Allahabad High Court
Chandrasen And Others vs Bundu And Others on 19 March, 2021
Bench: Vivek Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 1
Case :- FIRST APPEAL FROM ORDER No. - 901 of 2003
Appellant :- Chandrasen And Others
Respondent :- Bundu And Others
Counsel for Appellant :- Manoj Kumar
Counsel for Respondent :- R.B. Singh,Mohd. Waris,H.N. Sharma
Hon'ble Vivek Agarwal,J.
1. Heard Sri Manoj Kumar, learned counsel for appellants. None for the respondents even when the list is revised.
2. This appeal has been filed by the defendants being aggrieved of the judgment dated 27.02.2003 passed by learned Additional District Judge, Court No. 4, Moradabad in Civil Appeal No. 51 of 2001 (Bundu vs. Rauf Hussain and Others) whereby learned Additional District Judge has remanded the matter to the learned trial court.
3. It is submitted by learned counsel for the appellant that a suit was filed by Bundu (hereinafter referred to as 'plaintiff') against Rauf Hussain and others in the Court of Additional Civil Judge, Moradabad, which was numbered as Civil Suit No. 111 of 1985. Vide judgment and decree dated 20.02.2001, this original suit was decided ex-parte.
4. Brief facts of the suit are that one Hafeez Ali had no sons and had only two daughters and therefore, he had created a waqf in relation to his properties, as are mentioned in Schedule A of the plaint on 08.10.1942. This trust was allegedly registered on 13.10.1942. Throughout his life, Hafeez Ali remained 'mutawalli' of the said property and thereafter, Ameer Hussain s/o Sagiran became 'mutawalli' and after death of Ameer Hussain, Rauf Hussain became 'mutawalli' and was recovering rent etc., but with ill intention certain persons including the 'mutawalli' failed to maintain the waqf property, as per the terms and conditions of the waqf and misappropriated a portion of the property in their favour by filing a collusive Suit No. 25 of 1982 (Ameer Hussain vs. Kabir Ahmed) and obtained a collusive decree without impleading Waqf Board and the 'mutawalli', as a party. In the suit filed by Bundu i.e., Original Suit No. 111 of 1985, relief was sought to annul the decree passed in Original Suit No. 25 of 1982 and also to claim a relief of injunction.
5. It is submitted that this suit was decided ex-parte by the learned trial court. It is submitted that learned Additional District Judge has arbitrarily remanded the matter for leading evidence by both the parties whereas there was no occasion for the learned Additional District Judge to make such wholesale remand in the matter. In fact, it has come on record that before the learned tribunal, defendants are proceeded ex-parte. Plaintiff had lead his evidence by filing affidavit 171-Ga along with documents from 7-Ga to 20-Ga, copy of 'waqfnama' 31-Ga and sale deed 32-Ga. After perusal of which, learned trial court had passed judgment dated 20.02.2001 holding that once the 'mutawalli' was appointed by the creator of the waqf and each 'mutawalli' had a right to appoint his successor, then act of the 'mutawalli'-Rauf Hussain in entering into a transaction of sale by executing an agreement to sale or executing a sale deed, cannot be said to be illegal. The only issue which was to be decided by the First Appellate Court was whether in a case under present facts and circumstances, what were the rights and duties of 'mutawalli' (manager of the waqf) vis-a-vis the provisions contained in deed of the waqf dovetailed with provisions contained in the Waqf Act, 1954.
6. It appears that learned Additional District Judge has not framed this issue, therefore, there was no occasion for it to deal with the issue whereas issue is in a very narrow compass, as has been mentioned above. Thus, the order of remand cannot be sustained and is quashed. It is directed that the First Appellate Court shall examine the rights and duties of the 'mutawalli' in the light of the provisions contained in the waqf deed and those contained in the Waqf Act, applicable at the relevant point of time and shall decide the appeal on its own merits within sixty days from receipt of computer generated copy of the order being passed today. Parties shall appear before the concerned Additional District Judge on 22.04.2021. Registry is directed to remit complete records to the concerned District Court, so to reach it latest by 15.04.2021.
7. In above terms, appeal is disposed off.
Order Date :- 19.3.2021
Vikram/-L
