Karnataka High Court
Chief Executive Officer vs Mrs Judith Mascarenhas on 22 February, 2022
Bench: R. Nataraj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE R. NATARAJ
CIVIL REVISION PETITION NO.92 OF 2011
BETWEEN:
1. CHIEF EXECUTIVE OFFICER
KARNATAKA STATE BOARD OF WAQF
'DARUL AWAKAF',
NO.6, CUNNINGHAM ROAD,
BANGALORE-560052
2. THE ENQUIRY OFFICER AND
ASSISTANT SECRETARY
KARNATAKA STATE BOARD OF WAQF
'DARUL AWAKAF',
NO.6, CUNNINGHAM ROAD,
BANGALORE-560052
3. JAMIA MASJID
(LASKER MOSQUE)
MAHADEVPET
MADIKERI 571201
REPRESENTED BY MUTHAVALLI.
4. THE PRESIDENT
JAMIA MASJID
MAHADEVPET,
MADIKERI 571201
REP. BY MUTHAVALLI.
...PETITIONERS
(BY SRI. MOHASSIN SERAY, ADVOCATE FOR
KAMAL AND BHANU, ADVOCATE)
2
AND:
MRS. JUDITH MASCARENHAS
DAUGHTER OF LATE MASCARENHAS
AGED ABOUT 51 YEARS,
CHICKPET, MADIKERI-571201.
...RESPONDENT
(BY SRI. G.S.BHAT, ADVOCATE)
THIS CRP IS FILED UNDER SECTION 83(9) OF THE WAQF
ACT READ WITH SECTION 115 OF CPC., AGAINST THE JUDGMENT
AND DECREE DATED 07.01.2011 PASSED IN O.S.NO.6/2005 ON
THE FILE OF THE C/C PRESIDING OFFICER OF WAQF TRIBUNAL
MYSORE, DECREEING THE SUIT FOR DECLARATION AND
PERMANENT INJUNCTION.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 18.11.2021 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT MADE THE
FOLLOWING:-
ORDER
This Revision Petition under Section 83(9) of the
Waqf Act, 1995 (henceforth referred as 'the Act') is filed
challenging the Judgment and Order dated 07.01.2011
passed by the Waqf Tribunal, Mysuru (henceforth referred
to as 'Tribunal' for short) in O.S.No.6/2005.
2. The parties shall henceforth be referred to as
they were arrayed before the Tribunal. The petitioners
were the defendants, while the respondent was plaintiff
before the Trial Court.
3. The plaintiff filed O.S. No.6/2005 for a decree
to declare that the suit property lay within Sy. No.49/1,
47/1, 48/1 of Gowli street, Madikeri and for perpetual
injunction restraining the defendants from dispossessing
the plaintiff from suit property.
4. The plaintiff claimed that she and her family
members were owners of Sy. No.47, 47/1, 48/1 and 49/1
in Block No.13 of Gowli street, Madikeri. This property was
given to the share of plaintiff's father Mr.T. Mascerenhas
pursuant to a partition decree in O.S. No.144/1971. After
his death, the plaintiff, her brothers and sisters succeeded
to the said property and the Jamabandhi and other
revenue records stood transferred to the name of plaintiff ,
her brothers and sisters. The plaintiff claimed that
alongside the north eastern boundary of the aforesaid
property the land bearing Sy. No.14 and 14/1 belonging to
defendant No.3 was situate. These two properties were
separated by a live fence with trees and plants alongside
the boundary line. She claimed that in the partition decree
in O.S. No.144/1971, it was clearly mentioned that
Sy.No.14/1 lay on the northern side of Sy.No.49/1
between Sy.No.14/1 and a stream. The plaintiff claimed
that she was not concerned in any way with Sy.No.14 and
14/1 and had not encroached into any portion of Sy.No.14
and 14/1. She further claimed that defendant No.2 passed
an order dated 04.05.2001 holding that the plaintiff had
encroached into an area measuring 4½ cents in Sy.No.14
and 14/1 and constructed a pigsty and therefore, ordered
the plaintiff to surrender that portion of the property. This
order was purportedly passed in exercise of the power
under Section 54 of the Waqf Act, 1995. The defendant
No.1 also passed an order to the same effect on
18.07.2001. The plaintiff claimed that these orders were
passed without any enquiry and without any notice to all
the persons interested. The plaintiff claimed that she was
in possession of the property for more than 50 years. She
alleged that though she had replied to the notice issued by
defendant No.2, however, in the enquiry report it was
claimed that plaintiff had not replied to the notice. She
claimed that defendant No.2 passed a cryptic order and
held that the plaintiff had encroached into the land
belonging to defendant No.3. She claimed that defendants
No.1 and 2 did not get a survey done for identification and
demarcation of the property and therefore, they could not
have recorded that the portion of the land in the
possession of the plaintiff lay with Sy.No.14 and 14/1.
She next contended that the property in her occupation
was not a Waqf property and therefore, Section 54 of the
Act could not be invoked. Even otherwise, she contended
that under Section 54 of the Act, the Chief Officer had to
conduct an enquiry, but instead, he allowed the defendant
No.2 to conduct an enquiry and passed orders thereon.
Though the plaintiff had challenged the orders passed by
defendant No.2 before this Court in W.P. No.31914/2001,
the same was disposed of granting liberty to file a suit
before the Tribunal. Hence, she brought the present
action before the Tribunal seeking for declaratory reliefs.
5. The defendant No.3 contested the suit and
claimed that it represented the defendant No.4 too. It
contended that Sy. Nos.14 and 14/1 belong to defendant
No.3 and lay on the northern side of the property bearing
Sy. No.47. It contended that the said properties were
divided by a drain and no portion of the land bearing Sy.
No.49 or 47 lay on the northern side of the drain, but the
plaintiff had constructed a pigsty on the north of the drain.
It denied the allegation that plaintiff had not encroached
into Sy.Nos.14 and 14/1. It alleged that several
opportunity was provided to the plaintiff to plead her case
before the Enquiry Officer and that a survey of land was
undertaken by a Municipal Surveyor which indicated in
clear terms, the extent of land that was encroached by the
plaintiff. It claimed that since no material was placed by
the plaintiff, the Enquiry Officer passed an order based on
the material placed before him. It contended that an order
of Enquiry Officer or the defendant No.2 cannot be
questioned in a suit under Section 54(4) of the Act. The
defendant No.3 therefore requested the Tribunal to dismiss
the suit.
6. Based on these rival contentions, the Tribunal
framed the following issues:
1. Whether plaintiff proves that schedule property is
part of survey No.47/1, 48/1 and 49/1 of
Chickpet, Madikeri belonging to her family?
2. Whether plaintiff proves that order passed by 1st
defendant - CEO directing her to deliver
possession of schedule property to defendant
No.4 is illegal?
3. Whether defendants prove that schedule land is
encroachment by plaintiff and her family in
survey No.14 and 14/1 covered by order passed
by 1st defendant - CEO?
4. Whether suit is bad / not maintainable for want of
statutory notice to State Waqf Board?
5. What order or decree?
7. The plaintiff was examined as PW1 and he
marked Exs.P1 to P22. He also examined two other
witnesses as PWs.2 and 3. The defendant No.1 examined
its Inspector as DW1 and an Office Assistant at defendant
No.3 as DW2 and marked Exs.D1 to D19. A Court
Commissioner was appointed who was examined as CW1
and he marked Exs.C1 to C6.
8. Based on the oral and documentary evidence,
the Tribunal held that the plaintiff was unable to prove that
the suit property formed part of Sy.No.47/1, 48/1 and
49/1 of Chickpet. It held that the defendants had proved
that the plaintiff had encroached into 4½ cents belonging
to defendant No.3 in Sy. No.14/1. However, the Tribunal
held that the right of the defendant No.3 to recover
possession stood extinguished under Section 27 of the
Limitation Act, 1963 and therefore, a claim under Section
107 of the Act cannot revive an extinguished right. The
Tribunal held that if the defendant No.3 knew about the
encroachment of a portion of Sy.No.14/1 in the year 1975
as could be seen from Ex.D1, time to recover the property
lapsed in the year 1987 i.e., prior to coming into force of
the Waqf Act, 1995. Therefore, the Tribunal held that the
defendants are not entitled to recover possession of the
suit property. Hence, the Tribunal decreed the suit and
declared that the property claimed by the plaintiff lay
within Sy. Nos.14 and 14/1 but restrained the defendants
perpetually from dispossessing the plaintiff from suit
schedule property.
9. Being aggrieved by the aforesaid order, the
present Revision Petition is filed.
10. The learned counsel for the petitioners
challenged the judgment and order on the following
grounds:
That the Tribunal held issues No.1, 2 and 4 in
the negative and issue No.3 in the positive.
Nonetheless, the Tribunal decreed the suit
restraining the defendants by perpetual injunction
from dispossessing the respondent from suit
property. The learned counsel contended that CW1
categorically deposed that the plaintiff had
encroached into Sy.Nos.14 and 14/1 and errected a
pigsty and therefore, the Tribunal could not have
held that the possession of the plaintiff must be
protected. The Tribunal though noticed that there
was no document to establish that the Municipality
had straightened the drain, yet it believed it to be
true and was prejudiced by the claim of the plaintiff
that a portion of Sy. Nos.47/1 and 48/1 lay beyond
the drain on the northern side.
11. The learned counsel for the respondent, on the
other hand, contended that the fact that the plaintiff was
in possession of the suit property was admitted by the
defendants as they too claimed that plaintiff had put up a
pigsty in the suit property. He claimed that since the
property lay within the limits of Mercara Municipality, it
was difficult to precisely identify the limits of Sy.Nos.47,
47/1, 48/1 and 49/1 of Gowli street, Madikeri. However,
he contended that he had nothing to do with Sy. Nos.14
and 14/1 and was not in possession of any portion of the
said survey numbers. He, therefore, contended that the
judgment and order of the Tribunal being just and proper,
does not warrant interference.
12. I have considered the submissions made by
learned counsel for the parties and I have also perused the
records of the Tribunal.
13. PW1 in her cross-examination deposed as
follows :
"¤¦.4 ¸ÀªÉð £ÀPÁ±ÉAiÀÄ°è 1946gÀ°è vÀAiÀiÁj¹zÀÄÝ. FUÀ vÉÆÃj¹zÀ
£ÀPÁ±ÉAiÀÄ°è qÉæöÊ£ÉÃeï vÉÆÃj¹zÉ. (¸ÁQë £ÀPÁ±ÉAiÀÄ°è UÀÄgÀÄw¹zÀ
qÉæöÊ£ÉÃeï£ÀÄß ¤¦.4(J) CAvÀ PÉA¥ÀÄ §tÚzÀ°è UÀÄgÀÄw¹zÉ). ¤¦.5 ¸ÀªÉð
£ÀPÁ±ÉAiÀÄ°è qÉæöÊ£ÉÃeï vÉÆÃj¹zÉ. (¸ÁQë UÀÄgÀÄw¹zÀ qÉæöÊ£ÉÃd£ÀÄß
¤¦.5(J) CAvÀ PÉA¥ÀÄ §tÚ¢AzÀ UÀÄgÀÄw¸À¯Á¬ÄvÀÄ). ¤¦.5 £ÀPÁ±ÉAiÀÄ°è
vÉÆÃj¹zÀ ¸ÀªÉð £ÀA.47/1J, 48/1J, 48/1 ªÀÄvÀÄÛ 49/1J £À£Àß vÀAzÉAiÀÄ
ºÉ¸ÀjUÉ SÁvÉ EgÀĪÀ d«ÄãÀÄ. ¸ÀªÉð £ÀA.47/1J, 48/1J, 48/1 ªÀÄvÀÄÛ
49/1J EªÀÅUÀ¼À GvÀÛgÀ UÀrUÉUÉ vÁVPÉÆAqÀÄ EgÀĪÀ ¨ÉðAiÀÄ DZÉ ¸ÀªÉð
£ÀA.14 ªÀÄvÀÄÛ 14/1 d«ÄãÀÄ EzÉ. £ÀªÀÄä d«Ää£À GvÀÛgÀzÀ UÀrUÉ EzÀÝ
¨Éð¬ÄAzÀ ¸ÀĪÀiÁgÀÄ 50-60 Cr zÀÆgÀzÀ°è ªÀĹâ ¸ÀªÉð £ÀA.14
gÀ°èzÉ. ¸ÀªÉð £ÀA.14/1 SÁ° d«ÄãÀÄ. ¤¦.5 rQæ ±ÉqÀÆå¯ï
vÉÆÃj¹zÀAvÉ ¸ÀªÉð £ÀA.14/1 d«ÄãÀÄ £ÀªÀÄä d«ÄãÀÄ ¸ÀªÉð £ÀA.49/1gÀ
GvÀÛgÀ UÀrUÉ vÁVPÉÆAqÀÄ EzÉ. DzÀgÉ ¸ÀªÉð £ÀA.47/1 ªÀÄvÀÄÛ 48/1
EªÀÅUÀ¼À GvÀÛgÀ UÀrUÉ vÁVPÉÆAqÀÄ ¸ÀªÉð £ÀA.14/1 EgÀĪÀÅ¢®è. ¤¦.5
rQæ ±ÉqÀÆå¯ï£À°è ¸ÀªÉð £ÀA.47/1 ªÀÄvÀÄÛ 48/1 EªÀÅUÀ¼À GvÀÛgÀ UÀrUÉ
¹ÖçêÀiï CAvÀ vÉÆÃj¹zÉ."
14. PW2 in his deposition has stated as follows :
"There is one stream that is passing through
in the middle of the land belonging to the Plaintiff.
Towards North of the said stream the remaining
portion of the property of the plaintiff is situated
and next to the said property in the Northern end,
the Waqf property is situated. The land abutting to
the property of the plaintiff is still vacant and the
plaintiff and her brothers and sisters have
constructed a house in their property situated to
the north of the stream."
15. In his cross-examination he admitted that the
pigsty was located and was identified in Ex.P7 as Ex.P7(b).
A suggestion was put to this witness as,
" ¤¦.7(©) gÀ°è ºÀA¢ ªÀÄ£É EgÀĪÀÅ¢®è C£ÀÄߪÀÅzÀÄ ¸ÀļÀÄî.
CzÀÄ D¹Û £ÀA.49/1J zÀ°è EgÀÄvÀÛzÉ J£ÀÄߪÀÅzÀÄ ¤d."
16. PW3 was the Private Surveyor, who surveyed
the suit property and prepared a sketch as per Ex.P22. He
deposed in his chief-examination as follows :
"3. In between fence (zig zag stream) and
the straightened stream, the plaintiff has got lands
in Survey No.47/1 measuring one and half cents
and I have surveyed the said lands and issued a
sketch about six months back to the plaintiff and
the plaintiff has produced the same before this
Honorable Court. I have also surveyed the
property earlier and issued another sketch to the
plaintiff and the same is also produced before this
Honorable Court. In Survey No.47/1, one and half
cents has been encroached by the mosque and in
Sy. No.48/1A one fire wood store room and two pig
shed and also a small house is situated in two
cents of land and in Survey No.49/1A, the plaintiff
has planted banana plants in five cents. The
plaintiff has not encroached any portion of the land
in Survey No.14/1 belonging to the mosque.
4. Since only zig zag stream, which was
earlier in use was shown in the municipal plan, the
subsequent straightened stream has not been
shown in the Municipal plan. I have noted the
existence of the stream in red colour, encroached
land in green colour and close zig zag stream in
plain."
17. In his cross-examination he deposed as
follows:
"ªÀĺÁ£ÀUÀgÀ¸À¨ÉsAiÀĪÀgÀÄ M¼ÀZÀgÀAr ªÀiÁqÀĪÀ §UÉÎ ¸ÀzÀj
eÁUÉAiÀÄ£ÀÄß ¸Áé¢üãÀ ¥Àr¹gÀĪÀ §UÉÎ AiÀiÁªÀ zÁR¯ÉAiÀÄ£ÀÄß £ÉÆÃr®è."
18. CW1 in his cross-examination deposed as
follows :
"ªÁ¢ ªÀÄvÀÄÛ ¥ÀæwªÁ¢AiÀÄ D¹ÛAiÀÄ £ÀqÀÄªÉ PÀ½îAiÀÄ ¨Éð EzÉ
JAzÀgÉ ¸Àj¬ÄzÉ. vÉÆÃqÀÄ ªÀÄvÀÄÛ PÀ½îAiÀÄ ¨ÉðAiÀÄ £ÀqÀÄªÉ MlÄÖ 2.4
¸ÉAmïì EzÉ. ¨Éð¬ÄAzÀ ¸ÀªÉð £ÀA.14/1gÀ C¼ÀvÉ 63.6 ¸ÉAmïì EzÉ.
¸ÀªÉð £ÀA.14/1 gÀ°è zÀQëtzÀ ¢QÌUÉ ªÀiÁvÀæ MvÀÄÛªÀjAiÀiÁVzÉ. ¸ÀªÉð
£ÀA.14/1gÀ £Á®ÄÌ ¢QÌ£À UÀrUÀ¼À£ÀÄß UÀÄgÀÄw¹zÉÝãÉ. ¸ÀªÉð £ÀA.14/1
GvÀÛgÀ ªÀÄvÀÄÛ ¥À²ÑªÀÄPÉÌ PÁA¥ËAqï EzÉ. ¥ÀƪÀðPÉÌ gÀ¸ÉÛ EzÉ. zÀQëtPÉÌ
¨Éð EzÉ. £Á£ÀÄ ¸ÀªÉð £ÀA.14/1 C£ÀÄß C¼ÉAiÀÄ®Ä £ÀªÀÄä PÀbÉÃjAiÀÄ°è
®¨sÀå«gÀĪÀ mË£ï £ÀPÁ±ÉAiÀÄ ¸ÀºÁAiÀÄ ¥ÀqÉ¢zÉÝãÉ. CzÀ£ÀÄß
ºÁdgÀÄ¥Àr¹®è. £Á£ÀÄ ¸ÀªÉð £ÀA.14/1 MAzÀ£ÀÄß ¥ÀÆjÛAiÀiÁV C¼ÀvÉ
ªÀiÁr®è. PÉêÀ® vÉÆÃqÀÄ ªÀÄvÀÄÛ ¨ÉðAiÀÄ£ÀÄß ªÀiÁvÀæ C¼ÀvÉ ªÀiÁrzÉ
CAzÀgÉ ¸ÀjAiÀÄ®è. ¸ÀªÉð £ÀA.14/1 zÀQëtPÉ̬ÄgÀĪÀ vÉÆÃr£À §UÉÎ £ÀªÀÄä
PÀbÉÃjAiÀÄ 'zÁR¯É ¥Áè£ï' £À°è EzÉ. £ÀªÀÄä PÀbÉÃjAiÀÄ°è ®¨sÀå«gÀĪÀ
£ÀPÁ±É ¥ÀæPÁgÀ ¸ÀªÉð £ÀA.14/1 zÀQët ¢QÌ£À vÉÆÃqÀÄ 47/1, 48/1, 49/1
EªÀÅUÀ¼À £ÀqÀÄªÉ EzÉ."
19. To a question of the Court, CW1 replied as
follows :
" £ÁåAiÀiÁ®AiÀÄzÀ ¥Àæ±Éß: MAzÀÄ ªÉÃ¼É vÉÆÃqÀÄ ¸ÀªÉð £ÀA.14/1,
47/1, 48/1, 49/1gÀ UÀrAiÀÄ°è EzÀÝgÉ ¤±Á£É ¹-1 ªÀÄvÀÄÛ ¹-2 gÀ°è
J.©.¹. MvÀÄÛªÀj CAvÀ vÉÆÃj¹zÀÄÝ ºÉÃUÁUÀÄvÀÛzÉ?
GvÀÛgÀ: ¸ÀzÀåzÀ ¹ÜwAiÀÄAvÉ vÉÆÃqÀÄ ¢PÀÄÌ §zÀ¯Á¬Ä¹zÉ.
DzÀÝjAzÀ FUÀ vÉÆÃqÀÄ ¸ÀzÀj ¸ÀªÉð £ÀA§ÄæUÀ¼À UÀrUÀ¼À £ÀqÀÄªÉ E®è.
DzÀÝjAzÀ 'J', '©', '¹' CAvÀ MvÀÄÛªÀj vÉÆÃj¸ÀzÉÝãÉ. vÉÆÃqÀÄ ¢PÀÄÌ
§zÀ¯Á¬Ä¹zÀ §UÉÎ £ÀªÀÄä PÀbÉÃjAiÀÄ°è zÁR¯ÉUÀ¼ÀÄ E®è. £ÀªÀÄä
E¯ÁSÉAiÀÄ zÁR¯ÉAiÀÄ°è vÉÆÃqÀÄ £ÉÃgÀªÁVzÉ. ªÀ¸ÀÄÛ ¹ÜwAiÀÄ°èAiÀÄÆ
¸ÀºÀ vÉÆÃqÀÄ £ÉÃgÀªÁVzÉ. £Á£ÀÄ ¤±Á£É ¹-1 ªÀÄvÀÄÛ 2 gÀ°è ªÀ¸ÀÄÛ
¹ÜwAiÀÄ vÉÆÃqÀ£ÀÄß PÉA¥ÀÄ §tÚ¢AzÀ vÉÆÃj¹zÉÝãÉ.
£ÀPÁ±ÉAiÀÄ°ègÀĪÀAvÀºÀ vÉÆÃqÀ£ÀÄß ¤Ã° §tÚ¢AzÀ vÉÆÃj¹zÉÝãÉ.
vÉÆÃqÀÄ £ÀPÁ±ÉAiÀÄ°è EzÀÝAvÉ vÉÆÃr£À PÀÄgÀĺÀÄUÀ¼ÀÄ ¸ÀzÀåPÉÌ d«ÄãÀ°è
PÁtĪÀÅ¢®è.
¥Àæ±Éß: vÉÆÃqÀÄ £ÉʸÀVðPÀªÁV gÀ¸ÉÛAiÀÄ ¢QÌ£À°è §zÀ¯Á¬Ä¹zÉAiÉÄÃ
CxÀªÁ AiÀiÁgÁzÀgÀÄ §zÀ¯Á¬Ä¹zÁÝgÉAiÉÄÃ?
"GvÀÛgÀ: vÉÆÃr£À ¢PÀÌ£ÀÄß ¥ÀlÖt ¥ÀAZÁ¬ÄÛAiÀĪÀgÀÄ
§zÀ¯Á¬Ä¹zÀ §UÉÎ ªÁ¢AiÀÄÄ ºÉýzÀ. £À£ÀUÉ »ÃUÉ ¥ÀlÖt
¥ÀAZÁ¬ÄÛAiÀĪÀgÀÄ vÉÆÃr£À ¢PÀÌ£ÀÄß §zÀ¯Á¬Ä¹zÀ E¸À« UÉÆwÛ®è.
£ÀªÀÄä PÀbÉÃjAiÀÄ°è ®¨sÀå«gÀĪÀ vÉÆÃr£À £ÀPÁ±É ¥ÀÄgÁvÀ£ÀªÁzÀzÀÄÝ
CAzÀgÉ ¸ÀĪÀiÁgÀÄ 100 ªÀµÀð »A¢£ÀzÀÄÝ ¸ÀªÉð £ÀA.14/1 gÀ°è
vÉÆÃrUÉ CAvÀ AiÀiÁªÀÅzÉà eÁUÀ ºÉÆÃV®è. vÉÆÃrUÉ eÁUÀªÀ£ÀÄß ¸ÀªÉð
£ÀA.47/1, 48/1, 49/1 gÀ°è£À eÁUÉAiÀÄ£ÀÄß vÉUÉzÀÄPÉÆArzÁÝgÉ. F ¸ÀªÉð
£ÀA§ÄæUÀ¼À MlÄÖ vÉÆÃqÀÄUÀ¼À «¹ÛgÀt 13.75 ¸ÉAmïì DVgÀÄvÀÛzÉ. F §UÉÎ
£ÀªÀÄä PÀbÉÃjAiÀÄ°è zÁR¯É¬Ä®è. £Á£ÀÄ ¸ÀªÉð £ÀA.47/1, 48/1, 49/1
C¼ÀvÉ ªÀiÁrzÉÝãÉ. ¸ÀªÉð £ÀA.47/1, 48/1, 49/1 EªÀÅUÀ¼À «¹Ûtð 7.24
¸ÉAmïì DUÀÄvÀÛzÉ. ¸ÀªÉð £ÀA. 47/1, 48/1, 49/1£ÀÄß £Á£ÀÄ C¼ÀvÉ
ªÀiÁr®è CAzÀgÉ ¸ÀjAiÀÄ®è. ¤±Á£É ¹-1 ªÀÄvÀÄÛ 2 gÀ°è PÉA¥ÀÄ §tÚzÀ
vÉÆÃqÀÄ ¸ÀªÉð £ÀA. 47/1, 48/1, 49/1 EªÀÅUÀ¼À ªÀÄzsÀåzÀ°è ºÁAiÀÄÄÝ
ºÉÆÃUÀÄvÀÛzÉ JAzÀgÉ ¸ÀjAiÀÄ®è. ªÉÆzÀ®Ä vÉÆÃqÀÄ MgÉPÉÆÃgÉAiÀiÁV
ºÀjzÀÄÝzÀÝjAzÀ FUÀ CzÀ£ÀÄß £ÉlÖUÉ ºÀjAiÀÄĪÀAvÉ ªÀiÁqÀ®Ä ¥ÀlÖt
¥ÀAZÁ¬ÄÛAiÀĪÀgÀÄ ªÀ¸ÀÄÛ ¹ÜwAiÀÄAvÉ vÉÆÃqÀ£ÀÄß PÀnÖzÁÝgÉ JAzÀgÉ £À£ÀUÉ
UÉÆwÛ®è. £Á£ÀÄ ¥ÀæwªÁ¢UÉ ¸ÀºÁAiÀÄ ªÀiÁqÀ®Ä ªÀ¸ÀÄÛ ¹ÜwUÉ «gÀÄzÀÞªÁV
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20. He deposed that the property marked as 'B'
and 'C' in Exs.C1 and C2 were the tiled roof house and the
pigsty which was attached to Sy. No.48/1.
21. The fact that Sy.Nos.47, 47/1, 48/1 and 49/1
were owned and possessed by the plaintiff and her family
members is not in dispute. It is also not in dispute that
the aforesaid survey numbers lay on the north of Sy.
Nos.14/1 and 14/2. Ex.P4 is a rough sketch prepared by
the erstwhile Municipality of Mercera which indicates that
Sy. Nos.14/1 and 48/1 and 47/1 were separated by a
stream. This document was prepared on 06.11.1946.
Ex.P7 is a sketch prepared by the Madikeri City
Municipality which indicated that defendant No.3 had
encroached 1½ cents in the land bearing Sy. No.47/1.
Ex.P22 is a sketch prepared by PW3 which indicates that
other than the stream separating Sy. Nos.47/1 , 48/1 and
14/1 a stream marked in red runs though the land bearing
Sy. Nos.47/1, 48/1 and 49/1. Beyond this stream marked
in red, defendant No.3 had encroached into 3½ cents of
land in Sy. Nos.47/1 and 49/1. The Commissioner's
report, on the contrary, indicates that 0.900 cents marked
as B in Ex.C1 and 0.625 cents marked as C in Ex.C1 are
the areas occupied by "tiled roof house" and the "pigsty"
respectively. He has stated in the sketch that a portion
marked as A, B and C are encroached by the plaintiff.
However, the stream which is shown in blue colour which
was earlier running zigzag seems to be now straightened.
As per Ex.D9, the area in Sy.No.14/1 is 66 cents and is
shown to be a vacant land and what is allegedly
encroached is 0+12ft./2 x 100ft. and this survey was
conducted in the year 1968. The notification under Ex.D3
also indicates the area as 66 cents. Ex.D5 is dated
18.11.2000 which is a letter addressed to the Chief Officer
of Town Municipal Council, Madikeri by defendant No.1
requesting him to remove the encroachment of 4½ cents
by the plaintiff. Likewise, Ex.D6 is another letter
addressed to defendant No.3, Deputy Commissioner on
08.09.1998 where too, defendants admit that plaintiff had
encroached into 4¼ cents of land belonging to it. Ex.D7 is
a letter addressed by Town Municipal Council, Madikere on
05.09.1992 which also evidences that plaintiff had
constructed a building in Sy. No.14/1. It is, however, seen
from Ex.D-10 that a tiled roof house is found in 0.01 cent
of Sy. No.47 and 0.02 cents of Sy. No. 48. The existence
of these two tiled roof house is also forthcoming from the
properties mentioned in O.S. 144/1971, Ex.D12.
22. The learned counsel for the defendants
submitted that the schedule of the property which was
allotted to the father of plaintiff pursuant to a decree in
O.S. No.144/1971 disclosed the northern boundary of Sy.
No. 47/1 as a stream and therefore, stated that anything
beyond the stream was owned by the defendants. The
photographs produced at Ex.D14, 15 and 16 show that a
stream runs between two properties and therefore, the
parties have understood for long that this stream
separates the two properties owned by plaintiffs and
defendants. The buildings found in Ex.D14, 15 and 16
undoubtedly are the buildings constructed by the plaintiff.
These buildings have been in existence from the year 1968
atleast i.e., even before the Waqf Act, 1995 came into
force. This is evident from Ex.D19 dated 08.03.1975
which is a notice addressed by the defendant No.3 to the
father of the plaintiff where it is stated as follows;
"My client is the President of the said Mosque
and as such managing the said properties on behalf
of the Mosque and the community. He assumed
office recently and on verification, to his surprise
he found that at about five cents of land out of Sy.
No. 14/1 was encroached by you. The southern
boundary of Sy. 14/1 is a municipal drain. Beyond
the municipal drain and on the other side you have
landed properties. You have trespassed into the
mosque land and encroached the same. This
encroachment was done subsequent to 1968 as the
management of the said mosque became weak on
account of mis-understanding and party in the
community. About two years back you have even
constructed a small building in the encroached area
illegally and without obtaining permission from the
Municipal Council. You have no manner of right
over the the encroached land as the same is a
Trust property."
23. The aforesaid documentary evidence proves
beyond doubt that the plaintiff and her father were in
possession of the property which is the alleged encroached
portion of Sy. No.14/1 belonging to defendant No.3 from
the year 1968 and onwards, to the knowledge of the
defendant No.3. Since the plaintiff has admitted that the
northern boundary of Sy. No.47/1 is a stream and in view
of the sketch prepared by CW1, the area where the tiled
roof house and pigsty are constructed, can easily be said
to be lying within Sy. No. 14/1, as the same is beyond the
stream. However, since the parties have understood the
stream to be the dividing line between the two properties
and have allowed the status to continue for nearly 50
years, the question that arise is, whether the defendants
No.1 and 2 can attempt to now recover possession of this
encroached portion by exercising power under Section 54
of the Act in the year 1999?
24. Section 107 of the Waqf Act, 1995 reads as
follows:
"107. Act 36 of 1963 not to apply for
recovery of 'Waqf' properties : Nothing
contained in the Limitation Act, 1963 shall apply to
any suit for possession of immovable property
comprised in any Waqf or for possession of any
interest in such property."
25. Section 54 of the Waqf Act which relates to
removal of encroachment from the Waqf property reads as
follows:
"54. Removal of encroachment from
[Waqf] property.--(1) Whenever the Chief
Executive Officer considers whether on receiving
any complaint or on his own motion that there has
been an encroachment on any land, building, space
or other property which is Waqf property and,
which has been registered as such under this Act,
he shall cause to be served upon the encroacher a
notice specifying the particulars of the
encroachment and calling upon him to show cause
before a date to be specified in such notice, as to
why an order requiring him to remove the
encroachment before the date so specified should
not be made and shall also send a copy of such
notice to the concerned mutawalli.
(2) The notice referred to in sub-section (1)
shall be served in such manner as may be
prescribed.
(3) If, after considering the objections,
received during the period specified in the
notice, and after conducting an inquiry in such
manner as may be prescribed, the Chief Executive
Officer is satisfied that the property in question is
waqf property and that there has been an
encroachment on any such Waqf property, [he
may, make an application to the Tribunal for grant
of order of eviction for removing] such
encroachment and deliver possession of the land,
building, space or other property encroached upon
to the mutawalli of the waqf.
(4) The Tribunal, upon receipt of such
application from the Chief Executive Officer, for
reasons to be recorded therein, make an order
of eviction directing that the waqf property
shall be vacated by all persons who may be in
occupation thereof or any part thereof, and cause a
copy of the order to be affixed on the outer door or
some other conspicuous part of the waqf property:
Provided that the Tribunal may before
making an order of eviction, give an
opportunity of being heard to the person
against whom the application for eviction has
been made by the Chief Executive Officer.
(5) If any person refuses or fails to comply
with the order of eviction within forty-five days
from the date of affixture of the order under sub-
section (2), the Chief Executive Officer or any other
person duly authorised by him in this behalf may
evict that person from, and take possession of, the
waqf property."
26. Though the encroachment was long prior to
the Waqf Act, 1995, the defendants ought to have taken
steps to recover possession in the manner known to law
within the time prescribed under Section 66-G of the Waqf
Act, 1954. Section 107 of the Waqf Act, 1995 cannot now
be exploited by the defendants to contend that the
proceedings to recover possession was justified as Section
107 of the Waqf Act, 1995 applied to those cases of
encroachment subsequent to the year 1995. Even
otherwise, the defendant had not initiated any "suit" for
possession and therefore, Section 107 of the Act does not
apply. Since the defendants have slept over their rights
for nearly 50 years, the status quo of the property cannot
now be altered to remove the encroachment and to
recover the property of the Waqf.
27. In that view of the matter, the Tribunal was
justified in declaring that the pigsty laid by the plaintiff, lay
within Sy. No. 14/1. However, since the plaintiff was in
possession of said portion of Sy. No. 14/1, for nearly 50
years, his right as a person in settled possession, cannot
be disturbed. Hence the Tribunal was justified in granting
perpetual injunction restraining the defendants from
dispossessing the plaintiff from suit property. In view of
the above, this Revision Petition lacks merit and the same
is dismissed.
Sd/-
JUDGE
hnm
