1. This judgment will dispose of nine Regular Second Appeals Nos. 1346 to 1354 of 1965, as the points of fact and law involved are the same.
2. In the village Garhi Brahman, Tehsil Sonepat, District Rohtak, the land comprised in Khasra No. 247, which is in dispute in this case, was shown as gher mumkin kabrasthan in the Jamabandi for the year 1909-10 (Exhibit P-19) and occupier is shown as Kunjra tribe, resident of Sonepat town. This entry is repeated in Jamabandi for the year 1957-58, that is, Exhibit D-2 the land is described as gher mumkin kabrastan in the possession of Ahl-e-Islam and Panchayat, Deh, is recorded as its owner. The same entry is repeated in the Jamabandi for the year 1961-62, Exhibit D-3, equal to Exhibits P-10 to p-18. The ownership of this Khasra number throughout has been shown as that of the Panchayat Deh, in Jamabandis, Exhibits D-2 and d-3, and Shamlat Deh Hasab Rasad Raqba Khewat in Jamabandis for the years 1909-10 and 1945-46. The reason for the change of the owner from Shamlat Deh to Panchayat Deh was the coming into force of the Punjab Village Common Lands (Regulation) Act, 1954, whereunder all the lands included in the Shamlat Deh of any village automatically vested in the Panchayat having jurisdiction over the village with effect from the date the Act came into force, that is, 9th January, 1954.
3. The Parliament enacted the Wakf Act, 29 of 1954, which came into force on 21ar MY, 1954. This Act applies to all wakfs, whether created before or after the commencement of the Act. In Section 3(1) 'wakf' has been defined to mean the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim Law as pious, religious or charitable and includes -
(i) a wakf by user;
(ii) grants (including mashrut-ul-khidmat) for any purpose recognised by the Muslim Law as pious, religious or charitable; and
(iii) a wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable.
Section 9 of this Act provides for the establishment of a Board of Wakfs by the State Government and the functions of the Board have been defined in Section 15. In short, the overall management and supervision of all waqfs has been entrusted to the Board which has also been given power to take measures for the recovery of lost properties of any wakf and to institute and defend suits and proceedings in a Court of law relating to wakfs. The provision has been made in the said Act for the survey of wakfs, publication of lists thereof, determination of the disputes with regard to the wakfs and for the maintenance of a register of wakfs.
4. The Punjab Wakf Board, which had been constituted under the said Act, filed nine suits for possession of different parcels of land comprised in Khasra No.247 against the Panchayat Deh and Gram Sabha of the village and nine other persons who had taken possession of the different parcels of land in Khasra no. 247, as described in the plaints of the various suits, on the ground that the land comprised in Khasra No. 247 was wakf property and the Wakf Board was entitled to take its possession. The suits were defended by the Panchayat Deh and Gram Sabha only. In each suit it was pleaded that the land in dispute had vested in the Gram Panchayat under the Punjab Village Common Lands (Regulation) Act, I of 1954, that the plaintiff, could not claim its possession, the suit was barred by time and the Secretary of the plaintiff-Board had no authority to file the suit on behalf of the Board. Since common questions of fact and law were involved and were to be decided in all suits, they were consolidated and were disposed of by one judgment by the learned trial Court and the appeals arising therefrom were also disposed of by one judgment by the learned lower appellate Court.
5. On the pleading of the parties, the following issues were framed :-
(1) Is the plaintiff owner of the land in suit ?
(2) Is the suit within time?
(3) What is the effect of Act No. 1 of 1954 on this suit?
(4) Is the person filing the suit properly authorised to do so by the plaintiff?
Issues Nos. (1) and (2) were decided against the plaintiff. Issue No. (3) was decided in favour of the Panchayat Deh holding that the land had vested in the Panchayat. Issue No. (4) was not pressed and as a result of his findings, the learned trial Court dismissed all the suits on 26th November, 1964.
Against the decrees passed by the learned trial Court, the plaintiff filed appeals in the Court of the Senior SubordinateJudge, Rohtak, which were accepted on 11th June, 1965. The learned lower appellate Court held that the land in dispute was wakf property and the suits were not barred by limitation. The finding of the learned trial Court on issue No. (3) was held to be incorrect and it was held that the property being wakf property could not vest in the Gram Panchayat in spite of the fact that it was recorded in the revenue papers as Shamlat Deh because it never belonged to the proprietary body. The provisions of Punjab Act No. I of 1954 were held to have no effect on the suits. The finding given by the learned trial Court on issue No. (4) was not challenged before the learned lower appellate Court. Aggrieved from the decrees passed by the learned lower appellate Court, the Panchayat Deh and Gram Sabha have filed the present appeals in this Court.
6. The first point to be determined is whether the land in dispute is wakf property as defined in the 'Wakf Act,' 29 of 1954 (hereinafter callled 'the Act'). I have set out above the definition of wakf as given in the Act. According to this definition, the wakf should have been created by a person professing Islam, and not by anybody else, but the Legislature, by the Wakf Amendment Act, 30 of 1959, inserted Section 66-C in the Act, which leads as under:-
'Notwithstanding anything contained in this Act where any movable or immovable property has been given or donated by any person not professing Islam for the support of a wakf being:-
(a) a mosque, idgah, imambara, dargah, khankah or a maqbarar;
(b) a Muslim graveyard;
(c) a choultry or a musafarkhana,
then such property shall be deemed to be comprised in that wakf and be dealt with in the same manner as the wakf in which it is so comprised.'
It has not been proved in the suits that the dedication had been made by a person professing Islam. The land was recorded as Shamlat Deh in the Jamabandis for the years 1909-10 and 1945-46 from which it follows that the land had been left to be used as a kabrastan (graveyard) by the proprietors of the village. The dedication by anybody is not proved, but the learned counsel for the respondents states that the dedication should be presumed from long user, that is, from 1909-10 to 1945-46. Long user is a question of fact. It has to be pleaded and proved by evidence. The plaintiff never set up the case of wakf by user in the plaints. All that was stated was that 'Khasra No. 247, measuring 5 bighas 7 biswas of Khata No. 764 of Grahi Brahmanan, Sonepat, is a wakf property, being a gher mumkin kabrastan (baren graveyard), as per copy of Jamabandi of 1961-62, attached herewith, and was in possession of the plaintiff', and that defendant 1 had, without the permission of the plaintiff, illegally occupied it and was in possession of the land comprised in Khasra No.247 since 28th August, 1963 and refused to vacate it. The claim to the possession of the land was made only on the basis of Jamabandi for the year 1961-62 in which it was recorded as gher mumkin kabrastan in the occupation of the Ahl-e-Islam (followers of Islam), which entry is not correct as has been shown hereinafter. The respondent cannot be allowed to plead the case of wakf by user in this Court. The question to be determined is whether on the basis of the entry in the Jamabandi for the year 1961-62, Khasra No. 247, can be held to be wakf property.
7. The village was predominantly a Hindu village in which the Muslims were only a few before partition and after partition there is none. It has been admitted by the plaintiff's witnesses that no dead body has been buried in this graveyard since 1947. The persons who are defendants in the suits along with the Panchayat Deh and Gram Sabha took possession of various plots and constructed houses thereon. if no Muslim is living in the village, it cannot be understood how the entry in the Jamabandi that the Khasra number is in possession of Ahl-e-Islam can be taken to be correct and in accordance with the existing facts. On the spot no graves exist, and houses have been constructed. Therefore, it cannot be said that the entry gher mumkin kabrastan is in accordance with the facts. It is also on the record that the Panchayat filed applications for the ejectment of the other defendants who had built houses in this Khasra number. The ejectment orders were passed and were being executed. No evidence has been led, as to the origin of the dedication nor has it been shown by any cogent evidence that this Khasra number had been used as a graveyard in fact, that is, any dead bodies were buried therein or that any tombs existed in this land.
8-9. (His Lordship perused the evidence of witnesses of both sides and proceeded).
10. The entries in the Jamabandis carry a presumption of correctness but in this cae the Jamabandis for the years 1957-58 and 1960-61 cannot be said to be correct because the old entries were repeated although since 1947 no Muslim is living in this village and the land in dispute was never used as a graveyard. It had been encroached upon by the defendants in the suits other than Gram Panchayat and the Gram Panchayat itself filed applications for their ejectment after the land had vested in the Panchayat. The entries in the other Jamabandis produced in the suits do not prove that the dedication had been made by any Muslim. It has also not been shown that any mtawalli had ever been appointed to look after the wakf property and to arrange for the burial of the dead bodies in this land. a bare statement of P.W. 2 is not sufficient to hold that the land in suit had been dedicated for the purpose of a graveyard or that the land had ever been used as a graveyard or that any dead bodies were ever buried there. He admittedly was not a proprietor in that village nor resided there ever. It has also not been shown how the entry of occupier was changed from Kunjra tribe, resident of Sonepat to that of Ahl-e-Islam, particularly when after 1947 admittedly no Muslim has been living in this village and the land was never used as graveyard by the Muslims.
11. The learned counsel for the Punjab Wakf Board has argued that the definition of wakf includes a wakf by user and since in the jamabandi of 1909-10 it has been stated as gher mumkin kabrastan, it is to be deemed as wakf and that it is not necessary to prove the dedication of the land for the purpose of graveyard by any person. In support of his submission he has relied on various judgments, which are noticed below:-
(1) Chhutkao v. Gambhir Mal, AIR 1931 Oudh 45, wherein it was held as under:-
'Where a plot of land is described as a takia and has been used for many years as a place for burial by Muhammadans whether they are members of one family or not, a presumption arises that there is a wakf by user.
A cemetery or graveyard is consecrated ground and cannot be sold or partitioned. Even lands which are not expressly dedicated but are covered by graves are regarded s consecrated and consequently inalienable and non-transferable.'
It is further observed:
'It is only where there are one or two bodies buried but the whole plot is not considered to be maqbara or burial ground that the actual places where the dead are buried are considered to be consecrated and the rest of the land may be alienated.'
'In Muhammadan Law land once used as a cemetery is always regarded as cemetery unless for any reason it turns out to be unfit for use as such.'
The facts of that case are entirely different from the facts of the instant case. There it had been found as a fact that dead bodies had all along been buried in that land for a very long time and that the plot was a takia and in the year 1875, permission was given to Maula Shah to bury dead bodies in this takia. There was no evidence of dedication of this land because it was a takia, its dedication was presumed. No such facts have been proved in the instant case. It has not even been mentioned how many graves there are and admittedly this land was never used as a graveyard since 1947 and as there is no Muslim living in this village, there is no necessity of keeping it as a graveyard for the followers of Islam.
(2) Noor Mohammad v. Ballabh Das, AIR 1931 Oudh 293, in which it was held as under:-
'In any case if one portion of a continuous plot of land where the entire plot is shown in the settlement khasra as qabrastan is covered with graves, the entire plot must be deemed to bear the same character.' It was further held that 'there was no distinction between a 'public' graveyard and a graveyard simpliciter. The user of a piece of land as a graveyard establishes dedication and the land thereby becomes wakf property.'
Against this judgment, appeal was taken to the Privy Council which is reported as Ballabh Das v. Noor Mohammad, AIR 1936 PC 83. Their Lordships observed:-
'The owner who permits one or two burials to take place in his orchard would not describe his orchard as qabristan. If the plaintiff had to make out dedication entirely by direct evidence of burials being made in the ground, and without any record such as the khasra of 1868, to help them, they would undoubtedly have to prove a number of instances adequate in character, number and extent to justify the inference that the plot of land in suit was a cemetery. The plaintiffs, however, are not in this position. The entry 'qabristan' in the khasra of 186 has to be taken together with the map which shows the whole of plot 108 to be a graveyard'. As I have said above, apart from the entry in the Jamabandis no proof has been led of actual user of the land as kabrastan by the Muslims and the statement made by D. W. 2 does not inspire confidence as he was not a resident of the village and it has not been stated as to how many tombs there were in the land. The fact remains that the khasra number has become divided into plots on which houses have been built. If the land had been covered by tombs, I do not think anybody would have dared to build houses thereon. the direct evidence of burials being made in the land is conspicuously lacking in the instant cases.
(3) Mehar Din v. Hakim Ali, AIR 1935 Lah 912, in which it was held as under:-
'It is well established that an express dedication is not necessary to create a wakf and that dedication may be assumed from long user, if it is clear that the intention of the owners was to make the dedication.' In that case long and uninterrupted user had been clearly established. The land was described as gher mumkin takia and kabrastan in possession of the Ahl-e-Islam and was not described as Shamlat Deh although an adjoining plot of land was so recorded. In the present case, the land has been recorded as Shamlat Deh throughout and not in the possession of the Ahle-e-Islam till 1957-58, but in possession of the Kunjra tribe of Sonepat.
(4) Arur Singh v. Badar Din, AIR 1940 Lah 119, in which it was held as under :-
'The finding of the Court below that the land in dispute was used as a Mahomedan graveyard is amply supported by the entries in the revenue records and the mere fact that in recent years it has not been so used does not deprive it of its character as a 'wakf'' and that -
'there seems to be no clear authority to show that dedication of land by a Hindu for the purpose of a Muslim graveyard would be invalid either according to Hindu or Muslim law.' In the present case, it has not been proved that the land was being used as a Mohammedan graveyard. The mere entry in the revenue record is not sufficient to make it wakf. The dedication by a Hindu will not make any land wakf in view of the definition given in Section 3 (1) of the Act, whereunder dedication made by a person professing Islam only constitutes wakf.
(5) Motishah v. Abdul Gaffar Khan, AIR 1956 Nag 38, in which it was held that a wakf may be defined to mean the detention of the Corpus in the ownership of God in such a manner that its profits may be applied for the benefit of his servants, and that -
' as a general rule all persons who are competent to make a valid gift are also competent to constitute a valid wakf. Islam is not a necessary condition for the constitution of a wakf. Any person of whatever creed may create a wakf but the object for which dedication is to be made should be lawful according to the creed of the dedicatory as well as Islamic doctrines.' In view of the definition of Wakf in the Act, this observation no more holds good. It was further held that-
'A cemetery or graveyard is a consecrated ground and is not a private property. Whether a place is a makbra (burial ground) or not depends on the number of persons buried there or evidence of dedication derived from the testimony of witness or reputation.' No evidence has been given with regard to the number of persons buried in the land in dispute nor has any evidence of dedication or reputation been given.
(6) Khati v. Mirza Hossain Beg, AIR 1962 Ori 95, in which it was held as under:---
'A Wakf normally requires express dedication, but if it had been used from time immemorial for religious purpose, then the land is by user wakf through there is no evidence of express dedication.' and
'When a long period has elapsed since the origin of the alleged wakf, user ca be the only available evidence to show if the property is or is not wakf; where there is no evidence to show how and when the alleged wakf was created , the wakf may be established by evidence of user; if land had been used from time immemorial for religious purpose such as Masjid, the land is constituted wakf, though there is no evidence of express dedication; the title of th original owner is extinguished and the ownership of the property vests in God and accordingly the public character of the institution may be presumed.' In the present case there is neither any evidence of dedication nor of long user from time immemorial . The only evidence relied upon is the entry in the Jamabandis which, in my opinion , is not sufficient.
(7) Mohammed Shah v. Fashihuddin Ansari, Air 1956 SC 713, in which their Lord ships held that-
'it can also be accepted as a matter of law that a wakf normally requires express dedication but if land ahs been used form time immemorial for a religious purpose, then the land is by user wakf although there is no evidence of express dedication.' It has not been proved in this case that the land was used from time immemorial as graveyard. Time immemorial means not the recent past but a hoary past, that is, the time beyond which the memory of the am does not go. A period of fifty years or so cannot be said to be time immemorial.
12. The learned counsel for the appellant has, in reply relied upon the following judgments:---
(i) Jiwan Singh v. Karam Din, AIR 1927 Lah 664, in which it was held that 'nobody can acquire by prescription a right to bury the dead inland belonging to other persons, such an easement being unknown to the law.'
(2) Kirpa Singh v. Nabi Bakhsh, AIR 1932 Lah 256, in which it was held as under:--
'The right to bury or burn dead bodies on land belonging to another person is not an easement recoginized by law and cannot be acquired by prescirption and where a party claiming right of easement in certain land as being sanctioned by custom, does not raiswe the plea of customary right or that of implied dedication from long user in the lower Courts, it cannot be allowed tio take up those pleas in second appeal and thus set up a new case.' (3) K. Raushan Din v. H. Mohd. Sharif, AIR 1936 Lah 87, in which it was hled as under:---
'A wakf in respect of a burial ground may, in the absence of direct evidence of dedication , be established by evidence of user; bu the user from which dedication can be implied must be clearly established and must be of such a character as to be consistent with dedication. Such user or dedication is required to be public user or dedication . Where the evidence shows no more than that certain persons were many years ago buried in the place user'. As I have said above, this land has not been used as a graveyard at least since 1947 an therefore, it cannot be said that it was wakf property merely because some dead bodies were buried there of which even there is no relable evidence.
4. Zafar Hussain v./ Mohammed Ghiasud -Din , AIR N1937 Lah 552, in which it was held as under:---- 'Even an owners' unexpressed intention to dedicate property cannot have the effect of a formal dedication. In the absence of any such intention or declaration, no wakf can be said to have been created . It is true that a wakf can be created by user but that user too must be preceded by an intention on the part of the owner to create a wakf. If no such intention us established user alone will no be sufficient to divest the property of its private character.' There is no evidence of intention to create a wakf by anybody whatsoever in the present case and only from an entry in the jamabandis without proof of user, it cannot be held that the land comprised in khasra No. 247 was wakf properly and vested in the Punjab Wakf Board.
13. The suits were also barred by time as it was admitted on behalf of the plaintiff-Board that it had not been in possession of the land at any time within twelve years preceding the filing of the suits, Even wakf property can be adversely possessed as has been held in a full Bench of the Lahore High Court in Masjid Shahid Ganj v. Shromani Gurdwara Parbandhak Committee, Amristasar, AIR 1938 Lah 369 (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 ti prevails in British India and if personal law has been modified by te statue of Limitation. The Courts in British India have no option but to give effect to that statute . Hence no mosquito 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 ve capable fo suing or being sued as a 'juristic' person. A mosque is the house of God but is not the deity.
14. The decision of the learned trial Court on issue No. 3 was correct and it was wrongly reversed by the learned lower appellate Court. The land had been described as Shamlat Deh Hasab Rasad Raqba Khewat prior to coming into force of the Punjab village common lands (Regulation) Act, I of 1954. This land, therefore, vested in the Panchayat of the village under Section 3 of the said Act and continues to so vest.
15. For the reasons given above, these appeals are allowed, the decrees passed by the learned lower appellate Court are set aside and the decrees passed but the learned triadl Court are restored . The parties are, however, left to bear their own costs through out.
16. Appeals allowed.