Habib Alladin And 2 Others vs Mohammed Ahmed
2021 Latest Caselaw 4519 Tel

     IN THE HIGH COURT FOR THE STATE OF TELANGANA,
                      HYDERABAD
                         ****

                     C.R.P.No.1168 of 2021
Between:

Habib Alladin & Two Others
                                                       Petitioners
                             VERSUS
Mohammed Ahmed
                                                      Respondent




           JUDGMENT PRONOUNCED ON: 21.12.2021




            HON'BLE SRI JUSTICE UJJAL BHUYAN



1.    Whether Reporters of Local newspapers
      may be allowed to see the Judgments?           : Yes
2.    Whether the copies of judgment may be
      Marked to Law Reporters/Journals?              : Yes
3.    Whether His Lordship wishes to
      see the fair copy of the Judgment?             : Yes



                                              ____________________
                                               UJJAL BHUYAN, J
                                    2

                * HON'BLE SRI JUSTICE UJJAL BHUYAN

                      + C.R.P.No.1168 of 2021



% 21.12.2021

#   Between:

Habib Alladin & Two Others
                                                           Petitioner
                                 VERSUS
Mohammed Ahmed
                                                         Respondent




!       Counsel for Petitioner         : Sri Prabhakar Sripada

^       Counsel for the respondents    : Sri Mohammed Omer Farooq


<GIST:


> HEAD NOTE:



? Cases referred

1
  (2017) 13 SCC 174
2
  (1998) 2 SCC 642
3
  (1996) 8 SCC 377
4
  (2015) 8 SCC 331
5
  (1976) 4 SCC 780
6
  (2010) 14 SCC 588
7
  2014 (5) ALD 35
                                   3

          THE HON'BLE SRI JUSTICE UJJAL BHUYAN

                      C.R.P.No.1168 OF 2021

ORDER:

Heard learned counsel for the parties.

2 By filing this Civil Revision Petition under Article 227 of the

Constitution of India, petitioners seek quashing of order dated

28.07.2021 passed by the Telangana State Waqf Tribunal at

Hyderabad in I.A.No.345 of 2021 in O.S.No.63 of 2021.

3 Petitioners are defendants in O.S.No.63 of 2021 instituted by

the respondent as the plaintiff before the Telangana State Waqf

Tribunal at Hyderabad (briefly, 'the Tribunal', hereinafter).

4 Be it stated that plaintiff has instituted the said suit before

the Tribunal seeking a decree against the defendants to restrain

them perpetually from interfering with and causing hindrance to

the plaintiff and other musallies visiting the schedule mosque i.e.

Mahmood Habib Masjid and Islamic Centre situated at ground

floor in the apartment complex known as Mahmood Habib

Apartments, bearing Municipal No.8-2-584/1 to 3 and 8-2-584/7B

to 11B, Road No.9, Banjara Hills, Hyderabad.

5 Case of the plaintiff is that he is a permanent resident of

Road No.3, Banjara Hills, Hyderabad and a regular musalli to the

schedule mosque. He has been offering prayers therein for the last

13 years. The schedule mosque was established 13 years ago by

the developer of the apartment complex known as Mahmood Habib

Apartments to provide a place of worship to the residents of the

apartments.

6 In the schedule mosque there is a regular Imam and

Peshimam to look after the religious and other pious activities. It

is stated that the schedule mosque is a 'Waqf by user', as defined

under Section 3(r) of the Waqf Act, 1995 (briefly, 'the Act',

hereinafter).

7 Of late, the defendants have been putting up obstruction and

hindrance to the plaintiff and other musallies preventing them

from having free ingress and aggress to the schedule mosque. It

appears that some disputes have cropped up between the

defendants and the developer regarding contractual issues. Taking

advantage of such disputes, the defendants are illegally preventing

the plaintiff and other musallies from having access to the

schedule mosque.

8 Plaintiff approached local police i.e. Banjara Hills Police

Station on 24.6.2021. But the police were not inclined to accept

any first information lodged by the plaintiff against the defendants

on the pretext that the matter is a sensitive one and is civil in

nature.

9 In such circumstances, plaintiff instituted the related suit

before the Tribunal under Section 83 (1) of the Act seeking the

relief as indicated above.

10 Defendants filed a petition under Order VII Rule 11 (a) and

(d) of the Civil Procedure Code, 1908 (CPC) for rejection of the

plaint in O.S.No.63 of 2021. The said petition was registered as

I.A.No.345 of 2021. According to the defendants, the property in

question is purely a private property and is not a Waqf property. It

has not been notified as a Waqf property in the Official Gazette. No

preliminary survey has been conducted under Section 4 of the Act.

As a result, there is no publication of the schedule property as a

Waqf property as prescribed under Section 5 of the Act. It was

contended that if a particular property is not mentioned in the

Section 5 list, any aggrieved person may institute a suit before the

Tribunal for a decision on the question of inclusion and non-

inclusion. But the limitation for institution of such suit is one year

which period had long expired. No application has been made

either by the plaintiff or by any other person for registration of the

schedule property as Waqf property. Therefore, the Tribunal had

no jurisdiction to entertain the suit. Reliance was placed on a

decision of the Supreme Court in the case of Madanuri Sri Rama

Chandra Murthy Vs. Syed Jalal1. In the building permission

accorded by the Greater Hyderabad Municipal Corporation, there

is no provision for setting up of a mosque. Therefore, setting up of

a mosque is an illegality. It violates Sections 2 (d) and 24 of the

Telangana Apartments (Promotion of Construction and Ownership)

Act, 1987. Defendants had moved the Municipal Commissioner for

closure of the so called mosque, but without any success.

11 Insofar claim of the plaintiff that the schedule property was

'waqf by user', it is stated that as per Mohammedan Law for a

property to be 'waqf by user', it must fulfill the criteria of being in

use since time immemorial. A period of 13 years cannot be

construed to be a period which is of time immemorial.

(2017) 13 SCC 174

12 That being the position, defendants sought for rejection of

the plaint under Order VII Rule 11 (a) and (d) CPC.

13 Plaintiff filed counter affidavit to the above Interlocutory

Application filed by the defendants. Plaintiff contended that Order

VII Rule 11 (a) and (d) CPC was not at all applicable inasmuch as

the plaint discloses a definite cause of action for institution of suit

and that the suit so instituted is not barred by any law. The

schedule property is a mosque established 13 years ago where five

times daily prayers are being offered by the plaintiff and other

musallies on regular basis. It was further contended that when

the schedule property is 'waqf by user', there is no requirement of

notifying the same in the Gazette in terms of Section 5 of the Act.

Insofar the decision of the Supreme Court in Madanuri Sri Rama

Chandra Murthy (supra) is concerned, it was contended that the

said decision was not relevant inasmuch as it did not deal with the

concept of 'waqf by user'; rather the said decision dealt with non-

inclusion of the property in the Gazette notification. Relying on the

decision of the Supreme Court in Sayyed Ali Vs. Andhra Pradesh

Waqf Board, Hyderabad2, it is contended that once a property is a

Waqf property, it would always remain a Waqf property.

14 It was further contended that Commissioner of Greater

Hyderabad Municipal Corporation had passed a detailed speaking

order dated 24.06.2021 holding that the schedule mosque is not in

violation of the building plan and is not prohibited as per the

zoning regulations.

(1998) 2 SCC 642

15 In the circumstances plaintiff sought for dismissal of the

Interlocutory Application filed by the defendants.

16 After hearing the matter, Tribunal passed order dated

28.07.2021 dismissing the I.A. filed by the defendants. It has been

held that the plaint shows a clear cause of action and it is not

barred by any law. Therefore, there are no sufficient grounds to

reject the plaint.

17 It is this order which is under impugnment in the present

revision petition.

18 Learned counsel for the petitioners (defendants) submits that

the Tribunal committed a manifest error in rejecting the I.A filed by

the defendants for rejection of the plaint. He submits that even if

it is claimed that the schedule property is a 'waqf by user', then

also it should be notified in the Official Gazette under Sections 4

and 5 of the Act. Unless the schedule property is so notified, it

cannot be deemed to be a Waqf property. In this connection,

reliance has been placed on the decision of the Supreme Court in

Madanuri Sri Rama Chandra Murthy (supra). He further submits

that even according to the case of the plaintiff which has been

accepted by the Tribunal, the schedule property is being used as a

mosque for the last 13 years; on that basis it is being construed to

be a 'waqf by user'. His submission is that as per Mohammedan

Law, for a property to be a 'waqf by user', it has to be in use since

time immemorial. In other words, what is contemplated under

Mohammedan Law is immemorial user and not a mere user for a

property to be construed as 'waqf by user'. On this ground itself,

the plaint should have been rejected. Referring to Section 6 of the

Act, he submits that a suit can be instituted in the Tribunal in

respect of disputes pertaining to Waqf property, including the

question as to whether a particular property is Waqf property or

not, within a period of one year. The present suit having been

instituted in the year 2021 is, thus, barred by limitation under the

Act. He, therefore, submits that the plaint filed by the plaintiff is

clearly barred by law and the same should be rejected.

19 In support of his contentions, learned counsel for the

petitioners has submitted a compilation of judgments.

20 On the other hand, learned counsel for the respondent

(plaintiff) submits that to consider as to whether there is cause of

action for institution of a suit or whether the plaint is barred by

any law, it is the averments in the plaint only which are required to

be considered and no other document. Regarding the scope of

enquiry under Order VII Rule 11 CPC, he submits that it is the

averments in the plaint that have to be read as a whole to find out

whether it discloses a cause of action or whether the suit is barred

by any law. At the stage of exercise of power under Order VII Rule

11 CPC, the stand of the defendants in the written statement or in

the application for rejection of the plaint is wholly immaterial.

Learned counsel for the respondent further submits that even if

there is no actual delivery of possession, the mere fact that

members of the Mohammedan public are permitted to offer prayers

is adequate to indicate that the Waqf is complete and irrevocable.

Proceeding further, he submits that once a property is a Waqf

property, it will always remain a Waqf property. He, therefore,

submits that the Tribunal was justified and correct in law in

dismissing the petition filed by the defendants for rejection of the

plaint. In support of his submissions, learned counsel for the

respondent has submitted a compilation of judgments, relying

therefrom the following decisions:- 1) State of Orissa Vs.

Klockner3, 2) PV Guru Raj Reddy Vs. P. Neeradha Reddy4, 3)

Syed Mohd Salie Labbai Vs. Mohd. Hanifa5, and 4) Board of

Waqf, West Bengal Vs. Anis Fatima6.

21 Submissions made by learned counsel for the parties have

received the due consideration of the Court.

22 At the outset, provisions of Order VII Rule 11 CPC may be

adverted to. The said provision is extracted hereunder:

11. Rejection of plaint:-

The plaint shall be rejected in the following cases:--

(a) where it does not disclose a cause of action;

(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;

(c) where the relief claimed is properly valued, but the plaint is returned upon paper insufficiently stamped, and the plaintiff, on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;

(d) where the suit appears from the statement in the plaint to be barred by any law;

(e) where it is not filed in duplicate;

(f) where the plaint fails to comply with the provision of Rule 9;

Provided that the time fixed by the Court for the correction of the valuation of supplying of the requisite stamp-papers shall not be extended unless the Court, for reasons to be recorded, is satisfied that the plaintiff was prevented by any cause of an exceptional nature from correcting the valuation or supplying the requisite stamp-papers, as the case may be, within the time fixed by the Court and that refusal to extend such time would cause grave injustice to the plaintiff.

(1996) 8 SCC 377

(2015) 8 SCC 331

(1976) 4 SCC 780

(2010) 14 SCC 588

23 Insofar the present case is concerned, petitioners had filed

the petition for rejection of plaint under Clauses (a) and (d) of Rule

11 of Order VII CPC.

24 From the above, it is clear that a plaint can be rejected

where it does not disclose a cause of action {Clause (a)}; it can also

be rejected where the suit appears from the statement in the plaint

to be barred by any law {Clause (d)}.

25 Supreme Court in PV Guru Raj Reddy case (4 supra) dealt

with the provision of Order VII Rue 11 CPC. Observing that

rejection of a plaint under Order VII Rule 11 CPC is a drastic

power conferred on the Court to terminate a civil action at the

threshold, it was stressed upon that the conditions precedent to

the exercise of power under Order VII Rule 11 CPC are stringent.

Only the averments in the plaint have to be read as a whole to find

out whether it discloses a cause of action or whether the suit is

barred under any law. At the stage of exercise of power under

Order VII Rule 11 CPC stand of the defendants in the written

statement or in the application for rejection of the plaint is wholly

immaterial. It is only if the averments in the plaint ex facie do not

disclose a cause of action or of a reading thereof the suit appears

to be barred under any law, the plaint can be rejected. In all other

circumstances the claims will have to be adjudicated in the course

of the trial.

26 Before adverting to the pleadings in the plaint, it would be

apposite to refer to some of the relevant provisions of the Act.

27 The Waqf Act, 1995 (already referred to as 'the Act'

hereinabove) has been enacted for better administration of waqf

(since substituted by the word Auqaf) and for matters connected

therewith or incidental thereto. "Waqf" is defined in Section 3 (r) in

the following manner:

"waqf" means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes-

(i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser;

(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record,

(iii) "grants", including mashrut-ul-khidmat for any purpose recognized by the Muslim law as pious, religious or charitable; and

(iv) a waqf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the waqf shall be spent for education, development, welfare and such other purposes as recognized by Muslim law, and "waqif" means any person making such dedication."

28 Thus, "Waqf" would mean permanent dedication by any

person of any movable or immovable property for any purpose

recognized by the Muslim law as pious, religious or charitable and

includes a "Waqf by user".

29 At this stage, we may mention that a single bench of this

Court in S.Manikya Reddy Vs. Andhra Pradesh State Waqf

Board7 dealt with the above definition of "Waqf" and thereafter

took the view that a Waqf is created either by dedication or by user

and it is not necessary that deed of Waqf is essential to create a

Waqf.

30 Learned counsel for the respondent goes to show that a waqf

as defined above, once created continues to be a waqf for all times

to come.

2014 (5) ALD 35

31 Section 4 of the Act deals with survey of Waqf by the Survey

Commissioner and submission of report to the State Government.

This is followed by publication of list of Waqf by the State

Government in the Official Gazette under Section 5. As per

Section 6 of the Act, if any question arises as to whether a

particular property specified as Waqf property in the list of Waqf is

Waqf property or not, or any person aggrieved etc., may institute a

suit in the jurisdictional Tribunal for a decision on the question

and the decision of the Tribunal in respect of such matter shall be

final. As per the first proviso, no such suit shall be entertained by

the Tribunal after expiry of one year form the date of publication of

the list of Waqf.

32 Section 83 of the Act deals with constitution of Tribunals etc.

As per sub-Section (1), the State Government shall, by notification

in the Official Gazette, constitute as many Tribunals as it may

think fit, for the determination of any dispute, question or other

matter relating to a Waqf or Waqf property, eviction of a tenant or

determination of rights and obligations of the lessor and the lessee

of such property, under the Act and define the local limits and

jurisdiction of such Tribunals.

33 Having noticed the above, the plaint may now be adverted to.

In paragraph No.5 of the plaint, plaintiff has stated that the

schedule mosque was established 13 years ago by the developer of

the apartments known as Mahmood Habib Apartments, so that the

residents of the apartments along with other musallies of the

surrounding area can offer prayers. In paragraph No.7 it is stated

that there is a regular Imam and Peshimam in the schedule

mosque for rendering five times prayers daily and for carrying out

other religious and pious activities. It is, therefore, contended

that the schedule mosque is a 'Waqf by user' as defined under

Section 3(r) of the Act. In paragraph No.11 of the plaint, it is

stated that the defendants have of late started creating

unnecessary obstruction and hindrance to the plaintiff and other

musallies thereby preventing them from having free ingress and

aggress to the schedule mosque. This is reiterated in paragraph

Nos.12 and 15 of the plaint. Further in paragraph No.19 of the

plaint it is stated that plaintiff had approached the Banjara Hills

police station on 24.06.2021 for lodging a First Information Report

against the defendants. However, police did not accept the same

on the pretext that the matter is sensitive and civil in nature.

34 From a reading of the averments made in the above

paragraphs of the plaint as a whole, it cannot be said that the

plaint does not ex facie disclose any cause of action for institution

of the suit or that the suit is barred under the Act.

35 Reliance placed by the petitioners on the decision of the

Supreme Court in Madanuri Sri Rama Chandra Murthy (supra)

as well as contention of the petitioners that to be a 'Waqf by user'

the property has to be in such use since time immemorial, would

be of no assistance inasmuch as the decision of the Supreme Court

in the said case is factually distinguishable.

36 In Madanuri Sri Rama Chandra Murthy (supra), plaintiff

had challenged the sale deed on the ground that the suit property

which was purchased was a Waqf property. Therefore, the sale

deed did not convey any right, title or interest in favour of the

defendants. Supreme Court found that the property in question did

not find place in the Gazette Notification published under Section 5

of the Act. In other words, the property in question was not

notified in the Official Gazette as a Waqf property. Such non-

inclusion was never questioned by any person, including by the

Waqf Board. It was in such circumstances, Supreme Court took

the view that averments in the plaint did not disclose a cause of

action for filing the suit. The suit was found to be manifestly merit

less and vexatious. Accordingly, order of the Waqf Tribunal

rejecting the plaint was upheld.

37 Thus, as would be evident, the above case is not at all

applicable to the facts of the present case.

38 Moreover, since the expression 'waqf by user' finding place in

Section 3 (r) (i) of the Act is a defined expression and is not

qualified by any word to suggest that it has to be of immemorial

user, the Court would have to confine or restrict itself to the

definition as provided by the statute.

39 In the light of the above, Court is of the view that there is no

error or infirmity in the view taken by the Tribunal in passing the

order dated 28.07.2021. Consequently, Court finds no good

ground to interfere with the same. However, it is clarified that the

discussions made in this order are restricted to the issue as to

whether a case for rejection of plaint was made out or not. Those

should not be construed to be an expression on merit of the rival

contentions which shall be gone into by the Tribunal in the course

of the trial. All contentions would be available to the parties to

advance during the course of the trial.

40 Subject to the observations made above, the Civil Revision

Petition is dismissed. No order as to costs. Miscellaneous

petitions, if any, pending in this revision petition shall also stand

dismissed.

___________________ UJJAL BHUYAN, J

Date: 21.12.2021

L.R. Copy be marked B/o Kvsn