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Rajasthan High Court · body

1991 DIGILAW 344 (RAJ)

District Wakf Committee, Tonk v. Badri Bai

1991-04-10

R.S.KEJRIWAL

body1991
JUDGMENT 1. - This revision has been directed against the order dated 5.11.90, passed by learned District Judge, Tonk, by which he confirmed the order dated 12.9.90, passed by A.M.J.M. First Class, Tonk, allowing the application of the non-petitioner No. 1 and granting interim injunction in the mandatory form. 2. The relevant facts of the case are that the plaintiff petitioner filed a suit for declaration and possession on 2.1.1991, in the Court of Munsif, Tonk, against the non- petitioners No. 1 to 3 and one Mr. Uttam Chand, who died during the pendency of the suit and was substituted by the non-petitioner No. 4. It was alleged in the plaint that under the provisions of the Indian Wakf Act, 1954 (here in after referred to as the Act), the petitioner - committee was constituted to look after the properties of wakf situated in district Tonk; that Smt. Rukaya Jamadarni, resident of Tonk had given her property in the wakf and executed a wakfnama; that in the 'Bandobast' of 1914, Khasra Nos. 3466, 3467, 3468 and 3469 were shown in the Khatedari of Smt. Rukaya Jamadarni; that Anwar Shah, Abid Shah sons of Manohar Shah were Khetadars of Khasra Nos. 4712, 4713, 4714, 4715 and 4716 in the year 1954; that the aforesaid persons did not go to Pakistan after leaving India; that the defendant No. 1 i.e. late Shri Uttam Chand, vide registered deed dated 23.12.65, got allotted land measuring 4031 Sq. Yards from the Custodian Department and the said deed was got registered on 5.5.66, but later in the said defendant on 11.4.67,instead of selling 4031 Sq. Yards of land, sold land bearing Khasra Nos. 4712, 4713, 4714, 4715 and 4716 to the defendant Nos. 2 to 4 vide registered sale deed; that the defendants No. 2 to 4 on 5.12.78, got the land purchased by them from the defendant No. 1, partitioned. Smt. Badri Bai, the non-petitioner No. 1 got in her share the portion marked in green colour in the map attached with the plaint; the other purchasers Smt. Mangi and Har Niwas raised constructions on the land which came to their share. The plaintiff prayed a decree for declaration and possession against Smt. Badri Bai, relating to the land which came to her share in partition on the ground that the-said land belongs to the petitioner. The non-petitioners filed written statement and contested the suit. The plaintiff prayed a decree for declaration and possession against Smt. Badri Bai, relating to the land which came to her share in partition on the ground that the-said land belongs to the petitioner. The non-petitioners filed written statement and contested the suit. That during the pendency of the suit, on 25.5.90, Smt. Badri Devi filed an application under Order 39 Rules 1 and 2 read with Section 151 C.P.C. stating that on 20.5.90, when she went to Agrawal Dharamshala to attend the 'Joint Marriage Conference' she saw two cabins and one chappar on her plot.On inquiries made by her she came to know that the petitioner has let out the land on 1.5.90 to three persons who put their cabins and chappar. She prayed that the plaintiff petitioner be directed to restore the position of the date of the suit by removing the cabins and chappar and further that the petitioner be restrained from interfering in the possession of the applicant Smt. Badri Bai. The plaintiff petitioner submitted a reply to the said application in which it was alleged that the land was already leased out to the aforesaid three persons prior to 1.5.90 and further that this land was not part of the disputed land. It was further alleged that a Commissioner can be appointed for this purpose. The defendant No. 4 Smt. Badri Bai filed a rejoinder to the said reply in which it was mentioned that Khasra Nos. 4712 to 4716 had been renumbered as Khasra Nos. 5272 to 5276. It has been further mentioned that the cabins and chappar were put on the land of Khasra No. 5272 belonging to said Smt. Badri Bai. It was further mentioned that there was no land of wakf and as such the plaintiff petitioner had no right to lease out the disputed land. It was also mentioned that the plaintiff in support of its reply had submitted an affidavit of one Shri Sher Khan, who was Patwari in the year 1952. This Sher Khan on 26.12.52, submitted a report to the Custodian Department that the land bearing Khasra Nos. 4712 to 4716 belonged to Abid Shah s/o Manohar Shah and further that said Shri Abid Shah went to Pakistan and as such these lands were declared to be evacuee property on 23.12.52 and were auctioned by the Custodian Department. This Sher Khan on 26.12.52, submitted a report to the Custodian Department that the land bearing Khasra Nos. 4712 to 4716 belonged to Abid Shah s/o Manohar Shah and further that said Shri Abid Shah went to Pakistan and as such these lands were declared to be evacuee property on 23.12.52 and were auctioned by the Custodian Department. It was further mentioned that at the time of auction, no objection was made by the plaintiff. 3. That, the Additional Munsif, Tonk, vide his order dated 12.9.90, allowed the application submitted by the defendant Badri Devi and restrained the plain,tiff petitioner from interfering in the possession of Smt. Badri Devi. The said Court also directed the plaintiff petitioner by mandatory injunction to remove the cabins and hand over vacant possession of the land to Smt. Badri Devi within a period of one week. Being aggrieved with the said order, the plaintiff petitioner filed an appeal, which was dismissed by the learned District Judge, Tonk, vide his order dated 5.11.90. Against this order, the plaintiff has come in revision.I have heard Mr. Narendra Jain learned counsel for the petitioner Mr. S.M. Ali intervener And Mr. S.M. ivlehta, learned counsel for the non-petitioners. It has been argued by Mr. Jain that when the petitioner took a plea that the cabins and chappar were not put on the disputed land, it was the duty of the lower courts to appoint a Commissioner. He further argued that Shri Uttam Chand got allotted only 4031 Sq. Yards of land from the Custodian Department and as such he had no jurisdiction to sale the land of Khasra Nos. 4712 to 4716 to the non-petitioners. Mr. Jain further argued that under these circumstances, the non- petitioners can not be said to be the owner of the disputed land. 4. Lastly, he argued that the interim injunction in the mandatory form should not have been granted by the lower courts. As the lower courts, without any reason have granted interim mandatory injunction, they acted arbitrarily and as such the orders passed by both the lower courts deserve to be set-aside. In support of his argument, Mr. Jain placed reliance on AIR 1973 Orissa,.240.Mr. All also supported the argument of Mr. Jain. 5. On the other hand, Mr. As the lower courts, without any reason have granted interim mandatory injunction, they acted arbitrarily and as such the orders passed by both the lower courts deserve to be set-aside. In support of his argument, Mr. Jain placed reliance on AIR 1973 Orissa,.240.Mr. All also supported the argument of Mr. Jain. 5. On the other hand, Mr. Mehta, counsel for the non- petitioners argued that both the lower courts came to the conclusion that the land which was leased out by the plaintiff petitioner is part of Khasra No. 5272, which is disputed land and has been purchased by the non-petitioners. He further argued that the lower court on every date asked the counsel for the plaintiff to let the Court know in which Khasra No. the land let out by the plaintiff falls but the plaintiff always remained silent. He further argued that status-quo was changed by the plaintiff petitioner during the pendency of the suit and as such the Court is empowered to maintain the status quo which existed on the date of the suit. He further argued that both the courts have concurrently held that the land on which the cabins and chappar were put is part of Khasra No. 5272. This finding is a pure finding of fact. He argued that the lower appellate court did not commit any illegality or irregularity in the exercise of its jurisdiction and as such no revision is maintainable. He argued that the Courts had jurisdiction to decide the matter and the Courts have decided the matter rightly. Even for the sake of arguments, if this Court comes to the conclusion that the matter has been decided wrongly, still, the Court has no jurisdiction to interfere in the order passed by the lower appellate court. In support of his arguments, he placed reliance on the judgments of Hon'ble Supreme Court reported in A.I.R. 1973 S.C.76 and AIR 1971 S.C. 2324 .He further argued that the judgment reported in AIR 1973 Orissa 240(supra) is not applicable to the facts of the present case. He further argued that no request was made before the lower courts by the petitioner for appointment of Commissioner and when he lost his case before both the lower courts, he can not get Commissioner appointed by this Court. He further argued that no request was made before the lower courts by the petitioner for appointment of Commissioner and when he lost his case before both the lower courts, he can not get Commissioner appointed by this Court. The suit is still pending and if the petitioner is serious for appointment of Commissioner, he can get the Commissioner appointed in the suit before the trial court. 6. After hearing learned counsel for both the parties, I am of the view that when both the lower courts have held that the petitioner has changed the position which was existed on the date of the suit and as such the Court has power to restore the position on the date of the suit by issuing ad-interim mandatory injunction. The question as to whether the land belongs to the petitioner or to the non-petitioners has to be decided in the main suit. At present, both the lower courts concurrently held that cabins and chappar were put on the land of khasra No. 5272, which is a disputed land and as this finding is a pure finding of fact, as such I do not want to interfere in this revision. Further more, the petitioner has let out a piece of land out of the disputed land to some other persons. In case the plaintiff succeeds in the suit, he will be entitled to get compensation suffered by him on account of loss of rent. Under these circumstances, it can not be said that in case the order is allowed to stand, it would cause irreparable injury to the petitioner. 7. Consequently, the revision fails and is hereby dismissed without any of order as to costsRevision Dismissed. *******