Madhya Pradesh High Court
Jamuna Prasad Lodhi vs Madhya Pradesh Waqf Board on 1 August, 2024
1 CR-469-2022
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 1 st OF AUGUST, 2024
CIVIL REVISION No. 469 of 2022
JAMUNA PRASAD LODHI
Versus
MADHYA PRADESH WAQF BOARD AND OTHERS
Appearance:
Mr. Himanshu Mishra - Advocate for petitioner.
Mr. Utkarsh Agrawal - Advocate for respondent no.1.
Mr. Ankit Saxena - Advocate for respondent nos.2 to 4.
Mr. Adarsh Hira - Advocate for intervenor - Mr. Haseeb Ullah Khan.
WITH
CIVIL REVISION No. 616 of 2022
JAVED ALAM @ RAHIL (DEAD) THROUGH HIS LEGAL
HEIRS SMT. FAUJIYA ALAM AND OTHERS
Versus
JAMUNA PRASAD LODHI AND OTHERS
Appearance:
Mr. Ankit Saxena - Advocate for petitioners.
Mr. Himanshu Mishra - Advocate for respondent no.1.
Mr. Utkarsh Agrawal - Advocate for respondent no.2.
Mr. Adarsh Hira - Advocate for intervenor - Mr. Haseeb Ullah Khan.
Reserved on : 13.05.2024
Pronounced on : 01.08.2024
These civil revisions having been heard and reserved for orders, coming on for
pronouncement on this day, Justice Devnarayan Mishra pronounced the following:
Signature Not Verified
Signed by: JULIE SINGH
Signing time: 01/08/2024
6:40:38 pm
2 CR-469-2022
ORDER
Vide this common order, Civil Revision No.469 of 2022 and Civil
Revision No.616 of 2022 are being disposed of.
2. These revision petitions have been filed by the petitioners
under Section 83(9) of the Waqf Act, 1995 read with Section 115 of the
Code of Civil Procedure being aggrieved with the order dated
25.07.2022 passed by the Waqf Tribunal Bhopal (M.P.) in case no.26 of
2014.
3. In nutshell, the case of the petitioner in Civil Revision No.469
of 2022 before the Waqf Tribunal was that of his ownership and
possession agricultural land bearing khasra numbers 4/1, 6, 7, 8 and 10
total admeasuring 56.25 acres is situated at Village Rajmau, Tahsil-
Goharganj, District-Raisen (M.P.). The forefathers of the petitioner had
purchased that land from Colonel Iqbal Khan and since then, the
petitioner and his family members were in the possession of land. Due
to death of Colonel Iqbal Khan and forefathers of petitioner, the sale-
deed could not be executed but after the death of Colonel Iqbal Khan,
his son namely Abdul Aziz has executed an agreement dated
22.12.1974 after receiving the consideration amount of Rs.80,000/-. But
due to unavoidable reasons, the sale-deed was not executed between the
parties. By the continuous possession, the petitioner has become the
owner of that land. In 1999-2000, defendant no.1/Madhya Pradesh Waqf
Board disputed petitioner's ownership and Tahsildar issued the
3 CR-469-2022
notification for auction on 07.04.1999. When the petitioner came into
knowledge of the above fact, he enquired and found that in 1954
Colonel Iqbal Khan had executed a Waqf-deed and disputed land was
registered by Registration No.54/305/555 dated 19.12.1961 but the land
was never handed over to Waqf Board.
4. The plaintiff filed a suit before the Waqf Tribunal and also filed
an injunction application that was dismissed. Being aggrieved of that, he
preferred an appeal before the High Court of M.P. that was registered
vide W.P. No.2872 of 2001 and an injunction order was passed in that
order and that is effective till today. Power of attorney was executed in
favour of defendant no.2 but with collusion to the employees of the
defendant no.1, defendant no.2 make appointed himself as Mutawalli
and admitted that this property is Waqf property. When this fact came to
the knowledge of the plaintiff, he filed a writ petition before the High
Court of M.P. that was registered as W.P. No.3413 of 2004 and
injunction was issued till final disposal of the case.
5. Additional Secretary to M.P. State, Civil Court Bhopal, State
Waqf Board Bhopal had decided and passed the judgment and ordered
that land of Colonel Iqbal Khan is not a Waqf property and gazette
notification has been declared ultra vires not binding upon the plaintiff.
Thereafter, he has filed a suit for declaration that the aforesaid gazette
notification is not binding upon him as he is the owner and possession
holder of the disputed property and defendant be restrained from
interfering in the possession of the suit property. The written statement
4 CR-469-2022
was filed in the suit by the parties. Issues were framed. The plaintiff has
filed an affidavit of the examination-in-chief.
6. During trial, the respondent no.1/Madhya Pradesh Waqf Board
filed an application under Rule 32 of M.P. Waqf Rules 2000 on
10.02.2022 on the ground that the disputed land is registered as waqf
property as registration number 54/305, survey no.555 and first time,
this was published in the gazette of the State Government on 24.11.1961
and second time in 1983. Thus, the disputed property was published
always as a waqf property and the suit was filed in 2014 as Waqf
Act,1995 as amended in 2013. Sections 6 and 7 of the Waqf Act, the suit
can be filed within a year. Thus, the suit is barred by law.
7. Once, the plaintiff by the reply dated 23.02.2022 has admitted
the application but subsequently, filed the detailed reply and written
arguments. After hearing, learned counsel for the parties, Waqf Tribunal
has dismissed the suit. Hence, this revision.
8. Learned counsel for the petitioner has submitted that Writ
Petition No.3413 of 2004 was filed and this petition was disposed of on
13.08.2015 with the following directions which reads as under:-
"In my opinion, the case is already fixed before the Wakf
Board, for evidence the petitioner can lead the evidence and mention
all the facts before the Wakf Board to the effect that the property for
which the proceedings have been initiated is not a Wakf property.
The Board may decide the same in accordance with law.
With the aforesaid observations, the writ petition is disposed
5 CR-469-2022
of up to the decision by the Wakf Board. The interim order passed by
this Court on 02.11.2014 shall continue.
No order as to costs.
C.C. as per rules."
9. Learned counsel for the petitioner further argued that the Waqf
Tribunal has wrongly dismissed the suit and he has further submitted
that where the third party is involved in the case, then the limitation for
third party is prescribed is beyond one year from the date of notification
as per the judgment of the Indore Bench of this Court in Civil Revision
No.130 of 2022 decided on 26.04.2022. Bar of Section 6 is not
applicable in the present case.
10. Learned counsel for the petitioner has further submitted that
the facts and law were involved in the case and the plaintiff/petitioner
has challenged the gazette notification by which, the disputed property
was shown as Waqf property and as per the order of the State
Government 24.11.1962 (Annexure-P/3) in Civil Revision No.616 of
2022, it was ordered to hold an enquiry and after that passed an
appropriate order but that was not done. Hence, only on the basis of that
disputed property is registered as Waqf property in the gazette
notification, the Bar is not applicable and the Waqf Tribunal was bound
to decide the suit as per the direction of this Court.
11. Learned counsel for the respondents submitted that Arbitration
Tribunal has dismissed the suit as once the property is registered in the
name of Waqf Board. As per Section 6 of the Waqf Act, 1995, the suit
6 CR-469-2022
can be filed within a year and no suit is maintainable once, it is
published as a Waqf property.
12. Learned counsel appearing on behalf of the respondent nos.2-
A to 2-C has supported the contentions of the plaintiff and the parties
have also relied upon the judgments of Sk. Rahmatullah Vs. Board of
Auqaf, West Bengal and Anr. 2022 SCC Online Cal 3545, Saraswati
Industrial Syndicate Ltd. Vs. Commissioner of Income Tax Haryana,
Rohtak 1999(3) SCC 141, Kiran Devi Vs. Bihar State Sunni Waqf
Board and Ors. (2021)15 SCC 15, Asfaq-ul-haq Khan Vs. Maharasthra
State Board 2016 SCC Online Bom 8393 and Nelson Motis Vs. Union
of India and Another (1992)4 SCC 711.
13. I have gone through the records of the case no.26 of 2014
filed before the Waqf Tribunal and the documents annexed with that.
14. Admittedly, this suit was filed on 16.05.2014 before the
Tribunal Bhopal. The plaintiff/petitioner has stated that he has filed the
writ petition vide W.P. No.2872 of 2001 and injunction was granted in
his favour and the copy of the order is annexed with the file.
15. The plaintiff/petitioner has also submitted that the land was
registered as Waqf property and he has also pleaded that notification
was challenged and by that the State Government has ordered for the
enquiry and thus, he has challenged the notification in the gazette of the
State Government. The trial Court has framed the issue no.2.
7 CR-469-2022
16. In the order of this Court passed in W.P. No.3413 of 2004
dated 13.08.2015, it was clearly directed that as the case is already fixed
for the evidence before the Waqf Board and the Waqf Board shall decide
the same in accordance with law and on that basis, the petition was
disposed of.
17. Prior to this suit, the plaintiff/petitioner has filed the suit no.47
of 1999 against the Waqf Board and the suit was withdrawn with the
permission of the Court on 01.11.2002 on the ground that he had to
challenge the notifications. Thus in nutshell, in this case, when the
notification of the property has been challenged and pleaded that the
State Government has annulled the gazette notification (Annexure-P/5).
In that situation when it is disputed that the property is in the list of waqf
as auqaf, then it was proper for Waqf Tribunal to record the evidence
and after that finally decide the suit as per facts and law so that dispute
may be adjudicated to its finality. But the Tibunal, without recording the
evidence of the parties, dismissed the suit summarily.
18.With the aforesaid observation, order of the trial Court cannot
be maintained as the Tribunal has wrongly exercised its jurisdiction.
19. Hence, the revision petitions filed by the petitioners are
hereby allowed and the impugned order dated 25.07.2022 passed by the
M.P. Waqf Tribunal, Bhopal (M.P.) in Case No.26 of 2014 (Jamuna
Prasad Lodhi Vs. Madhya Pradesh Waqf Board and Ors.) is set aside.
The matter is remitted back to the Tribunal with a direction that the
8 CR-469-2022
Tribunal shall restore the suit to its original number and decide the same
afresh on merits after recording the evidence and affording sufficient
opportunity of hearing to both the parties.
20. Parties are directed to appear before the M.P. Waqf Tribunal
Bhopal on 22.08.2024 for further proceedings.
21. Copy of this order be sent to the concerned Tribunal.
22. With the aforesaid, both the civil revisions are hereby
disposed of.
23. Certified copy as per rules.
(DEVNARAYAN MISHRA)
JUDGE
julie
