M.M.KUMAR,J - (1.) THIS appeal filed under Section 100 of the Code of Civil Procedure, 1908 (for brevity, 'the Code') raises the following substantial question of law :- "Whether in the facts and circumstances of the case the property in dispute be regarded as wakf property under the management of the Wakf Board by virtue of Section 66H added by the Wakf (Amendment) Act, 1984 ?
(2.) THE appeal was infact decided by this Court vide its judgment dated 30.10.1992 upholding the concurrent findings recorded by both the Courts below holding that the land could not be presumed to be wakf property merely on the basis of its having been recorded in possession of Idgah and that Wakf could only be created by dedication in writing by a person professing Islam. It was further held that there was no evidence of user since times immemorial which may warrant an inference of dedication. The judgment of this Court dated 30.10.1992 was challenged before Hon'ble the Supreme Court on the ground that this Court did not take into account documents Ex. P-5 to P-17, which are jamabandies commencing from 1915-16 to 1965-66 nor anybody brought those documents to the notice of the Court because apparently no one had appeared for the parties. The judgment dated 13.10.1992 was set aside and the appeal has been remitted back to this Court for fresh disposal in accordance with law. It is how the matter has come up again. The dispute revolves around a piece of land measuring 10 kanals 6 marlas comprised in Khewat No. 683/445, Khatauni No. 693, Khasra No. 128 described as Gair Mumkin Idgah, vide jamabandi 1965-66, situated in Patti Jhambra, Shahbad Markanda, Tehsil Thanesar, District Karnal (to be referred as disputed land). The Punjab Wakf Board-plaintiff appellant has filed a civil suit on 5.3.1970 claiming possession of the disputed land. It was alleged that the land in dispute is illegally occupied by Murti Hanuman Jai Bekunthpuri Mandi, Shahabad. The trial Court dismissed the suit by recording the findings on various issues. There is Issue No. 2, which is crucial and pertains to 'Whether the property in dispute is Wakf and under the management of the Wakf Board.' The finding recorded on this issue are : "A perusal of Ex. P.5, copy of Jamabandi 1965-66 would show that it stands entered in the column of ownership that the suit property is Idgah Wasa Deh Haza. In the column of cultivation the Hanuman Mandir stands entered. That being so, the documentary evidence would not show that the defendant is in possession of the suit property in any personal capacity. This fits in with the plea taken up by the defendant. The plaintiff has not placed on record any Gazette Notification to show that the suit property vested in the plaintiff. The learned counsel for the plaintiff was not in a position to show me as to at what point of time the suit property came to vest in the plaintiff." On Issue No. 4 as to 'whether a Mandir exists on the site in dispute and if so what is the duration of its existence and its effect on the maintainability of the suit, it has been held in para 14 as under :- "In view of my finding on issue No. 2, which is based on documentary evidence, it is held that a Mandir exists on the suit property. The result therefore, is that the suit is not maintainable against the defendant."
(3.) LIKEWISE , Issue Nos. 5 and 6 were 'whether the deity has become owner of the disputed property by adverse possession and that the suit is time barred'. It was observed that the issues were not pressed by the learned counsel for the defendant-respondent and accordingly the same were decided in favour of the plaintiff-appellant. The suit was dismissed with costs vide judgment and decree dated 3.10.1975.;