Bombaybench High Court
Case Details
2023:BHC-AUG:27044 1CRA1-05,SA-759-07.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCIVIL REVISION APPLICATION NO.1 OF 20051.The Maharashtra State Board of WakfsThrough its Chief Executive Officer,Panchakki, Aurangabad2.District Wakf Officer,Munir Khan s/o. Kasam Khan Pathan, Age 46 years, Occu. Service, R/o. Latur, District Latur..Petitioners (Original Defendants Nos. 1 and 7)Versus1.Arya Samaj Hisamabad (Ujed)Through its officer bearers i.e.A)Pradhan Mantri,Shri Harischandra Ramrao Suryawanshi Alias SwamiShradhanand (Wanprasthi)Age 80 years, Occu. SocialService, R/o. Parali Vaijanath(Arya Samaj), District BeedB)Shri. Sugreev Baliramji Kale,Mantri, Maharashtra AryaPratinidhi Sabha Maharashtra,Age Major, Occu. Social Service,R/o. Parali Vaijanath (Arya Samaj)District Beed.. (Original Plaintiff)2.Secretary Govt. of Maharashtra,Revenue and Forest Department,Mantalay Bombay3.Commissioner AurangabadDivision Aurangabad4.Collector, Latur, District Latur
Legal Reasoning
2CRA1-05,SA-759-07.odt5.Sub-Divisional Officer, Udgir,District Latur6.Tahsildar Nilanga / Shirur AnantpalDistrict Latur..Respondents(Respondents No.2 to 6/ Original Defendants)…WITHSECOND APPEAL NO. 759 OF 2007WITH CIVIL APPLICATION NO. 10765 OF 20071.Dattu s/o Sadashiv Alias Bhimrao Marde,Age : 74 Years, Occ. Agriculture,R/o. Hisamabad (Ujed), Tq. Shiru Anantpal,District Latur.2.Arya Samaj, Hisambad (Ujed)Through its Office Bearer i.e. MantriR/o. Ujed (Hisamabad), Tq. Shirur-Anantpal.. Appellants (Original Defendants Nos. 6 & 10) VERSUS1.Maharashtra Wakf Board,Aurangabad throughMohammad Asifoddin s/o Md. Ainoddin,Age : 54 Years, Occ. District Wakf Officer,R/o at present Latur( Original plaintiff)2.State Government of MaharashtraThrough District Collector, Latur (Original Defendant No.1)3.Sub Divisional Magistrate, Udgir (Original Defendant No.2)4.Tahsildar, Nilanga (Original Defendant No.3)5.Annarao S/o Yeshwantrao BirajdarAge 74 years, Occu. Agriculture,R/o. Ujed (Hisambad), Tq. Shirur Anantpal (Original Defendant No.4)[Abated as per Court’s order dated 18.07.2023)6.Govindrao S/o Shankarrao Nalgir,Age 62 years, Occu. Agriculture, (Original Defendant No.5)R/o. As aboveAbated 3CRA1-05,SA-759-07.odt7.Malikarjun s/o Yeshwant Birajdar,Age 65 years, Occu. Agriculture, (Original Defendant No.7)R/o. As aboveAbated8.Shaikh Osmanali s/o Mehboobali Age : 64 years, Occ. AgricultureR/o. As above(Original Defendant No.8)9.Khajapira s/o Sheikh Ahmedali,Age : 64 Years, Occ. Agriculture,R/o as above. (Original Defendant No.9) .. RespondentsMr. S. S. Kazi, Advocate for Applicant in C.R.A. No.1 of 2005 and Respondents No.1, 8 and 9 in Second Appeal No.759 of 2007;Mr. Ajit Kadethankar, Advocate for Appellants in S.A.No.759 of 2007;Mr. Amit S. Deshpande, Advocate for Respondents No.1A & 1B in C.R.A. and Respondents No.3 to 6 served in C.R.A.;Mr. A.B. Chate, A.G.P. for Respondent No.2 in C.R.A. and Respondents No.2 to 4 in S.A.No.759 of 2007 CORAM : S. G. MEHARE, J. Reserved on : 03.10.2023 Pronounced on : 20.12.2023JUDGMENT:-1.The original defendants Nos. 6 and 10 have preferred thisSecond Appeal against the Judgment and decree of the learned CivilJudge, Senior Division, Nilanga, passed in Regular Civil Suit No.3 of1998 (new) [Regular Civil Suit No. 177 of 1988 (old)], dated26.09.2002 and Regular Civil Appeal No.55 of 2002 of the learnedDistrict Judge, Nilanga, dated 06.09.2007. 4CRA1-05,SA-759-07.odt2.The appellants would be referred to as the defendants Nos. 6and 10, respondent No.1 would be referred to as the plaintiff, whichwas the Marathwada Wakf Board duly constituted under the Wakf Act,1954, and the remaining respondents would be referred to as thedefendants.3.The issues and the suit property involved in the second appealand the Civil Revision application were the same. Hence, both mattershave been taken up for hearing and decision together. 4. The brief facts of the case were that a plot in dispute was anopen plot in the village. The defendants Nos. 6,10, 8 and 9 wereclaiming possession over the suit plot. The parties to the suit were theHindus and the Muslims. Their quarrel over the suit plot went to thepolice. The police reported the matter to the Sub-Divisional Magistrate(“S.D.M.”, for short). The S.D.M. registered a proceeding underSection 145 of the Code of Criminal Procedure (“Cr.P.C.”, for short).He inquired and held that, soon before the quarrel, the suit plot was inpossession of the defendants nos. 6 and 10. He passed prohibitoryorders against the original defendant nos. 8 and 9 on 24.5.1979. In theGovernment Gazette dated 24.4.1980, the suit plot was listed as theWakf Property. In 1988, The Marathwada Wakf Board filed a suit,through the District Wakf Officer, against the defendants in the Civil 5CRA1-05,SA-759-07.odtCourt for declaration and possession of the suit plot. The plaintiff hadfiled a suit for declaration that the order of the S.D.M., Nilanga passedin file No. 1974-SDM-16 under Section 145 of the Code of CriminalProcedure dated 24.5.1979 was not binding and possession. They hada case that on the suit plot, there was a Mosque since timeimmemorial, and it was in use by the Muslims. However, in 1948,during the Marathwada Mukti Sangram, the goons demolished it andmade it an open plot.5.The defendants Nos. 8 and 9 supported the plaintiff's claim.They admitted the dispute about the suit plot and the orders of theSub-Divisional Magistrate, Udgir. 6.The defendants Nos.6 and 10 contested the suit. They had adefence that the suit plot was in possession of the Arya Samaj for manyyears. The Muslim people in the village tried to grab the suit plotunder the garb that it was a Mosque and Dargah. The plot where theplaintiff says there was a Mosque and Dargah was different. They alsoimpugned the legality and validity of the Government Gazette dated24.04.1980. 7.The Court of First Instance believed the plaintiff and decreed thesuit. He also held that the Civil Court had no jurisdiction to deal with 6CRA1-05,SA-759-07.odtthe Government Gazette dated 24.4.1980, inserting the suit plot as aWakf property. The first appeal against the said decree was alsodismissed. However, while the appeal was pending, the defendants hadfiled a suit bearing no. 7/2003 before the Wakf Tribunal impugning thelegality and validity of the Government Gazette dated 24.4.1980. Theplaintiff raised the objection that when the suit about Waqf's propertywas pending in the Civil Court, the Tribunal had no jurisdiction. TheTribunal did not accept the objection and decreed the suit, holding thatthe said Government Gazette is void ab initio.8.Against the Judgment and decree of the Tribunal, the WakfBoard has preferred the Civil Revision Application No. 1 of 2005.9.On hearing the respective counsels, this Court, by order datedJanuary 3, 2023, framed the following substantial questions of law:-(i)Whether the Regular Civil Suit No. 177/1988, renumberedas Regular Civil Suit No.03/1998 filed by respondent No.1 ismaintainable, as there is no specific prayer made fordeclaration of title of respondent No.1, though the title ofrespondent No.1 is seriously disputed?(ii)Whether the Regular Civil Suit No. 177/1988, renumberedas Regular Civil Suit No.03/1998 filed by respondent No.1 ismaintainable as there is no amendment carried out byrespondent No.1 for seeking declaration of title even after 7CRA1-05,SA-759-07.odtthe written statement filed by the appellants raised seriousobjection to the title of the respondent No.1?(iii)Whether the suit as framed by respondent No.1 can bedecreed in view of the law laid down by the Hon'bleSupreme Court in the case of Anathula Sudhakar Versus P.Buchi Reddy (Dead) By Lrs and Others 2008 A.I.R. (SC)2033, that where the title of plaintiff is under a cloud or indispute and he is not in possession, necessarily the plaintiffwill have to file a suit for declaration?(iv)Whether the suit as framed can be decreed on the basis ofissue of title of the plaintiff framed and decided in favour ofthe plaintiff, without there being any prayer for declarationof title?10.In a suit of the defendants bearing No. 7 of 2003 before theWakf Tribunal, the plaintiff's sole objection was that the Tribunal hadno jurisdiction to entertain the suit as barred under Section 7(5) of theWakf Act, 1995. (“The Act 1995”, for short). The Tribunal had nojurisdiction to determine any matter which is a subject of any suitinstituted or commenced in a Civil Court or appeal pending before thecommencement of the Act 1995. Section 7 of the Act 1995 speaks ofthe powers of the Tribunal to determine the disputes regarding thewakf, including its property.
Legal Reasoning
8CRA1-05,SA-759-07.odt11. Per contra, the learned counsel for the defendants nos. 6 and 10,argued that the Civil Court had recorded the findings in the impugnedJudgment and decree that the Civil Court had no jurisdiction to dealwith the legality and validity of the Government Gazette dated24.4.1980. The R.C.S. No. 3/1998 (R.C.S. 177/ 19988 old) wasdecided after the Wakf Act 1954 (The Act 1954, for short) wasrepealed. The Act 1995 was in force, and the respondents had nooption except to file an application before the Wakf Tribunal,impugning the legality and validity of the Government Gazette dated24.5.1980 under the Act 1995.12.Considering the submissions of both learned counsels, the solequestion that arises for consideration in the revision application is;“Was the suit of the respondents not maintainable beforethe Wakf Tribunal as barred under Section 7(5) of theWaqf Act, 1995?”13.The learned counsel for the appellants, Shri. Kadethankarsubmits that in view of Section 6 of the Act 1954, the Civil Court hadno jurisdiction to deal with the dispute whether it was a Wakf property.The S.D.M., Udgir had correctly held that the Hindu community wasthe owner and possessor of the suit plot. The plaintiff pleaded that 9CRA1-05,SA-759-07.odtthey had lost possession of the suit plot in 1948. Therefore, the suitwas barred by limitation as it was not filed within 30 years as providedunder Section 66 (G) of the Act 1954. He added that the order of theS.D.M., Udgir passed under Section 145 of the Cr. P. C., was notimpugned before the proper forum; hence, it could not have been thesubject matter of the suit. The entry in the Wakf register was notconclusive proof of title.14. He also argued that the First Appellate Court did not considerthe Judgment and order of the Wakf Tribunal passed in Suit No. 7 of2003 wherein the suit of the appellants was decreed and Governmentgazette part I bearing No. WKF/END/3182, dated 24.04.1980, wasdeclared null and void, and entry in the said Gazette on the basis ofwhich the plaintiff claimed was cancelled. The first appellate Courtalso did not consider that the plaintiff never sought the declaration ofthe title; hence, the suit was not tenable in view of the law laid downby the Hon'ble Supreme Court in the case of Anathula Sudhakar Vs. P.Buchi Reddy (supra). He relied on the order of the S. D. M. andclaimed that the defendants No. 6 and 10 were interruptedly inpossession of the suit plot on the basis of the entry in the villagepanchayat record of the year 1960. 10CRA1-05,SA-759-07.odt15.Per contra, the learned counsel for the plaintiff would submitthat Section 6(1) of the Waqf Act, 1954 was not applied to the otherreligious persons. To bolster his argument, he relied on case laws. Hewould also argue that the order of S. D.M. under Section 145 of the Cr.P. C does not confer a title. It is an interim arrangement to prevent abreach of the peace. It is always subject to a Civil Court's decision. Ifthe party's title to such proceeding is proved in a Civil Court, the orderunder Section 145 of the Cr. P. C. becomes defunct. He would submitthat the order of the Wakf Tribunal was apparently against the rightsdeclared in the Civil suit. The defendants had filed the said suit afterthe decision of the civil suit under the Act 1995. In fact, the cause ofaction arose before the Act 1995 was enacted. The suit was to be dealtwith as per the then existing law. At the time of the alleged cause ofaction, the Act 1954 was in force. All disputes about the Wakfproperties were to be filed in a Civil Court of competent jurisdiction forthe decision of questioning or the dispute regarding the Wakf property.Therefore, the Civil Court had correctly entertained the suit. Since theCivil Court had decided the title in favour of the respondents, the WakfBoard had no jurisdiction to deal with the same issue under the newAct 1995. The learned Wakf Tribunal did not consider Section 7(5) ofthe Waqf Act, 1995, which bars its jurisdiction to determine any matter 11CRA1-05,SA-759-07.odtthat was a subject matter of any suit instituted under Section 6(1) ofthe said Act 1954 before its commencement. The suit was not tenableas the appeal against the Judgment passed in favour of the respondentwas pending. He also argued that in view of the legal provisions, theappellant had no voice to say that the Judgment of the Wakf Tribunal,Aurangabad, passed in Suit No.7 of 2003 had an effect on the earliersuit decided in favour of the contesting respondents.16.The learned counsel, Mr. Kadethankar, would submit that therevision of the respondents is bad in law. The Wakf Tribunal hascorrectly made an enquiry about the Government gazette dated24.04.1980 under the Act 1995. The Civil Court, in the earlier Act1954, had no jurisdiction to determine the legality and validity of theentry of Wakf property in the Government gazette. The order of theWakf Board had an effect on the appeal; therefore, the First AppellateCourt ought to have allowed the appeal and set aside the impugnedJudgment and decree passed in favour of the plaintiff. He would referto Section 6-A of the Act 1954 and vehemently argue that the power todetermine the disputes regarding the Wakf property was given to theTribunal. Therefore, the Civil Court had no jurisdiction for the reasonthat the plaintiff's suit was filed after the amendment of 1984. 12CRA1-05,SA-759-07.odt17.The respective parties have referred to the two Waqf Acts of1954 and 1995. Admittedly, the suit was filed in 1988. At that time,the Waqf Act 1954 was in force. However, the Act 1954 was amendedin 1984.18.Both parties to the suit were claiming the rights over the suitplot on the basis of the revenue entries. The plaintiff had an additionaldocument, i.e., the Government Gazette of 24.04.1980. The cause ofaction for the plaintiff as pleaded, was the order of the attachmentdated 24.05.1979 by the S.D.M. and his notice dated 31.12.1987. Thesuit plot was shown as Wakf property in the Government Gazette dated24.04.1980. Before the suit land was declared Wakf property in theGovernment gazette dated 24.04.1980, both parties had only therecord of the village panchayat entry. Both were claiming long-standing possessory title. It is not disputed that the appellants wereentered into the Village panchayat record in the year 1960. However,the plaintiff’s name was entered into the same record for the years1952, 1957, 1958 and 1959.19.While decreeing the suit, the Court of First Instance held that theGovernment Gazette issued by the Government under the Wakf Actcannot be challenged before the Civil Court. Admittedly, the defendantnos. 6 and 10 moved an application before the Wakf Tribunal objecting 13CRA1-05,SA-759-07.odtto the Government gazette dated 24.04.1980, including the suit landas a Wakf property after the suit was decreed under the Act 1995. Inthe year 2003, when the appeal was pending, the Wakf Tribunalallowed the application and declared that the entry at Sr. No. 92published in Government gazette Part A bearing WKF/END/3182dated 24.04.1980, is null and void, and he cancelled it.20.The First Appellate Court, in its Judgment and decree dated06.09.2007, confirmed the findings of the Court of First Instance thatthe Government Gazette, dated 24.04. 1980, could not be challengedin Civil Court for the reasons that, as per Section 6 of the Act, 1995,the Tribunal had jurisdiction to decide whether the suit plot was aWakf property or not, and the decision of the Tribunal was final. As perSection 6(5) of the Act 1995, on and from the commencement of theWaqf Act 1995, no suit or other legal proceeding shall be instituted orcommenced in a Court in that State in relation to any question referredto in sub-section (1).21.Before dealing with the substantial questions of law framed inthe second appeal, the Court takes the issue of the jurisdiction of theCourt impugning the Government Gazette for adjudication first, as itrelates to the questions involved in the appeal and the Civil RevisionApplication. 14CRA1-05,SA-759-07.odt22.The prime question that appears was which of The Waqf Act wasin force when the plaintiff opened the litigation. The plaintiff's suit wasbased on the Government Gazette dated 24.04.1980. It was adocument prepared after the survey by the survey Commissioner. Thedefendants Nos.6 and 10, had impugned the legality and validity of thesaid Government Gazette. To ascertain which Court had jurisdiction todecide the legality and validity of such Government Gazettes thatdeclared the properties as Waqf prperties, some dates, i.e. the cause ofaction, the date of filing the suit, and the law in force at the time offiling suit, were relevant.23. For the first time, the dispute arose in 1974. In the proceedingbefore the S.D.M., the plaintiff was not the party. S.D.M. passed anattachment order under Section 146 of Cr.P.C. on 19.06.1974. Theplaintiff filed the suit on 3.3.1988, which was decided on 26.09.2002.The defendants filed a suit before the Wakf Tribunal on 28.03.2003,which was decided on 21.09.2004.24.The Act 1954 was in force when the plaintiff had filed the suitagainst the defendants. Section 6-A was inserted, and sub-section 5 toSection 6 of the said Act was added by amendment of 1984 w.e.f.October 10, 1984. Section 6-A of the said amendment provides that 15CRA1-05,SA-759-07.odtthe question whether a particular property specified as Wakf propertyin a list of wakf published under sub-section (2) of Section 5 is a Wakfproperty or not shall be decided before the Tribunal. However, undersub-section 5 of Section 6-A, all the suits and appeals filed andpreferred in the Civil Court before the said amendments were saved,and no jurisdiction was conferred on the Tribunal to deal with theissues involved in those suits and appeals. Sub-section (5) of Section 6of the amended Act barred the jurisdiction of the Civil Court relating tothe disputes of wakfs and its properties. The Act 1954 was repealed bythe Act 1995 and was brought into force w.e.f. November 22, 1995.Section 6 of the said Act provides for the disputes regarding waqfs. Itprovides that any question that arises whether a property notified asWaqf property is a Waqf property or not shall be instituted before theTribunal, and the decision of the Tribunal shall be final. Section 7(5) ofthe Act 1995 provides that the Tribunal shall not have jurisdiction todetermine any matter which is a subject matter of any suit orproceeding instituted or commenced in a Civil Court beforecommencement of the Act 1995, and if any suit has been instituted inany Civil Court prior to coming into force of the Act of 1995, then theTribunal will have no jurisdiction to decide such matter and continueand conclude as if the said Act had not come into force. The suit and 16CRA1-05,SA-759-07.odtthe appeals were also saved if pending on coming to the Act 1995 intoforce. 25.Considering the parties to the suit and dispute betweenthe two persons from different religions, no party had raised theobjection, and the suit was entertained. As discussed above, after theobservation of the Civil Court that it had no jurisdiction to deal withthe issue of notifying the suit plot as Wakf property in the GovernmentGazette, an application under the Act 1995 was filed. Simultaneously,the appeal against the said. Judgment and decree was also pendingwhen suit no. 7/2003 was filed before the Tribunal.26.Reading Section 6-A (5) of the Act 1954 and Section 7 (5)of the Act 1995, it is explicit that when the plaintiff had opened thelitigation, the Civil Court had jurisdiction to decide the dispute orquestion regarding the Wakf and Wakf property. Therefore, theJudgment of the Tribunal in Suit No. 7/2003 dated 21.09.2004 waswithout jurisdiction. 27.The claim of the defendant nos. 6 and 10 in the SecondAppeal was based upon the order passed by the learned S. D. M. underSection 145 of the Code of Criminal Procedure. In that case, theplaintiff was not the party. Respondents Nos. 8 and 9 were the 17CRA1-05,SA-759-07.odtparties. As per Section 145 of the Cr. P.C., the Executive Magistrate,may, upon satisfaction from a report of a Police Officer or upon otherinformation that a dispute is likely to cause a breach of the peaceexists concerning any land or water, without reference to the merits orthe claims of any parties to a right to possess the disputed land whowas and which party was in possession of the disputed land on thedate of the order made by him. The order under Section 145 of the Cr.P. C. is the temporary arrangement to protect the person who wasimmediately in possession before the dispute arose by such order. Theorders of the S.D.M. do not bar a title suit in the Competent Court oflaw. When the competent Court determines the rights of the partiesthereto and the person entitled to possession thereof, then obviously,the possession has to be restored in favour of the party whom thecompetent Court has determined to be the rightful claimant. Thepossession has to follow such determination, and attachment has to belisted in favour of the emerging successful party before the Civil Court.In other words, once the Civil Court decides the right of the partieslegally entitled to have possession, the effect of the orders underSection 145 of the Cr. P.C. ceases automatically. Therefore, merely anorder under Section 145 of the Cr P.C. would not be conclusive proof of 18CRA1-05,SA-759-07.odtthe ownership of the land of a person who was held in possession atthe time of passing an order under Section 145 of the Cr.P.C.28.The defendants had expressly denied the plaintiff's title on thebasis of the Government Gazette. In the recent Judgment of SalemMuslim Burial Ground Protection Committee v State of Tamilnadu andOrs, AIR 2023 SC 2769, the Hon'ble Supreme Court held that the entryin the Government Gazette is not conclusive proof of Waqf property.The declaration of the property as Waqf property in the GovernmentGazette has to be in consonance with the Waqf Act, 1954, or Act, 1995,and mere issuance of notification was not sufficient for the purpose. Itwas admitted that there was a dispute regarding the title of the suitplot, and suddenly, the suit plot was notified in the GovernmentGazette as Wakf property. It cited the case of State of Andhra Pradeshvs A.P. State Wakf Board and Ors, 2022 SCC OnLine SC 159, toemphasize that the notification, if any, published in the official Gazetteat the behest of the Wakf Act giving the lists of the wakfs is notconclusive proof that a particular property is a wakf propertyespecially, when no procedure as prescribed under Section 4 of theWakf Act has been followed. 29.Before the Civil Court, there was nothing whether the procedureunder section 4 of the Act 1954 was followed. It was the question 19CRA1-05,SA-759-07.odtthat goes to the root of the dispute. However, both Courts haveconveniently avoided determining the dispute of the title and nature ofthe suit plot, observing that the Civil Court had no jurisdiction. Theseobservations were perverse.30.The substantial question of law framed in the Second appeal wasregarding the prayer for the declaration of title and the effect of thefailure of respondents No.1 and 2 to make a prayer for the declarationof title in view of the law laid down by the Hon'ble Supreme Court inthe case of Anathula Sudhakar Versus P. Buchi Reddy (Dead) By Lrsand Others, 2008 A.I.R. (SC) 2033.31.The learned counsel for the defendants would submit that thesuit was not tenable unless the specific prayer for declaration of titlewas made. Barely on the basis of the Government Gazette, theplaintiffs' claim that it was a Wakf property could not be decided.32.Per contra, the learned counsel for the plaintiff would submitthat the suit of the plaintiff was based upon the title as the propertywas declared Wakf property in the Government gazette dated24.04.1980, and it was never impugned before the competentauthority, so the presumption of the title of the Wakf board on thebasis of the Government Gazette had not been rebutted. No 20CRA1-05,SA-759-07.odtappropriate steps were taken to impugn the said Government gazette.Besides the Government gazette, there were old entries in the revenuerecord showing that Muslims were using the suit plot for prayers, andit was a graveyard and Mosque. Based on the facts, it is also provedthat the defendant Nos. 6 and 10 were not in long-standing possessionof the suit plot.33.Admittedly, in the plaintiff's suit, the declaration of title was notprayed for. The defendants did not raise specific objections in theirwritten statement by the appellants. That being a question of law maybe considered in the present appeal. In Anathula Sudhakar's case(supra), the Hon'ble Supreme Court discussed the nature of the suitsimplicitor for injunction and declaration. The Hon'ble Supreme Courtframed the questions when the suit for injunction, declaration, andpossession should be filed. In paragraph No. 11, sub-clause 11.3, it hasbeen observed that where the plaintiff is in possession, but his title tothe property is in dispute, or under a cloud, or where the defendantasserts title thereto and there is also a threat of dispossession from thedefendant, the plaintiff will have to sue for declaration of title and theconsequential relief of injunction. Where the title of the plaintiff isunder a cloud or in dispute and he is not in possession or not able to 21CRA1-05,SA-759-07.odtestablish possession, necessarily the plaintiff will have to file a suit fordeclaration, possession and injunction.34. The facts of the case at hand were that the possession of the suitland was handed over to the appellants by the order of the S.D.M.under Section 145 of the Cr. P. C. After passing the order under Section145 of the Cr. P.C., the suit plot was inserted in the Government gazettedated 24.04.1980, and after eight years, the plaintiff filed a suit forpossession and injunction. The plaintiff's suit was based upon theGovernment gazette only, which is not a conclusive proof that it was aWakf property. Admittedly, when the suit was filed, the plaintiff wasnot in possession of the suit plot. At the same time, the defendant hadclaimed the possession based on the revenue entries. Both sides hadno title document recognized by the law. The revenue entries do notprove the title. Those are only for the fiscal purposes. There is littledifference in the case at hand; both parties claim that the suit plot wasused for religious purposes. But the fact remains that the title of bothparties was under a cloud and in dispute. Considering the nature of thedispute, the Court believes that the plaintiff should have filed a suit fordeclaration, possession and injunction. The plaintiff also had to get theplaint and prayer clause amended in view of the objection raised bythe defendants disputing the title based upon the Government gazette. 22CRA1-05,SA-759-07.odt35.This Court observed that at the relevant time the Civil Court wasthe only competent Court to determine the dispute regarding the Wakfproperties. On the one hand, the core issue of the title that was to bedetermined by the Court had been left unanswered, and theGovernment Gazette dated 24.04.1980 was believed. To hold aparticular property to be a Wakf property, it is to be proved that theproperty was dedicated to public Wakf or that the same was being usedas a Wakf property for a long time. Unless and until the said evidenceis led, a property cannot be held to be a Waqf property. Merely on thebasis of the Government Gazette, the property cannot be held to be aWakf property, unless proper notice of hearing is given to the person inpossession and claiming an interest in the property. Whether theSurvey Commissioner had followed the appropriate procedure laiddown in Section 4 of the Act 1954 before inserting the suit plot in theGovernment gazette is a question of fact, and unless the Court of firstinstance has dealt with the said question fact, it would beinappropriate to deal with these issues in the second appeal. The Courtof First Instance and the First Appellate Court did not consider theprovisions of Act 1954 and erroneously held that the Civil Court hadno jurisdiction to determine the legality and validity of theGovernment Gazette dated 24.04.1980. 23CRA1-05,SA-759-07.odt36. On discussing the law and considering the substantial questionsof law formulated in the appeal, the Court answers the substantialquestion No.(iii) that the suit of the plaintiff as framed could not bedecreed in view of the law laid down in the case of Anathula (supra).The question no.(i) is answered that since the defendants had raised aserious objection to the Government Gazette and the title of theplaintiff, it had to amend the prayers. Such a mistake may be rectifiedin view of the fact the Court was to determine the legality and validityof the said Government Gazette, the title and rights of the parties tothe suit. The answers to these questions cover the questions of lawnos.(ii) and (iv). Hence, they have not been separately answered. 37.The learned Court of First Instance as well as the First AppellateCourt, left the question of title unanswered, which goes to the root ofthe dispute. Therefore, both impugned judgments and decrees deserveto be set aside, and the case is to be remitted to the Court of FirstInstance to decide the suit afresh considering the following issues:-(i)Did the survey commissioner follow the due procedureprescribed under Sections 4 and 5 of the Act 1954 before listingthe suit plot as Waqf property in the Government gazette dated24.04.1980?(ii)Whether the suit plot was Waqf property?(iii)Was a Mosque/Kabrastan in existence as the plaintiff claims? 24CRA1-05,SA-759-07.odt38. Thus, the Court passes the following order:-ORDER(1)The second appeal is allowed.(2)The judgments and decrees of the learned Civil Judge SeniorDivision, Nilanga passed in Regular Civil Suit No.3 of 1998 (new)[R.C.S.No.177 of 1988 (old)], dated 26.09.2002 and confirmed bythe learned District Judge-1, Nilanga, in Regular Civil Appeal No.55 of 2002, dated 06.09.2007, are set aside.(3)The case is remitted to the Court of Civil Judge Senior Division,Nilanga, for the decision afresh on the issues framed in the bodyof the Judgment by this Court by granting the opportunity toproduce the documents and evidence afresh with consequentialamendments relevant to the subject in the suit and writtenstatement.(4)The R and P be returned to the Court of Civil Judge, SeniorDivision, Nilanga.(5)Both parties shall appear before the Court of First Instance on22.01.2024.(6)The Civil Revision Application is allowed.(7)The Judgment and decree of the learned Tribunal passed inR.C.S.No.7 of 2003, dated 21.09.2004 is quashed and set aside.(8)The R and P be returned to the Tribunal.(9)There shall be no orders as to costs. ( S. G. MEHARE ) JUDGEysk