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IN THE HIGH COURT OF JUDICATURE AT PATNA
KHATIM REZA, J.
Civil Revision No. 127 of 2019 in CWJC No.3025 of 2019
(24.11.2023)
Munna Yadav @ Ashok Yadav @ Ashok Kumar ... Petitioner
vs.
State of Bihar & Ors. ... Respondents
Bihar State Sunni Waqf Board Act, 1947 – Section 43 – Waqf Act, 1995 – Sections 54(3) and 83(9) – Removal of encroachment from Waqf property – As per Section 43 of Bihar State Sunni Waqf Board Act 1947, there cannot be transfer of Waqf property without sanction of Majlis (Now Waqf Board) – Date of sale deed of 1951 is 10.02.1951 and at that time, Bihar Waqf Act, 1947 was applicable/enforceable – Said sale deed was executed without sanction/approval of Majlis and transfer is in contravention and barred under provision of Section 1 of sub-section 43 of Bihar Act 1947 – Petitioner was not in physical possession of property in question and only recently when notices were sent by Bihar State Sunni Waqf Board in year 2016 under Section 54 of Waqf Act, then petitioner took steps for mutation of the land – Sale deed dated 23.06.1935 and 10.12.1951 are not operational deeds which were never acted upon since last 81 years and 65 years respectively – Waqf Tribunal decided eviction application against petitioner being an encroacher of Waqf property, while declaration of title with regard to property in question is still pending before Waqf tribunal – Encroachment proceeding/eviction proceeding is summary proceeding without going full-fledged into title of parties – Right course was to decide title suit declaring title of property and only when court finds property in question is not belonging to party aggrieved (plaintiff of suit), order in eviction application should be passed. (Paras 30, 32 and 36)
Waqf Act, 1995 – Sections 54(3) and 83(9) – Bihar State Sunni Waqf Board Act, 1947 – Section 43 – Removal of encroachment from Waqf property – Petitioner himself has not denied existence of Qabristan – Conclusive proof of public graveyard is description of burial ground in revenue records as graveyard – Once it is found that a certain definite area of land has been dedicated for use as graveyard, it must be presumed as such even in absence of any proof that dedication was limited – Either graveyard is private or public, owner of land has no right to sell Qabristan land which has been used since time immemorial or for a considerable long time – Impugned order passed in Eviction Application set aside and Waqf Tribunal directed to look into all aspects of case. (Paras 39, 42, 45 and 48)
Khatim Reza, J. – Heard learned counsel for the petitioner and learned counsel appearing on behalf of Bihar State Sunni Waqf Board as well as learned counsel for the opposite party no. 6.
2. The petitioner has filed this Civil Revision Application under Section 83(9) of the Waqf Act, 1995, being aggrieved by the order dated 29.11.2018 passed by the Bihar State Waqf Tribunal, Patna in Eviction Application No. 12 of 2016 filed by the Bihar State Sunni Waqf Board under Section 54(3) of the Waqf Act, 2013 for removal of the encroachment from the Waqf property against the petitioner-opposite party whereby, the learned Tribunal has declared that the petitioner is the encroacher of the Qabristan pertaining to plot no. 1709 and 1711 measuring an area of 0.71 acre and 0.38 acre respectively and so the petitioner-opposite party was directed to vacate the same and also direction was given to the Chief Executive Officer, Bihar State Sunni Waqf Board to take all appropriate action for vacation of the land mentioned in eviction application and take possession of the property and the opposite party shall be held liable to pay damages at the rate of five thousand per day to the Estate if he does not vacate the Waqf property within the period of 45 days to be realized by the Board/Mutawalli through the process of law.
3. The aforesaid eviction application was filed by the Bihar State Sunni Waqf Board in view of the order dated 11.04.2016 passed by the Chief Executive Officer, Bihar State Sunni Waqf Board under Section 54 of the Waqf Act, 1995 (Amendment Act 2013) for removal of encroachment by the petitioner-opposite party from the Waqf property (Qabristan) pertaining to Khesra No. 1709, Sheet No. 218, Ward No. 21/59, Circle No. 113 area 71 decimal and land bearing plot no. 1711 area 38 decimal belonging to Qabristan which is illegally occupied by him and he has been declared by the Bihar State Sunni Waqf Board as encroacher of the said Waqf Estate No. 2598. Qabristan situated in Mittan Ghat, Patna city, Patna.
4. It is further case of the Waqf Board that one Soni @ Shashi Bhusan filed a petition dated 11.03.2015 alleging that the land of Qabristan have been encroached by the petitioneropposite party since long having illegal possession over it and the petitioner-opposite party is also collecting rent from the land.
5. On verification, notice was issued to the petitioner-opposite party asking him to appear and file show-cause. The petitioner-opposite party appeared through his counsel and filed his objection petition dated 01.03.2016 and 11.03.2016 claiming that the land is his ancestral property.
6. It was further contended that the creation of Waqf Estate No. 2598 by Bihar State Sunni Waqf Board is illegal and without jurisdiction. The petitioner-opposite party has also asserted that his ancestors purchased the property through sale deed dated 20.06.1935 and 10.12.1951. It was further contended that plot no. 1711 measuring an area of 38 Municipal Kari was purchased by Zameeurn Nisa Begum @ Chanda Begum, who was married to Taki Mian @ Naki Ali. The said Taki Mian @ Naki Ali has purchased the vacant land of plot no. 1711 measuring an area of 38 Municipal Kari from Syad Sah Hamidul Haq, son of Syed Sah Mujibul Haque in the name of his wife namely, Most. Zameeurn Nisa Begum @ Chanda Begum through registered sale deed dated 17.05.1926 on valuable consideration and came in possession over the same as absolute owner.
7. It was pleaded that during Municipal Survey name of Taki Mian @ Naki Ali with respect to Plot no. 1711 measuring an area of 38 Municipal Kari was recorded in Municipal Khesra held in the year 1932-33. The said Zameeurn Nisa Begum @ Chanda Begum was only name lender. She has no right, title and possession with respect to the lands of Plot no. 1711. Therefore, the name of Zameeurn Nisa Begum @ Chanda Begum was not recorded in Municipal Kheshra. After the death of Taki Mian @ Naki Ali his wife Chanda Begum inherited and succeeded and came in
The rejection of a plaint for lack of cause of action must be substantively justified; merely asserting lack of merit without proper consideration of presented evidence is insufficient.
The court determined that the land in question is not a graveyard and upheld previous rulings on ownership.
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