Bombay High Court
Shaikh Gausoddin Shaikh Hannu And ... vs Rajesh Vithalrao Kamble on 31 August, 2016
Bench: T.V. Nalawade
WP No. 2597/15
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IN THE HIGH COURT AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD
WRIT PETITION NO. 2597 OF 2015
1] Shaikh Gausoddin S/o Shaikh Hannu
Age: 61 Years, Occu. Labour,
R/o Musa Nagar, Udgir, Dist. Latur.
2] Babbu S/o Nazim Munsi
Age: 31 Years, Occ. Business,
R/o Khadkali Galli, Udgir, Dist. Latur.
3] Nazim S/o Sijaoddin Munsi
Age: 63 Years, Occ. Business,
4]
R/o Khadkali Galli, Udgir, Dist. Latur.
Shaikh Mahatab S/o Shaikh Hannu
Age: 51 Years, Occ. Labour,
R/o Musa Nagar, Udgir, Dist. Latur.
5] Khulejabegum W/o Shaikh Mahatab
Age: 46 Years, Occu. household,
R/o Musa Nagar, Udgir, Dist. Latur.
6] Sahikh Nazim S/o Shaikh Mahatab
Age: 23 years, Occu. Auto Driver,
R/o Musa Nagar, Udgir, Dist. Latur.
7] Shaikh Mohsin @ Chotu S/o Shaikh Mahatab
Age: 22 Years, Occu. Auto Driver,
R/o Musa Nagar, Udgir, Dist. Latur.
8] Shaikh Pasha S/o Shaikh Hannu
Age: 45 years, Occu. Labour,
R/o Musa Nagar, Udgir, Dist. Latur ....PETITIONERS.
(ORIG. DEFENDANTS)
Versus
Rajesh S/o Vithalrao Kamble
Age: 52 Years, Occu. Agri. & Business,
R/o Gandi Nagar, Udgir, Dist. Latur. ...RESPONDENT.
(Orig. Plaintiff)
Mr. M.S. Choudhary , Advocates for petitioners.
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WP No. 2597/15
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Mr. V. D. Gunale, Advocate for respondent.
CORAM : T.V. NALAWADE, J.
DATED : 31st August, 2016.
JUDGMENT :
1) Rule. Rule made returnable forthwith. By consent,
heard both the sides for final disposal.
2) Present proceeding is filed to challenge the order
made on Exh. 17 in Regular Civil Suit No. 493/2013 by the
learned Civil Judge, Junior Division, Udgir. The application filed
under section 9A (Maharashtra Amendment) of Civil Procedure
Code is rejected by the Trial Court and the Trial Court has refused
to frame preliminary issue on the point of jurisdiction. The suit is
filed by present respondent - Rajesh for relief of declaration that
he is owner of the property. He has also prayed for relief of
possession against the present petitioners and relief of
injunction is also claimed. It is the case of plaintiff that he has
purchased plot having size of 60 ft. x 60 ft. from defendant No. 1
under registered sale deed and it is part and parcel of Survey
No. 377.
3) It is the case of defendants that Survey No. 377 is
Service Inam Land and it was given for rendering services to
WP No. 2597/15
Dargah. According to defendants, there is Muntakhab of 1305
Fasli (1895 A.D.) and there is revenue record like Khasara Patrak
of the year 1954-55 to show that Survey No. 377 is Service Inam
Land. It is also the case of defendants that in the year 1980
property is notified as Waqf property in Government Gazette.
4) The learned Judge of the Trial Court has observed
that plaintiff - Rajesh is a stranger, he is not a Muslim and so,
Civil Court has jurisdiction. The provisions of sections 6 and 7 of
the Waqf Act, 1995 show that after creation of Waqf Tribunal,
there is bar created to the jurisdiction of Civil Court vide section
85. Section 83 gives jurisdiction only to Waqf Tribunal and
provisions of sections 6 and 7 show that if the property is
notified as Waqf property, then notification receives presumptive
value and even a stranger like Rajesh needs to challenge such
notification by filing appropriate proceeding before Waqf
Tribunal. This Court is avoiding to go in to the merits of the
matter. But the aforesaid circumstances and position of law is
sufficient to show that Trial Court has committed grave error in
holding that preliminary issue need not be framed in the present
matter.
5) The learned counsel for the plaintiff placed reliance
on the case reported as 2007 (5) ALL MR 132 [Shivajirao s/o.
WP No. 2597/15
Eknathrao Kovale and Ors. Vs. Syed Mehmood s/o. Syued
Nizamoddin and Ors.]. The facts of this reported case show
that proceeding was filed in the year 1987 i.e. before creation of
Waqf Tribunal. This single circumstance is sufficient to ignore the
decision given in the case on which reliance is placed by the
learned counsel for plaintiff. This Court holds that the order
made by the learned Civil Judge, Junior Division, Udgir cannot
sustain in law.
5) In the result, petition is allowed. The order made by
learned Civil Judge, Junior Division, Udgir on Exh. 17 in Regular
Civil Suit No. 493/2013 is set aside. The Trial Court is expected to
frame preliminary issue on the point of jurisdiction of Civil Court
and allow both the parties to lead evidence and then decide the
issue. The observations made in this matter are only for the
purpose of present matter and the learned Judge of the Trial
Court is not to get influenced by the observations made by this
Court in this order.
Rule is made absolute in aforesaid terms.
[ T.V. NALAWADE, J. ]
ssc/
