Martwada Wakf Board vs Smt.Vibhawari Wd/O Deepak ...
2016 Latest Caselaw 91 Bom

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                                                                              sa.431.94

      IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH 




                                                                             
                              NAGPUR.

                       SECOND   APPEAL   NO.   431     OF     1994




                                                     
    Maratwada Wakf Board




                                                    
    through Mohammad 
    Asifuddin Mohammad
    Ayanuddin, aged 45 yrs.
    Occu. District Wakf Officer
    Nanded, District Nanded.                                      APPELLANT.




                                         
                              ig         VERSUS
                            
    1] Vibhawari wd/o Deepak
    Deshpande, aged 45 yrs. 

    2] Ku. Vibhavi Deepak 
    Deshpande (Appeal dismissed).
      


    3] Ku. Pallavi d/o Deepak
   



    Deshpande, aged 13 yrs. 

    4] Ku. Vaidehi d/o Deepak
    Deshpande, aged 11 yrs.





    Respondents 3 & 4 Minors
    through Guardian & Mother 
    Respondent no.1 Smt. Vibhavari
    wd/o Deepak Deshpande.





    All residents of Balaji Tower,
    Chandrapur, M.S. 

    5] Hanuman Prasad Misrilal
    Zawar, aged 50 yrs. Occu.
    Business, R/o Rajura, Tah.
    Rajura, Distt. Chandrapur. 

    5](a) Kamlabai Hanuman Prasad
    wd/o Hanuman Prasad Zawar,
    aged 70 yrs. Occu. Household. 



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                                                                                         sa.431.94

    (b) Premlata Jhumerlal Maniar 




                                                                                        
    w/o Jhumerlal Maniar, aged
    40 yrs. Occu. Household. 




                                                                
    (c) Rajendra Prasad Hanuman
    Prasad Zawar, aged 37 yrs.
    Occu. Business. 




                                                               
    (d) Shankar Prasad Hanuman
    Prasad Zawar, aged 34 yrs. 
    Occu. Business. 

    (e) Vinod Prasad Hanuman




                                                 
    Prasad Zawar, aged 32 yrs.
    Occu. Business.           
    (f) Ramesh Prasad Hanuman
    Prasad Zawar, aged 28 yrs. 
                             
    Occu. Business.                                                           RESPONDENTS.


                                           *************

Shri Masood Shareef & Aadil Mirza, Counsel for the appellant. Shri C. S. Kaptan, Senior Counsel with Shri P. S. Chavan & Shri R. S.

Kalangiwale, Counsel for respondent Nos. 1 to 4.

Shri S. R. Deshpande, Counsel for the Intervenor.

*************

CORAM: A. S. CHANDURKAR J.

Date on which the judgment was reserved: December 10, 2015. Date on which the judgment is delivered : February 26, 2016.

ORAL JUDGMENT:

This appeal under Section 100 of the Code of Civil Procedure (for

short, the Code) takes exception to the judgment dated 16.09.1994 passed by

the first appellate Court allowing the appeal filed by the respondent nos. 1 to

4 and setting aside the judgment and decree passed by the trial Court.

2] Facts found relevant for deciding the second appeal are that

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according to the appellant there was a Dargah and graveyard admeasuring

about 350 ft. X 250 ft. in Survey No. 153 at Rajura Tahsil, District

Chandrapur. The said Dargah and graveyard was shown as Wakf property in

the development plan of Rajura town in 1972. In the Government Gazette

dated 06.03.1975 it was shown at Sr. No. 49. According to the appellant the

defendant no.1-Deepak Deshpande had encroached an area admeasuring 160

ft. X 170 ft. of said property in the month of May 1974. The defendant no.1

had also sold the portion admeasuring 95 ft. X 80 ft. to the defendant no.2 on

29.06.1976. In this background the appellant filed Regular Civil Suit No. 4 of

1977 for a declaration that the suit property was Wakf property and sought

possession of the encroached portion. The suit was filed on 19.01.1977.

3] The defendant no.1 filed his written statement vide Ex. 101. The

case as pleaded was denied by the defendant no.1. It was specifically

pleaded that said defendant was the recorded owner of Survey No. 153/2

admeasuring 1 acre 30 gunthas. It was pleaded that said property was

purchased in a Court auction in the year 1923. In the southern portion there

was a petrol pump of the defendant no.1 and on the northern portion the

land was vacant. Taking the advantage of the same, some members of the

Muslim Community had sought to bury dead bodies there. Reference was

made to proceedings under Section 145 of the Criminal Procedure Code,

1898 in relation to said property.

The defendant no. 2 filed his written statement below Ex. 105.

The defendant no.2 claimed title to land admeasuring 90 ft. X 80 ft. on the

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basis of sale deed dated 20.06.1976.

4] The parties led evidence before the trial Court. By the judgment

dated 09.07.1985 the trial Court decreed the suit and held that the suit

property was wakf property and that the plaintiff was entitled to possession

of the same. It was declared that the sale deed executed by defendant no.1

in favour of defendant no.2 was not binding on the plaintiff.

The defendants being aggrieved filed two separate appeals under

Section 96 of the Code. By judgment dated 16.09.1994 the first appellate

Court allowed both the appeals and set aside the decree passed by the trial

Court. Being aggrieved, the original plaintiff has filed the present second

appeal.

5] When the appeal was admitted the following substantial question

of law was framed:

(1) That S/6(i) of the Wakf Act of 1954, prescribes the period of one year of publication of notification in the Government Gazette dated 06.03.75 for raising any

objections for inclusion and notification of property as a Wakf property, for whom the provision would apply to the plaintiff who among other evidence and factors relied upon the publication of the land as a Wakf land for recovery of possession of the said land or upon the defendant who denies the suit land as Wakf property?

It may be mentioned that the second appeal came to be dismissed on

06.09.2012 by holding that it did not give rise to any substantial question of

law. This judgment was set aside by the Hon'ble Supreme Court in Civil

Appeal No. 9888 of 2014 by order dated 27.10.2014 and the proceedings

were remitted for fresh consideration. After hearing the learned counsel for

sa.431.94

the parties on 03.12.2015, two more substantial questions of law were

framed in terms of the proviso to Section 100(5) of the Code. Said

substantial questions of law are as under:

(2) In absence of any issue as regards suit being filed within limitation being framed by the trial Court and

in absence of such ground in the memo of appeal, whether the Appellate Court was justified in going into said question?

(3) Whether the appellate Court has failed to consider

relevant evidence that was available on record?

The learned counsel for the parties were thereafter heard on all the three

substantial questions of law.

6] In support of the appeal Shri Masood Sharif, the learned counsel

for the appellant made the following submissions:

(a) The suit as filed was in limitation and the appellate Court was not

justified in holding that the suit had been filed beyond the period of

limitation. It was submitted that as per the Gazette Notification dated

06.03.1975, property admeasuring 350 ft. x 250 ft from Survey No.153 was

a Wakf property. It was alleged in the plaint that in May 1974, the defendant

No.1 had encroached an area admeasuring 160 ft. x 170 ft. Thereafter on

29/06/1976 the defendant No.1 had sold area admeasuring 90 ft. X 80 ft. to

the defendant No.2. The suit was filed on 19/01/1977 and hence the same

was within limitation. According to him the appellate Court fell into error in

holding the suit as filed was barred by limitation under the proviso to

Section 6(1) of the Act of 1954. The reference to the Gazette dated

06/03/1975 in which the property was shown as wakf property was only for

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narrating a historical fact. He therefore submitted that the suit as filed was

based on the title of the plaintiff and in view of the provisions of Articles 58

and 65 of the Indian Limitation Act, 1963 the suit was within limitation.

(b) The trial Court had not framed any issue as to whether the suit

was barred by limitation. The appellate Court however, framed a point in

that regard and proceeded to hold that the suit was barred by limitation. In

absence of any such plea being raised in the written statement, the appellate

Court for the first time could not have gone into the question of limitation

especially when such issue was not framed by the trial Court. In that regard

he placed reliance upon the judgment of the Hon'ble Supreme Court in

Banarasi Das Vs. Seth Kanshiram and others AIR 1963 SC 1165. It was

therefore submitted that in terms of the provisions of Order XLI Rule 25 of

the Code, the appellate Court could have framed the issue of limitation and

referred the same to the trial Court for adjudication.

(c) It was then submitted that even on merits the appellate Court

erred in dismissing the suit. Various documents filed on record were not

considered by the appellate Court. The documents at Exhibits-P-5, P-6, 31 to

35, 129 and 154 were relevant for considering the case of the plaintiffs. By

not considering these documents in the proper perspective the suit came to

be dismissed. It was submitted that the suit property had been properly

described in paragraph 5 of the plaint and by producing the map at Exhibit-

129, its location was pointed out. Even the report of the Sub Divisional

Officer at Exhibit-154 indicated that the Revenue Authorities desired to await

sa.431.94

the outcome of the civil suit. It was then submitted that the witnesses

examined on behalf of the plaintiff had proved the case as pleaded. The

conclusion that there was no valid gift of Survey No.153 by Ahmed Baig to

the Rajura Committee was incorrect. The appellate Court was not justified in

doubting the authority of PW-1 in filing the suit especially when the same

was not challenged by the defendants in their written statement. It was

therefore submitted that if the aforesaid aspects had been properly

considered by the appellate Court, the decree passed by the trial Court would

have been maintained. In support of his submissions, the learned counsel

relied upon the decision of the Hon'ble Supreme Court in Narendra Gopal

Vidyarthi Vs. Rajat Vidyarthi (2009) 3 SCC 287.

7] The aforesaid submissions were opposed by Shri C. S. Kaptan, the

learned Senior counsel on behalf of the original defendant No.1. He made

the following submissions :

(a) The appellate Court was justified in going into the question of

limitation in terms of Section 3 of the Indian Limitation Act, 1963. It was the

duty of the trial Court to have considered the question of limitation even if

the same was not specifically urged. He submitted that even in the

memorandum of appeal, ground No.9 had been raised to urge that the suit as

filed was barred by limitation. Reliance was placed on the judgment in M/s

Craft Centre and others Vs. The Koncherry Coir Factories, Cherthala AIR 1991

Kerala 83 in that regard. He however, fairly submitted that both the

defendants were strangers to the wakf and the proviso to Section 6(1) of the

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Act of 1954 would apply only when both parties to the suit are interested in

the wakf. He submitted that this issue stands concluded in view of the

judgment of the Hon'ble Supreme Court in Board of Muslim Wakfs, Rajasthan

Vs. Radha Kishan and others (1979) 2 SCC 468 which has been subsequently

followed in Punjab Wakf Board Vs. Grampanchayat @ Gramsabha (2000) 2

SCC 121 and Karnataka Wakf Board Vs. State of Karnataka and another

(2003) 5 SCC 555.

(b) The appellate Court had rightly held against the plaintiffs. There

were various documents on record which indicated that the title of the suit

property vested with the defendants. According to him in the preliminary

order passed under Section 145 of the Criminal Procedure Code, 1898 on

12/05/1970 the defendant No.1 had been shown in possession. Even the

town planning map dated 31/10/1972 showed the possession of the

defendant No.1. Therefore, the case that the defendant No.1 had

encroached on the property in May 1974 could not be accepted. He

submitted that neither in the Gazette Notification at P-6 nor in Exhibit-155

were the boundaries of the wakf property mentioned. It had been merely

stated that it was situated in Survey No.153. In absence of identification of

the suit property, the title of the plaintiff could not be held to be proved. The

trial Court failed to go into the question of identity of the suit property and

instead held in favour of the plaintiffs. The 7/12 extract at Exhibit-152

showed the possession of the defendant No.1 since 1962-63. As regards the

evidence led on behalf of the plaintiffs, it was submitted that none of the

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witnesses could depose in a manner that could prove the case of the plaintiff

and their depositions were not helpful for decreeing the suit. In fact the

plaintiff had relied only upon the town planning map at Exhibit-155 and the

Gazette Notification dated 06/03/1975. It was submitted that in this

background when the appellate Court has recorded a finding of fact that the

encroachment had not been proved by the plaintiff, there was no scope to

interfere under Section 100 of the Code. In that regard the learned Senior

counsel placed reliance on the judgment of the Hon'ble Supreme Court in

Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others (1999) 3 SCC

722, Rangammal Vs. Kuppuswami and another (2011) 12 SCC 220,

Ramkishore Sen and others Vs. Union of India and others AIR 1966 SC 644,

Gurunath Manohar Pavaskar and others Vs. Nagesh Siddappa Navalgund and

others (2007) 13 SCC 565 and the judgment of the Allahabad High Court in

Gauri Shankar Vs. Emperor AIR 1930 Allahabad 26. It was therefore

submitted that as no substantial question of law arose in the second appeal,

there was no case made out to interfere.

By order dated 21.08.2007, Civil Application No. 5545 of 2007

was directed to be heard alongwith the appeal. Considering the averments

made in the application, the learned counsel for the intervenor was permitted

to address the Court on the substantial questions of law. Shri S. R.

Deshpande, the learned counsel for the intervenor adopted the submissions

made on behalf of the respondents.

8] I have heard respective counsel for the parties at length and I

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have also gone through the documents filed on record. The first substantial

question of law as framed is with regard to the aspect whether the suit as

filed was barred by limitation in view of the provisions of Section 6(1) of the

Act of 1954. Under Section 6(1) of the Act of 1954 if any question arises

whether a particular property described as wakf property in the list of wakfs

is wakf property or not, the Board or the mutawalli of the wakf or any person

interested therein can institute a suit in the civil Court. However, as per the

first proviso to Section 6(1) of the Act of 1954, no such suit can be

entertained by the civil Court after the expiry of one year from the date of

publication of the list of wakfs under Section 5(2) of the Act of 1954. In

Board of Muslim Wakfs (supra) it was held by the Hon'ble Supreme Court that

the provisions of Section 6(1) of the Act of 1954 relate only to those persons

who are interested in the wakf. The purpose of Section 6 of the Act of 1954

was to confine disputes between the Wakf Board, mutawalli and the person

interested in the wakf. It was held in the aforesaid decision that the Act of

1954 deals with wakf, its institutions and its properties and therefore it

would be logical and reasonable to infer that said provisions empower only

those who are interested in the wakf to institute suits. The judgment in

Board of Muslim Wakf (supra) was considered by the Hon'ble Supreme Court

in its subsequent judgment in Punjab Wakf Board (supra). By following the

earlier law, the Hon'ble Supreme Court in Punjab Wakf Board (supra) made a

clear distinction between a dispute amongst the wakf and the mutawalli or

the persons claiming under him and a dispute with a stranger. It is,

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therefore, clear that the period of limitation as prescribed by the proviso of

Section 6(1) of the Act of 1954 would apply only to those who are interested

in the wakf.

9] In the present case the original defendants were not persons who

were interested in the wakf. The dispute was between the wakf board and

strangers. Thus considering the ratio of the judgment in Board of Muslim

Wakf (supra) it will have to be held that the period of limitation of one year

commencing from the date of the notification would not be applicable in the

present case. The appellate Court though referred to the decision in the

Board of Muslim Wakf (supra), it failed to apply the ratio of aforesaid decision

in the proper perspective. The appellate Court fell into an error when it held

that the plaintiff should have filed the suit within a period of one year from

the notification dated 06/03/1975 and as the same was not done, the suit

was barred by limitation. The finding recorded by the appellate Court against

point no.1 is therefore liable to be set aside. Accordingly substantial question

of law no. 1 is answered by holding that the proviso to Section 6(1) of the

Act of 1954 would not apply in the present case and the suit as filed was not

barred by limitation.

As the finding recorded by the First Appellate Court on the

question of the suit being barred by limitation has been set aside, it is not

necessary to further delve into substantial question of law No. 2 as nothing

would turn even if said question is answered in favour of the appellant.

10] The substantial question of law No. 3 pertains to the failure on

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the part of the appellate Court in considering relevant material that was

available on record while deciding the appeal. Before considering said aspect

of the matter it would be first necessary to refer to the scope of interference

under Section 100 of the Code by referring to the decisions cited by the

learned counsel. In Kondiba Dagadu Kadam (supra) it was held by the

Hon'ble Supreme Court that it was not within the domain of the High Court

to investigate the grounds on which the findings were arrived at by the first

appellate Court which is the last court of facts. Where from a given set of

circumstances two inferences are possible, one drawn by the lower appellate

Court would be binding on the High Court in Second Appeal. It is only if the

conclusions drawn are contrary to the mandatory provisions of law or the

pronouncements made by the Apex Court or the same are based on

inadmissible evidence or arrived at without any evidence that a case for

interference would be made out.

In Narendra Gopal Vidyarthi (supra) it was observed that findings

of fact could give rise to a substantial question of law in the event such

finding is based on no evidence and/or while arriving at said finding the

relevant admissible evidence has not been taken into consideration or

inadmissible evidence has been taken into consideration. The general rule

that the High Court would not interfere with the findings of the Courts

below is not an absolute rule.

11] The suit as filed by the appellant proceeds on the premise that as

per the Notification at Ex. P-6, at Sr. No. 49 it was stated that there was a

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graveyard admeasuring 350 ft. X 250 ft. in Survey No. 153 at Rajura. The

suit further proceeds on the premise that the defendant no.1 had encroached

upon the area of 160 ft. X 170 ft. After encroaching said portion, area of 95

ft. X 80 ft. was sold to the defendant no.2. The suit is principally based on

the copy of the notification at Ex. P-6, the Town Planning Map dated

31.10.1972 at Ex. P-5 and the sale deed dated 29.06.1976 executed by the

defendant no. 1 in favour of the defendant no. 2. The other documentary

evidence that was relied upon by the appellant is Ex. 129 which is a map

drawn by an Overseer and the report of the Sub Divisional Officer dated

29.03.1978 at Ex. 154.

On the other hand the defendant no. 1 has relied upon the

documents at Ex. 221-P and Ex. 221-A. These are the certified copies of the

decree along with a map showing the property "Sardar Manzil" that was

purchased in an auction by the father of the defendant no. 1. The revenue

documents at Exs. 141 and 142 are also relied upon to show the ownership

and possession of Survey No. 153/2 by the father of defendant no. 1. The

defendants have also relied upon the documents at Exs. 31 and 32 relating to

proceedings under Section 145 of the Criminal Procedure Code, 1898.

Besides this, the parties have also relied upon oral evidence of their

witnesses.

12] A perusal of the document at Ex. P-6 indicates that in said

notification there is a reference to the graveyard in the area admeasuring

350 ft. X 250 ft. However, no boundaries have been mentioned to indicate

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said area in Survey No. 153. It has come on the record that Survey No. 153

was admeasuring 10 acres out of which Survey No. 153/2 admeasuring 1

acre 30 gunthas was purchased by the father of the defendant no. 1 in a

Court auction. From the perusal of Ex. 31 which is an order dated

31.12.1971 passed by the Additional District Magistrate in proceedings under

Section 145 of the Criminal Procedure Code, 1898 it has been held therein

that the defendant no.1 was entitled to remain in possession of Survey No.

153/2 admeasuring 1 acre 30 gunthas. This position is further clarified by

the documents at Exs. 141 and 142 indicating the possession of defendant

no.1.

13] In so far as the map at Ex. P-5 is concerned the same is the

development map of the city of Rajura. This map is dated 31.10.1972 which

was drawn by the Town Planning Officer. This map is not prepared as per

any scale and the same does not indicate the exact area of Survey No. 153.

The map at Ex. 129 dated 10.01.1977 was drawn by P. W. 2-M. M. Ali who

was an Overseer. He was examined at Ex. 128 and in his deposition he

admitted that he had not seen the survey map showing the exact location of

the wakf property. He further admitted that he was not knowing whether

the graveyard was existing prior to the road or not. He did not tally the four

corners of the Survey Commissioner Map with the actual corners on the spot.

This witness also admitted that there was no Dargah in the area and there

were only graves existing. From his deposition it is clear that the map Ex.

129 has not been prepared by using any technical skill. Without seeking the

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survey map of the entire plot, the map at Ex. 129 has been prepared.

In so far as the other map at Ex. 155 is concerned the same is

prepared by the Town Planning Department, Chandrapur. This map was

brought on record in the deposition of P. W. 6-Jahid Hussain at Ex. 152.

According to him the same was a certified copy of the map which was issued

by the Town Planning Department, Chandrapur. In his cross examination he

categorically admitted that there was no documentary record in his

possession except the town planning map and the Gazette Notification to

show the area of the graveyard and the Dargah. The person who had drawn

the said map was not examined. Even in said map there are no dimensions

of Survey No. 153 being mentioned.

14] In so far as the title of the plaintiff to the property in question is

concerned, the plaintiff had examined P. W. 3 Khalilulla Beg at Ex. 132.

According to the said witness his father Ahmed Beg was the Pattedar of

Survey No. 153 and he had gifted said land to the plaintiff. There is however

no evidence whatsoever record to indicate that either Ahmed Beg was the

Pattedar of Survey No. 153 or that after executing the oral gift, any mutation

entry or other revenue records were prepared by the plaintiff to indicate its

ownership. On the other hand the title in respect of Survey No. 153/2 has

been proved by the defendant no.1 by relying upon the documents at Exs.

221-P and 221-A. The revenue records at Exs. 141 and 142 also indicate the

ownership and possession of defendant no. 1 of Survey No. 153/2.

15] All this evidence was considered by the appellate Court after

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which it held that the plaintiff had failed to prove that Survey No. 153 was

gifted by Ahmed Beg to it. It further held that the maps at Exhibit Nos. P-5,

129 and 155 did not prove the case of the plaintiff as the said maps did not

indicate the exact location of the suit property nor were said maps proved in

accordance with law. It was found that the evidence of P. W. 2 and P. W. 6

was not sufficient to prove the case of the plaintiff. It is on that basis that the

appellate Court held against the plaintiff.

16] From the above therefore it cannot be said that the first appellate

Court while holding against the plaintiff has either ignored any relevant

admissible evidence or that it has taken into consideration any inadmissible

evidence. Ratio of the decision in Naredra Gopal Vidyarthi (supra) would

therefore not be applicable to the facts of the present case. On the other

hand the observations of the Hon'ble Supreme Court in Kondiba Dagdu

Kadam (supra) in paragraph 5 of said judgment would apply on all fours.

Further as held by the Hon'ble Supreme Court in Ramkishore Sen & ors.

(supra) there can be no presumption in favour of the accuracy of any map

drawn under Section 83 of the Evidence Act. It was necessary for the

plaintiff to have actually proved the dimensions of the property that was

alleged to have been orally gifted to it by Ahmed Beg and thereafter also

proved the encroachment to the extent of the area admeasuring 160 ft. X 170

ft. There is no evidence whatsoever on record to prove any such

encroachment by the defendant as alleged. On the contrary the defendant

no.1 has shown his title to Survey No. 153/2 that was purchased in a Court

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auction. It is, therefore, a case not being proved by the plaintiff for want of

sufficient evidence. Hence, there is no scope whatsoever to interfere with the

findings recorded by the first appellate Court. The substantial question of

law No. 3 is answered by holding that the appellate Court has not failed to

consider all relevant material that was available on record. After considering

all the relevant material, the suit has been dismissed.

17] In view of the aforesaid findings, it is held that there is no case

made out to interfere with the judgment of the first appellate Court under

Section 100 of the Code. No substantial question of law arises so as to upset

the judgment of the first appellate Court. The second appeal is therefore

liable to be dismissed. The same is accordingly dismissed with no order as to

costs.

JUDGE

svk