Telangana High Court
Mohd.Wahab Khan And Another vs Sami Ateeq Ahmed And Another on 12 July, 2023
THE HON'BLE SRI JUSTICE SAMBASIVA RAO NAIDU
CIVIL REVISION PETITION NO.1213 OF 2022
ORDER:
Being aggrieved by the judgment, dated 20.04.2022 in O.S.No.327 of 2016 (Corresponding Old O.S.No.11 of 2011) on the file of Telangana State Waqf Tribunal, Hyderabad where under the Tribunal declared the suit schedule property as part and parcel of Gazette Notified grave-yard admeasuring 19785.2 Sq.yards at Bokkal Guda, New Bhoiguda, Secunderabad and that they have no right, title or interest, thereby directing them to vacate and handover the possession of the suit schedule property to the 1st respondent/plaintiff with a further direction to pay damages @ Rs.20,000/- per month, the defendants of the said suit filed this Civil Revision Petition under Section 83 (9) of Waqf Act, 1995. It appears from the impugned judgment, apart from declaring status of the said property as Gazette notified grave-yard, directing the petitioners to handover the possession and to pay damages, the Tribunal further granted mandatory injunction, directing the 2 CRP No.1213 of 2022 petitioners to remove the illegal construction, erected gate on the said property within two months from the date of judgment.
2. As could be seen from the impugned judgment and based on the brief note filed along with present petition, it shows that one Sami Ateeq Ahmed, the 1st respondent in the present revision has filed O.S.No.11 of 2011 against the petitioner Nos.1 and 2 and also Andhra Pradesh State Waqf Board (now Telangana State Waqf Board) by showing it as 3rd defendant represented by its Executive Officer in respect of the suit schedule property. However, since the 3rd defendant was transposed as plaintiff No.2 by virtue of orders in I.A.No.481 of 2011 dated 07.06.2012, the petitioners herein who were figured as defendant Nos.1 and 2 contested the suit. According to the averments made in the plaint, it was alleged that the land measuring 1500 sq.yards with brick wall, one room therein and two steel gates which is part and parcel of Gazette notified grave- yard bearing Municipal No.6-3-356 at Bokkal Guda, New 3 CRP No.1213 of 2022 Bhoiguda was shown as suit schedule property and 1st respondent sought for declaration to declare the same as part and parcel of waqf property and for eviction of petitioner Nos.1 and 2 herein and also for damages @ Rs.30,000/- per month. The 1st respondent has claimed that he was Mutawalli of waqf property. As per the orders, dated 09.08.2007 published in Ex.A2 Gazette, dated 01.11.2007 he has been paying waqf fund to 2nd respondent.
3. The plaint further reads that the petitioners herein encroached into the suit property, erected brick walls, constructed a room with two gates by demolishing the boundary wall and started claiming title over the property without any right as such a complaint was lodged before the District Collector and Executive Magistrate, Hyderabad. It is also alleged in the plaint that the petitioners herein themselves assigned a door number as if the property bearing Municipal No.6-3-356/6. The 1st respondent having claimed that the property is in commercial area as 4 CRP No.1213 of 2022 such there was demand for the property, thereby sought for the above referred relief.
4. Both the petitioners made their appearance, filed written statement specifically denying the plaint averments. They have claimed that the father of 1st respondent namely Sardar Ahmed leased out the property admeasuring 522 sq.yards in favour of their father by name Mohd. Afzal Khan on monthly rent of Rs.25/- which was subsequently enhanced and at the time of filing the statements, according to the petitioners it was Rs.100/- per month. They have also claimed that subsequent to the death of their father on 20.10.2003, the tenancy was devolved upon them. Having denied the alleged encroachment on the suit property, the petitioners have contended that they have been paying rent to the 1st respondent/plaintiff No.1. However, the 1st plaintiff wrongly claimed additional amount of Rs.60,000/- without issuing any notice under Section 106 of T.P.Act. 5 CRP No.1213 of 2022
5. The petitioners through their written statement before the Court below have also claimed that on 24.09.2010, the District Collector, Hyderabad sold an extent of 138 sq.yards with a room which is adjoining the leased premises in their favour for a consideration of RS.9,10,800/-. They got the property regularized and door number was allotted to the property. Thereby, the property bearing Municipal No.6-3-356/6 is not part and parcel of the suit schedule property. The suit filed by the plaintiff without notice under Section 89 of Waqf Act is not maintainable. Thereby sought for dismissal of the suit.
6. Based on the above specific contentions, the Tribunal framed the following 5 issues:
1. Whether the suit schedule property is a part and parcel of the Gazette notified grave-yard and situated at Bokkal Guda, New Bhoiguda, Secunderabad as claimed by plaintiff?
2. Whether the plaintiff is entitled for recovery of vacant possession of suit property?
3. Whether the plaintiff is entitled for recovery of damages of Rs.30,000/- p.m. as prayed for?6 CRP No.1213 of 2022
4. Whether the plaintiff is entitled for mandatory injunction against defendants as prayed for ? and
5. To what relief?
7. In order to prove the case, the 1st plaintiff has been examined as PW1 through whom Exs.A1 to A17 were marked. The petitioners herein have examined the 1st petitioner as DW1 and marked Exs.B1 to B30. The Tribunal having considered the pleading of both parties, oral and documentary evidence placed by them and also considering the arguments of the petitioners and respondent came to conclusion that the respondents/plaintiffs proved the suit claim and passed a decree in favour of the respondents as indicated above. Being not happy with the said finding, the petitioners filed the present revision on the following grounds:
The judgment impugned in the present revision is contrary to law, facts of the case. The Tribunal ignored the fact that 1st plaintiff did not produce his appointment letter dated 09.08.2007. Though it is best available evidence, it 7 CRP No.1213 of 2022 was not filed before the Court, thereby an adverse inference shall be drawn.
8. The petitioners have claimed that the appointment of PW1 is illegal. It could not have been made under Section 42 of Waqf Act. In fact, Mutawalli has to be appointed under Section 63 of Waqf Act, 1995. The petitioners have claimed that PW1 did not prove the time period or his tenure during which he can act as Mutawalli. Therefore, his appointment itself is vitiated. The Tribunal did not consider the case law that was produced by the petitioners herein.
9. They have also claimed that the appointment of Mutawalli which was made by the Executive Officer on an endorsement from the Minister is bad. Therefore, it is deemed that it was not proper appointment as per law by competent authority i.e., Waqf Board.
8CRP No.1213 of 2022
10. The petitioners have claimed that since the appointment was without any vacancy and as it is not under Section 63 of Waqf Act such appointment is bad.
11. The petitioners have claimed that PW1 filed notification of his appointment, but failed to prove the actual extent of the land as 19785.2 Sy.Yards. According to Ex.A6 report of Waqf Board, the area of alleged grave-yard varies from time to time. Its extent is not 19785.2 sq.yards, but it is only 13355 sq.yards as on the date of the measurement. Therefore, the remaining property will become non-wakf property and Waqf Tribunal did not decide in which of these portions the suit property is located. Thereby the suit is liable to be dismissed.
12. The petitioners further contended that according to Ex.A6 survey report, there are several civil cases regarding the property before City Civil Courts, Hyderabad. But, the judgments in the above suits were not produced before the Tribunal. The petitioners have categorically claimed that Waqf Tribunal has no jurisdiction to decide the suit and 9 CRP No.1213 of 2022 only Civil Court has got jurisdiction to decide the cases pertaining to eviction of tenants. But, the Tribunal did not appreciate the judgment relied on by the petitioners herein.
13. The petitioners have also claimed that the damages awarded by the Tribunal are without any basis and granting of such damages is liable to be set aside and only nominal damages are to be awarded. The petitioners have challenged the findings of the judgment dated 20.04.2022 on the above grounds.
14. Heard both parties.
15. In view of the above referred grounds, the following points arose for consideration in this revision:
1. Whether the 1st respondent/plaintiff No.1 who was examined as PW1 before the Tribunal has got right to prosecute the suit and whether his appointment as Mutawalli of the suit schedule property, can be challenged in the present revision?
2. Whether the contention of the petitioners that the appointment of PW1 under Section 42 of Waqf Act is incorrect and it could have been under Section 63 of 10 CRP No.1213 of 2022 Waqf Act, can be considered while deciding the revision petition filed against the finding of the above suit?
3. Whether the Tribunal failed to appreciate the contest and came to correct conclusion about the right of respondents/plaintiffs including Telangana State Waqf Board over the suit schedule property?
4. Whether the judgment impugned in the present revision is liable to be set aside on the grounds raised in the present revision petition?
16. POINTS:
As already stated in the previous paragraphs when the 1st respondent/plaintiff No.1 filed this suit against the present petitioners and respondent No.2 Waqf Board, in view of the orders in the interlocutory application referred above, the 2nd respondent herein has been transposed as plaintiff No.2 and suit was contested by both the respondents being shown as plaintiffs. According to the statements filed by the present petitioners before the trial Court, it was their specific case that the father of the plaintiff No.1 and plaintiff No.1 are landlords of property 11 CRP No.1213 of 2022 leased out in their favour. The property to an extent of 522 sq.yards bounded by public road on North, grave-yard on South, Mulgi No.6-3-356/5 on East and premises bearing No.6-3-356/6 on West was let out to their father by name Mohd. Afzal Khan by the father of 1st plaintiff. This was the claim of petitioner Nos.1 and 2 in their written statement vide para No.4. In addition to that they have also pleaded before the trial Court that they are not aware whether the 1st plaintiff has been paying Waqf fund to Andhra Pradesh Waqf Board. Without expressing any opinion about the nature of the property, the petitioners have categorically contended that they did not encroach upon any land including waqf land. They did not encroach any grave-yard.
But, they have been in possession of the above referred 522 sq.yards by virtue of alleged lease deed. In the entire written statement they did not raise any issue with regard to right of plaintiff No.1 nor there is any challenge against the appointment of 1st plaintiff as Mutawalli of the Waqf property.12 CRP No.1213 of 2022
17. In addition to the above contention of lease in respect of 522 sq.yards, the petitioners further claimed that on 24.09.2010 the District Collector sold an extent of 138 sq.yards with a room in their favour for a consideration of Rs.9,10,800/- and subsequently the property was given a door number and regularized in their favour. The Tribunal while disposing the suit, considered the rival contentions of both parties to the suit including the claim of the petitioners as to the alleged lease and sale deeds said to have been executed by the District Collector.
18. However, in the present revision, the petitioners have raised altogether new claims and sought to challenge the appointment of 1st plaintiff as Mutawalli. When they did not choose to raise this issue and when there was no pleadings they cannot claim this issues in the revision. The Tribunal while appreciating oral and documentary evidence adduced by both parties, had also considered the admissions made by the petitioners herein in other proceedings including the writ petitions. A perusal of the 13 CRP No.1213 of 2022 judgment impugned in the present revision would indicate that according to Ex.A8 a copy of the affidavit filed by DW1 (Petitioner No.1 herein) in W.P.No.16806 of 2009 and as per the sworn statement made by 1st petitioner before this Court in another proceedings, clearly indicate that the petitioners have taken stand as if they have got absolute ownership over an extent of 660 sq.yards bearing No.6-3- 356/6 by virtue of gift deed executed by their father on 05.08.2002. According to the above sworn affidavit the petitioners have claimed that their father acquired the above referred 660 sq.yards from his ancestors, remained in continuous and uninterrupted possession for more than 40 years. Thereafter, donated the property in favour of the petitioners under a registered gift deed.
19. Whereas in Ex.A9 certified copy of sworn affidavit filed by the petitioner No.1 before High Court on 04.02.2011 it was claimed by petitioner No.1 that property situated in Sy.No.6 consisting of 19785.2 sq.yareds is classified grave-yard and the same was notified in the 14 CRP No.1213 of 2022 Gazette No.6A dated 09.02.1989. The father of the 1st plaintiff was Mutawalli and he has executed lease deeds in favour of different persons. In such a way he has executed rental agreement in favour of father of the petitioners on 27.09.1988. The petitioners vide above referred sworn affidavits further pleaded that after the death of their father, they got the property by virtue of gift deed. Therefore, according to Ex.A8 the petitioners have claimed absolute right over the property by virtue of gift deed. The Tribunal while appreciating Ex.A12 held that in view of information from Deputy Commissioner of Greater Hyderabad Municipal Corporation (GHMC) that there is no door number as referred as 6-3-356/6. The Tribunal having appreciated the different stand taken by the petitioners in different proceedings before different forums concluded that the petitioners' claim over the property, cannot be accepted.
20. According to Ex.A1 certified copy of Gazette, dated 09.02.1989, it is quite clear that the above referred 15 CRP No.1213 of 2022 property to an extent of 19785.2 sq.yards is a notified grave-yard, a waqf property and father of the 1st plaintiff was shown as Mutawalli. The 1st plaintiff was appointed as Mutawalli after the death of his father, the petitioners though disputed the proceeding under which PW1 was appointed as Mutawalli did not deny such appointment. Therefore, the appointment of PW1 as Mutawalli and notification of the property to an extent of 19785.2 sq.yards as grave-yard of waqf property was established and the same was rightly considered by the Court below.
21. The petitioners having taken different stand and without assailing the appointment of PW1 on any ground through their written statement cannot now take that stand in the present revision petition. Out of the 12 different grounds raised in the present revision, 6 grounds are against the appointment of PW1 as Mutawalli. The petitioners have contended that the appointment of PW1 since made by the Executive Officer on an endorsement of the Minister concern, cannot be treated as proper 16 CRP No.1213 of 2022 appointment and since it was not under Section 63 of Waqf Act, the same cannot be considered. As already states this particular stand was missing in the suit proceedings. Therefore, there was no opportunity for the respondents to submit the required informant on or to assail this specific contention thereby the same could not have been taken in the present revision petition.
22. The other contention is with regard to the nature of the property being Waqf. The evidence of PW1 coupled with Ex.A1 categorically shows that the property is waqf property. In support of the claim the respondents/plaintiffs have marked Ex.A6 and A7. Ex.A6 is the copy of joint report filed by Inspector/Auditor which was prepared much prior to filing of the above referred suit. According to Ex.A6 the officials have measured the existing grave-yard and found its extent as 13355 sq.yards. It is true they found some variations in the area of the total Waqf. It was the contest of the petitioners herein that in view of variations in the extent, it is not possible to conclude that 17 CRP No.1213 of 2022 the suit schedule property is part and parcel of the waqf property. But, the Court below having appreciated Ex.A6 and A7 and having appreciated the boundaries of the property and also after noting the different stand, came to conclusion that the respondents/plaintiffs have established their contentions.
23. The petitioners herein have raised another contest with regard to notice under Section 106 of Transfer of Properties Act. According to their stand before the trial Court, they are tenants of the property. Whereas in the affidavit filed before the High Court in Writ Petition they have claimed to have got ownership over the property. In fact, it is not the case of respondents/plaintiffs that the suit schedule property was leased in favour of the petitioners herein and it was specifically pleaded that the petitioners have encroached upon the suit schedule property thereby the suit was filed for declaration to declare the nature of the property and for recovery of possession. Since it was not the case of respondents that 18 CRP No.1213 of 2022 they leased out the property to the petitioners herein, the question of 106 Transfer of Properties Act notice does not arise. The appointment of PW1 as Mutawalli of the waqf property has been proved by Ex.A2 Gazette dated 01.11.2007. According to Ex.A2, it is quite clear that PW1 addressed a letter to 2nd plaintiff complaining against the petitioners on the ground that they encroached the suit property admeasuring 1500 sq.yards. Therefore, it was the case of respondents that the petitioners are encroachers on the suit schedule property. The petitioners have claimed that they purchased an extent of 138 sq.yards from the Government and in support of the said contention they sought to relay on Ex.A18. There is evidence before the Court to believe that an extent of more than 19000 sq.yards within specified boundaries is notified as waqf grave-yard. The petitioners have claimed that they purchased 138 sq.yards which is nothing but part and parcel of the above referred 19000 sq.yards and it is very clear from the record that the alleged purchase of 138 sq.yards is without notice to the respondents/plaintiffs. 19 CRP No.1213 of 2022 The Tribunal while disposing the suit, considered Ex.A10 certified copy of counter affidavit filed by the Tahsildar, Secunderabad wherein it is stated that an extent of 522 sq.yards classified as grave-yard and an extent of 138 sq.yards is also an encroachment.
24. As rightly observed by the trial Court there is no document in support of the alleged tenancy. It is elicited from DW1 that Ex.B1 to B17 receipts are not in respect of the garage in the waqf property, thereby they are not concerned with the suit schedule land. The Tribunal while appreciating the discrepancy in the boundaries of the property vide para Nos.42 and 43 of the judgment, categorically held that the alleged gift deed vide Ex.A13 is a created document and even as per Ex.B22 the northern side boundary is shown as public path. There is an admission in Ex.A7 with regard to the above said boundary, therefore, concluded that the suit property and the property referred to by the defendants against the petitioners herein admeasuring 660 sq.yards and another 20 CRP No.1213 of 2022 extent of 133 sq.yards said to have been acquired under Ex.A18 are all in the middle of the property covered by Ex.A1 and A17. In support of their claim the petitioners could not place any acceptable evidence, and in fact they did not take specific stand as to how they inducted into possession of the property. It is true the respondents/plaintiffs cannot depend on the weakness or loopholes in case of the defendants. But, at the same time when the petitioners took a specific stand they must establish the contention through oral and documentary evidence. The contention of the petitioners about ownership by virtue of Ex.A8 has been negative by their own affidavit whereunder they have claimed that their father obtained the property on lease form the then Mutawalli. Absolutely there is no material to believe that there is such lease deed and the same was executed by 1st respondent/plaintiff No.1 who is examined as PW1. Similarly there is no material to believe that the property is not within the notified grave-yard. On the other hand, there is material to conclude that the property in the midst 21 CRP No.1213 of 2022 of the Waqf property as notified under Ex.A1. Therefore, there are no grounds to interfere with the judgment of the trial Court, thereby the present revision petition is liable to be dismissed.
25. In the result, the Civil Revision Petition is dismissed. No costs.
As a sequel, pending Miscellaneous Applications, if any, shall stand closed.
___________________________________ JUSTICE SAMBASIVA RAO NAIDU Date: 12/07/2023 Pssk