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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
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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
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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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