OF JAMMU
DATE OF JUDGMENT07/02/1991
BENCH:
KULDIP SINGH (J)
RAMASWAMY, K.
CITATION:
1991 SCR (1) 253 1991 SCC Supl. (1) 396
JT 1991 (1) 326 1991 SCALE (1)152
ACT
Jammu and Kashmir Wakf Act, 1959: Ziarat Shareef of Hazrat Baba Ibrahim Wakf-Grant of lands-Government orders dated September 22, 1955 and November 29, 1958-Interpretation of Whether in favor of Ziarat or the Manager personally- Manager/Trustee of religious shrine in possession of trust property-Whether can assert adverse title.
Civil Procedure Code, 1908: Section 100- Interference by High Court in second appeal-Whether justified.
HEADNOTE
The Ziarat Shareef of Hazrat Baba Ibrahim, a holy place of worship, in the Rakhbahu area of Jammu City was granted certain land to the Ziarat by the State Government vide two orders dated September 22, 1955 and November 29, 1958. The Ziarat was being managed by the 1st appellant and his brothers, since the death of their father in 1963. The Committee of Muslim Wakf, incorporated under the Jammu and Kashmir Muslim Wakf Act, which came into force in 1959, file a suit for restraining them from alienating, raising construction or recovering the rent from the Wakf land in dispute vested in the Ziarat, on the allegation that the appellants-defendants were treating the lands granted to the Ziarat, as their personal property and mismanaging and also alienating the same.
Resisting the suit, the appellants, defendants contended, inter alia, that notwithstanding the use of the word "Ziarat" in the two Government orders the transfer of the land in dispute was in their father’s favour in his personal capacity, in lieu of his possessory right over about 400/500 kanals of land which was taken over by the Government, and not in the form of any dedication, and as such the land was not the property of the Ziarat but their father’s absolute property, and had devolved upon them by succession and, therefore, they had the right to deal with the property in any manner they liked.
The trial court dismissed the suit, holding that the two grants were in fact made in favour of defendants’ father and not the Ziarat.
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The first appellate court upheld the trial court’s findings.
However, in second appeal, the High Court held that from the recitals of the two orders of the Government of 1955 and 1958 it was clear that the two grants were in favour of the Ziarat. Hence, the appellants-defendants filed the appeal, by special leave before this Court contending that the High Court had erred in upsetting the findings of the courts below, based on appreciation of the evidence that, as a fact, the appellants-defendants were the owners of the property, the subject matter of the Government grants.
Dismissing the appeal, the Court,
HELD: 1.1 The two orders of the Government dated September 22, 1955 and November 29, 1958 are absolutely clear and unambiguous and can admit one and only one interpretation that the Government intended to grant the land to the Ziarat alone and not to the appellants defendants in their personal capacity. In fact the names of the appellants -defendants or their ancestors are not even mentioned in the two orders. The order of 1955 specifically stated that the lands in Rakhbahu surrounding the Ziarat Shareef of Baba Ibrahim Shah be granted to the said Ziarat permanently. The later order of 1958 also says the same thing. It is nowhere mentioned in any of those orders that the land was given not to the Ziarat but to the father of the appellants defendants, who was Majawar of the Ziarat, either in his personal capacity or in lieu of compensation for his personal lands acquired by the Government. [259A, B-C]
1.2 A manager or a trustee in possession of a religious shrine cannot be allowed to assert a hostile title unless he formally surrenders possession to the lawful authority. [260B]
In the instant case, there was no justification for the appellants-defendants to cast their covetous eyes on the property of the Ziarat, taking advantage of their possession over the same, which was as managers or trustees and assert a hostile title to it. Even if they were in possession of the lands, it would have to be referable to a lawful title and cannot be treated to be adverse to the Ziarat. In other words, the possession would be for. the benefit of the Ziarat. [259H, 260A, E]
1.3 In the face of clear and unambiguous terms of the Government orders, it was not permissible for the appellants-defendants to adduce evidence to show that the grant was made to them and not to the
255 Ziarat. The question was of interpretation of two Government orders, which was essentially a question of law. [260G]
In the circumstances, the High Court was not in error in upsetting the findings of the courts below. [260F]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1484 of 1974.
From the Judgment and Decree dated 26.4.1974 of the Jammu & Kashmir High Court in Civil Second Appeal No. 4 of 1973.
A.K. Sen, E.C. Agrawala, Ms. Purnima Bhat, Atul Sharma and A. V. Palli for the Appellant.
S.K. Bhattacharya (NP) for the Respondent.
The Judgment of the Court was delivered by
KULDIP SINGH, J. Hazrat Baba Ibrahim, a Saint, lived in the area called Rakhbahu in the city of Jammu. After his demise in the year 1872 his grave became a place of worship for those who had faith in him. The place was called Ziarat Hazrat Baba Ibrahim (hereinafter called "the Ziarat"). The Ziarat was managed by Sain Ladha, a nephew of Baba Hazrat Ibrahim After Sain Ladha’s death his son Mian Lal Din succeeded him. At present the Ziarat is being managed by the sons of Mian Lal Din who died in the year 1963.
The Jammu & Kashmir Muslim Wakf Act came into force in the year 1959 (hereinafter called "the Act") whereunder a committee of muslim Wakf (hereinafter called "the Committee") has been incorporated.
The Committee filed a suit against Anayatullah and eight others (sons of Mian Lal Din) restraining them from alienating, raising construction or recovering the rent from the Wakf land in dispute vested in the Ziarat. According to the plaintiff, the Government of Jammu & Kashmir vide two orders dated September, 22, 1955 and November, 29, 1958 granted land measuring 3 acres and 6 acres 2 kanals 6 Marlas respectively to the Ziarat. It was alleged that the defendants were treating the property to be their personal property. They were mismanaging and also alienating the same. The defendants in their written statement resisted the suit on a number of grounds and
256 stated that the land in dispute was transferred by the Government in favour of their father in lieu of his possessory right over about 400/500 Kanals of land which was taken over by the Government. It was further claimed that the land was the absolute property of their father and the same has devolved upon the defendants by succession. It was further claimed that notwithstanding the word "Ziarat" in the Government Orders the grants were in favour of the defendants father in his personal capacity. The transfer of the land was not in the form of any dedication and as such was not a property of the Ziarat. The defendants claimed the right to deal with the property in any manner they liked on the ground that the same belonged to them.
The Trial Court by its Judgment dated August 6, 1970 came to the conclusion that the two grants by the State Government were in fact made in favour of Mian Lal Din and not in favour of the Ziarat. The suit of the committee was dismissed with costs. The District Judge, Jammu by his Judgment dated February 28, 1973 upheld the findings of the Trial Court and dismissed the appeal of the committee. The committee went-up in second appeal before the Jammu & Kashmir High Court. Murtaza Fazal Ali, C.J. (as the learned Judge then was) by his judgment dated April 26, 1974 set aside the judgments of the courts below and allowed the appeal of the committee. The Learned Chief Justice decreed the plaintiff’s suit for injunction as prayed for. This appeal via Special Leave Petition is against the judgment of the High Court.
Mr. Ashok Sen, learned counsel appearing for the appellant has taken us through the judgment of the Trial Court and that of the Lower Appellate Court. According to him, the High Court has erred in upsetting the findings of the courts below based on appreciation of evidence. Mr. Sen contended that the appellant’s ancestors were in possession of’ more than 140 Kanals of land for a very long period and had established possessory title over the said land. According to him, the Government took over the said land from the father of defendants and in lieu of that two grants in the years 1955 and 1958 were given to Mian Lal Din in his personal capacity. It was contended that on appreciation of the evidence produced before the Trial Court the courts below found as a fact that the defendants were the owners of the property subject matter of the Government grants and as such the High Court acted illegally in upsetting the same. The learned counsel relied upon the following findings of the Lower Appellate Court in support of his contention:
257
"As discussed above, the possession of the
defendants and their father and grand father and
Hazrat Baba Ibrahim over 40 kanals of land as Arak
and about 100 kanals of land under cultivation is
proved, and it is further proved from the
Government order Ext. D.A./4 refusing the
recommendation of the Financial Commissioner that
the basis for the grant of proprietary rights in
respect of 74 kanals of land was the personal
possession of the father of the defendants and his
predecessors and it was in lieu of the possession
of that chunk of land that the Government parted
with 74 kanals of land. The counsel for the
plaintiff has further argued that because the
Government orders of 1955 and 1958 mentions the
word "Ziarat" as the grantee it is not
permissible for the Civil Court to hold that the
grant was in favour of the father of the
defendants. Keeping in view the back-ground
as discussed above, I am unable to agree with
the contention of the learned counsel for the
plaintiff. The mere fact that Mian Lal Din was
associated with the Ziarat as a descendant of
Hazrat Baba Ibrahim Sahib and the mere fact that
the word "Ziarat" was used in the Government
orders of 1955 and 1958 would not preclude
this Court from holding that the grant was
not in favour of the Ziarat but was in fact in
favour of the father of the defendants. The
contents of the Government orders of 1955 and
1958 referred to above are to be considered
with the facts that Mian Lal Din and his ancestor
possessed the land in their individual capacity;
that the Government repelled the claim of Mian
Lal Din for additional grant of land on the
simple ground that the land already granted to
him was costlier than the land which he held in
possession; that there was no intention on the
part of the Government to dedicate the land to
the Ziarat out of any pious intention; that it
was a sort of bargain between Mian Lal Din,
the father of the Defendants and the
Government where under the land measuring 74
kanals was parted within the proprietary rights
by the Government in consideration of Lal
Din’s having abandoned possession of over 400
kanals Of land; the fact that the Committee
plaintiff also treated the grant in favour of Lal
Din as is evident from Ext. PD also supports my
view. The fact that the defendants and their
father leased out a part of the property on a long
lease to third parties, the fact that the
defendants got compensation for a portion of the
land acquired by the Government; the fact that
there was no claim laid to the land by the
Wakf
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Committee upto the year 1966 even when the
Government orders were passed in 1955 and 1958,
the fact that no demand was ever made from Lal Din
to render accounts in respect of the income
specially derived by him from the suitland, the
fact that a large number of shops, khokhas and
buildings have been constructed by the defendants
(assuming that one room was constructed by the
Wakf Committee) also is determinative of the fact
that the transfer was infact made in favour of Lal
Din and not in favour of the Ziarat as such."
It is not disputed that the property which is subject matter of the dispute was granted by the State Government under the two orders dated September 22, 1955 and November, 29, 1958. The respondent plaintiff claims that the grant was in favour of the Ziarat whereas the appellant-defendants claim that the property was given to the father of the defendants absolutely and in his personal capacity. The two documents of title by which the grant was made may now be referred to. The Government order dated September 22, 1955 is as under:
"It is ordered that 3 acres of land of Rakhbahu of the Rakhs and Farms Deptt. surrounding the Ziarat Shareef of Baba ibrahim Shah be granted to the said Ziarat-e-Shareef permanently.
By order of the Cabinet.
Sd/- (G.M. Bakshi)
Prime Minister". The Government order dated November, 1958 runs thus;
"(1) The confirmation of the action taken by the
Prime Minister in granting land measuring 6 acres
2 kanals and 6 marlas to Ziarat Shareef Baba
Ibrahim Shah Sahib at Ghandi Nagar Jammu and (2)
The grant of compensation amounting to Rs. 12,500
by debit to Housing grant in favour of the said
Ziarat for 12.5 kanals of land @ Rs. 1000 per
kanal, taken over by the Public Works Department
for development of Gandhi Nagar out of the area of
3 acres sanctioned vide Cabinet Order No. 1418-C
dated 20.9.55. By order of the Jammu and Kashmir
Government
Sd/- Noor Mohd
Secretary to Government"
259
The above quoted orders of the Government are absolutely clear and unambiguous and can admit one and only one interpretation that the Government intended to grant the land to Ziarat alone and not to the appellantdefendants in their personal capacity. In fact the names of the appellants-defendants or their ancestors are not even mentioned in the two orders. The High Court interpreted the above quoted two orders as under:
" The order of 1955 specifically stated that
the lands in Rakhbahu surrounding the Ziarat
Shared of Baba Ibrahim Shah be granted to
the said Ziarat permanently. The later order
of 1958 also says the same thing. It is
nowhere mentioned in any of these orders that
the land was given not to the Ziarat but to
the defendant who was Mujawar of the Ziarat
either in his personal capacity or in lieu of
compensation for his personal lands acquired
by the Government. Since the recitals in the
documents are absolutely clear and are expressed
in unmistakable terms, there is no room for
adducing evidence adduced to contradict the
recitals of these two documents. Thus the
evidence adduced by the defendants to show that
the grant was made not to the Ziarat but to
them is clearly hit by sections 91 and 92 of the
Evidence Act and is, therefore, inadmissible.
Further more the grant was made in 1955 and 1958,
that is to say several years before and the
Government has not come forward after such
a long lapse of time to support the stand of
the defendants that the grant was intended for
them in their personal capacity and not for the
Ziarat. I fail to understand how in face of
such clear recitals in the documents the courts
below have by a process of evisceration and
interpolation construed the documents to means as
if it was a grant in favour of the defendants.
The courts below appear to have been influenced
by the fact that when the defendants
represented to the Government that the lands
in their cultivating possession had been
taken over by the Government without
paying compensation, some Government
Officers replied that a substantial grant of
land had been made to the Ziarat. This obviously
was a wrong stand taken by the Government
Officers and could not clothe the
defendants with the right of wiping out the legal
validity of the grant made year before the
officers gave this reply. Indeed the remedy of
the defendants was to sue for damages or for
compensation for, the land unlawfully
acquired by the Government. There was no
justification for the
260
defendants to cast their covetous eyes on the
property of the Ziarat, taking advantage of their
possession over the same which was an managers or
trustees and asset a hostile title to it. The law
on the subject is absolutely clear that a manager
or a trustee in possession of a religious shrine
cannot be allowed to asset a hostile title unless
he formally surrenders possession to the lawful
authority. Before going into this point of law at
some length it may be necessary to refer to
certain proved facts in the case:-
(1) It is not disputed that the present Ziarat
existed since a long time and became a Wakf by
long public user.
(2) That the first defendant was the Sajadanashin
or -caretaker of the Ziarat.
(3) That the land belonged to the Government
originally.
(4) That the Government granted the land in
dispute to the Ziarat and not to the defendants.
(5) That the defendants were admittedly in
possession of the Ziarat as also the properties
appurtenant thereto.
In these circumstances it is clear that even if
the defendants were in possession of the lands,
their possession would have to be referable to a
lawful title and cannot be treated to be adverse
to the Ziarat. In other words the possession of
the defendants would be for the benefit of the
Ziarat.
We agree with the above quoted findings of’ the High Court and approve the same. We do not agree with the argument of Mr. Ashok Sen that the High Court was in error in upsetting the findings of the courts below. The question before the High Court was the interpretation of two government orders which was essentially a question of law. The High Court was justified in observing that in the face of clear and unambiguous terms of the Government orders it was not permissible for the appellant-defendants to adduce evidence to show that the grant was made to them and not to the Ziarat. No other point was raised before us.
We, therefore, dismiss the appeal. The respondentplaintiff shall be entitled to costs throughout which we quantify as Rs. 15,000. N. P. V. Appeal dismissed.
261