History books can’t prove title, says Jammu & Kashmir HC; declares two shrines & attached properties in Kishtwar as waqf

SRINAGAR: Holding two shrines and their attached properties in Kishtwar district to be waqf, the Jammu and Kashmir high court has ruled, in a case dating back nearly five decades, that petitioners claiming to be hereditary custodians of the mausoleums have no ownership rights. Property titles must be decided on evidence, not based on public history, the court said.

“It is clear that it is only in the matters of public history that the court can rely upon appropriate books or documents of reference. Whether a person is or is not holding a title to a particular property cannot be a question of fact of public history,” a single bench of Justice Sanjay Dhar observed in its judgment last week. The petitioners had relied on history books and records in support of their claim.

The case, which the court called having a “long-chequered history”, dated back to 1979, when the petitioners approached HC claiming to be ‘Sajjada Nasheens’ or hereditary caretakers of the shrines of Ziarat Farid-ud-Din Sahib and Ziarat Assrar-ud-Din Sahib, and asserting exclusive ownership over the shrines and the properties attached to them. They moved HC after Doda deputy commissioner in 1978 described the shrines as waqf properties.

In 1998, a single bench of J&K high court dismissed the plea, and a division bench upheld it in 2003. However, the Supreme Court in 2013 set aside the division bench ruling and remanded the matter for fresh consideration to HC.

In his judgment, Justice Sanjay Dhar dwelt upon the history of Kishtwar and the two shrines. Kishtwar was an independent state before its annexation by Maharaja Gulab Singh in 1821. Around 1681, its ruler Raja Kirat Singh converted to Islam.

Shah Farid-ud-Din Sahib, who arrived in Kishtwar in the 17th century, and his son Shah Assrar-ud-Din Sahib, were revered saints whose mausoleums became prominent shrines, and still continue to draw a large number of devotees.

The petitioners claimed hereditary rights over the shrines, stating that 20 kanals of land had been granted by Kirat Singh to his granddaughter, who was married to one of their ancestors. They argued that the properties, in which they have built houses, were private and not waqf, as no such formal dedication had been made by its owner, Raja Kirat Singh.

However, Justice Dhar said: “The petitioners have not placed on record any cogent and convincing material that would rebut the presumption attached to the entries in the ‘jamabandi’ (revenue records). Therefore, it cannot be stated that the petitioners or their ancestors were the owners of the ziarat and the land attached thereto.”

On the history books referred to by the petitioners to back their claims, the court said the facts relating to the properties mentioned in those books “cannot be used to prove the title of the petitioners”.

The petitioners also cited a waqf official’s report of 1969 recognising the hereditary role of Sajjada Nasheens, but HC said the official had no authority to decide title.

While HC upheld the inclusion of the shrines under waqf, the petitioners were allowed to continue to occupy the residential premises on the land as lessees under applicable waqf rules.