Patna High Court
Bihar State Sunni Wakf Board vs Manju Singh on 30 September, 2024
Author: Arun Kumar Jha
Bench: Arun Kumar Jha
IN THE HIGH COURT OF JUDICATURE AT PATNA
CIVIL MISCELLANEOUS JURISDICTION No.39 of 2018
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1. Bihar State Sunni Wakf Board Haz Bhawan, Harding Road, Patna, through
its Chief Executive Officer of Bihar State Sunni Wakf Board, Haz Bhawan,
Harding Road, Patna.
2. Immamuddin Hussain @ Imammuddin Khan, S/o Late Sadique Hussain, R/o
Village-POPS- Kopo, District- Saran, Mutauwali of Wak Estate No. 1891,
Bari Masjid, Kopa, District- Chhapra.
... ... Petitioner/s
Versus
1. Manju Singh W/o Late Jagarnath Singh, resident of Village-Kopa, P.S.-
Kopa, and District-Saran at Chapra.
2. Manoj Kumar Singh, S/o Late Jagarnath Singh,
3. Samresh Singh, S/o Late Sambhunath Singh,
4. Manoj Singh @ Mantu, S/o Late Sambhunath Singh,
5. Sita Devi, W/o Late Sambhunath Singh,
6.1. Rajiv Kumar Singh son of Late Jogindra Singh, Resident of Village-Kopa,
Police Station-Kopa, District-Saran.
6.2. Ranjan Kumar Singh, son of Late Jogindra Singh, Resident of Village-Kopa,
Police Station-Kopa, District-Saran.
7. Nathji Rai @ Natha Rai, S/o Late Buddhu Rai,
8. Krishna Singh, S/o Late Rajgiri Singh,
9. Tarkeshwar Dubey, Son of Baijnath Dubey, Respondent no.1 to 9 is resident
of Village- Kopa, P.s.- Kopa and District- Saran at Chapra.
10. Lalo Begum @ Samshul Nisha, W/o Late Warish Khan.
11. Auranzeb, S/o Late Warish Khan, Both respondent 10 and 11 are residents of
Village- Banpura, P.S.P.O.- Khaira, District- Saran at Chapra.
12. Ziyaul Haque, S/o Late Ramzan Khan,
13. Rabiya Khatoon W/o Mumtaz Khan, Resident of Gudri Bazar, Post Office-
1. Chapra, Police Station-Bhagwan Bazar, District-Saran.
13. Tabassum Khatoon, Wife of Ansar Khan, Resident of Gudri Bazar, Post
2. Office-Chapra, Police Station-Bhagwan Bazar, District-Saran.
13. Sabra Begum, D/o Ziyaul Haque, resident of Village-Kopa, Police Station-
3. Kopa, District-Saran.
13. Sivnani Khan, son of Ziaul Haque, resident of Village-Kopa, Police Station-
4. Kopa, District-Saran.
13. Aasif Zilani Khan, Son of Ziaul Haque, resident of Village-Kopa, Police
5. Station-Kopa, District-Saran.
14. Samada Khatoon, W/o Jumrati Miyan, Daughter of Late Md Ramzan,
15. Taharan Khatoon, Daughter of Late Md Ramzan,
Patna High Court C.Misc. No.39 of 2018 dt.30-09-2024
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16. Wajir Khan, S/o Mohammad ASraf, Respondent 12 to 16 R/o Village-
Garhitee, P.S.P.O.- Bhagwan Bazar, District- Saran at Chapra.
17. Wakila Khatoon, W/o Late Md Imran,
18. Sakil Hasan, S/o Late Md Imran,
19. Md Ikram, S/o Late Noor Mohammad,
21. Human Hussain, S/o Late Hanif Hussain,
22. Kallu Hussain, S/o Late Hanif Hussain,
23. Noor Alam Hussain, S/o Late Hanif Hussain,
24. Aftab Hussain, S/o Late Hanif Hussain, Respondent 17 to 24 are R/o
Village- Kopa, P.S.- Kopa, District- Saran, Chapra.
25. Zaiben Begum, W/o Late Munshi Hussain,
26. Fullmohammad Hussain, S/o Late Mushi Hussain,
27. Meraj Hussain, S/o Late Munshi Hussain,
28. Afsari Khatoon, Daughter of Late Munshi Hussain,
29. Tejan Hussain, S/o Late Sadique Hussain,
30. Rustam Hussain, S/o Late Aziz Hussain,
31. Sajra Begum, W/o Late Qayamuddin Hussain,
32. Jamshed Hussain, S/o Late Qayamuddin Hussain,
33. Gudiya Khatoon W/o Roshan Hussain, resident of Village-Kopa, Police
1. Station-Kopa, District-Saran.
33. Sahjad Khan S/o Roshan Hussain resident of Village-Kopa, Police Station-
2. Kopa, District-Saran.
33. Shabnam Khatoon resident of Village-Kopa, Police Station-Kopa, District-
3. Saran.
33. Neha Khatoon daughter of Late Roshan Hussain resident of Village-Kopa,
4. Police Station-Kopa, District-Saran.
33. Jugnu Khatoon daughter of Late Roshan Hussain, resident of Village-Kopa,
5. Police Station-Kopa, District-Saran.
33. Gulshan Khatoon Daughter of Late Roshan Hussain, resident of Village-
6. Kopa, Police Station-Kopa, District-Saran.
33. Sonam Khatoon, daughter of Late Roshan Hussain, resident of Village-
7. Kopa, Police Station-Kopa, District-Saran.
34. Parwez Hussain, S/o Late Qayamuddin Hussain, Respondent no.25 to 34 is
R/o Village- Kopa, PS- Kopa, Dist- Saran, Chapra.
35. Sudup Hussain, S/o Late Rajjab Hussain,
36. Roshan Hussain, S/o Late Rajjab Hussain,
37. Bibi Saidu Nisha, D/o Late Saheb Hussain,
38. Sheikh Dahari Hussain, S/o Late Asgar Hussain,
39. Bibi Chanda, W/o Doyamat Hussain, Daughter of Late Rajab Hussain,
40. Niyamat Hussain, S/o Late Rajab Hussain, Respondent no.35 to 40 are
Patna High Court C.Misc. No.39 of 2018 dt.30-09-2024
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resident of VillagePOPS- Kopa, District- Saran at Chapra.
41. Majda Begum, W/o Late Ashraf Ali,
42. Sajaullah Siddique, S/o Late Ashraf Ali,
43. Prince Raja, S/o Late Ashraf Ali,
44. Ajaullah, S/o Late Ashraf Ali,
45. Noor Jahan, D/o Late Ashraf Ali,
46. Sadique Siddique, S/o Late Ashraf Ali, Respondent no. 41 to 48 are R/o
P.O.- Kopa, P.S.- Kopa, District- Saran. Presently residing at VillageP.O.-
Nagra, P.S.- Nagra, District- Chhapra, Saran.
... ... Respondent/s
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Appearance :
For the Petitioner/s : Md. Helal Ahmad, Advocate
For the Respondent/s : Mr. Mahesh Narayan Parbat, Sr. Advocate
Mr. Ved Prakash Srivastava, Advocate
Mr. Praveen Prabhakar, Advocate
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CORAM: HONOURABLE MR. JUSTICE ARUN KUMAR JHA
CAV JUDGMENT
Date : 30-09-2024
The present petition has been filed under Article 227
of the Constitution of India for setting aside the order dated
02.07.2015
passed in Misc. Case No. 02 of 2013 by learned 9 th
Additional District Judge, Saran at Chapra, whereby and
whereunder the petition filed by the petitioner no. 2 on
29.05.2015, for transposing himself as appellant no. 2 after
death of original appellant no. 2 Ashraf Ali, was rejected. The
petition has also been filed for setting aside the order dated
16.11.2017 passed in Misc. Case No. 04 of 2015 by learned 9 th
Additional District Judge, Saran at Chapra, whereby and
whereunder the petition to recall the order dated 02.07.2015
passed in Misc. Case No. 02 of 2013 has been rejected.
Patna High Court C.Misc. No.39 of 2018 dt.30-09-2024
2. Shorn of unnecessary details, the facts of the case,
as it appears from the record are that one Sheikh Afzal Hussain
had executed registered deed of Waqf dated 09.11.1943 and
26.08.1967 in respect of certain lands. After execution of
registered Waqf deeds, Sheikh Afzal Hussain appointed himself
as Mutawalli and in the deeds it has also been incorporated who
would be Mutawalli after Sheikh Afzal Hussain. The recitals of
the deeds was to the effect that author of the Waqf or his
descendants would not have right to transfer the properties
comprising in the deed of Waqf. However, Sheikh Afzal Hussain
transferred various Waqf properties having area 5 bigha 6 katha
and 2 dhur in favour of one Sheikh Md. Ramzan on 10.05.1969,
by way of gift deed. Subsequently, Ashraf Ali was appointed as
Mutawalli who, in order to protect the interest of the public and
to preserve the properties of the Waqf so created by Sheikh
Afzal Hussain, informed the Bihar State Sunni Waqf Board that
the respondents were occupying the schedule properties
unauthorizedly. Show cause notice was issued to the
respondents who appeared and filed objection controverting the
claim of the Board, their contention was disallowed by the
Board and steps under Section 36(B) of Waqf Act, 1954 were
taken against the respondents. The matter was forwarded to the
Patna High Court C.Misc. No.39 of 2018 dt.30-09-2024
District Magistrate, Saran at Chapra for removal of
unauthorized possession of respondents from the trust property.
The District Magistrate, Saran at Chapra issued notices against
the respondents who filed objection and objections were
rejected by the District Magistrate vide order dated 31.10.1988
passed in Misc. Petition Case No. 03 of 1988. Against the said
order, the respondents preferred Misc. Appeal Nos. 61 and 62 of
1988 before the learned District Judge, Saran at Chapra which
was subsequently transferred to the court of 3 rd Additional
District Judge, Saran, who after hearing the parties remanded
the matter to Bihar State Sunni Waqf Board with a direction
vide its order dated 30.05.1990. On 14.12.1991, petitioner no. 1,
Secretary, Bihar State Sunni Waqf Board and the then Mutawalli
of Waqf Estate namely, Ali Imam had filed title suit before 1 st
Sub Judge, Chapra which was numbered as Title Suit No. 18 of
1992. The declaration was sought that Schedule I property under
Wakf-ul-aulad dated 26.08.1967 is a public property . Recovery
of possession in respect of 9 bighas 7 dhurs of the property
described in Schedule II excluding the property of Schedule III
was also sought. Title Suit No. 18 of 1992 was ultimately
dismissed by learned Sub Judge-I, Saran at Chapra vide
judgment and decree 13.11.1998. Aggrieved by the said
Patna High Court C.Misc. No.39 of 2018 dt.30-09-2024
judgment and decree, petitioner no. 1 and the then Mutawali
filed first appeal bearing F.A. No. 40 of 1999 before the High
Court. However, vide order dated 29.07.2005 passed in F.A. No.
40 of 1999, the High Court directed for transfer of the memo of
appeal to the court of learned District Judge, who became
competent to hear the appeal in view of valuation being less
than Rs. Two lakhs. Thus, the first appeal came to be transferred
to the learned District Judge and thereafter to the court of Fast
Trac Court No. 1, Saran at Chapra and the first appeal was
renumbered as Title Appeal No. 62 of 2006. The record was
transferred to learned Fast Trac Court No. IV on 27.01.2010 and
the appeal was dismissed for default on 25.02.2011. Coming to
know about the dismissal of the appeal, the then Mutawalli
Ashraf Ali, who was appellant no. 2 in the appeal filed a petition
on 11.04.2013 under Order 41 Rule 19 of the Code of Civil
Procedure (hereinafter 'the Code') vide Misc. Case No. 02 of
2013 before the learned first appellate court for restoration of
the appeal. Ashraf Ali, who had been looking after the pairvi of
the case, died on 28.12.2014 and thereafter, the Waqf Board
vide order dated 28.05.2015 issued under Memo No. 706
constituted Managing Committee vide Waqf State No. 1891 and
Imamuddin Khan @ Immamuddin Hussain was appointed as
Patna High Court C.Misc. No.39 of 2018 dt.30-09-2024
President of the Managing Committee. Imamuddin Khan,
petitioner no. 2 herein. Thereafter, petitioner no. 2 filed a
petition on 29.05.2015 to substitute his name in place of
deceased Ashraf Ali in Misc. Case No. 02 of 2013. It further
appears that the learned Additional District Judge- 9 th, Saran at
Chapra vide order dated 02.07.2015 dismissed the petition filed
by the petitioner no. 2 on 29.05.2015. Thereafter, the petitioners
filed Misc. Case No. 04 of 2015 along with limitation petition
on 18.08.2015 before learned Additional District Judge- 9 th for
setting aside the order dated 02.07.2015 passed in Misc. Case
No. 02 of 2013. Even the said Misc. Case No. 04 of 2015 was
rejected. Thus, the orders are 02.07.2015 and 11.11.2017 are
under challenge before this Court.
3. Learned counsel for the petitioners at the outset
submitted that the Misc. Case No. 02 of 23013 is still pending
and therefore, he does not press his prayer against the order
dated 16.11.2017 passed in Misc. Case No. 04 of 2015 as the
said miscellaneous case was instituted under wrong impression
that Misc. Case No. 02 of 2013 has been disposed of having
been abated. Learned counsel further submitted that the order
dated 02.07.2015 has been passed under wrong interpretation of
law as well as facts. Petitioner no. 2 sought his transposition in
Patna High Court C.Misc. No.39 of 2018 dt.30-09-2024
Misc. Case No. 02 of 2013 in place of original petitioner no. 2
Ashraf Ali, who was the Mutawalli of the Waqf Estate. The
learned Additional District Judge- 9th, has held that the
abatement has taken place in the matter as petitioner no. 2 of the
said case died on 28.12.2014 and no application was filed for
his substitution. However, the learned Subordinate court did not
consider the fact that the miscellaneous case as a whole would
not abate because petitioner no. 1 of the present petition was
also a party as the petitioner no. 1 in Misc. Case No. 02 of 2013
and even the person who sought transposition has been a party
as defendant/respondent in the same case. Learned counsel
further submitted that the learned Subordinate court dismissed
the application of transposition on the ground that petitioner no.
2 was not appointed as Mutawalli by the Bihar State Sunni Waqf
Board. The said observation is not correct as the petitioner no. 2
was appointed head of the Managing Committee constituted
after the Waqf property and that is the job of Mutawalli. Mere
nomenclature is immaterial. Learned counsel has placed reliance
on the decision in the case of Pankajbhai Rameshbhai
Zalavadia Vs. Jethabhai Kalabhai Zalavadiya (Deceased)
through L.Rs. & Ors. reported in 2017(4) PLJR 181 wherein in
paragraph 9 and 14 the Hon'ble Supreme Court has held that
Patna High Court C.Misc. No.39 of 2018 dt.30-09-2024
the Court can add any person as a party at any stage of the
proceedings, if the person whose presence in Court is necessary
to effectively and completely adjudicate upon and settle all the
questions involved in the suit to avoid multiplicity of
proceedings. Learned counsel has also placed reliance on the
decision in the case of Guljar Rai Vs. Laldeo Singh & Ors.
reported in 2013(4) PLJR 434. Wherein this Court even allowed
impleadment of a transferee pendente lite. On these two
grounds, the learned submitted that the impugned order is not
sustainable and the same needs to be set aside.
4. Mr. Mahesh Narayan Parbat, learned senior
counsel appearing on behalf of the respondents vehemently
contended that the impugned orders do not suffer from any
infirmity and the same do not require any interference by this
Court. Learned senior counsel submitted that after the death of
Ashraf Ali, Misc. Case No. 02 of 2013 abated as the Ashraf Ali
was not substituted within the period of limitation. Thereafter,
petitioner no. 2 filed an application for his transposition. But he
could not transposed in place of Ashraf Ali, Mutawalli for the
simple reason that the application has abated and when the
abatement has taken place, transposition could not be done
under Order 1 Rule 10 of the Code. Learned senior counsel
Patna High Court C.Misc. No.39 of 2018 dt.30-09-2024
referred to the decision of this High Court in the case of Ram
Das Chaurasia Vs. Jagdish Chaurasia and others reported in
1998(1) BLJ 802. Learned counsel further referred to a decision
of Karnataka High Court reported in AIR 2003 Karnataka 73
and AIR 2002 Karnataka 470, wherein the learned trial court
held that the application for transposition under Order 1 Rule 10
of the Code is maintainable only in a case when the proceeding
is pending and after dismissal of the suit or in the case of
abatement, the application for transposition could not be
accepted.
5. Learned senior counsel further submitted that the
claim of the petitioners is that Misc. Case No. 02 of 2013 is still
pending is not sustainable in view of the fact that the petitioners
themselves filed Misc. Case No. 04 of 2015 for restoration of
Misc. Case No. 02 of 2013. This fact has also been taken note of
by the learned Additional District Judge - 9 th, Saran at Chapra in
its order dated 16.11.2017. The court has mentioned the
submission that the petitioners made prayer for setting aside the
order dated 02.07.2015 and to restore Misc. Case No. 02 of
2013. Learned senior counsel further submitted that if Misc.
Case No. 02 of 2013 has been disposed of, the said order could
not be challenged before this Court as the same is an appellable
Patna High Court C.Misc. No.39 of 2018 dt.30-09-2024
order. Thus, learned senior counsel submitted that the impugned
orders are proper and valid and should be affirmed.
6. I have considered the rival submission of the
parties and perused the record. The short issue involved in this
case is whether Misc. Case No. 02 of 2013 instituted for
restoration of F.A. No. 40 of 1999/62 of 2006, stands abated
after death of Mutawalli Ashraf Ali. Admittedly, no appropriate
petition has been filed for setting aside the abatement of
petitioner no. 2 of Misc. Case No. 02 of 2013. Thereafter, an
application has been filed on behalf of petitioner no. 2
Imamuddin Khan for his transposition in place of deceased
petitioner no. 2 Ashraf Ali of Misc. Case No. 02 of 2013. But
law on this point is very much clear. If petitioner no. 2 was dead
and no substitution petition has been filed within time and no
steps have been taken for setting aside the abatement, no
transposition under Order 1 Rule 10 of the Code can be allowed.
Reference would made to Ram Das Chaurasia Vs. Jagdish
Chaurasia and others (supra). Whether Misc. Case No. 02 of
2013 has abated as a whole or abatement has taken place quo
petitioner no. 2, petitioner no. 2 of this case cannot seek
transposition since petitioner no. 2 Ashraf Ali has not been
substituted and the suit has abated against him. So far claim of
Patna High Court C.Misc. No.39 of 2018 dt.30-09-2024
petitioner no. 2 on this account is not sustainable. Therefore, the
decisions cited by learned counsel for the petitioners is not of
any help to the case of the petitioners. The claim of the
petitioners that the order dated 16.11.2017 has been passed on
wrong impression that the application was filed for setting aside
the order dated 02.07.2015 passed in Misc. Case No. 02 of 2013
whereas in fact, petition dated 18.08.2015 was filed under Order
22 Rule 9 of the Code for setting aside the abatement since
Misc. No. 02 of 2013 filed under Order 41 Rule 19 of the Code
is still pending. Perusal of petition dated 18.08.2015 does not
show any application to the effect that abatement should be set
aside rather the prayer has been made for restoration of Misc.
Case No. 02 of 2013. So the petitioners could not claim
otherwise. It appears the petitioners are under the impression
that Misc. Case No. 02 of 2013 has been dismissed or disposed
of or abated and if they filed application for its restoration, such
order being appealable under Order 43 Rule 1(k) of the Code
cannot be assailed by filing recall petition or before this Court.
For this reason, even the order dated 16.11.2017 passed in Misc.
Case No. 04 of 2015 is quite correct and valid order. However, it
is made clear that as there were two petitioners in Misc. Case
No. 2 of 2013 and if right to sue survives to petitioner no.1 and
Patna High Court C.Misc. No.39 of 2018 dt.30-09-2024
the petition does not became incompetent, the petitioner could
raise this issue before the court concerned which would be
required to pass a reasoned order clarifying the position.
Similarly, for setting aside the abatement caused due to death of
petitioner no.2 of Misc. Case No. 4 of 2015, the petitioners
exercise their remedy available under law.
7. In the light of these facts and circumstances, I am of
the opinion that there is no infirmity in the impugned order
dated 02.07.2015 and the same is affirmed.
8. In the light of discussion made so far, I do not find
any merit in the present petition and hence, the same is
dismissed.
(Arun Kumar Jha, J)
DKS/-
AFR/NAFR NAFR
CAV DATE 12.09.2024
Uploading Date 01.10.2024
Transmission Date NA
