Telangana High Court

Syed Mukhtar Ali vs The Chief Executive Officer Of Ap ... on 13 October, 2023

Bench: M.G.Priyadarsini

     HONOURABLE SMT. JUSTICE M.G. PRIYADARSINI

       CIVIL REVISION PETITION No. 4974 of 2017

ORDER:

Assailing the judgment and decree made in O.S. No. 105

of 2016 (Old O.S. No. 36 of 2007), dated 04.07.2017, on the file

of the Telangana State Waqf Tribunal (for short, 'the Tribunal'),

the present Civil Revision Petition is filed by plaintiff. By the

impugned judgment, the suit filed by the plaintiff to set aside

the proceedings of the defendant-Waqf Board, dated 06.01.2007

and its order dated 09.04.2007 and to summon the defendant

to produce all the records in connection with the proceedings

and memo dated 15.02.2007 in respect of the suit schedule

property was dismissed.

2. For the sake of convenience, hereinafter, the parties will

be referred to as per their array before the Tribunal.

3. The facts of the case are that, the plaintiff laid the suit

against the defendant-State Waqf Board to set aside the

proceedings of the defendant vide proceedings No.M4/28/HYD-

V/Prot/02, dated 06.01.2007 and the subsequent orders dated

09.04.2007 as illegal and arbitrary and to summon the Chief

Executive Officer of the defendant to produce the proceedings

dated 06.01.2007 and memo dated 15.02.2007 in respect of the

suit schedule property i.e., property bearing No. 6-3-929 and

929/A, admeasuring 450 sq.yds., situated at Raj Bhavan Road,

Somajiguda, Hyderabad. According to the plaintiff, he is the

absolute owner and possessor of the suit schedule property

having acquired the same by virtue of oral gift (Hiba) from his

paternal grandmother, Shamshubee, who had purchased the

said property from one Syed Khursheed Ali, father of the

plaintiff, under a registered sale deed bearing document No.

1377/1963, dated 21.08.1963. Syed Khusheed Ali purchased

the suit schedule property from Dr. Abdul Razzak under a

registered sale deed bearing document No. 1988B(I)/1957,

dated 15.08.1957. Even prior to the said sale, he had entered

into agreement of sale in the year 1946 and acquired possession

of the property. Dr. Abdul Razzak was granted the suit property

by Paigah Estate vide orders dated 18th Isfander 1350 Fasli.

According to the plaintiff, his predecessors-in-title were in

continuous possession of the property right from 1940 as

absolute owners. While so, the defendant had issued a notice

dated 06.01.2007 under Section 54(1) of the Wakf Act (for short,

the Act) stating that the suit property is a notified Wakf property

published in A.P. Gazette No. 26-C, dated 01.07.1982; that the

plaintiff had encroached the suit land belonging to the Wakf

institution and asked him to explain as to why an order of

removal of encroachment by the plaintiff should not be made

under Section 54(3) of the Act. The plaintiff submitted his

explanation on 15.02.2007, along with the documents, claiming

the suit property as private property and that no notice was

issued to him or to his predecessors-in-title prior to the

publication of the Gazette. Having not satisfied with the

explanation of the plaintiff, the defendant issued the notice

dated 09.04.2007 under Section 54(3) of the Act directing the

plaintiff to remove the encroachment over the suit schedule

property and handover vacant possession of the property within

15 days. Hence, the suit by the plaintiff.

4. Contesting the suit, the defendant filed its written

statement denying all the contents of the plaint. According to

the defendant, the suit schedule property is registered and

notified Wakf property as Ashoor Khana, which has been

published in the Gazettee dated 01.07.1982. The documents

relied on by the plaintiff are created in order to usurp the suit

schedule property. As the suit schedule property is Wakf

property and it is Ashoor Khana which is under the

Mutawallaiship of Shamshubee, neither the plaintiff nor his

predecessors have any right or ownership over the same.

5. Before the Tribunal, the plaintiff got examined himself as

P.W.1 and got marked Exs.A.1 to A.12. On behalf of the

defendant, D.W.1 was examined and Exs.B.1 to B.5 were

marked. Considering the rival pleadings and on evaluation of

the documents submitted by both the parties, the learned

Tribunal dismissed the suit holding that the plaintiff failed to

prove the oral gift made by Shamshubee in his favour. Hence,

the present revision by the plaintiff under Section 83(9) of the

Act.

6. Learned counsel for the plaintiff, revision petitioner

herein, submits that the Tribunal failed to take note of the fact

that the petitioner and his predecessors-in-title are in

continuous possession of the suit land for the last several

decades without any interruption. Although the defendant

claims the suit land by way of Gazette publication dated

01.07.1982 and the report of the Survey Commissioner, no

notice was issued either to the petitioner or his predecessors-in-

title before publishing the Gazette notification. The Tribunal

failed to appreciate the fact that the plaintiff had established the

fact that his grandmother, having acquired the property by way

of registered sale deed bearing document No.1377/1963, dated

21.08.1963, had gifted the same in favour of the plaintiff by way

of oral gift. The Tribunal ought to have seen that there is no

Ashoor Khana as the petitioner is residing in the suit land for a

long time. It is contended that the findings of the Tribunal in

dismissing the suit are based on mere presumptions and

assumptions. Therefore, the learned counsel seeks to allow the

revision by setting aside the impugned judgment and decree of

the Tribunal.

7. On the other hand, the learned Standing Counsel for the

defendant, respondent herein, contends that inasmuch as the

plaintiff failed to prove the oral gift allegedly made in his favour

by his grandmother, by cogent evidence, the Tribunal has

rightly dismissed the suit of the plaintiff and therefore, the

impugned judgment and decree need no interference in this

revision.

8. Heard the learned counsel for the revision petitioner as

well as the learned Standing Counsel for the respondent.

Perused the material available on record.

9. The very claim of the plaintiff is that he had acquired the

suit land by way of oral gift (Hiba) from his paternal

grandmother, Shamshubee. Said Shamshubee, in turn,

purchased the said property from one Syed Khursheed Ali,

father of the plaintiff, under a registered sale deed bearing

document No. 1377/1963, dated 21.08.1963. Syed Khusheed

Ali purchased the suit schedule property from Dr. Abdul Razzak

under a registered sale deed bearing document No.

1988B(I)/1957, dated 15.08.1957. Even prior to the said sale,

he had entered into agreement of sale in the year 1946 and

acquired possession of the property. Dr. Abdul Razzak was

granted the suit property by Paigah Estate vide orders dated

18th Isfander 1350 Fasli. If at all the plaintiff or his

grandmother was in possession of the property, there is no

explanation from the plaintiff as to why the Gazette notification

which was issued by the defendant as long back as in 1982 was

not challenged by them. Even the record discloses that the

Gazette notification issued by the defendant dated 01.07.1982

is based on Survey Commissioner Report, who was duly

appointed by the then Government of Andhra Pradesh, who

submitted his report after conducting due enquiry. Moreover,

when the defendant had issued a notice under Section 54(1) of

the Act on 06.01.2007, marked as Ex.A.7, treating the plaintiff

as encroacher of its property and asking him to vacate the suit

property within 15 days, although the plaintiff had submitted

his explanation on 20.01.2007 under Ex.A.8, he did not choose

to explain his source of title therein, as claimed in the plaint.

He simply stated that the suit property is a private property and

that he is the absolute owner and possessor. Therefore, the

defendant having not satisfied with the explanation offered by

the plaintiff, issued notice on 09.04.2007 under Section 54(3) of

the Act, marked as Ex.A.10, for removal of encroachment and

delivery of possession to the Inspector Auditor.

10. The documents marked on behalf of the defendant, more

particularly, Exs.B.2 and B.3 disclose that the suit land is Wakf

property and that Shamshubee was shown as Mutawalli.

Basing on those documents, the Tribunal came to the

conclusion that Shamshubee must have endowed the suit land

as Wakf property to erect Alams in Ashoor Khana and therefore,

no one has any right over the said property to claim as private

property. As regards the claim of the plaintiff that he had

acquired the suit land by virtue of oral Will (Hiba), allegedly

executed by his grandmother, the Tribunal at para No. 22 of the

judgment, while deciding the issue whether the impugned

proceedings are liable to be set aside, observed as under:-

"22) Thus the plaintiff failed to prove that he acquired the title and interest over the suit schedule property by way of oral gift made by Shamshubee in his favour. Further under the Mahomedan law the three essential requisites to make a gift valid are: 1) declaration of the gift by the donor. 2) acceptance of the gift by the done expressly or impliedly and 3) delivery of

possession to and taking possession thereof by the done actually or constructively. If all the three essential requisites are satisfied constituting a valid gift, but plaintiff failed to prove the above three essential requisites to the satisfaction of this Tribunal. For the above said reasons the impugned notice under Ex.A-10 cannot be set aside. Therefore this issue is decided against the plaintiff."

Thus, the findings recorded by the Tribunal are based on

appreciation of the entire evidence in proper perspective.

Therefore, this Court finds no infirmity or illegality in the order

passed by the Tribunal.

11. In the result, the Civil Revision Petition fails and the same

is accordingly dismissed confirming the judgment and decree of

the Telangana State Waqf Tribunal made in O.S. No. 105 of

2016 (Old O.S. No.36 of 2007), dated 04.07.2017. There shall

be no order as to costs.

Pending Miscellaneous Petitions, if any, shall stand

closed.

______________________________ JUSTICE M.G. PRIYADARSINI 13th October, 2023 Tsr