Banwari & Others vs Ahmad Syed & Others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2013 Supreme(All) 516

SUDHIR AGARWAL
Banwari & Others – Appellant
Versus
Ahmad Syed & Others – Respondent

Sanjay Mishra, Paras Nath Singh, Rahul Mishra, Advocates, for the petitioner
Lalit Kumar, Advocate, for the respondents.

Judgement Key Points

The appellants filed a suit for permanent injunction to restrain respondents from interfering with their possession of the disputed property, based on a sale deed dated 25.7.1969. [25000728820001]
The Trial Court (Civil Judge Senior Division, Khurja, Bulandshahar) dismissed the suit on 2.12.2003, finding the disputed property is part of a Muslim graveyard registered as Kabristan in Abadi Khasra land No. 724, which is a waqf and not transferable by sale, rendering the sale deed void ab initio. [25000728820001][25000728820002]
The lower Appellate Court dismissed Civil Appeal No. 136 of 2009 on 7.10.2010, confirming the Trial Court's finding that the property is part of a Muslim graveyard, a waqf, and thus not subject to sale, making the sale deed a nullity. [25000728820002][25000728820003]
Appellants argued the Kabristan was not public and thus not a waqf. [25000728820004]
Whether land is part of a Kabristan is a question of fact. [25000728820005]
Both lower courts recorded a concurrent finding of fact based on evidence that the disputed property is part of the Muslim graveyard/Kabristan, a waqf. [25000728820005] (!)
No admissible evidence was overlooked, and the finding is not perverse, so no substantial question of law arises under CPC S.100. (!)
The Second Appeal No. 165 of 2013 was dismissed on 13.02.2013, upholding the lower courts' decisions. (!) (!)

Sudhir Agarwal, J.—

Heard Sri Paras Nath Singh, Advocate, for appellants and Sri Lalit Kumar, Advocate, for respondents.

2. Appellants' suit for injunction against the defendant-respondents, whereby they had sought permanent injunction retraining the defendant-respondents from interfering in their peaceful possession and enjoyment of the property in dispute, was dismissed by Civil Judge (Senior Division), Khurja, Bulandshahar vide his judgment dated 2.12.2003 on the ground that the property In dispute is a Muslim graveyard, and, being a waqf, it could not have been a subject matter of transfer by sale, hence, the sale-deed dated 25.7.1969, whereupon the plaintiff-appellants founded their claim, was void ab-initio.

3. The Trial Court recorded a finding of fact that property in dispute was part of a Muslim graveyard and it was also registered in the Abadi Khasra land No. 724 as Kabristan. The Kabristan is a waqf and it could not have been transferred by a sale-deed, and, therefore, the alleged sale-deed, whereby the property in dispute was purchased by the plaintiff-appellants, was void ab-initio. The judgment of Trial Court has been confirmed by the lower Appellate Court dismissing Civ

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2013 Supreme(All) 516

SUDHIR AGARWALBanwari & Others – AppellantVersusAhmad Syed & Others – Respondent

SUDHIR AGARWAL
Banwari & Others – Appellant
Versus
Ahmad Syed & Others – Respondent