Bihari, JJ. - (1.) Binod Kumar Roy and Lakshmi This is defendant No.1's First Appeal against the judgment and decree dated 16.6.1981 passed by Sri A.H. Ansari, Civil Judge, Court No. 2, Dehradun decreeing Original Suit No. 213 of 1972 filed for (i) issuing a permanent injunction restraining it (Defendant No. 1) and its employees and agents from interfering in any manner with the possession of the plaintiff and defendant No. 2 over the land known as Mohammedan's Grave Yard situated at Kanwali Road, Dehradun described at the foot of the plaint and (ii) awarding costs.
(2.) The suit was originally filed by Wakf Masjid Khurbara, dehradun through Its Secretary Asgar Ali and 10 others whose names were expunged and in their place respondent No. 1 was substituted. His case in short was as follows: The land bearing Municipal No. 13, Kanwali Road, Dehradun, measuring 18 bighas, is a Muslim Cemetery in respect of which no land revenue is payable; it is also exempt from assessment by the Municipality; it is waqf property registered with Defendant No. 2, U.P. Sunni Central Waqfs, as Waqf No. 20 Masjid Khurbura, Dehradun; defendant No. 2 constituted a Committee of Management for managing the properties of Waqf No. 20 aforesaid under Section 48 of the U.P. Muslim Waqf Act on 13.4.1972 for a period of three years; the Committee was dissolved and the plaintiff has been appointed as Honorary Administrator of Anjuman Nasrat-ul-Islam, Dehradun vide order dated 29.9.1976 and the Anjuman is in possession of the suit land and managing the same through the plaintiff; the land aforesaid is meant for burial place for the Muslims and has always been used as such till the communal disturbances in 1947, after which the Muslims have generally shifted to three or four specified localities; the present grave yard is not in use, as the other burial ground is available near to the aforesaid three or four specified localities, where the Mohammedan presently reside; the said tend had always been in possession of the Committee of Management of the Waqf Masjid, Khuarbura and is still in their possession; defendant No. 1 is threatening to establish a parking stand for private buses or to construct shops over the disputed land for shifting Sabji Mandi (vegetable market) from its present place even though it has no right to do so, as it is neither owner nor has any right, title or interest over the land in question; a few days bark, the employees of defendant No.1 came to the land in question and tried to store bujary etc. and dumped four truck loads in a corner of the land in suit on or about 28.7.1972 and thus the plaintiff learnt of the intention of defendant No.l to construct either a parking stand for private buses or the shops aforesaid; without consent of the plaintiff, defendant No. 1 has no right to enter into possession of the land in question which cannot be used for the purposes aforementioned, as it would injure the religious feeling of the Mohammedan of Dehradun; forcible dispossession of the plaintiff from .the land in question and interference with their possession may lead to serious law and order problem; Zishanullah and Asghar Ali met the Executive Officer of defendant No.l on 1.8. 1972 and enquired of the reasons for collecting bujary but did not receive any satisfactory reply from them who told that the District Administration has directed the defendant No. 1 to either shift the Sabji Mandi or to provide parking stand for private buses in the land in suit; the officials of defendant No. 1 were requested by them not to interfere with the possession over the land in suit and not to shift the Sabji Mandi or the Parking stand, but they expressed their inability to do so in view of the decision taken by the District Traffic Advisory Committee, which is neither a legally constituted body nor has any right, title or interest in the land in suit who has no right to take unilateral decision to encroach upon the said land; any alleged decision taken by the District Traffic Advisory Committee or the District Administration is illegal, without jurisdiction and not binding on the defendant No.l; the employees of defendant No. 1 have no legal right to enforce the alleged illegal and void decision of the said Committee; the employees of defendant No.l are threatening to forcibly occupy the suit land by- 7.8.1972 even though it has not been acquired either by defendant No.l or by the Government, which also cannot be acquired legally for any of the aforesaid two purposes; the employees of defendant No. 1 are intending to occupy the said land forcibly with the help of police force and have refused to desist from doing illegal acts, hence this suit without obtaining signatures of defendant No. 2, the matter being urgent and without serving a notice under Section 326 of the U.P. Municipalities Act on defendant No. 1.
(3.) Shortly put, the case of the appellant was as follows: apart from usual denial it has been stated, inter alia, that it is wrong to say that the entire suit land bears municipal No. 62; the particulars given in the Schedule are wrong and not admitted; Plaintiff No.1 or the Waqf Committee are not juristic persons and the plaintiff has no right to sue; at a distance from the main Kanwali Road there are about three or four graves in an area of 1 and bigha and the land around the aforesaid graves was never used as kabristan or grave yard nor had it ever been a grave yard; the Mohammedans of Dehradun have no right to use the same as graveyard, which is also not in the possession of the Committee of Management of the Waqf Masjid Khurbura; Mahanth, Darbar Sri Guru Ram Rai Sahib, Dehradun is the owner in possession of the land in suit; the District Magistrate is the Chairman of the District Traffic Advisory Committee, who advised the defendant No. 1 in regard to administration of traffic problems and the defendant No. 1, in the interest of the public safety and convenience of free traffic on the road, intended to have the place for parking of idle vehicles and was granted licence by Darbar Sri Guru Ram Rai Sahib in the last week of July, 1972 for making arrangement for parking of idle vehicles on the said land; it is admitted that the employees of defendant No. 1 cleared a portion of the suit land, which is lying waste and unproductive of income and had removed shrubs etc. on 27th and 28th July, 1972 and laid singal openly with the permission of the owner, Darbar Sri Guru Ram Rai 'Sahib, Dehradun, for parking idle trucks and vehicles; few persons had enquired The Executive Officer of defendant No. 1 about the laying of singal, who were told that the land was cleared and singal has been laid for the purpose of parking idle trucks or vehicles with the permission of the owner: it is admitted that defendant No. 1 has not acquired the suit land; the suit is bad for want of proper notice under Section 326 of the Municipalities Act; no cause of action has accrued to the plaintiff against defendant No. 1; the suit is also bad for non joinder of State of U.P., the District Traffic Advisory Committee and Mahanth Darbar Sri Guru Ram Sahib, Dehradun; and that the suit being false and vexatious is liable to be dismissed with costs.;