Rasheed Ahmed S/O Shri Hameed vs District Collector ...
2023 Latest Caselaw 4589 Raj/2

Citation : 2023 Latest Caselaw 4589 Raj/2
Judgement Date : 5 September, 2023

Rajasthan High Court

Rasheed Ahmed S/O Shri Hameed vs District Collector ... on 5 September, 2023

Bench: Mahendar Kumar Goyal

[2023:RJ-JP:21069]

        HIGH COURT OF JUDICATURE FOR RAJASTHAN
                    BENCH AT JAIPUR

              S.B. Civil Miscellaneous Application No. 2/2020

Rasheed Ahmed S/o Shri Hameed, R/o Churu.
                                                             ----Petitioner-Plaintiff
                                       Versus
1.       District Collector, Churu.
2.       Tehsildar, Churu.
3.       Commissioner, Nagar Parishad, Churu.
4.       Secretary, Rajasthan Waqf Board, Jaipur.
                                                   ----Respondents-Defendants

For Petitioner(s) : Miss Arzoo Khan with Mr. Rishab Yadav For Respondent(s) : Mr. Akshay Sharma, AGC, Mr. Zakir Hussain, AGC

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Judgment

Judgement reserved on : : 22/08/2023 Judgement pronounced on : : 05/09/2023

This civil misc. application has been filed by the

petitioner/plaintiff (for brevity, "the plaintiff") under Section 83 (9)

of the Wakf Act, 1995 (for brevity, "the Act of 1995") against the

judgement dated 16.08.2019 passed by the Rajasthan Wakf

Tribunal, Jyoti Nagar, Jaipur (for brevity, "the learned Tribunal") in

Suit No.73/2014 CIS No.468/2015 whereby, the suit for

declaration and permanent injunction has been dismissed.

The relevant facts in brief are that the plaintiff filed a suit

against the respondents/defendants stating therein that there is a

kabristan, a wakf property, comprising of khasra no.2007/1827

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measuring 32 bigha 10 biswa situated in Mohalla Athuna, Churu.

It was averred that towards its southern side, there is a strip of

land measuring 500 feet x 29 feet belonging to the kabristan

situated in between it and the public way which was left vacant for

raising construction of shops. Alleging that the defendants have

threatened to take possession of this strip of land, the decree of

declaration and permanent injunction was prayed for.

The defendants did not file any written statement and ex-

parte proceedings were drawn against them.

After recording evidence of the plaintiff as the defendants did

not lead any evidence, the learned Tribunal dismissed the suit vide

judgement dated 16.8.2019.

Assailing the impugned judgement, the learned counsel for

the plaintiff submits that from the jamabandi of the khasra

no.2007/1827 Svt. 2067-2070, it is apparent that the subject land

is part of kabristan, a wakf property. She contends that the

learned Tribunal erred in holding the subject property to be a strip

of land as its size was much bigger than the size of strip of land as

provided under Section 23 of the Rajasthan Municipalities

(Disposal of Urban Land) Rules, 1974. Learned counsel submitted

that since, there was no defence evidence, the learned Tribunal

ought to have allowed the suit. She, therefore, prays that this civil

misc. application be allowed, the judgement dated 16.8.2019 be

quashed and set aside and the suit filed be allowed.

Heard. Considered.

While dismissing the suit, the learned Tribunal has held that

though from Ex.2, the jamabandi for Svt. 2067-2070, it was

reflected that 32 bighas 10 biswas land comprising of khasra

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no.2007/1827 was recorded as "gair mumkin kabristan"; but, it is

not established from the evidence on record that the subject land

measuring 500 feet x 29 feet situated outside the kabristan

towards its southern side and in between the public way, was its

part. It was further observed that no reason was assigned as to

why the subject property being situated outside the boundary of

the kabristan could be treated as part and parcel of the kabristan.

After going through the material on record, this Court is also

satisfied that the plaintiff could not establish that the subject land

is part of the 32 bigha 10 biswa land of khasra no.2007/1827 so

as to reckon it as wakf property.

Submission of the learned counsel for the plaintiff that the

learned Tribunal erred in reckoning property as a strip of land

being much bigger than the size of strip land as described under

the Rules of 1974, is wholly misconceived and does not merit

acceptance. Rather, it was specific case of the plaintiff before the

learned Tribunal that it was a strip of land. Even otherwise also,

whether the subject land falls under the category of "strip of land"

or not, is immaterial for decision of the issue involved herein.

Contention of the learned counsel for the plaintiff that the

learned Tribunal erred in dismissing the suit even in absence of

defence evidence, cannot be countenanced as it is trite law that a

plaintiff has to stand on its own leg in support of its case and

absence or weakness of the defence case cannot be a ground to

decree the suit. As already observed, since the plaintiff miserably

failed to establish subject land to be part of the kabristan or wakf

property, in the considered opinion of this Court, the learned

Tribunal did not err in dismissing the suit.

[2023:RJ-JP:21069] (4 of 5) [CMAP-2/2020]

There is another important aspect of the matter. Jurisdiction

of this Court under Section 83(9) of the Wakf Act is not as that of

the appellate authority; rather, is supervisory in nature.

The Hon'ble Supreme Court has, in the case of Kiran Devi

vs. Bihar State Sunni Wakf Board and Ors. (2021) 15 SCC

15, held as under:

"22. Therefore, when a petition is filed against an order of the Wakf Tribunal before the High Court, the High Court exercises the jurisdiction under Article 227 of the Constitution of India. Therefore, it is wholly immaterial that the petition was titled as a writ petition. It may be noticed that in certain High Courts, petition under Article 227 is titled as writ petition, in certain other High Courts as revision petition and in certain others as a miscellaneous petition. However, keeping in view the nature of the order passed, more particularly in the light of proviso to sub-section (9) of Section 83 of the Act, the High Court exercised jurisdiction only under the Act. The jurisdiction of the High Court is restricted to only examine the correctness, legality or propriety of the findings recorded by the Wakf Tribunal. The High Court in exercise of the jurisdiction conferred under proviso to sub-section (9) of Section 83 of the Act does not act as the appellate court."

A Division Bench of the Hon'ble Andhra Pradesh High

Court has, in the case of Lanco Hills Technology Park Pvt.

Ltd. vs. Mahaboob Alam Khan- MANU/AP/0219/2012, held

as under:

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"15. The scope of a revision petition under the proviso to sub-section (9) of Section 83 of the Wakf Act is to examine the correctness, legality or propriety of order passed by the Wakf Tribunal in relation to a dispute or other matter. It is not appellate jurisdiction stricto sensu nor original proceeding. If all the relevant aspects of law and facts are considered by the Wakf Tribunal, no exception can be taken thereto. Even if two views are possible from the evidence on record, the High Court may not interfere with the order of the Wakf Tribunal, unless it is ex facie relevant aspects or gave importance to irrelevant factors."

In view of the aforesaid precedential law also, the judgement

dated 16.8.2019, based on appreciation of evidence on record,

does not warrant any interference by this Court under its

supervisory jurisdiction vide Section 89(3) of the Act of 1995 as it

is not found to be suffering from perversity or jurisdictional error.