Shri. Mahaveerachand ... vs The Karnataka State Board Of Wakfs
2022 Latest Caselaw 2731 Kant

                           1




            IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

      DATED THIS THE 18TH DAY OF FEBRUARY 2022

                         BEFORE

  THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

               C.R.P.NO.100027 OF 2018
BETWEEN:
SHRI. MAHAVEERACHAND
S/O. GHEVARCHAND PAREKH,
AGE: 41 YEARS, OCC: BUSINESS,
R/O KABRAZI BAZAAR,
TQ:DIST:BIJAPUR
                                                ...PETITIONER
(BY SRI. R. K. KULKARNI, ADVOCATE)

AND
THE KARNATAKA STATE BOARD OF WAKFS,
DARUL AWKAF, NO. 6, CUNNINGHAM ROAD,
BANGALORE-560052
REPRESENTED BY ITS
CHIEF EXECUTIVE OFFICER,

                                           ... RESPONDENT
(BY SRI. B MUHAMMED ALI, ADVOCATE)

      THIS CRP IS FILED UNDER SECTION 115 OF CPC,
PRAYING TO SET ASIDE THE ORDER PASSED BY THE
PRESIDING    OFFICER,    KARNATAKA       WAKF     TRIBUNAL,
BELGAUM       DIVISION         BELGAUM      MADE         IN
KWT/BJR/SR/O.S.NO.4/2007 BY ALLOWING THIS REVISION
PETITION WITH COSTS.
                                 2




     THIS CRP COMING ON FOR ADMISSION, THIS COURT
DELIVERED THE FOLLOWING:

                            ORDER

The captioned civil revision petition is filed by

defendant questioning the judgment of Wakf Tribunal

passed in KWT/BJR/SR/O.S.NO.4/2007.

2. Respondent-plaintiff filed a suit for bare

injunction by alleging that present petitioner-

defendant has highhandedly interfered with property

bearing CTS No.1903 measuring 70 x 70 feet situated

on Station Road, Bijapur. Respondent-plaintiff claimed

that suit schedule property was offered as a Wakf and

therefore, same came to be notified in the Gezzette by

State Wakf Board. Respondent-plaintiff claimed that

the present petitioner-defendant is interfering with

suit schedule property and is also attempting to

alienate the vacant land illegally without the

knowledge of plaintiff. It is in this background, the

respondent-plaintiff filed a top noted suit for

injunction before the Wakf Tribunal. The petitioner-

defendant, on receipt of notice, contested the

proceedings. The present petitioner contended that

the suit schedule property bearing CTS No.1903

totally measuring 48 square yards and same is

government land and there were earlier litigations

where petitioner was compelled to file

O.S.No.150/1995 seeking injunction, which came to

be decreed in favour of plaintiff. Therefore, petitioner-

defendant contended that the respondent-plaintiff, in

collusion with the manager of Masabi Darga, is falsely

asserting and trying to grab the property owned by

petitioner-defendant. Respondent-plaintiff, in support

of his contention, examined two officials as PW1 and

PW2 and relied on documentary evidence vide Ex.P1

to Ex.P3. The present petitioner-defendant by way of

rebuttal evidence examined one witness as DW1 and

relied on documentary evidence vide Ex.D1 to Ex.D8.

the Tribunal having examined material on record was

of the view that the respondent-plaintiff is entitled to

protect his property from any kind of interference

from petitioner-defendant or third party. The Tribunal

was of the view that since petitioner-defendant admits

the existence of suit schedule property towards south

of his property, it has recorded a finding that

petitioner-defendant has no manner of right and title

over the suit schedule property. The Tribunal was also

of the view that the parties ought to have approached

appropriate authorities and got their respective

properties surveyed. The Tribunal has come to the

conclusion that the respondent-plaintiff has

unnecessarily knocked the doors of the Tribunal.

However, on assessing the ocular and documentary

evidence, the Tribunal has come to the conclusion that

respondent-plaintiff is the owner of the property

bearing CTS No.1903 and therefore, is entitled for

injunction. On these set of reasons, suit is decreed.

3. Heard the learned counsel for petitioner-

defendant and learned counsel appearing for

respondent-plaintiff. While addressing the arguments,

the learned counsel appearing for respondent-plaintiff

a rough sketch. Taking this Court through this rough

sketch, the learned counsel for respondent-plaintiff

has submitted that the property owned by petitioner-

defendant are situated on northern side and eastern

side of suit property bearing CTS No.1903. He would

contend that CTS No.1902/352 is situated on northern

side of CTS No.1903, whereas CTS No.1902/353 is

situated on the eastern side of CTS No.1903 and CTS

No.1902/352. If this sketch, which depicts the

topography of the suit property is taken into

consideration, I am of the view that there is no proper

enquiry by the Tribunal. When petitioner-defendant

admits the title of respondent-plaintiff over CTS

No.1903, the Tribunal was required to examine

whether the petitioner-defendant is highhandedly

asserting right in the property owned by respondent-

plaintiff. It was further required to examine whether

there is any interference by petitioner-defendant

highhandedly. The Tribunal having recorded a finding

that the lis between the parties can be resolved only

by way of spot inspection and survey, has proceeded

to grant the relief of perpetual injunction thereby

restraining the petitioner-defendant from interfering

with respondent's-plaintiff's peaceful possession and

enjoyment over the suit schedule property bearing

CTS No.1903. In the present case on hand, the

petitioner-defendant is not laying any claim over the

suit property owned by respondent-plaintiff. It

appears that the dispute is only in regard to

boundaries and extent. The location and situation of

the properties has to be decided based on the material

placed on record. The petitioner-defendant has

produced Ex.D7 and Ex.D8. The said documents

indicate the location of properties owned by

petitioner-defendant i.e., CTS No.1902/352 and

1902/353. Towards south of CTS No.1902/352, the

property owned by respondent-plaintiff is located.

Though the petitioner-defendant cannot claim any

right and title in CTS No.1903, equally respondent-

plaintiff also cannot lay claim in CTS No.1902/352 and

CTS No.1902/353.

4. It is a trite law that the Court can grant

discretionary relief of perpetual injunction provided

plaintiff succeeds in establishing lawful possession as

on the date of suit. Further, the plaintiff in support of

lawful possession has to further establish that there is

interference by the defendant. Unless these two

ingredients are satisfied, question of granting

perpetual injunction would not arise. Both the parties

are not disputing the right and title of their respective

properties, even though, the present suit is one for

bare injunction. In a given case, the Courts/Tribunals

can order for local inspection and secure a report in

regard to location of the properties, without venturing

into finding of the respective possession of properties.

If the lis between the parties cannot be decided based

on ocular and documentary evidence and if the nature

of litigation/controversy is such that it can be

ascertained only by way of local inspection, in

exceptional cases, even in bare suit for injunction,

court can order for limited local inspection to find out

topography and location of the property without

referring to the possession of respective properties,

which is impermissible in a bare suit for injunction.

The present material on record is insufficient for

effective adjudication of the controversy between the

parties. The Tribunal does make observation that

unless the properties are surveyed, the actual lis

between the parties cannot be resolved, but however

has proceeded on assumption that since the

respondent-plaintiff is owner of property bearing CTS

No.1903, is entitled for perpetual injunction. This

finding appears to be perverse and therefore, the

same is liable to be set aside.

5. For the foregoing reasons, I proceed to

pass the following:

ORDER The judgment and decree dated 10.06.2011 in KWT/BJR/SR NO.4/2007 passed by the Karnataka Wakf Tribunal, Belgaum Division, Belgaum is hereby set aside. The parties are at liberty to lead fresh further evidence by furnishing sketch to prove their respective cases and also establish the location of the properties.

It is open to the parties to seek local inspection as stated supra.

Sri. Mohammad Ali, advocate appearing for respondent-plaintiff, at this stage, submits that the subject matter of the revision petition is situated at Kabrazi Bazar, Bijapur and therefore, he submits that it is Kalburgi Tribunal, which has jurisdiction to decide the controversy

between the parties. Therefore, I am of the view that the Wakf Tribunal, Belagavi before proceeds with enquiry, it shall examine whether it has got jurisdiction to decide the lis, if not, then it is open for the Wakf Tribunal, Belgaum to remit/transfer the entire file to Kalaburgi Tribunal.

In view of disposal of the petition, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly.

Sd/-

JUDGE yan