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2015 Supreme(All) 860
ALLAHABAD HIGH COURT
BEFORE : ASHWANI KUMAR MISHRA, J.
NIZAMUL HAI @ TITU ....Appellant
Versus
MOHAMMAD AHMAD AND OTHERS .....Respondents
(Second Appeal Nos. 604 and 658 of 2015, decided on 19th August, 2015)
Counsel :
A.K. Gupta and Tarun Verma for the Appellant; Punit Kumar Gupta, M.A.Qadeer and Manish Goyal for the Respondents.
Headnote:U.P. Waqf Act, 1995—Sections 32(g), 83, 3(i), 5, 6 and 7—Waqf—Mutawalli—Right of appointment—Appellate Court has held that the prayer of respondent No. 1/4-appellant to declare him as Mutawalli of the Waqf is not maintainable before the Civil Court—Plaintiff-father of appellant sought the aforesaid appointment—Admittedly, the right which has been claimed by appellant has come into existence after 1.1.1996—Claim of appellant was required to be determined in accordance with provisions of 1995 Act—Tribunal has all powers of a Civil Court for purposes of adjudication of disputes falling within its jurisdiction—Issue of paternity of appellant being incidental question to the question raised by appellant regarding his entitlement to be appointed as Mutawalli also can be gone into by the Tribunal—Question of entitlement of appellant to be appointed as Mutawalli—Appellate Court was right in holding that the cause requiring adjudication was not maintainable before the Civil Court—Appellant at liberty to apply for restoration in appeal already filed or institute such other proceedings as he may and maintainable. [Paras 19 to 36]
Result; Appeal Dismissed.
Hon’ble Ashwani Kumar Mishra, J.—These two connected second appeals are directed against the appellate order passed by the Court of IIIrd Addl. District Judge, Gorakhpur in Appeal No. 83 of 1992, dated 23.3.2015, as well as counter objection registered in Civil Appeal No. 91 of 1996, both of which have been dismissed. The appellate Court has held that the prayer of respondent No. 1/4 (appellant here in) to declare him as Mutawalli of the Waqf, is not maintainable before the Civil Court.
2. Shorn of unnecessary details, basic facts giving rise to filing of the appeal are that the father of the sole appellant Haji Abdul Hai instituted Original Suit No. 64 of 1964 against the defendants, who are respondents herein, as well as those claiming through them. Sunni Waqf Board, through its Secretary was also impleaded as Defendant No.16 in the Suit. In the suit, a prayer was made that the plaintiff (father of the appellant herein) be declared as the Mutawalli of the Waqf properties given in list-A and list-B, on the basis of the Waqf deed dated 4.8.1931. Relief of injunction was also claimed against the defendant Nos. 4,5 & 8 as also their successor in interest, from interfering in the possession of the plaintiff as Mutawalli. Alternatively, it was claimed that in case the plaintiff is found to be out of possession of any part or whole of the property, then possession of such property of the waqf be delivered to the plaintiff. It appears that certain suits were also filed by the tenants of the property said to be belonging to the Waqf, which were all consolidated together. Trial Court framed as many as 36 issues. It is not necessary to mention all such issues but it would suffice to note issues No. 1,2,3,4,5,6,15 and 25, as formulated which are reproduced below :
“1. Whether, the defendant No. 1 had created any valid waqf with respect of the properties given in list-A of the plaint?
2. Whether, the defendant No. 1 executed any valid waqf deed on 4.7.1931? If so, its effect?
3. Whether, Waqf in question was acted upon and whether the defendant No. 1 had been in possession of the properties in suit as Mutawalli?
4. Whether, the properties given in list-B at the foot of the plaint, were acquired by the defendant No. 1 with the income of the properties as mentioned in list-A? If so, its effect?
5. Whether, the defendant No. 1 was still in possession of the property in dispute till he died?
6. Whether, the plaintiff is entitled to be appointed as Mutawalli with respect to the properties in suit? If not which of the defendant is entitled of such?
15. Whether, the defendant No. 1 validly gifted the properties in suit to defendant Nos. 4, 5 and 6, if they are in possession of the properties in suit? If so. Its effect?
25. Whether, the plaintiff is illegitimate grand son of Abdul Samad? If so, whether he is not entitled to be appointed as Mutawalli?”
3. Parties led their oral and documentary evidence in support of their respective cases.
4. Trial Court vide its judgment and decree dated 24.5.1982 decreed the plaintiff’s suit in respect of properties enumerated in list-A, whereas the suit was dismissed in respect of the properties enumerated in list-B. Operative portion of the judgment of the trial Court reads as follows :
“The plaintiff’s suit No. 64of 1964 is decreed in respect of existing properties of List A given at the foot of the plaint. The plaintiff is appointed as Mutawalli of these properties. The plaintiff shall also be entitled to get possession over these properties as Mutawalli. The defendants are restrained from interfering in the work and management of the plaintiff of these properties as Mutawalli.
The suit in respect of the properties in List-B is dismissed.
In view of part succession the parties shall bear their costs of this suit.
Suit Nos. 83 of 1961, 389 of 1964, 513 of 1966, 347 of 1967, 482 of 1968, 661 of 1968, 1084 of 1968, 88 of 1969, 266 of 1969, 384 of 1989, 420 of 1969, 630 of 1969 and 839 of 1977 are hereb
