High Court

Legal Reasoning

{1} CRA 72.2010.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL REVISION APPLICATION NO. 72 OF 2010Shaikh Mahboob @ Quadeer S/o. ShaikhGafoor, Age 41 years, Occ. Mutawalli of Dargha Shahbnoor Shakkar Gutti (Rh) &Labour R/o. Indira Nagar,Baijipura, Aurangabad... PETITIONERVERSUS1.Kishor Beneficial Trust,through its Trustee,Shekhar Champalal Desarda,Anukrupa, 28, Venkatesh Nagar,Opp. Jalna Road, Aurangabad.2.Shekhar Champalal Desarda,Age Major, Occ. Business,R/o. As aboe.3.The Municipal Corporation,Aurangabad, through itsCommissioner, Aurangabad.4.Maharashtra State Board of Wakf,Through its Chief Executive Officer,Office at Panchakki, Aurangabad...RESPONDENTS.Mr. S.S. Kazi, Advocate for applicant,Mr. M.S. Deshmukh, Adv. h/f. Mr. A.D. Mane, Advocate for respondent Nos. 1 and 2.Mr. A.P. Bhandari, Advocate for respondent Nos. 2 and 3,Mr. N.E. Deshmukh, Advocate for respondent No.4. CORAM : S.G. CHAPALGAONKAR, J. RESERVED ON : 15th JANUARY, 2025. PRONOUNCED ON : 11th FEBRUARY, 2025. {2} CRA 72.2010.odt JUDGEMENT :-1.Rule. Rule made returnable forthwith. By consent oflearned advocates appearing for parties, heard finally at admission stage.2.Applicant/plaintiff impugns the judgment and order dated30.3.2010 passed by Presiding Officer, Maharashtra Wakf Tribunal,Aurangabad in Wakf Suit No. 227 of 2006 by which suit of the plaintiffseeking a decree of perpetual injunction against respondents/defendantshas been dismissed.For sake of convenience, parties hereinafter are referred byoriginal status in the suit.3.Plaintiff filed Wakf Suit No. 227 of 2006, before theMaharashtra Wakf Tribunal, Aurangabad seeking a decree of perpetualinjunction against defendants in respect of property bearing CTS No.12240/24 situated at Bayjipura, Indiranagar, Aurangabad particularly, asspecified in claim clause, which is alleged to have been dedicated toDargah Shahnoor Gutti (Rh) and Dargah Jalaluddin (Rh.). According toplaintiff, he is Mutawalli of aforementioned Wakf Institution. The areaadmeasuring 892.5 Square Meters is dedicated for religious services ofDargah. Defendant Nos. 1 and 2 have no concern or right over the aboveland, but they are raising false claim and encroaching over wakf land.They are in the mindset of dispossessing the plaintiff. Defendant No.3Municipal Corporation has granted permission in favour of defendantNos. 1 and 2 to construct a garden on the suit land vide order dated2.4.1997. Plaintiff resisted defendant No.2 from utilizing land belongingto Dargah, so also, made representation to the Corporation to stop {3} CRA 72.2010.odtdefendant Nos. 1 and 2 from raising construction of garden. However,defendants did not respond. Hence, plaintiff seeks relief that defendantNos. 1 and 2 be restrained from interfering in peaceful possession of theplaintiff over suit land, further seeks perpetual injunction againstdefendant No.3 Municipal Corporation from granting permission infavour of defendant Nos. 1 and 2 to raise construction or create a gardenon the suit land.4.Defendant Nos. 1 and 2 filed written statement refuting theclaim of the plaintiff. They specifically denied that suit land admeasuring862.5 square meters from CTS No. 12240 is Wakf property. Theycontends that originally land was owned by Nandlal Jaiswal and AkbarAli Gulam Hussasin. The Municipal Corporation and defendantsconstructed a compound wall surrounding grave administering 30 x 30feet. The sanctioned layout of CTS No. 12240 shows open space has beensurrendered by original owners in favour of Municipal Corporation byregistered Relinquishment Deed dated 9.8.1983. Eventually, MunicipalCorporation allotted same to defendant Nos. 1 and 2 for development ofa Children Park. Plaintiff was never in possession of the suit property butraised a false claim. Construction permission granted by defendant No.3in year 1997 has never been challenged by plaintiff under the BombayProvincial Municipal Corporation Act. Same has attained finality. Theissue as to validity of such permission cannot be raised before the CivilCourt.5.Defendant No.3 – Municipal Corporation filed separatewritten statement and raised the issue as to maintainability of the suit forwant of service of mandatory notice before instituting the suit. It is {4} CRA 72.2010.odtcontended that the suit is filed on the basis of false and fabricateddocument by suppression of facts. It is contended that Nandlal Jaiswaland Akbar Ali Gulam Hussain were owners of the property. Theysubmitted layout for sanction. It has been sanctioned vide order dated9.8.1983, They surrendered area of open space vide agreement dated9.8.1983 in favour of the Corporation. Since then, defendants are inpossession of open space in Survey No. 27, CTS No. 12240. Thereafter,on 2.4.1997, Municipal Corporation granted permission for developingopen space and construct Children Park. Plaintiff has no locus-standi tofile the suit. The suit is not maintainable in the present form.6.The Wakf Tribunal framed issues, recorded evidence of theparties and finally dismissed the suit vide judgment and order dated30.3.2010 which is assailed in this Revision.7.Mr. S.S. Kazi, learned advocate for the applicant submits thatthe suit property belongs to the Dargah which has been registered as aWakf. He invites attention of this court to the extract of Register of Wakfdepicting registration of Dargah since 27.8.1988 as a Wakf. He wouldfurther invite attention of this Court towards entries of land andimmovable properties of Wakf, wherein, the four boundaries of suitproperty admeasuring 892.5 Sq. Meters has been recorded in the name ofWakf. He would further submit that defendants have not disputedexistence of Dargah in CTS No. 12240. Further there is no challenge tothe registration of Wakf and description of suit properties depicted inWakf Register. Mr. Kazi further invites attention of this Court to the orderdated 17.3.2010 passed in C.R.A. No. 37 of 2019 by which this Courtwas pleased to set aside an order passed by Tribunal below Exhibit 71, {5} CRA 72.2010.odtpermitting defendant No.3 to lead secondary evidence as regards toExhibit Nos. 90 and 91. Mr. Kazi would submit that in spite of aforesaidorder. The documents at Exhibits 90 and 91 have been considered by theTribunal while passing the impugned order. According to Mr. Kazi,learned Tribunal failed to consider effect of registration of Wakf andentry of suit property in the Register of Wakfs. The Wakf Board has alsosupported plaintiff. Defendants could not establish their claim as to theownership. Learned Tribunal recorded erroneous finding on the materialissues in absence of record depicting ownership of Municipal Corporationover CTS No. 12240 of 2024 or land Survey No. 27. The Tribunalerroneously observed that since Wakf institution is not Gazetted or Wakfis registered recently in year 1988 plaintiff’s claim is not accepted. Hewould submit that there are three modes of registration of Trust. Gazettepublication is one of such modes. Therefore, every wakf need not benecessarily Gazetted. Therefore, adverse presumption could not havebeen drawn only for the reason that the plaintiff Wakf is not Gazetted.8.Per contra, Mr. M.S. Deshmukh, learned advocate forrespondent Nos. 1 and 2 and Mr. Anand Bhandari, learned Advocate forrespondent No.3 supports the impugned order. They would submit thatit was for the plaintiff to establish ownership and possession over the suitproperty. However, plaintiff utterly failed to discharge his burden.Plaintiff instituted suit simplicitor for injunction without claimingdeclaration of ownership. As such, the suit itself is not maintainable .Further relief as claimed against defendant No.3 Municipal Corporationcannot be entertained since suit is instituted without issuing mandatorynotice under Section 487 of the Bombay Provincial MunicipalCorporation Act. They would further submit that there is nothing on {6} CRA 72.2010.odtrecord to show that plaintiff is validly appointed as Mutawalli of theWakf. The Tribunal has rightly found that the plaintiff has no locus-standi to institute the suit on behalf of the Wakf.9.Having considered submissions advanced by learnedadvocates for respective parties and on perusal of record andproceeding, the point that arises for consideration in this revisionapplication is, as to whether plaintiff proves ownership of Wakf over suitproperty. Plaintiff, in his endeavour to establish title of Wakf over suitproperty relied upon admission of defendants as to existence of Dargahin CTS No. 12240. Secondly, entry of suit property in the Register ofWakfs depicting four boundaries for area admeasuring 892.5 squaremeters. Plaintiff further relies upon his own oral evidence.10. Pertinently, wakf has been registered on 27.8.1998 videRegistration No. 1 of 1998 on the basis of proposal submitted by plaintiffhimself. The particulars of Wakf Property are recorded on the basis ofinformation supplied by plaintiff. It records area of Wakf property as892.5 Square meters with boundaries as under :-East : Houses of Indira NagarWest : Bayji Pura – SFS Road.North: SFSSouth : Yashoda Hospital.Minute reading of the extract of Wakf Register depicts that particulars,like CTS Number, Survey Number, Source of Title of Wakf are missing.Pertinently, plaintiff has not filed on record any evidence to show source {7} CRA 72.2010.odtof title in favour of Wakf. Record do not suggest that Wakf Board hadcaused independent inquiry as to the title of Wakf over the suit property.As observed by the Tribunal, during 1966 to 1970, City Survey Schemehas been implemented in Aurangabad city. Name of Dargah does notappear in city survey record as owner or occupier over suit property. Onedoes not know, on what basis area admeasuring 892.5 Square meters, isrecorded in name of Wakf. The photographs of the existing Dargah arepart of record of suit at Exhibit 57. It shows existence of Dargah situatedon 30 x 30 feet area. Even respondents have not denied existence ofDargah, however, there is nothing to show that land admeasuring 892.5Square meters adjacent to the Dargah is owned by Wakf. 11.Plaintiff contends that, Dargah was in existence since longand the suit property was very much in the name of Dargah. If that is so,then there could have been some entry in the old Survey record of landor in CTS record. Admittedly, CTS No. 12240 has been carved out fromold Survey No. 27. The record pertaining to old Survey No.27 does notdepict entry in the name of Dargah. Plaintiff could not bring on recordpre 1998 evidence indicating that the suit property was owned orpossessed by Dargah prior to its registration as Wakf. Normally, Wakfinstitution would receive property through deed of dedication, Sanad,Muntakhab Patra, or any other form of dedication. Plaintiff could notclarify source of title or otherwise establish title of the Dargah. There isnothing to support entry of suit property admeasuring 892.5 squaremeters in waqf register. Apparently, in this case, entry of suit property istaken in wakf register only on the basis of information submitted byplaintiff himself with his proposal for registration of Wakf. The Tribunalhas rightly observed that the Wakf institutions were surveyed in seventies {8} CRA 72.2010.odtand thereafter Gazetted in the State of Maharashtra.12.If Dargah or Wakf had been in existence as claimed byplaintiff; naturally, it could have been Gazetted long back. Significantly,plaintiff has instituted present suit claiming relief of perpetual injunctionin respect of suit property without holding the valid document of title.His claim is solely based on an entry in the Wakf Register, which has beentaken on the basis of his own assertion. In absence of any document oftitle, defendants have seriously objected plaintiffs claim for injunction.The suit has been filed under Section 38 of the Specific Relief Act,claiming relief of perpetual injunction. Pleadings and evidence tenderedby plaintiff suggests that he is asserting title of Wakf over the suitproperty and seeks relief of perpetual injunction against defendants. Ifthat is so, it was paramount for the plaintiff to seek declaration ofownership and claim consequential relief of perpetual injunction.13.The Honourable Supreme Court in the matter of “AnthulaSudhakar vs. P. Buchi Reddy (dead) by LRs and others” reported in(2008) 4 SCC 594, in para.21 crystallized the position as regards to themaintainability of suit simplicitor for permanent injunction withoutclaiming declaration of title, which read thus :-“To summarize, the position in regard to suits for prohibitoryinjunction relating to immovable property, is as under :(a) Where a cloud is raised over plaintiff's title and he doesnot have possession, a suit for declaration and possession,with or without a consequential injunction, is the remedy.Where the plaintiff's title is not in dispute or under a cloud,but he is out of possession, he has to sue for possession with aconsequential injunction. Where there is merely aninterference with plaintiff's lawful possession or threat ofdispossession, it is sufficient to sue for an injunctionsimplicitor. {9} CRA 72.2010.odt(b) As a suit for injunction simplicitor is concerned only withpossession, normally the issue of title will not be directly andsubstantially in issue. The prayer for injunction will bedecided with reference to the finding on possession. But incases where de-jure possession has to be established on thebasis of title to the property, as in the case of vacant sites, theissue of title may directly and substantially arise forconsideration, as without a finding thereon, it will not bepossible to decide the issue of possession.(c) But a finding on title cannot be recorded in a suit forinjunction, unless there are necessary pleadings andappropriate issue regarding title [either specific, or implied asnoticed in Annaimuthu Thevar (supra)]. Where the avermentsregarding title are absent in a plaint and where there is noissue relating to title, the court will not investigate or examineor render a finding on a question of title, in a suit forinjunction. Even where there are necessary pleadings andissue, if the matter involves complicated questions of fact andlaw relating to title, the court will relegate the parties to theremedy by way of comprehensive suit for declaration of title,instead of deciding the issue in a suit for mere injunction.(d) Where there are necessary pleadings regarding title, andappropriate issue relating to title on which parties leadevidence, if the matter involved is simple and straight-forward, the court may decide upon the issue regarding title,even in a suit for injunction. But such cases, are the exceptionto the normal rule that question of title will not be decided insuits for injunction. But persons having clear title andpossession suing for injunction, should not be driven to thecostlier and more cumbersome remedy of a suit fordeclaration, merely because some meddler vexatiously orwrongfully makes a claim or tries to encroach upon hisproperty. The court should use its discretion carefully toidentify cases where it will enquire into title and cases whereit will refer to plaintiff to a more comprehensive declaratorysuit, depending upon the facts of the case.”14.Aforesaid legal position is recently reiterated by SupremeCourt in the case of T.V. Ramkrishna Reddy vs. M. Mallappa and anotherAIR 1021 SC 4293. {10} CRA 72.2010.odt15.Applying the aforesaid principles espoused by the ApexCourt to the facts of the present case, it can be observed that in presentcase plaintiff asserting his ownership and possession over the suitproperty and consequently, seeking relief of perpetual injunction withoutseeking declaration as to his title which is seriously disputed. Therefore,claim in present form, would not be maintainable.16.Turning back to the pleadings of the parties, defendantshave specifically denied plaintiff’s title over the suit property andasserted positive case that the suit property is originally part of SurveyNo.27, which was converted to CTS No. 12240 during implementation ofthe city survey scheme in the year 1971. The original owners of the landhad submitted layout of the property and surrendered the open space infavour of the Municipal Corporation. Thereafter, Corporation permitteddefendant Nos. 1 and 2 to develop the Children Park. Accordingly, townplanning authorities have accorded sanction for construction of theGarden under the provisions of Maharashtra Regional and TownPlanning Act. Defendants have placed on record, P.R. Card of CTS No.12240/24 which is also relied upon by plaintiff. Copy of map Exhibit 86i.e. approved layout plan sanctioned by Defendant No.3 Corporation on2.4.1983 depicting open space. None of the documents show ownershipof Dargah or Wakf over suit property. The document Exhibit 82 clearlythrows light on the fact that there were open spaces in the layout andowner was required to surrender the same to the Corporation free fromany encumbrances alongwith spaces left for road. There is no rebuttal tothis part of the evidence. The Corporation has also placed on recorddocuments with lists Exhibits 40/4 to 40/8, which contains a copy of {11} CRA 72.2010.odtregistered agreement between defendant Nos. 2 and 3 and original landowners – Nandlal Jaiswal and Akbar Ali Gulam Hussain, therebysurrendering ownership of open space to the Corporation from the dateof approval of the layout. The aforesaid documents demolishes plaintiff’scase as to ownership and possession over the suit property.17.Plaintiff has claimed further relief that defendant No.3Municipal Corporation be restrained from granting any permission todefendant Nos. 1 and 2 for construction of a garden. Admittedly, plaintiffhad not served a notice in terms of Section 487 of the Bombay ProvincialMunicipal Corporation Act. Even the permissions is already granted,the layout plan has been approved under the provisions of MRTP Act.Therefore, relief as claimed by plaintiff would be out of the purview ofCivil Court/Wakf Tribunal.18.Having regard to the totality of the facts and circumstances,the order passed by the Wakf Tribunal needs no interference. Nojurisdictional error or perversity is brought to the notice of this courtrequiring interference under Section 83 of the Wakfs Act, 1995.Resultantly, civil revision application stands dismissed. Rule isdischarged.[S.G. CHAPALGAONKAR, J] grt