IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA-1396-1995 Punjab Wakf Board . . . . Appellants Vs. Sunder Lal Gupta (since deceased) thr LRs . . . . Respondents **** Reserved on: 02.04.2026 Pronounced on: 06.04.2026 Pronounced fully/opera5ve part: Fully **** CORAM: HON’BLE MR JUSTICE DEEPAK GUPTA Argued by:- Mr. Gulam Nabi Malik, Advocate for the appellant. Mr. Anish Se$a, Advocate for the respondent. **** DEEPAK GUPTA, J. The present second appeal arises out of a suit for possession ins$tuted by the plain$ff, which was ini$ally decreed by the learned trial Court vide judgment & decree dated 25.01.1992. However, the said decree did not sustain, as the appeal preferred by the defendant Sunder Lal Gupta (now represented through his legal representaves), came to be allowed by the learned first Appellate Court on 12.01.1995, resul$ng in reversal of the findings recorded by the trial Court and consequent dismissal of the suit. 2. Aggrieved thereby, the plain$ff has approached this Court by way of the present second appeal. 3. The trial Court record, as available on the Digital Management Sys- tem (DMS), has been carefully perused. For the sake of clarity and to avoid any confusion, the par$es shall hereina7er be referred to as per their status before the trial Court. NEETIKA TUTEJA 2026.04.06 17:41 I attest to the accuracy and integrity of this document RSA-1396-1995 4. Plainff’s Case : The factual matrix reveals that the plain$ff ins$- tuted the suit in January, 1969 seeking possession of a por$on of land measur- ing 360 square yards, forming part of Takia Azam Shah bearing Nos. 93–95, situ- ated at Pinjore, District Ambala. The claim of the plain$ff was founded on the asser$on that the suit property was a Waqf property vested in the Punjab Waqf Board under the provisions of the Waqf Act, 1954. It was pleaded that the man- agement and control of Muslim trust proper$es had been transferred to the Waqf Board by the Central and State Governments. On this premise, the plain$ff asserted ownership over the suit property. It was further averred that the defendant was in unlawful and unauthorized possession of the said prop- erty and had raised illegal construc$ons thereupon for running a restaurant/ hotel. The defendant, having no legal right to occupy the premises, was al- legedly requested to vacate the same, but upon his failure to do so, the plain$ff was constrained to ins$tute the present suit. 5. It is per$nent to note that the suit was ini$ally decreed ex-parte on 27.08.1969. However, on an applica$on filed by the defendant under Order IX Rule 13 of the Code of Civil Procedure on 14.06.1983, the ex parte judgment & decree were set aside on 18.05.1987, and the suit was restored to its original posi$on for adjudica$on on merits. 6.1 Defendant’s Stand : The defendant contested the suit by raising various preliminary objec$ons. The very nature of the suit property as Waqf property was specifically denied. It was asserted that the property was under the management and control of one Rashid Ali, a Mohammedan resident of Pin- jore, who was func$oning as a Mutawalli (Mohtmim). 6.2 According to the defendant, the said Rashid Ali had leased out the suit land for a period of 99 years to Bakshi Munshi Ram and Khaira$ Lal vide a registered lease deed dated 22.10.1964, which was duly registered on 27.10.1964. The defendant further pleaded that the aforesaid lessees, namely Bakshi Munshi Ram and Khaira$ Lal, had subsequently transferred their lease- hold rights in favour of Smt. Sushila Aggarwal, wife of the defendant, through a NEETIKA TUTEJA 2026.04.06 17:41 I attest to the accuracy and integrity of this document RSA-1396-1995 registered sale deed dated 03.09.1968, registered on 05.09.1968. It was further contended that a7er the demise of Smt. Sushila Aggarwal, the defendant suc- ceeded to her estate by virtue of a Will dated 02.10.1971, thereby becoming the holder of the leasehold rights for the remainder of the 99-year term. 6.3 The defendant thus claimed to be a bona fide purchaser of the leasehold rights for valuable considera$on. It was also pleaded that substan$al construc$on had been raised on the suit property by Smt. Sushila Aggarwal, in- cluding shops and hotel structures, a7er incurring expenditure to the tune of ₹4,00,000/. On this basis, the defendant sought protec$on under Sec$ons 50 and 51 of the Transfer of Property Act, 1882 asser$ng that the possession was lawful and protected. 6.4 Addi$onally, it was contended that the suit had not been ins$tuted by a duly authorized person on behalf of the plain$ff. Denying all allega$ons of unauthorized possession and illegality, the defendant prayed for dismissal of the suit. 7. On the basis of the pleadings of the par$es, the learned trial Court framed necessary issues, and both sides led their respec$ve evidence in support of their claims. 8.1 Trial Court Findings : Upon apprecia$on of the pleadings and evid- ence brought on record, the learned trial Court returned a finding that the suit had been ins$tuted by a duly authorized person on behalf of the plain$ff. On the core issues rela$ng to the nature of the property and its ves$ng, the trial Court undertook a composite considera$on and recorded detailed findings. 8.2 The trial Court held that the land comprised in Khasra Nos. 93 to 95, situated at Pinjore, District Ambala, popularly known as “Takia Azam Shah,” was a religious endowment. Relying upon historical and legal understanding of a Takia as a religious ins$tu$on, it concluded that such property cons$tutes a valid Wakf. The Court found sufficient evidence on record, including revenue entries and documentary material, to establish that the suit property was in- NEETIKA TUTEJA 2026.04.06 17:41 I attest to the accuracy and integrity of this document RSA-1396-1995 deed Wakf property. Reference was made to Jamabandi entries, par$cularly Ex.P-23 (1961–62), showing the property under the control of the Central Gov- ernment, and subsequently transferred to the Punjab Wakf Board through stat- utory no$fica$ons. Further documentary evidence (Ex.P-3, Ex.P-5, Ex.P-6, and Ex.P-10 to Ex.P-16) revealed that the property was under the supervision and management of the Wakf Board and had been leased to various tenants from $me to $me. 8.3 The trial Court also examined the defendant’s claim, which was founded upon a chain of transac$ons beginning from an alleged lease executed by one Rashid Ali, claimed to be the Mohtmim (Mutawalli), in favour of Bakshi Munshi Ram and Khaira$ Lal, and culmina$ng in the transfer of leasehold rights to Smt. Sushila Aggarwal. However, the Court found no credible evidence to es- tablish that Rashid Ali was ever a duly appointed Mutawalli with authority to deal with the Wakf property. The mere entry in Jamabandi Ex.D-5 (1967–68) was held insufficient, par$cularly in the absence of any explana$on as to how his name replaced that of the Central Government in the revenue record. 8.4 The Court preferred the earlier Jamabandi (Ex.P-23), which recor- ded the property under the Central Government, and held that the subsequent entries relied upon by the defendant lacked eviden$ary value. It was further held that, even assuming Rashid Ali to be a Mutawalli, he had no authority in law to grant a lease for a period of 99 years. Such a transac$on was clearly in vi- ola$on of the statutory provisions governing Wakf proper$es, which restrict the power of aliena$on and prohibit long-term leases beyond the permissible period without prior sanc$on of the competent authority or Court. In this re- gard, the trial Court held that any such lease, even if executed, would be void ab ini$o and of no legal effect. Consequently, the en$re chain of transac$ons flowing from such void lease, including the alleged transfer in favour of Smt. Sushila Aggarwal, was held to be null and void and not binding upon the rights of the plain$ff. Page 4 of 12 NEETIKA TUTEJA 2026.04.06 17:41 I attest to the accuracy and integrity of this document RSA-1396-1995 8.5 The plea of the defendant claiming protec$on as a bona fide pur- chaser under Sec$ons 50 and 51 of the Transfer of Property Act was also rejec- ted. The Court held that there was no occasion for the defendant to claim good faith, par$cularly when the root of his $tle itself was legally unsustainable. 8.6 On these premises, the trial Court concluded that the defendant was in unauthorized and illegal possession of the suit property and had raised construc$on thereon without any lawful authority. Accordingly, the issues re- la$ng to $tle, possession, and relief were decided in favour of the plain$ff. 8.7 In view of the aforesaid findings, the suit for possession was de- creed by the learned trial Court vide judgment & decree dated 25.01.1992. 9.1 Appellate Court Findings : However, the maPer did not rest there. In the appeal preferred by the defendant, an applica$on under Order XLI Rule 27 CPC for leading addi$onal evidence was allowed by the learned first Appel- late Court. Pursuant thereto, certain documents, namely copy of Jamabandi (Ex.A-1), copy of registered lease deed dated 21.12.1963 (Ex.A-2), and copy of muta$on (Ex.A-3), were taken on record. Notably, no further oral evidence was adduced to substan$ate the addi$onal documentary evidence so produced. 9.2 The learned first Appellate Court, while affirming the finding of the trial Court on the issue that the suit had been ins$tuted through a duly author- ized person, proceeded to re-appreciate the en$re evidence on the core issues rela$ng to the nature of the suit property, its alleged character as Wakf prop- erty, and its ves$ng in the plain$ff-Board. 9.3 Upon such re-appraisal, the first Appellate Court reversed the find- ings of the trial Court and held that the suit property had ini$ally been treated as evacuee property and subsequently, on the representa$on made by one Rashid Ali, was restored to him by the Custodian under statutory orders, as re- flected in Muta$on No. 668 (Ex.A-3). As a consequence, the ownership entry in the revenue record stood changed from “Takia Azam Shah under the manage- NEETIKA TUTEJA 2026.04.06 17:41 I attest to the accuracy and integrity of this document RSA-1396-1995 ment of the Central Government” to “Takia Azam Shah under the management of Rashid Ali, Mohtmim.” 9.4 The Appellate Court further held that the said Rashid Ali, being re- corded as Mohtmim and in possession, had leased out the suit land for a period of 99 years in favour of Bakshi Munshi Ram & Khaira$ Lal vide registered lease deed (Ex.D-3/Ex.A-2). The subsequent revenue entries, including Jamabandi for the year 1967–68 (Ex.D-5) and Jamabandi for the year 1982–83 (Ex.A-1), were relied upon to conclude that the said lessees were in possession of the suit property as paedars for the s$pulated lease period, while ownership was shown in the name of Takia Azam Shah through its Mohtmim. 9.5 The Appellate Court also took into account the subsequent transfer of leasehold rights by Bakshi Munshi Ram and Khaira$ Lal in favour of Smt. Sushila Aggarwal wife of the defendant, through a registered sale deed dated 03.09.1968, and her succession by the defendant on the basis of a Will. It fur- ther relied upon an earlier judgment dated 30.10.1972 (Ex.D-6), whereby a suit for possession filed by the Wakf Board against Munshi Ram had been dismissed, holding him to be in lawful possession as a lessee. 9.6 On the ques$on, whether the property was Wakf property, the first Appellate Court took a view contrary to that of the trial Court. It held that mere men$on of the term “Takia” in the revenue record was not sufficient to estab- lish that the property was a religious endowment or Wakf property. It emphas- ized the absence of any evidence regarding dedica$on, origin, or religious use of the property. The Court observed that neither the history of the ins$tu$on nor any proof of grant or endowment had been established on record so as to con- fer the character of Wakf upon the property. 9.7 The Appellate Court further held that once the property had ceased to be evacuee property by virtue of the order passed by the Assistant Custodian in 1963, the subsequent no$fica$on relied upon by the plain$ff- Board could not operate to vest the property in it, par$cularly when such no$- NEETIKA TUTEJA 2026.04.06 17:41 I attest to the accuracy and integrity of this document RSA-1396-1995 fica$on did not contain details regarding the crea$on of Wakf or its origin. Con- sequently, it was concluded that the plain$ff had failed to establish that the suit property was Wakf property, or that it vested in the Wakf Board. The finding of unauthorized possession recorded by the trial Court was also set aside. 9.8 On the aspect of protec$on under the Transfer of Property Act, the first Appellate Court held that the defendant, having derived leasehold rights through a chain of registered transac$ons and having acted in good faith, was en$tled to protec$on under Sec$on 41 of the Transfer of Property Act, 1882. It was observed that the predecessor-in-interest of the defendant had purchased the leasehold rights for valuable considera$on, relying upon revenue entries and possession of the vendors, and thus qualified as a bona fide transferee. 9.9 In view of the aforesaid reasoning, the learned first Appellate Court reversed the findings of the trial Court on the core issues holding that the plain$ff had failed to prove the Wakf character of the property as well as the al- leged unauthorized possession of the defendant. Resultantly, the suit of the plain$ff was dismissed. 10. Contenons of the Appellant – Plainff : Assailing the judgment of reversal passed by the learned first Appellate Court, learned counsel for the ap- pellant–plain$ff has contended that the findings recorded by the trial Court were based on proper apprecia$on of evidence and sePled legal principles gov- erning Wakf proper$es. It is argued that by virtue of the GazePe No$fica$on is- sued in the year 1972, the suit property, being a Takia, stood vested in the Pun- jab Wakf Board. It is further contended that the first Appellate Court fell into patent error in trea$ng Rashid Ali as the owner of the property merely on the basis of revenue entries. A Mutawalli (or Mohtmim), it is submiPed, is only a manager or custodian of Wakf property and never its owner. Consequently, he had no authority in law to create a lease for a period of 99 years, much less to transfer rights in favour of third par$es without sanc$on of the competent au- thority or the Court. It is thus argued that the en$re chain of transac$ons set up by the defendant is void ab ini$o and incapable of conferring any legal right. On NEETIKA TUTEJA 2026.04.06 17:41 I attest to the accuracy and integrity of this document RSA-1396-1995 this premise, it is prayed that the judgment of the first Appellate Court be set aside and that of the trial Court be restored. 11. Contenons of the Respondent - Defendant : Per contra, learned counsel for the respondent–defendant has supported the judgment under chal- lenge. It is argued that the plain$ff–Board had earlier ins$tuted a suit for pos- session against Bakshi Munshi Ram, predecessor-in-interest of the defendant, which stood dismissed vide judgment dated 30.10.1972 (Ex.D-6). It is contended that the present suit, being founded on the same cause of ac$on and in respect of the same property, is barred by the principle of res judicata. It is further sub- miPed that the property had already been mutated in favour of Rashid Ali in the year 1963 under orders of the Custodian, and the lease in favour of Bakshi Munshi Ram and Khaira$ Lal had been created much prior to the 1972 no$fica- $on. Therefore, the said no$fica$on could not divest vested rights or retro- spec$vely alter the character of the property. It is also argued that there is no cogent evidence on record to establish that the property was ever dedicated for religious purposes or cons$tuted a Wakf. 12. Consideraon by this Court : Having heard learned counsel for the par$es and upon a careful reappraisal of the record, this Court finds that the controversy essen$ally revolves around two interlinked ques$ons: (i) whether the suit property is Wakf property, and (ii) whether the defendant’s possession can be said to be unauthorized. 13. The trial Court had returned a categorical finding, based on docu- mentary evidence including revenue records and statutory no$fica$ons, that the property known as “Takia Azam Shah” was a Wakf property vested in the plain$ff-Board. It had also correctly appreciated the legal posi$on that a Mut- awalli is merely a manager and has no proprietary rights in the Wakf property. Consequently, any aliena$on or long-term lease beyond the statutorily permiss- ible period, without sanc$on, would be void. This reasoning is consistent with NEETIKA TUTEJA 2026.04.06 17:41 I attest to the accuracy and integrity of this document RSA-1396-1995 sePled principles governing Wakf law, wherein the property vests in Almighty God, and the Wakf Board acts as its statutory custodian. 14. However, the first Appellate Court reversed these findings primar- ily on two grounds: first, that the muta$on in favour of Rashid Ali under orders of the Custodian conferred upon him managerial control sufficient to validate the lease; and second, that there was no proof of dedica$on or religious user so as to cons$tute the property as Wakf. 15. In the considered opinion of this Court, the approach adopted by the first Appellate Court suffers from serious legal infirmi$es. 16. Firstly, the muta$on entry (Ex.A-3), even if accepted, could not confer $tle upon Rashid Ali. It is trite law that revenue entries are not docu- ments of $tle, as they are merely fiscal in nature and prepared for purposes of land revenue. The Appellate Court erred in eleva$ng such entries to the status of conclusive proof of ownership, par$cularly in the face of statutory provisions governing Wakf proper$es. 17. Secondly, even assuming Rashid Ali to be a Mutawalli, he had no authority to create a lease for a period of 99 years. Under the Wakf law as well as the statutory scheme (including the Wakf Act, 1954), any such long-term lease without prior sanc$on is void. A void transac$on does not create any legal rights, nor can it be validated on the ground of bona fide purchase. The prin- ciple nemo dat quod non habet (no one can transfer a bePer $tle than he him- self possesses) squarely applies. Therefore, the defendant, claiming through such void transac$ons, cannot acquire any enforceable right. 18. Thirdly, the reasoning of the Appellate Court that absence of direct evidence of dedica$on negates the Wakf character of the property is also leg- ally unsustainable. Wakf may be established not only by direct evidence of ded- ica$on but also by long user, surrounding circumstances, and historical recogni- $on. The consistent descrip$on of the property as “Takia Azam Shah” in rev- enue records, coupled with its recogni$on in official no$fica$ons and manage- NEETIKA TUTEJA 2026.04.06 17:41 I attest to the accuracy and integrity of this document RSA-1396-1995 ment by statutory authori$es, cons$tutes strong circumstan$al evidence of its Wakf character. The trial Court had rightly appreciated this aspect. 19. Fourthly, the reliance placed by the Appellate Court on the earlier judgment dated 30.10.1972 (Ex.D-6) is misplaced. A finding in a prior suit does not operate as res judicata unless the par$es, subject maPer, and issues are iden$cal and were directly and substan$ally in issue. Moreover, a ques$on re- la$ng to the character of property as Wakf, being one of public and statutory nature, cannot be conclusively defeated by an earlier erroneous judgment, par- $cularly when statutory rights of a Wakf Board are involved. 20. Fi(hly, the protec$on under Sec$on 41 of the Transfer of Property Act, as extended by the Appellate Court, is wholly misconceived. The said provi- sion applies where a transfer is made by an ostensible owner with the consent of the real owner and the transferee acts in good faith a7er due care. In the present case, neither was Rashid Ali the ostensible owner with consent of the true owner (i.e., Wakf), nor can a transferee claim protec$on when the root of $tle is void. Good faith cannot cure a transac$on that is void ab ini$o. 21. The conten$on raised on behalf of the defendant seeking protec- $on under Sec$on 51 of the Transfer of Property Act, 1882, on the ground that substan$al construc$ons were raised over the suit property during long posses- sion, also deserves to be considered. 22. Sec$on 51 embodies an equitable principle that where a trans- feree, ac$ng in good faith and under a defec$ve $tle, makes improvements on immovable property, he may, upon evic$on by a person having a bePer $tle, claim compensa$on for such improvements or seek to purchase the interest of the true owner. However, the applicability of this provision is condi$onal upon the sa$sfac$on of essen$al requirements, namely: (i) the existence of a transfer giving rise to a defec$ve but plausible $tle; (ii) bona fide belief of absolute en$tlement; and NEETIKA TUTEJA 2026.04.06 17:41 I attest to the accuracy and integrity of this document RSA-1396-1995 (iii) absence of knowledge, actual or construc$ve, regarding the defect in $tle. 23. In the present case, the defendant traces his rights to a lease pur- portedly granted by one Rashid Ali, claimed to be a Mutawalli/Mohtmim of the property. As already discussed hereinabove, the said lease for a period of 99 years is void ab inio, being in clear contraven$on of the statutory restric$ons governing Wakf property. A Mutawalli, in law, is merely a manager or custodian of the Wakf and does not possess proprietary rights so as to alienate the prop- erty except in accordance with law and with requisite sanc$on. Consequently, the very founda$on of the defendant’s claim is legally non-existent. 24. It is well sePled that Sec$on 51 applies to cases of defec$ve $tle and not to cases where there is a complete absence of $tle. A transac$on, which is void ab ini$o, does not create even a semblance of lawful $tle. There- fore, a person claiming under such a void transac$on cannot be treated as a transferee within the meaning of Sec$on 51. 25. Further, the requirement of good faith is also not sa$sfied in the present case. The nature of the property, being described consistently as “Takia Azam Shah” in revenue records, coupled with the unusually long lease period of 99 years, was sufficient to put a prudent purchaser on no$ce regarding the legal limita$ons on aliena$on. In such circumstances, the plea of bona fide belief in absolute ownership cannot be accepted. The defendant, or his predecessor-in- interest, cannot be said to have acted with due care and cau$on as required by law. 26. The argument that the defendant has been in long possession and has raised substan$al construc$ons at considerable expense also does not ad- vance his case. It is trite that equity follows the law. Where a transac$on is pro- hibited by statute and is void, no equitable relief can be granted so as to defeat the statutory mandate or to validate an otherwise illegal act. Improvements made by a person on property, without lawful $tle and in the face of legal pro- hibi$on, are made at his own risk and peril. Page 11 of 12 NEETIKA TUTEJA 2026.04.06 17:41 I attest to the accuracy and integrity of this document RSA-1396-1995 27. Thus, neither the length of possession nor the extent of construc- $on can confer upon the defendant any right to claim compensa$on under Sec- $on 51 of the Transfer of Property Act. The provision cannot be invoked to pro- tect possession founded upon an illegal and void transac$on, par$cularly when the property in ques$on is alleged to be Wakf property, which enjoys a special status in law. 28. Accordingly, the plea raised by the defendant for grant of benefit under Sec$on 51 of the Transfer of Property Act is devoid of merit and is hereby rejected. This conclusion further reinforces the finding that the defendant is in unauthorized possession and is not en$tled to any equitable relief, much less compensa$on for the alleged improvements. 29. Conclusion : In view of the aforesaid analysis, this Court is of the considered opinion that the findings recorded by the first Appellate Court are contrary to sePled legal principles and suffer from misapplica$on of law as well as misreading of evidence. The trial Court had rightly concluded that the suit property was Wakf property and that the defendant was in unauthorized pos- session. 30. Accordingly, the conclusion reached by the first Appellate Court cannot be sustained in law. The judgment of reversal is hereby set aside, and that of the trial Court is hereby restored. Consequently, the present appeal merits acceptance and is accordingly allowed. Misc. applica$ons, if any stand disposed of. (DEEPAK GUPTA) JUDGE 06.04.2026 Neeka Tuteja Whether speaking/reasoned? Yes/No Whether reportable? Yes/No Uploaded on.: 06.04.2026 NEETIKA TUTEJA 2026.04.06 17:41 I attest to the accuracy and integrity of this document