High Court of Judicature For Rajasthan · 2025

: Mr. Praveen Kumar Jain For Respondent(s) : Mr. P.K. Sharma HON'BLE MR. JUSTICE ASHOK KUMAR JAIN 28/05/2025 Order

1. Instant civil second appeal is preferred by appellant- defendant Abdul Ali (since died) aggrieved from dismissal of Civil Regular Appeal No.40/1995 by learned District Judge, Jhunjhunu on 13.02.1996 affirming the judgment and decree dated

15.09.1995 in Civil Suit No.82/1985 (10/1994) by learned Additional Civil Judge (Senior Division), Jhunjhunu. After death of appellant, his legal heirs were substituted. [2025:RJ-JP:23720] (2 of 7) [CSA-146/1996]

2. Learned counsel for appellant while relying upon grounds of appeal has submitted that respondent-Rajasthan Muslim Waqf Board has claimed that father of appellant-Abdul Ali (deceased) has made Waqf of his property and Nohra is part of Waqf. He further submitted that the property in dispute is not a Waqf property and same is proved from revenue record Ex.A-1 and Ex.A-3, but the Courts below have not considered these records. He further referred Waqf notification and submitted that Khasra No.563 was mentioned as Waqf property, but disputed Nohra is not part of Khasra No.563 and Waqf Board have failed to produce any document to prove that Nohra is part of Khasra No.563.

3. He further referred and relied upon judgment in case of Waqf Board Rajasthan Vs. Jindal Saw Ltd. & Ors. AIR 2022 SC 2143 and submitted in absence of any proof of either of dedication or user or grant, which can be termed as a Waqf, but a dilapidated wall or a platform cannot be conferred a status of a religious structure. He further submitted that the Rajasthan Muslim Waqf Board has no locus to claim and file any legal proceeding on basis of un-registered gift deed (Ex.5). He further submitted that a title is not transferred on basis of un-regsitered gift deed, and the Courts below have failed in their duty while interpreting the document. He also submitted that the plaintiff is in possession of the suit property and defendant is not entitled for any relief. He also placed reliance upon judgment in case of Narayan Sitaram Badwaik (Dead) Through LRs. Vs. Bisaram and Ors. AIR 2021 SC 2438 and submitted that under Section 100 of CPC, this Hon’ble Court is empowered to set aside even the issue relating to fact if the findings are perverse and illegal. At [2025:RJ-JP:23720] (3 of 7) [CSA-146/1996] last, he submitted that both the Courts below have failed to consider the procedural objections and also the locus of respondent-plaintiff to claim the property.

4. Aforesaid contentions were opposed by learned counsel for respondent on the grounds that instant appeal is preferred from a concurrent finding of fact. He further submitted that Rajasthan Muslim Waqf Board has authorized to file suit with regard to Waqf property and same was decreed by the Trial Court on basis of evidence of both the parties. He further submitted that from the material on record, it is proved that the property is a Waqf property and it is a part of Waqf and same was illegally occupied by the appellant. He further submitted that there is no perversity or illegality in the judgment of Trial Court and also in the Appellate Court.

5. Heard learned counsel for the parties and perused their written submission along with judgments as referred by learned counsel for appellant also perused the entire record.

6. The facts giving rise to institution of present second appeal is that respondent-plaintiff instituted a Civil Suit No.82/1985 (10/1994) stating inter alia that 43 Bigha land of Khasra Nos. 560, 562 and 563 is under “Dargah Hazrat Shri Imam Ali Shah Saheb”. The plaintiff has further averred that a Nohra, whose details is mentioned in Para No.3 of plaint, was donated by a gift deed by Mujbul Haque on 27.10.1997 followed by delivery of possession to Syed Mohammed Mia having access of his residence through said Nohra. The defendant (present appellant) has illegally dispossessed Syed Mohammed Mia from said Nohra on

15.08.1985, therefore, plaintiff has filed a suit for possession of [2025:RJ-JP:23720] (4 of 7) [CSA-146/1996] Waqf property and consequential injunction. The defendant appellant Abdul Ali (since dead) has filed written statement denying the claim of plaintiff and asserting that the said Nohra belongs to him and it was never gift deed to Syed Mohammed Mia. He further raised objection about jurisdiction of Civil Court and right of Waqf Board to institute a civil suit.

7. On basis of pleadings of the parties, initially, six issues were framed, but later Waqf, two more issues were added and total 8 issues were decided by the Trial Court. Three witnesses were examined by the plaintiff, whereas two witnesses were examined by the defendant. The Trial Court has passed a decree of possession in favour of plaintiff. The defendant Abdul Ali has filed an appeal before learned District Judge, Jhunjhunu, but same was dismissed on 13.02.1996. During pendency of this appeal, appellant Abdul Ali has expired and his legal heirs were brought on record.

8. While considering the appeal for admission, following substantial questions of law were formulated on 03.05.1996 for consideration by this Court: (i) Whether the plaintiff’s suit is bad for misjoinder of cause of action and is manifestly vexatious and meritless in the sense of not disclosing a clear right to sue? (ii) Whether the suit in respect of the Waqf property is essentially to be filed by the Waqf through its Mutwalli or otherwise and the Waqf Board cannot maintain the suit? Whether the Waqf is a necessary party to the suit? [2025:RJ-JP:23720] (5 of 7) [CSA-146/1996] (iii) Whether the unregistered gift-deed (Ex.5) could be received as evidence and whether the document wass compulsorily registerable? (iv) Whether the gift-deed (Ex.5) insufficiently stamped could be admitted in evidence for any purpose whatsoever under Section 35 of the Indian Stamp Act? (v) Whether the suit was triable by the Revenue Court and not by the Civil Court?

9. In case of Waqf Board Rajasthan Vs. Jindal Saw Ltd. & Ors. (Supra), Hon’ble Supreme Court has considered declaration of Waqf under the Waqf Act, 1995 and observed that in absence of any proof of dedication or user, a dilapidated wall or a platform cannot be conferred a status of a religious place for the purpose of offering prayers/Namaz. The dispute was with regard to a portion of land lease to writ petitioner. The material on record clearly shows that there was the discrepancy in total area of Masjid in two documents and it was held that claim of appellant is on a different portion of land and not the land lease to writ petitioner.

10. In case of Narayan Sitaram Badwaik (Dead) Through LRs. Vs. Bisaram and Ors. (Supra), a Three Judge Bench of Hon’ble Supreme Court while considering Sections 100 and 103 CPC, has held that the High Court can decide an issue of fact in a second appeal, when there is a perversity in findings of fact.

11. In the instant case, the plaintiff has filed a civil suit essentially on the ground that the disputed property (Nohra) as described in Para No.3 of plaint is a Waqf property, and donated by father of appellant-defendant Abdul Ali followed by handing over the possession, but the appellant-defendant has dispossessed Syed Mohammed Mia (occupier). The plaintiff has further averred [2025:RJ-JP:23720] (6 of 7) [CSA-146/1996] that the disputed property is part of Khasra No.563 and said property is Waqf property. The defendant has denied that disputed property is part of Khasra No.563.

12. The plaintiff has tendered Ex.1 document relating to Khasra Nos. 562, 563, Ex.2 notification of Waqf, Ex.3 a suit filed before the SDO and gift deed (Ex.5) dated 14.08.1985 executed by father of plaintiff and defendant. Defendant has exhibited 11 documents. The findings recorded by Appellate Court on basis of admission of DW-Abdul Ali clearly reflect that Khasra No.563 is part of Dargah and it is Aabadi area. The Appellate Court has placed reliance upon evidence of DW-1 to draw a conclusion in favour of plaintiff. It is apparent on record that Khasra No.563 belongs to Dargah and same is a Waqf property. There is no other contradictory evidence, which requires any interference on ground of perversity (against the material on record).

13. When we consider gift deed (Ex.5) executed on 14.08.1985 then it is also on record that said gift deed is not a registered document. Herein this case, the possession of property was transferred to the plaintiff after execution of gift deed. This gift deed was never challenged by defendant-appellant, moreover, Waqf is a dedication of property movable or immovable, tangible or intangible to God by any Muslim person. These properties are used for religious, charitable or pious purposes and managed by Waqf Board. It is always said that once a Waqf is always a Waqf, means a dedication is permanent in nature, and it is intended for long term use for specified purpose. A Waqf property is not meant to be re-transferred or reverted back. Herein this case, the evidence on record clearly suggests that the property in question [2025:RJ-JP:23720] (7 of 7) [CSA-146/1996] was already donated by way of gift deed prior to present dispute. It is also important to notice a fact that Syed Mohammad Mia and Abdul Ali are brothers and their father has gifted the property, to be used as a Waqf though it is a private Waqf, but still it is meant to be used as part of Dargah (place for prayer by society).

14. Having considered the findings recorded by both the Courts below, there is no necessity to implead or join other persons as party to the suit, and they are neither necessary nor proper party. The Waqf Board has authorized Syed Mohammad Mia to file a suit, hence same is maintainable and suit is filed on behalf of Waqf Board. The gift deed (Ex.5) is not registered, but till date same has not been challenged and property has already been transferred by way of gift deed as Waqf. There is no provision to revert back unless a suit is filed to challenge Ex.5. For a collateral purpose, Ex.5 is admissible in evidence. Since, the suit is filed before the Civil Court prior to the Act of 1995, hence it is maintainable before the Civil Court as the disputed Nohra is part of Aabadi. Accordingly, all substantial questions of law, are answered in negative and against the appellant. Thus, the appeal sans merit and liable to be dismissed.

15. As a result, the instant S.B. Civil Second Appeal filed aggrieved from dismissal of Civil Regular Appeal No.40/1995 affirming the judgment and decree dated 15.09.1995 in Civil Suit No.82/1985 (10/1994), is hereby dismissed.

16. No order as to costs.

17. Misc. application, if any, stands disposed of. GAURAV /77-S (ASHOK KUMAR JAIN),J