Remanded
Punjab Wakf Bd. v. Ram Sarup & Ors.
Punjab & Haryana HCRSA/2208/2002
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of 2002 1 IN THE HIGH COURT OF PUNJAB AND…
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of 2002 1 IN THE HIGH COURT OF PUNJAB AND…
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RSA No. 2208 of 2002
1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
RSA No. 2208 of 2002
Date of Decision: July 09, 2009
Punjab Wakf Board
...... Appellant
Versus
Ram Sarup and others
...... Respondents
Coram: Hon'ble Mr. Justice Ajay Tewari
Present: Mr. S.K.Pipat, Senior Advocate with Mr. Ramanjeet Singh, Advocate for the appellant.
Mr.J.P.Sharma, Advocate for the respondents.
Ajay Tewari, J.
This appeal has been filed against the judgment and decree dated 23.1.2002 whereby the appeal filed by the appellant-plaintiff was dismissed as having been filed by a person not authorised to file the same.
The appellant Punjab Wakf Board field civil suit for permanent injunction against the respondents restraining them from interfering with the property on the ground that the same was a graveyard . The learned trial Court found that neither the appellant had any title over the property in dispute nor the respondents and dismissed the same. Appeals were filed by both the parties. It is noteworthy that the appeal filed by the appellant had
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RSA No. 2208 of 2002
been filed through the Estate Officer. The learned lower Appellate Court by the impugned judgment and decree dismissed both the appeals, the one filed by the appellant on the ground of having been filed by a person not authorised to do so and the one by the respondents on merits upholding the findings of the trial court that they had no right, title or interest in the property in dispute. Despite the fact that service has been effected, none has appeared for the respondents probably because they have been held to have no right, title or interest in the suit property also.
Learned Senior Advocate has argued that the findings of the lower Appellate Court has proposed the following substantial questions of law:-
i) Whether the judgments and decree of the courts below are against law and contrary to the facts on the record of the case and are thus untenable in law? ii) Whether while dismissing the appeal of the appellants as not maintainable the Lower Appellate Court has failed to exercise jurisdiction vested in it by law?
iii) Whether the Lower Appellate Court was justified in dismissing the appeal on a hyper-technical ground? iv) Whether the appeal is the part of the proceedings and could be filed on the basis of an order dated 30.11.1991 authorizing the Estate Officer to file a suit and to do every act deemed necessary for pursuing the case?
v) Whether the Estate Officer was competent to file an appeal in view of a notification regarding delegation of powers published in Govt. of India gazettee on 6th June, 1987?
vi) Whether the decision of the trial court on issue no. 1 is erroneous as the evidence on the record has been misread and misconstrued?
RSA No. 2208 of 2002
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vii) Whether issues no.2 and 6 have been wrongly decided by the courts below as the plaintiff appellant was entitled to the relief claimed for?
viii) Whether the courts below have been found that defendants No. 1 to 6 were not the owners and they have no concern with the possession of the plot, the suit of the plaintiff appellant should have been decreed?
It would be seen that questions No. (ii), (iii), (iv) and (v) are overlapping. In case these questions are answered in favour of the appellant this appeal would have to be remanded back to the learned lower Appellate Court for a decision on merits in which case questions No. (i), (ii), (iii) and (viii) would be left best answered by that Court.
As regards questions No.(ii), (iii), (iv) and (v) learned counsel has made two submissions. In the first place he has argued that by notification dated 16.4.87 published on 6.6.87 (Annexure A-1) the appellant had inter alia delegated the powers to institute and defend suits and other proceedings, to engage counsel etc. to the Estate Officers. He has argued that in view of that exercise of statutory power (under Section 22 of the Wakf Act, 1954) the finding of the learned lower Appellate Court on the requirement for specific authorisation is clearly illegal. In support of his assertion learned counsel has relied upon Ramlagan Singh v. State of Bihar reported as AIR 1960 PATNA 243.
In the alternative learned counsel has also argued that the suit had also been filed by the Estate Officer and the same having been held to be competent and, in any case an appeal being continuation of the suit it was not proper for the learned lower Appellate Court to dismiss the appeal of a public ecclesiastical body on such technical grounds.
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RSA No. 2208 of 2002
I find that the position of law stated by learned counsel is correct and that the dismissal of the appeal by the learned lower Appellate Court relying upon the judgments which were as per the position which obtained prior to 16.4.87 is clearly unwarranted.
In the circumstances I decide the questions of law posed in favour of the appellant and consequently allow the appeal. The matter is, therefore, remanded back to the learned lower Appellate Court for a decision of the appeal of the appellant on merits. Parties are directed to appear before the learned lower Appellate Court on 27.8.2009.
(AJAY TEWARI) JUDGE
July 09, 2009 sunita
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Ramlagan Singh v. State of BiharRelied on¶34
Ramlagan Singh v. State of Bihar reported as AIR 1960 PATNA 243 · Who else cites this
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Punjab Wakf Board
Ram Sarup and others
Ajay Tewari
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