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2023 DIGILAW 1272 (PAT)

Munna Yadav @ Ashok Yadav v. State of Bihar

2023-11-24

KHATIM REZA

body2023
Khatim Reza, J. – Heard learned counsel for the petitioner and learned counsel appearing on behalf of Bihar State Sunni Waqf Board as well as learned counsel for the opposite party no. 6. 2. The petitioner has filed this Civil Revision Application under Section 83(9) of the Waqf Act, 1995, being aggrieved by the order dated 29.11.2018 passed by the Bihar State Waqf Tribunal, Patna in Eviction Application No. 12 of 2016 filed by the Bihar State Sunni Waqf Board under Section 54(3) of the Waqf Act, 2013 for removal of the encroachment from the Waqf property against the petitioner-opposite party whereby, the learned Tribunal has declared that the petitioner is the encroacher of the Qabristan pertaining to plot no. 1709 and 1711 measuring an area of 0.71 acre and 0.38 acre respectively and so the petitioner-opposite party was directed to vacate the same and also direction was given to the Chief Executive Officer, Bihar State Sunni Waqf Board to take all appropriate action for vacation of the land mentioned in eviction application and take possession of the property and the opposite party shall be held liable to pay damages at the rate of five thousand per day to the Estate if he does not vacate the Waqf property within the period of 45 days to be realized by the Board/Mutawalli through the process of law. 3. The aforesaid eviction application was filed by the Bihar State Sunni Waqf Board in view of the order dated 11.04.2016 passed by the Chief Executive Officer, Bihar State Sunni Waqf Board under Section 54 of the Waqf Act, 1995 (Amendment Act 2013) for removal of encroachment by the petitioner-opposite party from the Waqf property (Qabristan) pertaining to Khesra No. 1709, Sheet No. 218, Ward No. 21/59, Circle No. 113 area 71 decimal and land bearing plot no. 1711 area 38 decimal belonging to Qabristan which is illegally occupied by him and he has been declared by the Bihar State Sunni Waqf Board as encroacher of the said Waqf Estate No. 2598. Qabristan situated in Mittan Ghat, Patna city, Patna. 4. It is further case of the Waqf Board that one Soni @ Shashi Bhusan filed a petition dated 11.03.2015 alleging that the land of Qabristan have been encroached by the petitioneropposite party since long having illegal possession over it and the petitioner-opposite party is also collecting rent from the land. 5. Qabristan situated in Mittan Ghat, Patna city, Patna. 4. It is further case of the Waqf Board that one Soni @ Shashi Bhusan filed a petition dated 11.03.2015 alleging that the land of Qabristan have been encroached by the petitioneropposite party since long having illegal possession over it and the petitioner-opposite party is also collecting rent from the land. 5. On verification, notice was issued to the petitioner-opposite party asking him to appear and file show-cause. The petitioner-opposite party appeared through his counsel and filed his objection petition dated 01.03.2016 and 11.03.2016 claiming that the land is his ancestral property. 6. It was further contended that the creation of Waqf Estate No. 2598 by Bihar State Sunni Waqf Board is illegal and without jurisdiction. The petitioner-opposite party has also asserted that his ancestors purchased the property through sale deed dated 20.06.1935 and 10.12.1951. It was further contended that plot no. 1711 measuring an area of 38 Municipal Kari was purchased by Zameeurn Nisa Begum @ Chanda Begum, who was married to Taki Mian @ Naki Ali. The said Taki Mian @ Naki Ali has purchased the vacant land of plot no. 1711 measuring an area of 38 Municipal Kari from Syad Sah Hamidul Haq, son of Syed Sah Mujibul Haque in the name of his wife namely, Most. Zameeurn Nisa Begum @ Chanda Begum through registered sale deed dated 17.05.1926 on valuable consideration and came in possession over the same as absolute owner. 7. It was pleaded that during Municipal Survey name of Taki Mian @ Naki Ali with respect to Plot no. 1711 measuring an area of 38 Municipal Kari was recorded in Municipal Khesra held in the year 1932-33. The said Zameeurn Nisa Begum @ Chanda Begum was only name lender. She has no right, title and possession with respect to the lands of Plot no. 1711. Therefore, the name of Zameeurn Nisa Begum @ Chanda Begum was not recorded in Municipal Kheshra. After the death of Taki Mian @ Naki Ali his wife Chanda Begum inherited and succeeded and came in possession as legal heir and successor along with Nadir Ali. 8. It was further contended that said Zameeurn Nisa Begum @ Chanda Begum sold the entire land of Plot no. After the death of Taki Mian @ Naki Ali his wife Chanda Begum inherited and succeeded and came in possession as legal heir and successor along with Nadir Ali. 8. It was further contended that said Zameeurn Nisa Begum @ Chanda Begum sold the entire land of Plot no. 1711 to Hazari Lal, son of Keshre Lal through registered sale deed dated 20.06.1935 on valuable consideration and she put Hazari Lal in khas possession and since then Hazari Lal is coming in possession and remained in possession over the same. 9. Nadir Ali, son of Taki Mian @ Naki Ali, sold the Municipal Survey Plot No. 1709 measuring an area of 71 Municipal Kari to Radha Mohan Singh son of Hazari Lal through registered sale deed dated 10.12.1951 on valuable consideration and accordingly Nadir Ali put the vendee in actual physical possession over the entire lands of Plot no. 1709. 10. Further case of the petitioner-opposite party is that after purchasing the lands of plot no. 1709 and 1711, house and katra were constructed out of joint family fund by Bhagwat Prasad Yadav (father of petitioner-opposite party). The said property was alloted to the Bhagwat Prasad Yadav and his two sons through oral partition. Since the partition, Bhagwat Prasad Yadav and his two sons jointly came in possession as an absolute owner over the lands of Plot nos. 1709 and 1711. The name of Bhagwat Prasad Yadav (father of the petitioner-opposite party) has been mutated in the records of municipal corporation and he is getting holding tax receipts since the date of partition. Petitioner-opposite party and his brother along with his father reside in the residential house and Katras have been let out to the tenants on monthly rent in which the tenants are carrying on their own business. 11. Further case of the petitioner-opposite party is that, on some part of plot no. 1709, ancestors of Taki Mian @ Naki Ali were burried and none else of Muslim community were burried because lands of plot no. 1709 was private property of Taki Mian@ Naki Ali and the plot no. 1711 was also private property of Taki Mian@ Naki Ali and the lands of plot no. 1711 has never been used as a common passage nor the local people of the community has common easementary right over the lands of Plot no. 1711. 1709 was private property of Taki Mian@ Naki Ali and the plot no. 1711 was also private property of Taki Mian@ Naki Ali and the lands of plot no. 1711 has never been used as a common passage nor the local people of the community has common easementary right over the lands of Plot no. 1711. It is contended that said Qabristan is a private Qabristan and not a public graveyard. 12. It is contended by the petitioner that the Chief Executive officer, Bihar State Sunni Waqf Board, has wrongly passed an order dated 11.04.2016 without giving any opportunity prior to making an enquiry by the Board for declaration of lands in question, as Waqf property and the Chief Executive Officer has wrongly held that the land in question is the Waqf property registered with the Bihar State Sunni Waqf Board and pursuant to order dated 11.04.2016, the Bihar State Sunni Waqf Board filed eviction application before the Bihar State Waqf Tribunal. 13. On summon, petitioner-opposite party filed his written statement denying the claim of the Waqf Estate and raised all objection and claims with regard to suit land and title derived by the petitioner through sale deed dated 23.06.1935 and 10.12.1951. 14. The petitioner-opposite party vehemently submitted that the Waqf Board have violated Section 71(1)(B) and 71(2) of the Waqf Act. Section 71 prescribes the procedure for holding an enquiry which has not been done according to the said provision. It is further contended that the enquiry officer has not performed his duty as per Section 51(4) of the Waqf Act which enshrines for giving opportunity to all interested persons to be heard. It is submitted that on the basis of enquiry report of Chief Executive Officer, Bihar State Sunni Waqf Board has declared the land, in question, as Waqf property and registration of the said property was made as Waqf property without inviting any objection from the petitioner or from the person concerned. The said registration was made in the year 2014 and the Complaint Petition was filed in the year 2015 without ascertaining the petitioner’s title deed of the year 1935 and 1951. The Jamabandi was also created in his favour since long. 15. On scrutinizing the materials on record and submissions of the parties, the learned Waqf Tribunal affirmed the order of the Chief Executive Officer and declared the petitioner as encroacher on 29.11.2018. 16. The Jamabandi was also created in his favour since long. 15. On scrutinizing the materials on record and submissions of the parties, the learned Waqf Tribunal affirmed the order of the Chief Executive Officer and declared the petitioner as encroacher on 29.11.2018. 16. Aggrieved by the order of the Waqf Tribunal, the petitioner filed the present Civil Revision Application. The learned counsel for the Waqf Board also filed counter-affidavit in the present proceeding. 17. Learned Counsel for the petitioner submits that on the basis of enquiry report, the order passed by the Chief Executive Officer is without jurisdiction and against the provision of law made under the Waqf Act, 1995 and Rules, 2002. 18. The order passed by the Waqf authority is without issuing notice to the petitioner and without giving any opportunity of hearing to the petitioner and Chief Executive Officer of the Waqf Board has not considered the objection and submissions of the petitioner. It is submitted that Municipal Plot No. 1711 measuring an area of 38 Municipal Kari was recorded in Municipal Khesra and the nature of land is noted in the Municipal Survey Khatiyan which was published in the year 1933 is ‘Partee Qadeem’. 19. So far Municipal Survey Plot No. 1709 is concerned, the nature of land has been mentioned in the said Municipal Survey Khatiyan as Qabristan. The said Qabristan (graveyard) is not a public graveyard rather the family graveyard of ex-landlord namely Taki Mian @ Naki Ali and as such the entry in the Municipal Survey Khatiyan is as ‘ Qabristan of Taki Mian’. 20. It is further submitted that the proceeding was initiated on the basis of complaint petition of one Soni @ Shashi Bhusan dated 11.03.2015 and all the exercises was done by the authority concerned within one year and passed the order dated 11.04.2016. It is also submitted that the plot, in question, is registered as Waqf property in the office of Waqf Board on 26.09.2014, while sale deed of the petitioner is of 23.06.1935 and 10.12.1951. 21. In pursuance of sale deed the petitioner could not be held as encroacher of the Waqf property. It is also submitted that the plot, in question, is registered as Waqf property in the office of Waqf Board on 26.09.2014, while sale deed of the petitioner is of 23.06.1935 and 10.12.1951. 21. In pursuance of sale deed the petitioner could not be held as encroacher of the Waqf property. Learned counsel for the petitioner relied upon a decision of the Hon’ble Supreme Court in the case of Karnataka Board of Wakf vs. Anjuman-EIsmail Madris-Un-Niswan reported in (1996) 6 SCC 343 in which it has been held that: – “The necessary ingredients for the purpose of deciding an issue, whether a property is a wakf property or not, is to examine with reference to any particular property whether there is a permanent dedication by a person professing Islam of any moveable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable or not.” 22. Learned counsel for the petitioner further submits that against the arbitrary order of Chief Executive Officer of the Bihar State Sunni Waqf Board, the petitioner filed a title suit bearing Title Suit No. 06 of 2016 for declaration that Schedule 1 (land in question) property is not Waqf property rather it is an absolute property of the plaintiffs and the plaintiffs have got right title, interest and possession over the same as an absolute owner. It was further sought to be declared that Plot no. 1709 is not a public graveyard and Plot no. 1711 was never a common passage as alleged by the Waqf Board. So the defendants (Waqf Board) be restrained from taking possession of Schedule 1 property by way of interim injunction till the final adjudication of the suit. 23. Learned counsel for the petitioner submits that Title Suit No. 06 of 2016 filed by the petitioner was dismissed in default on 21.06.2022 by the Bihar Waqf Tribunal, Patna, due to non-appearance of the petitioner during pandemic period. It is further submitted that after knowledge of the aforesaid order of the Bihar Waqf Tribunal, Patna, the plaintiff-petitioner filed miscellaneous case bearing Miscellaneous Case No. 40 of 2023, which was also dismissed in default on 17.10.2023 by the Bihar Waqf Tribunal, Patna. It is further submitted that after knowledge of the aforesaid order of the Bihar Waqf Tribunal, Patna, the plaintiff-petitioner filed miscellaneous case bearing Miscellaneous Case No. 40 of 2023, which was also dismissed in default on 17.10.2023 by the Bihar Waqf Tribunal, Patna. It is further submitted that neither date was fixed in the said miscellaneous case nor the petitioner was ever communicated about the date of hearing of the said case and, thus, the petitioner had no knowledge about the date of hearing of the said case at the admission stage. It is further submitted that the petitioner visited the officer of the Bihar Waqf Board on 03.11.2023 and came to know that the said miscellaneous case i.e. Miscellaneous Case No. 40 of 2023 has been dismissed in default on 17.10.2023 by the Bihar Waqf Tribunal, Patna. Thereafter, the petitioner obtained certified copy of the order on the same day and filed Miscellaneous Case (Restoration Petition) No. 45 of 2023 for restoration of Miscellaneous Case No. 40 of 2023 as well as Title Suit No. 06 of 2016, which is pending for its admission. 24. On the other hand, learned counsel for the Bihar State Sunni Waqf Board submitted that the land in question bearing Plot no. 1709 measuring an area of 71 decimals and Plot No. 1711 measuring an area of 38 decimals was recorded in Municipal Khatiyan in the name of Taki Mian @ Naki Ali son of Manan Mian and the nature of land entered in the Municipal Survey Khatiyan is Qabristan and the said land has been registered as Waqf property in the Bihar State Sunni Waqf Board, Patna and it is a Waqf property as per provision of Waqf Act. 25. Since a Mosque, Eidgah, Imambara, Dargah, Khanqah or a Maqbara, mausoleum, Rauza Yateem Khana, Madarsa, Qabristan etc. are waqf by its user and Plot no. 1709 measuring an area of 71 decimals and plot no. 1711 area 38 decimals are Qabristan, so, it is a waqf property. 26. The Bihar State Sunni Waqf Board has filed Eviction Application No. 12 of 2016 before the Waqf Board, Patna for eviction of Munna Yadav @ Ashok Yadav from the Waqf lands. 27. After notices the said Munna Yadav @ Ashok Yadav appeared before Waqf Tribunal and filed detailed reply stating therein, the lands of the plot no. 26. The Bihar State Sunni Waqf Board has filed Eviction Application No. 12 of 2016 before the Waqf Board, Patna for eviction of Munna Yadav @ Ashok Yadav from the Waqf lands. 27. After notices the said Munna Yadav @ Ashok Yadav appeared before Waqf Tribunal and filed detailed reply stating therein, the lands of the plot no. 1709 is not a public graveyard rather it was a private graveyard of Mr. Taki Mian@ Naki Ali, where he was buried and lands of plot no. 1711 is not used as common passage to go to plot no. 1709. Plot no. 1709 measuring an area of 71 decimals has been recorded as graveyard in the Municipal Survey Khatiyan. The sale deed dated 23.06.1935 was executed by Most. Zameerun Nisa Begum @ Chanda Begum in favour of Hazari Lal with regard to plot no. 1711 measuring an area of 38 decimals and in its western side, a graveyard is existing. Even from the map of Schedule no. 218, Ward no. 21/59, there is a road from north to east and in the north-west of plot no. 1711 and in the west of the said, there is plot no. 1709 and map of graveyard has also been shown in the map of plot no. 1709. 28. It is submitted that the land of plot no. 1711 is being used for the purpose of prayer of Namaz-e-Janaza, before burial of dead body and it is also being used as passage to go to the graveyard which is used by local muslims for various purposes. The claim of petitioner is that Nadir Ali and Most. Zameerun Nisa Begum @ Chanda Begum in the year 1951 executed sale deed in favour of Radhe Mohan Singh, son of Hazari Lal relating to land bearing Plot no. 1709 measuing an area of 71 decimals and the boundary has been shown in eastern side as ‘Zameen Parti’ which is contrary to the sale deed of 1935. 29. The definition of “Wakf” as defined under Section 2 (m) of Bihar Waqf Act, 1947, includes Qabristan (Graveyard), Dargah. 30. As per Section 43 of the Bihar State Sunni Waqf Board Act 1947, there cannot be transfer of Waqf property without sanction of Majlis (Now Waqf Board). The date of sale deed of 1951 is 10.02.1951 and at that time, the Bihar Waqf Act 1947 was applicable/enforceable. 30. As per Section 43 of the Bihar State Sunni Waqf Board Act 1947, there cannot be transfer of Waqf property without sanction of Majlis (Now Waqf Board). The date of sale deed of 1951 is 10.02.1951 and at that time, the Bihar Waqf Act 1947 was applicable/enforceable. The said sale deed was executed without sanction/approval of the Majlis and the aforesaid transfer is in contravention and barred under provision of Section 1 of sub-section 43 of the Bihar Act 1947. 31. In view of the provision of law, property of plot no. 1709 and 1711 are Waqf property registered in the office of the Bihar State Sunni Waqf Board and Munna Yadav@ Ashok Yadav has not challenged the said registration of Waqf Property. 32. It is also mentioned that petitioner was not in physical possession of the property in question and only recently when notices were sent by the Bihar State Sunni Waqf Board in the year 2016 under Section 54 of the Waqf Act, then the petitioner took steps for mutation of the said land. The sale deed dated 23.06.1935 and 10.12.1951 are not operational deeds which were never acted upon since last 81 years and 65 years respectively. 33. It is admitted case of the parties that land in question bearing plot no. 1709 measuring an area of 71 decimals and plot no. 1711 measuring an area of 38 decimals are the subject matter of the Eviction Application No. 12 of 2016 and Title Suit No. 06 of 2016. The present petitioner filed Title Suit No. 06 of 2016 on 22.08.2016 and the same was admitted on 31.08.2016. However, the Bihar State Sunni Waqf Board, respondent nos. 4 and 5 filed an eviction application which was admitted on the same day for removal of encroachment from Waqf property against the petitioner being encroacher over plot no. 1709 and 1711 measuring an area of 0.71 acres and 0.38 acres respectively and also held that the petitioner is encroacher of the Qabristan. 34. On the basis of land entry in the Municipal Survey Khatiyan of the year 1932-33, the plot no. 1709 having an area 0.71 acres is mentioned as Qabristan. So far plot no. 1711 measuring an area 0.38 acres is concerned, the said land is situated adjacent to the plot no. 1709 and is used as place of prayer of ‘Namaz e Janaza’. 1709 having an area 0.71 acres is mentioned as Qabristan. So far plot no. 1711 measuring an area 0.38 acres is concerned, the said land is situated adjacent to the plot no. 1709 and is used as place of prayer of ‘Namaz e Janaza’. The said land entered into Municipal Survey Khatiyan and nature of the said land mentioned in the Municipal Survey Khatiyan is ‘Parti Qadeem’. Both these plots are registered under Section 36 read with Section 3 (r)(I)(II) of the Waqf Act in the office of the Waqf Board being Qabristan on 26.09.2014 bearing Waqf registration no. PT-2598/14. 35. Per Contra, the petitioner claimed his right, title and possession on the basis of registered sale deed dated 26.06.1935 with regard to plot no. 1711 measuring an area of 38 decimals (noted in municipal survey khatiyan as ‘Parti Qadeem’) and registered sale deed dated 10.12.1951 with regard to Plot no. 1709 measuring an area 71 decimals (noted in municipal survey khatiyan of the year 1932-33 as Qabristan.) 36. Both the cases bearing Eviction Application No. 12 of 2016 and Title Suit No. 06 of 2016 were filed before the Waqf Tribunal. The Waqf Tribunal decided the eviction application against the petitioner being an encroacher of the said Waqf property, while the declaration of title with regard to property, in question, whether the same is a Waqf property or petitioner’s property is still pending before the Waqf tribunal. The encroachment proceeding/eviction proceeding is summary proceeding without going full-fledged into title of the parties. The court decided eviction application while leaving the title suit pending, where the question of the title of the property is required to be decided involving the same property which is involved in eviction application and title suit. Under such circumstances, the right course was to decide the title suit declaring the title of the property in question belonging to whom (Waqf Estate or Aggrieved party) and only when the court finds the property in question is not belonging to the party aggrieved (plaintiff of the suit), the order in eviction application should be passed holding the occupier of the property, in question, as encroacher and this process be followed in all such cases where the same property in question is involve in eviction application as well as title suit in order to avoid possibility of passing contradictory orders. 37. 37. Title Suit No. 06 of 2016 has been filed for declaration that the suit property is not Waqf property rather it is an absolute property of plaintiff/petitioner and further declaration that the plot no. 1709 is not a public graveyard and graveyard existing on plot no. 1709 is the grave of ancestor of Mr. Taki Mian @ Taki Ali and plot no. 1711 was never a common passage as alleged by the Waqf board and also sought relief for restraining defendants (Waqf board) from taking possession of Schedule 1 property by way of interim injunction. 38. There is a serious dispute with regard to plot no. 1711 measuring an area of 0.38 acres whether the said land is a Waqf property or not in pursuance of sale deed of 1934. So far land of plot no. 1709 measuring an area of 71 decimals is concerned, the said plot entered into the Municipal Survey Khatiyan as Qabristan, with its nature as a waqf property. 39. According to Municipal survey Map of the year 1932-33 bearing Sheet no. 217, the nature of land is Qabristan, In fact, the petitioner himself has not denied the existence of Qabristan. It is well settled that a conclusive proof of public graveyard is the description of the burial ground in the revenue records as graveyard. 40. In the case of Ballabh Das and Anr vs. Nur Mohammad and Anr reported in AIR 1936 Privy Counsel 83 it has been observed as follows: – “If the plaintiffs had to make out dedication entirely by direct evidence of burials being made in the ground, and without any record such as the khasra of 1868, to help them, they would undoubtedly have to prove a number of instances adequate in character, number and extent to justify the interference that the plot of land in suit was a cemetery. XXX The entry “qabristan” in the khasra of 1868 has to be taken together with the map which shows the whole of plot 108 to be a graveyard.” 41. In view of the fact that the whole area bearing plot no. XXX The entry “qabristan” in the khasra of 1868 has to be taken together with the map which shows the whole of plot 108 to be a graveyard.” 41. In view of the fact that the whole area bearing plot no. 1709 was described as graveyard in the Municipal Survey Khatiyan of the year 1932-33 it is certain that the graveyard had been in existence for a long time and the admitted fact is that since then it has been a Qabristan by its presumptive evidence and the land had been set apart for use as a burial ground by user, if not by dedication, the land is Waqf property. It is still used as Mohammedan graveyard and the Muslims are so using which is admitted. 42. In my view, once it is found that a certain definite area of land has been dedicated for use as graveyard, it must be presumed as such even in absence of any proof that the dedication was limited, that the whole of the land was set apart to be used solely for the purpose of burrying dead bodies. 43. The petitioner raised question about the nature of the Qabristan (graveyard). As per his case, the said Qabristan bearing entire plot no. 1709 is a private Qabristan of Mr. Taki Mian @ Naki Ali, who was the owner of the said land. 44. In Mohammad Kassam vs. Abdul Gafoor reported in AIR 1964 Madhya Pradesh 227, the High Court of Madhya Pradesh, while trying to distinguish between a private graveyard and a public graveyard observed as follows: – “On this point suffice it to say that we are of the view that a Kabristan cannot be a private Kabaristan unless it is used for the family members exclusively. Once the public are allowed to bury their dead it ceases to be a private property. XXXXX There was no discrimination about the user. It was being used by the predecessors of the defendants as well as by the public. This will indicate that it was not a private Kabaristan. Under the Mohammedan Law if a land has been used from time immemorial for burial ground then the same may be called a wakf although there is no express dedication.” 45. The question involved in this case is that whether the owner has right to sell the private graveyard/public graveyard or not. Under the Mohammedan Law if a land has been used from time immemorial for burial ground then the same may be called a wakf although there is no express dedication.” 45. The question involved in this case is that whether the owner has right to sell the private graveyard/public graveyard or not. In my view, either the graveyard is private or public, the owner of the land has no right to sell the Qabristan land which has been used since time immemorial or for a considerable long time. The case of the petitioner in Title Suit No. 06 of 2016 is that the plot bearing Plot No. 1709 is a private Qabristan and therefore, even as per the case of the petitioner the said plot could not have been alienated. By virtue of being private Qabristan, the nature of property being inalienable, the transfer could not be held to be legal and valid. It is, thus, apparent that the land in question, being part of schedule in Title Suit No. 06 of 2016 remains a waqf land as per the Mohammadan law. 46. In the above discussion made above, it appears from Municipal Survey Khatiyan and Municipal Survey Map that plot no. 1709 measuring an area of 71 decimals was being used as graveyard. So far plot no. 1711 is concerned, the nature of the land mentioned in the Municipal Survey Khatiyan as ‘Parti Qadeem’ which was in possession of Naki Mian son of Nanhan Mian. The petitioner purchased 38 decimals of Plot no. 1711 from the heirs of Taki Mian @ Naki Ali. The claim of the Bihar State Sunni Waqf Board is that the said land was part of the Qabristan which has been used as way to Qabristan as well as used for the purpose of “Namaz e Janaza”. 47. All aspect with regard to ‘Parti Qadeem’ bearing Plot No. 1711 ad measuring 38 decimals and its nature is required to be decided in Title Suit No. 06 of 2016, as to whether the same is Waqf or not. 48. 47. All aspect with regard to ‘Parti Qadeem’ bearing Plot No. 1711 ad measuring 38 decimals and its nature is required to be decided in Title Suit No. 06 of 2016, as to whether the same is Waqf or not. 48. In the facts and circumstances of the case as well as in view of the discussion made herein above, the impugned order dated 29.11.2018 passed in Eviction Application No. 12 of 2016 is hereby set aside and the Waqf Tribunal is directed to look into all aspects of the case, as discussed above with regard to Plot No. 1709 measuring an area 71 decimals, which is admittedly a graveyard. As far as Plot No. 1711 measuring an area of 38 decimals is concerned, its nature is also required to be determined by the Waqf Tribunal for which the Eviction Application No. 12 of 2016 is being relegated to the Waqf Tribunal to decide the same along with Title Suit No. 06 of 2016 preferably within a period of one year. 49. However, it is made clear that the suit bearing Title Suit No. 06 of 2016 shall be tried only if the same is pending or is restored to its original file and number. 50. It appear that in the order no. 19, date of order has wrongly been mentioned as “30.11.2023” in place of “10.11.2023”. The said order stands modified and corrected accordingly. So, let the order dated “30.11.2023” appearing in order no. 19 be read “10.11.2023.”