Rajasthan High Court - Jaipur
State Of Rajasthan Through The Chief ... vs Rajasthan Board Of Muslim Wakf Through ... on 12 July, 2002
Equivalent citations: 2002WLC(RAJ)UC682, 2002(4)WLN702
Author: S.K. Keshote
Bench: S.K. Keshote
JUDGMENT S.K. Keshote, J.
1. This revision petition under Section 83 of the Wakf Act, 1995 read with Section 115 C.P.C. is directed against the order dated 18.7.2000 of the Rajasthan Wakf Tribunal, Jaipur in Case No. 29/2000 under which the temporary injunction was granted in favour of the plaintiff non-petitioner.
2. The plaintiff non-petitioner instituted a suit before the Tribunal along with an application for temporary injunction alleging that in Sub-town Bayana Distt. Bharatpur land falling in Khasra No. 1217 is graveyard measuring 29 Bighas 11 biswas. It is averred that the land in dispute was shown/entered as Aheale Islam between Samvat 2002 to 2005 (1945 to 1948). A grievance has been made that the defendant petitioners have encroached upon the graveyard and have started construction. It is stated that the defendant petitioners have no right to enter upon and construct on the disputed graveyard. The defendant petitioners submitted the written statement as well as reply to the application filed by the plaintiff non-petitioner for grant of temporary injunction. The documents have also been produced on record. It is pleaded that in the oldest entry as is available of way back in Samvat (1955) year 1898) the land of Khasra No. 1217 was entered in the name of Pema Singh. Thereafter it was entered in the name of one Ganeshi Lal. Later on upon allotment in the year 1962 the land has been entered in the name of Panchayat Samiti, Bayana. It is also pointed out that earlier Tamari Wakf Committee, Bayana moved a Writ Petition No. 6650/91 before this court which was dismissed on 11.7.1995 observing that there being dispute of title between the parties, remedy under Article 226 of the Constitution is not appropriate. It is pleaded that for want of the title the plaintiff non-petitioners have no locus standi to institute the suit. The plaintiff Wakf Board was also party to that petition. Apart from these pleadings the conduct of the plaintiff non-petitioners of concealing material facts about possession of Panchayat Samiti on the land for last 40 years was also highighted. Specific objection about maintainability of suit for want of notice under Section 109 of the Rajasthan Panchayat Raj Act was also raised. Under the order dated 18.7.2000 the application filed by the plaintiff non-petitioners to grant temporary injunction was allowed and a temporary injunction as prayed for therein has been granted. Hence this revision petition.
3. Learned Counsel for the defendant petitioners raised many fold contentions challenging the order of the Tribunal. He has also cited following decisions in support of his contentions.
1. Mewa Ram v. The State of Raj. and Ors. RLW 1998 (1) Raj. 555.
2. Deep Darshan Grah Nirman Sahkari Samiti Ltd. v. U.I.T. and Ors.
3. Sikar Central Co-operative Bank Ltd. v. Ram Raichhpal Jat 1999 (1) WLC 84.
4. Municipal Corporation Murwara-Katni v. Lalchand Jaiswal 2000 (2) MPLJ 288
5. Bhurji and Anr. v. Urban Improvement Trust, Alwar; Anr. 1996 (3) WLC (Raj.) 155.
6. Chief General Manager State Bank of India and Ors. v. Shri Brij Mohan Shukla 2000 (2) WLC (Raj.) 347.
7. Ladhu Singh v. State of Raj. and Ors. RLR 2000 (2) 140.
8. Sujan Singh v. R R.R.T.C. and Ors. RLR 1997 (2) 159.
9. Mathew Phillips v. P.O. Koshy AIR 1966 Mysore 74.
10. T.A. George and Anr. v. D.D.A. and Ors. .
11. Anant Shri Sukhramji Trust and Anr. v. Union of India and Ors. .
12. Radhakishan and Anr. v. State of Rajasthan and Ors. .
13. The Board of Muslim Wakfs for Rqjasthan, Jaipur v. Bhanwar Chand and Ors. 1980 WLN 344.
14. Punjab Wakf Board Ambala and Anr. v. Gram Sabha, Basoli and Anr. .
15. Pooran Singh v. Rqjasthan Board of Muslim Wakf, Jaipur- S.B. Civil II Appeal No. 244/94 decided on 4.3.1997.
16. The Madras State Wakf Board, Madras v. Khazi Mohideen Sheriff .
17. Mysore State Board of Wakfs v. K.S. Lakshmaiah Setty AIR 1974 Karnataka 28.
18. Punjab Wakf Board v. Gram Panchayat @ Gram Sabha 2000 WLC(SC)51.
19. K. Raushan Din and Ors. v. H. Mohd. Sharif AIR 1936 Lahore 87.
20. Zafar Hussain v. Main Mohammad Ghias-ud-Din and Anr. AIR 1937 Lahore 552.
21. Mohammad Ali v. Dinesh Chandra Roy Choudhary and Ors. AIR 1940 Calcutta 417.
22. The Karnataka Wakf Board v. State of Karnataka and Ors. .
Learned Counsel for the plaintiff non-petitioners supported the order of the learned Wakf Tribunal.
4. As this revision petition deserves to be succeed only on one point, I do not consider it necessary to refer, digest and decide all these contentions.
5. The Tribunal has looked into the proceedings and decided the matter having only one sided view. It has very conveniently avoided to appreciate properly the documentary evidence produced by the defendant petitioners. It has though accepted the fact that the documentary evidence in the title of the land is in favour of the defendant petitioners but without giving cogent and justified reasons and as if it was pre determined to decide the matter in favour of the plaintiff non-petitioner has proceeded and ultimately reached to this decision. The land is agricultural land and the oldest entry in respect thereof available is of Samvat 1955 which is in the name of Pema Singh. Thereafter it was entered in the name of one Ganeshi Lal. Lateron upon allotment in the year 1962 the land has been lettered in the name of Panchayat Samiti Bayana. These entries of the revenue record were not challenged by the plaintiff non-petitioners and same attained finality. Claiming it to be the Wakf property, the writ petition before this court was also filed which was dismissed on 11.7.1995. Yet there is another important fact which has not properly been appreciated that Panchayat Samiti is in possession of the land in dispute for last 40 years, but no action has been taken what-so-ever by the plaintiff non-petitioner in respect thereof. In the presence of this documentary evidence and further that the land is entered in the name of Panchayat Samiti, I am satisfied that the plaintiff non-petitioner has no prima facie case in its favour and that too to the extent it warrants, justifies and needs a grant of temporary injunction in its favour.
6. In the revenue record the land was entered as Swai Chak which was allotted to Panchayat Samiti and it is in its possession for about 40 years. It is not justified, warranted and necessary to inject it at this stage from putting any construction thereon. The suit had been filed but the plaintiff non-petitioner has no prima facie case in Its favour and more so if it succeeds whatever construction put thereon can be ordered to be removed hence it is not a fit case for grant of temporary injunction. In view of this fact non-grant of temporary injunction will not cause any irreparable injury to the plaintiff non-petitioner. Balance of convenience also in the facts of the case does not favour for grant of temporary injunction. In this case learned Tribunal has decided the matter on affidavits. The evidence has been taken on affidavit and ultimately arguments were also heard in the suit. The suit has not been decided and this temporary injunction matter has been decided and the order impugned has been passed. In the facts of this case in case the order of the Tribunal is allowed to stand certainly it will occasion a failure of justice and will cause irreparable injury to the defendant petitioner as it will not be able to put construction on the land.
7. Accordingly, the revision petition succeeds and the same is allowed. The order dated 18.7.2000 of Rajasthan Wakf Tribunal, Jaipur is quashed and set aside. In the facts of the case no order as to costs.
8. As a result of the disposal of the revision petition, the stay application is also dismissed.