Bombay High Court
Hashmi Sayyed Haji Sayyed Lal vs The State Of Maharashtra And Others on 15 September, 2025
2025:BHC-AUG:24720
924-WP-3735-2014.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 3735 OF 2014
1. Sayed Haji s/o Sayed Mustaffa
Age 67, Occu. Agri.,
R/o Udgir, Tq. Udgir, Dist. Latur.
2. Sayed Hashams/o Sayed Khaja
Age Major, Occu. Agri.,
R/o Udgir, Tq. Udgir, Dist. Latur.
3. Sayed Akbar S/o Sayed Noor
Died Through LR's
3A- Syed Mujahed s/o Syed Akbar Jahagirdar
Age 48 yrs, Occu-Agri.
3B- Syed Nooruddin s/o Syed Akbar Jahagirdar
Age 46 yrs, Occu-Agri.
3C- Syed Asadulla Saber s/o Syed Akbar Jahagirdar
Age 44 yrs, Occu-Agri and Service.
3D- Syed Omer s/o Syed Akbar Jahagirdar
Age 35 yrs, Occu-Agri
R/o Syed Chand Mohalla, Udgir,
Dist. Latur ...PETITIONERS
VERSUS
1. The State Of Maharashtra
2. The Deputy Collector (Atiyat) Udgir,
Tq. Udgir, Dist. Latur.
3. The Tahsildar, Udgir,
Tq. Udgir, Dist. Latur.
4. Sayed Hidayatali s/o Sayed Lal Mutavali
Age Major, Occu. Agri.,
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R/o Vikas nagar, Udgir,
Tq. Udgir, Dist. Latur.
5. Sayed Abdul Razzak Sayed s/o Sayed Mutavali
Age Major, Occu. Agri.,
R/o Syed Chand Darga, Udgir,
Tq. Udgir, Dist. Latur.
6. Hashmi Sayed Haji Sayed Lal
(Died through LR's)
6A- Syed Irshad S/o Hashmi Sayed Haji
Age-Major, Occu- Agri.
6B- Hashmi Akhil S/o Hashmi Sayed Haji
Age-Major, Occu-Agri
6C- Hashmi Sayyed Jamil S/o Hashmi Sayed Haji
Age- Major, Occu-Agri
6D- Sayed Shakil S/o Hashmi Sayed Haji
Age- Major, Occu- Agri
6E- Hashmi Syed Khaleel S/o Hashmi Sayed Haji
Age-Major, Occu- Agri
6F- Syed Mudassir S/o Hashmi Sayed Haji
Age- Major, Occu-Agri
6 A To 6 F All R/o Sayed Chand Mohalla,
Udgir, Ta. Udgir, Dist. Latur
7. Hashmi Muktar s/o Sayed Alimoddin
R/o. Syed Chand Darga,
Tq. Udgir, Dist. Latur.
8. Syed Abdul Hag s/o Syed Nooruddin.
Age 69 years, occ. pensioner,
R/o Syed Chand Daryah, Nileben Ves,
Udgir, Dist. Latur ...RESPONDENTS
...
Mr. V. C. Solshe, Advocate for the Petitioner
Mr. S. N. Kendre, AGP for Respondent Nos. 1 to 3
Mr. S. P. Shah, Advocate for Respondent No. 4
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Mr. A. S. Deshmukh, Advocate for Respondent No. 5
Mr. A. P. Bhandari, Advocate for Respondent No. 6
Mr. S. Q. Shaikh, Advocate for Respondent No. 7
Ms. A. N. Ansari, Advocate for Respondent No. 8
WITH
WRIT PETITION NO. 6172 OF 2014 WITH
CA/11432/2023 IN WP/6172/2014 WITH
CA/6311/2024 IN WP/6172/2014
1.Syed Zaker S/o Syed Abul Kasim
(Died through LR's)
1A. Badrunis W/o Syed Zaker,
Age: 47 years, Occ. Agriculture
R/o Proper Dargah Hazart Syed
Chand, Udgir, Dist. Latur
2. Syed Shaker s/o Syed Abul Kasim
age: 39 yrs occu: Agril, R/o as above
3. Syed Naser s/o Syed Abul Kasim
age: 34 yrs occu: Agril, R/o as above
4. Syed Zafar s/o Syed Abul Kasim
age: 29 yrs occu: Agril, R/o as above
5. Syed Athar s/o Syed Abul Kasim
age: 27 yrs occu: Agril, R/o as above
6. Syed Azhar s/o Syed Abul Kasim
age: 37 yrs occu: Agril, R/o as above
...PETITIONERS
VERSUS
1. The State Of Maharashtra
2. Syed Hidayatali s/o Sayyed Lal
Age: 56 yrs occu: Nil,
R/o Hashmi Manzil, Vikasnagar,
Udgir Tq Udgir Dist. Nanded.
3. Syed Abdul Rajjak s/o Syed Multani,
Age: 43 yrs Occu: Nil
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R/o Near Sayyed Chand Dargah,
Udgir Tq Udgir District Nanded.
4. Hashmi Sayyed Haji Sayyed Lal
(Died through LR's)
4-A. Sayed Ireshad s/o Hashmi Sayed Haji,
Age:-Major, Occ. Agri.,
4-B. Hashmi Akhil s/o Hashmi Sayed Haji,
Age:- Major, Occ. Agri.,
4-C. Hashmi Sayyad Jamil s/o Hashmi Sayed Haji,
Age:- Major, Occ. Agri.,
4-D. Sayed Shakil s/o Hashmi Sayed Haji,
Age:- Major, Occ. Agri.,
4-E. Hashmi Syed Khakeek s/o Hashmi Sayed Haji,
Age:- Major, Occ . Agri.,
4-F. Sayed Mudassir s/o Hashmi Sayed Haji,
Age:- Major, Occ. Agri.,
4-A to 4-F are R/o Udgir,
Tq. Udgir, Dist. Latur
5. Sayyed Haji s/o Sayyed Mustafa
Age:35 yrs Occu: Nil
R/o Sadat Nagar, Degloor Road,
Udgir Tq Udgir District Nanded
6. Sayyed Hasham s/o Sayyed Khaja
Age: 37 yrs Occu: Nil R/o as above.
7. Syed Akbar s/o Syed Nooruddin
(Died through LR's)
7-A. Sayed Akbar s/o Syed Akbar Jahagirdar,
Age:-Major, Occ. Agri.,
7-B. Syed Nooruddin s/o Syed Akbar Jahagirdar,
Age:- Major, Occ. Agri.,
7-C. Sayed Asadulla@Saber s/o Syed Akbar Jahagirdar,
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Age:- Major, Occ. Agri.,
7-D. Syed Omar s/o Syed Akbar Jahagirdar,
Age:- Major, Occ. Agri.,
7-A to 7-D are R/o Syed Chand Mohalla Udgir
Tq. Udgir, Dist. Latur
8. Hashmi Mukhtar s/o Sayyed Alimuddin
Age: 40 yrs, Occu: Nil, r/o as above.
9. Tahsildar,
Tahsil Office, Udgir,
Tq Udgir, District Nanded. ...RESPONDENTS
...
Mr. G. R. Syed, Advocate for the Petitioners
Mr. S. N. Kendre, AGP for Respondents/State
Mr. A. S. Deshmukh, Advocate for Respondent No. 3
WITH
WRIT PETITION NO. 4957 OF 2014
Hashmi Syed Haji Syed Lal
Since Deceased Through LRs,
1-A) Ather Syed Haji Hashmi
Died Through LRs,
1-A-i) Syeda Asra Ather Hashmi
Age: 48 Years, Occu. Housewife
1-A-ii) Hashmi Syed Abrar Ather
Age: 26 Years, Occu. Labour
Both (1-A-i) & (1-A-ii)
R/o.: Syed Chand Mohalla,
Udgir, Tq. Udgir, Dist. Latur
1-A-iii) Arjuman Shahin Mubin Pirjade
Age: 28 Years, Occu. Housewife
R/o.: Syed Akulga,
Tq. Shirur Anantpal, Dist. Latur
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1-A-iv) Rukhsar Sirajoddin Shaikh
Age: 24 Years, Occu. Housewife
R/o.: Bhandarkumtha, Tq. Aurad,
Dist. Bidar
1-A-v) Afsha W/o Ajmad Shaikh
Age: 23 Years, Occu. Housewife
R/o. Raj Shree Shahu Colony,
Nideban, Tq. Udgir, Dist. Latur
1-B) Syed Irshad S/o Haji Hashmi
Age: 52, Occu. Agriculture,
1-C) Hashmi Akhil Haji
Age: 50, Occu. Agriculture
1-D) Hashmi Syed Jamil Syed Haji
Age: 48, Occu. Agriculture,
1-E) Syed Shakil S/o Haji Hashmi
Age: 45, Occu. Agriculture,
1-F) Hashmi Syed Khaleel S/o Syed Haji
Age: 38, Occu. Agriculture,
1-G) Syed Mudassir S/o Haji Hashmi
Age: 34, Occu. Agriculture,
All (1-B) to (1-G)
R/o.: Syed Chand Mohalla,
Udgir, Tq. Udgir, Dist. Latur
1-H) Chand Sultana Yahiya Khan Pathan
Age: 40 Years, Occu. Housewife
R/o.: Deoni, Tq. Deoni, Dist. Latur
1-1) Yasmin Begum @ Rais Fatema Mohammad
Shakir Patel
Age: 36 Years, Occu. Housewife
R/o.: Ravangaon,
Tq. Mukhed, Dist. Nanded
1-J) Nagma Parvin Syed Shuaib
Age: 32 Years, Occu. Housewife
R/o.: Raj Mohammad, Darga Road
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Udgir, Tq. Udgir, Dist. Udgir ...PETITIONERS
VERSUS
1. The State Of Maharashtra
2. Syed-Hidayatali s/o Sayyed Lal
Age: 56 yrs occu: Nil,
R/o Hashmi Manzil, Vikasnagar,
Udgir Tq Udgir Dist. Nanded.
3. Syed Abdul Rajjak s/o Syed Multani,
Age: 45 yrs Occu: Agril
R/o at Sayyed Chand Dargah, Udgir
Tq Udgir District Nanded.
4. Sayyed Haji s/o Sayyed Mustafa
Age: 65 yrs Occu: Agril
R/o Sadat Nagar, Degloor Road,
Udgir Tq Udgir District Nanded
5. Sayyed Hasham s/o Sayyed Khaja
Age: 62 yrs Occu: Agril
R/o Sadat Nagar, Degloor Road,
Udgir Tq Udgir District Nanded
6. Syed Akbar s/o Syed Nooruddin
(Deceased through LR's)
6-A) Syed Mujahed S/o Syed Akbar Jahagirdar
Age: 49 Years, Occu.: Agriculture,
6-B) Syed Nooruddin S/o Syed Akbar Jahagirdar
Age: 47 Years, Occu.: Agriculture,
6-C) Syed Asadulla @ Saber S/o Syed Akbar Jahagirdar
Age: 45 Years, Occu.: Agriculture,
6-D) Syed Omar S/o Syed Akbar Jahagirdar
Age: 36 Years, Occu.: Agriculture,
6-A to 6-B All R/o.: Syed Chand Mohalla,
Udgir, Tq. Udgir, Dist. Latur.
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7. Hashmi Mukhtar s/o Sayyed Alimuddin
Age: 55 yrs occu: Business
R/o Sadat Nagar, Degloor Road,
Udgir Tq Udgir District Nanded ...RESPONDENTS
...
Mr. A. P. Bhandari, Advocate for the Petitioner
Mr. S. N. Kendre, AGP for Respondents/State
Mr. S. P. Shah, Advocate for Respondent No. 2
Mr. A. S. Deshmukh, Advocate for Respondent No. 3
Mr. V. C. Solshe, Advocate for Respondent Nos. 4 to 6
Mr. R. B. Deshmukh, Advocate for Respondent No. 7
WITH
WRIT PETITION NO. 4047 OF 2014
Syed Abdul Razzak Syed Multani
Age 69 years, Occ. Agriculture,
R/o Dargah Hazrat Syed Chand, Near Nirban
Ves, Tq. Udgir, Dist. Latur ...PETITIONER
VERSUS
1. The State Of Maharashtra
2. Syed Hidayat Ali s/o Syed Lal
Age about 50 years, Occ. Alleged GPA
of deceased Syed A. Kasim s/o Syed
Meera Hussainee R/o. Udgir,
Dist. Latur
3. Hashmi Syed s/o Haji Syed Lal
(Died through LR's)
3a) Syed Irshad s/o Hashmi Syed Haji
Age major Occ. Agriculture
3b) Hashmi Akhil s/o Hashmi Syed Haji
Age major Occ. Agriculture
3c) Hashmi Syed Jamil s/o Hashmi Syed Haji
Age major Occ. Agriculture
3d) Syed Shakil s/o Hashmi Syed Haji
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Age major Occ. Agriculture
3e) Hashmi Syed Khalil s/o Hashmi Syed Haji
Age major Occ. Agriculture
3f) Syed Mudassir s/o Hashmi Syed Haji
Age major Occ. Agriculture
3a to 3f all R/o Syed Chand Mohalla,
Udgir, Tq. Udgir Dist. Latur.
4. Syed Haji S/o Syed Mustafa
5. Syed Ham s/o Syed Khaja
6. Syed Akbar s/o Syed Nooruddin
(Died through LR's)
A. Syed Mujaheb s/o Syed Akbar,
Age 48 yrs, Occ. Service
B. Syed Nuruddin S/o. Syed Akbar,
Age 40 years, Occ. Service
C. Syed Asadulla @ Saber s/o Syed Akbar
Age 40 yrs, Occ. Agri,
D. Syed Omar s/o Syed Akbar,
Age 36 yrs, Occ. Agri.
All R/o Syed Chand Dargah,
Udgir, Tq. Udgir, Dist. Latur
7. Hashmi Muktar s/o Syed Alimoddin
Age Major, R/o. Udgir, Dist. Latur
At present R/o. Nilanga, Dist. Latur
...RESPONDENTS
...
Mr. D. R. Bhadekar, Advocate for the Petitioner
Mr. S. N. Kendre, AGP for Respondents
Mr. S. P. Shah, Advocate for Respondent No. 2
Mr. V. C. Solshe, Advocate for Respondent Nos. 4 to 6
Mr. S. Q. Shaikh, Advocate for Respondent No. 7
***
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CORAM :R. M. JOSHI, J
RESERVED ON :AUGUST 22, 2025
PRONOUNCED ON :SEPTEMBER 15, 2025
JUDGMENT :
1. Rule. Rule made returnable forthwith. By
consent of both sides, heard finally.
2. These Petitions take exception to the order
passed by the Additional Collector (Atiyat), Latur
dated 07.03.2014 in File No. 2013/Religious/CR-96
passed under the provisions of the Hyderabad Atiyat
Inquiries Act, 1952 (for short 'the Act'), whereby the
Appeal filed by contesting Respondent, Hidayatali, came
to be allowed and he is declared to be successor of
Atiyat grant and held to be entitled to receive
possession of subject properties.
3. The facts as well as points of law involved in
these Petitions being same, by consent of both sides,
these Petitions are heard finally together and decided
by this common judgment.
4. For the sake of convenience, facts as
mentioned in Writ Petition No. 3735/2014 are taken into
consideration. It is clarified that except for the
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relationship between the parties and their claims in
respect of succession, facts in these Petitions are
common.
5. Petitioners challenge the order impugned
passed in favour of Syed Hidayatali (contesting
Respondent) whereby he was held to be Mutawalli in
respect of Hazarat Sayed Chand Dargah and Masjid, Udgir
(for short "Dargah and Mosque"). It was further
directed therein that the land resumed by the
Government bearing Survey Nos. 167 and 230 be released
in favour of this Respondent. Similarly, the amount
received from the Ek Sal Lavani was directed to be paid
to him.
6. It is the case of the Petitioners that
Muntakhab was issued by the Competent Authority i.e.,
Collector, Osmanabad (Bidar Sharif) holding that the
succession right in respect of Atiyat grant is in
favour of Syed Burhan. On his death, Syed Asadullah and
Syed Noorudin were found to be the only his heirs.
Under the circumstances, the succession was given in
favour of elder son Syed Asadullah and Syed Nurrodin
was held to be his Deputy.
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7. Petitioners claim that by order dated
11.07.1983 the lands in question were resumed by the
Government for the alleged non-compliance of the
conditions of Atiyat grant by its holders. Accordingly,
by notification dated 11.07.1983 Ek Sal Lavani system
was adopted. This order was came to be challenged
before Deputy Collector (Atiyat), Udgir. Initially,
said order was stayed, however, later on it came to be
vacated on 08.05.1990. The said order was taken
exception in an Appeal and further Revision and the
said litigation finally landed in this Court in Writ
Petition No. 1676/1992. Syed Abdul Kasim, son of Syed
Meera Hussaini, fought the said litigation. In the said
Writ Petition, Syed Hidayatali appeared on behalf of
the Petitioner therein claiming to be constituted
attorney of the Petitioner. According to the
Petitioners in the said Writ Petition, heirs of the
Syed Abdul Kasim moved Civil Application No. 842/1996
claiming themselves to be the legal representative of
deceased. Similar Applications were made by others
claiming to be the heirs of the Atiyat grant holder.
This Court, by order dated 20.07.1996, allowed the
Petition and set aside the impugned orders and remanded
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the matter back to the Deputy Collector (Atiyat), Udgir
for its disposal in accordance with law. It was further
observed that till the inquiry is held, the possession
to be continued with the Government with a liberty to
auction the land on Ek Sal Lavani basis. It is claimed
by the Petitioners that there are other nine Petitions
pending before the Deputy Collector (Atiyat), Udgir in
respect of the subject properties filed by the
Petitioners and the others including contesting
Respondent Syed Hidayatali.
8. Syed Hidayatali moved Writ Petition No.
8026/2010 seeking direction to the Deputy Collector
(Atiyat), Udgir to decide his application dated
21.09.1996. This Petition came to be disposed of with
liberty to file fresh Application. Accordingly, Syed
Hidayatali filed fresh application on 03.03.2011 before
Competent Authority claiming the succession to the post
of Mutawalli and also possession of Survey Nos. 167 and
230 situated at Udgir with further prayer to pay entire
auction amount in respect of these lands to him. Since
the said proceeding was pending decision, parties
required to approach this Court by filing Writ Petition
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wherein a direction was issued to dispose of the
Application within three months of the appearance of
the parties. Deputy Collector (Atiyat), Udgir by order
dated 12.07.2013 dismissed both Applications in file
No. 2012/Inam/CR/2 and directed Syed Hidayatali to
approach the concerned Authority for appointment of
Mutawalli before Waqf board. Being aggrieved by the
said order, Syed Hidayatali preferred Appeal before
Additional Collector, Latur in Appeal File No.
2013/Religious/CR-96. In the said Appeal, Syed
Hidayatali as well as Petitioners and other Respondents
were heard. Appellate Authority accepted the contention
of Syed Hidayatali of he being appointed as Mutawalli
by Syed Abdul Kasim s/o Syed Meera Husaini on the basis
of document titled as power of attorney. It was further
directed that the subject properties be handed over
into his possession along with the amounts received in
an auction for Ek Sal Lavani.
9. Petitioners being aggrieved by the said order,
has preferred these Petitions on following amongst
other grounds:
(i) That the Additional Collector (Atiyat)
erred in holding that Syed Hidayatali has
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been appointed as Mutawalli by Syed Abdul
Kasim under a power of attorney without
deciding the issue as to whether the
deceased himself was Mutawalli.
(ii) On the basis of the power of attorney,
Mutawalliship cannot be transferred and
that on death of the executor of the power
of attorney, the said document ceased to
have effect.
(iii) Additional Collector erred in drawing
conclusions on the basis of the orders
passed by this Court of directing Rs.
20,200/- to be paid to the deceased Syed
Abdul Kasim as it was clarified therein
that the said order was an interim order
and it was passed without affecting the
rights of the parties.
(iv) The Additional Collector erred in directing
Tahsildar to handover the possession of the
subject properties to Syed Hidayatali when
there were in all nine Petitions including
Petition filed by Syed Hidayatali were
pending before Deputy Collector (Atiyat),
Udgir for adjudication into their rights.
(v) Additional Collector failed to consider
provisions of Section 12(2) of the Act
which constitutes that if any dispute
arises involving questions of succession,
legitimacy, divorce or other questions of
personal law, the Atiyat Court shall direct
the parties to get the dispute decided in
the competent Civil Court and on production
of the final decision of the Civil Court,
the Atiyat Court shall give effect of such
decision.
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(vi) Additional Collector committed error in not
deciding all Applications together.
10. Learned Counsels for the Petitioners made
number of submissions and on occasion contrary to the
interest of each other. Such submissions were obvious
in view of the fact that all Petitioners claim their
exclusive right of succession of Atiyat grant. The sum
and substance of their contention, however, is that
contesting Respondent Syed Hidayatali could not claim
the succession into the Atiyat grant in view of the
fact that he is not the successor of the person in
whose favour Muntakhab has been issued. It is their
contention that on the basis of power of attorney, the
right of succession cannot be conferred upon him by
Syed Abdul Kasim. According to them, the power of
attorney even if accepted to have been executed by
Abdul Kasim, after his death the said document has
ceased to have effect. In any case, it is their
contention that the Atiyat inquiries in the grant is
inherited by succession and cannot be transferred. In
this regard, reference is made to Muntakhab issued in
favour of Mir Abbasali P. Sayad Ismael, Sayad Hasan Fot
Varis Khurshidabegam, Sayad Murtuja, Mohd. Ismael and
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Sayad Mustafa & Sayad Abdul Khadar P. Sayad Lal. By
referring to the provisions of Section 13 of the Act,
it is contended that the orders passed relating to the
Atiyat inquiries in the grant including Jagirs on or
after 18.09.1948 and before commencement of this Act of
1952, shall be deemed to be final orders validly passed
by the Competent Authority and the same shall not be
questioned in any Court of law. It is their contention
that the previous orders by Atiyat Court clearly
indicate that the Atiyat grant was inheritable and as
such, it was not open for the Court to hold Syed
Hidayatali as successor of the Syed Abdul Kasim on the
basis of power of attorney. They also made reference to
the order passed by this Court dated 20.07.1996, which
according to them mandates the parties to obtain
succession first and then to seek the possession of the
land resumed by the Government.
11. Per contra, learned Counsel for contesting
Respondent, Syed Hidayatali, submitted that there is no
dispute about the execution of the power of attorney by
Syed Abdul Kasim, who was a successor of grant holder.
It is his submission that the title of the document
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becomes immaterial and intention of Syed Abdul Kasim of
transferring of the Mutawalliship in favour of Syed
Hidayatali can be ascertained from the recitals of the
document. It is his submission that the said document
indicates that it was Syed Hidayatali who was
performing all rituals of Dargah and Mosque and for
this reason, Mutawalliship was transferred in his name.
In support of his submissions, he placed reliance on
judgment in case of Haji Abdul Razaq vs. Sheikh Ali
Bakhsh and Another, (1948) 50 BOM L.R. 661 to contend
that there was no embargo for the Syed Abdul Kasim to
transfer the Mutawalliship in favour of Syed
Hidayatali. He also placed reliance on the judgment of
Coordinate Bench of this Court in case of Poulad
Deochand Patil vs. Samasta Aher Nhavi Panch Trust, 1992
Mh.L.J. 412 in order to argue that in certain
situations ex post facto hearing could be a substitute
for grant of prior hearing in a given case. He argued
that even if this concluded that it would be
appropriate to direct rehearing of the Application, the
order of possession of the subject lands by the
contesting Respondent Syed Hidayatali needs to be
continued in his favour. Without prejudice to his
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contentions, it is his submission that the appearance
in the inquiry before the Authority needs to be
restricted to the extent of person who have any right
of succession through the concerned persons in whose
favour Muntakhab has been issued and not all
objectors/claimants.
12. An issue was also raised on behalf of the
Petitioners that in spite of the order passed by this
Court of granting status quo, the contesting Respondent
Syed Hidayatali has taken the possession of the subject
lands during the operation of order of stay. Counsel
for Respondent opposed the said contention by claiming
that though order was passed initially, the same was
not continued and hence, the possession taken is not
contrary to the orders. It is further claimed that the
subject lands are given into the possession of the
present contesting Respondent, the said possession be
continued with him.
13. In order to appreciate the rival submissions,
it would be relevant to take note of the provisions of
the Act. As per the statement and object, the Act is
aimed at consolidation of law relating to Atiyat grant,
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in respect of Atiyat inquiries, inquiries as the claims
to succession to, or any right, title or interest in
Atiyat grants and matters ancillary thereto. Section 13
of the Act gives finality of the decision of Atiyat
Court. Atiyat Courts, means a Court or Authority
competent to make Atiyat inquires and inquiries as to
the claim of succession or any other right, title or
interest in Atiyat grants and matters ancillary
thereto. Section 3 provides that all Atiyat grants
subject to the provisions of Hyderabad Abolition of
Jagirs Regulation, 1358 Fasli, the Hyderabad Abolition
of Cash Grants Act, 1952 and the Hyderabad Abolition of
Inams Act, 1954 continue to be held by the holders
thereof subject to conditions laid down in Muntakhabs
or Vasiqas. Section 3-A makes provision with regard to
inquiries as to Atiyat grants. In case of Atiyat grant
specified in sub-section (1) of Section 2 in clause
(b), the inquiry with regard to right, title or
interest therein shall be held in Atiyat Court in
accordance with the provisions of this Act. It further
provides that in the course of such inquiries, Atiyat
Courts are competent to inquire into the claims to
succession arising in respect of such grants. Proviso
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to this sub-section states that the claims to the
succession arising after the completion of Atiyat
inquiry or Atiyat grant shall not be entertained in any
Court and all such claims shall be filed and decided by
the competent Civil Court. The said proviso clearly
applies only to the extent of the matters covered by
Section 2(1)(b)(i) of the Act. Sub-section (2) of
Section 3-A makes specific provision with regard to
Atiyat grants specified in sub-clauses (ii) to (vi) of
clause (b) of sub-section (1) of section 2. All
inquiries as to the claim of succession or any right,
title or interest and the matter ancillary thereto
shall be held in Atiyat Courts in accordance with the
provisions of this Act. It is thus clear that in
respect of inquiry with regard to the succession, the
powers are vested in the Atiyat Court to conduct the
inquiry and to determine the claim as to succession or
any right, title or interest therein including
ancillary matters.
14. Section 12 provides for decision of Civil
Court to prevail on question of succession, legitimacy,
etc. As far as the question of succession, legitimacy,
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divorce or other questions of personal law are
concerned, the final decision of Civil Court shall be
given effect by Atiyat Courts under this Act,
irrespective of whether decision of Atiyat Court was
given before or after the decision of Civil Court. Sub-
section (2) provides that if in the course of any
inquiry as to the claims to succession, any dispute
arising involving question of succession, divorce or
legitimacy or personal law, the Atiyat Court shall
direct the parties to get the dispute decided in the
competent Civil Court and on production of final
decision of Civil Court, Atiyat Court shall give effect
to such decision. These provisions are clarificatory in
nature and do not take away the powers of Atiyat Court
to conduct an inquiry into the claim of succession and
to decide dispute involving the question of succession
or right, title or interest therein. What is required
to be referred to the Civil Court is inter se dispute
between the persons claiming to be successors of the
person holding the Atiyat grants and to that extent the
decision of the Civil Court would prevail upon the
question of succession, legitimacy, etc. Thus, only for
this limited purpose a reference could be made to the
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Civil Court and that each objection or claim to the
succession cannot be referred to the Civil Court, since
the said subject solely lies to the jurisdiction of
these Courts. Merely because the parties have moved the
Civil Court for the decision of succession, that per se
does not affect the powers vested in the Atiyat Court
to decide succession or right, interest etc. No doubt,
in case of a decision of Civil Court on legitimacy,
succession or divorce or other question of personal
law, the same shall be given effect by Atiyat Court.
15. The provisions of the Act clearly indicate
that formant has been provided for the decision of the
subject matters covered by the Act including the
jurisdiction and procedure of the Atiyat Courts and
appeals against orders.
16. The matters as to the fulfillment of the
conditions of the Muntakhab and resumption of the land
by the Government for non compliance thereof, also
would be subjected to the decision of the Atiyat
Courts.
17. It would be pertinent to note that perusal of
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entire Act, it does not deal with the appointment of
Mutawalli. The terms Mutawalli does not find place in
entire text of the enactment. It only deals with
succession, right, title and interest of Atiyat grants
and ancillary matters. The purport of these provisions
is to determine right, title and interest of persons in
the Atiyat grants. The terms 'mutawalli' finds place in
the Wakf Act, 1995, wherein section 3(i) defines
mutawalli as person who is appointed to perform duties
of mutawalli. Needless to emphasize that mutawalli does
not get any right, title or interest even in the
properties of wakf. The very nature and designation of
a mutawalli is to perform duties without interest being
created in the properties. On the contrary, the
successor of interest of Atiyat grant holder in
appropriate cases has right, title and interest in the
properties. Thus, a serious question would arise as to
whether there can be appointment of a mutawalli/manager
under the provisions of the Act, and the answer thereto
would be in negative.
18. Before analyzing the facts in the context of
the provisions of law, it would be fruitful to take
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note of certain orders passed by this Court as well as
Courts in the Act. Along with rejoinder, Petitioner in
Writ Petition No. 3735/2014 has placed on record
granting succession in respect of the subject property.
The said order reads thus:
ftYg;kP;k eatqjhpk 'ksjk lafpdk dza- 28@58@36 Q-
vfHkys[k dz- 16@36 Q-
gh fojklr l¸;n cqÚgkuph vkgs] T;kapk okjlk e/;s l[[ks
nksu eqys l¸;n vlnqYyk o l¸;n uqjksíhu vkgsr- ;kr l¸;n
'ke'kksíhu ;kauh vk{ksi vtZ dsyk- rgflye/kwu R;kP;k
vuqmifLFkr rDrk r;kj d:u ikBfo.;kps vkns'khr >kys-
T;kph uksan laphdsP;k fVIi.khr vkgs- l/;k gs ikgko;kps vkgs
dh dks.kkph fojklr vkgs o toGps ukrsokbZd dks.k vkgsr
laphdsps voyksdu dsY;kuarj Li"V gksr vkgs dh] e;r
l¸;n cqÚgkuyk Qdr nksu eqys vkgsr- l¸;n vlnqYyk o
l¸;n uqjksíhu nksu eqys thoar vkgsr-
Eg.kwu l¸;n cqÚgkuph fojklr eksBk eqyxk l¸;n
vlnqYykkP;k ukos o f'kdeh l¸;n uqjksíhu eatwj-
'ke'kksíhupk vk{kai vtZ QsVkG.;kr ;sr vkgs- R;kauk tj
dkgh vk{ksi vlY;kl dk;Zokgh d: 'kdrkr-
By this order, the succession is granted to Sayed
Asadullah i.e. elder son of Sayad Burhan, Atiyat grant
holder and 'Shikami' is granted to younger son Sayad
Noorudin in File No. 3/11/1310 Fasli. There is one more
order of 1352 Fasli, granting succession in favour of
Sayad Multani, son of Sayad Moinuddin to the extent of
his share in the properties. There is nothing on record
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to indicate these orders being challenged at any point
of time. Apparently, these orders have attained
finality.
19. The State Government through Tahsildar, Udgir,
by notice dated 11.07.1983 invited applications from
the villagers for allotting subject lands for "Ek Sala
Lavni", for non performance of duties assigned to
grandfather of Sayad Abdul Quasim s/o Syed Mira
Hussainee. This notice came to be challenged before the
Atiyat Court and finally dispute reached to this Court
in Writ Petition No. 1676/1992. This Court by order
dated 20.07.1996, decided the Petitions and relevant
portion of the order reads thus:
"8. On going through the various
orders which are passed in this matter, I
think this is a fit case to remand it to
Deputy Collector (Atiyat) for determination
of question involved in the case as pleaded
by the parties. Liberty can be granted to
the respective parties to putforth their
claim either as a successor mutavalli or
legal heirs or representative of deceased
Mutavalli or inamdar to challenge the order
of resumption.
9. In the result, the writ petition
is allowed. The impugned orders are quashed
and set aside. The matter is remanded to
Deputy Collector (Atiyat), Udgir for
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disposal in accordance with law, keeping in
view the aforesaid observations. Till the
enquiry is held, the possession shall be
continued with the Government and the
Government is at liberty to auction the
land on Eksala lavani basis. Liberty to the
parties to intervene in the enquiry, if
they are not made parties to the
application preferred by the original
petitioner."
Thus, by said order it is directed that till
enquiry is held, possession of subject lands were
directed to be continued with Government with further
liberty to auction the lands on Eksala Lavani.
20. In the meantime, various proceedings and
applications were taken out for receiving the amount
derived from auction of 'Ek sala Lavani'. Though orders
were passed permitting the withdrawal of amounts to
meet expenses and orders are also passed in respect of
the encroachments caused on subject properties but none
of the order on merits came to be passed determining
rights of parties.
21. Hidayatali filed application being no.
2012/Inam/CR-2 before Deputy Collector (Atiyat) for
appointment as successor and Mutawalli. This
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application came to be rejected by order dated
12.07.2013 by holding that appointment of Mutawalli
cannot be done under the provisions of the Act. An
appeal came to be filed against this order being Appeal
No. 2013/Religious/CR-96, before Additional Collector
(Atiyat), Latur. This Appeal came to be allowed by
impugned order dated 07.03.2014.
22. In the context of above orders/facts of the
present case, the Petitioners as well as contesting
Respondent Syed Hidayatali claim to be the successor of
Atiyat grant holder. No doubt, there cannot be any
straight jacket formula to deicide as to whether the
Atiyat grant would be inheritable or not and the same
would depend upon the nature of grant and the
conditions mentioned therein. At this stage, there is
nothing on record to indicate the nature of the Atiyat
grant, in the present case, however, the orders passed
by the Atiyat Court of inquiries, which forms part of
the record, prima facie indicate that the said Atiyat
grant was heritable. The orders of succession passed in
respect of the subject properties indicate that on the
death of the Atiyat grant holder or successor, his
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heirs are held to be successors of Atiyat grant. Thus,
prima facie there is material on record to indicate
that the succession to the Atiyat grant is hereditary
in nature and could not be transferred by any other
mode. In such circumstances, the order impugned
indicate that on the basis of the appointment done by
Syed Abdul Kasim, who is legal heir of Syed Lal, Syed
Hidayatali is claiming to be the successor to the
Atiyat grant. In prima facie view of this Court, such
mode of succession of the Atiyat grant in question is
apparently alien to the nature of the Atiyat grant and
this aspect requires detailed consideration by Atiyat
Court. The judgment in case of Poulad Deochand Patil
(supra) has no application to the present case as the
said judgment does not deal with issues covered by the
Act. In the said case a wakf was created by will and in
the instant case there is Atiyat grant.
23. Perusal of the record, more particularly,
impugned order indicates that Authority has failed to
take into consideration the orders passed by the Atiyat
Courts granting the succession of the Atiyat grant by
inheritance. The Atiyat Court, therefore, committed
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serious error in law as well as in fact by declaring
Syed Hidayatali as the successor of the Atiyat grant
holder.
24. These Petitions are pending since 2014 and
this Court passed order dated 02.05.2014 in Writ
Petition No. 4047/2014, issuing notice to Respondents,
returnable on 27.06.2014 and 'till then' interim relief
in terms of prayer clause 'c' is granted. Prayer clause
'C' reads thus:
"Pending final disposasl of this Writ
Petition Impugned Judgment and order dated
7-3-2014 passed by the upper Dist-Collector
Latur in Appeal No. 2013/Religious-Inam/CR
/96 be stayed."
On 27.06.2014, interim relief granted was
extended 'till then' and Petition was stood over to
18.07.2014. This order was continued on 18.07.2014. As
per record, the Petition appeared before the Court only
on 24.02.2022. Petition was adjourned to 17.03.2022 and
thereafter 21.04.2022. This Court passed order to
continue interim relief, if any, till then i.e.,
07.07.2022. Thereafter, on 06.06.2023 interim relief
was continued till next date. On 25.07.2023, order was
passed that interim relief, if any, to continue till
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listing of matters and it's extension is done
thereafter.
25. In this backdrop, a pursis came to be filed by
contesting Respondent, Hidayatali, on 02.08.2023
claiming that on 13.04.2023 the possession of the
subject land has been handed over to him. Though
technically it would not be a case of contempt of Court
in view of the fact that interim relief was not
continued for intervening period, however, fully
knowing the fact of pendency of Petitions since 2014
and interim relief being granted at some point of time,
neither it was proper on the part of the Authorities to
handover possessions of the lands in question nor was
it appropriate on the part of Respondent to take over
possession.
26. In any case, Syed Hidaytali prima facie since
had no right to have been appointed as successor on the
basis of writings/power of attorney by Syed Abdul Kasim
neither he could be declared as successor nor he has
any right to receive possession of the properties in
question by the Atiyat grant, and consequently he
cannot be permitted to retain the possession thereof.
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The land, therefore, stands resumed in favour of
Government and till the issue of succession of Atiyat
grant is decided and till such determination, it would
be open for the Authorities to auction the same on 'Ek
Sal Lavani' basis.
27. As a result of above discussion, the impugned
order cannot sustain and deserves interference. Since
number of persons have claimed the succession in
respect of the Atiyat grant, it would be necessary to
direct the Atiyat Court to conduct fresh inquiry by
giving an opportunity of hearing to all the Petitioners
and Syed Hidayatali. The order of Additional Collector,
Latur passed in proceedings bearing File No.
2013/Religious/CR-96 dated 07.03.2014 stands set aside.
28. The Atiyat Court of enquiry to decide
applications/proceedings raising claims of succession,
in accordance with law and independently on merit after
hearing concerned parties and without getting
influenced by the observations made by this Court
herein above, which are made on prima facie
consideration of record.
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29. Rule is made absolute in above terms.
30. Petitions stand disposed of in above terms.
31. Pending civil application(s), if any, stands
disposed of.
(R. M. JOSHI, J.)
Later on:
32. After pronouncement of this judgment, learned
Counsel for contesting Respondent - Hidayatali seeks
stay of the judgment passed by this Court for a period
of eight weeks.
33. Learned Counsels for Petitioners and other
Respondents opposes grant of stay.
34. In order to enable the Respondents to move the
Hon'ble the Supreme Court testing judgment passed by
this Court, the judgment passed by this Court stands
stayed for a period of six (06) weeks from today.
(R. M. JOSHI, J.)
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