Karnataka High Court

Imam Sahib S/O Mehtab Saheb Died By Lrs vs Nabi S/O Ghudu Saheb on 25 July, 2024

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                                                     WP No. 202673 of 2014




                              IN THE HIGH COURT OF KARNATAKA

                                     KALABURAGI BENCH

                           DATED THIS THE 25TH DAY OF JULY, 2024

                                           BEFORE
                             THE HON'BLE MR JUSTICE R.NATARAJ

                         WRIT PETITION NO.202673 OF 2014 (GM-CPC)
                   BETWEEN:

                   1.   IMAM SAHIB S/O MEHTAB SAHEB DIED BY LRS.,

                        A)RAHMATBEE W/O IMAM SAHEB,
                        AGED ABOUT 65 YEARS OCC: HOUSEHOLD AND
                        AGRICULTURE

                        B) SALEEM S/O IMAM SAHEB,
                        AGED ABOUT 50 YEARS, OCC : AGRICULTURE

                        C) SHABBIR S/O IMAMB SAHEB,
                        AGED ABOUT : 24 YEARS, OCC : AGRICULTURE

                        D) RAZIA BEGUM D/O IMAM SAHEB,
Digitally signed        AGED ABOUT 35 YEARS, OCC : HOUSE HOLD AND
by
MARKONAHALLI            AGRICULTURE
RAMU PRIYA
Location: HIGH
COURT OF                E) SHAHAEDA BEGUM @ SAIRA
KARNATAKA               D/O IMAM SAHEB,
                        AGED ABOUT 25 YEARS, OCC : HOUSE HOLD AND
                        AGRICULTURE

                        (ALL R/O BHOSGA, TQ: BASAVA KALYAN, DIST:
                        BIDAR)

                                                                ...PETITIONERS
                   (BY SRI. G. G. CHAGASHETTI, ADVOCATE)
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                                  WP No. 202673 of 2014




AND:

1.   NABI S/O GHUDU SAHEB
     AGED ABOUT 65 YEARS OCC : AGRICULTURE

2.   GOUSUDDIN S/O MASTANSAB ALI, DIED BY LRS.,

     A) KHADAR SAHEB S/O LATE GOUSUDDIN,
     AGED ABOUT 69 YEARS,
     OCC: BUSINESS,

     B) KALE SAHEB S/O LATE GOUSUDDIN,
     AGED ABOUT 65 YEARS, OCC: BUSINESS

     C) ABDUL S/O LATE GOUSUDDIN,
     AGED ABOUT 60 YEARS, OCC: BUSINESS

3.   MODIN SAHEB S/O MASTAN SAB
     AGED ABOUT 80 YEARS, OCC: AGRICULTURE

4.   PEER SAHEB S/O MASTAN SAB
     AGED ABOUT 75 YEARS, OCC: AGRICULTURE

5.   MALANG SAHEB SINCE DECEASED BY LRS.,

     A) SUNNAMMA W/O LATE MALANGSAB
     AGED ABOUT 80 YEARS, OCC :HOUSEHOLD

     B) HUSSAIN S/O LATE MALANGSAHEB
     AGED ABOUT 60 YEARS, OCC : MISTRI

     C) NABISAB S/O LATE MALANGSAHEB
     AGED ABOUT 55 YEARS, OCC : DRIVER

     D) ISAQ S/O LATE MALANGSAHEB
     AGED ABOUT 45 YEARS, OCC : LABOUR

6.   SILAR SAHEB S/O MAEHTAB SAB
     AGED ABOUT 75 YEARS, OCC : AGRICULTURE

7.   MALIK SAHEB S/ON MAEHTAB SAB
     AGED ABOUT 60 YEARS, OCC : AGRICULTURE
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                                 WP No. 202673 of 2014




8.   ISMAIL SAHEB S/O CHAND SAHEB
     SINCE DEAD BY LRS.,

     A) ALLAUDDIN S/O ISMAIL SAHEB
     AGED ABOUT 59 YEARS, OCC: AGRICULTURE

9.   MAHBOOB SAHEB S/O ISMAIL SAHEB
     SINCE DEAD BY LRS.,

     A) MAHTAB BEE W/O MALEN SAHEB
     AGED ABOUT 49 YEARS, OCC: HOUSE HOLD
     (SINCE DIED. LRS ARE EXEMPTED BY COURT ORDER
     AS MEHTAB BEE, WAS PLACED EX-PARTE)

10. KHAJA SAHEB S/O ISMAIL SAB
    AGED ABOUT 65 YEARS, OCC : AGRICULTURE

11. KARNATAKA STATE BOARD OF WAKFS
    THROGUH ITS SECRETARY,
    BANGALORE
    (DELETED AS PER ORDER OF LOWER COURT)

17. OSMAN S/O MAHTAB SAHEB
    AGED ABOUT 60 YEARS, OCC : AGRICULTURE

                                         ...RESPONDENTS

(BY SRI. MIR MOHAMMAD ALI, ADVOCATE FOR RESPONDENT
NOS.1 TO 9;
SRI. P. S. MALIPATIL, ADVOCATE FOR RESPONDENT NO.11;
RESPONDENT NOS.10 AND 12 ARE DEAD)

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
ISSUE A WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE
WRIT OR DIRECTION BY QUASHING ORDER DATED 10.12.2013
PASSED IN O.S. NO. 46 OF 2010, BY THE CIVIL JUDGE
(SR.DN.) BASAVAKALYAN VIDE ANNEXURE-A. CONSEQUENTLY
ALLOW THE MEMO IN O.S. NO. 46 OF 2010, ON THE FILE OF
THE CIVIL JUDGE (SR.DN.), BASAVAKALYAN FILED BY THE
PETITIONER.
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                                            WP No. 202673 of 2014




    THIS PETITION, COMING ON FOR ORDERS THIS DAY,
ORDER WAS MADE THEREIN AS UNDER:

CORAM:        HON'BLE MR JUSTICE R.NATARAJ


                             ORAL ORDER

(PER: HON'BLE MR JUSTICE R.NATARAJ)

The petitioners are before this Court challenging an order

dated 10.12.2013 passed by the Senior Civil Judge,

Basavakalyan (henceforth referred to as 'the Trial Court') in

O.S. No.46/2010 by which the Trial Court proceeded with the

suit from the stage it was transferred to it by the Wakf

Tribunal, Gulbarga (for short, 'the Tribunal') and called upon

the petitioners to address arguments.

2. The petitioners filed O.S. No.45/1997 on the file of

the Civil Judge (Sr. Dn.), Basavakalyan for declaration of their

title in respect of land bearing Sy. No.162 measuring 15 acres

09 guntas situate at Bhosga village, Basavakalyan, Bidar

District and for cancellation of a decree passed in O.S.

No.196/1993 by the Civil Judge, Basavakalyan, Bidar. After the

defendants entered appearance and filed their written

statement, plaintiffs / petitioners herein made a request before

the Court that the issue involved in the suit was whether the

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suit property was wakf property or not and therefore, at the

request of the petitioners / plaintiffs, the suit was returned to

be re-presented before the Tribunal. Consequent thereto, the

plaint was ordered to be returned for re-presentation which was

done. The Tribunal registered the suit as O.S. No.8/2003 and

took up the case. The Tribunal recorded the evidence of the

parties. When the case was set down for arguments, the

petitioners again filed a memo to transfer the suit to the Civil

Court contending that the suit did not involve the question

whether the property belonged to Wakf or not. Based on this

memo, the Tribunal in terms of the order dated 31.08.2010,

held that the subject matter of the suit and the relief sought for

did not fall within the purview of the Waqf Act, 1995 (for short

'the Act') and hence, it did not have jurisdiction to decide the

suit. Consequently, it returned the plaint to the petitioners /

plaintiffs for re-presentation before the appropriate Civil Court.

Consequent thereto, the petitioners re-presented the suit

before the Civil Court which was re-numbered as O.S.

No.46/2010. The Trial Court noticed that the Tribunal had

already recorded the evidence of both the parties and the

question of jurisdiction was raised at the stage of arguments

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and therefore, held that the parties have to proceed from the

stage it was transferred by the Tribunal and in terms of the

impugned order, directed the parties to address arguments.

3. The petitioners are therefore, before this Court in

this writ petition contending that the Trial Court cannot rely

upon the evidence recorded by the Tribunal as the evidence

recorded by it was without jurisdiction. He, therefore,

contended that the petitioners / plaintiffs have to be provided

with an opportunity to lead fresh evidence. He further

contended that the petitioners did not produce any

documentary evidence to establish their title and if this Court

were to hold that the suit had to be taken up for consideration

from the stage the Tribunal returned the plaint, the petitioners

be granted an opportunity to lead evidence.

4. Per contra, the learned counsel for the contesting

respondents submitted that the suit which was initially filed

before the Civil Court was transferred at the behest of the

petitioners and the petitioners did not dispute the jurisdiction of

the Tribunal till the case was set down for arguments before

the Tribunal. Therefore, he contends that the petitioners cannot

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now backtrack and claim that the Tribunal did not have

jurisdiction. He submits that since the Tribunal had returned

the plaint for re-presentation before the Civil Court at the

instance of the petitioners, the evidence already recorded

before the Tribunal cannot be eschewed and the case before

the Civil Court has to proceed from the stage of arguments. He

further contended that ample opportunity was granted to the

petitioners before the Tribunal to lead evidence and if the

petitioners have not availed of the opportunity by producing

necessary documents, having done so, at their own risk and

hence, no further indulgence be shown.

5. I have considered the submissions of the learned

counsel for the petitioners and the learned counsel for the

contesting respondents.

6. This Court in terms of the order dated 28.07.2016,

held that the conduct of the petitioners in filing a suit before

the Civil Court and then getting it transferred to the Tribunal

and getting it transferred to the Civil Court after evidence was

recorded before the Tribunal, was clearly an abuse of the

process of law. Petitioners were therefore directed to place on

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record the copy of the application filed before the Civil Court as

well as the memo filed before the Wakf Tribunal on 26.08.2010.

Unfortunately, the petitioners have not produced either the

application filed before the Civil Court or the memo dated

26.08.2010.

7. Be that as it may, the fact that the suit was initially

filed in O.S. No.45/1997 before the Civil Judge (Sr. Dn.),

Basavakalyan, for declaration and consequential reliefs is not in

dispute. It is also not in dispute that the petitioners were the

ones who filed an application for return of the plaint for re-

presentation before the Tribunal contending that the suit

involved adjudication of the question whether the property was

a wakf property or not. Since the petitioners / plaintiffs

themselves contended that such a question was involved, the

Civil Court rightly returned the plaint to the petitioners for re-

presentation before the appropriate Wakf Tribunal. The

petitioners after having presented the case before the Tribunal

and having participated in the trial before the Tribunal could

not have filed a memo before the Tribunal stating that the

question whether the suit property belonged to wakf or not, did

not arise in the case. No doubt the Tribunal had exercised its

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discretion in holding that the proceeding before it did not

involve the question whether the property was a wakf property

or not, yet the return of the plaint was at the instance of the

plaintiffs / petitioners herein. This was a clear case of forum

shopping on the part of the plaintiffs / petitioners herein to

either suit their convenience or to keep the litigation pot

boiling. The petitioners cannot take advantage of a wrong

committed by them.

8. When the evidence was recorded before the

Tribunal, the petitioners had subjected themselves to the

jurisdiction of the Tribunal and it was not the case of the

petitioners that the Tribunal did not provide opportunity to the

petitioners to lead evidence or cross-examine the witnesses

examined by the defendants in the suit. Therefore, the

evidence recorded before the Tribunal cannot be held without

jurisdiction and cannot be eschewed from the record. The suit

after being returned by the Tribunal is re-presented before the

Civil Court and hence, the Civil Court was entitled to proceed

with the suit from the stage when the records were returned for

re-presentation. Reliance in this regard is placed on a

judgment of a coordinate Bench of this Court in Govindappa

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and others v. Smt. Venkatamma and others [RSA

No.992/2020 decided on 20.04.2023], where it was held as

follows:

"27. Mere examination-in-chief does not constitute as an evidence unless it is tested in cross-examination. Even if examination-in-chief of plaintiff and defendant No.1 is taken on record, which was in fact recorded in the earlier suit, at the most amounts to irregularity and the same does not constitute substantial procedural error, which would vitiate the entire proceedings conducted by the Court after representation.

28. If defendant No.1 has not objected at the time of cross-examination of the plaintiff, he cannot be permitted now to object at this stage. Defendant No.1, who is guilty of not objecting at the earliest point of time, cannot take advantage and frustrate a lawful trial by a Competent Court."

9. In that view of the matter, there is no error

committed by the Trial Court in directing the parties to go on

with the arguments in the suit. However, since it is stated by

the learned counsel for the petitioners that the petitioners could

not produce documentary evidence in support of their claim for

declaration of title in respect of the suit property, a conditional

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opportunity deserves to be granted to the petitioners so as to

enable them to participate in the proceedings before the Trial

Court. Hence, the following:

ORDER

i. The writ petition is allowed in part.



     ii.    The impugned order dated 10.12.2013
            passed      by   the     Senior        Civil     Judge,
            Basavakalyan, eschewing the evidence
            already     recorded        before         the    Wakf
            Tribunal,    Gulbarga,          is   upheld.       The

petitioners are granted one opportunity on the next date of hearing before the Trial Court to produce all documents available with them in support of their claim and mark them in evidence. However, they shall not be allowed to lead any oral evidence. This is, however, subject to the petitioners paying cost of Rs.1,00,000/- (Rupees One Lakh) payable to the respondents per capita excluding respondent No.11 before the Trial Court on the next date of hearing.

iii. After the documents are marked, the Trial Court shall provide an opportunity to the defendants to cross-examine the

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plaintiffs' witness/es on day-to-day basis. If the plaintiffs do not co-operate with the defendants in concluding the evidence, the Trial Court shall proceed with the suit - O.S. No.46/2010 based on the available evidence and dispose off the suit.

iv. Having regard to the fact that the suit was originally filed in the year 1997, the Trial Court is requested to dispose off the suit as early as possible at any rate within a period of three months from the date of the conclusion of evidence.