High Court Madhya Pradesh High Court

Shantosh Yadav vs Moin Akhtar on 27 October, 2010

Madhya Pradesh High Court
Shantosh Yadav vs Moin Akhtar on 27 October, 2010
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            HIGH COURT OF MADHYA PRADESH
              PRINCIPAL SEAT AT JABALPUR
     Single Bench HON'BLE SHRI JUSTICE G.S. Solanki
                 First Appeal No. 568/2003

                Santosh Yadav,
                S/o Late Shri Kashiram Yadav,
                aged about 47 years, businessman,
                R/o 2470, Panjab Bank Colony, Jabalpur.
                                             Appellant/plaintiff

                                   Versus

                Shri Moin Akhtar, S/o Late Shri Baboo Rajak,
                aged about 66 years, R/o H. No. 535, Naya Pul,
                South Motinala Ward, ( Businessman), Jabalpur.
                                        Respondent/defendant

      -------------------------------------------------------------------
For the Appellant :           Shri D.C. Jain,Advocate.

For the Respondent:            Shri J.K. Verma, Advocate.
For the applicant :            Shri S.A. Wakeel, Advocate.
( Wakf Board)
For the applicant :            Shri Mukhtiyar Ahmed, Advocate.
( Mutawali)

                       First Appeal No. 76/2004

                Moin Akhtar, S/o Late Shri Babu Rajjak, aged
                about 51 years, R/o H. No. 535, New Bridge,
                North Motilal Ward, Jabalpur (M.P.)
                                        Appellant/defendant

                                   Versus

                Santosh Yadav, S/o Late Shri Kashi Ram Yadav,
                aged about 45 years, R/o H. No. 2470, Punjab
                Bank Colony, Jabalpur (M.P.)
                                       Respondent/plaintiff

      -------------------------------------------------------------------
For the Appellant :           Shri J.K. Verma,Advocate.

For the Respondent:            Shri D.C.Jain, Advocate.
For the applicant :            Shri S.A. Wakeel, Advocate.
( Wakf Board)
For the applicant :            Shri Mukhtiyar Ahmed, Advocate.
( Mutawali)
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      -------------------------------------------------------------------

                                       Date of hearing: 05/10/2010
                                   Date of Judgment: 27/10/2010

                           JUDGMENT

Being aggrieved by the judgment and decree dated

16.10.2003 , passed by Second Additional District Judge,

Jabalpur in civil suit No. 128-A/03, plaintiff/appellant of F.A.

No. 568/03, as well as defendant/appellant of F.A. No. 76/04

have preferred these two appeals under Section 96 of C.P.C.

2. Since both these appeals arises from the same

judgment and decree, therefore these appeals are being

disposed of by this common judgment.

3. The brief facts of the case is that, plaintiff/appellant of

F.A. No. 568/03, filed a suit for declaration of title, possession

and permanent injunction against the defendant/appellant of

F.A. No. 76/04. He pleaded in the plaint interalia that he

purchased the suit property from one Zanab Khan situated at

Marhotal, area 70X70 sq.ft., out of Khasra No. 155 , by paying

the consideration of Rs. 98,000/- in cash. Zanab Khan also

executed an agreement to sale and power-of-attorney in the

favour of plaintiff/appellant of F.A. No. 568/03, on 11.06.90. It

is further pleaded that in this plot on 35X56 sq.ft. there was a

racked and ruined mosque, which was being made by the

interest money collected by forefathers of Zanab Khan.

Therefore, for the last 66 years namaj was not performed in
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the mosque by the followers of Islam. It is further pleaded that

there is also a Nag Devta Mandir and Durga Mandir situated in

the suit property. Plaintiff/appellant of F.A. No. 568/03, being

a religious person he renovated Nag Devta Mandir in June,

1990. He also constructed a small temple of Maa Durga Devi

Mandir near the Mandir of Nag Devta. According to him, there

is no structure like Masjid remained in the disputed plot. He

further pleaded that he was performing the pooja for last 10

years but on 29.04.2000 the defendant/appellant of F.A. No.

76/04 has forcefully taken the possession over the disputed

property and also has demolished the Mandir and has cut

some trees and caused damages of Rs. 2 lakh to him. Thus,

plaintiff/appellant of F.A. No. 568/03, filed a suit for

declaration of title, possession of property, recovery of

damages and permanent injunction against the

defendant/appellant of F.A. No. 76/04.

4. Defendant/appellant of F.A. No. 76/04 resisted the

pleading of plaintiff/appellant of F.A. No. 568/03, and filed the

counter claim along with the written statement and interalia

pleaded that the plaintiff/appellant of F.A. No. 568/03, has

never purchased the suit property nor having possession in

the suit property and there was never any existence of Nag

Devta Mandir or Durga Mandir in the disputed property and

there is only a mosque in the suit property. It was also pleaded

by the defendant/appellant of F.A. No. 76/04 in the counter
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claim that on 15.09.91 Zanab Khan has given the suit property

to Wakf for mosque and imambada and has also executed

hibanama in this regard and the defendant/appellant of F.A.

No. 76/04 is the mutawali of the suit property. It was also

claimed in the counter claim that by virtue of hibanama the suit

property is got registered by Wakf Board on 13.09.2000. It is

also pleaded that plaintiff/appellant of F.A. No. 568/03, tried to

dispossess the defendant/appellant of F.A. No. 76/04, so that

he may be restrained to interfere in the possession of

defendant/appellant of F.A. No. 76/04.

5. Trial Court on appraisal of evidence on record passed

the impugned judgment and decree and dismissed the suit

filed by plaintiff/appellant of F.A. No. 568/03, and has also

dismissed the counter claim filed by defendant/appellant of

F.A. No. 76/04. Being aggrieved, both the parties filed these

appeals.

6. It is undisputed that during the pendency of these

appeals an interim application No. 7531/06 was filed by Wakf

Board under order 1 rule 10 read with section 151 of the

C.P.C. and another I.A. No. 8484/10 was filed on behalf of

applicant Mutawali, under order 1 rule 10 of C.P.C. This court

passed the order that both these interim applications are

considered and adjudicated at the time of final hearing of

these appeals. Therefore, learned counsel for the parties were

heard on both these applications along with these appeals.
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7. Considering the nature of interim applications these are

considered and decided firstly.

8. Learned counsel for Wakf Board contended on the basis

of averments of I.A. No. 7531/06 that disputed property is a

Wakf property duly registered in the register of Wakf Board.

Both plaintiff and defendant have not brought to the notice of

the trial court as well as this court that the disputed property is

a Wakf property. He further contended that it is well settled in

law that no decree can be passed with regard to the title of a

Wakf property unless M.P. Wakf Board is impleaded as a party

in the suit. Therefore, it was prayed that this Court may please

to allow the applicant(Wakf Board) to be impleaded as

respondent no. 2 in these appeals.

9. Learned counsel for applicant Mutawali Committee,

Wakf Masjid, Chandal Bhata, Marhotal, Jabalpur through its

president Shri Mubeen Ahmad contended on the basis of

averments of I.A. No. 8484/10 that disputed property is

registered as Wakf property with the M.P. Wakf Board and he

is appointed as Mutawali. He further contended that subject

matter of the civil suit before the trial court was Khasra No.

155, area 70’X70′ sq.ft. Learned Civil Court has no jurisdiction

to try the suit relating to Wakf property because jurisdiction of

trial of such suits is vested in the M.P. State Wakf Tribunal,

Bhopal which was constituted in the year 1994. He further

contended that under Section 85 of Wakf Act, 1995
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jurisdiction of civil court pertaining to Wakf properties is

absolutely barred therefore, he prayed for adding the applicant

as respondent in these appeals and further prayed to dismiss

both the appeals for want of jurisdiction.

10. Learned counsel for the appellant of F.A. No. 568/03

contended that applications filed by M.P. Wakf Board and

Mutawali Committee, Wakf Masjid, Chandal Bhata, Marhotal,

Jabalpur through its President Shri Mubeen Ahmad with the

intention to delay the proceedings. He further contended that

both applicants are colluding with the respondent therefore

both the applications are liable to be dismissed.

11. I have perused the record annexed with the applications

under order 1 rule 10 of C.P.C. which reveal that disputed

Khasra No. 155, area 1.22 acre was registered in the year

1977 as Wakf property. Since, subject matter of this suit

before the trial court is of area 70X70 sq.ft. of the Khasra No.

155. It is well settled position of law that appeal is a

continuation of a suit, since suit is for declaration and

permanent injunction and appellant/plaintiff claiming title over

the suit property which are registered as Wakf Property. In

these circumstances, applicants have direct interest in the

subject matter and an effective decree can not be passed

without impleading the Wakf Board as party in the suit.

therefore, they are necessary party in the suit.

12. Considering the afore mentioned facts and
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circumstances of the case, applications i.e. I.A. No. 7531/06

filed by M.P. Wakf Board through its C.E.O. as well as I.A. No.

8484/10 filed by Mutawali Committee, Wakf Masjid, Chandal

Bhata, Marhotal, Jabalpur through its president Shri Mubeen

Ahmad are allowed.

13. Considering the fact that property was registered in the

name of Wakf Board, newly added party has right to plead

their case before the trial Court and plaintiff/appellant of F.A.

No. 568/03 has right to controvert the pleadings before the trial

court. All such proceeding is not possible before this appellate

court, in these circumstances, judgment and decree passed by

the trial Court is hereby set aside. The case is remanded to

the trial court with the following directions :-

(i) Plaintiff/appellant of F.A. No. 568/03 will implead

applicant Wakf Board as defendant No. 2 and applicant

Mutawali committee, Wakf Masjid, Chandal Bhata, Marhotal,

Jabalpur through its president Shri Mubeen Ahmad as

defendant no. 3 within the period of one month.

(ii) Trial court provide the opportunity to newly added

defendants to file their respective written statements within the

further period of one month.

(iii) Trial Court provide opportunity to plaintiff to amend his

plaint to controvert the new pleading regarding title of disputed

property.

(iv) Trial Court is directed to frame additional issues
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including the jurisdiction of the civil court. And then after

providing the opportunity to lead evidence(if any), by the

respective parties and then decide the suit afresh according to

law.

14. All parties are directed to appear before the trial court on

08.12.2010.

15. Parties will bear their own cost.




                                              (G.S. Solanki)
                                                 JUDGE
 ba                                                27/10/2010
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