The first substantial
question of law as framed is with regard to the aspect whether the suit as
filed was barred by limitation in view of the provisions of Section 6(1) of the
Act of 1954. Under Section 6(1) of the Act of 1954 if any question arises
whether a particular property described as wakf property in the list of wakfs
is wakf property or not, the Board or the mutawalli of the wakf or any person
interested therein can institute a suit in the civil Court. However, as per the
first proviso to Section 6(1) of the Act of 1954, no such suit can be
entertained by the civil Court after the expiry of one year from the date of
publication of the list of wakfs under Section 5(2) of the Act of 1954. In
Board of Muslim Wakfs (supra) it was held by the Hon'ble Supreme Court that
the provisions of Section 6(1) of the Act of 1954 relate only to those persons
who are interested in the wakf. The purpose of Section 6 of the Act of 1954
was to confine disputes between the Wakf Board, mutawalli and the person
interested in the wakf. It was held in the aforesaid decision that the Act of
1954 deals with wakf, its institutions and its properties and therefore it
would be logical and reasonable to infer that said provisions empower only
those who are interested in the wakf to institute suits. The judgment in
Board of Muslim Wakf (supra) was considered by the Hon'ble Supreme Court
in its subsequent judgment in Punjab Wakf Board (supra). By following the
earlier law, the Hon'ble Supreme Court in Punjab Wakf Board (supra) made a
clear distinction between a dispute amongst the wakf and the mutawalli or
the persons claiming under him and a dispute with a stranger. It is,
therefore, clear that the period of limitation as prescribed by the proviso of
Section 6(1) of the Act of 1954 would apply only to those who are interested
in the wakf.
In the present case the original defendants were not persons who
were interested in the wakf. The dispute was between the wakf board and
strangers. Thus considering the ratio of the judgment in Board of Muslim
Wakf (supra) it will have to be held that the period of limitation of one year
commencing from the date of the notification would not be applicable in the
present case. The appellate Court though referred to the decision in the
Board of Muslim Wakf (supra), it failed to apply the ratio of aforesaid decision
in the proper perspective. The appellate Court fell into an error when it held
that the plaintiff should have filed the suit within a period of one year from
the notification dated 06/03/1975 and as the same was not done, the suit
was barred by limitation. The finding recorded by the appellate Court against
point no.1 is therefore liable to be set aside. Accordingly substantial question
of law no. 1 is answered by holding that the proviso to Section 6(1) of the
Act of 1954 would not apply in the present case and the suit as filed was not
barred by limitation.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
SECOND APPEAL NO. 431 OF 1994
Maratwada Wakf Board
VERSUS
Vibhawari wd/o Deepak
Deshpande, aged 45 yrs.
CORAM: A. S. CHANDURKAR J.
Dated : February 26, 2016.
Citation: 2016(3) MHLJ753
This appeal under Section 100 of the Code of Civil Procedure (for
short, the Code) takes exception to the judgment dated 16.09.1994 passed by
the first appellate Court allowing the appeal filed by the respondent nos. 1 to
4 and setting aside the judgment and decree passed by the trial Court.
2] Facts found relevant for deciding the second appeal are that
according to the appellant there was a Dargah and graveyard admeasuring
about 350 ft. X 250 ft. in Survey No. 153 at Rajura Tahsil, District
Chandrapur. The said Dargah and graveyard was shown as Wakf property in
the development plan of Rajura town in 1972. In the Government Gazette
dated 06.03.1975 it was shown at Sr. No. 49. According to the appellant the
defendant no.1Deepak Deshpande had encroached an area admeasuring 160
ft. X 170 ft. of said property in the month of May 1974. The defendant no.1
had also sold the portion admeasuring 95 ft. X 80 ft. to the defendant no.2 on
29.06.1976. In this background the appellant filed Regular Civil Suit No. 4 of
1977 for a declaration that the suit property was Wakf property and sought
possession of the encroached portion. The suit was filed on 19.01.1977.
3] The defendant no.1 filed his written statement vide Ex. 101. The
case as pleaded was denied by the defendant no.1. It was specifically
pleaded that said defendant was the recorded owner of Survey No. 153/2
admeasuring 1 acre 30 gunthas. It was pleaded that said property was
purchased in a Court auction in the year 1923. In the southern portion there
was a petrol pump of the defendant no.1 and on the northern portion the
land was vacant. Taking the advantage of the same, some members of the
Muslim Community had sought to bury dead bodies there. Reference was
made to proceedings under Section 145 of the Criminal Procedure Code,
1898 in relation to said property.
The defendant no. 2 filed his written statement below Ex. 105.
The defendant no.2 claimed title to land admeasuring 90 ft. X 80 ft. on the
basis of sale deed dated 20.06.1976.
4] The parties led evidence before the trial Court. By the judgment
dated 09.07.1985 the trial Court decreed the suit and held that the suit
property was wakf property and that the plaintiff was entitled to possession
of the same. It was declared that the sale deed executed by defendant no.1
in favour of defendant no.2 was not binding on the plaintiff.
The defendants being aggrieved filed two separate appeals under
Section 96 of the Code. By judgment dated 16.09.1994 the first appellate
Court allowed both the appeals and set aside the decree passed by the trial
Court. Being aggrieved, the original plaintiff has filed the present second
appeal.
5] When the appeal was admitted the following substantial question
of law was framed:
(1) That S/6(i) of the Wakf Act of 1954, prescribes the
period of one year of publication of notification in the
Government Gazette dated 06.03.75 for raising any
objections for inclusion and notification of property as
a Wakf property, for whom the provision would apply
to the plaintiff who among other evidence and factors
relied upon the publication of the land as a Wakf land
for recovery of possession of the said land or upon the
defendant who denies the suit land as Wakf property?
It may be mentioned that the second appeal came to be dismissed on
06.09.2012 by holding that it did not give rise to any substantial question of
law. This judgment was set aside by the Hon'ble Supreme Court in Civil
Appeal No. 9888 of 2014 by order dated 27.10.2014 and the proceedings
were remitted for fresh consideration. After hearing the learned counsel for
the parties on 03.12.2015, two more substantial questions of law were
framed in terms of the proviso to Section 100(5) of the Code. Said
substantial questions of law are as under:
(2) In absence of any issue as regards suit being filed
within limitation being framed by the trial Court and
in absence of such ground in the memo of appeal,
whether the Appellate Court was justified in going into
said question?
(3) Whether the appellate Court has failed to consider
relevant evidence that was available on record?
The learned counsel for the parties were thereafter heard on all the three
substantial questions of law.
6] In support of the appeal Shri Masood Sharif, the learned counsel
for the appellant made the following submissions:
(a) The suit as filed was in limitation and the appellate Court was not
justified in holding that the suit had been filed beyond the period of
limitation. It was submitted that as per the Gazette Notification dated
06.03.1975, property admeasuring 350 ft. x 250 ft from Survey No.153 was
a Wakf property. It was alleged in the plaint that in May 1974, the defendant
No.1 had encroached an area admeasuring 160 ft. x 170 ft. Thereafter on
29/06/1976 the defendant No.1 had sold area admeasuring 90 ft. X 80 ft. to
the defendant No.2. The suit was filed on 19/01/1977 and hence the same
was within limitation. According to him the appellate Court fell into error in
holding the suit as filed was barred by limitation under the proviso to
Section 6(1) of the Act of 1954. The reference to the Gazette dated
06/03/1975 in which the property was shown as wakf property was only for
narrating a historical fact. He therefore submitted that the suit as filed was
based on the title of the plaintiff and in view of the provisions of Articles 58
and 65 of the Indian Limitation Act, 1963 the suit was within limitation.
(b) The trial Court had not framed any issue as to whether the suit
was barred by limitation. The appellate Court however, framed a point in
that regard and proceeded to hold that the suit was barred by limitation. In
absence of any such plea being raised in the written statement, the appellate
Court for the first time could not have gone into the question of limitation
especially when such issue was not framed by the trial Court. In that regard
he placed reliance upon the judgment of the Hon'ble Supreme Court in
Banarasi Das Vs. Seth Kanshiram and others AIR 1963 SC 1165. It was
therefore submitted that in terms of the provisions of Order XLI Rule 25 of
the Code, the appellate Court could have framed the issue of limitation and
referred the same to the trial Court for adjudication.
(c) It was then submitted that even on merits the appellate Court
erred in dismissing the suit. Various documents filed on record were not
considered by the appellate Court. The documents at ExhibitsP5, P6, 31 to
35, 129 and 154 were relevant for considering the case of the plaintiffs. By
not considering these documents in the proper perspective the suit came to
be dismissed. It was submitted that the suit property had been properly
described in paragraph 5 of the plaint and by producing the map at Exhibit
129, its location was pointed out. Even the report of the Sub Divisional
Officer at Exhibit154 indicated that the Revenue Authorities desired to await
the outcome of the civil suit. It was then submitted that the witnesses
examined on behalf of the plaintiff had proved the case as pleaded. The
conclusion that there was no valid gift of Survey No.153 by Ahmed Baig to
the Rajura Committee was incorrect. The appellate Court was not justified in
doubting the authority of PW1 in filing the suit especially when the same
was not challenged by the defendants in their written statement. It was
therefore submitted that if the aforesaid aspects had been properly
considered by the appellate Court, the decree passed by the trial Court would
have been maintained. In support of his submissions, the learned counsel
relied upon the decision of the Hon'ble Supreme Court in Narendra Gopal
Vidyarthi Vs. Rajat Vidyarthi (2009) 3 SCC 287.
7] The aforesaid submissions were opposed by Shri C. S. Kaptan, the
learned Senior counsel on behalf of the original defendant No.1. He made
the following submissions :
(a) The appellate Court was justified in going into the question of
limitation in terms of Section 3 of the Indian Limitation Act, 1963. It was the
duty of the trial Court to have considered the question of limitation even if
the same was not specifically urged. He submitted that even in the
memorandum of appeal, ground No.9 had been raised to urge that the suit as
filed was barred by limitation. Reliance was placed on the judgment in M/s
Craft Centre and others Vs. The Koncherry Coir Factories, Cherthala AIR 1991
Kerala 83 in that regard. He however, fairly submitted that both the
defendants were strangers to the wakf and the proviso to Section 6(1) of the
Act of 1954 would apply only when both parties to the suit are interested in
the wakf. He submitted that this issue stands concluded in view of the
judgment of the Hon'ble Supreme Court in Board of Muslim Wakfs, Rajasthan
Vs. Radha Kishan and others (1979) 2 SCC 468 which has been subsequently
followed in Punjab Wakf Board Vs. Grampanchayat @ Gramsabha (2000) 2
SCC 121 and Karnataka Wakf Board Vs. State of Karnataka and another
(2003) 5 SCC 555.
(b) The appellate Court had rightly held against the plaintiffs. There
were various documents on record which indicated that the title of the suit
property vested with the defendants. According to him in the preliminary
order passed under Section 145 of the Criminal Procedure Code, 1898 on
12/05/1970 the defendant No.1 had been shown in possession. Even the
town planning map dated 31/10/1972 showed the possession of the
defendant No.1. Therefore, the case that the defendant No.1 had
encroached on the property in May 1974 could not be accepted. He
submitted that neither in the Gazette Notification at P6 nor in Exhibit155
were the boundaries of the wakf property mentioned. It had been merely
stated that it was situated in Survey No.153. In absence of identification of
the suit property, the title of the plaintiff could not be held to be proved. The
trial Court failed to go into the question of identity of the suit property and
instead held in favour of the plaintiffs. The 7/12 extract at Exhibit152
showed the possession of the defendant No.1 since 196263. As regards the
evidence led on behalf of the plaintiffs, it was submitted that none of the
witnesses could depose in a manner that could prove the case of the plaintiff
and their depositions were not helpful for decreeing the suit. In fact the
plaintiff had relied only upon the town planning map at Exhibit155 and the
Gazette Notification dated 06/03/1975. It was submitted that in this
background when the appellate Court has recorded a finding of fact that the
encroachment had not been proved by the plaintiff, there was no scope to
interfere under Section 100 of the Code. In that regard the learned Senior
counsel placed reliance on the judgment of the Hon'ble Supreme Court in
Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others (1999) 3 SCC
722, Rangammal Vs. Kuppuswami and another (2011) 12 SCC 220,
Ramkishore Sen and others Vs. Union of India and others AIR 1966 SC 644,
Gurunath Manohar Pavaskar and others Vs. Nagesh Siddappa Navalgund and
others (2007) 13 SCC 565 and the judgment of the Allahabad High Court in
Gauri Shankar Vs. Emperor AIR 1930 Allahabad 26. It was therefore
submitted that as no substantial question of law arose in the second appeal,
there was no case made out to interfere.
By order dated 21.08.2007, Civil Application No. 5545 of 2007
was directed to be heard alongwith the appeal. Considering the averments
made in the application, the learned counsel for the intervenor was permitted
to address the Court on the substantial questions of law. Shri S. R.
Deshpande, the learned counsel for the intervenor adopted the submissions
made on behalf of the respondents.
8] I have heard respective counsel for the parties at length and I
have also gone through the documents filed on record. The first substantial
question of law as framed is with regard to the aspect whether the suit as
filed was barred by limitation in view of the provisions of Section 6(1) of the
Act of 1954. Under Section 6(1) of the Act of 1954 if any question arises
whether a particular property described as wakf property in the list of wakfs
is wakf property or not, the Board or the mutawalli of the wakf or any person
interested therein can institute a suit in the civil Court. However, as per the
first proviso to Section 6(1) of the Act of 1954, no such suit can be
entertained by the civil Court after the expiry of one year from the date of
publication of the list of wakfs under Section 5(2) of the Act of 1954. In
Board of Muslim Wakfs (supra) it was held by the Hon'ble Supreme Court that
the provisions of Section 6(1) of the Act of 1954 relate only to those persons
who are interested in the wakf. The purpose of Section 6 of the Act of 1954
was to confine disputes between the Wakf Board, mutawalli and the person
interested in the wakf. It was held in the aforesaid decision that the Act of
1954 deals with wakf, its institutions and its properties and therefore it
would be logical and reasonable to infer that said provisions empower only
those who are interested in the wakf to institute suits. The judgment in
Board of Muslim Wakf (supra) was considered by the Hon'ble Supreme Court
in its subsequent judgment in Punjab Wakf Board (supra). By following the
earlier law, the Hon'ble Supreme Court in Punjab Wakf Board (supra) made a
clear distinction between a dispute amongst the wakf and the mutawalli or
the persons claiming under him and a dispute with a stranger. It is,
therefore, clear that the period of limitation as prescribed by the proviso of
Section 6(1) of the Act of 1954 would apply only to those who are interested
in the wakf.
9] In the present case the original defendants were not persons who
were interested in the wakf. The dispute was between the wakf board and
strangers. Thus considering the ratio of the judgment in Board of Muslim
Wakf (supra) it will have to be held that the period of limitation of one year
commencing from the date of the notification would not be applicable in the
present case. The appellate Court though referred to the decision in the
Board of Muslim Wakf (supra), it failed to apply the ratio of aforesaid decision
in the proper perspective. The appellate Court fell into an error when it held
that the plaintiff should have filed the suit within a period of one year from
the notification dated 06/03/1975 and as the same was not done, the suit
was barred by limitation. The finding recorded by the appellate Court against
point no.1 is therefore liable to be set aside. Accordingly substantial question
of law no. 1 is answered by holding that the proviso to Section 6(1) of the
Act of 1954 would not apply in the present case and the suit as filed was not
barred by limitation.
As the finding recorded by the First Appellate Court on the
question of the suit being barred by limitation has been set aside, it is not
necessary to further delve into substantial question of law No. 2 as nothing
would turn even if said question is answered in favour of the appellant.
10] The substantial question of law No. 3 pertains to the failure on
the part of the appellate Court in considering relevant material that was
available on record while deciding the appeal. Before considering said aspect
of the matter it would be first necessary to refer to the scope of interference
under Section 100 of the Code by referring to the decisions cited by the
learned counsel. In Kondiba Dagadu Kadam (supra) it was held by the
Hon'ble Supreme Court that it was not within the domain of the High Court
to investigate the grounds on which the findings were arrived at by the first
appellate Court which is the last court of facts. Where from a given set of
circumstances two inferences are possible, one drawn by the lower appellate
Court would be binding on the High Court in Second Appeal. It is only if the
conclusions drawn are contrary to the mandatory provisions of law or the
pronouncements made by the Apex Court or the same are based on
inadmissible evidence or arrived at without any evidence that a case for
interference would be made out.
In Narendra Gopal Vidyarthi (supra) it was observed that findings
of fact could give rise to a substantial question of law in the event such
finding is based on no evidence and/or while arriving at said finding the
relevant admissible evidence has not been taken into consideration or
inadmissible evidence has been taken into consideration. The general rule
that the High Court would not interfere with the findings of the Courts
below is not an absolute rule.
11] The suit as filed by the appellant proceeds on the premise that as
per the Notification at Ex. P6, at Sr. No. 49 it was stated that there was a
graveyard admeasuring 350 ft. X 250 ft. in Survey No. 153 at Rajura. The
suit further proceeds on the premise that the defendant no.1 had encroached
upon the area of 160 ft. X 170 ft. After encroaching said portion, area of 95
ft. X 80 ft. was sold to the defendant no.2. The suit is principally based on
the copy of the notification at Ex. P6, the Town Planning Map dated
31.10.1972 at Ex. P5 and the sale deed dated 29.06.1976 executed by the
defendant no. 1 in favour of the defendant no. 2. The other documentary
evidence that was relied upon by the appellant is Ex. 129 which is a map
drawn by an Overseer and the report of the Sub Divisional Officer dated
29.03.1978 at Ex. 154.
On the other hand the defendant no. 1 has relied upon the
documents at Ex. 221P and Ex. 221A. These are the certified copies of the
decree along with a map showing the property “Sardar Manzil” that was
purchased in an auction by the father of the defendant no. 1. The revenue
documents at Exs. 141 and 142 are also relied upon to show the ownership
and possession of Survey No. 153/2 by the father of defendant no. 1. The
defendants have also relied upon the documents at Exs. 31 and 32 relating to
proceedings under Section 145 of the Criminal Procedure Code, 1898.
Besides this, the parties have also relied upon oral evidence of their
witnesses.
12] A perusal of the document at Ex. P6 indicates that in said
notification there is a reference to the graveyard in the area admeasuring
350 ft. X 250 ft. However, no boundaries have been mentioned to indicate
said area in Survey No. 153. It has come on the record that Survey No. 153
was admeasuring 10 acres out of which Survey No. 153/2 admeasuring 1
acre 30 gunthas was purchased by the father of the defendant no. 1 in a
Court auction. From the perusal of Ex. 31 which is an order dated
31.12.1971 passed by the Additional District Magistrate in proceedings under
Section 145 of the Criminal Procedure Code, 1898 it has been held therein
that the defendant no.1 was entitled to remain in possession of Survey No.
153/2 admeasuring 1 acre 30 gunthas. This position is further clarified by
the documents at Exs. 141 and 142 indicating the possession of defendant
no.1.
13] In so far as the map at Ex. P5 is concerned the same is the
development map of the city of Rajura. This map is dated 31.10.1972 which
was drawn by the Town Planning Officer. This map is not prepared as per
any scale and the same does not indicate the exact area of Survey No. 153.
The map at Ex. 129 dated 10.01.1977 was drawn by P. W. 2M. M. Ali who
was an Overseer. He was examined at Ex. 128 and in his deposition he
admitted that he had not seen the survey map showing the exact location of
the wakf property. He further admitted that he was not knowing whether
the graveyard was existing prior to the road or not. He did not tally the four
corners of the Survey Commissioner Map with the actual corners on the spot.
This witness also admitted that there was no Dargah in the area and there
were only graves existing. From his deposition it is clear that the map Ex.
129 has not been prepared by using any technical skill. Without seeking the
survey map of the entire plot, the map at Ex. 129 has been prepared.
In so far as the other map at Ex. 155 is concerned the same is
prepared by the Town Planning Department, Chandrapur. This map was
brought on record in the deposition of P. W. 6Jahid Hussain at Ex. 152.
According to him the same was a certified copy of the map which was issued
by the Town Planning Department, Chandrapur. In his cross examination he
categorically admitted that there was no documentary record in his
possession except the town planning map and the Gazette Notification to
show the area of the graveyard and the Dargah. The person who had drawn
the said map was not examined. Even in said map there are no dimensions
of Survey No. 153 being mentioned.
14] In so far as the title of the plaintiff to the property in question is
concerned, the plaintiff had examined P. W. 3 Khalilulla Beg at Ex. 132.
According to the said witness his father Ahmed Beg was the Pattedar of
Survey No. 153 and he had gifted said land to the plaintiff. There is however
no evidence whatsoever record to indicate that either Ahmed Beg was the
Pattedar of Survey No. 153 or that after executing the oral gift, any mutation
entry or other revenue records were prepared by the plaintiff to indicate its
ownership. On the other hand the title in respect of Survey No. 153/2 has
been proved by the defendant no.1 by relying upon the documents at Exs.
221P and 221A. The revenue records at Exs. 141 and 142 also indicate the
ownership and possession of defendant no. 1 of Survey No. 153/2.
15] All this evidence was considered by the appellate Court after
which it held that the plaintiff had failed to prove that Survey No. 153 was
gifted by Ahmed Beg to it. It further held that the maps at Exhibit Nos. P5,
129 and 155 did not prove the case of the plaintiff as the said maps did not
indicate the exact location of the suit property nor were said maps proved in
accordance with law. It was found that the evidence of P. W. 2 and P. W. 6
was not sufficient to prove the case of the plaintiff. It is on that basis that the
appellate Court held against the plaintiff.
16] From the above therefore it cannot be said that the first appellate
Court while holding against the plaintiff has either ignored any relevant
admissible evidence or that it has taken into consideration any inadmissible
evidence. Ratio of the decision in Naredra Gopal Vidyarthi (supra) would
therefore not be applicable to the facts of the present case. On the other
hand the observations of the Hon'ble Supreme Court in Kondiba Dagdu
Kadam (supra) in paragraph 5 of said judgment would apply on all fours.
Further as held by the Hon'ble Supreme Court in Ramkishore Sen & ors.
(supra) there can be no presumption in favour of the accuracy of any map
drawn under Section 83 of the Evidence Act. It was necessary for the
plaintiff to have actually proved the dimensions of the property that was
alleged to have been orally gifted to it by Ahmed Beg and thereafter also
proved the encroachment to the extent of the area admeasuring 160 ft. X 170
ft. There is no evidence whatsoever on record to prove any such
encroachment by the defendant as alleged. On the contrary the defendant
no.1 has shown his title to Survey No. 153/2 that was purchased in a Court
auction. It is, therefore, a case not being proved by the plaintiff for want of
sufficient evidence. Hence, there is no scope whatsoever to interfere with the
findings recorded by the first appellate Court. The substantial question of
law No. 3 is answered by holding that the appellate Court has not failed to
consider all relevant material that was available on record. After considering
all the relevant material, the suit has been dismissed.
17] In view of the aforesaid findings, it is held that there is no case
made out to interfere with the judgment of the first appellate Court under
Section 100 of the Code. No substantial question of law arises so as to upset
the judgment of the first appellate Court. The second appeal is therefore
liable to be dismissed. The same is accordingly dismissed with no order as to
costs.
JUDGE
Print Page
question of law as framed is with regard to the aspect whether the suit as
filed was barred by limitation in view of the provisions of Section 6(1) of the
Act of 1954. Under Section 6(1) of the Act of 1954 if any question arises
whether a particular property described as wakf property in the list of wakfs
is wakf property or not, the Board or the mutawalli of the wakf or any person
interested therein can institute a suit in the civil Court. However, as per the
first proviso to Section 6(1) of the Act of 1954, no such suit can be
entertained by the civil Court after the expiry of one year from the date of
publication of the list of wakfs under Section 5(2) of the Act of 1954. In
Board of Muslim Wakfs (supra) it was held by the Hon'ble Supreme Court that
the provisions of Section 6(1) of the Act of 1954 relate only to those persons
who are interested in the wakf. The purpose of Section 6 of the Act of 1954
was to confine disputes between the Wakf Board, mutawalli and the person
interested in the wakf. It was held in the aforesaid decision that the Act of
1954 deals with wakf, its institutions and its properties and therefore it
would be logical and reasonable to infer that said provisions empower only
those who are interested in the wakf to institute suits. The judgment in
Board of Muslim Wakf (supra) was considered by the Hon'ble Supreme Court
in its subsequent judgment in Punjab Wakf Board (supra). By following the
earlier law, the Hon'ble Supreme Court in Punjab Wakf Board (supra) made a
clear distinction between a dispute amongst the wakf and the mutawalli or
the persons claiming under him and a dispute with a stranger. It is,
therefore, clear that the period of limitation as prescribed by the proviso of
Section 6(1) of the Act of 1954 would apply only to those who are interested
in the wakf.
In the present case the original defendants were not persons who
were interested in the wakf. The dispute was between the wakf board and
strangers. Thus considering the ratio of the judgment in Board of Muslim
Wakf (supra) it will have to be held that the period of limitation of one year
commencing from the date of the notification would not be applicable in the
present case. The appellate Court though referred to the decision in the
Board of Muslim Wakf (supra), it failed to apply the ratio of aforesaid decision
in the proper perspective. The appellate Court fell into an error when it held
that the plaintiff should have filed the suit within a period of one year from
the notification dated 06/03/1975 and as the same was not done, the suit
was barred by limitation. The finding recorded by the appellate Court against
point no.1 is therefore liable to be set aside. Accordingly substantial question
of law no. 1 is answered by holding that the proviso to Section 6(1) of the
Act of 1954 would not apply in the present case and the suit as filed was not
barred by limitation.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH
NAGPUR.
SECOND APPEAL NO. 431 OF 1994
Maratwada Wakf Board
VERSUS
Vibhawari wd/o Deepak
Deshpande, aged 45 yrs.
CORAM: A. S. CHANDURKAR J.
Dated : February 26, 2016.
Citation: 2016(3) MHLJ753
This appeal under Section 100 of the Code of Civil Procedure (for
short, the Code) takes exception to the judgment dated 16.09.1994 passed by
the first appellate Court allowing the appeal filed by the respondent nos. 1 to
4 and setting aside the judgment and decree passed by the trial Court.
2] Facts found relevant for deciding the second appeal are that
according to the appellant there was a Dargah and graveyard admeasuring
about 350 ft. X 250 ft. in Survey No. 153 at Rajura Tahsil, District
Chandrapur. The said Dargah and graveyard was shown as Wakf property in
the development plan of Rajura town in 1972. In the Government Gazette
dated 06.03.1975 it was shown at Sr. No. 49. According to the appellant the
defendant no.1Deepak Deshpande had encroached an area admeasuring 160
ft. X 170 ft. of said property in the month of May 1974. The defendant no.1
had also sold the portion admeasuring 95 ft. X 80 ft. to the defendant no.2 on
29.06.1976. In this background the appellant filed Regular Civil Suit No. 4 of
1977 for a declaration that the suit property was Wakf property and sought
possession of the encroached portion. The suit was filed on 19.01.1977.
3] The defendant no.1 filed his written statement vide Ex. 101. The
case as pleaded was denied by the defendant no.1. It was specifically
pleaded that said defendant was the recorded owner of Survey No. 153/2
admeasuring 1 acre 30 gunthas. It was pleaded that said property was
purchased in a Court auction in the year 1923. In the southern portion there
was a petrol pump of the defendant no.1 and on the northern portion the
land was vacant. Taking the advantage of the same, some members of the
Muslim Community had sought to bury dead bodies there. Reference was
made to proceedings under Section 145 of the Criminal Procedure Code,
1898 in relation to said property.
The defendant no. 2 filed his written statement below Ex. 105.
The defendant no.2 claimed title to land admeasuring 90 ft. X 80 ft. on the
basis of sale deed dated 20.06.1976.
4] The parties led evidence before the trial Court. By the judgment
dated 09.07.1985 the trial Court decreed the suit and held that the suit
property was wakf property and that the plaintiff was entitled to possession
of the same. It was declared that the sale deed executed by defendant no.1
in favour of defendant no.2 was not binding on the plaintiff.
The defendants being aggrieved filed two separate appeals under
Section 96 of the Code. By judgment dated 16.09.1994 the first appellate
Court allowed both the appeals and set aside the decree passed by the trial
Court. Being aggrieved, the original plaintiff has filed the present second
appeal.
5] When the appeal was admitted the following substantial question
of law was framed:
(1) That S/6(i) of the Wakf Act of 1954, prescribes the
period of one year of publication of notification in the
Government Gazette dated 06.03.75 for raising any
objections for inclusion and notification of property as
a Wakf property, for whom the provision would apply
to the plaintiff who among other evidence and factors
relied upon the publication of the land as a Wakf land
for recovery of possession of the said land or upon the
defendant who denies the suit land as Wakf property?
It may be mentioned that the second appeal came to be dismissed on
06.09.2012 by holding that it did not give rise to any substantial question of
law. This judgment was set aside by the Hon'ble Supreme Court in Civil
Appeal No. 9888 of 2014 by order dated 27.10.2014 and the proceedings
were remitted for fresh consideration. After hearing the learned counsel for
the parties on 03.12.2015, two more substantial questions of law were
framed in terms of the proviso to Section 100(5) of the Code. Said
substantial questions of law are as under:
(2) In absence of any issue as regards suit being filed
within limitation being framed by the trial Court and
in absence of such ground in the memo of appeal,
whether the Appellate Court was justified in going into
said question?
(3) Whether the appellate Court has failed to consider
relevant evidence that was available on record?
The learned counsel for the parties were thereafter heard on all the three
substantial questions of law.
6] In support of the appeal Shri Masood Sharif, the learned counsel
for the appellant made the following submissions:
(a) The suit as filed was in limitation and the appellate Court was not
justified in holding that the suit had been filed beyond the period of
limitation. It was submitted that as per the Gazette Notification dated
06.03.1975, property admeasuring 350 ft. x 250 ft from Survey No.153 was
a Wakf property. It was alleged in the plaint that in May 1974, the defendant
No.1 had encroached an area admeasuring 160 ft. x 170 ft. Thereafter on
29/06/1976 the defendant No.1 had sold area admeasuring 90 ft. X 80 ft. to
the defendant No.2. The suit was filed on 19/01/1977 and hence the same
was within limitation. According to him the appellate Court fell into error in
holding the suit as filed was barred by limitation under the proviso to
Section 6(1) of the Act of 1954. The reference to the Gazette dated
06/03/1975 in which the property was shown as wakf property was only for
narrating a historical fact. He therefore submitted that the suit as filed was
based on the title of the plaintiff and in view of the provisions of Articles 58
and 65 of the Indian Limitation Act, 1963 the suit was within limitation.
(b) The trial Court had not framed any issue as to whether the suit
was barred by limitation. The appellate Court however, framed a point in
that regard and proceeded to hold that the suit was barred by limitation. In
absence of any such plea being raised in the written statement, the appellate
Court for the first time could not have gone into the question of limitation
especially when such issue was not framed by the trial Court. In that regard
he placed reliance upon the judgment of the Hon'ble Supreme Court in
Banarasi Das Vs. Seth Kanshiram and others AIR 1963 SC 1165. It was
therefore submitted that in terms of the provisions of Order XLI Rule 25 of
the Code, the appellate Court could have framed the issue of limitation and
referred the same to the trial Court for adjudication.
(c) It was then submitted that even on merits the appellate Court
erred in dismissing the suit. Various documents filed on record were not
considered by the appellate Court. The documents at ExhibitsP5, P6, 31 to
35, 129 and 154 were relevant for considering the case of the plaintiffs. By
not considering these documents in the proper perspective the suit came to
be dismissed. It was submitted that the suit property had been properly
described in paragraph 5 of the plaint and by producing the map at Exhibit
129, its location was pointed out. Even the report of the Sub Divisional
Officer at Exhibit154 indicated that the Revenue Authorities desired to await
the outcome of the civil suit. It was then submitted that the witnesses
examined on behalf of the plaintiff had proved the case as pleaded. The
conclusion that there was no valid gift of Survey No.153 by Ahmed Baig to
the Rajura Committee was incorrect. The appellate Court was not justified in
doubting the authority of PW1 in filing the suit especially when the same
was not challenged by the defendants in their written statement. It was
therefore submitted that if the aforesaid aspects had been properly
considered by the appellate Court, the decree passed by the trial Court would
have been maintained. In support of his submissions, the learned counsel
relied upon the decision of the Hon'ble Supreme Court in Narendra Gopal
Vidyarthi Vs. Rajat Vidyarthi (2009) 3 SCC 287.
7] The aforesaid submissions were opposed by Shri C. S. Kaptan, the
learned Senior counsel on behalf of the original defendant No.1. He made
the following submissions :
(a) The appellate Court was justified in going into the question of
limitation in terms of Section 3 of the Indian Limitation Act, 1963. It was the
duty of the trial Court to have considered the question of limitation even if
the same was not specifically urged. He submitted that even in the
memorandum of appeal, ground No.9 had been raised to urge that the suit as
filed was barred by limitation. Reliance was placed on the judgment in M/s
Craft Centre and others Vs. The Koncherry Coir Factories, Cherthala AIR 1991
Kerala 83 in that regard. He however, fairly submitted that both the
defendants were strangers to the wakf and the proviso to Section 6(1) of the
Act of 1954 would apply only when both parties to the suit are interested in
the wakf. He submitted that this issue stands concluded in view of the
judgment of the Hon'ble Supreme Court in Board of Muslim Wakfs, Rajasthan
Vs. Radha Kishan and others (1979) 2 SCC 468 which has been subsequently
followed in Punjab Wakf Board Vs. Grampanchayat @ Gramsabha (2000) 2
SCC 121 and Karnataka Wakf Board Vs. State of Karnataka and another
(2003) 5 SCC 555.
(b) The appellate Court had rightly held against the plaintiffs. There
were various documents on record which indicated that the title of the suit
property vested with the defendants. According to him in the preliminary
order passed under Section 145 of the Criminal Procedure Code, 1898 on
12/05/1970 the defendant No.1 had been shown in possession. Even the
town planning map dated 31/10/1972 showed the possession of the
defendant No.1. Therefore, the case that the defendant No.1 had
encroached on the property in May 1974 could not be accepted. He
submitted that neither in the Gazette Notification at P6 nor in Exhibit155
were the boundaries of the wakf property mentioned. It had been merely
stated that it was situated in Survey No.153. In absence of identification of
the suit property, the title of the plaintiff could not be held to be proved. The
trial Court failed to go into the question of identity of the suit property and
instead held in favour of the plaintiffs. The 7/12 extract at Exhibit152
showed the possession of the defendant No.1 since 196263. As regards the
evidence led on behalf of the plaintiffs, it was submitted that none of the
witnesses could depose in a manner that could prove the case of the plaintiff
and their depositions were not helpful for decreeing the suit. In fact the
plaintiff had relied only upon the town planning map at Exhibit155 and the
Gazette Notification dated 06/03/1975. It was submitted that in this
background when the appellate Court has recorded a finding of fact that the
encroachment had not been proved by the plaintiff, there was no scope to
interfere under Section 100 of the Code. In that regard the learned Senior
counsel placed reliance on the judgment of the Hon'ble Supreme Court in
Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and others (1999) 3 SCC
722, Rangammal Vs. Kuppuswami and another (2011) 12 SCC 220,
Ramkishore Sen and others Vs. Union of India and others AIR 1966 SC 644,
Gurunath Manohar Pavaskar and others Vs. Nagesh Siddappa Navalgund and
others (2007) 13 SCC 565 and the judgment of the Allahabad High Court in
Gauri Shankar Vs. Emperor AIR 1930 Allahabad 26. It was therefore
submitted that as no substantial question of law arose in the second appeal,
there was no case made out to interfere.
By order dated 21.08.2007, Civil Application No. 5545 of 2007
was directed to be heard alongwith the appeal. Considering the averments
made in the application, the learned counsel for the intervenor was permitted
to address the Court on the substantial questions of law. Shri S. R.
Deshpande, the learned counsel for the intervenor adopted the submissions
made on behalf of the respondents.
8] I have heard respective counsel for the parties at length and I
have also gone through the documents filed on record. The first substantial
question of law as framed is with regard to the aspect whether the suit as
filed was barred by limitation in view of the provisions of Section 6(1) of the
Act of 1954. Under Section 6(1) of the Act of 1954 if any question arises
whether a particular property described as wakf property in the list of wakfs
is wakf property or not, the Board or the mutawalli of the wakf or any person
interested therein can institute a suit in the civil Court. However, as per the
first proviso to Section 6(1) of the Act of 1954, no such suit can be
entertained by the civil Court after the expiry of one year from the date of
publication of the list of wakfs under Section 5(2) of the Act of 1954. In
Board of Muslim Wakfs (supra) it was held by the Hon'ble Supreme Court that
the provisions of Section 6(1) of the Act of 1954 relate only to those persons
who are interested in the wakf. The purpose of Section 6 of the Act of 1954
was to confine disputes between the Wakf Board, mutawalli and the person
interested in the wakf. It was held in the aforesaid decision that the Act of
1954 deals with wakf, its institutions and its properties and therefore it
would be logical and reasonable to infer that said provisions empower only
those who are interested in the wakf to institute suits. The judgment in
Board of Muslim Wakf (supra) was considered by the Hon'ble Supreme Court
in its subsequent judgment in Punjab Wakf Board (supra). By following the
earlier law, the Hon'ble Supreme Court in Punjab Wakf Board (supra) made a
clear distinction between a dispute amongst the wakf and the mutawalli or
the persons claiming under him and a dispute with a stranger. It is,
therefore, clear that the period of limitation as prescribed by the proviso of
Section 6(1) of the Act of 1954 would apply only to those who are interested
in the wakf.
9] In the present case the original defendants were not persons who
were interested in the wakf. The dispute was between the wakf board and
strangers. Thus considering the ratio of the judgment in Board of Muslim
Wakf (supra) it will have to be held that the period of limitation of one year
commencing from the date of the notification would not be applicable in the
present case. The appellate Court though referred to the decision in the
Board of Muslim Wakf (supra), it failed to apply the ratio of aforesaid decision
in the proper perspective. The appellate Court fell into an error when it held
that the plaintiff should have filed the suit within a period of one year from
the notification dated 06/03/1975 and as the same was not done, the suit
was barred by limitation. The finding recorded by the appellate Court against
point no.1 is therefore liable to be set aside. Accordingly substantial question
of law no. 1 is answered by holding that the proviso to Section 6(1) of the
Act of 1954 would not apply in the present case and the suit as filed was not
barred by limitation.
As the finding recorded by the First Appellate Court on the
question of the suit being barred by limitation has been set aside, it is not
necessary to further delve into substantial question of law No. 2 as nothing
would turn even if said question is answered in favour of the appellant.
10] The substantial question of law No. 3 pertains to the failure on
the part of the appellate Court in considering relevant material that was
available on record while deciding the appeal. Before considering said aspect
of the matter it would be first necessary to refer to the scope of interference
under Section 100 of the Code by referring to the decisions cited by the
learned counsel. In Kondiba Dagadu Kadam (supra) it was held by the
Hon'ble Supreme Court that it was not within the domain of the High Court
to investigate the grounds on which the findings were arrived at by the first
appellate Court which is the last court of facts. Where from a given set of
circumstances two inferences are possible, one drawn by the lower appellate
Court would be binding on the High Court in Second Appeal. It is only if the
conclusions drawn are contrary to the mandatory provisions of law or the
pronouncements made by the Apex Court or the same are based on
inadmissible evidence or arrived at without any evidence that a case for
interference would be made out.
In Narendra Gopal Vidyarthi (supra) it was observed that findings
of fact could give rise to a substantial question of law in the event such
finding is based on no evidence and/or while arriving at said finding the
relevant admissible evidence has not been taken into consideration or
inadmissible evidence has been taken into consideration. The general rule
that the High Court would not interfere with the findings of the Courts
below is not an absolute rule.
11] The suit as filed by the appellant proceeds on the premise that as
per the Notification at Ex. P6, at Sr. No. 49 it was stated that there was a
graveyard admeasuring 350 ft. X 250 ft. in Survey No. 153 at Rajura. The
suit further proceeds on the premise that the defendant no.1 had encroached
upon the area of 160 ft. X 170 ft. After encroaching said portion, area of 95
ft. X 80 ft. was sold to the defendant no.2. The suit is principally based on
the copy of the notification at Ex. P6, the Town Planning Map dated
31.10.1972 at Ex. P5 and the sale deed dated 29.06.1976 executed by the
defendant no. 1 in favour of the defendant no. 2. The other documentary
evidence that was relied upon by the appellant is Ex. 129 which is a map
drawn by an Overseer and the report of the Sub Divisional Officer dated
29.03.1978 at Ex. 154.
On the other hand the defendant no. 1 has relied upon the
documents at Ex. 221P and Ex. 221A. These are the certified copies of the
decree along with a map showing the property “Sardar Manzil” that was
purchased in an auction by the father of the defendant no. 1. The revenue
documents at Exs. 141 and 142 are also relied upon to show the ownership
and possession of Survey No. 153/2 by the father of defendant no. 1. The
defendants have also relied upon the documents at Exs. 31 and 32 relating to
proceedings under Section 145 of the Criminal Procedure Code, 1898.
Besides this, the parties have also relied upon oral evidence of their
witnesses.
12] A perusal of the document at Ex. P6 indicates that in said
notification there is a reference to the graveyard in the area admeasuring
350 ft. X 250 ft. However, no boundaries have been mentioned to indicate
said area in Survey No. 153. It has come on the record that Survey No. 153
was admeasuring 10 acres out of which Survey No. 153/2 admeasuring 1
acre 30 gunthas was purchased by the father of the defendant no. 1 in a
Court auction. From the perusal of Ex. 31 which is an order dated
31.12.1971 passed by the Additional District Magistrate in proceedings under
Section 145 of the Criminal Procedure Code, 1898 it has been held therein
that the defendant no.1 was entitled to remain in possession of Survey No.
153/2 admeasuring 1 acre 30 gunthas. This position is further clarified by
the documents at Exs. 141 and 142 indicating the possession of defendant
no.1.
13] In so far as the map at Ex. P5 is concerned the same is the
development map of the city of Rajura. This map is dated 31.10.1972 which
was drawn by the Town Planning Officer. This map is not prepared as per
any scale and the same does not indicate the exact area of Survey No. 153.
The map at Ex. 129 dated 10.01.1977 was drawn by P. W. 2M. M. Ali who
was an Overseer. He was examined at Ex. 128 and in his deposition he
admitted that he had not seen the survey map showing the exact location of
the wakf property. He further admitted that he was not knowing whether
the graveyard was existing prior to the road or not. He did not tally the four
corners of the Survey Commissioner Map with the actual corners on the spot.
This witness also admitted that there was no Dargah in the area and there
were only graves existing. From his deposition it is clear that the map Ex.
129 has not been prepared by using any technical skill. Without seeking the
survey map of the entire plot, the map at Ex. 129 has been prepared.
In so far as the other map at Ex. 155 is concerned the same is
prepared by the Town Planning Department, Chandrapur. This map was
brought on record in the deposition of P. W. 6Jahid Hussain at Ex. 152.
According to him the same was a certified copy of the map which was issued
by the Town Planning Department, Chandrapur. In his cross examination he
categorically admitted that there was no documentary record in his
possession except the town planning map and the Gazette Notification to
show the area of the graveyard and the Dargah. The person who had drawn
the said map was not examined. Even in said map there are no dimensions
of Survey No. 153 being mentioned.
14] In so far as the title of the plaintiff to the property in question is
concerned, the plaintiff had examined P. W. 3 Khalilulla Beg at Ex. 132.
According to the said witness his father Ahmed Beg was the Pattedar of
Survey No. 153 and he had gifted said land to the plaintiff. There is however
no evidence whatsoever record to indicate that either Ahmed Beg was the
Pattedar of Survey No. 153 or that after executing the oral gift, any mutation
entry or other revenue records were prepared by the plaintiff to indicate its
ownership. On the other hand the title in respect of Survey No. 153/2 has
been proved by the defendant no.1 by relying upon the documents at Exs.
221P and 221A. The revenue records at Exs. 141 and 142 also indicate the
ownership and possession of defendant no. 1 of Survey No. 153/2.
15] All this evidence was considered by the appellate Court after
which it held that the plaintiff had failed to prove that Survey No. 153 was
gifted by Ahmed Beg to it. It further held that the maps at Exhibit Nos. P5,
129 and 155 did not prove the case of the plaintiff as the said maps did not
indicate the exact location of the suit property nor were said maps proved in
accordance with law. It was found that the evidence of P. W. 2 and P. W. 6
was not sufficient to prove the case of the plaintiff. It is on that basis that the
appellate Court held against the plaintiff.
16] From the above therefore it cannot be said that the first appellate
Court while holding against the plaintiff has either ignored any relevant
admissible evidence or that it has taken into consideration any inadmissible
evidence. Ratio of the decision in Naredra Gopal Vidyarthi (supra) would
therefore not be applicable to the facts of the present case. On the other
hand the observations of the Hon'ble Supreme Court in Kondiba Dagdu
Kadam (supra) in paragraph 5 of said judgment would apply on all fours.
Further as held by the Hon'ble Supreme Court in Ramkishore Sen & ors.
(supra) there can be no presumption in favour of the accuracy of any map
drawn under Section 83 of the Evidence Act. It was necessary for the
plaintiff to have actually proved the dimensions of the property that was
alleged to have been orally gifted to it by Ahmed Beg and thereafter also
proved the encroachment to the extent of the area admeasuring 160 ft. X 170
ft. There is no evidence whatsoever on record to prove any such
encroachment by the defendant as alleged. On the contrary the defendant
no.1 has shown his title to Survey No. 153/2 that was purchased in a Court
auction. It is, therefore, a case not being proved by the plaintiff for want of
sufficient evidence. Hence, there is no scope whatsoever to interfere with the
findings recorded by the first appellate Court. The substantial question of
law No. 3 is answered by holding that the appellate Court has not failed to
consider all relevant material that was available on record. After considering
all the relevant material, the suit has been dismissed.
17] In view of the aforesaid findings, it is held that there is no case
made out to interfere with the judgment of the first appellate Court under
Section 100 of the Code. No substantial question of law arises so as to upset
the judgment of the first appellate Court. The second appeal is therefore
liable to be dismissed. The same is accordingly dismissed with no order as to
costs.
JUDGE
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