Janab Pir Sultanshah Sadar ... vs Shamshadbi Adam Shaikh And Others
2016 Latest Caselaw 543 Bom

                                                            CRA No. 135/2014
                                        1




                                                                           
                      IN THE HIGH COURT AT BOMBAY
                  APPELLATE SIDE, BENCH AT AURANGABAD




                                                   
                   CIVIL REVISION APPLICATION NO. 135 OF 2014

     1.       Janab Pir Sultashah Sadar Bhandari
              Mutawalli, Age 55 years, Occu. Nil,
              R/o. Abdulla Shah Durwesh @




                                                  
              Bhandari Buwa Dargah, Miraj,
              Dist. Sangli, Maharashtra.                    ....Applicant.

                      Versus




                                      
     1.       Sau. Shamshadbi Adam Shaikh,
              Age 53 years, Occu. Agri.,
                             
              R/o. 80D, Yadogopal Peth,
              Satara, Dist. Satara.
                            
     2.       The Chief Executive Officer,
              Waqf Board of Maharashtra State
              At Aurangabad.

     3.       Mehboob Shah Razakshah Fakir Bhandari,
      

              since deceased through his L.Rs.
   



     3-A.     Rafeeq Mahebob Shah,
              Age 45 years, Occu. Nil,
              R/o. Guruwar Peth, Opp. to Ali
              Raza Masjid, Miraj, Tq. Miraj,





              District Sangli.

     4.       Husein Shah Razakshah Fakir Bhandari,
              Age 50 years, Occu. Nil,

              Respondent Nos. 3 & 4 both





              R/o. Near Aliraja Masjid,
              Guruwar peth, Miraj, Dist. Sangli.    ....Respondents.

     Mr. Shaikh Mobin H., Advocate for applicant.
     Mr.V.D. Salunke h/f.Mr.S.B. Kakde, Advocate for respondent No. 1.
     Mr. H.I. Pathan h/f. Mr. S.S. Patel, Advocate for respondent No. 2.
     Mr. P.F. Patni h/f. Mr. P.B. Salunke, Advocate for respondent Nos.
     3A and 4.




    ::: Uploaded on - 18/03/2016                   ::: Downloaded on - 31/07/2016 08:29:59 :::
                                                          CRA No. 135/2014
                                        2




                                                                        
                                      CORAM : T.V. NALAWADE, J.
                                      DATED : 11th March, 2016.




                                                
     JUDGMENT :

1) Revision is admitted. Notice after admission made

returnable forthwith. By consent, heard both the sides for final

disposal.

2)

The proceeding is filed against the judgment and

order of Waqf Suit No. 64/2009, which was pending before the

Waqf Tribunal, Aurangabad. The suit was filed by respondent No.

1 - Smt. Shamshadbi to challenge the decision given by the Chief

Officer of the Waqf Board in Case No. 54/22/2008. That

proceeding was started on the basis of application made by

present petitioner for taking action u/s. 54 of the Waqf Act, 1995.

It is the case of petitioner that he is Mutawalli of Waqf institution

and the property belongs to waqf institution. Prayer was made to

remove the encroachment of the plaintiff of the suit from Survey

No. 51/3 situated at Ankali, Tahsil Miraj, District Sangli. After

giving notices to both the sides, inquiry was held by Chief

Officer. The plaintiff had filed written arguments before the Chief

Officer, but she did not produce the record to substantiate her

defence. The Chief Officer considered the record available with

the Waqf Board and also the record produced by the present

CRA No. 135/2014

petitioner. Chief Officer held that the property belongs to waqf

institution and directed to remove the encroachment. The new

number is given to the property as Gat No. 155/2. It is held that

the property belongs to Dargah of Pir Abdulla Shah Durwesh @

Bhandari Buwa Miraj, a religious institution.

3) In the suit, the plaintiff contended that Survey No.

51/3 was personal Inam land. She admitted that there is the

Dargah of aforesaid name in existence, but she made some

specific contentions in respect of nature of property at para No.

2 of the plaint, as follows :-

"2) The suit property described in para 1 is a

personal inam land. There is an ancient Dargha by

name abdulla Shah Durvesh alias Bhandari Buwa. Some lands were granted as personal inam to the persons looking after the religious rites and

performing certain ceremonies at the dargah. Such persons were popularly known as Khadims. This Khadims were being maintained out of alms and offering devoted at dargah. The Inamas were since

the days of the Adilshah of Deccan India. The suit land was given to tenants for cultivation as the Mirasdars (Permanent Tenants). The Mirasi Right (Permanent Tenancy Rights) were transferable to different tenants"

CRA No. 135/2014

4) The plaintiff further contended that the suit land was

Jat Inam land, personal Inam and so, the Inam was abolished

under Inam Abolition Act, 1952. She contended that after

abolition of Inam, the land was kept with Mirasdars, the tenants

like defendant Nos. 3 and 4. It is contended that defendant Nos.

3 and 4 have sold their Mirasi rights under sale deed dated

26.8.1992 in her favour and the ownership rights are not

transferred. She contended that she cannot be treated as

trespasser or encroacher on the land. She had prayed for relief

of declaration that order of Chief Officer is null and void with

prayer to quash the order of Chief Executive Officer dated

6.3.2009. She had also contended that her predecessors were

also Mirasdars in the land and this case ought to have been

considered by the Chief Officer.

5) Defendant No. 1 - Chief Officer of Waqf Board filed

written statement and contested the suit. Defendant No. 2,

present petitioner filed written statement as Mutawalli to contest

the suit. Following contentions were made by petitioner in the

written statement.

(i) The suit property is waqf property and it

was registered as trust property in the year 1952-53

under the provisions of Bombay Public Trust Act. The

CRA No. 135/2014

Trust Act was applicable to the area where the property

is situated and the registration of the property as a

trust property was within the knowledge of plaintiff.

(ii) In view of the provisions of the Waqf Act,

1995 and as the property was registered as trust

property in the past, there was deemed registration of

waqf institution and the property under Waqf Act.

Further, by making application also by Mutawalli, the

waqf institution and the property was registered under

the provisions of Waqf Act, 1995 also.

(iii) The contention of plaintiff that defendant

Nos. 3 and 4 were in possession as Mirasdar was also

not correct and they had no right or interest in the suit

property.

(iv) The registration of the property as trust

property done in the year 1952-53 and subsequent

registration under the Waqf Act, 1955 was never

challenged by the defendant Nos. 3 and 4 and plaintiff

also and so, they cannot contend in the suit of present

nature that the property is not waqf property.

(v) The property belongs to religious

institution, Dargah and so, the provisions of Inam

Abolition Act and also the Tenancy Act could not have

CRA No. 135/2014

been applied to the suit property and so, there are no

rights in a suit property for defendant Nos. 3 and 4 and

they could not have transfered any right in favour of

plaintiff.

(vi) In revenue record, the name of trust was

shown right from the beginning as the owner and so, it

is not open for the plaintiff to contend that it was not

waqf property or that she did not know the nature of

property, property belongs to religious institution,

Dargah, and

(vii) The property belongs to Dargah and so, the

transaction of transfer of any right including Mirasi

rights in respect of property is void.

6) Defendant Nos. 3 and 4 denied in written statement

that his predecessors were Khadims. In plaint, indirect

contention was made by the plaintiff that the predecessors of

the plaintiff were Khadims. They contend that Survey No. 51 was

given to them for cultivation as Mirasdar, tenant. They have

given history of litigation which was between their predecessors

and others and which was for possession of the suit property.

7) The Tribunal framed issues on the basis of aforesaid

CRA No. 135/2014

pleadings. Evidence was given by both the sides which is as per

aforesaid contentions. There is very old revenue record which

was never challenged. The dispute can be decided mainly on the

basis of this record, rather than oral evidence as there is word

against word. The Tribunal has held that in the year 1952-53

probably no procedure was followed for registration of the suit

property as a trust property and the registration was done

behind the back of Inamdars. The Tribunal has held that it was

personal Inam and so, it was abolished under Inam Abolition Act.

The Tribunal further held that defendant Nos. 3 and 4 were

Mirasdars and they continued their possession after abolition of

Inam. The Tribunal has held that defendant Nos. 3 and 4 have

transferred Mirasi rights in favour of plaintiff and such transfer is

permissible in law.

8) The relevant para of plaint showing the main

contentions of plaintiff with regard to nature of property is

already quoted. At para 7 (v), the plaintiff has further contended

that her predecessors were also Mirasdars. This case of plaintiff

is totally different from the case of defendant Nos. 3 and 4 that

they were only Mirasdars and they have transferred rights under

document dated 21.8.1992. The case of plaintiff and defendant

Nos. 3 and 4 that their rights are Mirasi right, is not consistent

CRA No. 135/2014

with revenue record. They have placed reliance on this record.

9) The pleadings of plaintiff and defendant Nos. 3 and 4

show that they have not denied that Survey No. 51 was Inam

land thought they have tried to contend that it was personal

Inam. They have not given the names of Indamdars though

plaintiff had indirectly contended that defendant Nos. 3 and 4

were probably Khadims, Inamdars. The Inamdars were not made

party to the suit. In plaint para No. 1, it is specific contention of

the plaintiff that Khadims are persons, to whom the land was

given to perform religious rights and ceremonies at Dargah. It is

also contended that Khadims were maintaining themselves on

alms and offerings devoted by people at Dargah. It is specifically

contended that Inam was granted since prior to the period of

Aadilshaha of Deccan India, prior to 1700 A.D.

10) There was registration of the property and the trust

under the provisions of Bombay Public Trust Act. Even if the

provisions of old Waqf Act, 1954 which were not applicable to

that area are considered for limited purpose, for ascertaining the

definitions of 'waqf' and 'beneficiary', it can be said that the

aforesaid description of the property given by plaintiff and

nature of services which were to be rendered make the property,

CRA No. 135/2014

waqf property. These definitions are there in old Act and also in

Waqf Act, 1995 in view of Muslim Law developed on Waqf. The

definition of 'beneficiary' is given in section 3 (a) of Waqf Act,

1954, the definition of 'Mutawalli' is given in section 3 (f) and

definition of 'waqf' is given in section 3 (l). Those definitions are

as under :-

"3 (a) "beneficiary" means a person or object for whose benefit a waqf is created and includes

religious, pious and charitable objects and any other objects of public utility sanctioned by the

Muslim law;

(f) "mutawalli" means any person appointed

either verbally or under any deed or instrument by which a Waqf has been created or by a competent

authority to be the mutawalli of a waqf and includes any person who is mutawalli of a waqf by virtue of any custom or who is/Naib-mutawalli,

khadim, mujawar, sajjadanashin, amin, or other person appointed by a mutawalli to perform the duties of a mutawalli and, save otherwise provided in this Act, any person or Committee or

Corporation for the time being managing or administering any Waqf or Waqf property :

PROVIDED THAT no member of a Committee or Corporation shall be deemed to be a mutawalli unless such member is an office bearer of such

CRA No. 135/2014

Committee or Corporation.

(l) "Waqf" means the permanent dedication by a person professing Islam or any other person of any moveable or immoveable property for any

purpose recognised by the Muslim law as pious, religious or charitable and includes-

(i) a waqf by user but such waqf shall not

cease to be a waqf by reason only of the user having ceased irrespective of the period of such

cesser;

(ii) grants including mashrut-ul-Khidamat

muafies, Khairati, quazi services, madadmas for any purpose recognised by Muslim law as pious, religious or charitable; and

(iii) a waqf-alal-aulad and "waqf" means any person making such dedication;

PROVIDED THAT in the case of dedication by a person not professing Islam the waqf shall be void if, on the death of such person, any objection

to such dedication is realised by one or more of his legal representatives;"

11) If the definitions given of aforesaid three terms are

compared with the definitions given in the Waqf Act of 1995, it

can be said that for the present purpose, the definitions are

similar. The pleading itself shows that the grant was for

rendering services to Dargah, religious institution. When the

CRA No. 135/2014

document of grant, Muntakhab or succession certificate is not

available, from other record and circumstances, inference needs

to be drawn as to whether the property involved is waqf property

or not. It also needs to be ascertained as to whether the

property involved had been used or was allowed to be used as

waqf property. If the property was registered under the Trust Act

as trust property and if requirement of definition of 'waqf' given

above viz. there was permanent dedication and the purpose is

shown to be religious or charitable, then it satisfies conditions

laid down in definition of 'waqf' and inference can easily be

drawn that it was waqf property. The nature of property as waqf

can be proved even by showing the user for aforesaid purpose.

In the matter like present one, when the property is registered

under the Trust Act, and it is shown that the property was to be

used for benefit of Dargah, then inference becomes easy that

the property is Waqf.

12) In view of the aforesaid position of law, the

appreciation of the material needs to be done after considering

entries made in the Register of Trust. A copy of said entry along

with Schedule I containing the description of the property of the

trust is produced. It is not disputed that the trust of aforesaid

name was registered and the suit property was mentioned in

CRA No. 135/2014

Schedule I as property belonging to the trust. The document

shows that the trust was registered on 30.9.1953 at registration

No. 2482. The purpose of the trust was recorded as 'religious

worship'. The mode of succession of trustees was given as

'hereditary'. The name of Sajjadanashin and Mutawalli was

informed at the time of registration and it was Shri. Hasan Shah

Mohammad Shah Bhandari c/o. Bhandari Buwa Dargah (the

place of present Dargah). In 1977 under Change Report bearing

No. 58/77 decided on 17.1.1977 the name of Mohammad Shah

Sultan Shah Sadar Bhandari was informed as new Mutawalli,

trustee. Then due to the order made by Joint Charity

Commissioner on application No. 3/1980 u/s. 47 of Trust Act on

21.8.1980 the name of Sarfu Shah Mira Shah Sadar Bhandari

was entered as Mutawalli. In Schedule I, the properties of the

trust were informed and they were registered and they were as

under :-

(a) Takiya building covering 6839 Sq. Ft. constructed

on C.T.S. No. 5828 of Miraj and

(b) Survey Nos. 51/2 to 51/15, 52/1, 53/1 to 53/3 &

54/2 of Ankali.

Thus, the Survey No. 51/3 was registered as the property

belonging to this trust in the year 1953 itself and the report for

CRA No. 135/2014

that was given in the year 1952.

13) The aforesaid record was never challenged by

anybody. In the revenue record of all Pot-Hissas of Survey No. 51

including Survey No. 51/3, the names of Mohammad Shah Sultan

Shah and then the name of Sultan Shah Mohammad Shah Sadar

Bhandari were recorded as owners, holders. Till the year 1951-52

name of aforesaid trust was not shown in the revenue record,

however, from the year 1952-53, the name of Dargah was shown

in other rights column as Devasthan, public trust. In revenue

record of Survey No. 51/3 which starts from the year 1952-53

the name of one Lalkhan Mohioddin was shown as tenant of

many years (not as a protected tenant). The 7/12 extracts for

the year 1952-53 onwards of the suit property show that the

name of Abdul Razak Fakir was shown under mutation No. 680.

The name of one Bhau Shinde was shown in crop cultivation

column from the year 1936-37 and then he was shown as

protected tenant of this land. The name of Lalkhan as tenant

was removed subsequently. Thus, the names of predecessors of

defendant Nos. 3 and 4 or Abdul Razak Fakir were never shown

as tenant, Mirasdar in the old revenue record which can be

called as relevant for the present purpose.

CRA No. 135/2014

14) The aforesaid record also shows that the disputed

property was registered as trust and the person, who gave

information to the Trust Office, gave his name as Mutawalli,

trustee. The entries of subsequent trustees were also made as

the mode of succession was hereditary. It needs to be presumed

that the Mutawalli, who was incharge of the religious institution

and the property, gave report to the Trust Office in the year 1952

and on that basis, the trust and the properties were registered

under the Bombay Public Trust Act. The successors of the said

Mutawalli are not coming forward to challenge that entry and so,

it is not open to the plaintiff or defendant Nos. 3 or 4 to say that

the entry made in the Register of Trust under the Trust Act was

made behind the back of Mutawalli and it is not binding on

Mutawalli or the parties to the present proceeding.

15) A copy of mutation No. 2034 of the year 1965 shows

that all the aforesaid properties of trust were first involved in a

proceeding started u/s. 32-G of Bombay Tenancy Act. Some

persons were cultivating these lands as tenants at the relevant

time including aforesaid Bhau Shinde. In view of the fact that the

present property Survey No. 51/3 and other properties were

registered as trust properties, the provisions of Tenancy Law

were not applicable and so, these proceedings were dropped.

CRA No. 135/2014

There is certified copy of possession receipt dated 3.7.1964

showing that the possession of Survey No. 51/3 was taken over

from aforesaid Bhau Shinde, who was recorded as protected

tenant and it was handed over to Abdul Razak Osman Fakir

Bhandari (predecessor of defendant Nos. 3 and 4). As per this

record, Abdul Razak had claimed that he was owner of the

property and thus, there was no claim that he was Mirasdar till

the year 1964. After deleting the name of Bhau Shinde, steps

were taken by Abdul Razak to delete the name of aforesaid

Lalkhan. Then first time, after 1964-65 the name of Abdul Razak

was entered in crop cultivation column, but his name was there

in the holders column and there he was shown as mortgagor

(Exh. 65). Under Mutation No. 2139, the name of Lalkhan was

deleted, who was also shown as mortgagee and it was reported

by Abdul Razak that he had paid mortgage money to Lalkhan for

getting redeemed disputed property.

16) At Exh. 40, there is extract of Inam register showing

that in the year 1956 the Inam in respect of Survey No. 51 was

abolished as it was shown in the register as Jat Inam. Copy of

Land Alienation Register is also produced to show that one

Sultan Shah vald Hasan Shah was holding Survey No. 51 as

personal Inam in the year 1952. It is already observed that these

CRA No. 135/2014

persons and successors of these persons had reported to the

Trust Office that the property was of religious trust and they

were Mutawallis. The report was given in the year 1952 and so,

not much weight can be given to the entries made in Inam

Register or the order of abolition of Inam passed under Inam

Abolition Act.

17) It is not the case of defendant Nos. 3 and 4 that prior

to year 1964-65 aforesaid Mohammad Shah or Sultan Shah

(trustees) had given disputed property for cultivation to

defendant Nos. 3 or 4 as tenants. The successor of Hasan Shah

namely Serfu Shah is still there and he is not coming forward to

claim the property by contending that it was personal Inam. On

the contrary, he is one of the trustees of the religious institution.

In view of these circumstances, it is not possible to infer that the

disputed property was personal Inam. There is no record at all

produced much less the record of payment of rent by defendant

Nos. 3 and 4 or plaintiff to the aforesaid person. One entry in

Waqf Register of the year 2005 shows that Sarfu Shah got

entered his name as trustee of aforesaid religious trust by way of

succession.

18) The revenue record shows that for some years,

CRA No. 135/2014

names of defendant Nos. 3 and 4 were recorded in crop

cultivation column. But, due to this entry, inference is not

possible that they were Mirasdars or Inamdars of the religious

trust. The circumstance that the proceeding u/s. 32-G of the

Bombay Tenancy Act was dropped due to circumstances that it

was a trust property is sufficient to show that no rights under

Tenancy Act could have been created in favour of any person

including defendant Nos. 3 and 4. Further, in view of section 3 of

Bombay Personal Inam Abolition Act, Inam in respect of waqf

property could not have been abolished. If it was Inam property

of defendant Nos. 3 and 4, they could have got more rights and

higher rights by proving that it was their personal Inam, but they

preferred to contend that they were Mirasdars. As it is Waqf

property, and from 1952 property was managed by Mutawallis, it

was not possible for defendant No. 3 and 4 to transfer the rights

even of the nature of Mirasi in favour of plaintiff. Thus, plaintiff

did not get any right or interest under the document of

conveyance executed in her favour by defendant Nos. 3 and 4.

These circumstances are sufficient to infer that the plaintiff is

nothing, but trespasser or encroacher over the suit property.

19) Unfortunately, the Tribunal did not consider the

aforesaid record. The law with regard to the waqf property was

CRA No. 135/2014

not properly applied by the waqf Tribunal. Such decision of

Tribunal cannot sustain in law. The Chief officer had not

committed any error in making order u/s. 54 of the Waqf Act

against the plaintiff.

20) In the result, revision is allowed. Judgment and order

of Tribunal is hereby set aside. The order made by the Chief

Officer is hereby restored.

                              ig              [ T.V. NALAWADE, J. ]
                            
     ssc/