& Ors Vs. Commissioner of Muslim Wakf of Jammu  INSC 28 (7 February 1991)
Singh (J) Kuldip Singh (J) Ramaswamy, K.
1991 SCR (1) 253 1991 SCC Supl. (1) 396 JT 1991 (1) 326 1991 SCALE (1)152
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.
Procedure Code, 1908: Section 100- Interference by High Court in second
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.
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.
trial court dismissed the suit, holding that the two grants were in fact made
in favour of defendants' father and not the Ziarat.
The first appellate court upheld the trial court's findings.
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.
the appeal, the Court,
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.
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]
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]
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.
APPELLATE JURISDICTION: Civil Appeal No. 1484 of 1974.
the Judgment and Decree dated 26.4.1974 of the Jammu & Kashmir High Court
in Civil Second Appeal No. 4 of 1973.
E.C. Agrawala, Ms. Purnima Bhat, Atul Sharma and A. V. Palli for the Appellant.
Bhattacharya (NP) for the Respondent.
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.
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.
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.
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.
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.
Sen, learned counsel appearing for the appellant has taken us through the
judgment of the Trial Court and that of the Lower Appellate Court.
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:
"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;
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
258 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:
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
order of the Cabinet.
(G.M. Bakshi) Prime Minister".
Government order dated November, 1958 runs thus;
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 appellant- 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 High Court interpreted the above quoted two orders as
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,
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.
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:-
is not disputed that the present Ziarat existed since a long time and became a
Wakf by long public user.
That the first defendant was the Sajadanashin or -caretaker of the Ziarat.
That the land belonged to the Government originally.
That the Government granted the land in dispute to the Ziarat and not to the
That the defendants were admittedly in possession of the Ziarat as also the
properties appurtenant thereto.
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.
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.
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.
therefore, dismiss the appeal. The respondent- plaintiff shall be entitled to
costs throughout which we quantify as Rs. 15,000.
V. Appeal dismissed.