New Delhi
The Supreme Court on Wednesday dismissed an appeal filed by the Delhi Waqf Board seeking possession of a pre-independence gurudwara in Oldenpur village of Shahdara as waqf property, observing that the board should have relinquished its claim once the records showed that a religious structure had been functioning on the land since 1948.
A bench of justices Sanjay Karol and Satish Chandra Sharma passed the order on a 2012 appeal filed by the board, challenging a Delhi high court order of September 24, 2010, which held the property to be in possession of the late Hira Singh, who had purchased it from Mohammad Ahsan in 1953.
Dismissing the appeal, the court said, “The records show there is a gurudwara functioning since Partition. Once a religious structure is there, you should yourself relinquish your claim.”
The Waqf Board, represented by senior advocate Sanjoy Ghose, contended that the high court disturbed concurrent findings by a trial court, first in October 1982 and then again in February 1989, in the board’s favour. He said that the property has been since time immemorial dedicated as waqf property and witnesses in the suit deposed that there was a mosque and “some sort of a gurudwara” came to be built over that.
The bench interjected Ghose and said, “It is not some sort of gurudwara. There is a fully functional gurudwara there.”
The board claimed that the property in question was gazette notified on December 3, 1970, and subsequently corrected by another notification of April 29, 1978, published in the Delhi Gazette on May 18, 1978. As per the Waqf Board records, the property in question was notified as “Masjid Takia Babbar Shah”.
The high court, in its judgment, had said: “The defendant (Singh) was admittedly in occupation of this property since 1947-48… It is also true that the defendant was not able to adduce any document of title to evidence the purchase of this property, yet this does not in any manner benefit the plaintiff (Waqf Board) who has to establish his own case and prove it to enable him to obtain a decree of possession.”
The high court had noted that although the board claimed it to be waqf property, no dates were given as to from which date the property was being used as a masjid. “This assumes special relevance as the defendant (Singh) in his written statement had specifically controverted this stand.” The board had relied on the deposition of witnesses, who attested to the fact that the mosque was constructed by Muslim owners of the property, and the defendant occupied it illegally since 1948.
The high court relied on a 1979 Supreme Court decision in the Board of Muslim Waqfs, Rajasthan case, where it held that where a stranger who is a non-Muslim and is in possession of a certain property his right, title and interest therein cannot be put in jeopardy merely because the property is included in the list published under the Waqf Act, 1954. Going by this verdict, the high court held that the gazette notification of the property being waqf “would not be binding on a stranger or a person who does not fall in the category of “person interested in a wakf” as defined under Section 3(h) of the act.
Singh had pointed out that the Gurudwara Managing Committee was managing the premises in dispute. It was further stated that the Waqf Board had filed two suits that were withdrawn in 1970 and 1978. He further pointed out that under Section 64 of the Limitation Act, a suit for recovery of possession of property has to be filed within 12 years from the date when the right to sue accrued. In the present case, the Waqf Board filed the suit in December 1980, which was time-barred.