High Court

Legal Reasoning

cra-25-2025.odt(1)IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL REVISION APPLICATION NO. 25 OF 2025WITH CA/853/2025Chief Officer, Municipal Council, Paithan, Tal. Paithan, Dist. Chhatrapati Sambhajinagar, through its Chief Officer. Santosh Dagdu Agle, Age: 44 years, Occu: Service, Presently working as Chief Officer. Municipal Council, Paithan, R/o. Paithan, Tal. Paithan, Dist. Chhatrapati Sambhajinagar....ApplicantVERSUS1.Shafiqe Saruddin Awghad, Age: 42 Years, Occu: Labour, R/o. Kardi Mohalla, Infront of Abuzer Masjid, Paithan, Tal. Paithan, Dist. Chhatrapati Sambhajinagar2. Jaker Mahboob Awghad. Age: 48 Years, Occu: Labour, R/o. Kardi Mohalla, Infront of Abuzer Masjid, Paithan, Tal. Paithan, Dist. Chhatrapati Sambhajinagar3. The Maharashtra State Waqf Board, Through its Chief Executive Officer, Panchakki, Chhatrapati Sambhajinagar. Dist. Chhatrapati Sambhajinagar..Respondents...Advocate for Applicant : Mr. Y.V. KakadeAdvocate for Respondent Nos.1 & 2 : Mr. J.A.H. Deshmukh Advocate for Respondent No.3 : Mr. N.B. Deshmukh... CORAM : S. G. CHAPALGAONKAR, J.RESERVED ON : MAY 05, 2025 PRONOUNCED ON : MAY 07, 2025 cra-25-2025.odt(2)JUDGMENT :-1.The applicant/original defendant no.1 impugns the orderdated 01.10.2024 passed below Exhibit-18 by the Maharashtra StateWaqf Tribunal, Chhatrapati Sambhajinagar in Waqf Suit No.115 of2024.2.Respondent nos.1 and 2 instituted Waqf Suit No.115 of2024 seeking relief of declaration that land C.T.S. No.648, SheetNo.59 admeasuring 1856.50 Sq. meters situated at Paithan DistrictAurangabad is waqf property of graveyard on Masjid Moti Awghadand consequential relief of perpetual injunction restraining defendantno.1 from raising any construction or development over suit property.It is contention of plaintiffs that Masjid Moti Awghad along withgraveyard is in existence since before 1973 and same has beengazetted as waqf property. The open area situated beside Masjid MotiAwghad is used for graveyard since more than 100 years. Theplaintiffs are successive Mutawali of waqf institution and maintainingthe affairs of said waqf institution. Further, being Muslim person byvirtue of Section 3(k) of Waqf Act, 1995, they are interested person toprotect the waqf property. Previously, Regular Civil Suit No.98 of1977 was instituted on behalf of waqf in the Court of Civil JudgeJunior Division, Paithan seeking declaration and possession of part ofarea encroached by defendant no1, said suit has been decreed videjudgment and order dated 10.12.1993. However, behind back of cra-25-2025.odt(3)plaintiffs and Waqf Board, defendant no.1 got mutated its name incity survey record. The defendants are trying to install some kind ofstructure on suit property. Therefore, plaintiffs moved an applicationdated 19.03.2024 to defendant as well as Tahsildar, Paithan to desistfrom carrying any activity on suit property. However, defendantasked them to raise grievance in the Court. 3.Defendant no.1 caused his appearance and filedapplication Exhibit-18 seeking rejection of plaint in exercise of powerconferred under Order VII Rule 11 (a)(d) of Civil Procedure Code,firstly on the ground that suit is barred by Section 304 (1)(b) of theMaharashtra Municipal Councils, Nagar Panchayats and IndustrialTownships Act, 1965. Secondly, suit is barred by limitation. TheWaqf Tribunal after hearing the parties rejected the application videimpugned order dated 01.10.2024. Hence, this civil revisionapplication. 4.Mr. Kakde, learned advocate appearing for applicantvehemently submits that name of Municipal Council has beenmutated in city survey record since 1987. Further, Regular Civil SuitNo.98 of 1977 was filed on behalf of waqf against defendant no.1seeking relief of declaration and injunction. In that suit, the claimwas restricted to 4 R land situated adjacent to Masjid. The plaintiffswere aware about ownership and possession of defendant no.1, wherea garden has been developed. Mr. Kakde would further submit that cra-25-2025.odt(4)limitation for suit seeking relief of declaration of ownership is threeyears under Article 58 of Limitation Act. The Plaintiffs had first causeof action when they instituted suit in the year 1977 and thereafterwhen the name of defendant/municipal council is mutated in the year1987 in city survey record. As such, right to issue accrues to plaintiffsin the year 1977, thereafter in the year 1987. The cause of action aspleaded in the plaint is fictitious and elusory. Mr. Kakde furthersubmits that suit is not preceded by statutory notice in terms ofSection 304 (1)(b) of the Maharashtra Municipal Councils, NagarPanchayats and Industrial Townships Act, 1965, hence, barred by law.According to him, the Waqf Tribunal has committed serious errors ofjurisdiction while rejecting plea of defendant seeking rejection ofplaint. 5.Per contra, Mr. J.A.H. Deshmukh and Mr. N.E. Deshmukh,learned advocates appearing for respective respondents supports theimpugned order. 6.Having considered submissions advanced and uponperusal of impugned order, apparently defendant no.1 seeks rejectionof plaint firstly on the ground that, suit is barred by law in light ofprovisions of the Maharashtra Municipal Councils, Nagar Panchayatsand Industrial Townships Act, 1965, secondly, it sans cause of actionand thirdly, the suit is barred by limitation. cra-25-2025.odt(5)7.Section 304 (1)(b) of the Act stipulates that any suitinstituted against Municipal Council shall be preceded by service ofnotice. However, as rightly observed by Waqf Tribunal, such barwould not apply to any suit filed under Section 38 of Specific ReliefAct, 1963 and other reliefs claimed under that Act. Therefore, firstobjection as to bar contemplated under Section 304 holds no water. 8.The second contention raised on behalf of defendant isthat plaintiffs had first cause of action in the year 1977. Declarationof ownership ought to have been sought within a period of three yearsfrom the date of such cause of action. Perusal of plaint in previoussuit of 1977 shows that limited relief was sought in respect of 4 Rland adjacent to Masjid and it is not clear whether suit propertytherein was part of C.T.S. No.648, Sheet No.59 admeasuring 1856 sq.mtrs. Whether the suit property and cause of action shown in earliersuit has any resemblance with suit property or cause of action in thepresent suit cannot be ascertained at this stage. It may require trialand recording of evidence. 9.As rightly observed by the Waqf Tribunal, present suit isinstituted asserting that defendants are now trying to install somekind of structure on suit property and therefore, theapplication/notice was given to defendant no.1 and Tahsildar, whodirected plaintiffs to approach the Court. It is difficult to drawconclusion that cause of action pleaded in the plaint is elusory or cra-25-2025.odt(6)camouflage. It would require trial. Even limitation of three yearsprescribed under Article 58 of Limitation Act, will have to becountered from the date when right to sue first accrues. As plaintiffshave pleaded cause of action of 2024. Merely because C.T.S. entriesare in favour of defendant no.1 since 1985, suit cannot be treated asbarred by limitation. In present case, clear finding as to first cause ofaction cannot be recorded on the basis of pleading of plaint anddocuments annexed thereto. It would be mixed question of law andfact to be answered in trial.10.Recently, the Hon'ble Supreme Court of India in the caseof P. Kumarakurubaran Vs. P. Narayanan and Ors (Civil AppealNo.5622 of 2025) decided on 29.04.2025 observed that whether theappellant had prior notice or reason to be aware of the transaction atan earlier point of time, or whether the plea regarding the date ofknowledge is credible, are matters that necessarily requireappreciation of evidence. At this preliminary stage, the avermentsmade in the plaint must be taken at their face value and assumed tobe true. Once the date of knowledge is specifically pleaded and formsthe basis of the cause of action, the issue of limitation cannot bedecided summarily. It becomes a mixed question of law and fact,which cannot be adjudicated at the threshold stage under Order VIIRule 11 CPC. Therefore, rejection of the plaint on the ground of cra-25-2025.odt(7)limitation without permitting the parties to lead evidence, is legallyunsustainable. 11.In light of aforesaid exposition of law, in present case, thequestion as to starting point of limitation or the first cause of actioncan be decided when parties are put to lead evidence. It would bepremature to record finding that cause of action is camouflage orelusory on the basis of material available. Therefore, this Court holdsthat civil revision application sans merit. Hence, dismissed.12.Civil Application No.853 of 2025 stands disposed ofaccordingly.(S.G. CHAPALGAONKAR, J.)Mujaheed//