CRA No. 135/2014
1
IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 135 OF 2014
1. Janab Pir Sultashah Sadar Bhandari
Mutawalli, Age 55 years, Occu. Nil,
R/o. Abdulla Shah Durwesh @
Bhandari Buwa Dargah, Miraj,
Dist. Sangli, Maharashtra. ....Applicant.
Versus
1. Sau. Shamshadbi Adam Shaikh,
Age 53 years, Occu. Agri.,
R/o. 80D, Yadogopal Peth,
Satara, Dist. Satara.
2. The Chief Executive Officer,
Waqf Board of Maharashtra State
At Aurangabad.
3. Mehboob Shah Razakshah Fakir Bhandari,
since deceased through his L.Rs.
3-A. Rafeeq Mahebob Shah,
Age 45 years, Occu. Nil,
R/o. Guruwar Peth, Opp. to Ali
Raza Masjid, Miraj, Tq. Miraj,
District Sangli.
4. Husein Shah Razakshah Fakir Bhandari,
Age 50 years, Occu. Nil,
Respondent Nos. 3 & 4 both
R/o. Near Aliraja Masjid,
Guruwar peth, Miraj, Dist. Sangli. ....Respondents.
Mr. Shaikh Mobin H., Advocate for applicant.
Mr.V.D. Salunke h/f.Mr.S.B. Kakde, Advocate for respondent No. 1.
Mr. H.I. Pathan h/f. Mr. S.S. Patel, Advocate for respondent No. 2.
Mr. P.F. Patni h/f. Mr. P.B. Salunke, Advocate for respondent Nos.
3A and 4.
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CRA No. 135/2014
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CORAM : T.V. NALAWADE, J.
DATED : 11th March, 2016.
JUDGMENT :
1) Revision is admitted. Notice after admission made returnable forthwith. By consent, heard both the sides for final disposal.
2) The proceeding is filed against the judgment and order of Waqf Suit No. 64/2009, which was pending before the Waqf Tribunal, Aurangabad. The suit was filed by respondent No. 1 - Smt. Shamshadbi to challenge the decision given by the Chief Officer of the Waqf Board in Case No. 54/22/2008. That proceeding was started on the basis of application made by present petitioner for taking action u/s. 54 of the Waqf Act, 1995.
It is the case of petitioner that he is Mutawalli of Waqf institution and the property belongs to waqf institution. Prayer was made to remove the encroachment of the plaintiff of the suit from Survey No. 51/3 situated at Ankali, Tahsil Miraj, District Sangli. After giving notices to both the sides, inquiry was held by Chief Officer. The plaintiff had filed written arguments before the Chief Officer, but she did not produce the record to substantiate her defence. The Chief Officer considered the record available with the Waqf Board and also the record produced by the present ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:29:59 ::: CRA No. 135/2014 3 petitioner. Chief Officer held that the property belongs to waqf institution and directed to remove the encroachment. The new number is given to the property as Gat No. 155/2. It is held that the property belongs to Dargah of Pir Abdulla Shah Durwesh @ Bhandari Buwa Miraj, a religious institution.
3) In the suit, the plaintiff contended that Survey No. 51/3 was personal Inam land. She admitted that there is the Dargah of aforesaid name in existence, but she made some specific contentions in respect of nature of property at para No. 2 of the plaint, as follows :-
"2) The suit property described in para 1 is a personal inam land. There is an ancient Dargha by name abdulla Shah Durvesh alias Bhandari Buwa. Some lands were granted as personal inam to the persons looking after the religious rites and performing certain ceremonies at the dargah. Such persons were popularly known as Khadims. This Khadims were being maintained out of alms and offering devoted at dargah. The Inamas were since the days of the Adilshah of Deccan India. The suit land was given to tenants for cultivation as the Mirasdars (Permanent Tenants). The Mirasi Right (Permanent Tenancy Rights) were transferable to different tenants"::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:29:59 :::
CRA No. 135/2014 4
4) The plaintiff further contended that the suit land was Jat Inam land, personal Inam and so, the Inam was abolished under Inam Abolition Act, 1952. She contended that after abolition of Inam, the land was kept with Mirasdars, the tenants like defendant Nos. 3 and 4. It is contended that defendant Nos.
3 and 4 have sold their Mirasi rights under sale deed dated 26.8.1992 in her favour and the ownership rights are not transferred. She contended that she cannot be treated as trespasser or encroacher on the land. She had prayed for relief of declaration that order of Chief Officer is null and void with prayer to quash the order of Chief Executive Officer dated 6.3.2009. She had also contended that her predecessors were also Mirasdars in the land and this case ought to have been considered by the Chief Officer.
5) Defendant No. 1 - Chief Officer of Waqf Board filed written statement and contested the suit. Defendant No. 2, present petitioner filed written statement as Mutawalli to contest the suit. Following contentions were made by petitioner in the written statement.
(i) The suit property is waqf property and it was registered as trust property in the year 1952-53 under the provisions of Bombay Public Trust Act. The ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:29:59 ::: CRA No. 135/2014 5 Trust Act was applicable to the area where the property is situated and the registration of the property as a trust property was within the knowledge of plaintiff.
(ii) In view of the provisions of the Waqf Act, 1995 and as the property was registered as trust property in the past, there was deemed registration of waqf institution and the property under Waqf Act.
Further, by making application also by Mutawalli, the waqf institution and the property was registered under the provisions of Waqf Act, 1995 also.
(iii) The contention of plaintiff that defendant Nos. 3 and 4 were in possession as Mirasdar was also not correct and they had no right or interest in the suit property.
(iv) The registration of the property as trust property done in the year 1952-53 and subsequent registration under the Waqf Act, 1955 was never challenged by the defendant Nos. 3 and 4 and plaintiff also and so, they cannot contend in the suit of present nature that the property is not waqf property.
(v) The property belongs to religious institution, Dargah and so, the provisions of Inam Abolition Act and also the Tenancy Act could not have ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:29:59 ::: CRA No. 135/2014 6 been applied to the suit property and so, there are no rights in a suit property for defendant Nos. 3 and 4 and they could not have transfered any right in favour of plaintiff.
(vi) In revenue record, the name of trust was shown right from the beginning as the owner and so, it is not open for the plaintiff to contend that it was not waqf property or that she did not know the nature of property, property belongs to religious institution, Dargah, and
(vii) The property belongs to Dargah and so, the transaction of transfer of any right including Mirasi rights in respect of property is void.
6) Defendant Nos. 3 and 4 denied in written statement that his predecessors were Khadims. In plaint, indirect contention was made by the plaintiff that the predecessors of the plaintiff were Khadims. They contend that Survey No. 51 was given to them for cultivation as Mirasdar, tenant. They have given history of litigation which was between their predecessors and others and which was for possession of the suit property.
7) The Tribunal framed issues on the basis of aforesaid ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:29:59 ::: CRA No. 135/2014 7 pleadings. Evidence was given by both the sides which is as per aforesaid contentions. There is very old revenue record which was never challenged. The dispute can be decided mainly on the basis of this record, rather than oral evidence as there is word against word. The Tribunal has held that in the year 1952-53 probably no procedure was followed for registration of the suit property as a trust property and the registration was done behind the back of Inamdars. The Tribunal has held that it was personal Inam and so, it was abolished under Inam Abolition Act.
The Tribunal further held that defendant Nos. 3 and 4 were Mirasdars and they continued their possession after abolition of Inam. The Tribunal has held that defendant Nos. 3 and 4 have transferred Mirasi rights in favour of plaintiff and such transfer is permissible in law.
8) The relevant para of plaint showing the main contentions of plaintiff with regard to nature of property is already quoted. At para 7 (v), the plaintiff has further contended that her predecessors were also Mirasdars. This case of plaintiff is totally different from the case of defendant Nos. 3 and 4 that they were only Mirasdars and they have transferred rights under document dated 21.8.1992. The case of plaintiff and defendant Nos. 3 and 4 that their rights are Mirasi right, is not consistent ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:29:59 ::: CRA No. 135/2014 8 with revenue record. They have placed reliance on this record.
9) The pleadings of plaintiff and defendant Nos. 3 and 4 show that they have not denied that Survey No. 51 was Inam land thought they have tried to contend that it was personal Inam. They have not given the names of Indamdars though plaintiff had indirectly contended that defendant Nos. 3 and 4 were probably Khadims, Inamdars. The Inamdars were not made party to the suit. In plaint para No. 1, it is specific contention of the plaintiff that Khadims are persons, to whom the land was given to perform religious rights and ceremonies at Dargah. It is also contended that Khadims were maintaining themselves on alms and offerings devoted by people at Dargah. It is specifically contended that Inam was granted since prior to the period of Aadilshaha of Deccan India, prior to 1700 A.D.
10) There was registration of the property and the trust under the provisions of Bombay Public Trust Act. Even if the provisions of old Waqf Act, 1954 which were not applicable to that area are considered for limited purpose, for ascertaining the definitions of 'waqf' and 'beneficiary', it can be said that the aforesaid description of the property given by plaintiff and nature of services which were to be rendered make the property, ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:29:59 ::: CRA No. 135/2014 9 waqf property. These definitions are there in old Act and also in Waqf Act, 1995 in view of Muslim Law developed on Waqf. The definition of 'beneficiary' is given in section 3 (a) of Waqf Act, 1954, the definition of 'Mutawalli' is given in section 3 (f) and definition of 'waqf' is given in section 3 (l). Those definitions are as under :-
"3 (a) "beneficiary" means a person or object for whose benefit a waqf is created and includes religious, pious and charitable objects and any other objects of public utility sanctioned by the Muslim law;
(f) "mutawalli" means any person appointed either verbally or under any deed or instrument by which a Waqf has been created or by a competent authority to be the mutawalli of a waqf and includes any person who is mutawalli of a waqf by virtue of any custom or who is/Naib-mutawalli, khadim, mujawar, sajjadanashin, amin, or other person appointed by a mutawalli to perform the duties of a mutawalli and, save otherwise provided in this Act, any person or Committee or Corporation for the time being managing or administering any Waqf or Waqf property :
PROVIDED THAT no member of a Committee or Corporation shall be deemed to be a mutawalli unless such member is an office bearer of such ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:29:59 ::: CRA No. 135/2014 10 Committee or Corporation.
(l) "Waqf" means the permanent dedication by a person professing Islam or any other person of any moveable or immoveable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes-
(i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser;
(ii) grants including mashrut-ul-Khidamat muafies, Khairati, quazi services, madadmas for any purpose recognised by Muslim law as pious, religious or charitable; and
(iii) a waqf-alal-aulad and "waqf" means any person making such dedication;
PROVIDED THAT in the case of dedication by a person not professing Islam the waqf shall be void if, on the death of such person, any objection to such dedication is realised by one or more of his legal representatives;"
11) If the definitions given of aforesaid three terms are compared with the definitions given in the Waqf Act of 1995, it can be said that for the present purpose, the definitions are similar. The pleading itself shows that the grant was for rendering services to Dargah, religious institution. When the ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:29:59 ::: CRA No. 135/2014 11 document of grant, Muntakhab or succession certificate is not available, from other record and circumstances, inference needs to be drawn as to whether the property involved is waqf property or not. It also needs to be ascertained as to whether the property involved had been used or was allowed to be used as waqf property. If the property was registered under the Trust Act as trust property and if requirement of definition of 'waqf' given above viz. there was permanent dedication and the purpose is shown to be religious or charitable, then it satisfies conditions laid down in definition of 'waqf' and inference can easily be drawn that it was waqf property. The nature of property as waqf can be proved even by showing the user for aforesaid purpose.
In the matter like present one, when the property is registered under the Trust Act, and it is shown that the property was to be used for benefit of Dargah, then inference becomes easy that the property is Waqf.
12) In view of the aforesaid position of law, the appreciation of the material needs to be done after considering entries made in the Register of Trust. A copy of said entry along with Schedule I containing the description of the property of the trust is produced. It is not disputed that the trust of aforesaid name was registered and the suit property was mentioned in ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:29:59 ::: CRA No. 135/2014 12 Schedule I as property belonging to the trust. The document shows that the trust was registered on 30.9.1953 at registration No. 2482. The purpose of the trust was recorded as 'religious worship'. The mode of succession of trustees was given as 'hereditary'. The name of Sajjadanashin and Mutawalli was informed at the time of registration and it was Shri. Hasan Shah Mohammad Shah Bhandari c/o. Bhandari Buwa Dargah (the place of present Dargah). In 1977 under Change Report bearing No. 58/77 decided on 17.1.1977 the name of Mohammad Shah Sultan Shah Sadar Bhandari was informed as new Mutawalli, trustee. Then due to the order made by Joint Charity Commissioner on application No. 3/1980 u/s. 47 of Trust Act on 21.8.1980 the name of Sarfu Shah Mira Shah Sadar Bhandari was entered as Mutawalli. In Schedule I, the properties of the trust were informed and they were registered and they were as under :-
(a) Takiya building covering 6839 Sq. Ft. constructed on C.T.S. No. 5828 of Miraj and
(b) Survey Nos. 51/2 to 51/15, 52/1, 53/1 to 53/3 & 54/2 of Ankali.
Thus, the Survey No. 51/3 was registered as the property belonging to this trust in the year 1953 itself and the report for ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:29:59 ::: CRA No. 135/2014 13 that was given in the year 1952.
13) The aforesaid record was never challenged by anybody. In the revenue record of all Pot-Hissas of Survey No. 51 including Survey No. 51/3, the names of Mohammad Shah Sultan Shah and then the name of Sultan Shah Mohammad Shah Sadar Bhandari were recorded as owners, holders. Till the year 1951-52 name of aforesaid trust was not shown in the revenue record, however, from the year 1952-53, the name of Dargah was shown in other rights column as Devasthan, public trust. In revenue record of Survey No. 51/3 which starts from the year 1952-53 the name of one Lalkhan Mohioddin was shown as tenant of many years (not as a protected tenant). The 7/12 extracts for the year 1952-53 onwards of the suit property show that the name of Abdul Razak Fakir was shown under mutation No. 680.
The name of one Bhau Shinde was shown in crop cultivation column from the year 1936-37 and then he was shown as protected tenant of this land. The name of Lalkhan as tenant was removed subsequently. Thus, the names of predecessors of defendant Nos. 3 and 4 or Abdul Razak Fakir were never shown as tenant, Mirasdar in the old revenue record which can be called as relevant for the present purpose.
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14) The aforesaid record also shows that the disputed property was registered as trust and the person, who gave information to the Trust Office, gave his name as Mutawalli, trustee. The entries of subsequent trustees were also made as the mode of succession was hereditary. It needs to be presumed that the Mutawalli, who was incharge of the religious institution and the property, gave report to the Trust Office in the year 1952 and on that basis, the trust and the properties were registered under the Bombay Public Trust Act. The successors of the said Mutawalli are not coming forward to challenge that entry and so, it is not open to the plaintiff or defendant Nos. 3 or 4 to say that the entry made in the Register of Trust under the Trust Act was made behind the back of Mutawalli and it is not binding on Mutawalli or the parties to the present proceeding.
15) A copy of mutation No. 2034 of the year 1965 shows that all the aforesaid properties of trust were first involved in a proceeding started u/s. 32-G of Bombay Tenancy Act. Some persons were cultivating these lands as tenants at the relevant time including aforesaid Bhau Shinde. In view of the fact that the present property Survey No. 51/3 and other properties were registered as trust properties, the provisions of Tenancy Law were not applicable and so, these proceedings were dropped.
::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:29:59 :::CRA No. 135/2014 15 There is certified copy of possession receipt dated 3.7.1964 showing that the possession of Survey No. 51/3 was taken over from aforesaid Bhau Shinde, who was recorded as protected tenant and it was handed over to Abdul Razak Osman Fakir Bhandari (predecessor of defendant Nos. 3 and 4). As per this record, Abdul Razak had claimed that he was owner of the property and thus, there was no claim that he was Mirasdar till the year 1964. After deleting the name of Bhau Shinde, steps were taken by Abdul Razak to delete the name of aforesaid Lalkhan. Then first time, after 1964-65 the name of Abdul Razak was entered in crop cultivation column, but his name was there in the holders column and there he was shown as mortgagor (Exh. 65). Under Mutation No. 2139, the name of Lalkhan was deleted, who was also shown as mortgagee and it was reported by Abdul Razak that he had paid mortgage money to Lalkhan for getting redeemed disputed property.
16) At Exh. 40, there is extract of Inam register showing that in the year 1956 the Inam in respect of Survey No. 51 was abolished as it was shown in the register as Jat Inam. Copy of Land Alienation Register is also produced to show that one Sultan Shah vald Hasan Shah was holding Survey No. 51 as personal Inam in the year 1952. It is already observed that these ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:29:59 ::: CRA No. 135/2014 16 persons and successors of these persons had reported to the Trust Office that the property was of religious trust and they were Mutawallis. The report was given in the year 1952 and so, not much weight can be given to the entries made in Inam Register or the order of abolition of Inam passed under Inam Abolition Act.
17) It is not the case of defendant Nos. 3 and 4 that prior to year 1964-65 aforesaid Mohammad Shah or Sultan Shah (trustees) had given disputed property for cultivation to defendant Nos. 3 or 4 as tenants. The successor of Hasan Shah namely Serfu Shah is still there and he is not coming forward to claim the property by contending that it was personal Inam. On the contrary, he is one of the trustees of the religious institution.
In view of these circumstances, it is not possible to infer that the disputed property was personal Inam. There is no record at all produced much less the record of payment of rent by defendant Nos. 3 and 4 or plaintiff to the aforesaid person. One entry in Waqf Register of the year 2005 shows that Sarfu Shah got entered his name as trustee of aforesaid religious trust by way of succession.
18) The revenue record shows that for some years, ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:29:59 ::: CRA No. 135/2014 17 names of defendant Nos. 3 and 4 were recorded in crop cultivation column. But, due to this entry, inference is not possible that they were Mirasdars or Inamdars of the religious trust. The circumstance that the proceeding u/s. 32-G of the Bombay Tenancy Act was dropped due to circumstances that it was a trust property is sufficient to show that no rights under Tenancy Act could have been created in favour of any person including defendant Nos. 3 and 4. Further, in view of section 3 of Bombay Personal Inam Abolition Act, Inam in respect of waqf property could not have been abolished. If it was Inam property of defendant Nos. 3 and 4, they could have got more rights and higher rights by proving that it was their personal Inam, but they preferred to contend that they were Mirasdars. As it is Waqf property, and from 1952 property was managed by Mutawallis, it was not possible for defendant No. 3 and 4 to transfer the rights even of the nature of Mirasi in favour of plaintiff. Thus, plaintiff did not get any right or interest under the document of conveyance executed in her favour by defendant Nos. 3 and 4.
These circumstances are sufficient to infer that the plaintiff is nothing, but trespasser or encroacher over the suit property.
19) Unfortunately, the Tribunal did not consider the aforesaid record. The law with regard to the waqf property was ::: Uploaded on - 18/03/2016 ::: Downloaded on - 31/07/2016 08:29:59 ::: CRA No. 135/2014 18 not properly applied by the waqf Tribunal. Such decision of Tribunal cannot sustain in law. The Chief officer had not committed any error in making order u/s. 54 of the Waqf Act against the plaintiff.
20) In the result, revision is allowed. Judgment and order of Tribunal is hereby set aside. The order made by the Chief Officer is hereby restored.
ig [ T.V. NALAWADE, J. ]
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