Anowaruddin Wakf Estate vs Md. Iqbal Hussain And 9 Ors
2021 Latest Caselaw 2109 Gua

                                                                 Page No.# 1/8

GAHC010127032021




                      THE GAUHATI HIGH COURT
  (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                           Case No. : RSA/83/2021

         ANOWARUDDIN WAKF ESTATE
         REP. BY SYED JAVED KAISAR, THE NEWLY APPOINTED MUTUWALLI
         PURSUANT TO THE DEATH OF THE EARLIER MUTUALLI SYED
         NASIRUDDIN ULLAH ON 10.06.2021 SITUATED AT GUWAHATI MEDICAL
         COLLEGE ROAD, BHANGAGARH, GUWAHATI- 781005, IN THE DISTRICT
         OF KAMRUP(M), ASSAM

         VERSUS

         MD. IQBAL HUSSAIN AND 9 ORS.
         S/O- MD. AZAHARUDDIN, R/O- BHANGAGARH, GUWAHATI- 781005, DIST.-
         KAMRUP(M), ASSAM

         2:MD. ABDUR RAHMAN @ ABDUL RAHMAN
          S/O- LATE MD. HALDER
          R/O- SRIMANTAPUR
          MOUZA- ULUBARI
          GUWAHATI- 781007
          IN THE DISTRICT OF KAMRUP(M)
         ASSAM

         3:MD. SAFIUDDIN
          S/O- LATE MD. HALDER
          R/O- SRIMANTAPUR
          MOUZA- ULUBARI
          GUWAHATI- 781007
          IN THE DISTRICT OF KAMRUP(M)
         ASSAM

         4:SYED MAHBUBULLAH
          S/O- LATE MAHIBULLAH
          R/O- S.S. ROAD
          LAKHTOKIA
          GUWAHATI- 781001
                                Page No.# 2/8

IN THE DISTRICT OF KAMRUP(M)
ASSAM

5:THE ASSAM BOARD OF WAKF
 REP. BY ITS SECRETARY
 DISPUR
 GUWAHATI- 781006.

6:SYED MD. HABIBULLAH
 S/O- LATE MAHIBULLAH
 R/O- S.S. ROAD
 LAKHTOKIA
 GUWAHATI- 781001
 DIST.- KAMRUP(M)
ASSAM

7:SYED MD. SAMSULALAM
 S/O- LATE MAHIBULLAH
 R/O- S.S. ROAD
 LAKHTOKIA
 GUWAHATI- 781001
 DIST.- KAMRUP(M)
ASSAM

8:SYED MD. BADIUL ALAM
 S/O- LATE MAHIBULLAH
 R/O- S.S. ROAD
 LAKHTOKIA
 GUWAHATI- 781001
 DIST.- KAMRUP(M)
ASSAM

9:SYED MD. KUTUBUL ALAM
 S/O- LATE MAHIBULLAH
 R/O- S.S. ROAD
 LAKHTOKIA
 GUWAHATI- 781001
 DIST.- KAMRUP(M)
ASSAM

10:SYEDA NURUN NAHAR
 S/O- LATE MAHIBULLAH
 R/O- S.S. ROAD
 LAKHTOKIA
 GUWAHATI- 781001
 DIST.- KAMRUP(M)
ASSAM
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Advocate for the Petitioner : MR. D BARUAH
Advocate for the Respondent :

                                 BEFORE
                  HONOURABLE MR. JUSTICE SOUMITRA SAIKIA

                                      ORDER

Date : 09.09.2021

Heard Mr. D. Baruah, learned counsel for the appellant.

2. This Second Appeal arises out of the Judgment and Decree dated 04.09.2019 passed in T.A No. 96/2010 by the Court of Civil Judge No. 1, Kamrup(M), Guwahati.

3. The learned counsel for the appellant submits that the estate of the appellant comprise of total land of 11B, 2K & 10L. The land of the appellant estate was donated by the original pattadars. Out of the total land of the Appellant Estate, the present proceedings relate to land measuring 1B, 4K & 19L which is covered by Dag No. 505(old)/302(new) of KP Patta No. 194(old)/51(new) situated in the Village- Ulubari, whereupon a mosque was established which is known as Anwarpur Masjid or Gar Masjid. The land was initially orally gifted by the original pattadars and subsequently it was followed up by the registered gift deed bearing Deed No. 889/83 on 03.03.1983 through their Attorney Syed Habibullaha.

4. The opposite party, in the present proceedings claimed to be a tenant upon a plot of land. It is submitted that the opposite party was initially a tenant under the appellant in the Page No.# 4/8

year 1959. He had regularly paid rent till December, 1982. However, he stopped paying rent from January, 1983. The opposite party, thereafter, in collusion with the staff of the GMC got his name mutated in the tenanted premises and had fraudulently obtained the holding number. Although, he had no right of the suit land, he got his name mutated on the basis of fraudulent sale deed No. 4439/85 purported to be executed by one of the pattadars. Although the matter went up in appeal before the Assam Board of Revenue wherein the mutation of the opposite party was cancelled, however, because of the activities of the opposite party, the title of the appellant came under cloud. A title suit being T.S. No. 119/2010(New) was instituted by the Anwaruddin Wakf Estate for declaration of right, title and interest over the wakf land described in Schedule-A land and for recovery of possession of the suit land described in Schedule-B and also for declaration that the Sale Deeds No. 4439/85 and 2059/93 are illegal, inoperative and liable to be cancelled and also for permanent injunction and also for recovery of possession of the suit land. The title suit was decreed in favour of the plaintiffs holding that the petitioner had right, title and interest over Schedule-A land. The sale deed No. 4439/85 in respect of the Transfer of Schedule-B land held to be illegal and liable to be cancelled. The trial Court held that the plaintiff is entitled to get khas possession of suit land by demolishing the structures thereon and also any by evicting the defendants or any persons Page No.# 5/8

claiming under them and that they are entitled to get a decree of permanent injunction.

5. Being aggrieved, the respondent herein filed and appeal being Title Appeal No. 96/2010 before the Civil Judge No. 1, Kamrup (M), Guwahati.

6. On the issues which were framed before the Munsiff Court No. 2, Kamrup(M), Guwahati, the First Appellate Court proceeded to decide the Title Appeal on the following points:-

1) Whether the appreciation done by learned Munsiff No. 2, Kamrup(M) in issue Nos. 4, 5 & 6 are proper?

2) Whether the judgment and decree passed by learned Munsiff No. 2, Kamrup (M) needs interference of this court?

7. The First Appellate Court vide Judgment dated 04.09.2021 in Title Suit No. 119/2010 overturned the Judgment and Decree passed by the learned Munsiff No. 2, Kamrup(M), Guwahati in T.S. No. 119/2010 and the Title Appeal was allowed on contest. The appellant (the respondent herein) was held not to be liable to be evicted and the registered sale deeds were held not liable to be cancelled and quashed in any manner.

8. Being aggrieved by the Judgment dated 04.09.2019 in Title Appeal No. 96/2010 of the First Appellate Court, the present second appeal is preferred by the appellant.

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9. The learned counsel for the appellant submits that the judgment of the First Appellate Court is perverse inasmuch as the First Appellate Court failed to take note of the provisions of the Transfer of Property Act, 1882. The learned counsel submits that under the provisions of Transfer of Property Act, a registered gift deed executed by the original pattadars, who had donated the land to appellant, is recognized under the Transfer of Property Act.

10. The learned counsel for the appellant by referring to Section 48 of the Transfer of Property Act, 1882 submits that where a person purports to create right or transfer at different times over the same movable property, such rights cannot exist and be re-exercised to the full extent in the absence of special contract or reservation binding the earlier transfers and the same shall be subject to the rights previously created.

11. The learned counsel for the appellant submits that in view of the registered gift deeds, there was no question of a sale deed being executed subsequently without there being any finding that the registered gifts deeds are contrary to the provisions of law or that they are fraudulent in nature.

12. The learned counsel support of his contention relies upon the Judgment of the Apex Court in Maria Margarida Sequeira Fernandes and Others -Vs- Erasmo Jack De Sequeira (Dead) through Lrs. reported in (2012) 5 SCC 370 to contend that wherever pleadings and documents establish title to a particular property and possession is in question, it will be for Page No.# 7/8

the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession.

13. The learned counsel for the appellant further submits that the judgment of the First Appellate Court is perverse inasmuch as it had come to a finding that the Mutawali of the appellant estate is not a hereditary position but rather needs to be made in terms of the provisions of the Wakf Rules and Regulations.

14. The learned counsel for the appellant submits that the certificate issued by the Board of Wakf in favour of Mutawali was disbelieved and which is contrary to the provisions of the Muhammadan law as well as the Wakf Act, 1995.

15. The learned counsel for the appellant submits that a Mutawali appointed under the Muhammadan Law is hereditary. Although, there are provisions for appointment of a Mutawali under the Wakf Act, 1995 but that is only in case of a disputes arising, but such is not the case the present matter.

16. Upon hearing learned counsel for the appellant and upon perusal of the grounds urged in the appeal memo, this appeal is admitted on the followings substantial questions of law are framed:-

I. Whether in view of Maria Margarida (supra) the First Appellate Court was justified in allowing the First Appeal in a Suit for declaration of title along with recovery of possession by shifting the burden that the Defendant did not have a better title upon Page No.# 8/8

the Appellants when the dispute pertaining to the title is removed?

II. Whether the Learned First Appellate Court was justified in allowing the Title Appeal without taking into consideration that whether in view of the mandate of Section 48 of the Transfer of Property Act, 1882 and consequently the Appellant/Plaintiff had a prior title over the Schedule 'A' land by virtue of Registered Deed of Gift bearing Deed No. 889/1983 dated 02.03.1983 the purported Registered Deed of Sale bearing Deed No. 4439 of 1985 dated 17.04.1985 executed later shall be subject to the said Registered Deed of Gift of the appellants?

III. Whether as held by the Learned First Appellate Court, the position of a Mutuwalli is not inheritable and has to be chosen or elected under the Wakf Rules and Regulations?

IV. Whether the impugned Judgment and Decree thereby suffers from perversity?

17. Call for the records of T.A. No. 96/2010 from the Court of Civil Judge Senior Division, No. 1, Kamrup(M), Guwahati.

18. The trial Court records pertaining to T.S. No. 119/2010 (New) from the Court of Junior Division No. 2, Kamrup (M) be also requisitioned.

19. List this matter again after receipt of the records.

JUDGE Comparing Assistant