Bombay High Court
Chief Officer, Municipal Council, ... vs Shafiqe Saruddin Awghad And Others on 7 May, 2025
2025:BHC-AUG:13471
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(1)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 25 OF 2025
WITH CA/853/2025
Chief Officer,
Municipal Council, Paithan,
Tal. Paithan, Dist. Chhatrapati Sambhajinagar,
through its Chief Officer. Santosh Dagdu Agle,
Age: 44 years, Occu: Service,
Presently working as Chief Officer.
Municipal Council, Paithan,
R/o. Paithan, Tal. Paithan,
Dist. Chhatrapati Sambhajinagar. ...Applicant
VERSUS
1. Shafiqe Saruddin Awghad,
Age: 42 Years, Occu: Labour,
R/o. Kardi Mohalla, Infront of Abuzer Masjid,
Paithan, Tal. Paithan,
Dist. Chhatrapati Sambhajinagar
2. Jaker Mahboob Awghad.
Age: 48 Years, Occu: Labour,
R/o. Kardi Mohalla, Infront of Abuzer Masjid,
Paithan, Tal. Paithan,
Dist. Chhatrapati Sambhajinagar
3. The Maharashtra State Waqf Board,
Through its Chief Executive Officer,
Panchakki, Chhatrapati Sambhajinagar.
Dist. Chhatrapati Sambhajinagar ..Respondents
...
Advocate for Applicant : Mr. Y.V. Kakade
Advocate for Respondent Nos.1 & 2 : Mr. J.A.H. Deshmukh
Advocate for Respondent No.3 : Mr. N.B. Deshmukh
...
CORAM : S. G. CHAPALGAONKAR, J.
RESERVED ON : MAY 05, 2025
PRONOUNCED ON : MAY 07, 2025
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(2)
JUDGMENT :
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1. The applicant/original defendant no.1 impugns the order
dated 01.10.2024 passed below Exhibit-18 by the Maharashtra State
Waqf Tribunal, Chhatrapati Sambhajinagar in Waqf Suit No.115 of
2024.
2. Respondent nos.1 and 2 instituted Waqf Suit No.115 of
2024 seeking relief of declaration that land C.T.S. No.648, Sheet
No.59 admeasuring 1856.50 Sq. meters situated at Paithan District
Aurangabad is waqf property of graveyard on Masjid Moti Awghad
and consequential relief of perpetual injunction restraining defendant
no.1 from raising any construction or development over suit property.
It is contention of plaintiffs that Masjid Moti Awghad along with
graveyard is in existence since before 1973 and same has been
gazetted as waqf property. The open area situated beside Masjid Moti
Awghad is used for graveyard since more than 100 years. The
plaintiffs are successive Mutawali of waqf institution and maintaining
the affairs of said waqf institution. Further, being Muslim person by
virtue of Section 3(k) of Waqf Act, 1995, they are interested person to
protect the waqf property. Previously, Regular Civil Suit No.98 of
1977 was instituted on behalf of waqf in the Court of Civil Judge
Junior Division, Paithan seeking declaration and possession of part of
area encroached by defendant no1, said suit has been decreed vide
judgment and order dated 10.12.1993. However, behind back of
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plaintiffs and Waqf Board, defendant no.1 got mutated its name in
city survey record. The defendants are trying to install some kind of
structure on suit property. Therefore, plaintiffs moved an application
dated 19.03.2024 to defendant as well as Tahsildar, Paithan to desist
from carrying any activity on suit property. However, defendant
asked them to raise grievance in the Court.
3. Defendant no.1 caused his appearance and filed
application Exhibit-18 seeking rejection of plaint in exercise of power
conferred under Order VII Rule 11 (a)(d) of Civil Procedure Code,
firstly on the ground that suit is barred by Section 304 (1)(b) of the
Maharashtra Municipal Councils, Nagar Panchayats and Industrial
Townships Act, 1965. Secondly, suit is barred by limitation. The
Waqf Tribunal after hearing the parties rejected the application vide
impugned order dated 01.10.2024. Hence, this civil revision
application.
4. Mr. Kakde, learned advocate appearing for applicant
vehemently submits that name of Municipal Council has been
mutated in city survey record since 1987. Further, Regular Civil Suit
No.98 of 1977 was filed on behalf of waqf against defendant no.1
seeking relief of declaration and injunction. In that suit, the claim
was restricted to 4 R land situated adjacent to Masjid. The plaintiffs
were aware about ownership and possession of defendant no.1, where
a garden has been developed. Mr. Kakde would further submit that
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limitation for suit seeking relief of declaration of ownership is three
years under Article 58 of Limitation Act. The Plaintiffs had first cause
of action when they instituted suit in the year 1977 and thereafter
when the name of defendant/municipal council is mutated in the year
1987 in city survey record. As such, right to issue accrues to plaintiffs
in the year 1977, thereafter in the year 1987. The cause of action as
pleaded in the plaint is fictitious and elusory. Mr. Kakde further
submits that suit is not preceded by statutory notice in terms of
Section 304 (1)(b) of the Maharashtra Municipal Councils, Nagar
Panchayats and Industrial Townships Act, 1965, hence, barred by law.
According to him, the Waqf Tribunal has committed serious errors of
jurisdiction while rejecting plea of defendant seeking rejection of
plaint.
5. Per contra, Mr. J.A.H. Deshmukh and Mr. N.E. Deshmukh,
learned advocates appearing for respective respondents supports the
impugned order.
6. Having considered submissions advanced and upon
perusal of impugned order, apparently defendant no.1 seeks rejection
of plaint firstly on the ground that, suit is barred by law in light of
provisions of the Maharashtra Municipal Councils, Nagar Panchayats
and Industrial Townships Act, 1965, secondly, it sans cause of action
and thirdly, the suit is barred by limitation.
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7. Section 304 (1)(b) of the Act stipulates that any suit
instituted against Municipal Council shall be preceded by service of
notice. However, as rightly observed by Waqf Tribunal, such bar
would not apply to any suit filed under Section 38 of Specific Relief
Act, 1963 and other reliefs claimed under that Act. Therefore, first
objection as to bar contemplated under Section 304 holds no water.
8. The second contention raised on behalf of defendant is
that plaintiffs had first cause of action in the year 1977. Declaration
of ownership ought to have been sought within a period of three years
from the date of such cause of action. Perusal of plaint in previous
suit of 1977 shows that limited relief was sought in respect of 4 R
land adjacent to Masjid and it is not clear whether suit property
therein was part of C.T.S. No.648, Sheet No.59 admeasuring 1856 sq.
mtrs. Whether the suit property and cause of action shown in earlier
suit has any resemblance with suit property or cause of action in the
present suit cannot be ascertained at this stage. It may require trial
and recording of evidence.
9. As rightly observed by the Waqf Tribunal, present suit is
instituted asserting that defendants are now trying to install some
kind of structure on suit property and therefore, the
application/notice was given to defendant no.1 and Tahsildar, who
directed plaintiffs to approach the Court. It is difficult to draw
conclusion that cause of action pleaded in the plaint is elusory or
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camouflage. It would require trial. Even limitation of three years
prescribed under Article 58 of Limitation Act, will have to be
countered from the date when right to sue first accrues. As plaintiffs
have pleaded cause of action of 2024. Merely because C.T.S. entries
are in favour of defendant no.1 since 1985, suit cannot be treated as
barred by limitation. In present case, clear finding as to first cause of
action cannot be recorded on the basis of pleading of plaint and
documents annexed thereto. It would be mixed question of law and
fact to be answered in trial.
10. Recently, the Hon'ble Supreme Court of India in the case
of P. Kumarakurubaran Vs. P. Narayanan and Ors (Civil Appeal
No.5622 of 2025) decided on 29.04.2025 observed that whether the
appellant had prior notice or reason to be aware of the transaction at
an earlier point of time, or whether the plea regarding the date of
knowledge is credible, are matters that necessarily require
appreciation of evidence. At this preliminary stage, the averments
made in the plaint must be taken at their face value and assumed to
be true. Once the date of knowledge is specifically pleaded and forms
the basis of the cause of action, the issue of limitation cannot be
decided summarily. It becomes a mixed question of law and fact,
which cannot be adjudicated at the threshold stage under Order VII
Rule 11 CPC. Therefore, rejection of the plaint on the ground of
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limitation without permitting the parties to lead evidence, is legally
unsustainable.
11. In light of aforesaid exposition of law, in present case, the
question as to starting point of limitation or the first cause of action
can be decided when parties are put to lead evidence. It would be
premature to record finding that cause of action is camouflage or
elusory on the basis of material available. Therefore, this Court holds
that civil revision application sans merit. Hence, dismissed.
12. Civil Application No.853 of 2025 stands disposed of
accordingly.
(S.G. CHAPALGAONKAR, J.)
Mujaheed//
