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IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH
ARUN R. PEDNEKER, J.
Sunil S/o. Vasudeo Nirgude & Ors. - Applicants
Versus
Hasan Khan S/o. Maheboob Khan & Ors. - Respondents
Civil Revision Application No. 158 of 2012
Decided On : 11-09-2023
Civil Procedure Code,1908 - Order VII Rule 11 - Wakf Act – Section 54 and 83(2) – Application – Suit land - Peaceful possession - Challenged judgment and order - Whether Bombay Tenancy and Agricultural Lands [Vidarbha Region] Act, 1958 being included in Ninth Schedule of Constitution of India will override Wakf Act of 1995 – Held, Although wakf had lost it’s title to suit land, Chief Executive Officer nevertheless proceeded to pass an order of eviction of applicants and applicants filed a suit before Wakf Tribunal seeking declaration, challenging order passed, same was held to be barred by limitation - Since suit was delayed by few days, same was held to be barred- even if it is held that order under section 54 for any technical reason has attained finality on account of being not challenged within time, same cannot be executed unless ownership certificate granted under Maharashtra Tenancy and Agricultural Lands (Vidarbha Region) Act is set aside by competent authority as noticed above - Civil Revision Application is allowed
Key Points: - The inclusion of the Tenancy Act in the Ninth Schedule does not override the Wakf Act, but the Wakf property can still be subject to tenancy rights granted by the Tenancy Act (!) (!) . - A beneficiary of a Wakf can acquire title to Wakf property by adverse possession, as the beneficiary is not a fiduciary and adverse possession is not barred (!) (!) . - The Chief Executive Officer under the Wakf Act cannot evict tenants whose ownership is protected under the Tenancy Act; only the authorities under the Tenancy Act can decide tenancy issues (!) (!) . - An order of eviction under Section 54 of the Wakf Act is not executable unless the ownership certificate under the Tenancy Act is set aside (!) (!) . - The Civil Revision Application is allowed and the impugned orders are set aside due to the failure to set aside the ownership certificate under the Tenancy Act (!) (!) .
JUDGMENT :
1. By the present Civil Revision Application, the applicants are challenging the judgment and order passed by the Presiding Officer, Wakf Tribunal at Aurangabad in Wakf Application No.8 of 2011, thereby the Tribunal was pleased to dismiss the application filed by the applicants. In the said Application, the applicants were seeking following relief :
2. It is the case of the applicants that the applicant nos.1 and 2 are the owners of the suit land bearing Gat No.234/1/A admeasuring 1 H. 58 R. situated at village Dhamangaon, Taluka Achalpur, District Amravati and the applicant no. 3 is the owner of the suit land bearing Gat No.234/1/B admeasuring 1 H. 21 R. situated at village Dhamangaon, Taluka Achalpur, District Amravati. The applicants are in peaceful possession of the suit land and cultivating the suit land as owners and possessors of the suit land. The ancestors of the applicants were the tenants of the suit land and were cultivating the said land and they became protected agricultural tenants of the land on the date of coming into force the Bombay Tenancy and Agricultural Lands [Vidarbha Region] Act, 1958 [for short ‘”Vidarbha Region Tenancy Act of 1958’]. The said Act of 1958 is made applicable only to Vidarbha Region from 31.12.1958 and the ancestors of the applicants became statutory tenants under the provisions of Act of 1958 and later on the statutory ownership was transferred to the tenant under the provisions of Act of 1958 on payment of price, which amount was deposited by the tenants in the Court of the President, Agricultural Land Tribunal, Achalpur in R.V.C.No.2079/59 (13)/64-65, Dhamangaon Gadhi decided on 13.04.1970 and necessary purchase certificate about the transfer of ownership was issued by that Court in the name of tenants and since then the tenants became the statutory owners of the said suit land. The statutory ownership of the suit land is transferred in the name of Vasudeao s/o. Sheruji Nirgude and after his death the suit property is inherited by the applicants. The applicant nos.1 and 2 are the sons of deceased Vasudeo and applicant no. 3 is the brother of the deceased Vasudeo.
3. It is further the case of the applicants that the respondent no.1 has no concern with the suit property but in order to grab the suit property by showing that the suit property as wakf property on Mahebood Subani [Gazimiya] Dargah Dhamangaon [Gadhi], Tq.Achalpur, Dist. Amravati filed application dated 16.04.2007 under Section 54 of the Wakfs Act, 1995 before the respondent no.2 [Chief Executive Officer] and claimed that the suit property is a wakf property and he is Mutawalli of the said Dargah and asked for possession of the suit property in his favour. The applicants resisted the claim of the respondent no.1 before the respondent no.2 and the respondent no.2, by order dated 21.10.2009 under Section 54 of the Wakf Act, 1995, held that the suit property is wakf property and the applicants are the encroachers over the suit property.
4. Being aggrieved by the said order, the applicants filed suit No.134 of 2009 before the Wakf Tribunal at Aurangabad for declaration and perpetual injunction. In the said suit, the respondent no.1 moved an application under Order VII Rule 11 of the Civil Procedure Code for rejection of plaint on the ground that the suit was not filed within a period of 60 days as provided under Rule 50 Sub-rule (3) of the Wakf Rules, 2003 and as there was delay of 9 days the plaint was rejected by order dated 09.11.2010 passed by the learned Presiding Officer, Wakf Tribunal at Aurangabad.
5. The applicants challenged the order dated 09.11.2010 passed in Suit No.134 of 2009 by filing Civil Revision Application No. 2/2010 before this Court. The applicants withdrew the said Civil Revision Application, with liberty to file appropriate proceeding as permi
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