Bombay High Court
Shaikh Sheru S/O Shaikh Bashir And ... vs Ayesha Begam W/O Abdul Qadeer ... on 4 October, 2017
Bench: K.L. Wadane
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
CIVIL REVISION APPLICATION NO. 36 OF 2016
1] Shaikh Sheru s/o Shaikh Bashir,
age 37 years, occ. Labour,
R/o Qadeer Nana Nagar,
Dhangar Galli, Phulambri,
Taluka Phulambri, Dist.Aurangabad,
2] Ishaq @ Ismail Khan s/o Sikandar
Khan, age 32 years,
Occ. Private Service,
R/o H.NO.28, Vanjar Galli,
Near Jama Masjid, Phulambri,
Taluka Phulambri,
Dist. Aurangabad ... Applicants
[Orig. Deft. Nos. 2 and 3]
VERSUS
1] Ayesha Begam w/o Abdul
Qadeer Patel, age 40 years,
Occ. Business,
R/o H. No. 5-8-87,
In front of RTO Office,
Magribi Compound,
Jahagirdar Colony, Station Road,
Aurangabad,
2] Abdul Qadeer s/o Musheer Patel,
age 45 years, occ. Business,
R/o H. No. 5-8-87,
In front of RTO Office,
Magribi Compound,
Jahagirdar Colony, Station Road,
Aurangabad,
3] Shaikh Fayyaz s/o Abdul Rahim Patel,
age 45 years, occ. Business,
R/o Vanjar Galli, Near Jama Masjid,
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Phulambri, Tq. Phulambri,
Dist. Aurangabad,
4] Mohammad Ayaz s/o Abdul Rahim Patel,
age 20 years, occ. Business,
R/o Vanjar Galli, Near Jama Masjid,
Phulambri, Tq. Phulambri,
Dist. Aurangabad,
5] Shaikh Mahemood s/o Abdul Rahim
Patel, age 50 years, occ. Business,
R/o Vanjar Galli, Near Jama Masjid,
Phulambri, Tq. Phulambri,
Dist. Aurangabad,
6] Raheman s/o Amir Patel,
age 65 years, occ. Business,
R/o Rahemat Nagar, Paan Badi,
Tq. Phulambri, Dist. Aurangabad,
7] Syed Hamidoddin s/o Syed Afzaluddin
Chisti, age 55 years, occ. Business,
R/o Chisti Wada, Phulambri,
Tq. Phulambri, Dist. Aurangabad,
8] Syed Munirodin s/o Syed Muqimoddin
Chisti, age 30 years, occ. Business,
R/o Chisti Wada, Phulambri,
Tq. Phulambri, Dist. Aurangabad,
9] Syed Zafar s/o Syed Afzaluddin
Chisti, age 38 years, occ. Business,
R/o Chisti Wada, Phulambri,
Tq. Phulambri, Dist. Aurangabad,
10] Shivaji s/o Rangnath Jadhav,
age 40 years, occ. Business,
R/o behind new Tahsil Office,
Phulambri, Tq. Phulambri,
Dist. Aurangabad,
11] Sagar s/o Sakharam Raut,
age 33 years, occ. Business,
R/o Shirkar Vasti, Khultabad Road,
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Phulambri, Tq.Phulambri,
Dist. Aurangabad,
12] Kaduba s/o Gangadhar Raghu,
age 50 years, occ. Business,
R/o In front of new Bus Stand,
Phulambri, Tq. Phulambri,
Dist. Aurangabad,
13] Santosh s/o Bhikaji Dhoke,
age 37 years, occ. Business,
R/o Sillod Road, Behind Hotel Lalitraj,
Phulambri, Tq. Phulambri,
Dist. Aurangabad,
14] Ajaykumar s/o Biharilal Jaiswal,
age 40 years, occ. Business,
R/o Tirupati Auto, Aurangabad Road,
Phulambri, Tq.Phulambri,
Dist. Aurangabad,
15] Sudhakar s/o Gangadhar Thombre,
age 52 years, occ. Business,
r/o Sillod Road, In front of SBI Bank,
Phulambri, Tq.Phulambri,
Dist. Aurangabad,
16] Ramesh s/o Balkrushna Dutonde,
age 40 years, occ. Business,
r/o Sillod Road, Beside Hotel Lalitraj,
Phulambri, Tq.Phulambri, Dist.Aurangabad,
17] Rajesh s/o Pandit Nagre,
age 52 years, occ. Business,
r/o Panwadi Road, Behind Z.P. High School,
Phulambri, Tq.Phulambri, Dist.Aurangabad,
18] Balasaheb s/o Ranoba Waghmare,
age 40 years, occ. Business,
R/o Shiv Cycle, New Bus Stand,
Phulambri, Tq.Phulambri, Dist.Aurangabad,
19] Shivaji s/o Dagdu Mule,
age 45 years, occ. Business,
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Phulambri, Tq.Phulambri, Dist.Aurangabad,
20] Prabhakar s/o Bhikaji Sotam,
age 55 years, occ. Business,
R/o Kanori, Tq.Phulambri,
Dist. Aurangabad,
21] Dhananjay Baburao Seemant,
age 53 years, occ. Business,
R/o Savarkar Chowk,
Phulambri, Tq.Phulambri, Dist.Aurangabad,
22] Santosh s/o Dattatray Jadhav,
age 38 years, occ. Business,
R/o In front of Sant Sawatamali College,
Phulambri, Tq.Phulambri, Dist.Aurangabad,
23] Nikhil s/o Kamlakar Kamlakar,
age 35 years, occ. Business,
R/o Hotel Sham, Khultabad Road,
Phulambri, Tq.Phulambri, Dist.Aurangabad,
24] Yogesh s/o Madhukar Misal,
age 35 years, occ. Business,
R/o Sillod Road, Dari Phata,
Phulambri, Tq.Phulambri, Dist.Aurangabad,
25] Dinesh s/o Namdeo Bolkar,
age 40 years, occ. Business,
R/o Bolkar Mala, Math Pati,
Phulambri, Tq.Phulambri, Dist.Aurangabad,
26] Shaikh Akbar s/o Shaikh Dilawar Patel,
age 44 years, occ. Business,
R/o Kabir Nagar, Beside Water Tank,
Phulambri, Tq.Phulambri, Dist.Aurangabad,
27] Shaikh Akram s/o Abdullah Patel,
age 37 years, occ. Business,
R/o Patel Mohalla,
Phulambri, Tq.Phulambri, Dist.Aurangabad,
28] Shaikh Bablu s/o Shaikh Muzammil
Patel, age 34 years, occ. Business,
R/o Patel Mohalla
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Phulambri, Tq.Phulambri, Dist.Aurangabad,
29] Shaikh Qadeer s/o Shaikh Bashir,
age 39 years, occ. Business,
R/o Qadeer Nana Nagar, Dhangar Galli,
Phulambri, Tq.Phulambri, Dist.Aurangabad,
30] The Maharashtra State Wakf Board,
through its Chief Executive Officer,
Office at Panchakki,
Aurangabad ... Respondents
[Nos. 1 to 25 Orig.Plaintiffs, Nos.
26 to 29 Orig. Deft.Nos. 1, 4 to 6]
.....
Mr. H.I.Pathan, advocate for the applicants
Mr. Mobin M. Shaikh, advocate for respondents 1 to
25
.....
CORAM : K.L.WADANE, J.
Reserved on : 25.09.2017
Pronouncement on : 04.10.2017
J U D G M E N T :
Rule. Rule returnable forthwith. With
the consent of learned counsel for the parties,
the Revision is heard finally.
2. The Revision Application is filed by
original defendant nos. 2 and 3 against the order,
dated 19.1.2016, passed by the learned District
Judge and Presiding Officer, Maharashtra State
Wakf Tribunal, Aurangabad below Exh.5 in Wakf Suit
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No. 104 of 2014 thereby granting temporary
injunction restraining original defendant nos. 1
to 6 from causing obstruction over the possession
of suit plots of plaintiffs described in para no.1
of the application till final disposal of the
suit.
3. It is the case of applicants that the suit
property Gut No. 353 (old Survey No. 237)
admeasuring 24 acres 36 Are including other lands
situated at Phulambri was inam land given as Madad
Mash in favour of Inamdar of Dargah Babashah
Musafir, Panchakki. Succession of said land was
sanctioned in the name of Saleha Begum d/o Shah
Gulam Jilani on 22.7.1942 as per extract of
register of Inam land of Phulambri. Thereafter on
abolition of inam on 7.1.1954, one Saeedunnisa
Begum and others being legal heirs of Saleha Begum
became owner of the said land. The said
Madad Mash land was declared as Khalsa
by the Commissioner under the provisions
of Hyderabad Inam Abolition and Cash
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Grants Act on 11.10.1962. It is the case of the
applicants that the suit land being declared as
Khalsa is not service inam land. It is the case
of applicants that Saeedunnisa Begum had executed
lease agreement in favour of one Bhausaheb Baburao
admeasuring 12 Hectar 82 Are for 99 years and on
the basis of same, said Misal is in possession and
cultivation of the suit land, which is clear from
7/12 extract of Gut No. 353 for the year 1973-74
showing name of Saeedunnisa Begum and thereafter
name of said Misal is mutated in the 7/12 extract.
As such, the Wakf Board has no authority to claim
ownership of the same.
4. It is further the case of applicants that
the applicants and others have under the
registered notarized lease agreement dated
28.8.2014 obtained 20 gunthas of land out of Gut
No. 353 from said Misal and installed temporary
shade over it for running the business. Respondent
no.30, the Wakf Board, without any authority
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through its District Wakf Officer has illegally
executed an agreement of tenancy in respect of the
suit land in favour of plaintiffs, to the extent
of 450 sqare feet land each on 19.7.2014, by
putting certain conditions. The act on the part
of the Wakf Board is without any authority of law.
Memorandum of understanding, dated 1.9.2014 in
favour of Bhausaheb Baburao Misal and Shaikh Lal
Farid Patel and others is produced by the
applicants on record at Exh. 'E'.
5. The applicants contend that Wakf Suit No.
104 of 2014 is filed by the plaintiffs against the
applicants and others for perpetual injunction in
respect of land Gut No. 353, to the extent of 20
Are land, situated at Phulambri before the learned
Tribunal. In that suit, the plaintiffs filed
application Exh.5 for grant of temporary
injunction against the defendants.
6. Applicants - original defendant nos. 2 and
3 resisted the said application by filing their
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say on 25.8.2015, on the ground that the
plaintiffs have not filed any documents in support
of possession of the suit land, as the plots were
leased out for 11 months and as the said period
expired, the said document has become infructuous
and balance of convenience does not lie in favour
of the plaintiffs. The applicants also contended
that the application Exh. 5 filed by them be
considered and the application for temporary
injunction filed by the plaintiffs, along with
suit, be dismissed with costs.
7. The learned Presiding Officer of the
Tribunal after hearing the respective parties held
that the suit property is Wakf property of Dargah
Hazrat Babasaheb Musafir as per Government Gazette
dated 17.3.1973 and granted temporary injunction
restraining the applicants and defendant nos. 1, 4
and 6 from causing obstruction over the possession
of suit land of the plaintiffs, during the
pendency of the suit.
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8. Being aggrieved by the aforesaid order
passed by the Tribunal, the applicants have
preferred the present Revision Application
contending that the learned Tribunal has failed to
appreciate that the suit land was Madad Mash inam
and was declared Khalsa under the provisions of
Hyderabad Inam Abolition and Cash Grants Act on
11.10.1962 and entry to that effect, in Government
Gazette in the year 1973, showing the property as
"wakf property" is incorrect and contrary to
record on abolition of inam in the year 1962. The
tenancy agreement by the Wakf Board in favour of
plaintiffs is an abuse of process of law. The
Tribunal erred in granting temporary injunction
against the defendants by ignoring record. The
applicants therefore prayed to quash and set aside
the impugned order of temporary injunction passed
by the learned Presiding Officer of the Tribunal.
9. Respondent No.3 on behalf of Respondent
Nos. 1, 2 and 4 to 25 i.e. original plaintiffs has
filed affidavit in reply dated 22.3.2016 and
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resisted the admission of the Revision Application
filed by the applicants, by denying the averments
made therein. It is contended that the applicants
have suppressed the material facts and that the
plaintiffs are in possession of 20 Are land for
last so many years and, therefore, the plaintiffs
had applied on 3.3.2014 before the Maharashtra
Wakf Board for lease of the suit land. The suit
land is owned by Dargah Babashah Musafir Panchakki
and there is entry to that effect in 7/12 extract.
The suit land is published in Government Gazette
of Wakf dated 17.5.1973, at Sr. No.2. The suit
land is one of the properties of said Dargah. The
applicants have no concern with the land in
question. The plaintiffs are in continuous
uninterrupted possession of the concerned land.
The plaintiffs have deposited the rent regularly
with the Wakf Board and receipts to that effect
have also been issued by the Board. The Wakf
Board executed agreement of lease in favour of
plaintiffs on 24.7.2014 and since then the
plaintiffs are in possession of the land in
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question. The applicants, without any right or
interest, have caused obstruction in the peaceful
enjoyment and possession of the plaintiffs over
the suit property and, therefore, the plaintiffs
were constrained to file the suit for injunction.
It is contended that Mutawalli of the said Wakf
has not disputed possession of the plaintiffs over
the suit land, and therefore, possession of the
plaintiffs is legal and needs protection. The
plaintiffs have also applied for extension/renewal
of lease period on 18.6.2015 requesting to accept
rent amount. The plaintiffs contended that the
Revision Application is devoid of any substance
and is liable to be dismissed by confirming the
impugned order of temporary injunction granted in
favour of the plaintiffs. The plaintiffs in
support of their say have along with affidavit in
reply filed the documents, such as agreement of
lease dated 19.7.2014, no objection certificate by
Mutawalli in favour of Respondent no.3 and the
application for renewal of lease for further
period.
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10. Learned counsel for the applicants
contended that the suit property Gut No. 353 (old
Survey No. 237), admeasuring 24 acres 36 Are,
situated at Phulambri was inam land given as Madad
Mash in favour of Inamdar of Dargah Babashah
Musafir, Panchakki and said land was sanctioned
in the name of Saleha Begum d/o Shah Gulam Jilani
on 22.7.1942 as per extract of register of Inam
land of Phulambri. There was succession inquiry
in the matter and the Revenue Assistant,
Aurangabad, by order dated 7.1.1954 has clarified
that said land shall continue to be in the name of
last heirs of Saleh Begum. Thereafter, on
abolition of inam on 7.1.1954, one Saeedunnisa
Begum and others as legal heirs became owners of
the said land. Saeedunnisa Begum had executed
lease agreement in favour of one Bhausaheb Baburao
and on the basis of same, said Misal is in
possession and cultivation of the suit land.
11. Learned counsel further contends that by
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lease agreement dated 28.8.2014 the applicants
and others have obtained 20 gunthas of land out of
Gut No. 353 from said Misal and installed
temporary shade over it for running the business.
The act on the part of the Wakf Board is without
any authority of law. There is Memorandum of
understanding, dated 1.9.2014 in between Bhausaheb
Baburao Misal and Shaikh Lal Farid Patel and
others, on record. It is, therefore, contended
that the Revision Application may be allowed and
impugned order, granting temporary injunction, be
quashed and set aside.
12. Learned counsel for respondent nos. 1 to
25 i.e. original plaintiffs argued that the suit
was filed on 12.8.2014. Learned counsel contended
that the applicants have not pleaded the case in
proper perspective and suppressed the material
facts on record. It is contended that the
plaintiffs are in possession of 20 Are of land
for last so many years on the basis of lease.
There is publication as regards suit land in
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Government Gazette of Wakf dated 17.3.1973. The
plaintiffs are in continuous possession of the
suit land. The possession of the plaintiffs is
legal. The plaintiffs have also applied for
extension/renewal of lease period on 18.6.2015
requesting to accept rent amount. Along with the
affidavit in reply, copies of agreement of lease
dated 19.7.2014, no objection certificate by
Mutawalli in favour of Respondent no.3 and the
application for renewal of lease for further
period have been annexed. Learned counsel
contended that the Revision Application being
devoid of any substance is liable to be dismissed
by confirming the impugned order of temporary
injunction granted in their favour.
13. On going through the contents of the
Revision Application and on perusing the documents
on record, the affidavit in reply filed by the
plaintiffs as well as order dated 19.1.2016,
passed by the learned Presiding Officer of the
Tribunal, it is clear that the plaintiffs are in
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possession of separate plot of 20 Are out of land
Gut No. 353 (Old Survey No. 237) out of the wakf
property of Dargah Babashah Musafir Panchakki,
situated at Phulambri since last many years. The
copy of Khasra Patrak Exh. 9B/11 of Old Survey No.
237, admeasuring 24 acres 36 gunthas, shows that
it is inam land of Panchakki. The fact that the
suit land is the Wakf property is supported by a
copy of Maharashtra Government Gazette dated
17.3.1973 Exh. 3/4 which shows land Survey No.
237, admeasuring 24 acres 36 gunthas, situated at
Phulambri, is one of the properties of Dargah
Nazrath Baba Shah Musafir, Baba Shah Syeed Pilang
Posh, Baba Shah Mahmood Musafir along with Masjid
Khanqah, Garden, Baradari, Library and Graveyard.
The Chief Executive Officer of the Maharashtra
State Board of Wakfs, Aurangabad, by order dated
19.7.2014, has given plots to the plaintiffs on
lease. The lease deed has been executed by the
District Wakf Officer, Aurangabad in favour of
plaintiffs on 24.7.2014 for a period of 11 months.
The plaintiffs have also paid rent for the same.
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The Mutawalli has also given no objection for
possessing of the suit land by plaintiffs by
letter dated 2.8.2014 vide Exh.3/5. The plaintiffs
are in lawful possession of the suit land. The
lease agreement was executed on 19.7.2014 and the
plaintiffs have applied for extension/renewal of
lease agreement on 18.6.2015. It, therefore,
shows that though lease period had expired, the
plaintiffs have in continuation applied for
renewal of lease agreement. On obstructions of the
defendants, the plaintiffs filed the suit and
application for temporary injunction.
14. By taking in to consideration the various
documents and affidavits on record, the learned
Presiding Officer of the Tribunal has held that
the plaintiffs are in possession of their
respective plots on the suit land by virtue of
lease deed executed by the Wakf Officer on behalf
of the Wakf Board. As such, the plaintiffs were
held entitled for grant of temporary injunction
against defendant nos. 1 to 6. The order passed
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by the learned Presiding Officer, Maharashtra
State Wakf Tribunal, Aurangabad, dated 19.1.2016,
restraining the defendants from causing
obstructions in the possession of the plaintiffs 1
to 25, is a well reasoned order and needs no
interference while exercising revisional
jurisdiction.
15. In the result, the Civil Revision
Application is dismissed. The order dated
19.1.2016 passed by the District Judge/Presiding
Officer, Maharashtra State Wakf Tribunal,
Aurangabad, is hereby confirmed. Rule discharged.
(K.L.WADANE, J.)
dbm
