Tukaram Dashrath Hiwre vs Sayyed Zahurl Haqu S/O Sayed ...
2015 Latest Caselaw 635 Bom

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       IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                  BENCH AT AURANGABAD




                                                                            
              CIVIL REVN. APPLN. NO.: 26 OF 2012




                                                    
                                             ***

      Tukaram S/o Dashrath Hiwre,
      Age: 70 years, Occ: Agri.,
      R/o: Village Wadigodari,




                                                   
      Post Wadigodari, Near Ganesh
      Medical Store, Taluka Ambad,
      District Jalna.                                ...  PETITIONER
                                                     [ORIG. DEFT. NO.1]




                                            
               VERSUS        
      1.       Sayyed Zahurul-Haqu S/o Sayyed
                            
               Asadullah Biyabani,
               Age: 76 years, Occ: Agri.,
               R/o: Opposite Tahsil Office, Ambad,
               Taluka Ambad, District: Jalna.
      

      2.       The Chief Executive Officer,
               Maharashtra State Board of Wakf,
   



               Office at Panchakki,
                                            ...  RESPONDENTS
                                            [NO.1 ORIG. PLAINTIFF
                                            NO.2 ORIG. DEFT. NO.2]





                                      ***
      Mr. Kasliwal Ajit D., Advocate for the Petitioner.
      Mr. P. V. Mandlik, Advocate h/f Mr. Amol Gandhi, Advocate for
      Respondent No.1.
      Mr. Y. B. Pathan, Advocate for Respondent No.2.





                                     @@@

                        CORAM:-              T. V. NALAWADE, J.
                        DATED:-              15th DECEMBER, 2015.


      JUDGMENT:

1. The proceeding is filed against judgment and order of

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Wakf Suit No.104 of 2009 which was pending before Wakf

Tribunal, Aurangabad. The suit filed by the present

respondent, Sayyed Zahurul-Haqu in respect of the

property bearing Survey No.22 (Gat No.98), admeasuring

26 Acres situated at village Saundalgaon, Tahsil Ambad,

District Jalna is decreed for relief of possession. It is the

case of Respondent, plaintiff that this property belongs to

Dargah Peer Saheb, it is Wakf Property. Both the sides are

heard.

2. The aforesaid property is registered in the list of

Wakfs published by the State Government in the year

1975. It is the case of plaintiff that he is Mutawalli and so

he is entitled to take possession of the property. It is the

case of plaintiff that his predecessor Sayyed Abdullah was

Mutawalli and succession came to be granted in his favour

on 7th December, 1988 under the provisions of Atiyat Act.

3. It is the case of plaintiff that, since long in the

revenue record also the property is shown to be as the

property of aforesaid Dargah. It is contended that such

entries are there in Khasra Patrak, Pahani Patrak, record of

consolidation and 7/12 extracts. It is the case of plaintiff

that defendant Tukaram Hiwre, present appellant is in

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possession of this property. His possession is illegal. It is

contended that by joining hands with revenue authorities

Tukaram and his predecessors had got entered their names

in revenue record, behind the back of Wakf institution and

Mutawalli and those entries are not correct and they are

not binding on the plaintiff. The plaintiff contended that he

had demanded the possession from defendant on 5th

November, 2008 but the defendant flatly refused to hand

over possession.

4. Defendant No.1, Tukaram contested the suit by filing

written statement. Amongst other contentions, following

main contentions were made by the defendant:

      (i)      The plaintiff is not Mutawalli.
   



      (ii)     Sayyed Abdullah Kadar Biyani (this person is said to

be predecessor of plaintiff in the plaint) gave possession of

the suit property for cultivation to the forefathers of

defendant. This property was Service Inam land given to

Dargah and on the condition of rendering services to

Dargah the land was given in possession of forefathers of

defendant on 30th February, 1928.

(iii) The possession of the suit property was firstly with

Balaji, grand father of defendant, then with Dashrath,

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father of defendant and after the death of Dashrath the

possession is with defendant and it is since October, 1974.

(iv) The name of predecessor of defendant was entered

as protected tenant of this land in the revenue record and

after the death of father even the name of defendant is

entered as protected tenant.

(v) The name of grand father of defendant was entered

in the revenue record since prior to 1954 and since then

the defendant ig and his predecessors have been in

continuous possession of the land and the possession was

shown in Namuna No.9 of village, Khasra Patrak, Pahani

Patrak and record of consoliation of lands.

(vi) The defendant has been rendering services to

Dargah.

(vii) The defendant was not party to inquiry proceeding

which was started under Atiyat Act by plaintiff for getting

succession certificate and so that order is not binding on

defendant, and

(viii) That the possession of the defendant is adverse

possession and the suit filed by Mutawalli is not within

limitation. The defendant has become owner of the suit

property due to law of limitation.

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5. The issues were framed on the basis of aforesaid

pleadings. The Tribunal has held that, on the basis of the

case of defendant, it was not possible for defendant to

prove that he was tenant. It is also observed that due to

the nature of defences taken by defendant, it is not

possible for him to prove that he has become owner due to

adverse possession. The Tribunal has held that the

possession of the defendant is illegal and the suit is

decreed.

6. Both the sides have given evidence. The evidence of

plaintiff is as per aforesaid contentions. The defendant

examined many witnesses but they are on the point like

the case of defendant that he has been rendering services

to Dargah and for that he has been using the income of the

suit land.

7. The record of the Tribunal and submissions made

show that, it was submitted for defendant that he was not

disputing that plaintiff was Inamdar, Mutawalli of the

aforesaid institution. Further, there is succession

certificate at Exhibit-58 which shows that after the death of

Sayyed Abdullah Syed Kadar Biyani, the name of plaintiff

was entered as Inamdar of in all 6 lands belonging to

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aforesaid Dargah. Survey No.22, the suit property, is also

shown in the succession certificate as Service Inam land.

The order shows that the record like 2 Muntaqabs of year

1291 and 1292 Fasli were produced to prove the case. The

order was made on 7th December, 1988. As the defendant

has not seriously disputed that plaintiff is Inamdar,

Mutawalli on the basis of Muntaqab this point needs no

more discussion.

8.

There is other record which is relevant for the present

matter and it is as under:

(i) Khasra Pahani Patrak Exhibit-59 for the year 1954-55

of Survey No. 22. This document shows that Survey No.22

was shown as Service Inam land and it was the property of

Dargah Peer Saheb. The Mutawalli of the institution was

Asadullah Abdul Kadar Saheb. Dashrath, predecessor in

title of defendant was shown in possession.

(ii) Pahani Patrak for the year 1959-60. In this document

also the name of Mutawalli, the owner is mentioned and

name of Dashrath was shown as person in possession.

(iii) 7/12 extracts for the years 1960 to 1965-66. For this

period, both Dashrath and the owner were shown in crop

cultivation column. The name of Mutawalli was Asadullah

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Abdul Kadar. From the year 1966-67 to 1968-69 the name

of only Dashrath was shown in crop cultivation column.

From the year 1991-92 till the year 2006-07 the name of

defendant was shown in the crop cultivation column.

(iv) Receipts of revenue showing that the defendant paid

the revenue of the land and they are starting from the year

1968.

(v) Lawani Patrak of the year 1974 Exhibit-84 showing

that Dasrath Hiwre, father of defendant was rendering

services to Dargah. However, on this document there is

endorsement of the authority that it was noticed that

nobody was actually rendering services. Proposal was

given to take over the possession and keep the land under

supervision of the Government.

(vi) In the 7/12 extracts right from the year 1960 to 1998

in other rights column the name of Dashrath was shown as

tenant.

(vii) In the record of 7/12 extract from the year 1988 to

the year 2000 the name of Dashrath was not shown as

tenant. First time the name of plaintiff, Mutawalli was

shown in other rights column.

(viii) From the year 2000 in 7/12 extract the name of

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Tukaram, defendant came to be shown as tenant in other

rights column.

(ix) The receipts showing that plaintiff, Mutawalli paid

funds in Wakf Fund in the year 2003 and 2010.

(x) Copy of Government Gazette dated 27th September,

1975 showing the suit property in the list of Wakf. This list

was published as provided in Wakf Act, 1954. To the suit

property, the provisions of this Act were applicable.

9.

In view of the voluminous record available which was

not challenged and the rival pleadings the Court can

presume following things:

(i) Defendant is not denying that the suit property

belongs to Dargah Peer Saheb.

(ii) The defendant is also not denying that predfecessor

in title of plaintiff was Mutawalli and plaintiff is Mutawall of

this Dargah.

(iii) Defendant is contending that he came in possession

of the suit property as Mutawalli gave possession to him.

So, his possession is under Mutawalli and his possession is

not independent possession as against Dargah.

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10. Defendant came with various defences. First, he tried

to contend that he has become tenant and he also tried to

contend that the possession was given to him for

cultivation and the income was to be used for rendering

services to Dargah i.e. he was working under Mutawalli. A

Mutawalli can never become a tenant of the land of the

religious institution. His possession is like a trustee and so

it can be said that the defendant was admitting that his

possession is just like the trustee. Section 10 of Indian

Limitation Act is relevant in this regard.

11. A submission was made by learned counsel for the

Petitioner that matter ought to have been referred to

Tenancy Court for deciding the dispute with regard to

tenancy rights. It appears that similar submission was

made before Tribunal and even prayer was made to frame

preliminary issue on this point. This issue was taken up to

High Court but defendant failed to take a decision that

there is need of framing such specific issue and referring

the issue to tenancy Court. It is already observed that he

could not have become tenant. Further, in Hyderabad

Tenancy Act (hereinafter referred to as Tenancy Act) there

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is specific provision, section 102-A showing that Tenancy

Act is not applicable to the properties of present nature.

Even if the Tenancy Act is considered, it can be said that

there is no record whatsoever with the defendant to show

that he was inducted as a tenant by Mutawalli. There is

not a single document to show that defendant paid rent,

Khand to Mutawalli. There is no record like amount

collected by the defendant and amounts spent on the

aforesaid

institution. Though, some witnesses are

examined and some record is produced to show that the

persons of the village used to spend money to sacrifice an

animal at the time of Urs function, this record cannot be

considered as record of accounts maintained by the

defendant as manager. He never paid any amount in Wakf

fund. Only because he was in possession, he has been in

possession and the entries of aforesaid nature are there, it

cannot be inferred that his possession is that of a tenant

under the Tenancy Act. In that regard, the definition of

"Protected tenant" can be considered. The record starts

from the year 1954 but for possession purpose, and the

entry of "tenant" was made in the year 1960. There is no

record of inquiry in that regard. The endorsement made in

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Lawani Patrak show that nobody was paying attention to

Dargah and that there is probability that the Mutawalli was

also not paying attention and due to those circumstances

such entry was made firstly in favour of Dashrath and then

in favour of defendant. In absence of any order in that

regard under the Act, it is not possible to believe that the

land was given to predecessor in title of defendant to

create relationship of landlord-tenant. Further, Wakf Act,

1954 came in force in the same year and the first entry as

tenant was of year 1960 and so in view of the bar of

section 102A of the Tenancy Act it was not possible to

make such inquiry and make the entry.

12. In the present proceeding, first time the learned

counsel for the defendant advanced argument that due to

law of limitation the defendant has become owner. In view

of the aforesaid discussion and submissions made before

Tribunal this stand cannot be considered and decision

cannot be given as the scope of the present proceeding is

limited. Further, it can be said that in view of the aforesaid

nature of defence taken by the defendant, it was not

possible for him to show that his possession had become

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adverse. Learned counsel for petitioner made another

submission that if defendant is an encroacher then the

procedure under section 54 of Wakf Act ought to have

been followed and as that kind of procedure has not been

followed, the Tribunal does not get jurisdiction to decide

the suit. This proposition is also not acceptable and the

law developed on this point is being quoted at proper

place. The aforesaid discussion shows that there was

virtually nothing with defendant to defend the suit.

13. The learned counsel for the petitioner placed reliance

on may reported cases. He submitted that there is

presumptive value to the entries made in revenue record

and for that he placed reliance on the case reported as AIR

1974 S.C. 1178 [Shikharchand Jain V/s Digamber Jain

Praband Karini Sabha and others]. It is true that such

record has presumptive value unless contrary is shown.

This Court has already observed that the record is

sufficient to infer that defendant and his predecessors

were in possession but from the record inference cannot be

drawn that their possession was of a tenant. In the same

case, the Apex Court has laid down that the burden of

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proving adverse possession is heavy on one who alleges

that his possession was adverse and he became owner.

14. In the case reported as 2014 (5) ALL.MR. 971

(S.C.) [Fassela M. V/s Munnerul Islam Madrasa

Committee & Anr.] the Apex Court held that the suit for

eviction of tenant can lie in Civil Court and in view of the

provisions of Wakf Act the Tribunal has no jurisdiction. It

was house property. ig Present property is an agricultural

land and there is provision like Section 102-A of Tenant Act

creating bar to the claim of tenancy. In such cases, the

special enactment also need to be considered. Thus, the

observations made by the Apex Court are of no use to the

defendant, petitioner. The dispute from present matter is

covered under Wakf Act, 1995.

15. A case reported as 1997 (4) ALL MR 303

[basharatulla son of Syed Asraf Mohiuddin V/s The

State of Maharashtra & Ors.] - [Bombay High Court,

Aurangabad Bench] was cited. On the basis of this case,

the learned counsel for the Petitioner, defendant submitted

that the benefit of Government Circulars dated 9th August,

1955 and 3rd November, 1970 can be given to defendant

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as they were issued to give protection to persons like

present defendant. This Court has carefully gone through

the observations made by the Division Bench of this Court.

The observations are not to that effect. In that matter, the

land was taken over by the Government for supervision

and it was leased out on yearly basis. The claim was made

by Inamdar, Mutawalli that he was entitled to get Lawani

amount pertaining to the years 1964-70. Then one Arjun

had claimed that he was tenant and he was entitled to

protection. The Division Bench considered the provision of

section 102-A of Tenancy Act and held that in view of this

provision such service Inam lands are exempted from

consideration of Tenancy Act. The Division Bench further

held that the aforesaid circulars were issued for giving

benefit for that current year only. It was a matter pending

before Sub Division Officer, the Revenue Authority to

consider the aforesaid point. Thus, the Division Bench has

not observed that under the two circulars the possession of

person claiming tenancy rights in respect if Wakf property

needs to be protected forever. Thus, the reported case is

of no use to the defendant.

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16. Reliance was palced on a case reported as 1976 BCI

(O) 55 [Nagnathappa Tatya Halge V/s Shrinivas

badrinarayan Mundada and another] - [Bombay High

Court]. In this case, the point involved was altogether

different. It was a case in which there was a dispute about

occupancy rights. There was a claim of Inamdar that he

was entitled to get occupancy rights and there was a claim

of sub-tenant that he was entitled to get occupancy rights.

This Court held that for the purpose of Inam Abolition Act it

is necessary to ascertain as to who was lawfully in

possession on the material date viz. 1st July, 1960. On

that basis, the matter was decided. Thus, point involved

was altogether different.

17. The learned counsel for the Petitioner then placed

reliance on a case reported as 2008 (5) ALL. MR 462

(SC) [T. Kaliamurthi & Anr. V/s Five Gori Thaikal

Wakf & Ors.]. This case is on the point of limitation. One

transaction like sale deed was made in favour of a party in

possession and Wakf institution had filed suit for

possession against that person. The said person had

claimed that it was a private property of one Syed Kasim

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Saheb and after the death of Syed Kasim the property was

sold to him by his legal representatives under sale deed

and so the suit was barred by limitation under section 134-

B of the Limitation Act, 1908 [hereinafter referred to as the

Limitation Act]. The question before the Court was about

the application of the provisions of the Limitation Act, 1963

and subsequent Acts. The period for getting back the

property lost by Wakf institution was fixed in the past and

that period was then changed first time in the Amendment

of 1984 and then in Wakf Act of 1995 (Section 107) a

provision was made that Limitation Act is not applicable to

Wakf properties. Before coming into force of the

subsequent limitation Act the limitation period had expired.

In view of that fact and the provisions of Limitation Act

which was in existence in the past, the Apex Court held

that the right itself had extinguished in view of section 27

of the Limitation Act, 1963 and it was held that said right

cannot be reviewed by Section 107 of the Wakf Act, 1995.

Thus, many other points like Limitation Act, challenging the

sale deed etc. were involved. Present matter is altogether

of different nature and so this case is of no help to the

defendant. In view of Section 10 of Limitation Act the

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person like defendant, who has claimed that he was

holding the property for trust, cannot use the provisions of

Limitation Act.

18. The learned counsel for the plaintiff placed reliance

on some reported cases. In the case reported as 1999 (1)

Mah.L.J. 321 [Shriram Mandir Sansthan @ Shri Ram

Sansthan Pusda V/s Vatsalabai and others] some

provisions of Bombay Tenancy Act were considered by

Supreme Court and it was held that when the property

belongs to religious trust, like present one, the tenancy

right is not inheritable. The learned counsel for plaintiff

submitted that even if it is presumed that Dashrat was

tenant, in view of the position of law laid down by Supreme

Court the defendant did not inherit the rights of tenancy

and so due to that reason also there is no such defence

available to defendant. This Court holds that it is not

necessary to go into detail on this point. The Act

applicable for this region is Hyderabad Tenancy Act, 1950.

Further, in Tenancy Act applicable to this area there is

specific provision like section 102-A. There was no

question of considering such defence of the defendant.

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19. The learned counsel for plaintiff placed reliance on

the case reported as 2010 (14) SCC 588 [Board of

Wakf, West Bengal V/s Anis Fatma Begum & Anr.].

He submitted that even when there is no order made by

authority under Wakf Act suit can be filed before Wakf

Tribunal. He took this Court through the observations

made by the Apex Court in para 16 and they are as under:-

"16. We may further clarify that the party can

approach the Wakf Tribunal, even if no order has been passed under the Act, against which he/ she is

aggrieved. it may be mentioned that Section 83 (1) and 84 of the Act do not confine the jurisdiction of the Wakf Tribunal to the determination of the

correctness or otherwise of an order passed under

the Act. No doubt Section 83 (2) refers to the orders passed under the Act, but, in our opinion, Sections 83 (1) and 84 of the Act are independent provisions,

and they do not require an order to be passed under the Act before invoking the jurisdiction of the Wakf Tribunal. Hence, it cannot be said that a party can

approach the Wakf Tribunal only against an order passed under the Act. In our opinion, even if no order has been passed under the Act, the party can approach the Wakf Tribunal for the determination of any dispute, question or other matters relating to a Wakf or Wakf property, as the plain language of

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Sections 83 (1) and 84 indicates."

20. There cannot be any dispute over this proposition.

Further, in the present matter, the property is shown in the

list of Wakfs and it is a suit for possession against the

encroacher. The provision of section 54 of the Wakf Act

can be used against encroacher but that is enabling

provision and that does not take away the jurisdiction of

Tribunal.

21. The learned counsel for the plaintiff placed reliance

on one case decided by this Court like C.R.A. No.127 of

2014 [Ishtaque Ali Sayyad Ali V/s Maharashtra State

Wakf Board and another] decided on 17th February,

2015. In this case, the effect of amendment made to

Section 83 of Wakf Act, 1995 is discussed by this Court.

Due to this amendment made in the year 2013 Tribunal

can decide matters of eviction of tenant also. The present

matter was decided prior to coming into force the Act of

2013. In view of this circumstance, this decision cannot be

referred in the present matter.

22. The discussion made above shows that the Tribunal

has considered the rival cases and entire material made

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available to it. The decision cannot be called as perverse.

This Court holds that it is not possible to interfere in the

decision of the Tribunal.

23. In the result, Revision stands dismissed.

24. Learned counsel for the Petitioner requested for

continuation of interim relief as he wants to challenge the

decision of this Court. Interim relief granted earlier is

continued in the same terms for six weeks.

[T. V. NALAWADE, J. ] Dated:15/12/2015.

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