1 2025:HHC:28745 IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA C.R. No. 93 of 2011 Date of decision: 22.08.2025 _____________________________________________________________ Manjit Singh & another …..Petitioners Versus H.P. Wakf Board & another …Respondents _____________________________________________________________ Coram: The Hon’ble Mr. Justice G.S. Sandhawalia, Chief Justice. Whether approved for reporting? _____________________________________________________________ For the Petitioners: Mr. Bhupender Gupta, Senior Advocate with Mr. Pranjal Munjal, Advocate. For the respondents: Mr. R.K. Bawa, Senior Advocate with Mr. Abhinav Thakur, Advocate. G.S. Sandhawalia , Chief Justice (oral) The present Revision Petition filed under Section 83(9) of the Wakf Act, 1995 read with Section 115 of the Code of Civil Procedure by defendants No. 2 & 3 is directed against the judgment dated 19.03.2011, passed in Civil Suit No. 16-D/2002, H.P. Wakf Board Vs. Tejinder Kaur & others, by the Wakf Tribunal-cum- District Judge, Kangra at Dharamshala (for short ‘the Tribunal). The Civil Suit for grant of decree of permanent prohibitory injunction and mandatory injunction was 2 decreed against the defendants No. 2 & 3-present petitioners and they were restrained from raising any type of construction over the suit property, comprising in Khata No. 164 min, Khatauni No. 454, Khasra No. 2411 and 2412, Kita 2, area measuring 86-90 square meters situated at Up Mohal Dharamshala, Tehsil Dharamshala, District Kangra H.P. Defendant No. 1-Smt. Tejinder Kaur/respondent No. 2 herein, was only given permission to raise construction, if granted by the plaintiff-respondent No. 1 herein/Wakf Board and the present petitioners who were closely related being husband of respondent No. 2 herein, were restrained from raising any type of construction. The relief of mandatory injunction for demolition of property was declined and the Counter- Claim filed by defendant No. 1-Tejinder Kaur as such was partly allowed with permission to apply for raising construction within sixty days after receipt of copy of the judgment. 2. The Tribunal as such had framed as many as 16 issues, while deciding the Civil Suit. 3. While deciding Issue No. 1, the Tribunal came to the conclusion that defendant No. 1 was a tenant of the 3 plaintiff-Wakf Board on monthly rent of Rs. 800/-, whereas Issue No. 2, which was regarding the claim as such of defendant No. 1 that she had built a ‘Khokha’ over the suit property with the permission and consent of the plaintiff-Wakf Board, was held not to be proved and accordingly, the said Issue was decided against her. 4. Issue No. 3 that the defendant No. 1 has no legal right to make any construction over the suit property without prior permission of the plaintiff-Wakf Board, was decided in favour of the plaintiff-Wakf Board, because as per the terms and conditions of the Lease Deed Ext. PW- 3/A, the lessee was not entitled to make any construction, reconstruction, addition, alteration or change the nature of the property without written permission of the Board. As noticed above, defendant No. 1 was allowed to file an application before the Wakf Board seeking necessary permission to raise construction within sixty days of the receipt of copy of the judgment. 5. Issue No. 4 was regarding the Civil Suit having been properly valued, which was decided in favour of the plaintiff-Wakf Board, whereas Issue No. 5 was that the judgment dated 28.08.1992, passed by the Sub Judge (II), 4 Dharamshala, in Civil Suit No. 597/86, RBT No. 355/91, titled as Shanti Devi Vs. Manjeet Singh & others, was not binding upon the plaintiff. The said matter had gone upto the Apex Court and it was held by the Tribunal that the said judgment would not operate against the plaintiff- Wakf Board on the ground that the Wakf Board was not party in the aforesaid Civil Suit and, therefore, was not bound by the same. Accordingly, Issue No. 5 was decided in favour of the plaintiff. 6. Jurisdiction of the Court as such to adjudicate the Civil Suit was held justified under Issue No. 6, since as per the Revenue Record, i.e. Jamabandi for the year 1995- 1996 (Ex. P.1), in the column of ownership, out of 236 shares, the Plaintiff-Wakf Board has been shown as the owner of 218 shares. Accordingly, the said Issue was decided against defendant No. 1. 7. The plaintiff was held to have cause of action as it could protect the Wakf property and, therefore, Issue No. 7 was decided against defendant No. 1. The suit was held to be maintainable against defendant No.1 in view of the provisions of Section 83(5) of Wakf Act, 1995. While disposing of the Counter-Claim as such under Issue No. 9, 5 it was partly decided in favour of defendant No. 1 and partly in favour of the Counter-Claimant by holding that the Wakf Board was under legal obligation to dispose of the application filed by defendant No. 1 for permission to raise construction over the suit property. 8. Issue No. 10 over-laping on the ground that the plaintiff was owner of 218 shares out of 236 shares as per the revenue record itself and it was held that any judgment and decree passed by the Court would not be binding upon the person who was not impleaded as party in the former suit, appeal or RSA. 9. Issue No. 11, whereby the suit was held to be bad for non-joinder of custodian evacuee property, was decided against defendants No. 2 & 3, by holding that the suit land had been vested in Punjab Wakf Board and thereafter, the property was situated in Himachal Pradesh and qua Wakf Board vested in H.P. Wakf Board, the plaintiff was not seeking any relief against the Custodian Department and that there was no pleading in the plaint that the plaintiff had sought relief against the Custodian Department and accordingly, the said Issue was decided against defendants No. 2 & 3. 6 10. Regarding the Issue of estoppel as such by the act and conduct of the plaintiff under Issue No. 11, it was found that defendant No. 1 was the legally wedded wife of defendant No. 2 and the plaintiff had filed the Civil Suit in order to protect the property of the Wakf Board. Hence, the plaintiff was not estopped by his act and conduct to file the Suit. 11. Under Issue No. 13, the creation of tenancy in favour of defendant No. 1, which was called the result of fraud and mis-representation, was rejected and decided against defendants No. 2 & 3, as they did not lead any evidence as such. 12. While deciding Issue No, 14 regarding the possession of the suit property by defendants No. 2 & 3, it was held that the revenue record as such remained un- rebutted and the mere oral evidence as such would not prevail over the documentary evidence. The litigation inter-se Shanti Devi and Manjit Singh, was qua the possession of land, whereby Shanti Devi had been dispossessed from the land and the suit property had been purchased as such by the predecessor of defendants No. 2 & 3 from the Custodian Department. Resultantly, 7 Issue No. 14 was also decided against the present petitioners. 13. The claim as such of the present petitioners to be the owners by way of adverse possession, under Issue No. 15, was rejected as they did not adduce any positive, cogent and reliable evidence in order to prove that possession of defendants No. 2 & 3 has become hostile to the legal rights of true owner-Wakf Board. Therefore, the said Issue was decided against defendants No. 2 & 3. 14. Resultantly, relief was granted as has been noticed in the earlier part of the judgment. 15. Senior Counsel for the petitioners has vehemently submitted that the Wakf Board did not have any locus-standi as such by only relying upon Notification Ex. P-3 and the the fact that the suit property was the Wakf property, had not been proved. It was pleaded that the grandfather of defendants No. 2 & 3-the present petitioners had purchased a chunk of land and, therefore, they had a right to defend the litigation. 16. On the other hand, Senior Counsel for the respondents argued that it was only a suit for injunction and, therefore, on the basis of the evidence on record, the 8 suit had been decreed. There was a Lease Deed executed in favour of defendant No. 1, i.e. the wife of Manjit Singh- defendant No. 2 and revenue record i.e. Jamabandi for the year 1995-1996, to which the presumption of truth could be attached under the Revenue Act showed the ownership of the Board. In such circumstances, neither there was any occasion to decide the Issue of title as such nor any evidence was led by the petitioners to this extent. Further, the petitioners have neither pleaded so in their written statement nor placed anything on record in a form of allotment from the Custodian Department. 17. Keeping in view the limited controversy as such, this Court is of the considered opinion that on the basis of the material produced on record, the decree for grant of injunction had been extended to the Wakf Board. The same was on the basis of the Notification Ext. P-3 and the Lease Deed dated 25.02.1999, (Ext. PW-3/A), executed in favour of defendant No. 1, who had sought to raise construction, in spite of the fact that there was a restraint clause against her, whereby she was estopped from raising any type of construction over the suit property, area 86.90 square meters, which showed that 9 the property was in the nature of the Wakf (Mosque) and the lease commenced from 01.01.1999. It further provided that the period of lease was 11 months and as per Clause 8(v) of the Lease Deed, the leasee would not be entitled to raise any construction-reconstruction addition, alteration or change the nature of the property without written permission of the Board. Apparently, the monthly rent was fixed at Rs. 800/-. 18. Apparently, as per Ext. PW-3/B, defendant No. 1-Tejinder Kaur had been granted ‘No Objection Certificate’ for erection of ‘Khokha’ on the land in dispute. Apart from that, a donation of Rs. 24,200/- was received from defendant No. 1-Tejinder Kaur, vide receipt dated 25.02.1999 (Ex. PW3/DA.). 19. In such circumstances, as the suit was simplicitor for mandatory induction as such, this Court is of the considered opinion that on the basis of the material on record, the property had been leased out to defendant No. 1, the Tribunal as such had granted the benefit of injunction to defendant No. 1 and protected her interest to the extent that she was entitled to raise construction only after obtaining permission of the plaintiff-Wakf Board, as 10 per the terms and conditions of the Lease Deed Ext PW3/A. The arguments thus raised that the petitioners as such were the owners as such on account of the allotment made to their grandfather, had never been projected in the suit and was not the subject matter before the Tribunal. In such circumstances, the benefit which had been granted on the basis of the evidence on the record and by deciding the suit for injunction, the necessary ingredients have been kept in mind, which were regarding the possession as such by one of the parties; the entitlement of the rights which flow from the Lease Deed; the fact that suit was filed on 02.08.2002 after almost three years, whereas the Lease Deed was executed on 28.02.1999 and possession as such of the defendant No. 1 had become settled. The revenue record also showed the entries in favour of the respondent No. 1 on the basis of the Lease Deed. 20. Reliance can be placed upon the judgment rendered in Pratap Singh (dead) through legal representatives & others Vs. Shiv Ram (dead) through Legal representatives, 2020 (11) SCC 242, wherein while dealing with the provisions of the Evidence 11 Act and the HP Land Revenue Act, 1954, the said observations flowed and the findings returned by the High Court were set aside, by holding that the burden is on the person who asserts such a relationship as per Section 109 of the Evidence Act. 21. The relevant paragraph of the aforesaid judgment reads as under: “17. The detailed procedure for recording of periodical record-of-rights as well as the record-of-rights in terms of Sections 32 & 34 of the 1954 Act has been prescribed. The record-of-rights contains entries of the revenue record for the four years. Such record-of-rights carries the presumption of correctness in terms of Section 45 of the 1954 Act and also Section 35 of the Indian Evidence Act, 1872 (for short “the Evidence Act”). Section 109 of the Evidence Act further contemplates that whether there exists a relationship of landowner and tenant and the burden of proving such a relationship is on the person who affirms it. 18 & 19. xxxxxxxxxxxxxxxxxxxxxxxxxx 20. The present is a case where no relationship of landlord and tenant is mentioned in the revenue record though required in terms of Section 32(2)(a) of 1954 Act. In the absence of entry in 12 the/revenue record, which is also expected to contain the entry of rent and possession, the tenancy cannot be treated to be in existence only on the basis of oral evidence of the witnesses examined by the defendant. The burden of proving the relationship was on the defendant. Such burden cannot be said to be rebutted only by oral evidence. The witnesses may lie but the documents do not, is a golden rule. The presumption of truth attached to the revenue record can be rebutted only on the basis of evidence of impeccable integrity and reliability. The oral evidence can always be adduced contrary to the revenue record but such oral testimony will not be sufficient to hold that the statutory presumption stands rebutted. 21 to 25 xxxxxxxxxxxxxxxxxxxxxx 26. Therefore, we find that the presumption of truth attached to the record- of-rights can be rebutted only if there is a fraud in the entry or the entry was surreptitiously made or that prescribed procedure was not followed. It will not be proper to rely on the oral evidence to rebut the statutory presumption as the credibility of oral evidence vis-a-vis documentary evidence is at a much weaker level.” 13 22. In such circumstances, the benefit which had been granted by the Tribunal was only to protect the property as such from any change in the status, which would be contrary to the terms and conditions of the Lease Deed. The arguments as such that the statement of defendant No 1 is contrary to the written statement, is of no consequence as the purpose was only that the property of the Wakf Board remains protected and no permanent construction is raised without permission. 23. Accordingly, no error as such is found in the order of the Tribunal. Hence the Revision petition is dismissed. (G.S. Sandhawalia) Chief Justice. August 22, 2025 (hemlata)