The learned counsel for the applicant has
placed reliance on the case reported as AIR 2005 SC 104
(Maharwal Khewaji Trust v. Baldev Dass). The Apex Court
has laid down that ordinarily status-quo of the property
needs to be maintained during pendency of litigation. It is
observed that the ground that legal proceeding is likely to
take long time cannot be an exceptional circumstance to
allow changes by imposing conditions. There cannot be
any dispute over this proportion. Further in view of the
provisions of the Muslim Law and the provisions of the
Wakf Act, the property cannot be allowed to be used for
the purpose other than the purpose for which the property
was dedicated. When the defendant, purchaser, purchased
the property even when there was record of aforesaid
nature, he must blame himself for finding himself in the
present situation. This Court has no hesitation to hold
that the Wakf Tribunal has committed error in refusing to
grant relief of temporary injunction as claimed. The said
order needs to be set aside by allowing the present civil
revision application.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Civil Revision Application No.57 of 2014
Maharashtra State Board of Wakf,
V
Digvijay S/o Deeliprao Deshmukh,
CORAM: T.V. NALAWADE, J.
DATE : 3rd MAY 2014
2) Notice after admission made returnable
forthwith by consent. Both sides are heard for final
disposal.
3) The proceeding is filed under section 83 (9) of
the Wakf Act, 1995 to challenge the order made by the
Wakf Tribunal Aurangabad on Exhibit 5 of Wakf Suit No.
15/2013. The Tribunal has refused the relief of temporary
injunction claimed by the applicant-plaintiff.
4) The plaintiff, Wakf Board, has filed suit for
relief of possession, permanent injunction etc. against the
respondent. It is in respect of property bearing Survey No.
103 admeasuring 28 acres 9 gunthas and situated at
Osmanabad. It is the case of the Wakf Board that the suit
property is public wakf property, it is dedicated
permanently to render services to Jama Masjid of
Osmanabad. It is contended that, the property is
registered as wakf property under the provisions of Wakf
Act, 1954 and notification in that regard was published in
official gazette dated 27-3-1980.
5) It is the case of the plaintiff that the property
was dedicated long back and in the record of Inams also
entry was made that the property was given in Inam for
rendering services to aforesaid religious institution. It is
contended that entries were made on the basis of
Muntkhab No.169/1296 Fasli. It is the case of the plaintiff
that the defendant is in illegal possession of the suit
property.
6) It appears that many proceedings were going
on in respect of the suit property, between Inamdars,
Muntakhab holder and Wakf Board under Land Revenue
Code and also Hyderabad Abolition of Inams and Cash
Grants Act, 1954 (hereinafter referred to as “Inam
Abolition Act”). Revenue proceeding was started between
plaintiff and defendant in view of the mutation made in
favour of the defendant on the basis of sale deed executed
in his favour by one of the Inamdars. It is the case of the
plaintiff that in view of the orders made under Inam
Abolition Act, further orders were sought by the defendant
and on the basis of those orders the defendant has started
making development of the property which is agricultural
land dedicated to Masjid. It is the case of the plaintiff that
Inam could not have been abolished and occupancy rights
could not have been given in favour of Muntakhab holder.
It is contended that the defendant has taken possession of
the suit property from Muntakhab holder and he is not
ready to give possession to Wakf Board even when it is
wakf property.
7) In the suit, relief of temporary injunction was
claimed to prevent the defendant from changing the
nature of the property and to prevent him from alienating
the property as he is claiming title under registered sale
deed executed by Inamdar in his favour.
8) The defendant, respondent, has filed written
statement. The defendant has denied that the property
was public wakf. It is contended that the property was
Madad Mash Inam granted for Kazat services and it was
given to Kazi people, the Muntakhab holder. It is
contended that the dispute is finally decided under the
provisions of the Inam Abolition Act and it is held that the
property was Madad Mash Inam and the Inam was already
abolished. It is contended that in view of these
circumstances occupancy rights were given to the vendor
and the matter was decided in favour of the vendor on
29-3-1994. It is contended that the decision given by the
authority under the Inam Abolition Act is binding on the
Tribunal and that operates as res judicata to the dispute
between him and Wakf Tribunal.
9) It is the case of the defendant that in the past
there was dispute between Inamdar and tenant and
compromise had taken place between them in a writ
petition which was pending in the High Court (Writ
petition No.3428/1997). It is contended that the defendant
has purchased the property by paying huge amount to
Inamdar and the defendant has spent huge amount for
making construction of Function Hall. It is contended that
the property is converted for Non Agricultural use. It is
contended that there is bar of estopple against the
plaintiff as the plaintiff did not take steps when the
aforesaid proceedings were going on.
10) It is the case of the defendant that his name has
been entered in the revenue record in view of the sale
deed executed in his favour and the construction of
Wedding Function Hall is almost complete. It was
submitted that the defendant has spent amount of Rs.2
crores by taking loan and so he cannot be prevented from
enjoying the property as the owner. It is contended that as
Inam was abolished, the entry in respect of nature of the
property as wakf in record has no meaning.
11) The Tribunal has observed that there is genuine
dispute in respect of nature of property and it needs to be
decided as to whether it is public wakf or not. Even after
making such observations the Tribunal has refused relief
of temporary injunction due to the orders made by the
authority under the Inam Abolition Act. It is observed that
In the Inam Pahani Patrak of 1977-78 the land was not
shown as service Inam and so it cannot be presumed that
it was service Inam land.
12) For getting relief of temporary injunction the
plaintiff-Wakf Board is expected to make out prima facie
case in respect of nature of the property. It appears that
only due to order made by the authority under the Inam
Abolition Act, the Tribunal has held that it is not possible
for the plaintiff to make out prima facie case in this
regard. The pleadings from the written statement show
that the defendant knew that property is Inam land
though the defendant is not admitting that it is service
Inam land and it was dedicated for religious purpose,
rendering service to Jama Masjid Osmanabad. It appears
that the Tribunal has not considered the Muslim law and
even the provisions of Inam Abolition Act which show that
the said Act is not applicable to the religious trusts.
13) There is copy of Muntakhab of 1288 Hizri (1296
Fasli) bearing No.159. It shows that Muslim Ruler had
made the last order in respect of some property given
under this Muntakhab in 1296 Fasli. By this order some
modification was done in respect of grant of land for
service but the cash grant was continued. Copy of its
translation in Marathi was supplied by the Wakf Board to
this Court.
14) There is extract of Inam Register, Namuna No.9
of 1354 Fasli (1943-44 AD) showing that, Survey No.103
was registered as Khidmad Mash and entry in the Inam
register was made on the basis of Muntakhab No.159 of
1296 Fasli. Due to this circumstance, prima facie it can be
said that Survey No.103, disputed property, was given
under the aforesaid Muntakhab. In the entry there is
mention that Inamdar was Pesh Imam and Khidmati
Inamdar. Extract for the year 1977-78 was produced
before the Tribunal. It appears that survey numbers of
lands were not legible and xeroxing was not properly
done. Certified copy came to be produced before this
Court and it shows that even for the year 1977-78 the
suit land was shown as Khidmati Mash. In this extract
there is endorsement of the authority to the effect that the
property was registered as Inam property in view of
Muntakhab No.159 of 1296 Fasli. There is mention that
the land was given for rendering services to Dargah and
for the management of the Dargah. It is further noted that
Inamdar was not rendering the expected services.
15) There is copy of Khasara Pahani Patrak for the
year 1954-55 showing that land Survey No.103 was
registered as service Inam land. In that order four persons
like Afzaloddin, Rafiyoddin, Sirajoddin and Gulam Dastgir
were shown in possession of four Anna portion each. In
that order, name of Inamdar was written as Akbar
Hussaini Mira Hussaini. In Pahani Patrak the land was
described as Mafi Inam and Khidmati Inam land.
16) The aforesaid record and particularly
Muntakhab, shows that the suit land was given by Muslim
Ruler and it was for rendering services described in the
Muntakhab which were Pesh Imami and Bang. Such
services are rendered in Masjid and they are religious
services. During trial, for deciding the dispute on merits
this record will have to be considered by the Tribunal.
17) Extract of register of Wakf maintained under
the provisions of the Wakf Act, 1954 is produced along
with the list of the properties shown to be owned by the
registered wakf. The wakf is described as Masjid and
grave yard. Name of Mutawalli is mentioned as Azgar
Hussaini s/o Akbar Hussaini. The properties belonging to
the wakf institution are mentioned in this record and they
include Survey No.103. As per the record the date of
registration of wakf is 7-7-1981. Copy of Government
Gazette dated 27-3-1980 is produced and it shows that the
suit property and other properties of this wakf institution
were notified as wakf properties. It is Sunni Wakf and the
name of wakf is given as Jama Masjid and grave yard of
Osmanabad.
18) The aforesaid record shows that name of Akbar
Hussaini was there in the record not only as Inamdar but
also as Mutawalli in the year 1954-55. It appears that in
the year 1981 name of his son Azgar Hussaini was shown
as Mutawalli when the wakf was registered. It needs to be
kept in mind that, the person rendering such religious
services and managing the property can be treated as
Mutawalli and on that line the record of 1954-55 needs to
be considered at least prima facie.
19) The Inam was described as Khidmat Mash,
which is public wakf under Muslim Law. Though other
words like Mafi Inam can also be found in the afore said
record, in view of the description of the property as
Khidmad Inam and in view of nature of services which
were to be rendered by the Inamdar, prima facie, the
entire property needs to be treated as Khidmat Inam land,
a public wakf.
20) Wakf Act 1954 was applicable to Marathwada
region of Maharashtra including Osmanabad where the
property is situated. Definition of wakf was given in
Section 3(l) of the Wakf Act, 1954 and in the subsequent
legislation, Wakf Act, 1995, definition of wakf given in
section 3(r) is similar. Grants including of mashrut-ulkhidmat
(khidmat inam) for any purpose recognized by
Muslim law, as pious, religious or charitable are included
in the definition of wakf.
21) In the year 1980 the suit property was notified
in Government Gazette as wakf property belonging to the
aforesaid Masjid and grave yard. The wakf also came to be
registered in the year 1981 under the Wakf Act 1954. The
suit property was shown to be belonging to the afore said
institution.
22) Even if for the time being it is presumed that
the vendor is not accepting that he was Mutawalli also,
even as Inamdar it was necessary for him to challenge the
entry of the suit property made in the Government
Gazette as wakf property, the registration of the wakf and
inclusion of the suit property as property belonging to
aforesaid wakf. The vendor of the defendant did not
challenge these entries. As the defendant, the purchaser
is claiming through the Inamdar, he cannot say that he is a
stranger. Inamdars, Mutwallis are certainly the persons
interested in the wakf for such purpose and so it was
necessary for them or the Inamdar to challenge the
aforesaid entries made in the register of wakf. Like the
provisions made in the Wakf Act, 1995 there were similar
provisions in the Wakf Act, 1954. Under Chapter II survey
was expected and and Tribunal (if Tribunal was not there,
Civil Court) was expected to decide the disputes regarding
wakf. Under section 27 power was there to Board to
decide whether property is wakf and it was possible to
challenge the decision in Civil Court.
23) For the respondent-defendant reliance was
placed on a case reported as AIR 1979 SC 289 (The Board
of Muslim Wakfs, Rajasthan v. Radha Kishan). In this
case the Apex Court has laid down that under section 6(4)
of the Wakf Act, 1954, stranger is not covered and so the
stranger is not under obligation to file suit within period
of one year as prescribed in the provision. There cannot
be any dispute over this proposition. In the present case,
there is question of determination of rights of Inamdar,
Mutawalli and as the defendant is claiming through such
person, this proposition cannot be used for the defendant.
24) It appears that the proceeding was started by
one of the successors of Muntkhab holder, vendor of the
defendant under the Inam Abolition Act. It is contended
that under the provisions of the Inam Abolition Act, Inam
was abolished on 1-7-1960. If the vendor wants to say
that Inam was abolished on that date, there was record of
aforesaid nature showing prima facie that dedication was
for religious purpose, for rendering services to Masjid.
Whether the property was dedicated to Masjid or it
was given to Inamdar is a question which will be decided
by the Tribunal. Section 1(2)(i) of the Inam Abolition Act
1954 shows that if Inam was held for benefit of the
charitable and religious institutions, such Inam is
exempted from application of this Act. Thus, prima facie
even if property was handed over to Inamdar, but for the
benefit of religious institution then the Inam could not
have been abolished. Further, proceeding was not started
by the vendor, Inamdar for getting occupancy rights
immediately. The proceedings were started many years
after publishing of the list of wakfs and after registration
of the institution in the register of wakfs along with the
property.
25) From the contents of the written statement, it
can be said that the vendor obtained order from the
authority created under the Inam Abolition Act on
29-3-1994. This order was challenged before the
appellate forum. Statement was made that the State
Government has remanded the matter back to the
authority for reconsideration as one of the Inamdars had
challenged the said order. Even if it is presumed that
there was no further challenge to the order made in
favour of the Inamdar in 1994, after registration of wakf
and publication of the property as wakf property in
official gazette, prima facie the things cannot change in
favour of the vendor or the defendant.
26) In the case reported as AIR 1988 SC 972
(Sayyed Ali v. A.P. Wakf Board, Hyderabad) it is laid down
that Wakf Tribunal can decide the nature, character of
wakf property and the authority under Inam Abolition Act
cannot adjudicate upon character of wakf property. In
view of the powers given to the authority under the Inam
Abolition Act, which are subject to the limitations
mentioned in section 1(2)(i), prima facie the decision of
the authority created under the Inam Abolition Act cannot
come in the way of the Wakf Tribunal to decide the
character of the suit property. In view of the observations
made in the said case the suit filed by the Board can be
held to be tenable. In the case reported as 2008 (2) B C J
642 (Mohammad Khairuddin v. Moinuddin) of Bombay
High Court (Aurangabad Bench) similar observations are
made by this Court.
27) In the case reported as (2007) 4 SCC 672
(Chhedi Lal Misra v. Civil Judge, Lucknow) it is laid down
by the Apex Court that in view the provisions of U.P.
Muslim Wakf Act, 1936, once a wakf is created it
continues to retain such character which cannot be
extinguished by any Act of the Mutawalli or anyone
claiming through him. In view of the record from prior to
the year 1954-55 already mentioned, it can be held prima
facie that the Muntakhab holder was also Mutawalli. Even
as Mutawalli, as per the provisions of Muslim law he had
no power to alienate the property. Under the provision the
Wakf Act, 1954 and the Wakf Act 1955 alienation of wakf
property is illegal and void (Section 51 of Wakf Act,
1995).
28) The learned Senior Counsel for the respondent
has placed reliance on the case reported as AIR 2000 SC
3488 (Punjab Wakf Board v. Gram Panchayat @ Gram
Sabha). The facts of this case were altogether different.
In the present case only due to so called rights of
Muntakhab holder, the defendant is claiming his rights.
In view of the observations already made, this Court holds
that the dispute between the plaintiff and the defendant
needs to be decided by the Wakf Tribunal.
29) The learned Senior Counsel for the respondent
drew attention of this Court to some proceedings which
were started by Muntakhab holder in the past and which
reached up to the High Court. It appears that there was
dispute between the tenant and Muntakhab holder and
then there were proceedings under the provisions of the
Inam Abolition Act. There were also proceedings in
respect of mutation made in favour of the defendant.
Nothing was shown to this Court due to which it can be
said that the property cannot be treated as Wakf
property and the jurisdiction of the Tribunal is barred.
Submission made by the learned Senior Counsel for the
respondent that huge amount is spent by the defendant /
purchaser for purchasing the property and for making
construction loan of rupees two crore is taken cannot
make any difference. Only due to these circumstances he
cannot be allowed to enjoy the property as owner. He
cannot be allowed to change the nature of the property
on this ground.
30) The learned counsel for the applicant has
placed reliance on the case reported as AIR 2005 SC 104
(Maharwal Khewaji Trust v. Baldev Dass). The Apex Court
has laid down that ordinarily status-quo of the property
needs to be maintained during pendency of litigation. It is
observed that the ground that legal proceeding is likely to
take long time cannot be an exceptional circumstance to
allow changes by imposing conditions. There cannot be
any dispute over this proportion. Further in view of the
provisions of the Muslim Law and the provisions of the
Wakf Act, the property cannot be allowed to be used for
the purpose other than the purpose for which the property
was dedicated. When the defendant, purchaser, purchased
the property even when there was record of aforesaid
nature, he must blame himself for finding himself in the
present situation. This Court has no hesitation to hold
that the Wakf Tribunal has committed error in refusing to
grant relief of temporary injunction as claimed. The said
order needs to be set aside by allowing the present civil
revision application.
31) In the result, the civil revision application is
allowed. The order made by the Wakf Tribunal on
application Exhibit 5 in Wakf Suit No.15/2013 is hereby
set aside. The application filed for temporary injunction by
the Wakf Board in the suit is allowed. Relief of temporary
injunction in granted in favour of Wakf Board in terms of
prayer clause (B) from Exhibit 5 till the decision of the
suit. The defendant, his agents are restrained from
making construction on the suit site and making
development of any kind on the suit property. He is also
restrained from creating third party interest of any kind
including alienation in any form of the suit property.
32) Learned counsel for respondent/defendant
requested for stay of the order. As prima facie it is wakf
property, there cannot be any stay of the nature as
claimed by the respondent. Stay is refused.
Sd/-
(T.V. NALAWADE, J.)
Print Page
placed reliance on the case reported as AIR 2005 SC 104
(Maharwal Khewaji Trust v. Baldev Dass). The Apex Court
has laid down that ordinarily status-quo of the property
needs to be maintained during pendency of litigation. It is
observed that the ground that legal proceeding is likely to
take long time cannot be an exceptional circumstance to
allow changes by imposing conditions. There cannot be
any dispute over this proportion. Further in view of the
provisions of the Muslim Law and the provisions of the
Wakf Act, the property cannot be allowed to be used for
the purpose other than the purpose for which the property
was dedicated. When the defendant, purchaser, purchased
the property even when there was record of aforesaid
nature, he must blame himself for finding himself in the
present situation. This Court has no hesitation to hold
that the Wakf Tribunal has committed error in refusing to
grant relief of temporary injunction as claimed. The said
order needs to be set aside by allowing the present civil
revision application.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Civil Revision Application No.57 of 2014
Maharashtra State Board of Wakf,
V
Digvijay S/o Deeliprao Deshmukh,
CORAM: T.V. NALAWADE, J.
DATE : 3rd MAY 2014
2) Notice after admission made returnable
forthwith by consent. Both sides are heard for final
disposal.
3) The proceeding is filed under section 83 (9) of
the Wakf Act, 1995 to challenge the order made by the
Wakf Tribunal Aurangabad on Exhibit 5 of Wakf Suit No.
15/2013. The Tribunal has refused the relief of temporary
injunction claimed by the applicant-plaintiff.
4) The plaintiff, Wakf Board, has filed suit for
relief of possession, permanent injunction etc. against the
respondent. It is in respect of property bearing Survey No.
103 admeasuring 28 acres 9 gunthas and situated at
Osmanabad. It is the case of the Wakf Board that the suit
property is public wakf property, it is dedicated
permanently to render services to Jama Masjid of
Osmanabad. It is contended that, the property is
registered as wakf property under the provisions of Wakf
Act, 1954 and notification in that regard was published in
official gazette dated 27-3-1980.
5) It is the case of the plaintiff that the property
was dedicated long back and in the record of Inams also
entry was made that the property was given in Inam for
rendering services to aforesaid religious institution. It is
contended that entries were made on the basis of
Muntkhab No.169/1296 Fasli. It is the case of the plaintiff
that the defendant is in illegal possession of the suit
property.
6) It appears that many proceedings were going
on in respect of the suit property, between Inamdars,
Muntakhab holder and Wakf Board under Land Revenue
Code and also Hyderabad Abolition of Inams and Cash
Grants Act, 1954 (hereinafter referred to as “Inam
Abolition Act”). Revenue proceeding was started between
plaintiff and defendant in view of the mutation made in
favour of the defendant on the basis of sale deed executed
in his favour by one of the Inamdars. It is the case of the
plaintiff that in view of the orders made under Inam
Abolition Act, further orders were sought by the defendant
and on the basis of those orders the defendant has started
making development of the property which is agricultural
land dedicated to Masjid. It is the case of the plaintiff that
Inam could not have been abolished and occupancy rights
could not have been given in favour of Muntakhab holder.
It is contended that the defendant has taken possession of
the suit property from Muntakhab holder and he is not
ready to give possession to Wakf Board even when it is
wakf property.
7) In the suit, relief of temporary injunction was
claimed to prevent the defendant from changing the
nature of the property and to prevent him from alienating
the property as he is claiming title under registered sale
deed executed by Inamdar in his favour.
8) The defendant, respondent, has filed written
statement. The defendant has denied that the property
was public wakf. It is contended that the property was
Madad Mash Inam granted for Kazat services and it was
given to Kazi people, the Muntakhab holder. It is
contended that the dispute is finally decided under the
provisions of the Inam Abolition Act and it is held that the
property was Madad Mash Inam and the Inam was already
abolished. It is contended that in view of these
circumstances occupancy rights were given to the vendor
and the matter was decided in favour of the vendor on
29-3-1994. It is contended that the decision given by the
authority under the Inam Abolition Act is binding on the
Tribunal and that operates as res judicata to the dispute
between him and Wakf Tribunal.
9) It is the case of the defendant that in the past
there was dispute between Inamdar and tenant and
compromise had taken place between them in a writ
petition which was pending in the High Court (Writ
petition No.3428/1997). It is contended that the defendant
has purchased the property by paying huge amount to
Inamdar and the defendant has spent huge amount for
making construction of Function Hall. It is contended that
the property is converted for Non Agricultural use. It is
contended that there is bar of estopple against the
plaintiff as the plaintiff did not take steps when the
aforesaid proceedings were going on.
10) It is the case of the defendant that his name has
been entered in the revenue record in view of the sale
deed executed in his favour and the construction of
Wedding Function Hall is almost complete. It was
submitted that the defendant has spent amount of Rs.2
crores by taking loan and so he cannot be prevented from
enjoying the property as the owner. It is contended that as
Inam was abolished, the entry in respect of nature of the
property as wakf in record has no meaning.
11) The Tribunal has observed that there is genuine
dispute in respect of nature of property and it needs to be
decided as to whether it is public wakf or not. Even after
making such observations the Tribunal has refused relief
of temporary injunction due to the orders made by the
authority under the Inam Abolition Act. It is observed that
In the Inam Pahani Patrak of 1977-78 the land was not
shown as service Inam and so it cannot be presumed that
it was service Inam land.
12) For getting relief of temporary injunction the
plaintiff-Wakf Board is expected to make out prima facie
case in respect of nature of the property. It appears that
only due to order made by the authority under the Inam
Abolition Act, the Tribunal has held that it is not possible
for the plaintiff to make out prima facie case in this
regard. The pleadings from the written statement show
that the defendant knew that property is Inam land
though the defendant is not admitting that it is service
Inam land and it was dedicated for religious purpose,
rendering service to Jama Masjid Osmanabad. It appears
that the Tribunal has not considered the Muslim law and
even the provisions of Inam Abolition Act which show that
the said Act is not applicable to the religious trusts.
13) There is copy of Muntakhab of 1288 Hizri (1296
Fasli) bearing No.159. It shows that Muslim Ruler had
made the last order in respect of some property given
under this Muntakhab in 1296 Fasli. By this order some
modification was done in respect of grant of land for
service but the cash grant was continued. Copy of its
translation in Marathi was supplied by the Wakf Board to
this Court.
14) There is extract of Inam Register, Namuna No.9
of 1354 Fasli (1943-44 AD) showing that, Survey No.103
was registered as Khidmad Mash and entry in the Inam
register was made on the basis of Muntakhab No.159 of
1296 Fasli. Due to this circumstance, prima facie it can be
said that Survey No.103, disputed property, was given
under the aforesaid Muntakhab. In the entry there is
mention that Inamdar was Pesh Imam and Khidmati
Inamdar. Extract for the year 1977-78 was produced
before the Tribunal. It appears that survey numbers of
lands were not legible and xeroxing was not properly
done. Certified copy came to be produced before this
Court and it shows that even for the year 1977-78 the
suit land was shown as Khidmati Mash. In this extract
there is endorsement of the authority to the effect that the
property was registered as Inam property in view of
Muntakhab No.159 of 1296 Fasli. There is mention that
the land was given for rendering services to Dargah and
for the management of the Dargah. It is further noted that
Inamdar was not rendering the expected services.
15) There is copy of Khasara Pahani Patrak for the
year 1954-55 showing that land Survey No.103 was
registered as service Inam land. In that order four persons
like Afzaloddin, Rafiyoddin, Sirajoddin and Gulam Dastgir
were shown in possession of four Anna portion each. In
that order, name of Inamdar was written as Akbar
Hussaini Mira Hussaini. In Pahani Patrak the land was
described as Mafi Inam and Khidmati Inam land.
16) The aforesaid record and particularly
Muntakhab, shows that the suit land was given by Muslim
Ruler and it was for rendering services described in the
Muntakhab which were Pesh Imami and Bang. Such
services are rendered in Masjid and they are religious
services. During trial, for deciding the dispute on merits
this record will have to be considered by the Tribunal.
17) Extract of register of Wakf maintained under
the provisions of the Wakf Act, 1954 is produced along
with the list of the properties shown to be owned by the
registered wakf. The wakf is described as Masjid and
grave yard. Name of Mutawalli is mentioned as Azgar
Hussaini s/o Akbar Hussaini. The properties belonging to
the wakf institution are mentioned in this record and they
include Survey No.103. As per the record the date of
registration of wakf is 7-7-1981. Copy of Government
Gazette dated 27-3-1980 is produced and it shows that the
suit property and other properties of this wakf institution
were notified as wakf properties. It is Sunni Wakf and the
name of wakf is given as Jama Masjid and grave yard of
Osmanabad.
18) The aforesaid record shows that name of Akbar
Hussaini was there in the record not only as Inamdar but
also as Mutawalli in the year 1954-55. It appears that in
the year 1981 name of his son Azgar Hussaini was shown
as Mutawalli when the wakf was registered. It needs to be
kept in mind that, the person rendering such religious
services and managing the property can be treated as
Mutawalli and on that line the record of 1954-55 needs to
be considered at least prima facie.
19) The Inam was described as Khidmat Mash,
which is public wakf under Muslim Law. Though other
words like Mafi Inam can also be found in the afore said
record, in view of the description of the property as
Khidmad Inam and in view of nature of services which
were to be rendered by the Inamdar, prima facie, the
entire property needs to be treated as Khidmat Inam land,
a public wakf.
20) Wakf Act 1954 was applicable to Marathwada
region of Maharashtra including Osmanabad where the
property is situated. Definition of wakf was given in
Section 3(l) of the Wakf Act, 1954 and in the subsequent
legislation, Wakf Act, 1995, definition of wakf given in
section 3(r) is similar. Grants including of mashrut-ulkhidmat
(khidmat inam) for any purpose recognized by
Muslim law, as pious, religious or charitable are included
in the definition of wakf.
21) In the year 1980 the suit property was notified
in Government Gazette as wakf property belonging to the
aforesaid Masjid and grave yard. The wakf also came to be
registered in the year 1981 under the Wakf Act 1954. The
suit property was shown to be belonging to the afore said
institution.
22) Even if for the time being it is presumed that
the vendor is not accepting that he was Mutawalli also,
even as Inamdar it was necessary for him to challenge the
entry of the suit property made in the Government
Gazette as wakf property, the registration of the wakf and
inclusion of the suit property as property belonging to
aforesaid wakf. The vendor of the defendant did not
challenge these entries. As the defendant, the purchaser
is claiming through the Inamdar, he cannot say that he is a
stranger. Inamdars, Mutwallis are certainly the persons
interested in the wakf for such purpose and so it was
necessary for them or the Inamdar to challenge the
aforesaid entries made in the register of wakf. Like the
provisions made in the Wakf Act, 1995 there were similar
provisions in the Wakf Act, 1954. Under Chapter II survey
was expected and and Tribunal (if Tribunal was not there,
Civil Court) was expected to decide the disputes regarding
wakf. Under section 27 power was there to Board to
decide whether property is wakf and it was possible to
challenge the decision in Civil Court.
23) For the respondent-defendant reliance was
placed on a case reported as AIR 1979 SC 289 (The Board
of Muslim Wakfs, Rajasthan v. Radha Kishan). In this
case the Apex Court has laid down that under section 6(4)
of the Wakf Act, 1954, stranger is not covered and so the
stranger is not under obligation to file suit within period
of one year as prescribed in the provision. There cannot
be any dispute over this proposition. In the present case,
there is question of determination of rights of Inamdar,
Mutawalli and as the defendant is claiming through such
person, this proposition cannot be used for the defendant.
24) It appears that the proceeding was started by
one of the successors of Muntkhab holder, vendor of the
defendant under the Inam Abolition Act. It is contended
that under the provisions of the Inam Abolition Act, Inam
was abolished on 1-7-1960. If the vendor wants to say
that Inam was abolished on that date, there was record of
aforesaid nature showing prima facie that dedication was
for religious purpose, for rendering services to Masjid.
Whether the property was dedicated to Masjid or it
was given to Inamdar is a question which will be decided
by the Tribunal. Section 1(2)(i) of the Inam Abolition Act
1954 shows that if Inam was held for benefit of the
charitable and religious institutions, such Inam is
exempted from application of this Act. Thus, prima facie
even if property was handed over to Inamdar, but for the
benefit of religious institution then the Inam could not
have been abolished. Further, proceeding was not started
by the vendor, Inamdar for getting occupancy rights
immediately. The proceedings were started many years
after publishing of the list of wakfs and after registration
of the institution in the register of wakfs along with the
property.
25) From the contents of the written statement, it
can be said that the vendor obtained order from the
authority created under the Inam Abolition Act on
29-3-1994. This order was challenged before the
appellate forum. Statement was made that the State
Government has remanded the matter back to the
authority for reconsideration as one of the Inamdars had
challenged the said order. Even if it is presumed that
there was no further challenge to the order made in
favour of the Inamdar in 1994, after registration of wakf
and publication of the property as wakf property in
official gazette, prima facie the things cannot change in
favour of the vendor or the defendant.
26) In the case reported as AIR 1988 SC 972
(Sayyed Ali v. A.P. Wakf Board, Hyderabad) it is laid down
that Wakf Tribunal can decide the nature, character of
wakf property and the authority under Inam Abolition Act
cannot adjudicate upon character of wakf property. In
view of the powers given to the authority under the Inam
Abolition Act, which are subject to the limitations
mentioned in section 1(2)(i), prima facie the decision of
the authority created under the Inam Abolition Act cannot
come in the way of the Wakf Tribunal to decide the
character of the suit property. In view of the observations
made in the said case the suit filed by the Board can be
held to be tenable. In the case reported as 2008 (2) B C J
642 (Mohammad Khairuddin v. Moinuddin) of Bombay
High Court (Aurangabad Bench) similar observations are
made by this Court.
27) In the case reported as (2007) 4 SCC 672
(Chhedi Lal Misra v. Civil Judge, Lucknow) it is laid down
by the Apex Court that in view the provisions of U.P.
Muslim Wakf Act, 1936, once a wakf is created it
continues to retain such character which cannot be
extinguished by any Act of the Mutawalli or anyone
claiming through him. In view of the record from prior to
the year 1954-55 already mentioned, it can be held prima
facie that the Muntakhab holder was also Mutawalli. Even
as Mutawalli, as per the provisions of Muslim law he had
no power to alienate the property. Under the provision the
Wakf Act, 1954 and the Wakf Act 1955 alienation of wakf
property is illegal and void (Section 51 of Wakf Act,
1995).
28) The learned Senior Counsel for the respondent
has placed reliance on the case reported as AIR 2000 SC
3488 (Punjab Wakf Board v. Gram Panchayat @ Gram
Sabha). The facts of this case were altogether different.
In the present case only due to so called rights of
Muntakhab holder, the defendant is claiming his rights.
In view of the observations already made, this Court holds
that the dispute between the plaintiff and the defendant
needs to be decided by the Wakf Tribunal.
29) The learned Senior Counsel for the respondent
drew attention of this Court to some proceedings which
were started by Muntakhab holder in the past and which
reached up to the High Court. It appears that there was
dispute between the tenant and Muntakhab holder and
then there were proceedings under the provisions of the
Inam Abolition Act. There were also proceedings in
respect of mutation made in favour of the defendant.
Nothing was shown to this Court due to which it can be
said that the property cannot be treated as Wakf
property and the jurisdiction of the Tribunal is barred.
Submission made by the learned Senior Counsel for the
respondent that huge amount is spent by the defendant /
purchaser for purchasing the property and for making
construction loan of rupees two crore is taken cannot
make any difference. Only due to these circumstances he
cannot be allowed to enjoy the property as owner. He
cannot be allowed to change the nature of the property
on this ground.
30) The learned counsel for the applicant has
placed reliance on the case reported as AIR 2005 SC 104
(Maharwal Khewaji Trust v. Baldev Dass). The Apex Court
has laid down that ordinarily status-quo of the property
needs to be maintained during pendency of litigation. It is
observed that the ground that legal proceeding is likely to
take long time cannot be an exceptional circumstance to
allow changes by imposing conditions. There cannot be
any dispute over this proportion. Further in view of the
provisions of the Muslim Law and the provisions of the
Wakf Act, the property cannot be allowed to be used for
the purpose other than the purpose for which the property
was dedicated. When the defendant, purchaser, purchased
the property even when there was record of aforesaid
nature, he must blame himself for finding himself in the
present situation. This Court has no hesitation to hold
that the Wakf Tribunal has committed error in refusing to
grant relief of temporary injunction as claimed. The said
order needs to be set aside by allowing the present civil
revision application.
31) In the result, the civil revision application is
allowed. The order made by the Wakf Tribunal on
application Exhibit 5 in Wakf Suit No.15/2013 is hereby
set aside. The application filed for temporary injunction by
the Wakf Board in the suit is allowed. Relief of temporary
injunction in granted in favour of Wakf Board in terms of
prayer clause (B) from Exhibit 5 till the decision of the
suit. The defendant, his agents are restrained from
making construction on the suit site and making
development of any kind on the suit property. He is also
restrained from creating third party interest of any kind
including alienation in any form of the suit property.
32) Learned counsel for respondent/defendant
requested for stay of the order. As prima facie it is wakf
property, there cannot be any stay of the nature as
claimed by the respondent. Stay is refused.
Sd/-
(T.V. NALAWADE, J.)
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