HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI
CIVIL REVISION PETITION No. 4974 of 2017
ORDER:
Assailing the judgment and decree made in O.S. No. 105 of 2016 (Old O.S. No. 36 of 2007), dated 04.07.2017, on the file of the Telangana State Waqf Tribunal (for short, 'the Tribunal'), the present Civil Revision Petition is filed by plaintiff. By the impugned judgment, the suit filed by the plaintiff to set aside the proceedings of the defendant-Waqf Board, dated 06.01.2007 and its order dated 09.04.2007 and to summon the defendant to produce all the records in connection with the proceedings and memo dated 15.02.2007 in respect of the suit schedule property was dismissed.
2. For the sake of convenience, hereinafter, the parties will be referred to as per their array before the Tribunal.
3. The facts of the case are that, the plaintiff laid the suit against the defendant-State Waqf Board to set aside the proceedings of the defendant vide proceedings No.M4/28/HYD- V/Prot/02, dated 06.01.2007 and the subsequent orders dated 09.04.2007 as illegal and arbitrary and to summon the Chief Executive Officer of the defendant to produce the proceedings dated 06.01.2007 and memo dated 15.02.2007 in respect of the 2 suit schedule property i.e., property bearing No. 6-3-929 and 929/A, admeasuring 450 sq.yds., situated at Raj Bhavan Road, Somajiguda, Hyderabad. According to the plaintiff, he is the absolute owner and possessor of the suit schedule property having acquired the same by virtue of oral gift (Hiba) from his paternal grandmother, Shamshubee, who had purchased the said property from one Syed Khursheed Ali, father of the plaintiff, under a registered sale deed bearing document No. 1377/1963, dated 21.08.1963. Syed Khusheed Ali purchased the suit schedule property from Dr. Abdul Razzak under a registered sale deed bearing document No. 1988B(I)/1957, dated 15.08.1957. Even prior to the said sale, he had entered into agreement of sale in the year 1946 and acquired possession of the property. Dr. Abdul Razzak was granted the suit property by Paigah Estate vide orders dated 18th Isfander 1350 Fasli. According to the plaintiff, his predecessors-in-title were in continuous possession of the property right from 1940 as absolute owners. While so, the defendant had issued a notice dated 06.01.2007 under Section 54(1) of the Wakf Act (for short, the Act) stating that the suit property is a notified Wakf property published in A.P. Gazette No. 26-C, dated 01.07.1982; that the plaintiff had encroached the suit land belonging to the Wakf institution and asked him to explain as to why an order of 3 removal of encroachment by the plaintiff should not be made under Section 54(3) of the Act. The plaintiff submitted his explanation on 15.02.2007, along with the documents, claiming the suit property as private property and that no notice was issued to him or to his predecessors-in-title prior to the publication of the Gazette. Having not satisfied with the explanation of the plaintiff, the defendant issued the notice dated 09.04.2007 under Section 54(3) of the Act directing the plaintiff to remove the encroachment over the suit schedule property and handover vacant possession of the property within 15 days. Hence, the suit by the plaintiff.
4. Contesting the suit, the defendant filed its written statement denying all the contents of the plaint. According to the defendant, the suit schedule property is registered and notified Wakf property as Ashoor Khana, which has been published in the Gazettee dated 01.07.1982. The documents relied on by the plaintiff are created in order to usurp the suit schedule property. As the suit schedule property is Wakf property and it is Ashoor Khana which is under the Mutawallaiship of Shamshubee, neither the plaintiff nor his predecessors have any right or ownership over the same. 4
5. Before the Tribunal, the plaintiff got examined himself as P.W.1 and got marked Exs.A.1 to A.12. On behalf of the defendant, D.W.1 was examined and Exs.B.1 to B.5 were marked. Considering the rival pleadings and on evaluation of the documents submitted by both the parties, the learned Tribunal dismissed the suit holding that the plaintiff failed to prove the oral gift made by Shamshubee in his favour. Hence, the present revision by the plaintiff under Section 83(9) of the Act.
6. Learned counsel for the plaintiff, revision petitioner herein, submits that the Tribunal failed to take note of the fact that the petitioner and his predecessors-in-title are in continuous possession of the suit land for the last several decades without any interruption. Although the defendant claims the suit land by way of Gazette publication dated 01.07.1982 and the report of the Survey Commissioner, no notice was issued either to the petitioner or his predecessors-in- title before publishing the Gazette notification. The Tribunal failed to appreciate the fact that the plaintiff had established the fact that his grandmother, having acquired the property by way of registered sale deed bearing document No.1377/1963, dated 21.08.1963, had gifted the same in favour of the plaintiff by way 5 of oral gift. The Tribunal ought to have seen that there is no Ashoor Khana as the petitioner is residing in the suit land for a long time. It is contended that the findings of the Tribunal in dismissing the suit are based on mere presumptions and assumptions. Therefore, the learned counsel seeks to allow the revision by setting aside the impugned judgment and decree of the Tribunal.
7. On the other hand, the learned Standing Counsel for the defendant, respondent herein, contends that inasmuch as the plaintiff failed to prove the oral gift allegedly made in his favour by his grandmother, by cogent evidence, the Tribunal has rightly dismissed the suit of the plaintiff and therefore, the impugned judgment and decree need no interference in this revision.
8. Heard the learned counsel for the revision petitioner as well as the learned Standing Counsel for the respondent. Perused the material available on record.
9. The very claim of the plaintiff is that he had acquired the suit land by way of oral gift (Hiba) from his paternal grandmother, Shamshubee. Said Shamshubee, in turn, purchased the said property from one Syed Khursheed Ali, 6 father of the plaintiff, under a registered sale deed bearing document No. 1377/1963, dated 21.08.1963. Syed Khusheed Ali purchased the suit schedule property from Dr. Abdul Razzak under a registered sale deed bearing document No. 1988B(I)/1957, dated 15.08.1957. Even prior to the said sale, he had entered into agreement of sale in the year 1946 and acquired possession of the property. Dr. Abdul Razzak was granted the suit property by Paigah Estate vide orders dated 18th Isfander 1350 Fasli. If at all the plaintiff or his grandmother was in possession of the property, there is no explanation from the plaintiff as to why the Gazette notification which was issued by the defendant as long back as in 1982 was not challenged by them. Even the record discloses that the Gazette notification issued by the defendant dated 01.07.1982 is based on Survey Commissioner Report, who was duly appointed by the then Government of Andhra Pradesh, who submitted his report after conducting due enquiry. Moreover, when the defendant had issued a notice under Section 54(1) of the Act on 06.01.2007, marked as Ex.A.7, treating the plaintiff as encroacher of its property and asking him to vacate the suit property within 15 days, although the plaintiff had submitted his explanation on 20.01.2007 under Ex.A.8, he did not choose to explain his source of title therein, as claimed in the plaint. 7 He simply stated that the suit property is a private property and that he is the absolute owner and possessor. Therefore, the defendant having not satisfied with the explanation offered by the plaintiff, issued notice on 09.04.2007 under Section 54(3) of the Act, marked as Ex.A.10, for removal of encroachment and delivery of possession to the Inspector Auditor.
10. The documents marked on behalf of the defendant, more particularly, Exs.B.2 and B.3 disclose that the suit land is Wakf property and that Shamshubee was shown as Mutawalli. Basing on those documents, the Tribunal came to the conclusion that Shamshubee must have endowed the suit land as Wakf property to erect Alams in Ashoor Khana and therefore, no one has any right over the said property to claim as private property. As regards the claim of the plaintiff that he had acquired the suit land by virtue of oral Will (Hiba), allegedly executed by his grandmother, the Tribunal at para No. 22 of the judgment, while deciding the issue whether the impugned proceedings are liable to be set aside, observed as under:-
"22) Thus the plaintiff failed to prove that he acquired the title and interest over the suit schedule property by way of oral gift made by Shamshubee in his favour. Further under the Mahomedan law the three essential requisites to make a gift valid are: 1) declaration of the gift by the donor. 2) acceptance of the gift by the done expressly or impliedly and 3) delivery of 8 possession to and taking possession thereof by the done actually or constructively. If all the three essential requisites are satisfied constituting a valid gift, but plaintiff failed to prove the above three essential requisites to the satisfaction of this Tribunal. For the above said reasons the impugned notice under Ex.A-10 cannot be set aside. Therefore this issue is decided against the plaintiff."
Thus, the findings recorded by the Tribunal are based on appreciation of the entire evidence in proper perspective. Therefore, this Court finds no infirmity or illegality in the order passed by the Tribunal.
11. In the result, the Civil Revision Petition fails and the same is accordingly dismissed confirming the judgment and decree of the Telangana State Waqf Tribunal made in O.S. No. 105 of 2016 (Old O.S. No.36 of 2007), dated 04.07.2017. There shall be no order as to costs.
Pending Miscellaneous Petitions, if any, shall stand closed.
______________________________ JUSTICE M.G. PRIYADARSINI 13th October, 2023 Tsr 9 HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI CIVIL REVISION PETTION No. 4974 of 2017 DATE: 13-10-2023