The High Court · 2025

THE HoNOURABLE SRI JUSTICE N'TUKARAMJI clvll- REVISION PETITI ONN o. 6099 0F _2012 ORDER Heard ''Vls; Siamhitha Nimmala' learned counsel' representing Mr.Vivek Jain lerrlrned counsel on record for the revision pet tioner' ln spite of listing :he matter under the caption 'For Orrjers" the respondent cltor;: to remain absent-

2. This rev'r; crn petition has been filed assailing the dr:cree and judgment datecl ' O 1O2O12 in O S No 85 of 2OO4' on the file of the Andhra Prad,;'sh State Wakf Tribunal' Hyderabad (for shorl 'the Wakf Tribunal')

3. The s-rl rvas filed by the respondent/plaintiff (W'aqf Board) (hereinafte''tir: r:laintiff') with a prayer for recovery of Iacart peaceful possessiorr r, t1e graveyard, situated in Sy No 8' adnreasuring Ac'1- 10 gts., s'trale cl at Balapur Village' Saroor Nagar tv4anrial' Ranga Reddy District b'y way of direction to the revision petitoner/defendant (hereinafte'r 'tttr: defendant') and for mandatory iniunr:tion to remove the structtlre(i rtade in the graveyard to the extent of 1'500 square yards in Siy Nc.3, situated at Balapur Village' Saroor Nallar Mandal' (for short 'thr: subiect land'). The Wakf Tribunal vide lhe impugned judgment dr:c"tlr:d the suit by observing that the revtsion p':ditioner had - j ilr.arr,B@tt t. r :':.i, . -r':ta: "r_' --- I I l I 1 i 1 I ! : , I I t I I , { { t I iI i II NTR" J C.R.P.No.6099 of2012 encroached 1,500 square yards of graveyard land and directed the defendant to hand over vacant possession of the subject land. Further, granted mandatory injunction to remove three buildings constructed within the area of 'l ,500 square yards within 60 days from the date of the judgment. Aggrieved thereby, the defendant preferred this revision a.(i). The plaintiff's case in brief is that in Sy.No.8 at Balapur Village, Saroornagar Mandal, Ranga Reddy District, there is a graveyard admeasuring Ac.1-'10 gts., which is registered Wakf property and the plaintiff came to know through their lnspector/Auditor that the defendant had occupied graveyard by removing some graves and proceeding with the construction. Whereupon, a direction was given to its task force for inspection and report and a reporUEx.A-3 was submitted, whereby it came to their knowledge that the defendant is going ahead with the construction within the extent of 1,500 square yards. Thus, a letter/Ex.A-4 was addressed to the [Vlandal Revenue Officer for survey and to demarcate the graveyard. However, the request remained unattended. Thus, filed the suit seeking possession and mandatory injunction.

4.(ii). On the other hand, the defendant in written statement denied the qlaintifFs contention and the allegation of occupation of any part of the \ \ re;,",r:- 'r:El: - 1Y. mer. .\,1R, J C.R P...tr, 6099 of 2012 3 graveyard ffurllt l€)ss making any construction. He had pleraded that the construction s a house in the plot purchased by hirn in Sy.No'7, from the pattadiu one B.Narsimha Rao. He specifically ple'aded that 70 square !a-crri n Plot No.8 in Sy.No.7 is distinct from the survey number clairn':r1 by the plaintiff. lt is also his case tha in 2004' the Revenue depi'rrtntr:nt through lVlandal Surveyor conducted s lrvey and demarcated tlrer l>r:undaries of Sy.No.B i.e. plaintiff's claime<J property and also the h c u r laries were fixed and he is not in possess on of any part of Sy.Nr: l lhus, the plaintiff is not entitled for the decree 4(iii). The Tritrural having considered the rival claims framed following issues for trial

1. lArh'=ther the plaintiff is entitled for recovery lf p:lssesslon a to trandatory injunction.

2. Tt wt at relief? 4(iv) Durinly 'r,it , the plaintiffAlVaqf Board got examinecl lts lnspector from its Audit Cr'1ir;e as PW-1 and got marked Exs.A-1 to A-(:i On the other hand, t rr: clefendant got examined himself as frW-.l and got marked Exs B-' tc B-3. 4(v). The Tril>unal on considering the materials placed rln ri:)cord and by observinly thert the material filed by the plaintiff and the adrnission of defendant as to ,lrnstruction, which is making out cons:ruclion within kk-r-* X 4 NTR, J C.RP.No.6099 of 2012 the area of 1100 square yards in two buildings and another part is under construction and as the plaintiff had established that the portion constructed and under construction was encroached by the defendant, held that the defendant is liable to hand over the possession of the vacant land by removing the constructions.

5. ln appeal, Iearned counsel for the revision petitioner/defendant (hereinafter'the defendant') would submit that the materials placed by the respondenVplaintiff (hereinafter 'the plaintiff) are falling short to prove the contended fact that there was encroachment of 1500 square yards by the defendant. She further pleads that the plaintiff had made a vague claim in so far as suit relief is concerned even in the plaint. That apart, though there is no dispute as to ownership of the plaintiff to the extent of Ac.1 -01 gts., in Sy.No.8, it is incumbent on the plaintiff to establish that part of i.e. 1 ,'1 00 square yards of that property has been occupied or encroached by the defendant. None of the documents including the report of task force is making out of the fact that the defendant is in occupation of any part of the ptaintiff's land/graveyard_ Without clinching that fact, the Wakf Tribunal, merely on the evidence of PW-1 that, the construction is near the boundary of their graveyard, recording conclusion that the defendant had encroached into the plaintiffs property is unsustained. Furthermore, the plaintiff could have got surveyed the properties to resolve the dispute. However, without \ 1t--: _-,-ri, rttitt"',:. .., ]V7R, / t .tl l'..\,t t;099 of 2012 5 such an exercis:() filing the suit would be a premature actioll and the Wakf Tribtrn a without considering these essential aspects unreasonabl/ de,r:reed the suit. Thus, prayed for re-app'reciation and to set aside th,: inttrugned judgment.

6. I have' ;;rr,:fully considered the submissions and pe'used the materials on rr)c:r)'rj

7. ln the abcvr: contentions of the defendant, the asoecls emerge for determinrat ort are 1 z l\/hetlter the plaintiff had esfab/rsherl 'he etloro?chment of the defendant over its propefty' t\/h,tther the Wakf Tribunal had propt'rly ap;tr=ciated the materials/evidence placed by lhe p )t1ies to arrive at conclusions in the Sutt?

3. Tt nt,at relief? B. Point No.1: property i6 $v.tr,1,1.$ to an extent of Ac.'1-01 gts., situated :;l Balapur Admittedly, the plaintiff h;ad rotilied Wakf Village. Th: derfendant's contest is that his property Iies arljacent to Sy.No.7 anl rrt part of graveyard has been occupied by him as contested in tlre r;uit. The Gazette Publication/Ex A-1 is subi;tantiating that the pl aintifl in Sy.No.8 is having graveyard with ;,t specific boundaries rrd tte tMutawalli of the property is the \A1akf Board Ttxx::wffie1 !t tt ..:.:".*ra; . ,,a,t;a'-', 6 NTR, J C.R.P.No.6099 oJ20l2

9. lt is also clear by the pleadings that the ptaintiff is not claiming any property in Sy.No.7. lt is clear by the entries in the Wakf Gazette that northern western portion the Waqf property is bounded by Sy.No.7.

10. As the specific claim of the plaintiff is that the defendant had encroached Wakf Board property, the burden is on it to prove that fact.

11. To substantiate the claim, the plaintiff through pW-.| got marked the report of the task force/Ex.A-3. The entries in Ex.A-3 are referring to the spot inspection conducted by them and the fact that they have noticed construction of the house by the defendant, which was at the stage of slab level and their enquiry revealed that the construction is being carried out in his patta land i.e. in Sy.No.7 and theiradvisetothe defendant that to stop construction till a joint survey is conducted and in the report they have recommended Chief Executive Officer of the Wakf Board to address a letter to the Mandal Revenue Officer, Saroor Nagar, for joint survey in respect of Sy.Nos.7 and B of Balapur Village. ln consequence, the Chief Executive Officer, Wakf Board, had addressed a letter/Ex.A-4 wherein requested for deputing the Mandal Surveyor for demarcation of S.Nos.7 and 8 along with Wakf Board '.$urveyors for taking further action. Ex.A-S is another letter from the \ \ r:-'1ei;.-,f \.TR, J r-. ]' r |t.6A99 of2012 7 District Rev,:nLrr: Cfficer to the Assistant Commissicner of Wakfs for conducting sL rv€,\/ of the spot and affix the boundiaries of the burial ground and tr trke all necessary preventive measures lhe other material plar;ed i:; photographs (8 in number)iEx.A-6. I

12. A carr:frrl r:ading of these materials is indicating that trough the construction tnerrlr: by the defendant is contended to be within the graveyard ol:hr: plaintiff, i.e., in Sy.No.8, this f,act remained inconclusive ancl unconfirmed. lt is pertinent to note ttrat in the cross-exam n;ltilr , the lnspector of the plaintiff/PW- 1 made a categorical starte rrnent that the under construction hous;e of the defendant ir; r)n lhe boundary of the graveyard. The srrme assertion has been refl,a,:t,:d in the defendanUDW-'l 's evidence. A <.umulative reading of r her materials placed by the respondt:nt/tr:,laintiff is demonstratirg :hat in regard to the dispute as to encroachnrent, there was comm Jr ir;at on for conducting joint survey, bu' nc: material including the re:1r,rrt of the task force/Ex.A-3 made any r;onclusive observation tlrzl the construction work of the defendant is within the premises of grarrr.'yard or falls within the Sy.No.8. 13 On the o:trr-,r hand, the documents filed by ilhe Ceferndant i.e. sale deed/E:x Et- I administrative sanction for constru()tiorr and the certification/E;<i; [].2 and B-3 are referring to the constructon of the &f:.-"',:;,I1'-l:. -.. -:-::r,&,ri:: -!sL& .t . i::itt rsii;t! '.r-- It NTR, J C.R.P.No.6099 of 201 2 8 revision petitioner/defendant in Plot No.8 of Sy.No.7. Therefore, the plaintiff placed materlals before the Wakf Tribunal are evidently falling short to make out the fact of defendant's encroachment and the positive evidence placed by the defendant that he is making construction under proper permission from the Grampanchayath, Balapur, is within Sy.No.7, which is within distinct survey number. That being the factual position, the conclusion that can be drawn is that the plaintiff had failed to establish the foundational fact that the defendant had encroached or the defendant's constructions are within the graveyard land or Sy.No.8.

14. Point Nos.2 and 3: For the aforesaid reasons, in the absence of material evidence, the Tribunal recording finding that the defendant had encroached 1500 square yards of plaintiffs property stands unsustainable. ln consequence, directing the defendant to hand over vacant possession or removing the buildings cannot be accepted.

15. Given these circumstances, it shall be held that the Wakf Tribunal gravely erred in considering the material evidence in proper perspective and arrived at unfounded conclusions. On account of this, the impugned judgment is liable to be and is accordingly set aside. ln effect, the Civil Revision Petition is allowed and the impugned i\;I R, .l (:.ll 1..\'o 6099 o/ 2012 9 judgment date,rc 1).10.2012 in O.S.No.85 of 2004 s set a:;ide No Pendirrg rrriscellaneous applications, if any, shall st;and closed //TRUE COPY// P.PADMANABHA REDDY &EPIJTY REGISTRAR SECI-ION OFFICER To, W PM

1. The Andhra [)r rlesh State Wakf Tribunal, Hyderabad. 2. One CC trr SFt VIVEK JAIN Advocate [OPUC] 3. One CC trr lillt N4lR MASOOD KHAN Advocate [OPUC] 4. Two CD (;olie ,s,. HIGH COURI' DATED:04n2!.i2025 ORDER CRP.No.6099 of 2012 \tii SLi 2 6 ili! 16 )'t D \i a f.(' i' ALLOWING'I'HE CIVIL REVISION PETITIOhI (, 1 \,1 1 l 1rn t