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2003 DIGILAW 1123 (RAJ)

RAJASTHAN BOARD OF MUSLIM WAKF v. HIMMAT SINGH

2003-08-06

PRAKASH TATIA

body2003
Judgment PRAKASH TATIA, J. ( 1 ) THIS execution first appeal submitted in this Court on 18. 8. 1987 is against the order of the executing Court dated 18. 7. 1987 by which the objection petition filed under Order 21, Rule 58, C. P. C. by bashir Ahmed was dismissed by the executing court after holding enquiry. ( 2 ) BRIEF facts of the case are that one Smt. Suraj Kanwar-r- respondent No. 1 andshanker lai-respondent No. 2 filed one suit No. 31/75 for recovery of money against one Himmat singh Nagori-respondent No. 3 and obtained a decree for Rs. 11,100/- on 9. 8. 1975. In execution of the said decree, the property in dispute was attached, upon which one Bashir ahmed, after obtaining permission of the Wakf board, filed an objection petition under Order 21, Rule 58, C. P. C. alleging that the disputed property is not liable to be attached and sold as the property is not of Himmat Singh and he has no right, title or interest in the property nor he is in possession of the property. The property in dispute is wakf property. ( 3 ) THE judgment debtor as well as the decree holder, both contested the objection petition and submitted that the property in dispute was originally owned by one Mohd. Shah, who sold the same on 3. 2. 1964 by registered sale-deed in favour of four private persons. The judgment debtor Himmat Singh purchased the property from the four private persons on 23. 6. 1972 and, thereby Himmat Singh became the owner of the property. Ultimately, the objection petition of Bashir Ahmed filed on behalf of the Rajasthan Board of Muslim wakf (Jaipur) appellant was dismissed by the executing Court on 9. 11. 1984. Against this dismissal order,. Bashir Ahmed preferred S. B. Civil First Appeal No. 88/1984, which was allowed by this Court on the ground that the executing Court should have served a notice under Section 57 of the Wakf Act upon the wakf Board-appellant. This Court, therefore, set aside the order of the executing Court dated 9. 11. 1984 and remanded the Matter back to the, executing Court with a direction to the executing court to give opportunity of hearing of wakf Board. This Court, therefore, set aside the order of the executing Court dated 9. 11. 1984 and remanded the Matter back to the, executing Court with a direction to the executing court to give opportunity of hearing of wakf Board. ( 4 ) THE executing Court, after remand and after hearing the Wakf Board, as per the direction of this Court, again dismissed the objection petition of the appellant. However, it is worthwhile to note here that Wakf Boards it-selfs case is that the objection petition under order 21, Rule 58, CPC was filed by Bashir ahmed after obtaining the necessary permission from the appellant Wakf Board which is permissible and required under the Wakf Act. It is further relevant to mention here that during pendency of S. B. Civil First Appeal No. 88/1984, Bashir Ahmed expired and the present appellant-Wakf Board, submitted an application, that too under Order 22, Rule 3, c. P. C. claiming themselves to be the succes-sor-n-interest of Bashir Ahmed, upon which the respondents raised objection but this Court by detailed order, held that the Wakf Board can be impeaded as party as the stand of the wakf Board is that Bashir Ahmed submitted the objection petition on behalf of Wakf Board after obtaining permission of the Wakf Board, therefore, this is concluded by the decision between the parties that the objection petition itself was filed by the Wakf Board initially through Bashir Ahmed and he continued the proceedings till his death for and on behalf of the appellant-Wakf Board. ( 5 ) THE appellant is aggrieved against the order and decree of the executing Court dated 18. 7. 1987 passed in application moved under Order 21, Rule 58, CPC. According to the learned counsel for the appellant, the executing court committed illegality in not giving opportunity to lead evidence to the appellant. ( 5 ) THE appellant is aggrieved against the order and decree of the executing Court dated 18. 7. 1987 passed in application moved under Order 21, Rule 58, CPC. According to the learned counsel for the appellant, the executing court committed illegality in not giving opportunity to lead evidence to the appellant. I do not find any substance in the contention of the learned Counsel for the appellant simply because of the reason that the appellants itselfs through out case is that the objection petition was filed by Bashir Ahmed with the consent of the Wakf Board and, as per the law, the Wakf Board is competent to authorise any person to act on behalf of the Board in civil proceedings and it is admitted case that bashir Ahmed contested the execution petition only for the purpose of proving the fact that the present property is Wakf property. He never contested the case that he has any other objection about the execution of the decree obtained by respondent Nos. 2 and 3 against respondent No. 1. The executing Court gave full opportunity to the objector, which in fact the Wakf Board, through Basir Ahmed is clear from various order-sheets of the executing court. It is worthwhile to mention here that the executing Court fixed the date for evidence of the objector Bashir Ahmed by order dated 23. 1. 1982. The first date for evidence was 15. 5. 1982 and, on that day, no witness of the objector was present. The executing Court granted time and fixed the date on 14. 8. 1982. On that day the objectors statement was recorded but neither the witnesses were summoned nor any witness was present in court. It appears from the order-sheet dated 16. 8. 1982 that no prayer was made by the objector for producing more witnesses. However, the executing Court reserved the right of the objector for producing evidence in rebuttal. On 19. 3. 1983, the evidence of Himmat singh, who is claiming himself as owner of the property and was judgment debtor, was recorded. It appears that the objector was again permitted to produce the witnesses as per the order-sheet dated 19. 9. 1984. Though the executing Court permitted the objector to file the list of witnesses to summon the witnesses, which is clear from the order-sheet dated 23. 10. It appears that the objector was again permitted to produce the witnesses as per the order-sheet dated 19. 9. 1984. Though the executing Court permitted the objector to file the list of witnesses to summon the witnesses, which is clear from the order-sheet dated 23. 10. 1984, but it appears that no evidence was produced and ultimately the evidence of the objector was closed by order dated 9. 11. 1984. Therefore, it is clear that full opportunity to produce evidence was given to the objector. It is admitted case of the present appellant, who are none else than claiming themselves to be the persons who authorised Bashir ahmed to file objection, therefore, also it does not lie in the mouth of the appellant that full opportunity to produce evidence was not given by the executing Court to the appellant. Not only this but the Wakf Board prosecuted the objection petition filed in the name of Bashir ahmed only and there is no other petition of the appellant even after remand by this Court. It is also clear from the impugned order of the executing-Court dated 18. 7. 1987. passed the remand, that the executing Court considered several documents produced by the parties and, thereafter, recorded findings on the issues. Therefore, there is no substance in the submission of the learned Counsel for the appellant that the appellant should have been given additional opportunity to produce the evidence after the order of this Court dated 16. 2. 1987 passed in S. B. Civil First Appeal No. 88/1984. ( 6 ) ON merit also, it is clear from the evidence and the facts of which are not in dispute that the suit property was sold by Mohd. Shah to four private persons on 3. 2. 1964 and the alleged declaration of the Wakf property was made only on 23. 9. 1965, that too without any notice to the purchasers of the property and it is also not in dispute that the appellant is relying upon a decree which is obtained against Mohd. Shah by compromise in appeal in a separate suit oh 12. 8. 1983, in which also the purchasers were not parties and Mohd. Shah had no right or title in the property on the day when he compromised against the in terest of the persons to be himself sold the property in dispute by registered sale deed. Shah by compromise in appeal in a separate suit oh 12. 8. 1983, in which also the purchasers were not parties and Mohd. Shah had no right or title in the property on the day when he compromised against the in terest of the persons to be himself sold the property in dispute by registered sale deed. It is further relevant to mention here that the compromise decree which is relied upon against mohd. Shah was obtained in a suit filed for removal of mutwali, that too was filed on 1. 5. 1964, much after the execution of the sale-deed by Mohd. Shah in favour of four private individuals. It is further relevant to mention here that no suit for cancellation of the sale-deed has been filed by the appellant and the legality of the sale-deeds is not under challenge. There is no pleadings of the objector when and how the property in dispute become Wakf property. ( 7 ) AFTER going through the evidence available on record. I found that there is no evidence to prove that the property in dispute was Wakf property before the date of sale dated 8. 2. 1964 by Mohd. Shah in favour of four private persons. It is also relevant to mention there that in the entire objection petition, it has of been mentioned that how the Wakf was reated and how and when this property became the Wakf property. Therefore, I do not nd any illegality in the order dated 18. 7. 1987 assed by the executing court. ( 8 ) THE appeal of the appellant is, there-fore, dismissed with costs. Appeal dismissed.