Mastan Khan Since Decd By His Lrs vs Bahadur Khan Alias Dadejan on 2 February, 2010

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Karnataka High Court

Mastan Khan Since Decd By His Lrs vs Bahadur Khan Alias Dadejan on 2 February, 2010

Bench: C.R.Kumaraswamy

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

MISCELLANEOUS FIRST APPEAL ;§To.§'dJO5/"Z064;  

DATED THIS THE 9}?) DAY OF FEBRUARY 2039'

BEFORE

THE HON'BLEE MR. JUSTICE C.R. KuMAR.A.Syv:,AV,M~%f ._

BETWEEN:

1. Sri. Mastah Khan

Since deceased by his LRSI', __ 

(1)

(2)

  (3)

3 

Smt. Moahamoodptnnvéhssa _ v_ A
W/0 iate_..STE.y_' Mastian    V
Aged a1;3cLjut ;S5__.'yea'rs,' = 

 M§§h'a!§.An3ed"% EV'§r:3:f3~aVvt_i':aS_im Khan
S/'Q Eate 'STE; .EVf:.a.Sta4n'awE{h'a.n,
Aged about-3 5'-..yeai*~s._,» "

;Srn_t. Néazgaérna' Khafodn,
 Sri. An*:'an..u.ETla Khan,
 Ag"-ed about 33 years,

_  Zafruila Khan
"S/0 late Sn. Mastan Khan,

3  Aged about 30 years,

 :'";i\3l yareaare-Siding at No. 335,
..A3:'32m"'CfOSS, Tilaknagar, Bangai0re*41.

  Sig. Mohammad Haneef Khan,

3'  ..S,r'T0 late Sri Pate! Usman Khan

 Aged about 68 years.

éx'



3. Sri. Patel Ahrnedolla Khan,
S/o late Sri. Patel Usman Khan,
Aged about 65 years.

4. Sri. Rizwanulla Khan,
S/o late Sri. Patel Usman Khan,
Aged about 62 years.

5. Sri. E'/Eustafa Khan,
S/o late Sri. Patel Usman Khan,
Aged about 55 years

All are residing at

Adigar Kalahalli Village, 
Sarjapura Hobli, Anekal Tal'_o§<,,  _ 
Bangalore District.  to    ... Appellants
(By W S. M.S. Rajentira Prasa'é:i'~AssVo'c.ia.t_e5.l- "

AND:

1. Sri. Bahadur Kh-an",  
Alias Dadejanl, "   
AgedVa_bout'6SVyear.s, '
S/olate Sri. (Sat-fur Khan,

 "  .,Resé.d'l'ng.,.at"Adi gar K'a'l'ahalli

._ .Vil!age,_ Salj,a'p_ur Hobll,
 .__A"ne_ kal _T«al lu-'<", H " 
B-a ngal o 'r'e"_'v_Q_'i strict.

 Karﬁaza---i§a "State Board of Wakf

"..Represen'ited by its Chief Executive

A «,,(}.'fiC¢er, Sri. E'/Eaaz Ahmed Sharlff,

 _l<;.A.S_«. No.6, Cunningham Road,

A "Bangalore-560 O52.  Respondents

A R./Ix. Reyaz Khan, Advocate for R1 Sri. 9.8. Malipatil, Advocate for R2} Q/.

This Miscellaneous First Appeal is filed under Order 43 Rule 1(a) of Code of Civil Procedure against the order dated 20.06.2000 passed on Additional issue Nos. 1 and-.__2 in O.S.l\Eo.830/1995, on the file of the Principal Civ\(ilr._}udge (Sr.Dn.), Bangalore Rural §istrict, Bangalore, retu'rn'in"gc_"tAhe plaint to the appellants herein for presentation b_ef'o'reffl7tlbu.nal% constituted under Section 83 of the Wakf Act, ' This Miscellaneous First Appeal cci"rnA§Vng"on*«._fo-:r -f.i_na_lv.Vh'eVarin«g this day, the Court delivered the follow'i:ri§f.r°..--r' ' ' 3uoGM§ﬁ;0C This Miscellaneous First Appea_llis__til.ed 43 Rule 1(a) of Code of Civil vP"i'oxcedt.ig.r'ev?.:.g';ag'ain.sgt--_the order dated 20.06.2000 passedfohn 1 and 2 in o.s.No.83o/199.5 rile: Judge (SIZDFL), Bangalore:V:Rur*a'l returning the plaint to the appellants hereinfor vpresentation before the 3'ril3unal constituted vV..tmg_der Se'.cti:o%; S3 oCf"the____W.ai<f Act. ' 02;,VPa.rties«..:VW:ll_ be referred with reference to the status in the aorta 3':"Theg'prifhary facts of the case are as under:

" 'Shae plaintiffs 3 to 5 are the sons of late Patel Usman Khan wt.l.io"'-wasialson known as Masjid Management Patel Usrnan Khan. K/' interfering with the management of the third plaintiff from August~}995 and there arose ill-wiii between the the second defendant. The second defendant ha's_:"al.soV.:Vglii/en'u'a"r paper pubiication in the name of the :f'ir"st"d.eAfe.ndant":va_gai';:st the ii' third plaintiff in that connection on in newspaper "Daily Salar".

4. Defendants I "_V:ap;p:e'a":=e'd,lA':'th_rough "a common counsel in the Court beyi.owc._ :1» the written statement in plaint averments.

They have also not maintainable for misr joinder and parties. They have stated that the piailntigffsi have the suit schedule property. third" 'd.efend:ant has filed written statement in the AVC_'C)i».i?':§'b'elQVlr'J'A,Q*f]:'2,7.2.1999 admitting the plaint averments and con'.c~eAdh;.nyg vVfor'_"a__de.cr'ee in favour of the plaintiffs to an extent of 4 acres "g_un't'as in Sy.i\lo.81/3 as described in the piaint Thereafter the third defendant got amended the

-W_rit't--en 'statement and in the amended written statement, it is "-stated as under:

Third defentéant has denied that the plaintiffs ye-:"r.e the absolute owners of the land bearing Sy.i\3o.81/3 to 5 acres having succeeded to patel Usman Khan, stated that Sy.i\1o.81/3 is a wakf prop'erty"and..«it.;isAlV'decl:a're'd as 9 wakf under section 5(2) of the Wakf Act.__p»L;tglisheci_-v_i.n"the Gazette dated 8.2.1968. Idgah has'-i,beeVn'----coi'iist'ruVc'tecl"for the rnuslims of the village for .o'i'f.eringi't'hei.rj prayer twice in a year in the Idgah during Rarnzan and' land has been granted under darl<'a.st_'h as b'ac'l{'.j_inv_.thje'year 1927 to the mosque of that4yiij,lage'f°--»._ Ka-tfhia'V"o.fithe_schedule property staads in the narnelof" th.:ei,ihai%gage'rne'iwt of_"ti'é'e'V4mosque. Before issuance of the gazette' notificai.tion",'~iﬁa.,h'a.zar was drawn in the village by the officials of t"heVth.ird--_ de.feVndVant. Some of the plaintiffs are the :_'j'sVi'g.nat0'tlé;=s:_---ito«the Vrriaihiaéar. None of the plaintiffs have cVh'al_llena'g'ed:"the:.4"saiG~vnotification. The plaintiffs have no right,

-- «title oi',__intere.stt:iniilthe schedule property and at no point of time, plaintiffs. were in possession of the property, Since the i-sci-'ieci.gl"é'A_«property is registered under wakf, the Court below has jurisdiction to try the suit as the suit is not maintainabie in as per the provisions of the Wakf Act.

6/ _.-in. the a'r'fi.rm_atiye.

6. The trial Court has framed two additional issues',"~.which are as under:

(i) Whether the third defendant Droveslhtihatjfillarid'iiillrik'4...

Sy.l\io.81/3 is the wakf property/"?--._ . ' V

(ii) Whether this Court has no juli1i4sd{cti.o'nAtol viewof the Drovisions Offtllfa Waléfaﬂxtgt ? V' C' "

7. The trial Court has .rec0rd--ed..the-»..evidehc~e..inlirespect of the additional issues. On b4en'a'l'f'of one Ahrnedulla Khan has been _ Wgot marked 36 documents as of the defendants, one Mr. Wakf Board has been examined 4 documents as per E><.D1 to D4. The trial'Cou.rtrh.a<s*'.a"rrs:irikered additional issue Nos}. and 2 substance of the findings of the Court V beloW.is*as din-dsjerf Clhetlélrevenue records produced by the plaintiffs 'wV4'th.(:§niVsei'a.{esVdoes to show that 5 acres of land in Sy.No.8l'/3 was to patel Usman Khan for management of the mosque If 6/ the property was given to him in his individual capacity",--.._>there was no necessity of mentioning the name of the mo.s"qLi"e--4t:a«t"a||. Further, in some of the revenue records it hasmbeen.V"clea_r4liy" stated that the property is in possessiaonhofttheg thi«rda"'p_iain'ti"ff for b the purpose of managing the mosque.Aa:__ ;i"herefo.rey"e,ven't:h'oiighu the third defendant has not prod-ugced other other than E><'.D1 to D4, it can"~._be gla'trie.:red'""from&t§i'e""tioctiments produced by both the partiesthtavtrﬁﬁy a_c:r'esj.iVn'_V__Sy.No.81/3 was granted by the Goverinafnent fo€r't'tiie'«m'o'setive itijsielf. 8.2 The observed that E><.D;L{a} shows that the t|a"nd"v-_.Airii,g'Si,r_:No.'81/3 measuring 5 acres was notified as waizf lprvop'e_rty. »-- Vi:5"'t.f\.l§1 himself has admitted that the said no,t.i_%.ificat.ion hV"as._.:not been challenged in any proceedings. ASf_3'Cl'Ai'C:)i"«l.r¥6 oJf..the"'~--Wakf Act, 1995 prescribes that the dispute rega"r'~:li'ih~..gi be challenged by instituting a suit in a Ti-ibunai"; the explanation to Section--6, it is clear that party can institute the suit concerning the dispute wcigthtiretgard to the property specified in the list. in the present s.i:,iit]"the plaintiffs have not sought any specific relief challenging (X the gazette notification. The third defendant -- Board.» was subsequently impieaded in the suit. The relief soughtl:il:s"'altg»ali'rist the second defendant alone. "the publication of E><.D1 notifying S acres of lanCl'l%in"'«Sy-.,No«.S§Vi'}'3 unchaiienged. "therefore, in viewgyof Ex:D1l"notificavt_io'n., thlle:.4lC--o:urt.x below conciuded that the third defelridantll has land' measuring 5 acres in Sy.No"'.8_1/3.isl"the':i,iia"%<.f proplelrtyfl 8.3 The Court» vbeiowwhais a'lso__ that the third defendant h§}4Sl'--..C(}l:liil:Et{fﬂtZllcfd'1?-tlhath u:lCourt below has no jurisdictionvto_en~te'rtain lfvlhelllthird defendant has relied upon $eCtlQ'n--85 of"l'ti"i'e.:lNa§<f_:Rc.t,' 1985. On the other hand, the learned counsel for t'i':e."plla»intiffs has argued that even now suits are being' flied the: Wa§<f Board in the City Civil Court and th_erefo.r:e of the third defendant that the Court below hasno"jurillsdillcvti._o'n.'ils not correct. The Court below has further o--'oserveti- that Section 83 of the Wakf Act contains the procedure U"for,c'ons_titution of Trieonai and Sec:tion«8S of the Wa%<f Act is s,oeclfilc that the jurisdiction of Civil Court is barred in respect of "theldispute relating to the wakf and wakf property. Therefore, 6/ it} even if suits have been filed in the City Civil Court, sin-c_e the Wakf Actm199S which came into force with effect January 1996 takes away the jurisdictiorr of the and therefore the plaintiff instituting the suit"in'Cgiv.iAl 'ba'i'rVneid by jurisdiction. It has been got eglicited"i_nt.hie that the Tribunal under Wakf Act h'arsV:V"riot been_vc'on:stiVtt!Vgtled by the Government so far. Whether coris'titt.2"t:ed or not, but when the Act specifically ':v'afwa.y.:'vt*i¢gigrisdiction of the Civil Court for deavli'n:g;i;.he the dispute with regard to the -the plairrtiffs cannot be permitted ldi's'p_u't"e§before the Court below. Therefore theltrial order that the Court below has no ;'_ur_isdict'i'onV t0ftry"v_th'e"Vsuit in view of Sectionm83 of the Furltherthe trial Court ordered for return of the pl'ai_n't_:.t'ouplrrainytiffs for presentation before the Tribunal "*vcorrstituted vl,Jll.C1':Cj§ii/V:S€C'CiOFl~83 of the Wakf Act.

" Feeling aggrieved by the same, the plaintiffs/appellants preferred this appeal challenging the order passed by the " ~tria'l"Cou rt.

11 1G. Learned senior counsel for the appellants lVir';-._1Vi.S. Rajendra Prasad sobrnits that the finding has aylyrgeﬁadly-if'taleen recorded that the property in question is a wakf finding recorded by the trial Court is no'tMpro'per',--, .y

11. Learned counsel for the'-..respondV:e:1t' No Khan, submits that in order to ascterta_l'i':.._whether:Vntghevlicourt has got jurisdiction or not to tvryitne was conducted and a finding has been giy.e'nht-h'atv in question is a wakf property._fﬁotirtwlheid that it has no jurisdiction_tO...tit?»..t:t*.gr:_;g;::iJVVi_t of the Wakf Act. Learned co.,_Linsel ggrelsgipondents further submits that the appellants ha(re__novt c'ha"l"ien--ge'd the relevant gazette notification. {Darn-1g the"""'CoVurse of arguments, learned senior co'u.nsel_ tor::'thervap_p"e;.llai1ts as well as the learned counsel for the "*vrespond4ents. that initially the appellants herein have *-ifj;fcha.llengedthe impugned order in CRP No,2423/ZGGO before this if '{Tgoi;i._rt»._y_ :''..Later it was converted into MFA under Order~¢'r3 Rule- By the lrnpugned order, the Court below has ordered for ff"---.retLrrn of the plaint to the plaintiffs for presentation before the Q?

ri * 12 Tribunai constituted under secti0n~83 of the Wakf Act. It is the contention of the iearned counsei for the appellants thatV_fi»f4lllt.his Court makes an observation that the finding reco.rd.e'd"ebf'y*-..Tth.e".

Court below is only to ascertain the jurigsdigctionof"the.C'ity"Ci\<il Court, then he has no grievance. Learried counsel respondents submits that plaint be"'presented 1{.be.foVre3 the"

Tribunai. Learned counsel for the F€3.SiVl3-o:nd.ents..ai~so_sub}nits that though severai issues were Court below, it has considered only the issue Vpertai:nin'g._"to'j'uri:s'dvi'ction and other issues have not _:b\/Etlhje, beiow. Therefore the finding in so far as that the third defendant * pro'v.Vesxtfthati:A:_:"I"a'r'i'd in Sv.No.81/3 is a wakf property is.,confi'ned'aon'EyA'%"-orvlthe purpose of ascertaining the poivnt.'pg"iitain..i"i:g "'50, Jurifsdlictlion of the Court. The plaintiffs are dire'ct.e:d.g_i.toi' plaint before the Tribunal within six frolérn the of receipt of copy of this order. The parties 'pilntforth -their case before the Tribunal and adduce evidence gestaiblish their respective contentions. The observations "i.ifi'ade__herein shail not influence the Tribunal while deciding the on merits. Ali the contentions of both the parties are ieft £6/,

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