Sri Prakash Tiwari vs Masjid Taqia Dalmir Shah And ...
2018 Latest Caselaw 3139 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

A.F.R.
 
Reserved
 

 
Court No. - 19
 

 
Case :- CIVIL REVISION No. - 66 of 2009
 
Revisionist :- Sri Prakash Tiwari
 
Opposite Party :- Masjid Taqia Dalmir Shah And Another
 
Counsel for Revisionist :- Brijesh Kumar Saxena,Jaspreet Singh
 
Counsel for Opposite Party :- M.A.Khan,Illigible,Istiyak Ahmad
 

 
Hon'ble Vivek Chaudhary,J.

1. Heard learned counsel for revisionist and learned counsel for respondents.

2. The present civil revision is filed by the plaintiff against the judgment and order dated 28.05.2009 passed by the Waqf Tribunal Lucknow/Civil Judge (S.D.) Lucknow. By the said order, the suit of the plaintiff filed under Section 29(B) of the U.P. Muslim Waqf Act, 1960 is rejected. The claim of the plaintiff before the Tribunal was that he is in exclusive possession, as absolute owner, in respect of property situated at Chhota Shekhpur Lucknow, which falls within Khasra Plot No.356 and 357 of Chhota Shekpur, Lucknow. The opposite party Waqf Board has wrongly misrepresented that the same is included within the Waqf property. In its written statement, the opposite party Waqf Board took a stand that the said property is not situated in Khasra Plot No.356 and 357 and the Waqf has no concern with Khasra Plot No.356 and 357, but, it is situated in Khasra Plot No.259 and 260 which is registered as Waqf property.

3. After exchange of affidavits, the Tribunal framed issues and by an elaborate judgment, has dismissed the suit.

4. The submission of counsel for revisionist is two-fold. Firstly, that, the court below has wrongly framed the issues and has totally misapplied itself. The attention of the Court is drawn to issue no.2 which reads:-

"Is the disputed house situated in Khasra Plot No.356 and 357?"

Plaintiff's submission is that admittedly the case of Waqf is that only Khasra Plot No.259 and 260 is registered and belongs to the Waqf and no other property, beyond the said Khasra numbers, belongs to Waqf. Therefore, the Court ought to have framed issue, as to, "whether the property in dispute falls within the Khasra Plot No.259 and 260". Even presuming the court comes to conclusion that the property does not fall within the Khasra Plot No.356 and 357, the same automatically would not become Waqf property, unless it is found to be within Khasra Plot No.259 and 260.

5. Next submission of counsel for revisionist is that a Division Bench of this Court by its judgment in case of Mohd. Naki Khan and Others Vs. State of U.P. & Other, reported in 1965 All LJ 609 has already held that an old Qabristan in a village, on which provisions of U.P. Z.A. & L.R. Act are applicable, vested in the State after coming in force of U.P. Z.A. & L.R. Act and, therefore, even Khasra No. 259 and 260, on which the defendant respondents themselves claim to be an old Qabristan, were wrongly noted as Waqf property. It was also submitted that registration of Waqf is illegal.

6. On behalf of respondents, it was very strongly argued that the Tribunal has passed an order on merits in accordance with law. It was further argued that brother of the plaintiff was having adjacent property regarding which the matter was contested up to the Supreme Court and thereafter it was decided in favour of defendant Waqf. The present proceedings are squarely covered by the said judgment and the same is binding upon the parties.

7. So far as the objections raised by the counsel for respondents, with regard to the order passed in dispute between the brother of the revisionist and the Waqf board is concerned, suffice is to say that the revisionist herein is not a successor in interest of his brother in any manner. Nothing could be shown that he has succeeded the properties from his brother. He has an independent right to contest his case on all grounds available to him. The dispute with regard to adjacent property cannot be said to be having effect of resjudicata or constructive resjudicata or estoppal or any other legal bar, restraining him from placing his case on merits before this Court, including on grounds not raised by his brother in his case. Therefore, this court is required to look into the submissions of the revisionist on merits.

8. Counsel for respondents has further tried to argue that the scope of the revision is limited and this Court cannot sit on appeal over the order of the Tribunal, while exercising its revisional jurisdiction. He has also referred to number of judgments on the said point.

9. There is no dispute with regard to the said long settled law. However, this Court in exercise of its revisional jurisdiction can always look as to whether the jurisdiction vested with the Tribunal is rightly exercised by it or not.

10. It is admitted case of the Waqf, that an old mosque and Qabristan existed on Khasra Plot No.259 and 260 since time immemorable, from much before the U.P. Z.A. & L.R. Act, 1950 came in force, and were registered as Waqf in the year 1983. It is also not the case of the Waqf that it owns any property beyond Khasra Plot No.259 and 260. Therefore, the dispute between the parties primarily is as to whether the property in dispute is a Waqf property or not. In case the property in dispute is not on plot no.259 or 260, the Waqf looses its claim. Therefore, it is rightly being pointed out, by the counsel for the revisionist, that the issue involved in the case is as to whether the property in dispute is situated on Khasra Plot No.259 and 260 and the Court below has wrongly framed the issue as to whether the property in dispute is situated on Khasra Plot No.356 and 357. It is a specific case of the plaintiff in his plaint that the property in dispute does not fall within the land of the Waqf and are beyond the same. Thus, issue no.2 is wrongly framed. The same ought to have been :- "Whether the property in dispute exists on Khasra Plot No.259 and 260."

11. The other submission of counsel for revisionist is that the land of Qabristan vested in the State and the local community only has a right of burial on the same and the Waqf board has not concern with the same. The said issue is also considered by a Division Bench of this Court in case of Mohd. Naki Khan and Others Vs. State of U.P. & Other reported in 1965 All LJ 609. Relevant paragraph of the said judgment reads:-

"17. There is no indication in the Act that wakf property is exempted from the operation of Sec. 4 of the Act. On the contrary, there is specific provision for payment of compensation for wakf property. It, therefore, appears that Sec. 4 of the Act operates as regards wakf property also. So, although the plot at one time vested in the Almighty, the plot vested in the State under Sec. 4 of U.P Act No. 1 of 1951. In spite of the vesting of the land, the defendants have recognised the right of Muslim residents of the village to bury dead bodies in the plot. The plaintiffs should have, therefore, no grievance on this ground."

Another Division Bench of this Court by its order dated 09.03.2018 passed in Writ Petition No.-7930 (M/B) of 2015 has agreed with the said judgment. Relevant paragraph of the said judgments reads:-

"Thus, it is settled that all Qabristan which are old, stood vested in the State Government. The said Division Bench judgment stands good till date and has been followed repeatedly in large number of cases. We also find the same to be in accordance with law."

12. In view thereof, there is a serious dispute as to whether the Qabristan is rightly registered as a Waqf property or not. The said issue is also required to be decided by the Tribunal.

13. In view thereof, the impugned order dated 28.05.2009 cannot stand and is set aside.

14. I find it a fit case to be remanded back to the Tribunal for deciding it afresh in view of the points noted above. Since the matter is old, it is expected that the Tribunal shall decide the matter afresh, after hearing all the parties concerned, in accordance with law, expeditiously, say within a period of three months from the date a certified copy of this order is placed before it.

15. With the aforesaid, the revision is allowed.

Order Date :-09.10.2018

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