Supreme Court of India
ANAYATULLAH AND ORS.versusCOMMISSIONER OF MUSLIM WAKF OF JAMMU
- Citation
- 1991 INSC 26
- Decided
- 7 February 1991
- Disposal
- Dismissed
- Bench
- KULDIP SINGH
Holding
The Government orders unequivocally granted the land to the Ziarat, and a manager/trustee cannot assert a hostile title over Wakf property.
Summary
The Supreme Court examined whether two State Government orders of 1955 and 1958 granted land to the Ziarat Shareef of Hazrat Baba Ibrahim (a Wakf) or to the father of the defendants in his personal capacity. The Committee of Muslim Wakf sued the managers of the Ziarat, alleging they were treating the land as personal property. The lower courts held the grants were to the father, but the Jammu & Kashmir High Court reversed, interpreting the orders as a clear dedication to the Ziarat. The Supreme Court affirmed the High Court, stating the orders unambiguously granted the land to the Ziarat and that a manager or trustee cannot assert a hostile title unless possession is formally surrendered. Consequently, the appeal by the defendants was dismissed and costs awarded to the respondent.
Issues considered
- Whether the 1955 and 1958 Government orders granted the land to the Ziarat Shareef (Wakf) or to the defendants' father in his personal capacity.
- Whether a manager or trustee of a religious shrine can claim adverse title over Wakf property.
- Whether evidence contradicting the clear terms of the Government orders is admissible under the Evidence Act.
- Whether the High Court was justified in overturning the findings of the lower courts on a question of law.
Legislation cited
Subjects
WakfZiaratLand grantInterpretation of government ordersAdverse possessionTrusteeReligious shrineJammu and KashmirCivil AppealEvidence ActCPC Section 100
Judgment
ANAY ATULLAH AND ORS.
A
V.
COMMISSIONER OF MUSLIM WAKF OF JAMMU
FEBI\UARY 7, 1991
[KULDIP SINGH AND K. RAMASWAMY, JJ.] iB
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-lnterpretation of-
Whether in favour of Ziarat or the Manager personally-Manager/Trus-
tee of religious shrine in possession of trust property-Whether can
assert adverse title.
c
Civil Procedure Code, 1908: Section JOO-Interference by High
........ ~
Court in second appeal-Whether justified.
The Ziarat Shareef of Hazrat Baba Ibrahim, a holy place of D
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, filed a suit E
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.
IF
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 Govern-
.... ment, and not in the form of any dedication, and as su~h the land was G
not the property of the Ziarat but their father's absolute property, lllld
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. H
253
254 SUPREME COURT REPORTS [1991) 1 S.C.R.
The first appellate court upheld the trial court's findings.
A
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
B Court contending that the High Court had erred in upsetting the find-
ings 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,
c 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 appel-
D lants-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-
E 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
carinot be allowed to assert a hostile title unless he formally surrenders
F possession to the lawful authority. [2608). ~
---~
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 mana-
gers or trustees and assert a hostile title to it. Even if they were in
G 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] >- '
..
,,I
1.3 In the face of clear and unambiguous terms of the Govern-
ment orders, it was not permissible for the appellants-defendants to
H adduce evidence to show that the grant was made to them and not to the
ANAYATULLAH v. -COMMISSIONER [SINGH, J.] 255
~- Ziarat. The question was of interpretation of the two Government
A
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]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1484 B
~ ·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. c
S.K. Bhattacharya (NP) for the Respondent.
The Judgment of the Court was delivered by
D
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
€alled "the Ziarat"). The Ziarat was managed by Sain Ladha, a
nephew of Baba Hazrat Ibrahim. After Sain Ladha's death his son E
Miao Lal Din succeeded him. At present the Ziarat is being managed
by the sons of Miao 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
'f'r ... musiim Wakf (hereinafter called "the Committee") has been incor- . F
porated.
The Committee filed a suit against Anayatullah and e_ight
others (sons of Miao Lal Din) restraining them from alienating, raising
construction or recovering the rent from the W akf land in dispute
vested in the Ziarat. According to the plaintiff, the Government of G
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 H
I
256 SUPREME COURT REPORTS [1991] 1 S.C.R.
A 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 takeQ 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 Govern-
B
ment 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.
C 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.
D
The committee went-up in second appeal before the Jammu & Kash-
mir 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 tbe plaintiff's suit for injunction as
E prayed for. This appeal via Special Leave Petition is against the judg-
ment of the High Court.
Mr. Ashok Sen, learned counsel appearing for the appellant has
F
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
G
appreciaton 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 ofhis contention:
H
ANAYATULLAH v. COMMISSIONER [SINGH, J.) 257
"As discussed above, the possession of the defendants and-
A
~· 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 recom-
mendation of the Financial Commissioner that the basis for
the grant of proprietary rights in respect of 74 kanals of B
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 c
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 D
Sahib and the mere fact that the word "Ziarat" was used in
the Government orders of 1955 and 1958 would not per-
elude 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 E
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 tne 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 F
'-', to dedicate the land to the Ziarat out of any pious inten-
'r tion; 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 posession of over 400 kanals of G
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 H
fact that there was no claim laid to the land by the Wakf
258 SUPREME COURT REPORTS [1991] 1 S.C.R.
· Committee upto the year 1966 even when the Government
A
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 suit
lancf, the fact that a large number of shops, khokhas and
buildings have been constructed by the defendants (assum-
B ing that one room was constructed by the Wakf Commit-
tee) also is determinative of the fact that the transfer was in
fact 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
c 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 docu-
ments of title by which the grant was made may now be referred to.
The Government order dated September 22, 1955 is as under:
D
''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.
E
Sd/- (G.M. Bakshi)
Prime Minister".
The Government order dated November, 1958 runs thus;
F ~'(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 amount-
ing 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,
G taken over by the Public Works Department for develop-
ment 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
H Secretary to Government"
ANAYATULLAH v. COMMISSIONER [SINGH, J.] 259
The above quoted orders of the Government are absolutely clear
A
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 under: B
"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 these orders that the land was given
- not to the Ziarat but to the defendant who was Mu jawar of c
the Ziarat either in his personal capacity or in lieu of com-
pensation for his personal lands acquired by the Govern-
ment. 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 reci-
tals of these two documents. Thus the evidence adduced by D
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 E
defendants that the grant was intended for them in their
personal capacity and not for the Ziarat. I fail to under-
stand how in face of such clear recitals in the documents the
courts below have by a process of evisceration and interpo-
lation construed the documents to means as if it was a grant
in favour of the defendants. The courts below appear to F
hve 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 Govern-
ment without paying compensation, some Government
Officers replied that ~ substantial grant of land had been
made to the Ziarat. This obviously was a wrong stand taken G
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 dam-
ages or for compensation for' the land unlawfully acquired H
by the Government. There was no justification fo the
260 SUPREME COURT REPORTS [1991) 1 S.C.R.
defendants to cast their covetous eyes on the property of
A 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
B 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. ·
c (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
D 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
E 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
F 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 interpreta-.
ti on 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
G for the appeilant-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 respo~dent-plaintiff shall
be entitled to costs throughout which we quantify as Rs.15,000.
N.P.V. Appeal dismissed.
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