Point of Law: Wakf Property - Rejection of plaint - Bar to the tenability of the suit in the absence of prayer of possession, does not apply with equal force.

JUDGMENT :

N.J. JAMADAR, J.

1. The legality, propriety and correctness of an order passed by the Maharashtra State Waqf Tribunal, Aurangabad, dated 11th February, 2021 on an application (Exhibit No. 21) preferred by the applicant No. 2-defendant No. 1 for rejection of the plaint under Order VII Rule 11(d) of the Code of Civil Procedure (Code), whereby the said application came to be rejected, is assailed in this revision application.

2. Shorn of unnecessary details, the background facts leading to this application can be stated as under:

(a) The respondent-plaintiff is the Board constituted under the provisions of the Waqf Act, 1995 (Act 1995). It is a supervisory authority over the Waqf Institutions and properties throughout the State of Maharashtra. The land bearing Survey No. 210 which admeasures 28 acres 39 gunthas, including CTS No. 2340 admeasuring 10168.25 square meters (suit property), is the Waqf Property dedicated for the services of Jama Masjid, Aurangabad. In the record of rights, the suit property was shown in the name of Mohammad Azeemuddin, Mutawalli, who was caretaker of the land of the Jama Masjid. Pursuant to the survey of Waqf conducted under the provisions of the Waqf Act, 1995, in the Government Gazette published on 17th May 1973, Jama Masjid, Aurangabad, was included as Waqf Property.

(b) The plaintiff avers that while implementing the City Survey Scheme, probably in the year 1971, the name of defendant No. 1-Municipal Corporation is recorded as owner and occupant of the suit land without any legal mandate. The mutation of the name of defendant No. 1-Municipal Corporation in the City Survey record, however, neither divests the ownership over the suit land of the Waqf Institution nor confers any right, title and interest in the suit land upon the defendant No. 1-the Municipal Corporation.

(c) The plaintiff-Board, thus, initiated the proceedings under Section 40 of the Waqf Act, 1995. After providing an opportunity of hearing to the concerned parties, the Board passed an order on 25th June 2013 declaring that the suit property is a Waqf property. Accordingly, the suit property came to be registered as a Waqf Property vide Registration No. MSBW/ABD/526/2013.

(d) The defendant No. 1-Municipal Corporation, being aggrieved by the aforesaid order of the plaintiff-Board, filed an application before the Waqf Tribunal being Misc. Application No. 3 of 2014. The defendant No. 1-Corporation, however, did not prosecute the said application and, thus, it came to be eventually dismissed for want of prosecution by order dated 4th January 2017. The order passed by the Board on 25th June 2013 declaring the suit property as the Waqf Property, thus, remained intact.

(e) The plaintiff avers that the defendant No. 1-Corporation has erected construction over the portions of the suit land. However, the defendant No. 1-Corporation has no legal right to erect further construction upon the land. The defendant No. 2-Aurangabad Smart City Development Corporation Limited is an agency of the defendant No. 1. The defendant No. 1 is in the process of transferring the suit land in favour of defendant No. 2. Defendants No. 1 and 2 have threatened to commence construction of War Room office of the Smart City Development Corporation over the suit land despite the order of the plaintiff-Board declaring the suit land to be the Waqf Property. Hence the suit for perpetual injunction restraining the defendants from making any sort of construction over the suit land or creating third party interest therein.

(f) The defendants appeared in response to the suit summons. The defendant No. 1-Municipal Corporation preferred an application for rejection of the plaint (Exh.21) contending, inter-alia, that from the averments in the plaint it becomes evident that the plaintiff is not in possession of the suit property and the defendants are in possession thereof and, thus, a suit for perpetual injunction simpliciter without the substantive relief of possession is bar