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2016 DIGILAW 535 (MP)

Hasinar Bi v. M. P. Wakf Board

2016-07-05

ANAND PATHAK

body2016
JUDGMENT 1. With the consent of parties, heard finally. 2. Present civil revision has been preferred by the petitioners/plaintiffs under section 83(9) of the Wakf Act, 1995 read with section 115 of Civil Procedure Code, 1908 being aggrieved by the judgment and decree dated 28.4.2015 passed by Madhya Pradesh State Wakf Tribunal, Bhopal in Case No.29/2010; whereby, the suit filed by the petitioners/plaintiffs against respondents No.1 and 2 has been dismissed. 3. Petitioners/plaintiffs have preferred a suit for declaration and permanent injunction in respect of the suit property and further for declaration of publication published in gazette dated 25.9.1989 to be null and void. The main contention of petitioners is that the land in question was recorded earlier in the name of one Ghassa Shah, forefather of the petitioners and after his death, the aforesaid land was recorded in the name of LRs of Ghassa Shah and thereafter the land in question was recorded in the name of present petitioners/plaintiffs. It was the submission of the plaintiffs that land in question was being cultivated by them since the time of their forefathers. Their thrust of arguments is that the land in question was never recorded in the name of Wakf Board. According to them, the Aukaf Committee and Wakf Board had started interfering in their peaceful possession,therefore, they had occasion to file the present civil suit. 4. Further allegation of the petitioners is that in the year 1967, Aukaf Committee had interfered in peaceful possession of their forefathers, therefore, the forefathers of the petitioners namely Rajja Shah and others have filed two civil suits against the members of Aukaf Committee, which were decreed in favour of forefathers of the petitioners/plaintiffs. Judgment and decree dated 22.1.1970 in Case No.67-A/1967 was Exhibited as P-3 and judgment and decree dated 22.1.1970 passed in Case No.34-A/1967 was Exhibited as P-4. On the basis of aforesaid two judgments and decree (Ex. P-3 and P-4), the petitioners/plaintiffs tried to establish their title over the land in question. The grievance of the petitioners is also in respect of process while declaring any property as Wakf Property. According to them, no intimation has ever been given to them before publishing the property in question in the gazette notification and also in daily newspaper. Counsel for the petitioner has relied upon judgment of Supreme Court in the case of A.V. Papayya Sastry and others. v. Govt. According to them, no intimation has ever been given to them before publishing the property in question in the gazette notification and also in daily newspaper. Counsel for the petitioner has relied upon judgment of Supreme Court in the case of A.V. Papayya Sastry and others. v. Govt. of A.P. and others [ (2007)4 SCC 221 ], in support of this contention. 5. Respondents No.1 and 2 filed written statement and contested the claim of the petitioners. According to respondent/State, the disputed land was never under the right, title, interest and possession of the petitioners. It was of Ziyarat Sharif, Madarsa Ghunghru Shah Baba Wakf Property through Manager-Collector. According to the State, the forefathers of the petitioners were never in possession of the suit property. 6. Heard the parties and with their assistance, perused the record. 7. The Wakf Tribunal has framed as many as six issues and allowed the parties to lead evidence oral as well as documentary in pursuance to which the parties led their evidence. After appreciating the facts, evidence oral as well as documentary and the submissions of the parties, the Tribunal came to the conclusion that the claim made by the petitioners does not warrant any interference. The Tribunal in respect of Ex. P-3 and P-4 has given categorical findings in paras 9 to 12. The Tribunal in para 13 has found that the documents submitted by the plaintiffs did not evoke enough confidence and credibility. The revenue records pertaining to some years have been submitted but those fringed documents are not sufficient evidence. The mutation entry vide Ex.P-2 demonstrate that the land in question is occupied by the Wakf Board. Plaintiffs have not submitted any document of title in support of their claim. 8. So far as the finding of possession is concerned, in paras 15 and 16, the finding of possession has been categorically recorded. Ex.P-3, judgment and decree dated 22.1.1970 nowhere depicts that the Wakf Board or State Government were made parties in the said civil suit. In absence of the necessary parties like State Government or Wakf Board, the very tenor and texture of the said civil suit comes under clouds of suspicion and collusion. The trial Court has rightly given the finding in respect of section 6 of the Wakf Act, 1995. In absence of the necessary parties like State Government or Wakf Board, the very tenor and texture of the said civil suit comes under clouds of suspicion and collusion. The trial Court has rightly given the finding in respect of section 6 of the Wakf Act, 1995. Section 6 deals in respect of disputes regarding Wakfs and the proviso to sub-section 1 of section 6 clearly provides that no suit shall be entertained by the Tribunal after expiry of one year from the date of the publication of the list of Wakfs. The suit is barred by effect and operation of section 6 of the Wakf Act, 1995 also. 9. Perusal of para 13 of impugned judgment further reveals that the plaintiffs themselves have admitted the fact that they are not aware of the source of title and the month of the occupation over the property. 10. Besides, this Civil Revision is preferred by the plaintiffs under section 83 of the Wakf Act, 1995. The scope of section 83 (9) as well as section 115 of CPC is not like appellate jurisdiction. Section 115 of CPC stipulates the exigencies under which the revisional jurisdiction can be exercised, (a) the subordinate Court appears to have exercised the jurisdiction not vested in its by law or (b) failed to exercise a jurisdiction so vested; or (c) acted in the exercise of its jurisdiction illegally or with material irregularity. Here no such exigency exists so as to evoke the present jurisdiction. 11. Similarly the judgment cited by counsel for the petitioners is of no assistance to them due to factual differentiation. 12. In view of above preceding discussion, civil revision is bereft of merits and thus, declined to interfere. Civil revision is hereby dismissed.