THE HONOURABLE SRI JUSTICE N.TUKARAMJI CIVIL REVISION PETITION No. 6099 OF 2012

ORDER

Heard Ms.Samhitha Nimmala, learned counsel, representing Mr.Vivek Jain, learned counsel on record for the revision petitioner. In spite of listing the matter under the caption ‘For Orders’, the respondent chose to remain absent.

2. This revision petition has been filed assailing the decree and judgment dated 10.10.2012 in O.S.No.85 of 2004, on the file of the Andhra Pradesh State Wakf Tribunal, Hyderabad (for short ‘the Wakf Tribunal’).

3. The suit was filed by the respondent/plaintiff (Waqf Board) (hereinafter ‘the plaintiff’) with a prayer for recovery of vacant peaceful possession of the graveyard, situated in Sy.No.8, admeasuring Ac.1-10 gts., situated at Balapur Village, Saroor Nagar Mandal, Ranga Reddy District, by way of direction to the revision petitioner/defendant (hereinafter ‘the defendant’) and for mandatory injunction to remove the structures made in the graveyard to the extent of 1,500 square yards in Sy.No.8, situated at Balapur Village, Saroor Nagar Mandal, (for short ‘the subject land’). The Wakf Tribunal vide the impugned judgment decreed the suit by observing that the revision petitioner had encroached 1,500 square yards of graveyard land and directed the defendant to hand over vacant possession of the subject land. Further, granted mandatory injunction to remove three buildings constructed within the area of 1,500 square yards within 60 days from the date of the judgment. Aggrieved thereby, the defendant preferred this revision.

4.(i). The plaintiff’s case in brief is that in Sy.No.8 at Balapur Village, Saroornagar Mandal, Ranga Reddy District, there is a graveyard admeasuring Ac.1-10 gts., which is registered Wakf property and the plaintiff came to know through their Inspector/Auditor that the defendant had occupied graveyard by removing some graves and proceeding with the construction. Whereupon, a direction was given to its task force for inspection and report and a report/Ex.A-3 was submitted, whereby it came to their knowledge that the defendant is going ahead with the construction within the extent of 1,500 square yards. Thus, a letter/Ex.A-4 was addressed to the Mandal Revenue Officer for survey and to demarcate the graveyard. However, the request remained unattended. Thus, filed the suit seeking possession and mandatory injunction.

4.(ii). On the other hand, the defendant in written statement denied the plaintiff’s contention and the allegation of occupation of any part of the graveyard much less making any construction. He had pleaded that the construction is a house in the plot purchased by him in Sy.No.7, from the pattadar one B.Narsimha Rao. He specifically pleaded that 70 square yards in Plot No.8 in Sy.No.7 is distinct from the survey number claimed by the plaintiff. It is also his case that in 2004, the Revenue department through Mandal Surveyor conducted survey and demarcated the boundaries of Sy.No.8 i.e. plaintiff’s claimed property and also the boundaries were fixed and he is not in possession of any part of Sy.No.8. Thus, the plaintiff is not entitled for the decree.

4(iii). The Tribunal having considered the rival claims framed following issues for trial:

1. Whether the plaintiff is entitled for recovery of possession and mandatory injunction.

2. To what relief?

4(iv). During trial, the plaintiff/Waqf Board got examined its Inspector from its Audit Office as PW-1 and got marked Exs.A-1 to A-6. On the other hand, the defendant got examined himself as DW-1 and got marked Exs.B-1 to B-3.

4(v). The Tribunal on considering the materials placed on record and by observing that the material filed by the plaintiff and the admission of defendant as to construction, which is making out construction within the area of 1100 square yards in two buildings and another part is under construction and as the plaintiff had established that the portion constructed and under construction was encroached by the defendant, held that