Mohammad Sha And Others vs Sayed Sindh Baig Peer Saheb
2023 Latest Caselaw 6081 Ori

                      ORISSA HIGH COURT: CUTTACK
AFR
                           W.P(C) NO. 8139 OF 2007

          In the matter of an application under Articles 226 and 227
          of the Constitution of India.
                                   ---------------

Mohammad Sha and others ..... Petitioners

-Versus-

          Sayed Sindh Baig Peer Saheb
          and Kabarsthan, Bije Pipili Sasan
          and others
                                                 .....    Opp. Parties

               For petitioners    : M/s S.K. Mishra, S.K.
                                    Samantray, A. Kejriwal and
                                    O.P. Sahu, Advocates.

For opp. parties : M/s Rati Mohanty and Bikash Rath, Advocates [O.Ps. No.1 & 2)

Md. Fayaz and Md. Riaz, Advocates [O.P. No. 3]

P R E S E N T:

THE HONOURABLE DR. JUSTICE B.R.SARANGI AND THE HONOURABLE MR JUSTICE M.S. RAMAN

Date of Hearing: 11.05.2023:: Date of Judgment: 16.05.2023

DR. B.R. SARANGI, J. The petitioners, who were the defendants no.

1 to 8 before the State Wakf Tribunal, Odisha, Cuttack in Case No. W.T.(O)/O.A.6/2005, have approached this Court

seeking to quash the judgment dated 12.06.2007 passed by

the Wakf Tribunal in dismissing their counter claim filed

against the plaintiff-opposite party no.2 and defendant

no.9-opposite party no.3, despite the fact that the

petitioners are recorded as Marfatdars in respect of suit

schedule properties and the same had never been acquired

or treated as wakf properties.

2. The factual matrix of the case, in brief, is that

the land appertaining to plot no.7 measuring an area of

Ac.0.53 dec. with noting as "Kabarsthan" and plot no.9

measuring an area of Ac.0.75 dec. with noting as "Peer

Asthan" under khata no.164 as per 1927 Sabik Settlement

ROR of Mouza-Pipili Sasan under 'Stitiban' status stood

recorded in the name "Sindh Baig Saheb" marfat Boudi Sha

and Roshan Sha, both are sons of Munsab Sha (ancestors

of present petitioners). The said suit plots correspond to

1966 hal settlement plot no.7 measuring an area of Ac.

0.53 dec. under kissam 'Debasthali' and plot no.9

measuring an area of Ac 0.80 dec. under kisam 'patita'

status 'sthitiban' under khata no.213 which stood recorded

in favour of Faizal Sha and Mahmad Sha both are sons of

Baudi Sha. The aforementioned suit plots further

correspond to plot no.6 measuring an area of Ac.0.53 dec.

under kisam 'Kabarsthan' and plot no.7 measuring an area

of Ac. 0.80 dec. under kisam 'Debasthali' under hal khata

no.424 as per hal consolidation R.O.R finally published in

the year 1994 which has been recorded in the name of the

present petitioners, who had been arrayed as defendant

nos.1 to 8 in the suit.

3.1 The aforesaid RORs consistently recognises the

right, title and interest of the petitioners over the aforesaid

properties and their long standing possession over the

same. They have also planted trees over the suit properties

in order to maintain the ecological balance and have been

maintaining and utilising the graveyard for their own family

purpose. The present petitioners' possession over the

aforesaid properties is evident from the rent receipt granted

by the State Government in lieu of payment of rent, who

have also recognised their lawful ownership and possession

of the land in question.

3.2 The opposite party no.2 along with some other

persons tried to grab the aforesaid properties from the

petitioners, though he has no manner of right either to

represent the "institution" or to act as the President of the

Managing Committee of the institution "Sayed Singh Baig

Peer Saheb and Kabarsthan" bije Pipili Sasan. The opposite

party no.2 along with his associates gave threat of

interfering in the management and possession of the suit

properties for which the petitioners instituted a suit to

restrain opposite party no.2 and others permanently from

interfering with their rights of Seva puja of the Peer,

enjoyment, management and possession of the same. The

said suit was registered as civil suit no. 15 of 2005 before

the Civil Judge (Senior Division), Puri. With an ulterior

motive, the opposite party no.2 in connivance with opposite

party no.3, constituted a managing committee for the first

time through a general meeting convened on 07.01.2005

headed by opposite party no.2 and the said committee was

approved by opposite party no.3 on 18.01.2005. In the said

committee, petitioners no.1 and 6 were included as

members, though they had never given consent for the

same.

3.3. The opposite party no.2, subsequent to the

formation of the managing committee, instituted a suit vide

W.T.(O)/O.A. No. 6/2005 before the Wakf Tribunal, Odisha,

Cuttack claiming himself to be the representative of the

"institution" impleading the present petitioners as

defendants no.1 to 8 and opposite party no.3 as defendant

no.9, praying for following reliefs.

"It be declared that the suit properties are (public) wakf properties and the suit institution is being represented and managed by duly constituted Managing Committee headed by Plaintiff No.2 as is President.

It be declared that the Consolidation R.O.R. in favour of the Defendant No.1 to 8 deleting the real owner 'the institution' prepared on 1.4.1994 as void, inoperative and violation of principles of natural justice and statute.

have no semblance of personal right, title or interest over the suit schedule property.

The defendant no.1 to 8 be permanently injuncted from alienating the suit properties or any portion thereof as well as from cutting trees or changing the nature of land."

3.4 The plaintiff-opposite parties no.1 and 2

contended that the parties being Suni Muslims are

governed under principles of Hanafi School of

Mohammedan Law. The suit properties described in the

plaint were recorded in favour of the plaintiff no.1 in 1927

Settlement ROR, The Peersthan of plaintiff no.1 situates

over suit plot No.9. The adjoining suit plot no.7 is used by

the local Muslims as Kabarstahan. There exist two Jack-

fruit trees, one Neem tree and one Kasi tree over plot no.7

and one Banayan tree, one Bel tree, four Date trees and six

palm trees over suit plot no.9. Plot no.7 measuring an area

of Ac. 0.53 dec. became insufficient as burial ground by

efflux of time due to the rising population. The local

Muslims are using the adjoining (Gochar-Anabadi) plot

no.5 measuring an area of Ac. 0.97 dec. as well as plot no.8

measuring an area of Ac. 0.14 dec under khata no. 619 as

their graveyard amalgamating the same with their original

graveyard relating to suit plot no. 7 and this possession is

within the knowledge of the Government.

3.5 The further contention of the plaintiffs was that

in 1927 Settlement ROR the plaintiff no.1-Peer was

represented through Baudi Sha and Roshan Sha, sons of

Munsab Sha and after their death one Sk. Mussair, son of

S.K. Karhu was appointed as Marfatdar of plaintiff no.1.

Defendants no. 1 to 8 are the successors of the Sabik

recorded Marfatdars. Sk. Hussain managed the institution

for sometime but, later on, remained indifferent for which

local Muslims suo motu offered prayers, but name of Sk.

Hussain remained recorded as Marfatdar for name sake

only. According to the plaintiffs, after constitution of Wakf

Board, the suit properties were surveyed, registered and

notified in the Odisha Gazette dated 20.02.1976 as Wakf

properties. The said gazette notification having not been

challenged has been crystallised as final and conclusive.

3.6 It is further pleaded that though civil suit bearing

C.S. No. 15 of 2005 was filed by the defendants no. 1 to 8

before the Court of Civil Judge (Sr. Division), Puri, but the

Wakf Board was not made a party to the suit. For the first

time from the suit, the plaintiffs came to know that the

father of defendants no. 1 to 4 and defendant no.5 in

collusion with the settlement authorities managed to record

their names in 1966 ROR deleting the name of the plaintiff

no.1. Since the civil suit had been filed much after

establishment of the Wakf Tribunal, the same was not

maintainable in view of bar under Section 85 of the Wakf

Act, 1955. Since the consolidation ROR is void and illegal

and the local villagers brought the aforesaid facts to the

knowledge of Wakf Board, the opposite party no.3, after

proper inquiry, advised the villagers to constitute a

managing committee. Accordingly, a general meeting of the

local Muslims was convened on 07.01.2005, which formed

a managing committee consisting of 13 members headed by

plaintiff no.2 as its President as the same was approved by

the opposite party no.2 on 18.01.2005. Therefore,

contended that the petitioner-defendants no.1 to 8 had no

semblance of exclusive right, title and interest over the suit

properties, the right of Mutawalliship is not inherited but

the petitioners are trying to interfere in the management of

the institution.

3.7 Along with the suit, the plaintiffs also filed a

petition under Order 39 Rules 1 and 2 of the C.P.C. vide

I.A. No. 3 of 2006 with a prayer to restrain the petitioners

from alienating the suit land, cutting the trees from the suit

land and changing the nature and character of the suit

land pending disposal of the suit. The present petitioners,

being the defendants no.1 to 8, filed their objection stating

that though no temporary injunction was granted in I.A.

No. 5 of 2005 (arising out of C.S. No. 5 of 2005), but the

learned District Judge, Puri granted order of status quo in

F.A.O. No. 40 of 2005, which was filed against the order of

dismissal passed in I.A. No. 5 of 2005. However, the said

appeal was dismissed subsequently. The Wakf Tribunal

passed an order on 02.07.2005 directing both the parties to

maintain status quo over the suit land and not to change

the nature and character of the suit lands and not to cut or

sale any tree from the suit land till the disposal of the

Original Application.

3.8 The present petitioners could not file their

written statement in time and, as such, they were set ex-

parte and on the basis of the petition filed by the plaintiffs

under Order 8, Rule-5 (2) of the C.P.C., the suit was

decreed by State Wakf Tribunal on 30.08.2005 in favour of

the plaintiffs. But the suit of the plaintiffs filed for

declaration that the consolidation ROR in respect of suit

plot nos. 5 and 8 issued in favour of the petitioners deleting

the name of the real owner as void was dismissed.

3.9 The petitioner-defendants no. 1 to 8, who were

set ex-parte, filed a petition vide I.A. No. 8 of 2005 under

Order-9, Rule-13 C.P.C. for setting aside the ex-parte

judgment dated 30.08.2005, but the same was dismissed

by the Wakf Tribunal vide order dated 13.01.2006. As a

consequence thereof, the petitioners moved this Court by

filing W.P.(C) No. 1171 of 2006 challenging the order dated

13.01.2006 as well as the judgment dated 30.08.2005

passed by the Wakf Tribunal.

3.10 This Court, after hearing both the parties, vide

order dated 04.09.2006, allowed the writ petition, quashed

the impugned order dated 13.01.2006 and directed

restoration of W.T. (O)/O.A. No. 6 of 2005 of the State Wakf

Tribunal, Odisha, Cuttack to file, subject to payment of cost

of Rs.2000/- to the plaintiff-opposite parties no.1 and 2 and

to file written statement by 18.09.2006. It was further

directed that the trial of the suit be expedited so as to

complete the same within a period of six months.

3.11 The petitioners filed their written statement

within the time stipulated by this Court refuting the

averments made in the plaints and also lodged a counter

claim. Though the plaintiffs had undertaken before this

Court to participate and cooperate in the case for early

disposal of the same, but in fact tried to delay the

proceeding on one plea or other, for which the suit was

dismissed for default vide order dated 20.01.2007 by the

Wakf Tribunal, Cuttack. The plaintiffs then filed a petition

under Rule 12 of the Wakf Tribunal Rules read with Order

9 Rule 9 of the C.P.C. to restore the suit, i.e., W.T. (O)/O.A.

No.6 /2005 to file. After hearing the parties, the Wakf

Tribunal, vide order dated 12.04.2007, held that there was

no sufficient cause preventing the plaintiff-opposite parties

no. 1 and 2 to remain absent on the date of hearing on

20.01.2007, therefore, the application of the plaintiff-

opposite parties no. 1 and 2 for restoration of the suit was

rejected being devoid of any merit.

3.12 Notwithstanding the fact that the suit filed by the

plaintiffs dismissed for default, the Wakf Tribunal

proceeded with the hearing of the counter claim filed by the

present petitioners. In the written statement, the

defendants no. 1 to 8, the petitioners herein, challenged the

maintainability of the suit being hit by law of limitation,

cause of action, barred under the provisions of the Odisha

Consolidation of Holding and Prevention of Fragmentation

of Land Act, 1972, res judicata and want of locus standi.

The present petitioners stated that their ancestors had

installed the Tomb of Sindh Baig Peer Saheb, who was a

Muslim Saint. As the ancestors were disciples of the

aforesaid Saint, after his demise, they buried the said Saint

in plot no.9 and in his memory they installed the tomb over

the grave of the Saint. They usually performed the rituals

by offering prayer of Fatiha Daroed and Seerini besides the

tomb on each 'Tursday' and observed the ceremony 'Urs

Mubark' every year. The present petitioners, being the

successors, enjoyed the suit property subsequently as

'Marfatdars' and their performance of Sevapuja is

hereditary with the knowledge of every one. It was further

pleaded in the written statement that the settlement and

consolidation authorities have recognised their right, title,

interest and possession over the suit land and such

recording in Sabik and Hal R.O.Rs have never been

challenged by any one at any point of time. Therefore, the

notification dated 20.02.1976 was passed behind the back

of the present petitioners without conducting proper inquiry

and, as such, the same is not binding on them and over the

property which exclusively belonged to the present

petitioners. Consequently, the managing committee

constituted and approved by opposite party no.3 on

18.01.2005 is illegal. It was further specifically stated that

there exist two other Kabarsthan in the locality where the

villagers of Pipil Sasan were buried. The present petitioners

in their written statement also raised counter claim against

the plaintiff-opposite parties which reads as under:-

"The Govt. Notification dated 20.2.1976 in respect of the suit property be declared as illegal, inoperative and void.

The Managing Committee of Sayed Sindh Baig Peer Saheb and Kabarsthan Bije Pipili Sasan constituted and approved by Defendant No.9 on 18.1.2005, by the Muslim villagers in their general meeting dated 7.1.2005 be declared illegal.

The right of the Defendant Nos. 1 to 8 be declared as lawful for the purpose of Sevapuja of the Peer Sayed Sindh Baig, enjoyment, management and possession of the property under Hal Khata No.424 as per consolidation R.O.R. of the year 1994.

The Institution, i.e. Peer Sayed Sindh Baig Saheb and the Kabarsthan as recorded in Hal Consolidation Khata No. 424 under Plot No.6 and 7 be declared as private institution of Defendant nos. 1 to 8.

The Plaintiff be permanently restrained from interfering with the possession of the defendant Nos. 1 to 8 in respect of the suit property as per the counter claim schedule."

3.13 The opposite party no.2 filed written statement to

the counter claim filed by the present petitioners

challenging the same on the ground of law of limitation and

principles of estoppels and being hit by the provisions of

Wakf Act. He contended that neither the civil court nor the

revenue court have jurisdiction to adjudicate any dispute

relating to Wakf property as provided under Section 85 of

the Wakf Act.

3.14 The opposite party no.3, who was defendant

no.9, did not file written statement to the counter claim

filed by the present petitioners, but was allowed to

participate in the hearing of the counter claim.

3.15 The Wakf Tribunal, on the basis of the pleadings

available, framed as many as nine issues for consideration.

During course of hearing of the counter claim, the plaintiff-

opposite parties no. 1 and 2 examined five witnesses

including opposite party no.2 himself as P.W.2 and also

proved certain documents to establish their claim marked

as Exts.1 to 9. The present petitioners examined three

witnesses, including defendant no.3 himself as D.W.1, and

also proved certain documents marked as Exts.A to D. The

opposite party no.3 also examined one witness as D.W.4,

who happens to be the Wakf Inspector, Odisha Board of

Wakf and also proved certain documents marked as Exts.

A-9 to D-9.

3.16 On the basis of the pleadings available on record

and documents produced by the parties both documentary

and oral, the Wakf Tribunal came to the following findings

in its order 12.06.2007 by dismissing the counter claim

filed by the present petitioners.

"The evidence of D.W.1 is not helpful for contesting defendants.

The application submitted by Faijalli Sha and Ahmad Sha for registration of Wakf is marked as Ext. A-9. Defendant Nos. 1 to 8 have raised objection to this document as it was produced from the custody of Defendant No. 9 (Orissa Board of Wakf) who support the case of the plaintiffs. Defendant No. 9 is a statutory body. Ext. A-9 is a document more than 30 years old maintained during official course of business. So, it cannot be lightly brushed aside for mere objection by Defendant Nos. 1 to 8.

The document inspires confidence that the registration was made at the instance of Faijalli Sha and Ahmad Sha who were ancestors of

cannot change the official act of their ancestors at a later stage like this and they are stopped to do so.

had no prior knowledge of the Gazette Notification dated 20.02.1976 and only came to know after receipt of summon from this Tribunal.

Defendant Nos. 1 to 8 are not only interested in property but also with the Wakf and therefore, the limitation of one year as contemplated under Section 6 (1) of the Wakf Act, 1954 is applicable to them.

Counter claim is not hit U/S. 89 of the Wakf Act, 1995.

Orissa Gazette Notification dated 20.2.76 notifying the suit property except property under Khata No. 619 as Wakf property and managing

Committee formed under approval of Defendant No.9 on dated 18.1.2005 are according to law.

Suit property under Consolidation Khata No. 424 appertaining to Plot No. 6 and 7 are not private properties of Defendant No.1 to 8.

Counter claim is hit by law of limitation provisions of Wakf Act and principle of estoppels.

Defendant Nos. 1 to 8 cannot claim title by way of adverse possession.

Plaintiffs are not entitled to any relief as prayed for by them."

3.17 Hence, against dismissal of their counter claim,

the petitioners have filed the present writ petition

impugning the judgment dated 12.06.2007 passed by the

State Wakf Tribunal, Odisha, Cuttack in Case No.

W.T.(O)/O.A.6/2005.

4. Mr. S.K. Mishra, learned counsel appearing for

the petitioners contended that the Wakf Tribunal, while

scrutinizing the materials available on record, failed to

appreciate the correct proposition of law vis-a-vis Section 6

(1) of the Wakfs Act, 1954 to the extent that the limitation

of one year, as prescribed under the Act, is not at all

applicable to the present petitioners, as they are not

interested in the Wakf. He further contended that the Wakf

Tribunal has misconstrued the provisions of Sub-section (8)

of Section 25 of the Wakfs Act, 1954 together with the

Gazette Notification dated 20.02.1976, which was

published after the registration. Though Sub-section (8) of

Section 25 of the Act stipulates that in case of Wakf created

before the commencement of the Act, every application for

registration shall be made within three months from such

commencement, and in case of Wakf created after such

commencement, within three months from the date of the

creation of the Wakf, but, in the instant case, the aforesaid

provisions have not been followed. The reason being, in the

case at hand, the application was filed on 16.04.1968, the

suit property was allegedly registered as Wakf property on

14.03.1974 and the notification was published on

20.02.1976. Therefore, the notification is vitiated. It is

further contended that Section 25 of the Wakfs Act, 1954

specifically provides that the application under Section 25

(1) has to be filed by the 'Mutawallis', but the petitioners or

for that matter, their ancestors, being not the 'Mutawallis'

but 'Marfatdars', the application purportedly filed by the

ancestors of the petitioners cannot be sustained. Though

several other grounds have been urged in the petition, but

Mr. Mishra, while addressing the Court, confined his

contention to the aforementioned grounds.

5. Though opposite parties no.1 and 2 had entered

appearance through M/s. Mira Ghose, R. Mohanty, B.

Rath, N.S. Ghose and M. Roula, but during pendency of

this writ petition Mira Ghose left for her heavenly abode.

Even though the names of her associates are reflected in

the cause list and opposite parties no.1 and 2 are

represented by them, they did not appear in spite of several

opportunities given to them, nor any other counsel

represented opposite parties no.1 and 2. Since it is an old

matter of the year 2007, this Court is not inclined to grant

any adjournment to enable opposite parties no.1 and 2 to

appear and participate in the hearing. But, as it appears,

opposite parties no.1 and 2 have filed their counter affidavit

justifying the stand of Wakf Tribunal and have contended

that the order passed by the Wakf Tribunal is well justified

and does not require any interference by this Court.

6. Md. Fayaz, learned counsel appearing for

opposite party no.3 contended that the stand taken by the

opposite parties no.1 and 2 in their counter affidavit is well

justified and, thereby, the dismissal of the counter claim

filed by the present petitioners cannot be said to illegal or

illogical and, therefore, sought for dismissal of the writ

petition.

7. Therefore, having heard Mr. S.K. Mishra, learned

counsel appearing for the petitioner and Md. Fayaz, learned

counsel appearing for opposite party no.3 and upon

perusing the records, more particularly, the counter

affidavit filed on behalf of opposite parties no.1 and 2, since

pleadings between the parties have been exchanged, the

writ petition is being disposed of finally at the stage of

admission with the consent of learned counsel appearing

for the parties.

8. During the course of hearing, it was strenuously

urged by Mr. S.K. Mishra, learned counsel appearing for the

petitioners that the Wakf Tribunal has misconstrued the

provisions of Sub-section (8) of Section 25 of the Wakfs Act,

1954 together with the Gazette Notification dated

20.02.1976, which was published after the registration. To

appreciate the legality of such contention, Section 25(8) of

the Wakfs Act,1954 is extracted hereunder:-

"In the case of wakfs created before commencement of this Act, every application for registration shall be made within three months from such commencement and, in the case of wakfs created after such commencement, within three months from the date of the creation of the wakf."

On perusal of the aforesaid provision, it is made clear that

every Wakf, whether created before or after commencement

of the Act, shall be registered at the office of the Board and

in case the Wakfs created before the commencement of the

Act, every application for registration shall be made within

three months from such commencement and in case of

Wakf created after such commencement within three

months from the date of creation of the Wakf. Therefore, by

the above provision, a mandate has been put that Wakf has

to be registered within a period of three months. Nothing

has been placed on record to show that the Wakf has been

registered within three months. Even after amendment to

the Act, the provision, with regard to the bar to the

enforcement of right on behalf of unregistered wakfs, as

contained in Section 87 of the Wakf Act, 1995, has been

omitted with effect from 01.11.2013. Though such a plea

was advanced by the present petitioners by filing their

written statement and also contending the same in the

counter claim, but the Wakf Tribunal has not dealt with the

very same provision. Thereby, the findings arrived at by

Wakf Tribunal, without considering such provision, cannot

be sustained in the eye of law.

9. In view of such position, the judgment dated

12.06.2007 passed by the State Wakf Tribunal, Odisha,

Cuttack passed in Case No. W.T.(O)/O.A.-06/2005 is

hereby quashed and matter is remitted back to the Wakf

Tribunal for re-adjudication of the counter claim of the

petitioners taking into consideration the provisions

contained in Section 25(8) of the Wakf Act, 1954 by

affording opportunity of hearing to all the parties.

10. The writ petition stands disposed of accordingly.

However, there shall be no order as to costs.

                                                                       (DR. B.R. SARANGI)
                                                                             JUDGE

           M.S. RAMAN, J.                        I agree.


                                                                         (M.S. RAMAN)
                                                                             JUDGE


                             Orissa High Court, Cuttack
                             The 16th May, 2023, Arun




Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA

Designation: Asst. Registrar-cum-Sr. Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 16-May-2023 18:27:59