Marathwada Wakf Board,through the Secretary vs Rajaram Ramjivan Manthri & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2001 Supreme(Bom) 25

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
S. Radhakrishnan, J.
Marathwada Wakf Board,
through the Secretary.... Appellant.
Versus
Rajaram Ramjivan Manthri others.... Respondents.
Second Appeal No. 37 of 1984, decided on 12/15-1-2001.
Advocates appeared :
K.G. Kader, for appellant.
P.R. Deshmukh, Sr.C. with S.V. Chandole, for respondent No. 1.
P.B. Varale, A.G.P., for respondent Nos. 2 and 3.

Headnote:Section 6(1)-Specific Relief Act- 1963, Sections 36 and 37-Property shown as Wakf Property in govt. notification-Declaratory suit-Property changed-Lands by Regd. sale-deed-Contention-Suit against inclusion should have been filed within an year of its inclusion under Section 6(1) of Wakf Act-Held-A person who possesses property in his own right is not covered under Section 6(1) of Wakf Act-Suit shall be maintainable under Civil Court.-If a person who is non-Muslim, whether he be a Christian, a Hindu, a Sikh, a Parsi or of any other religious denomination and if he is in possession of a certain property, his right, title and interest, cannot be put in jeopardy simply because that property is included in the list published under Section 5(2). He also further relied on the observation of the Rajasthan High Court holding that the Legislature could not have meant that he should be driven to file a suit in a civil Court for a declaration of his title simply because the property in his possession is included in the list. It is extremely clear that the respondent No. 1, who is a non-Muslim, being a Hindu, could not file a suit under Section 6 of the Wakf Act, 1954, but he cannot be barred from filing a suit especially in view of the fact that his right, title and interest have been jeopardised in view of the notification issued by the Government of Maharashtra aforesaid. In view of the clear evidence on record and as has been rightly appreciated by the lower Appellate Court by giving a clear finding to the effect that it is not a Wakf property, this Court, sitting in a second appeal, cannot sit in judgment Over the said finding, unless the same is perverse, based on no evidence.

JUDGMENT - S. RADHAKRISHNAN, J.:---The brief background of the second appeal is that the respondent No. 1 namely Rajaram Ramjivan Manthri claims that he had purchased property being suit house situated at Manwath Pathri Dist. Parbhani from one Amirkhan by a registered sale deed dated 4-9-1961 for Rs. 6,000/-. The said Amir Khan had purchased the said property from one Jamalbi widow of Sharfuddin by registered sale deed dated 11-1-1940.

2. The appellant herein namely Marathwada Wakf Board had issued a notification dated 5-9-1974 wherein at Sr.No. 19 in addition to the Masjid Chowk and grave yard, a house alongwith 3 shops which were purchased by the respondent No. 1, were included as Wakf property.

3. The respondent No. 1, who had purchased the said property from said Amir Khan on 4-9-1961 and has been continuously in possession of the said house property and shops, aggrieved by the said Government gazette notification threatening his title to his property, filed Regular Civil Suit No. 145/1975 before the Court of Civil Judge, Senior Division, Parbhani, seeking a declaration that he is the owner of the said suit house situated at Manwath Tq. Pathri Dist. Parbhani. The learned trial Judge, after recording evidence, came to the conclusion that the plaintiff was not entitled to relief claimed therein in the sense that the plaintiff had failed to prove his claim and the suit was dismissed.

4. Aggrieved thereby, the respondent No. 1 herein had preferred Regular Civil Appeal No. 133/1977 before the Court of Assistant Judge, Parbhani. The lower Appellate Court by a detailed judgment considering all the issues came to the conclusion that the respondent No. 1 ought to be declared an exclusive owner of suit house situated at Manwath Tq. Pathri Dist. Parbhani.

5. Marathwada Wakf Board, being aggrieved thereby, filed this second appeal and the second appeal was admitted by this Court raising the following substantial questions of law :

"(1) Whether Exhibit 54, extract from the Wakf Register established that the suit property was dedicated to the mosque known as Mahiboob Ganj of Manvath under the will executed by the deceased Sharfuddin, the then owner of the suit property on 8 Behman 1348 Fasli.

(2) Whether the suit property was rightly entered in the Wakf Register after compliance with rules framed under the Hyderabad Endowment Regulations.

(3) Whether the entry in the Wakf Register made in 1349 Fasli had become final under the provisions of the Hyderabad Endowment Regulations."

6. The learned Counsel Shri Kader strongly contended that the suit property is a Wakf property especially in view of Exhibit 54 which is an extract of Muntakhab Wakf of endowed property by Tahsil, and if it is a Wakf property, the respondent No. 1 cannot claim any title over the same.

7. At the out set, there is no dispute with regard to the factual position in the sense that the suit property was purchased by Amir Khan s/o Abdul Kader from Jamalbi widow of Sharfuddin by registered sale deed dated 11-1-1940. Similarly, there is no dispute that the said Amir Khan had sold the suit property for a sum of Rs. 6,000/- by a registered sale deed on 4-9-1961 to the respondent No. 1 herein. It is also an admitted position that from 4-9-1961, the respondent No. 1 is in possession of the suit property and that the respondent No. 1 has spent huge amount and has reconstructed house which was in a dilapidated condition.

8. Shri Kader, learned Counsel for the appellant, pointed out that the respondent No. 1 could not have filed the suit for declaration of his title and challenging the aforesaid gazette notification dated 5-9-1974 in view of section 6 of the Wakf Act, 1954, that is to say that on two counts under section 6 of the Wakf Act, 1956, the respondent No. 1 could not have filed the above suit inasmuch as section 6(1) contemplates that such a suit could be filed only by the Board i.e. Wakf Board or the Mutawalli of the Wakf or any person interested therein i.e. any person intere

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