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2012 DIGILAW 1241 (AP)

Meherunnissa Begum v. A. P. Wakf Board, Hyderabad

2012-12-14

N.R.L.NAGESWARA RAO

body2012
JUDGMENT The plaintiffs in OS No.785 of 1993 (Old OS No.1291 of 1988) on the file of the Court of the V Senior Civil Judge, City Civil Court, Hyderabad, are the appellants herein. 2. Two suits have been filed, one by these plaintiffs and another by the 1st plaintiff, which is OS No.2240 of 1987. The subject-matter of the dispute concerning OS No.2240 of 1987 is a house bearing No.22-3-697 admeasuring 316 square yards, whereas the suit OS No.785 of 1993, which is under appeal, concerns the house bearing No.22-3-697 and 698 situated at Purani Haveli. 3. The case of the plaintiffs, is that one Syed Shah Lagan Quadri was the owner of the properties and mulgies. Subsequent to his death, the Mosque constructed by him was known as Dargah and Mosque Syed Shah Lagan Quadri. The property was granted by Sarfekhas Mubarak to Syed Shah Lagan Quadri. After his death, his son Syed Ahmed Ali Shah Quadri inherited the property and became Mutawalli of the said property. After the death of Syed Ahmed Ali Shah Quadri, his grandson Fareeduddin Quadri, who is husband of the 1st appellant herein inherited the schedule properties and appurtenant site and has been in possession and enjoyment of the property by leasing out the same. The defendant was said to be claiming the property as a Wakf property and a Muntakab No.763 was issued in 1359 Fasli. It was also further pleaded that it was amended in the year, 1982 without the notice of the plaintiffs. It is their personal property and not the wakf property. 4. Both the suits were tried together and both the suits were dismissed by the trial Court holding that the properties are wakf properties. Against them, two appeals were carried and XII Additional Chief Judge, City Civil Court, Hyderabad, allowed the appeal so far as properties in OS No.2240 of 1987 are concerned and so far as the properties concerned in OS No.785 of 1993 are concerned dismissed the appeal in AS No.273 of 1999. Aggrieved by the said judgment, the present second appeal has been filed. 5. The second appeal has been admitted on the following substantial questions of law: (1) Whether the judgments of the Courts below are not liable to be set aside as they have failed to advert to and draw appropriate conclusions from Exs.A3 to A5? Aggrieved by the said judgment, the present second appeal has been filed. 5. The second appeal has been admitted on the following substantial questions of law: (1) Whether the judgments of the Courts below are not liable to be set aside as they have failed to advert to and draw appropriate conclusions from Exs.A3 to A5? (2) Whether the Courts below were justified in ignoring the inaction of the respondent for a period of 62 years before initiating an action claiming title to the property and thereafter whether the claim of the respondent is not barred by time entitling the appellants to the declaration as prayed for? (3) Whether the Courts below were justified in ignoring the judgment and decree (Exs.A21 and A22) when no action has been taken by the respondent Board within the period of limitation even after decree under EX.A22 dated 30.9.1992? (4) Whether the Courts below were justified in upholding the unilateral resolution and amendment of the Muntaqab by the respondent on 20.2.1982 without any enquiry and whether the same is legal and valid under the Wakf Act? (5) Whether the Courts below have not committed error in refusing declaration prayed for by the appellants when the documents Exs.A8, A 12 and A 16 themselves show that the Wakf Board was urging the predecessor-in-title of the appellants to endow the suit schedule property, which he refused? 6. The point that arises for consideration is whether the property is the personal property of the plaintiffs or it is the wakf property as claimed by the defendant? 7. Point: Pending disposal of the appeal SAMP No.1539 of 2012 was filed by the plaintiffs to receive some additional documents. The learned Counsel for the appellants contends that the previous litigation between the parties clearly goes to show that the property is the personal property and it was only in the year, 1982, the muntakab was amended and till then it was only being treated as personal property. It was also pleaded that the plaintiffs were exercising right of ownership and enjoyment of the property. According to the plaintiffs, the defendant has filed OS No.5164 of 1991 and it was dismissed and Exs.A21 and A22 are relied upon. Evidently, the dismissal of the suit was only for non-payment of the batta. It is not a decision on merits. It was also pleaded that the plaintiffs were exercising right of ownership and enjoyment of the property. According to the plaintiffs, the defendant has filed OS No.5164 of 1991 and it was dismissed and Exs.A21 and A22 are relied upon. Evidently, the dismissal of the suit was only for non-payment of the batta. It is not a decision on merits. Even otherwise by the date of institution of the said suit, the present suit was filed and pending since 1988 and it cannot be canvassed that the principles of res judicata applies to it. Therefore, the contention of the learned Counsel for the appellants has to be rejected. 8. It was further pleaded that the husband of the 1st plaintiff instituted a suit OS No.1923 of 1988 when he was removed as a Mutawalli and in that suit, the title to the said suit property was decided and this fact was also not taken into consideration by the Courts below. In fact, as can be seen from the judgment, in this case, which is sought to be filed as additional evidence, the Court restrained itself from giving any finding about the title to the property. That suit was only for injunction when he was sought to be removed as Mutawalli. 9. Evidently, the plaintiffs having claimed title to the property individually it is for them to establish the same. A further contention was sought to be raised on the ground that under Exs.A16 and A17, the then department of Wakf had directed the predecessors-in-title of the appellants to endow the schedule property for which the predecessors did not accept. Exs.A8 and A12 are also relied upon on this aspect. The appellants have evidently tried to confuse with regard to the original Muntakab as an alteration of including of this property in the Muntakab in 1982. In fact, the Courts below have considered this and Ex.A20 corresponding to EX.B1 are the copies of Muntakab No.763. In fact, without any ambiguity, it was specifically mentioned in Ex.A20 that originally MCH Nos.207, 208 and 209 were included. But, subsequently, by virtue of the amendment premises No.206 corresponding to the present No.699 was added. Therefore, it does not relate to the numbers 697 or 698. The amendment, therefore, has no effect with regard to the property involved in this suit. But, subsequently, by virtue of the amendment premises No.206 corresponding to the present No.699 was added. Therefore, it does not relate to the numbers 697 or 698. The amendment, therefore, has no effect with regard to the property involved in this suit. Furthermore, it is the specific case of the 1st plaintiff that her husband has gifted the property, which is the subject-matter in the other suit and reliance is placed on Ex.A2. If really the property in the present appeal is the Matruka property of the husband of the 1st plaintiff, there is no reason as to why he did not mention about that particular property. This, therefore, clearly goes to show that the present claim of the plaintiffs that the said property is also the property of the family cannot be accepted. 10. The reason as to why a particular endowment was sought at a particular point of time need not be considered in view of Ex.B1 and Ex.A20. In fact, at no point of time the appellants have challenged the Muntakab No.673 except challenging the amendment which evidently relates to the premises 206 with present No.699. Though some effort was sought to be made to establish the rights of the plaintiffs, there is no document filed on behalf of the plaintiffs that the old numbers 206 to 208 appearing in the original Muntakab do not relate to the property 697 and 698. In fact, the valuation certificate along with the plaint in as No.5164 of 1991 was filed and it shows that the Municipal Nos.206, 207, 208 and 209 (old refers to mulgies 22-3-690 to 699). It is an admitted fact that the plaintiffs were in management of the property and some rents were realized. But, however, when the Wakf Board has claimed rights the tenants were not paying the rents to the plaintiffs. 11. The appellate Court and also the trial Court have carefully considered the same and consequently rejected the declaration prayed for about the amendment of the Muntakab. Merely because the husband of the 1st plaintiff as a Mutawalli was managing or in possession it cannot be treated as the Matruka properties. 12. So far as the additional evidence sought to be filed before the Court is concerned, in fact ample opportunity was given to the appellants in the appellate Court and additional evidence was received by marking Exs.A24 to A46. 12. So far as the additional evidence sought to be filed before the Court is concerned, in fact ample opportunity was given to the appellants in the appellate Court and additional evidence was received by marking Exs.A24 to A46. It is not as though that the present documents that were sought to be filed by the plaintiffs are not available since all of them are public documents and the attempt is only to complicate the issue even though the plaintiffs have no right in the property and the documents will not in any way advance the case. It is not as though that the documents have no relevancy and the application has to be dismissed. Even Exs.A18 and A19 clearly goes to show that permission was sought for construction of the wall on the northern side of the premises bearing Nos.206 to 208 for which the husband of the 1st plaintiff was Mutawalli. Therefore, if the property is the Matruka property of the plaintiffs, there was no reason to seek permission from the concerned Wakf Board. All these circumstances clearly establishes that the plaintiffs have failed to prove that the property is Matruka property and in fact the property was notified as a wakf and both the Courts have on a question of fact and law rightly decided and there are no grounds to interfere with the judgments of the Courts below. 13. Accordingly, the second appeal and the additional evidence application are dismissed. hNo costs. Miscellaneous petitions, if any, pending in this appeal shall stand closed.