The Delhi High Court has dismissed a review petition filed by four applicants who claimed to be the sons of previous Mutawalli or caretakers of the dargah at Amir Khusro Park and, therefore, asserted their right to some construction inside the tikona graveyard park, also known as Amir Khusro park.
Mohd Shakeel, Mohd Allauddin and Mohd Mehmood (claiming to be the three sons of the late Mohd Yusuf and the late Mohammed Yunus) and Mohd Nasir (son of Mohd Hakmuddin) had sought review of an order passed by the high court on May 16.
Under the said order, the court had observed that the petitioners did not have sufficient documentary evidence to prove their claim and sought a status report from the authorities concerned.
What the court said
After examining all the submissions and evidence on record, a division bench of Acting Chief Justice Gita Mittal and Justice C Hari Shankar held that presumption of possession over an open land always is deemed to be that of the owner and not of a trespasser. An open place of land shall be presumed to be in possession of the owner unless it is proved by the trespasser that he had done some substantial acts of possession over the land, which may excite the attention of the owner that he has been dispossessed.
The Delhi Wakf Board asserted that the said land was a Muslim graveyard and that it had the structures of two graveyards, namely Dargah Shah Firdaus and Dargah Musafir Shah with a wall type mosque.
The review petitioners claimed several structures wherein they claim to have been residing.
They claimed that their fathers were predecessor-in-interest for the said structures as they were appointed as a Mutawalli (caretaker) for the two Dargahs at this park.
Court’s Reasoning and Observations
The court noted that the claim on such residences and structures is not supported by any document in the nature of the government notifications extracted above or government records. There is no evidence to establish the existence of such structures, the court said.
In its 75-page order, Acting Chief Justice Gita Mittal observed:“As the appellant has miserably failed to establish the ground on which he claims to have come in possession of the disputed land, I am of the view that presumption that possession follows title will come into play. Except construction of water tank and shed over the open land and construction of roof in front of the shop the appellant has not done any substantial acts of possession over the land which may excite the attention of the respondent that she has been dispossessed. It may be mentioned that the construction is over a small piece of land which totally admeasures 995 sq. yds.”
Referring to the decision of the high court in State of Gujarat vs Patel Chhotabhai Bhaijibhai, the court noted that the small piece of land over which the construction has taken place in the said park was of no present use to the respondent and being convenient in many ways to the appellant, the latter had made use of it in various ways without the notice of the respondent.
“Such user as this cannot be construed as an act of dispossession of the respondent. User of this sort under similar circumstances is common in this country and excites no particular attention. It is neither intended to denote or understand as denying on one side or the other a claim to dispossession of the land.
“The present review petitioners have not only flagrantly violated the series of orders of this court in all the above writ petitions but also the law laid down by the Supreme Court. The review petitioners have therefore, miserably failed to establish existence of old residential structures or possession thereof by their ancestors. On the contrary, they have established attempt to trespass and illegal usage of the land in question. They have failed to establish any entitlement to interim directions.”
Finally noting the unsanitary conditions in the park due to such habitation and dumping of garbage in the area, the court observed: “No court can permit the lives of the lawful residents in the surrounding areas, as well as of the visitors to these monuments which are of international repute, to be imperilled. It is our constitutional duty to ensure that the right to life of all residents of Delhi is not imperilled if activity which would lead to increase of insanitary conditions as well as breeding of mosquitoes carrying dangerous diseases is continued or permitted.”
Thus, the petition was dismissed and the police have been directed to file a status report in eight weeks.