Bombay High Court
Dattu Sadashiv @ Bhimrao Marde And Anr vs Maharashtra Wakf Board And Ors on 20 December, 2023
Author: S. G. Mehare
Bench: S. G. Mehare
2023:BHC-AUG:27044
1 CRA1-05,SA-759-07.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO.1 OF 2005
1. The Maharashtra State Board of Wakfs
Through its Chief Executive Officer,
Panchakki, Aurangabad
2. District Wakf Officer,
Munir Khan s/o. Kasam Khan Pathan,
Age 46 years, Occu. Service,
R/o. Latur, District Latur .. Petitioners
(Original Defendants
Nos. 1 and 7)
Versus
1. Arya Samaj Hisamabad (Ujed)
Through its officer bearers i.e.
A) Pradhan Mantri,
Shri Harischandra Ramrao
Suryawanshi Alias Swami
Shradhanand (Wanprasthi)
Age 80 years, Occu. Social
Service, R/o. Parali Vaijanath
(Arya Samaj), District Beed
B) Shri. Sugreev Baliramji Kale,
Mantri, Maharashtra Arya
Pratinidhi Sabha Maharashtra,
Age Major, Occu. Social Service,
R/o. Parali Vaijanath (Arya Samaj)
District Beed .. (Original Plaintiff)
2. Secretary Govt. of Maharashtra,
Revenue and Forest Department,
Mantalay Bombay
3. Commissioner Aurangabad
Division Aurangabad
4. Collector, Latur, District Latur
2 CRA1-05,SA-759-07.odt
5. Sub-Divisional Officer, Udgir,
District Latur
6. Tahsildar Nilanga / Shirur Anantpal
District Latur .. Respondents
(Respondents No.2 to 6/
Original Defendants)
...
WITH
SECOND APPEAL NO. 759 OF 2007
WITH CIVIL APPLICATION NO. 10765 OF 2007
1. Dattu s/o Sadashiv Alias Bhimrao Marde,
Age : 74 Years, Occ. Agriculture,
R/o. Hisamabad (Ujed), Tq. Shiru Anantpal,
District Latur.
2. Arya Samaj, Hisambad (Ujed)
Through its Office Bearer i.e. Mantri
R/o. Ujed (Hisamabad),
Tq. Shirur-Anantpal .. Appellants
(Original Defendants
Nos. 6 & 10)
VERSUS
1. Maharashtra Wakf Board,
Aurangabad through
Mohammad Asifoddin s/o Md. Ainoddin,
Age : 54 Years, Occ. District Wakf Officer,
R/o at present Latur ( Original plaintiff)
2. State Government of Maharashtra
Through District Collector, Latur (Original Defendant No.1)
3. Sub Divisional Magistrate, Udgir (Original Defendant No.2)
4. Tahsildar, Nilanga (Original Defendant No.3)
5. Annarao S/o Yeshwantrao Birajdar
Age 74 years, Occu. Agriculture,
R/o. Ujed (Hisambad), Tq. Shirur Anantpal (Original Defendant No.4)
[Abated as per Court's order dated 18.07.2023)
6. Govindrao S/o Shankarrao Nalgir,
Age 62 years, Occu. Agriculture, (Original Defendant No.5)
R/o. As above Abated
3 CRA1-05,SA-759-07.odt
7. Malikarjun s/o Yeshwant Birajdar,
Age 65 years, Occu. Agriculture, (Original Defendant No.7)
R/o. As above Abated
8. Shaikh Osmanali s/o Mehboobali
Age : 64 years, Occ. Agriculture
R/o. As above (Original Defendant No.8)
9. Khajapira s/o Sheikh Ahmedali,
Age : 64 Years, Occ. Agriculture,
R/o as above. (Original Defendant No.9)
.. Respondents
Mr. S. S. Kazi, Advocate for Applicant in C.R.A. No.1 of 2005 and
Respondents No.1, 8 and 9 in Second Appeal No.759 of 2007;
Mr. Ajit Kadethankar, Advocate for Appellants in S.A.No.759 of 2007;
Mr. Amit S. Deshpande, Advocate for Respondents No.1A & 1B in C.R.A.
and Respondents No.3 to 6 served in C.R.A.;
Mr. A.B. Chate, A.G.P. for Respondent No.2 in C.R.A. and Respondents
No.2 to 4 in S.A.No.759 of 2007
CORAM : S. G. MEHARE, J.
Reserved on : 03.10.2023
Pronounced on : 20.12.2023
JUDGMENT:
-
1. The original defendants Nos. 6 and 10 have preferred this
Second Appeal against the Judgment and decree of the learned Civil
Judge, Senior Division, Nilanga, passed in Regular Civil Suit No.3 of
1998 (new) [Regular Civil Suit No. 177 of 1988 (old)], dated
26.09.2002 and Regular Civil Appeal No.55 of 2002 of the learned
District Judge, Nilanga, dated 06.09.2007.
4 CRA1-05,SA-759-07.odt
2. The appellants would be referred to as the defendants Nos. 6
and 10, respondent No.1 would be referred to as the plaintiff, which
was the Marathwada Wakf Board duly constituted under the Wakf Act,
1954, and the remaining respondents would be referred to as the
defendants.
3. The issues and the suit property involved in the second appeal
and the Civil Revision application were the same. Hence, both matters
have been taken up for hearing and decision together.
4. The brief facts of the case were that a plot in dispute was an
open plot in the village. The defendants Nos. 6,10, 8 and 9 were
claiming possession over the suit plot. The parties to the suit were the
Hindus and the Muslims. Their quarrel over the suit plot went to the
police. The police reported the matter to the Sub-Divisional Magistrate
("S.D.M.", for short). The S.D.M. registered a proceeding under
Section 145 of the Code of Criminal Procedure ("Cr.P.C.", for short).
He inquired and held that, soon before the quarrel, the suit plot was in
possession of the defendants nos. 6 and 10. He passed prohibitory
orders against the original defendant nos. 8 and 9 on 24.5.1979. In the
Government Gazette dated 24.4.1980, the suit plot was listed as the
Wakf Property. In 1988, The Marathwada Wakf Board filed a suit,
through the District Wakf Officer, against the defendants in the Civil
5 CRA1-05,SA-759-07.odt
Court for declaration and possession of the suit plot. The plaintiff had
filed a suit for declaration that the order of the S.D.M., Nilanga passed
in file No. 1974-SDM-16 under Section 145 of the Code of Criminal
Procedure dated 24.5.1979 was not binding and possession. They had
a case that on the suit plot, there was a Mosque since time
immemorial, and it was in use by the Muslims. However, in 1948,
during the Marathwada Mukti Sangram, the goons demolished it and
made it an open plot.
5. The defendants Nos. 8 and 9 supported the plaintiff's claim.
They admitted the dispute about the suit plot and the orders of the
Sub-Divisional Magistrate, Udgir.
6. The defendants Nos.6 and 10 contested the suit. They had a
defence that the suit plot was in possession of the Arya Samaj for many
years. The Muslim people in the village tried to grab the suit plot
under the garb that it was a Mosque and Dargah. The plot where the
plaintiff says there was a Mosque and Dargah was different. They also
impugned the legality and validity of the Government Gazette dated
24.04.1980.
7. The Court of First Instance believed the plaintiff and decreed the
suit. He also held that the Civil Court had no jurisdiction to deal with
6 CRA1-05,SA-759-07.odt
the Government Gazette dated 24.4.1980, inserting the suit plot as a
Wakf property. The first appeal against the said decree was also
dismissed. However, while the appeal was pending, the defendants had
filed a suit bearing no. 7/2003 before the Wakf Tribunal impugning the
legality and validity of the Government Gazette dated 24.4.1980. The
plaintiff raised the objection that when the suit about Waqf's property
was pending in the Civil Court, the Tribunal had no jurisdiction. The
Tribunal did not accept the objection and decreed the suit, holding that
the said Government Gazette is void ab initio.
8. Against the Judgment and decree of the Tribunal, the Wakf
Board has preferred the Civil Revision Application No. 1 of 2005.
9. On hearing the respective counsels, this Court, by order dated
January 3, 2023, framed the following substantial questions of law:-
(i) Whether the Regular Civil Suit No. 177/1988, renumbered
as Regular Civil Suit No.03/1998 filed by respondent No.1 is
maintainable, as there is no specific prayer made for
declaration of title of respondent No.1, though the title of
respondent No.1 is seriously disputed?
(ii) Whether the Regular Civil Suit No. 177/1988, renumbered
as Regular Civil Suit No.03/1998 filed by respondent No.1 is
maintainable as there is no amendment carried out by
respondent No.1 for seeking declaration of title even after
7 CRA1-05,SA-759-07.odt
the written statement filed by the appellants raised serious
objection to the title of the respondent No.1?
(iii) Whether the suit as framed by respondent No.1 can be
decreed in view of the law laid down by the Hon'ble
Supreme Court in the case of Anathula Sudhakar Versus P.
Buchi Reddy (Dead) By Lrs and Others 2008 A.I.R. (SC)
2033, that where the title of plaintiff is under a cloud or in
dispute and he is not in possession, necessarily the plaintiff
will have to file a suit for declaration?
(iv) Whether the suit as framed can be decreed on the basis of
issue of title of the plaintiff framed and decided in favour of
the plaintiff, without there being any prayer for declaration
of title?
10. In a suit of the defendants bearing No. 7 of 2003 before the
Wakf Tribunal, the plaintiff's sole objection was that the Tribunal had
no jurisdiction to entertain the suit as barred under Section 7(5) of the
Wakf Act, 1995. ("The Act 1995", for short). The Tribunal had no
jurisdiction to determine any matter which is a subject of any suit
instituted or commenced in a Civil Court or appeal pending before the
commencement of the Act 1995. Section 7 of the Act 1995 speaks of
the powers of the Tribunal to determine the disputes regarding the
wakf, including its property.
8 CRA1-05,SA-759-07.odt
11. Per contra, the learned counsel for the defendants nos. 6 and 10,
argued that the Civil Court had recorded the findings in the impugned
Judgment and decree that the Civil Court had no jurisdiction to deal
with the legality and validity of the Government Gazette dated
24.4.1980. The R.C.S. No. 3/1998 (R.C.S. 177/ 19988 old) was
decided after the Wakf Act 1954 (The Act 1954, for short) was
repealed. The Act 1995 was in force, and the respondents had no
option except to file an application before the Wakf Tribunal,
impugning the legality and validity of the Government Gazette dated
24.5.1980 under the Act 1995.
12. Considering the submissions of both learned counsels, the sole
question that arises for consideration in the revision application is;
"Was the suit of the respondents not maintainable before
the Wakf Tribunal as barred under Section 7(5) of the
Waqf Act, 1995?"
13. The learned counsel for the appellants, Shri. Kadethankar
submits that in view of Section 6 of the Act 1954, the Civil Court had
no jurisdiction to deal with the dispute whether it was a Wakf property.
The S.D.M., Udgir had correctly held that the Hindu community was
the owner and possessor of the suit plot. The plaintiff pleaded that
9 CRA1-05,SA-759-07.odt
they had lost possession of the suit plot in 1948. Therefore, the suit
was barred by limitation as it was not filed within 30 years as provided
under Section 66 (G) of the Act 1954. He added that the order of the
S.D.M., Udgir passed under Section 145 of the Cr. P. C., was not
impugned before the proper forum; hence, it could not have been the
subject matter of the suit. The entry in the Wakf register was not
conclusive proof of title.
14. He also argued that the First Appellate Court did not consider
the Judgment and order of the Wakf Tribunal passed in Suit No. 7 of
2003 wherein the suit of the appellants was decreed and Government
gazette part I bearing No. WKF/END/3182, dated 24.04.1980, was
declared null and void, and entry in the said Gazette on the basis of
which the plaintiff claimed was cancelled. The first appellate Court
also did not consider that the plaintiff never sought the declaration of
the title; hence, the suit was not tenable in view of the law laid down
by the Hon'ble Supreme Court in the case of Anathula Sudhakar Vs. P.
Buchi Reddy (supra). He relied on the order of the S. D. M. and
claimed that the defendants No. 6 and 10 were interruptedly in
possession of the suit plot on the basis of the entry in the village
panchayat record of the year 1960.
10 CRA1-05,SA-759-07.odt
15. Per contra, the learned counsel for the plaintiff would submit
that Section 6(1) of the Waqf Act, 1954 was not applied to the other
religious persons. To bolster his argument, he relied on case laws. He
would also argue that the order of S. D.M. under Section 145 of the Cr.
P. C does not confer a title. It is an interim arrangement to prevent a
breach of the peace. It is always subject to a Civil Court's decision. If
the party's title to such proceeding is proved in a Civil Court, the order
under Section 145 of the Cr. P. C. becomes defunct. He would submit
that the order of the Wakf Tribunal was apparently against the rights
declared in the Civil suit. The defendants had filed the said suit after
the decision of the civil suit under the Act 1995. In fact, the cause of
action arose before the Act 1995 was enacted. The suit was to be dealt
with as per the then existing law. At the time of the alleged cause of
action, the Act 1954 was in force. All disputes about the Wakf
properties were to be filed in a Civil Court of competent jurisdiction for
the decision of questioning or the dispute regarding the Wakf property.
Therefore, the Civil Court had correctly entertained the suit. Since the
Civil Court had decided the title in favour of the respondents, the Wakf
Board had no jurisdiction to deal with the same issue under the new
Act 1995. The learned Wakf Tribunal did not consider Section 7(5) of
the Waqf Act, 1995, which bars its jurisdiction to determine any matter
11 CRA1-05,SA-759-07.odt
that was a subject matter of any suit instituted under Section 6(1) of
the said Act 1954 before its commencement. The suit was not tenable
as the appeal against the Judgment passed in favour of the respondent
was pending. He also argued that in view of the legal provisions, the
appellant had no voice to say that the Judgment of the Wakf Tribunal,
Aurangabad, passed in Suit No.7 of 2003 had an effect on the earlier
suit decided in favour of the contesting respondents.
16. The learned counsel, Mr. Kadethankar, would submit that the
revision of the respondents is bad in law. The Wakf Tribunal has
correctly made an enquiry about the Government gazette dated
24.04.1980 under the Act 1995. The Civil Court, in the earlier Act
1954, had no jurisdiction to determine the legality and validity of the
entry of Wakf property in the Government gazette. The order of the
Wakf Board had an effect on the appeal; therefore, the First Appellate
Court ought to have allowed the appeal and set aside the impugned
Judgment and decree passed in favour of the plaintiff. He would refer
to Section 6-A of the Act 1954 and vehemently argue that the power to
determine the disputes regarding the Wakf property was given to the
Tribunal. Therefore, the Civil Court had no jurisdiction for the reason
that the plaintiff's suit was filed after the amendment of 1984.
12 CRA1-05,SA-759-07.odt
17. The respective parties have referred to the two Waqf Acts of
1954 and 1995. Admittedly, the suit was filed in 1988. At that time,
the Waqf Act 1954 was in force. However, the Act 1954 was amended
in 1984.
18. Both parties to the suit were claiming the rights over the suit
plot on the basis of the revenue entries. The plaintiff had an additional
document, i.e., the Government Gazette of 24.04.1980. The cause of
action for the plaintiff as pleaded, was the order of the attachment
dated 24.05.1979 by the S.D.M. and his notice dated 31.12.1987. The
suit plot was shown as Wakf property in the Government Gazette dated
24.04.1980. Before the suit land was declared Wakf property in the
Government gazette dated 24.04.1980, both parties had only the
record of the village panchayat entry. Both were claiming long-
standing possessory title. It is not disputed that the appellants were
entered into the Village panchayat record in the year 1960. However,
the plaintiff's name was entered into the same record for the years
1952, 1957, 1958 and 1959.
19. While decreeing the suit, the Court of First Instance held that the
Government Gazette issued by the Government under the Wakf Act
cannot be challenged before the Civil Court. Admittedly, the defendant
nos. 6 and 10 moved an application before the Wakf Tribunal objecting
13 CRA1-05,SA-759-07.odt
to the Government gazette dated 24.04.1980, including the suit land
as a Wakf property after the suit was decreed under the Act 1995. In
the year 2003, when the appeal was pending, the Wakf Tribunal
allowed the application and declared that the entry at Sr. No. 92
published in Government gazette Part A bearing WKF/END/3182
dated 24.04.1980, is null and void, and he cancelled it.
20. The First Appellate Court, in its Judgment and decree dated
06.09.2007, confirmed the findings of the Court of First Instance that
the Government Gazette, dated 24.04. 1980, could not be challenged
in Civil Court for the reasons that, as per Section 6 of the Act, 1995,
the Tribunal had jurisdiction to decide whether the suit plot was a
Wakf property or not, and the decision of the Tribunal was final. As per
Section 6(5) of the Act 1995, on and from the commencement of the
Waqf Act 1995, no suit or other legal proceeding shall be instituted or
commenced in a Court in that State in relation to any question referred
to in sub-section (1).
21. Before dealing with the substantial questions of law framed in
the second appeal, the Court takes the issue of the jurisdiction of the
Court impugning the Government Gazette for adjudication first, as it
relates to the questions involved in the appeal and the Civil Revision
Application.
14 CRA1-05,SA-759-07.odt
22. The prime question that appears was which of The Waqf Act was
in force when the plaintiff opened the litigation. The plaintiff's suit was
based on the Government Gazette dated 24.04.1980. It was a
document prepared after the survey by the survey Commissioner. The
defendants Nos.6 and 10, had impugned the legality and validity of the
said Government Gazette. To ascertain which Court had jurisdiction to
decide the legality and validity of such Government Gazettes that
declared the properties as Waqf prperties, some dates, i.e. the cause of
action, the date of filing the suit, and the law in force at the time of
filing suit, were relevant.
23. For the first time, the dispute arose in 1974. In the proceeding
before the S.D.M., the plaintiff was not the party. S.D.M. passed an
attachment order under Section 146 of Cr.P.C. on 19.06.1974. The
plaintiff filed the suit on 3.3.1988, which was decided on 26.09.2002.
The defendants filed a suit before the Wakf Tribunal on 28.03.2003,
which was decided on 21.09.2004.
24. The Act 1954 was in force when the plaintiff had filed the suit
against the defendants. Section 6-A was inserted, and sub-section 5 to
Section 6 of the said Act was added by amendment of 1984 w.e.f.
October 10, 1984. Section 6-A of the said amendment provides that
15 CRA1-05,SA-759-07.odt
the question whether a particular property specified as Wakf property
in a list of wakf published under sub-section (2) of Section 5 is a Wakf
property or not shall be decided before the Tribunal. However, under
sub-section 5 of Section 6-A, all the suits and appeals filed and
preferred in the Civil Court before the said amendments were saved,
and no jurisdiction was conferred on the Tribunal to deal with the
issues involved in those suits and appeals. Sub-section (5) of Section 6
of the amended Act barred the jurisdiction of the Civil Court relating to
the disputes of wakfs and its properties. The Act 1954 was repealed by
the Act 1995 and was brought into force w.e.f. November 22, 1995.
Section 6 of the said Act provides for the disputes regarding waqfs. It
provides that any question that arises whether a property notified as
Waqf property is a Waqf property or not shall be instituted before the
Tribunal, and the decision of the Tribunal shall be final. Section 7(5) of
the Act 1995 provides that the Tribunal shall not have jurisdiction to
determine any matter which is a subject matter of any suit or
proceeding instituted or commenced in a Civil Court before
commencement of the Act 1995, and if any suit has been instituted in
any Civil Court prior to coming into force of the Act of 1995, then the
Tribunal will have no jurisdiction to decide such matter and continue
and conclude as if the said Act had not come into force. The suit and
16 CRA1-05,SA-759-07.odt
the appeals were also saved if pending on coming to the Act 1995 into
force.
25. Considering the parties to the suit and dispute between
the two persons from different religions, no party had raised the
objection, and the suit was entertained. As discussed above, after the
observation of the Civil Court that it had no jurisdiction to deal with
the issue of notifying the suit plot as Wakf property in the Government
Gazette, an application under the Act 1995 was filed. Simultaneously,
the appeal against the said. Judgment and decree was also pending
when suit no. 7/2003 was filed before the Tribunal.
26. Reading Section 6-A (5) of the Act 1954 and Section 7 (5)
of the Act 1995, it is explicit that when the plaintiff had opened the
litigation, the Civil Court had jurisdiction to decide the dispute or
question regarding the Wakf and Wakf property. Therefore, the
Judgment of the Tribunal in Suit No. 7/2003 dated 21.09.2004 was
without jurisdiction.
27. The claim of the defendant nos. 6 and 10 in the Second
Appeal was based upon the order passed by the learned S. D. M. under
Section 145 of the Code of Criminal Procedure. In that case, the
plaintiff was not the party. Respondents Nos. 8 and 9 were the
17 CRA1-05,SA-759-07.odt
parties. As per Section 145 of the Cr. P.C., the Executive Magistrate,
may, upon satisfaction from a report of a Police Officer or upon other
information that a dispute is likely to cause a breach of the peace
exists concerning any land or water, without reference to the merits or
the claims of any parties to a right to possess the disputed land who
was and which party was in possession of the disputed land on the
date of the order made by him. The order under Section 145 of the Cr.
P. C. is the temporary arrangement to protect the person who was
immediately in possession before the dispute arose by such order. The
orders of the S.D.M. do not bar a title suit in the Competent Court of
law. When the competent Court determines the rights of the parties
thereto and the person entitled to possession thereof, then obviously,
the possession has to be restored in favour of the party whom the
competent Court has determined to be the rightful claimant. The
possession has to follow such determination, and attachment has to be
listed in favour of the emerging successful party before the Civil Court.
In other words, once the Civil Court decides the right of the parties
legally entitled to have possession, the effect of the orders under
Section 145 of the Cr. P.C. ceases automatically. Therefore, merely an
order under Section 145 of the Cr P.C. would not be conclusive proof of
18 CRA1-05,SA-759-07.odt
the ownership of the land of a person who was held in possession at
the time of passing an order under Section 145 of the Cr.P.C.
28. The defendants had expressly denied the plaintiff's title on the
basis of the Government Gazette. In the recent Judgment of Salem
Muslim Burial Ground Protection Committee v State of Tamilnadu and
Ors, AIR 2023 SC 2769, the Hon'ble Supreme Court held that the entry
in the Government Gazette is not conclusive proof of Waqf property.
The declaration of the property as Waqf property in the Government
Gazette has to be in consonance with the Waqf Act, 1954, or Act, 1995,
and mere issuance of notification was not sufficient for the purpose. It
was admitted that there was a dispute regarding the title of the suit
plot, and suddenly, the suit plot was notified in the Government
Gazette as Wakf property. It cited the case of State of Andhra Pradesh
vs A.P. State Wakf Board and Ors, 2022 SCC OnLine SC 159 , to
emphasize that the notification, if any, published in the official Gazette
at the behest of the Wakf Act giving the lists of the wakfs is not
conclusive proof that a particular property is a wakf property
especially, when no procedure as prescribed under Section 4 of the
Wakf Act has been followed.
29. Before the Civil Court, there was nothing whether the procedure
under section 4 of the Act 1954 was followed. It was the question
19 CRA1-05,SA-759-07.odt
that goes to the root of the dispute. However, both Courts have
conveniently avoided determining the dispute of the title and nature of
the suit plot, observing that the Civil Court had no jurisdiction. These
observations were perverse.
30. The substantial question of law framed in the Second appeal was
regarding the prayer for the declaration of title and the effect of the
failure of respondents No.1 and 2 to make a prayer for the declaration
of title in view of the law laid down by the Hon'ble Supreme Court in
the case of Anathula Sudhakar Versus P. Buchi Reddy (Dead) By Lrs
and Others, 2008 A.I.R. (SC) 2033.
31. The learned counsel for the defendants would submit that the
suit was not tenable unless the specific prayer for declaration of title
was made. Barely on the basis of the Government Gazette, the
plaintiffs' claim that it was a Wakf property could not be decided.
32. Per contra, the learned counsel for the plaintiff would submit
that the suit of the plaintiff was based upon the title as the property
was declared Wakf property in the Government gazette dated
24.04.1980, and it was never impugned before the competent
authority, so the presumption of the title of the Wakf board on the
basis of the Government Gazette had not been rebutted. No
20 CRA1-05,SA-759-07.odt
appropriate steps were taken to impugn the said Government gazette.
Besides the Government gazette, there were old entries in the revenue
record showing that Muslims were using the suit plot for prayers, and
it was a graveyard and Mosque. Based on the facts, it is also proved
that the defendant Nos. 6 and 10 were not in long-standing possession
of the suit plot.
33. Admittedly, in the plaintiff's suit, the declaration of title was not
prayed for. The defendants did not raise specific objections in their
written statement by the appellants. That being a question of law may
be considered in the present appeal. In Anathula Sudhakar's case
(supra), the Hon'ble Supreme Court discussed the nature of the suit
simplicitor for injunction and declaration. The Hon'ble Supreme Court
framed the questions when the suit for injunction, declaration, and
possession should be filed. In paragraph No. 11, sub-clause 11.3, it has
been observed that where the plaintiff is in possession, but his title to
the property is in dispute, or under a cloud, or where the defendant
asserts title thereto and there is also a threat of dispossession from the
defendant, the plaintiff will have to sue for declaration of title and the
consequential relief of injunction. Where the title of the plaintiff is
under a cloud or in dispute and he is not in possession or not able to
21 CRA1-05,SA-759-07.odt
establish possession, necessarily the plaintiff will have to file a suit for
declaration, possession and injunction.
34. The facts of the case at hand were that the possession of the suit
land was handed over to the appellants by the order of the S.D.M.
under Section 145 of the Cr. P. C. After passing the order under Section
145 of the Cr. P.C., the suit plot was inserted in the Government gazette
dated 24.04.1980, and after eight years, the plaintiff filed a suit for
possession and injunction. The plaintiff's suit was based upon the
Government gazette only, which is not a conclusive proof that it was a
Wakf property. Admittedly, when the suit was filed, the plaintiff was
not in possession of the suit plot. At the same time, the defendant had
claimed the possession based on the revenue entries. Both sides had
no title document recognized by the law. The revenue entries do not
prove the title. Those are only for the fiscal purposes. There is little
difference in the case at hand; both parties claim that the suit plot was
used for religious purposes. But the fact remains that the title of both
parties was under a cloud and in dispute. Considering the nature of the
dispute, the Court believes that the plaintiff should have filed a suit for
declaration, possession and injunction. The plaintiff also had to get the
plaint and prayer clause amended in view of the objection raised by
the defendants disputing the title based upon the Government gazette.
22 CRA1-05,SA-759-07.odt
35. This Court observed that at the relevant time the Civil Court was
the only competent Court to determine the dispute regarding the Wakf
properties. On the one hand, the core issue of the title that was to be
determined by the Court had been left unanswered, and the
Government Gazette dated 24.04.1980 was believed. To hold a
particular property to be a Wakf property, it is to be proved that the
property was dedicated to public Wakf or that the same was being used
as a Wakf property for a long time. Unless and until the said evidence
is led, a property cannot be held to be a Waqf property. Merely on the
basis of the Government Gazette, the property cannot be held to be a
Wakf property, unless proper notice of hearing is given to the person in
possession and claiming an interest in the property. Whether the
Survey Commissioner had followed the appropriate procedure laid
down in Section 4 of the Act 1954 before inserting the suit plot in the
Government gazette is a question of fact, and unless the Court of first
instance has dealt with the said question fact, it would be
inappropriate to deal with these issues in the second appeal. The Court
of First Instance and the First Appellate Court did not consider the
provisions of Act 1954 and erroneously held that the Civil Court had
no jurisdiction to determine the legality and validity of the
Government Gazette dated 24.04.1980.
23 CRA1-05,SA-759-07.odt
36. On discussing the law and considering the substantial questions
of law formulated in the appeal, the Court answers the substantial
question No.(iii) that the suit of the plaintiff as framed could not be
decreed in view of the law laid down in the case of Anathula (supra).
The question no.(i) is answered that since the defendants had raised a
serious objection to the Government Gazette and the title of the
plaintiff, it had to amend the prayers. Such a mistake may be rectified
in view of the fact the Court was to determine the legality and validity
of the said Government Gazette, the title and rights of the parties to
the suit. The answers to these questions cover the questions of law
nos.(ii) and (iv). Hence, they have not been separately answered.
37. The learned Court of First Instance as well as the First Appellate
Court, left the question of title unanswered, which goes to the root of
the dispute. Therefore, both impugned judgments and decrees deserve
to be set aside, and the case is to be remitted to the Court of First
Instance to decide the suit afresh considering the following issues:-
(i) Did the survey commissioner follow the due procedure
prescribed under Sections 4 and 5 of the Act 1954 before listing
the suit plot as Waqf property in the Government gazette dated
24.04.1980?
(ii) Whether the suit plot was Waqf property?
(iii) Was a Mosque/Kabrastan in existence as the plaintiff claims?
24 CRA1-05,SA-759-07.odt
38. Thus, the Court passes the following order:-
ORDER
(1) The second appeal is allowed.
(2) The judgments and decrees of the learned Civil Judge Senior
Division, Nilanga passed in Regular Civil Suit No.3 of 1998 (new)
[R.C.S.No.177 of 1988 (old)], dated 26.09.2002 and confirmed by
the learned District Judge-1, Nilanga, in Regular Civil Appeal No.
55 of 2002, dated 06.09.2007, are set aside.
(3) The case is remitted to the Court of Civil Judge Senior Division,
Nilanga, for the decision afresh on the issues framed in the body
of the Judgment by this Court by granting the opportunity to
produce the documents and evidence afresh with consequential
amendments relevant to the subject in the suit and written
statement.
(4) The R and P be returned to the Court of Civil Judge, Senior
Division, Nilanga.
(5) Both parties shall appear before the Court of First Instance on
22.01.2024.
(6) The Civil Revision Application is allowed.
(7) The Judgment and decree of the learned Tribunal passed in
R.C.S.No.7 of 2003, dated 21.09.2004 is quashed and set aside.
(8) The R and P be returned to the Tribunal.
(9) There shall be no orders as to costs.
( S. G. MEHARE )
JUDGE
ysk
