Abdul Rahman & Ors. v. G.Rajeshwari & Ors.

THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY CIVIL REVISION PETITION Nos.3456, 3757 and 3781 of 2012 COMMON ORDER: These civil revision petitions are filed against common order dated 19.6.2012 passed in I.A.Nos.55, 56 and 57 of 2012 (I.As) in O.S. No.54 of 2003 on the file of the Court of Junior Civil Judge, Kodangal. The petitioners herein are also the petitioners in the I.As and defendants in the suit whereas the respondents herein are also the respondents in the I.As and plaintiffs in the suit. I.A.No.55 of 2012 was filed under Section 151 of the Code of Civil Procedure, 1908 (CPC) to set aside order dated 30.6.2011 passed in the suit closing the evidence and reopen the evidence of defendants. I.A.No.56 of 2012 was filed under Order VII Rule 14 read with Section 151 of CPC to condone delay in filing documents and to receive them. I.A.No.57 of 2012 was filed under Order XIV Rule 5 read with Section 151 of CPC to recast and frame additional issue as “Whether the Hon’ble Court is having jurisdiction to entertain the suit”. The suit was filed by the plaintiffs for permanent injunction in respect of the suit schedule property whereas the I.As were filed in order to show that the suit schedule property happened to be Wakf property and not the property of plaintiffs who thereby got no right to seek for the relief of injunction in respect of the property. Earlier defendants filed I.A.Nos.123 and 124 of 2011 to reopen the matter and frame the issue about the question of jurisdiction, which were dismissed by order dated 30.8.2011 against which CRP Nos.4201 and 5705 of 2011 were filed before this Court. The claim of defendants is that while the earlier CRPs were pending they approached the District Collector, Mahaboobnagar, Andhra Pradesh State Wakf Board, Hyderabad and other officers, and came to know that the suit schedule property was Wakf property which was published in the A.P.Gazette on 24.1.2002 in accordance with Sections 4 to 6 of the Wakf Act, 1954. Hence the property comes under Section 3(o) & (r) of Wakf Act, 1995. But as they could not obtain necessary documents the earlier CRPs were dismissed on

02.2.2012. Further, thereafter, they obtained the documents now sought to be marked by reason of which necessary measures are to be taken. In fact in the suit they have taken the plea that they purchased the property from one Pitla Mallaiah by reason of which they got right and title over the property. In view of the changed circumstances, they pleaded that they got only right of possession but not any title over the property. The claim of the plaintiffs is that the defendants cannot take new plea contrary to the pleas taken in their written statement earlier. When once the petitions filed earlier for the same reliefs were dismissed, the very same issues cannot be raised again. Apart from that it is important that this Court confirmed the order passed in the earlier I.As vide order dated 30.8.2011. The Court below dismissed t h e I.As on the ground that the plea in question taken was not supported by the pleadings of the defendants by reason of which the question of receiving the documents and the question of framing additional issue in that behalf would not arise at all. Further the suit was posted for arguments. Learned counsel for defendants has contended that when the suit was filed for permanent in respect of the suit schedule property, it is relevant as to whether the property belongs to defendants or the Wakf Board. Therefore, in that view of the matter, the petitions are tenable. On the other hand, learned counsel for the plaintiffs has upheld the observations made by the Court below while disposing of the I.As. What is important here is that the plea in question taken by the defendants is altogether a different from their pleadings. Earlier in their written statement they had taken the plea that having purchased the property from Pitla Mallaiah, the original owner, they became the absolute owners of the property and accordingly they had been in possession and enjoyment of the property. They cannot go beyond the pleadings. That can be done if suitable amendment can be brought about subject to law. Significantly in the I.As filed earlier the same plea was taken seeking for the same relief which pleas were rejected following which CRP Nos.4201 and 5705 of 2011 were filed but they were also dismissed. In fact this Court while disposing of the CRPs observed as follows. Admittedly, the petitioners have not taken the plea in the written statement that the property is wakf property. But basing on the subsequent development in O.S.No.28 of 2002, they filed the impugned I.As. Further the petitioners have not placed any record before the Court below even though it is argued by them that the said property is declared as wakf property by notifying the same in the official gazette. In the absence of any such document filed, the Court below is not in a position to appreciate the contention of the petitioners. Therefore, in the absence of any authenticated document, the Court below rightly dismissed the impugned I.As., which do not warrant any interference by this Court in exercise of its supervisory jurisdiction under Article 227 of Constitution of India. Thereby the same pleas now cannot be taken up. Pertinently the matter has been coming up for arguments. In Shameem Sulthana v Syed Ibrahim Quadri , this Court [1] considered the same question. The corresponding suit was filed by the respondents/plaintiffs therein for perpetual injunction in respect of the property scheduled therein claiming to be the absolute owner of the property. The petitioner therein/defendant in the suit took a plea that it happened to be Wakf property by reason of which the concerned Civil Court got no jurisdiction. The defendant also filed I.A. to return the plaint filed for the purpose of presenting it before the Wakf Tribunal. The IA was dismissed and then the matter was brought to this Court which was allowed. But the same analogy is not applicable herein when the pleadings of the defendants are quite different. Anybody interested in the Wakf property actually can take necessary action as per law. Therefore, there are no merits in these civil revision petitions. With the observations made, the civil revision petitions are dismissed. Miscellaneous petitions pending if any shall stand closed. No order as to costs. _________________________________ (G.KRISHNA MOHAN REDDY, J) December , 2012. YS [1] LC 2011 (12) AP 179 : CRP No.744 of 2008, dated 12.11.2010