Court No. - 4 Case :- WRIT - C No. - 1044 of 2010 Petitioner :- Waliuddin S/O Alimuddin Respondent :- Moinuddin S/O Salamuddin Petitioner Counsel :- P.K. Jain Hon'ble Krishna Murari,J.
Heard learned counsel for the petitioner.
The defendant-respondent filed a suit seeking injunction to restrain the
defendant-plaintiff from interfering in the waqf Alal Aulad (Maula Bux)
Mohalla Nawab Ali Abdul Ahad in any manner. The suit was filed on the
allegations that the petitioner-defendant was removed from the post of
mutwalli by the concerned committee on 5.2.2003 and thereafter the plaintiff-
respondent was appointed to function as the mutwalli thereof. One of the
issues framed in the suit was whether or not the court below had jurisidction
to hear the case. The court below held that whether the plaintiff-respondent
was lawfully functioning as mutwalli could only be decided on the basis of
the evidence brought by the parties, and since there is no dispute with respect
to the waqf property, the dispute is within the jurisdiction of the trial court and
can be decided by it.The petitioner has approached this court against the said
order.
It is contended by the learned counsel for the petitioner that in an earlier suit
filed by the petitioner claiming a permanent injunction restraining the
defendant-respondent of the said suit and the entire Muslim community,
which was decreed by judgement and order dated 7.9.2002 and, as such, the
said judgement and order would operate as res judicata and the present suit is
not maintainable.
The aforesaid argument of the petitioner is totally fallacious inasmuch as the
present suit has been filed on a different basis on the allegation that he has
been removed from the post of mutwalli and the present plaintiff-respondent
has been appointed on the said post, and, therefore, the earlier judgement and
decree will definitely not operate as res judicata inasmuch as the decree of
said suit would continue to operate only till such time the petitioner lawfully
continues as the mutwalli.
In view of the aforesaid, no illegality has been committed by the lower court
below in deciding that it had the jurisdiction to hear and decide the dispute
and there is no illegality in the order.
The writ petition accordingly stands dismissed.
Order Date :- 12.1.2010
sks