Madhya Pradesh High Court
Mehboob Hussain vs Afroz Khan on 17 August, 2023
Author: Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
SECOND APPEAL No. 3559 of 2019
BETWEEN:-
1. MEHBOOB HUSSAIN S/O HAJI PIR FAZALHUSSAIN
SHAH KADRI, AGED ABOUT 60 YEARS, R/O:
KHILCHIPUR, DISTRICT : RAJGARH (MADHYA
PRADESH), PRESENT ADDRESS : A-WING 104 ,
SITA PARK, MIRA ROAD, EAST THANE , MUMBAI ,
(MAHARASHTRA)
2. RAZZAK HUSSAIN S/O HAJI PIR FAZAL HUSSAIN
SHAH KADRI, AGED ABOUT 47 YEARS, ADD:
KHILCHIPUR, DIST RAJGARH, M.P. PRESENT
ADDRESS: NAV NAMITA PARK, B- 2, 702, MEERA
ROAD, THANE MUMBAI (MAHARASHTRA)
3. MOHAMMAD HUSSAIN S/O HAJI PIR FAZAL
HUSSAIN SHAH KADRI, AGED ABOUT 45 YEARS,
ADD: KHILCHIPUR, DISTRICT RAJGARH, M.P.
PRESENT ADDRESS: NAV NAMITA PARK, B- 2, 702,
MEERA ROAD, THANE MUMBAI
(MAHARASHTRA)
4. RHIMUNNISHA D/O HAJI FAZAL HUSSAIN SHAH
KADRI, AGED ABOUT 40 YEARS, ADD:
KHILCHIPUR, DIST RAJGARH, M.P. PRESENT
ADDRESS: NAV NAMITA PARK, B- 2, 702, MEERA
ROAD, THANE MUMBAI (MAHARASHTRA)
5. KHURSHIDA SAIYAD W/O MEHBOOB HUSSAIN
SHAH KADRI, AGED ABOUT 55 YEARS, ADD:
KHILCHIPUR, DIST RAJGARH, M.P. PRESENT
ADDRESS: A-WING 104, SITA PARK, MIRA ROAD,
EAST THANE , MUMBAI , (MAHARASHTRA)
.....APPELLANTS
(BY SHRI MANISH KUMAR VIJAYWARGIYA - ADVOCATE)
AND
1. AFROZ KHAN S/O ISMAIL KHAN, AGED ABOUT 35
YE A R S , KHILCHIPUR DISTRICT : RAJGARH
(MADHYA PRADESH)
Signature Not Verified
Signed by: SHILPA
NAGDEVE
Signing time: 17-08-2023
16:25:32
2
2. ISHAAK KHAN S/O GAFOOR KHAN, AGED ABOUT
37 YEARS, R/O: KHILCHIPUR, DIST. RAJGARH
(MADHYA PRADESH)
3. HAZI PARVEZ S/O SULEMAN KHAN, AGED ABOUT
55 YEARS, R/O: MOHNI MANSION, 3RD FLOOR,
BLOCK NO. 2 AND 3, MORI ROAD MUMBAI
(MAHARASHTRA)
4. FIROZ SHAH KADRI S/O ABDUL GAFFAR, AGED
ABOUT 48 YEARS, R/O: BALMIYA CROSS LINE,
SAHIL MANSION, FIRST FLOOR , ROOM NO. 40 ,
MAAHIM, MUMBAI (MAHARASHTRA)
5. SHEIKH MUKHTARSHAH S/O SHEIKH YAKUB,
AGED ABOUT 52 YEARS, R/O: NAASALWALA
BUILDING, SECOND FLOOR, ROOM NO. 7, KEDAL
ROAD, MAAHIM MUMBAI (MAHARASHTRA)
6. SHEIKH IMRAN KADRI S/O SHEIKH AHMED
ISMAIL, AGED ABOUT 47 YEARS, R/O: 24-C, FLAT
NO 4, FIRST FLOOR, DURGAH MOHALLA
MUMBAI (MAHARASHTRA)
7. ABDUL RAIS KADRI S/O ABDUL ALI MUSALMAN
R/O: NEAR HUSSAIN MASJID BHAGATSINGH
MARG, BIAORA DIST RAJGARH (MADHYA
PRADESH)
8. ABDUL LATIF SHAH S/O ALENABI MIJBANI, AGED
ABOUT 48 YEARS, R/O: SOMAVARIYA,
KHILCHIPUR, DIST RAJGARH (MADHYA
PRADESH)
9. NAZZU QURESHI S/O FAKIR MUHAMMAD, AGED
ABOUT 45 YEARS, R/O: SOMVARIYA, KHILCHIPUR
DIST RAJGARH (MADHYA PRADESH)
10. BAFAATI KHAN S/O RAJU JI MUSALMAN PIJARA
R/O: SUBHASH CHOWK, KHILCHIPUR, DIST.
RAJGARH (MADHYA PRADESH)
11. STATE OF M.P. THROUGH COLLECTOR, DISTT.
RAJGARH (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MOEED ALI BOHRA - ADVOCATE FOR THE RESPONDENTS)
Reserved on :- 11.07.2023
Signature Not Verified
Signed by: SHILPA
NAGDEVE
Signing time: 17-08-2023
16:25:32
3
Pronounced on :- 17.08.2023
.......................................................................................................
This appeal having been heard and reserved for orders coming on for
pronouncement this day, HON'BLE JUSTICE PRANAY VERMA
pronounced the following:
ORDER
Learned counsel for the appellants is heard on the question of admission.
2. This appeal under Section 100 of the CPC has been preferred by the
unsuccessful plaintiffs/appellants being aggrieved by the judgment and decree
dated 31.08.2019 passed in Civil Appeal No.26-A/2018 by the I st Additional
District Judge, Rajgarh, District Rajgarh (Biora) affirming the judgment and
decree dated 08.03.2016 passed in Civil Suit No.29-A/2012 by the Civil Judge,
Class-II, Khilchipur, District Rajgarh whereby their claim for declaration of title
to the suit property and for permanent injunction restraining the defendants from
interfering with their possession over the same has been dismissed.
3. Plaintiffs contend that their father Haji Pir Fazal Hussain Shah Kadri
was the owner of the suit property. He had constructed a Dargah over the same
during his lifetime and had left it open and was only to be buried therein after his
death. He had created Pir Yajudani Trust for management of the Dargah and
had made an application for its registration but proceedings upto making of
publication only were conducted. The terms and conditions for management of
trust were not followed after his death nor did the trustees ever take care of
such trust. In any case, the application was given by him only for management
of the property and the property itself had not been transferred by him. The suit
property is still recorded in the revenue records in name of plaintiffs and they
are owners of the same. During his lifetime, Haji Pir Fazal had executed a will on
Signature Not Verified
Signed by: SHILPA
NAGDEVE
Signing time: 17-08-2023
16:25:32
07.04.2006 in favour of plaintiffs in respect of the suit property hence after his
death, they have become the owners thereof and the trust, if any, created by him
automatically came to an end. Defendants are however not permitting the
plaintiffs to enter the suit property. On such contentions, suit for declaration
and permanent injunction was instituted by plaintiffs.
4. Defendants 1 to 3, 5, 6, 8 and 9 filed their separate written statements
contesting the claim submitting that Haji Pir Fazal had created the Yajudani
Trust and looked after the same during his lifetime. The suit property is the
property of the trust and is in its occupation. The trust was registered on
03.11.2001 after which the suit property became the properties of the trust and
after death of Haji Pir Fazal has not devolved upon the plaintiffs. No will was
ever executed by Haji Pir Fazal in favour of plaintiffs. Construction has been
made over the entire property and plaintiffs are not in possession thereof and
do not have any title to the same.
5. The Courts below have dismissed the plaintiff's claim finding that Haji
Pir Fazal had formed Yajudani Trust and had got the same registered under the
provisions of M.P. Public Trusts Act, 1951 and had included the suit properties
to be a part of the trust properties. After creation of the trust, it became the
owner of suit properties. Pir Sahab managed the same during his lifetime. After
his death, the suit properties being properties of the trust have not devolved
upon the plaintiffs who have also not proved execution of will dated 07.04.2006
by Haji Pir Fazal in their favour. Plaintiffs are also not in possession of the suit
properties.
6. Learned counsel for the plaintiffs/appellants has submitted that the
judgment and decree passed by the Courts below are illegal and contrary to law.
The finding that plaintiffs are not the owners of the suit property is contrary to
Signature Not Verified
Signed by: SHILPA
NAGDEVE
Signing time: 17-08-2023
16:25:32
the material on record and is perverse. Haji Pir Fazal had executed a will on
07.04.2006 in favour of the plaintiffs hence upon his death, they have become
the owners of the suit property. Plaintiffs had attempted to prove the execution
of the will by filing the affidavit in evidence of its attesting witnesses but they
were won over by defendants hence did not appear for their cross-examination.
Plaintiffs hence filed an application under Order 16 Rule 1 of the CPC for
proving the will by calling the notary, who had notarized the will and the
Advocate, who had identified the testator. The application was however illegally
rejected by the trial Court by order dated 11.09.2015. Plaintiffs have hence been
denied due opportunity to prove the execution of the will. The creation of the
trust by Haji Pir Fazal has not been proved by the defendants though the burden
was upon them to prove the same. No documentary evidence has been adduced
by defendants in that regard. The trust was hence an unregistered trust and not
recognized under the M.P. Public Trusts Act, 1951. The disputed property is
still recorded in name of plaintiffs hence it is apparent that no alleged trust ever
came in existence. It is hence submitted that the judgment and decree passed by
the Courts below be set aside.
7. I have heard the learned counsel for the appellants and have perused
the record.
8. Plaintiffs had themselves pleaded that Haji Pir Fazal had made an
application for registration of the trust but have pleaded that proceedings only
up to the stage of publication were carried out and the trust was never
registered. In any case, upon death of Haji Pir Fazal, since the terms and
conditions on which the trust was created have not been followed, the same
automatically came to an end and suit property became property of plaintiffs.
Signature Not Verified
Signed by: SHILPA
NAGDEVE
Signing time: 17-08-2023
16:25:32
Such contention of plaintiffs is not acceptable. On the record is application
made by Haji Pir Fazal before the Registrar, Public Trust, District Rajgarh for
registration of the trust. Therein, the properties which were to be properties of
the trust have been detailed which include the suit property. On the application,
revenue case was dully registered vide order-sheets (Exhibit D-4). Publication
as required was made in the Official Gazette dated 11.08.2000 evidenced by
Exhibit D-20. No objection was received hence order was passed by the
Registrar, Public Trust on 03.11.2001 (Exhibit D-5) registering the trust as a
public trust. The scheme of the trust is Exhibit D-7. The contention of plaintiffs
that only application was made but the trust was not registered hence cannot be
accepted.
9. From the aforesaid documents, it is apparent that application was
made for registration of the trust including the suit property as its property and
upon following the due procedure, the trust was registered having its own
scheme and detailing its properties which included the suit property. Upon
registration of the trust, the suit property became the property of the public
trust. The order registering the trust as a public trust and the entries made by the
Registrar in accordance with findings recorded as per Section 7(1) of the Act,
1951 are final and conclusive under Sub-Section (2) thereof since no Civil Suit
against the findings was instituted as per provisions of Section 8 of the Act.
Upon registration of the public trust, the suit property became the property of
the trust and even Haji Pir Fazal had no independent title therein hence upon his
death, the plaintiffs do not acquire any title. Even if there has been any
mismanagement and violation of terms and conditions on which the public trust
was created, it would not result in the trust coming to an end as has been
contended by the plaintiffs. In case of mismanagement or even on failure of the
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Signed by: SHILPA
NAGDEVE
Signing time: 17-08-2023
16:25:32
original object of the trust, the remedy is to apply before the Registrar, Public
Trust under Section 26 of the Act, 1951 and such a declaration that the trust has
come to an end cannot be made more so by the Civil Court.
10. The attesting witnesses to the will dated 07.04.2006 (Exhibit P-3) set-
up by the plaintiffs have not been examined by him. Though, their affidavit in
evidence were filed but they were not produced for cross-examination. Though,
plaintiffs contend that they were won over by defendants but only for that
reason, their affidavit in evidence cannot be considered. The fact remains that
they did not enter the witness box hence the affidavit in evidence filed by them
become meaningless. Application was filed by the plaintiffs for summoning the
notary who had notarized the will and the Advocate who had identified the
testator in front of the notary, but the same was rejected by the trial Court by
order dated 11.09.2015 by observing that the same is not bona fide. A will can
be proved by examination of its attesting witnesses as per Section 63(c) of the
Indian Succession Act. Since the attesting witnesses were alive, they ought to
have been produced before the Court by plaintiffs for their evidence but the
same has not been done. The will could not have been proved by the notary
who had notarized it or the Advocate who had identified the testator infront of
the notary. Even if they had tendered their evidence, the same would have been
wholly insufficient for proof of the will as their statements would not have
satisfied the legal requirements. The trial Court has hence not committed any
error in rejecting the application filed by plaintiffs. The finding of the Courts
below that the will has not been proved by plaintiffs hence cannot be faulted
with.
11. Thus, as a result of the aforesaid discussion, I do not find that the
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Signed by: SHILPA
NAGDEVE
Signing time: 17-08-2023
16:25:32
Courts below have committed any error in dismissing the plaintiff's claim. The
findings recorded by them are perfectly just and legal and based upon a proper
appreciation of the evidence on record. No fault can be found with the
reasonings or the findings of the Courts below. No substantial question of law
arises for determination in this appeal which is consequently dismissed in limini.
(PRANAY VERMA)
JUDGE
Shilpa
Signature Not Verified
Signed by: SHILPA
NAGDEVE
Signing time: 17-08-2023
16:25:32
