Bombay High Court
The Nutan Education Society, Parbhani vs Khamar Ali Shah Mehboob Ali Shah And ... on 7 April, 2026
2026:BHC-AUG:14627
1 cra 135.13
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 135 OF 2013
Kamar Ali Shah Mahboob Ali Shah
and another .. Applicants
Versus
The Secretary, the Nutan Education
Society and others .. Respondents
Shri V. D. Sapkal, Senior Advocate, i/by Shri S. H. Khan,
Advocate for the Applicants.
Shri A. S. Deshmukh, Advocate for the Respondent No. No. 1.
Shri S. S. Rathi, Advocate for the Respondent No. 2.
Shri N. E. Deshmukh, Advocate for the Respondent No. 4.
WITH
CIVIL REVISION APPLICATION NO. 95 OF 2018
Hanuman Vyayam Shala, Parbhani
Through its Trustee Anant Kishanrao
Umrikar .. Applicant
Versus
Kamar Ali Shah Mahboob Ali Shah
and others .. Respondents
Shri Swanil S. Rathi, Advocate for the Applicant.
Mrs. A. N. Ansari, Advocate for the Respondent Nos. 2/1 to 2/7.
Shri N. E. Deshmukh, Advocate for the Respondent No. 5.
WITH
CIVIL REVISION APPLICATION NO. 90 OF 2013
The Nutan Education Society, Parbhani .. Applicant
2 cra 135.13
Versus
Kamar Ali Shah Mahboob Ali Shah
and others .. Respondents
Shri A. S. Deshmukh, Advocate for the Applicant.
Shri V. D. Sapkal, Senior Advocate i/by Shri S. H. Khan,
Advocate for the Respondent No. No. 1, 2/A to 2/G.
Shri N. E. Deshmukh, Advocate for the Respondent No. 4.
WITH
CIVIL REVISION APPLICATION NO. 136 OF 2017
The State of Maharashtra, through the
Collector, Parbhani and another .. Applicants
Versus
Kamar Ali Shah Mahboob Ali Shah
and others .. Respondents
Shri S. N. Morampalle, A. G. P. for the Applicants.
Shri V. D. Sapkal, Senior Advocate i/by Shri S. H. Khan,
Advocate for the Respondent No. No. 1, 2/1 to 2/7.
Shri N. E. Deshmukh, Advocate for the Respondent No. 4.
WITH
CIVIL REVISION APPLICATION NO. 158 OF 2013
The Secretary, Model Education Society .. Applicant
Versus
Kamar Ali Shah Mahboob Ali Shah
and others .. Respondents
Shri Joslyn Menezes, Advocate h/f Shri Prakash S. Paranjape,
Advocate for the Applicant.
Shri V. D. Sapkal, Senior Advocate i/by Shri S. H. Khan,
3 cra 135.13
Advocate for the Respondent No. No. 1, 2/A to 2/G.
Shri S. N. Morampalle, A.G.P. for the Respondent No. 4.
Shri N. E. Deshmukh, Advocate for the Respondent No. 5.
WITH
CIVIL REVISION APPLICATION NO. 246 OF 2013
The Executive Engineer, Maharashtra
State Electricity Board, Parbhani .. Applicants
Versus
Kamar Ali Shah Mahboob Ali Shah
and others .. Respondents
Shri Avishkar S. Shelke, Advocate for the Applicant.
Shri V. D. Sapkal, Senior Advocate i/by Shri S. H. Khan,
Advocate for the Respondent No. No. 1, 2/A to 2/G.
Shri Swapnil S. Rathi, Advocate for the Respondent No. 3.
Shri S. N. Morampalle, A.G.P. for the Respondent No. 4.
Shri N. E. Deshmukh, Advocate for the Respondent No. 5.
CORAM : SHAILESH P. BRAHME, J.
CLOSED FOR ORDER ON : 12.03.2026
ORDER PRONOUNCED ON : 07.04.2026
FINAL ORDER :
. With the consent of the learned counsel of both sides taken
up for final disposal. Heard litigating sides at length. Their
written notes of submissions and compilations of the relevant
documents are taken into account.
2. The distinct judgment and orders passed by the Waqf
Tribunal, Aurangabad are question in these revision applications
4 cra 135.13
filed by the original plaintiffs. The material adduced by the
parties is common in all the proceedings. The controversy which
this Court has crystalized in points for consideration is common.
Hence revisions are decided by common judgment. The paper
book of Civil Revision Application No. 135 of 2013 is referred.
The revision petitioners are the original plaintiffs. The
respondents are the original defendants. They are referred to by
their original status in the suit.
3. For the sake of convenience and to understand the nature
of dispute at a glance a chart is produced hereinbelow :
Sr. C. R. A. No. Waqf Suit Relief Impugned Area used for.
No. No. Claimed judgment
1 135 of 2013 23 of 2004 Recovery of Suit is 04 Acre 08
possession dismissed on Guntha
& 29.01.2013 Nutan Education
perpetual Society
injunction (Sy. No. 636)
2 90 of 2013 69 of 2011 Perpetual Suit decreed 11 Acre 16
injunction is on Guntha
23.11.2012 Education society
(Sy. No. 636)
3 246 of 2013 24 of 2004 Recovery of Suit is partly 01 Acre 31
possession decreed on Guntha
& 25.03.2013 M.S.E.B.
perpetual (Sy. No. 636)
injunction
4 95 of 2018 43 of 2008 Recovery of Suit is 0H 39 guntha
possession decreed on (42699 Sq. ft.)
& 31.08.2015 Hanuman
perpetual Vyayam Shala
injunction (Sy. No. 636)
5 136 of 2017 25 of 2004 Recovery of Suit is 10 Acre 05
possession decreed on Guntha
& 31.08.2015 Civil Hospital (Sy.
5 cra 135.13
perpetual No. 637)
injunction
6 158 of 2013 22 of 2004 Suit is Suit is 01 Acre 11
decreed on decreed on Gunthas
31.08.2015 27.02.2013 Model Education
School
(Sy. No. 636)
4. The subject matter in the revisions is land survey Nos. 636
admeasuring 24 Acres 12 Guntha and 637 admeasuring 2 Acre
07 Guntha situated at Parbhani, Tq. and Dist. Parbhani. The
defendants in respective suits are occupying part of it illegally as
shown in table. The plaintiffs are soliciting possession of the
encroached portion. There is further reference of Sy. No. 435 and
635, albeit, no specific claims are made for the lands. Sy. Nos.
636 and 637 are claimed to be Mashrutul Khidmat Inam lands
and properties of a waqf namely Dargah Hazrat Burhan Ali
Shah. Dargah Burhan Shah Wali is also stated to be one of the
registered waqf. There is also reference of waqf Kabrastan and
Eidgah. Parties have rival claims about the suit lands and
religious institutions referred above.
5. The plaintiffs are claiming to be the persons having
interest in waqf Dargah Hazrat Burhan Ali Shah. They are
claiming to be mutawali by inheritance. In the plaint of R.C.S.
No. 23 of 2004 following genealogy is incorporated :
6 cra 135.13
Mazar Ali Shah
Amir Ali Shah Hasan Ali Shah Yakub Ali Shah
Died issueless
Wahed Ali Shah
Mahaboob Ali Shah
Akbar Ali Shah Khamar Ali Shah
(Plaintiff No. 1)
Nasar Ali Shah
(Plaintiff No. 2)
6. Plaintiffs are soliciting the relief of possession and
perpetual injunction in respect of the area shown in table of Sy.
No. 636 in most of the cases. Only in Waqf Suit No. 69 of 2011,
the solitary prayer of perpetual injunction is made. It is
contended by them that land Sy. Nos. 636 and 637 are inam
lands dedicated to Dargah Hazrat Burhan Ali Shah. They claim
to be descendants of original Muntaqab holder Amir Ali Shah as
shown in genealogy. It is stated that the title and possession is
corroborated by Namuna Patrak, revenue record, notification in
the Government Gazzette dated 02.05.1974, etc. The defendants
are stated to have encroached upon Sy. No. 636 illegally.
Without following the procedure of acquisition the defendants -
State or local body is stated to have obtained the possession. The
suits lands are service inam lands and unalienable.
7 cra 135.13
7. It is further contended by the plaintiffs that the encroached
portion is shown to have been allotted to the defendant
educational institution, hospital, gymnasium, M.S.E.B. and
Municipal Council, illegally. Due to the encroachments and
grabbing of the land by the defendants, only 07 Acres land is
stated to have remained in possession of the plaintiffs, where
Dargah, Kabrastan and the Eidgah are located. It is further
contended that the suit lands are waqf properties and from time
to time the defendants and people of Muslim community are
being permitted to occupy the land for offering prayers and other
purposes. In this premise the suits were filed.
8. The suits are contested by the defendants by filing written
statements. The claim regarding mutawaliship of the plaintiffs
and their locus to file suit is challenged. The suit lands are
denied to be waqf properties especially that of Dargah Hazrat
Burhan Ali Shah. It is denied that the plaintiffs and their
ancestors are muntaqab holders. It is stated that plaintiffs are
not armed with any succession certificate issued by competent
authority. The location of Dargah, Eidgah and Kabrastan is
disputed.
9. It is contended that the defendants are in lawful possession
of the lands since number of years which were allotted to them.
The defendants are stated to have developed lands by raising
construction of school building, offices, hospital, gymnasium, etc.
by securing permission of the competent authorities. It is also
8 cra 135.13
pleaded that suit land was property of Baldiyar and then it was
allotted to other defendants. The plea of limitation and adverse
possession are taken in the suit, where the relief of possession is
solicited.
10. The defendant waqf board supported the plaintiffs and
prayed to dismiss the suits.
11. Parties have led their oral and documentary evidence in
the suits separately. They stepped into witness box and offered
themselves for cross examination. Parties have relied upon
following documentary evidence predominantly, which are given
different exhibit numbers :
A. Nanuman patrak,
B. Succession certificate / judgment.
C. Notification in the government gazette dated 02.05.1974.
D. Muntaqab Tamil Nishani No. 24583.
E. Hakka Nondani Patrak.
F. Revenue record.
G. Information supplied under the Right to Information Act.
H. Services rendering certificates of the plaintiffs.
I. No objection certificate given to the plaintiffs.
J. Resolution passed by the municipal council.
K. Registration certificate along with orders and annexures
issued by the waqf board.
L. Allotment letter.
9 cra 135.13
M. Government Gazzette dated 02.05.1974 bearing entry No.
122.
N. Correspondence from the offices of the local body.
12. Parties have also relied on judgments passed in Waqf Suit
No. 33 of 2010 and common judgment dated 09 th December, 2015
passed in Civil Revision Application No. 99 of 2012 and Civil
Revision Application No. 18 of 2013 by the Coordinate Bench.
13. The Tribunal dismissed Waqf Suit No. 23 of 2004, which
was filed for possession and perpetual injunction only on the
ground of limitation, but the substantive findings have not been
recorded in favour of the plaintiffs on remaining issues. In
respect of remaining suits the Tribunal passed the decree of
either injunction or possession with injunction. Those judgments
of the Tribunal are subjected to challenge in the present
revisions.
14. Learned senior counsel Mr. V. D. Sapkal appearing for the
plaintiffs canvassed following submissions :
I Plaintiffs have locus to prosecute the suit in the capacity of
muntaqab holder, mutawalis and persons having interest
in the waqf properties.
II The suit lands are service inam lands and properties of the
waqf Dargah Hazrat Burhan Ali Shah. Those are
inalienable.
10 cra 135.13
III The revenue record, namuna patrak, khasara patrak and
information supplied under the Right to Information Act
corroborate the claim.
IV Dargah Hazrat Burhan Ali Shah and Dargah Burhan
Shah Wali are the same and the minor discrepancies in the
name is inconsequential and stood corrected by judgment
passed by the Coordinate Bench in C. R. A. No. 99 of 2012.
V The submissions of the defendants disputing the title on
the ground that suit lands are being shown for preparation
of other waqf institutions is without any pleading and
raised for the first time.
VI Land Sy. No. 635 is not related to the controversy in
question and confusion is tried to be created by the
defendants.
VII Neither the defendant - State or its officers, nor the local
body could allot the parcels of the suit land to the different
defendants. The defendants are encroachers and liable to
be evicted.
VIII The defendant - Waqf Board supported the claim of the
plaintiffs. As against that the defendant - State or
defendant - Municipal Council did not adduce the evidence
to show valid allotment of the parcels of the suit land.
11 cra 135.13
IX The findings on the ground of limitation in Waqf Suit No.
23 of 2004 are perverse. The plea of adverse possession by
the defendants is misconceived.
15. Learned advocate Mr. Arvind Deshmukh appearing for the
defendant - Nutan Education Society formulated his
submissions which are adopted by other private defendants in
following manner :
A. Plaintiffs are neither mutaqab holders, nor mutawalis of
the waqf Dargah Hazrat Burhan Ali Shah. There is no
pronouncement by the competent forum or any succession
certificate issued in their faovur.
B. Plaintiffs have failed to prove that the suit lands are waqf
properties of Dargah Hazrat Burhan Ali Shah and the said
Dargah is registered waqf.
C. The suit lands are shown to be the properties of
Dargah Burhan Shah Wali, which is registered one and
distinct than the one claimed by plaintiffs.
D. Plaintiffs failed to identify the suit lands, registered waqf
amongst three different waqf institutions and their
entitlement to claim relief.
E. The defendant was allotted 11 acres of land by the
municipal council by passing resolution and it carried out
12 cra 135.13
construction and running recognized schools. The
possession is lawful.
F. Neither the judgment rendered in Waqf Suit No. 33 of
2010, nor the judgment of Coordinate Bench dated
09.12.2015 in C. R. A. No. 99 of 2012 is binding upon the
defendants. Issues involved in the present matter were not
germane in those proceedings.
G. The decrees passed by the Tribunal are patently illegal and
perverse which would upset long standing possession and
structures of the defendants, except decree passed in Waqf
Suit No. 23 of 2004.
16. In addition to above submissions, following submissions
are advanced by the learned counsel for the respective
defendants.
a. The defendant in Civil Revision Application No. 95 of 2018
is in lawful possession of 39.5R of land and running a
gymnasium, which is allotted by the municipal
council in the year 1973.
b. The defendants in Civil Revision Application No. 246 of
2013 have been allotted 613.2 square meters portion from
land Sy. No. 636 through sanad. The defendant -
Municipal Council had issued kabala on 21.01.1958 in
favour of the M. S. E. B. The title is perfected by adverse
13 cra 135.13
possession.
17. Learned Assistant Government Pleaders Mr. Hange and
Mr. Jahagirdar appearing for the defendant - State advanced
following submissions :
i) The land was allotted to Civil Hospital in the year 1960.
The long standing possession cannot be disturbed.
ii) No succession certificate has been issued in favour of the
plaintiffs, rather the claim for certificate is pending before
the competent authority.
iii) The defendant - board is competent to decide the status of
the waqf and the properties, failed to take any decision.
iv) The suits are liable to be dismissed for want of
identification of the suit lands and the status of the waqf
institution.
18. Having considered rival submissions of the parties, I
propose to crystallize the following points for determination :
(1) Do the plaintiffs prove that they are Mutawallis of Dargah Hazrat
Burhan Ali Shah and have locus to file suit ?
(2) Do the plaintiffs prove that land Sy. Nos. 636 and 637 are waqf
properties of Dargah Hazrat Burhan Ali Shah ?
14 cra 135.13
(3) Do the defendants prove that Dargah Hajart Burhan Ali Shah and
Dargah Burhan Shah Wali are distinct waqf institutions ?
(4) Do the plaintiffs prove that respective defendants are encorachers on
part of the lands belonging to waq institution and plaintiffs are
entitled to relief claimed in suit ?
(5) Do the respective defendants prove that they are lawfully in
possession of the lands allotted to them ?
(6) Whether Waqf Suit No. 23 of 2004 is barred by limitation ?
19. Point No. (1) :
Plaintiffs have instituted the suits for the relief of
possession and perpetual injunction in the capacity of mutawali
by inheritance and as the persons interested in the waqfs. They
are Muslims. They are descendants of original muntaqab holder
Mazar Ali Shah. Plaintiff No. 2 Naser Ali has applied for
virasat after death of his father. His claim is pending before the
competent authorities. In that view of the matter I find that
they have locus to institute the suits.
20. The claim of the plaintiffs based upon lastly issued
muntaqab document and mutawaliship is disputed by the
defendants. Muntaqab Tamil Nishani No. 24583 was issued in
the name of Amir Ali Shah for rendering services to Dargah
Hazrat Burhan Ali Shah in the year 1301 Fasli (1841 AD). After
his death, virasat was issued in the name of Wahed Ali, followed
by Maheboob Ali and Akbar Ali. The competent authority,
15 cra 135.13
District Collector issued the virasat to Akbar Ali on or before
19.01.1950. Thereafter there is no document to show that
virasat has been issued to either of the plaintiffs by tangible
order.
21. Plaintiffs have not produced on record any documents to
show that any muntaqab was issued in their name or any virasat
is issued in their name by the orders of the competent authority.
The plaintiff No. 2 applied for succession on 24.04.2000 after
death of his father on 04.04.1984. The defendant waqf - board is
empowered to appoint mutawali U/Sec. 32(2)(g) of the Waqf Act,
1995. No such proceeding has been undertaken by either of the
plaintiffs. The waqf board also could have appointed mutawali
suo motu, but no endeavour has been made. Therefore, I am of
the considered view that none of the plaintiffs are mutawalies
de-jure. The findings recorded by the Tribunal in the impugned
judgment of Waqf Suit No. 23 of 2004 is unfounded.
22. Plaintiffs are prosecuting the suit in the capacity of the
persons having interest in the waqf by implication of definition
U/Sec. 3(i) of the Waqf Act. They are looking after the properties
of the waqf. There is no difficulty in treating them de-facto
mutawalies subject to decision of their claim before the
competent authority in this regard. They cannot be non suited
on this count. I, therefore, answer point No. (1) partly in their
favour holding that they have locus to file the suit, but they are
not lawfully declared mutawalies of Dargah Hazrat Burhan Ali
16 cra 135.13
Shah.
23. Point No. (2) :
Muntaqab No. 24583, which is the latest document
pertains to Dargah Hazrat Burhan Ali Shah issued in favour of
Amir Ali Shah. Thereafter virasats are issued in the name of
ancestors of the applicants - plaintiffs. Plaintiffs have placed
heavy reliance on notification and the list in the Government
Gazette of 02.05.1974 to bolster that suit lands are the properties
of the registered waqf. A careful perusal of entry No. 18 discloses
the name of the waqf as Dargah Burhan Shah Wali area 55 x 50
square feet referring the Muntaqab No. 24583 of 1301 Fasli. In
column No. 8 name of mutawali is stated to be late Amir Ali
Shah S/o Mazar Ali Shah. In column No. 10 land Sy. No. 636
admeasuring 20 Acres and 12 Guntha and 637 admeasuring 02
Acres 19 Guntha are mentioned. Interestingly in column No. 19
it is stated that Dargah is situated in Sy. No. 435. Firstly it does
not refer to Dargah Hazrat Burhan Ali Shah. Secondly it shows
that Dargah is situated in land Sy. No. 435. Thirdly land Sy. No.
435 cannot be said to be the property of waqf. It is not the case of
the plaintiffs in any of the suits that Dargah Burhan Shah Wali
and Dargah Hazrat Burhan Ali Shah are one and the same and
its properties are land Sy. Nos. 636 and 637. Gazetted entry No.
18 does not refer either Eidgah or Kabrastan. This document is
incompatible with the plaintiffs claim.
24. Plaintiffs have not produced on record gazetted entry of
17 cra 135.13
Dargah Hazrat Burhan Ali Shah. Inam patrak of form No. IX
pertains to Dargah Hazrat Burhan Ali Shah referring to
muntaqab issued to Maheboob Ali Shah. It further refers to Sy.
No. 636 and 637. It refers to issuance of virasat in the name of
Maheboob Ali Shah. This document of 1956 is silent regarding
Eidgah and Kabrastan. The revenue record of hakka nondani
patrak also shows the suit lands of Dargah Hazrat Burhan Ali
Shah. The lands are shown to be inam lands. The information
supplied to the plaintiffs under the R. T. I. only refers to Burhan
Ali Shah Dargah. The spot inspection conducted by the
competent authority also refers to Dargah Hazrat Burhan Ali
Shah. The defendant - board which supports the claim of the
plaintiffs also does not come forward to show that Dargah Hazrat
Burhan Ali Shah is registered as a waqf. I am of the considered
view that what is registered as waqf is Dargah Burhan Shah
Wali and not Dargah Hazrat Burhan Ali Shah.
25. A registration certificate dated 30.03.2010 discloses that
Dargah Burhan Shah Wali was registered U/Sec. 36 of the Waqf
Act with the defendant - Waqf Board bearing registration No.
MSBW/PBN/37 of 2009. Its an independent entity having the
suit lands and Dargah only, which is corroborated by the order
passed U/Sec. 36(3) of the Waqf Act by the Chief Officer of the
Board. Its annexure refers that land Sy. No. 636 admeasuring
8H 21R and Sy. No. 637 admeasuring 0H 99R are the properties.
Plaintiffs did not produce any order of the Waqf Officer passed
U/Sec. 36(3) of the Waqf Act and its annexures in respect of
18 cra 135.13
Dargah Hazrat Burhan Ali Shah.
26. Plaintiffs have claimed in Waqf Suit No. 33 of 2010 filed for
perpetual injunction against Mohammad Abdul Gaffar and
others that Dargah, Kabrastan and Eidgah are the properties of
Dargah Hazrat Burhan Ali Shah. The Tribunal vide judgment
dated 29.12.2011 decreed the suit which was confirmed in
revision by the High Court. The extract of the Government
Gazette dated 02.05.1974 showing entry No. 122 is produced at
Exhibit R - 5 in Civil Revision Application No. 20 of 2013.
Kabrastan and Eidgah occupying 380 x 150 feet at Parbhani is
registered waqf. Muslim panch managing committee is
mentioned in column No. 8 as persons looking after the property.
It is held by the Tribunal in that judgment that Dargah and
Kabrastan are situated in land Sy. No. 636. If that is so gazetted
entries must reflect Eidgah and Kabrastan as the properties.
27. The registration certificate dated 22.01.2010 issued by the
defendant board shows Kabrastan and Eidgah at Parbhani is
registered as waqf U/Sec. 36 of the Waqf Act bearing No.
MSBW/PBN/28/2010 which is corroborated by order passed by
the officer and the annexure. Kabrastan and Eidgah cannot be
said to be properties of Dargah Hazrat Burhan Ali Shah, but
they have independent existence. This aspect of the matter has
not been brought to the notice of the Tribunal in Waqf Suit No.
33 of 2010. Plaintiffs and the waqf board are unable to explain
the anomaly as to whether Kabrastan and Eidgah are the
19 cra 135.13
properties of either registered Dargah Burhan Shah Wali or
unregistered Dargah Hazrat Burhan Ali Shah.
28. It is not out of context to mention that the defendant -
board is an independent statutory body, which is armed with
adequate powers and the functions to safeguard the interest of
the waqf institution. It is empowered to determine as to whether
a particular property is a waqf property or not or an institution is
waqf or not. No endeavour has been made by the defendant -
board either to identify the properties involved in the litigation
or to recognize the institutions involved in the litigation. In such
a situation the board has committed grave dereliction of its
duties.
29. Plaintiffs did not take any steps against entries at Sr. No.
18 or 122 of Gazette dated 02.05.1974. They claimed to be the
persons having interest in the waqf. Then they also could have
filed application U/Sec. 6 of the Waqf Act for the rectification of
the entries so as to correct the name of the waqf as well as to
incorporate the properties. In the absence of any such exercise,
merely contending that both the institutions are same is not
sufficient. I can not approve the findings recorded by the
Tribunal in this regard. I find that the plaintiffs have failed to
make out a case that land Sy. Nos. 636 and 637 are the waqf
properties of Dargah Hazrat Burhan Ali Shah.
20 cra 135.13
30. Point No. (3) :
Learned senior counsel Mr. V. D. Sapkal strongly opposed
the submissions of learned advocate Mr. Arvind Deshmukh that
Dargah Hazrat Burhan Ali Shah and Dargah Burhan Shah Wali
are separate institutions and out of them only Dargah Burhan
Shah Wali is registered as a waqf under the Gazette. It is tried
to be impressed that the submissions are without pleadings and
cannot be considered for the first time in the High Court. I have
gone through written statement of the defendant - Nutan
Education Society filed in Waqf Suit No. 69 of 2011. It has taken
very specific stand in para Nos. 2 and 3 contending that the waqf
institution claimed by the plaintiffs has not been registered and
the suit lands are not properties of the waqf. It is further
contended that suit is not maintainable in view of Sec. 87 of the
Waqf Act. Considering the stand, the issues have been framed in
all the suits as to whether land Sy. Nos. 636 and 637 are waqf
properties. It cannot be said that the objection raised by the
defendant in respect of existence of more than one institutions
would surprise the plaintiffs. The submissions of the defendants
that Dargah Burhan Shah Wali is only registered waqf and it is
distinct need to be entertained.
31. Learned senior counsel adverted my attention to the
findings recorded by the Coordinate Bench in judgment dated
09.12.2015 in Civil Revision Application No. 99 of 2012. In that
case the judgment dated 29.12.2011 passed in Waqf Suit No. 33
of 2010 and order passed in Waqf Application No. 37 of 2010 are
21 cra 135.13
challenged. Present defendants were not the parties. Only
defendant - waqf board was the party in those proceedings.
Waqf Suit No. 33 of 2010 was filed by present plaintiffs for
perpetual injunction. Present facts in issue as to whether land
Sy. Nos. 636 and 637 are waqf properties or not and as to
whether those are the properties of registered waqf Dargah
Burhan Shah Wali were not germane. The registration of
Eidgah and Kabrastan of which Sy. No. 636 was a property is
under consideration. Therefore, the decision rendered by
coordinate bench would not bind the defendants. It cannot be
said that the documents which are pressed into service in the
present matters were also before the High Court.
32. I have carefully gone through the judgment dated 09 th
December, 2015 passed by the Coordinate Bench. It is
vehemently contended by the learned senior counsel that in view
of the observations recorded therein the discrepancies of the
name of the waqf stands obliterated. The relevant extracts are
produced as follows :
"11. For getting the relief of injunction which the plaintiffs
wanted particularly as against defendant Nos.1 to 13, it was
necessary for the plaintiffs to show that they have better title. This
Court has gone through the record which consists of Muntaqab
statement of the year 1301 Fasli (1891 A.D.). It shows that in that
year one Amir Ali Shah S/o Mazhar Ali Shah was shown as
Muntaqab holder of the Dargah of Parbhani. Name of the Dargah
was, however, not mentioned in the statement. The remaining
record of the inquiry conducted at the relevant time, however,
shows that inquiry was conducted in respect of Wahed Ali Shah
Dargah. It appears that there is some mistake in the name of Dargah
22 cra 135.13
mentioned in that statement recorded during the inquiry. The name
of the Muntaqab holder was Wahid Ali Shah S/o Hasan Ali Shah
and Mir Ali had claimed succession. Then, there is record to show
that even in the Atiyat Inquiry in the year 1944 the names of
plaintiffs were entered as successors of aforesaid Muntaqab holder.
The learned counsel for the Petitioners of Revision No.99 of 2012
submitted that this record is prepared by Tahsil office and so this
record can be of no use as the officer of the rank of Deputy
Collector can make inquiry under Atiyat Inquiry Act. Learned
counsel for the plaintiffs submitted that at the relevant time Atiyat
Act was not in existence and so the revenue authority was making
inquiry. Even if this record of succession is ignored, it can be said
that there is record to show that plaintiffs are successors of the
original Inamdar to whom the land was given for rendering services
to Dargah. When there is record of 1974 showing that Dargah
Burhan Shah Wali was the owner of Survey No.636 and 637, it
appears that the structure of this Dargah was shown on Survey
No.435 when there is one more Dargah shown in the same list in
survey No.435. Admittedly, there is one structure of Dargah on
Survey No.636. Both plaintiffs and defendants Nos.1 to 13 are not
disputing that these two structure belong to Dargah Burhan Shah
Wali. In view of this circumstance, the discrepancy can be ignored
safely. In the list of Wakf properties published in the year 1974
graveyard and Idgah were shown at serial No.122 and one Muslim
managing committee was shown to be managing this property.
Against this entry, there is no mention of particular survey number
and there is note that the land around Dargah was in possession of
Municipality. The Tribunal has rightly held that the defendant Nos.
1 to 13 cannot claim to be successors of the aforesaid managing
committee if at all such managing committee was there in respect of
Idgah. There is no record whatsoever with defendant Nos.1 to 13 to
show that such managing committee was in existence and due to its
registration and constitution they are entitled to claim as managing
committee of Idgah and graveyard."
33. It has been expressly recorded that no relief of declaration
was solicited in those proceedings and the inquiry pertains to
injunction only. It is cursorily observed that there is some
23 cra 135.13
mistake in the name of Dargah. No reasons are assigned as to
whether there was one or more religious institutions having
statutory existence. The decision is not having any binding
effect. I am unable to concur with the submissions of the
plaintiffs that the coordinate bench has settled the controversy in
that matter. It cannot be countenanced that due to the decision
of the coordinate bench the registration of either Dargah Burhan
Shah Wali or Kabrastan or Eidgah stand cancelled. I find that
Dargah Hazrat Burhan Ali Shah, Dargah Bruhan Shah Wali and
Kabrastan and Eidgah are three distinct religious institutions
having independent entities. The defendants have made out a
case and this point needs to be answered in their favour.
34. Point No. (6) :
Limitation
Learned senior counsel Mr. Sapkal has adverted my
attention to the findings recorded on the issue Nos. 10 and 11 in
judgment of Waqf Suit No. 23 of 2005. The plea of adverse
possession is negatived by the Tribunal. It is rightly contended
by the learned senior counsel that the ingredients of plea of
adverse possession have not been satisfied. The defendant -
Municipal Council cannot be said to be the owner of the suit
land. Learned senior counsel Mr. Sapkal adverts my attention
to the judgment of the Supreme Court in the matter of T.
Anjanappa and others Vs. Somlingappa reported in (2006) 7 SCC 573. The
concept of adverse possession has been explained by the Apex
Court in para No. 12 and onwards. The finding recorded to issue
24 cra 135.13
No. 10 is right and needs no interference.
35. The finding that the suit is barred by limitation is
unsustainable. The limitation is governed by Article 65 of the
Limitation Act. The publication of the notification in Gazette on
02.05.1974 cannot be said to be the starting point of twelve years
limitation. It is not disclosed as to when the possession of the
respective defendants became adverse to the plaintiffs. The
period of limitation would reckon from the date when possession
becomes adverse. The findings in this regard are unsustainable.
I answer this point in favour of the plaintiffs.
36. Point Nos. (4) and (5)
Parties have rival claims to protect the possession. On
both sides numerous documents are filed on record. Those
documents show that respective defendants are in possession of
parcels of Sy. No. 636 since many years. Interestingly it is not a
possession of individual but that of educational institutions, M.
S. E. B., gymnasium, hospital, municipal council, etc. They have
tangible material to show as to how they are inducted in the
allotted premises. Having answered point Nos. 1 to 3 against the
plaintiffs, it is not necessary to examine as to whether the
defendants have encroached upon the suit lands or they are
lawfully inducted in it. Unless it is proved by the plaintiffs that
suit lands are the properties of registered waqf and they are
mutawalies, their right to sue is under clout. The defendants are
in possession since decades and they have carried out multiple
25 cra 135.13
constructions and developmental activities in the allotted
portion. They cannot be evicted without following due procedure
of law.
37. The upshot of the above discussion is that there exists two
registered waqf namely Dargah Burhan Shah Wali and
Kabrastan and Eidgah. The location of Dargah, Eidgah and
Kabrastan is unclear. Dargah Hazrat Burhan Ali Shah and
Dargah Burhan Shah Wali are distinct religious institutions.
There is uncertainty as to whether the suit lands belong to
Durgah Hazrat Burhan Ali Shah. The encroached portion of the
respective defendants has not been identified.
38. When the matter was before the Tribunal in none of the
suits recourse of Order XXVI Rule 9 of the Code of Civil
Procedure (for the sake of brevity and convenience hereinafter
referred as to the "C. P. C.") was taken. The maps are referred in
the impugned judgment, but those are not being prepared by the
competent authorities for the purposes of the identification of the
properties involved. Couple of them are borrowed from previous
proceedings. Those do not depict current picture. Role of the
defendant - board is dicey.
39. Before passing any drastic orders of possession, it is
necessary to identify the suit properties, exact area of
encroachment and the status of the religious institutions. This
Court cannot be oblivious of the fact that there are permanent
26 cra 135.13
constructions made by the defendants and the huge stakes are
involved. There would be repercussions on public exchequer. In
the absence of any objective scrutiny, it is wholly unjustifiable to
pass decree of eviction. I find that threadbare objective scrutiny
is required by remanding the suits to the Tribunal.
40. Learned advocate Mr. Deshmukh has relied upon the
judgment of the Apex Court in S. V. Cheriyakoya Thangal Vs.
S. V. P. Pookoya and others in Civil Appeal No. 4629 of
2024 dt. 02.04.2024 to buttress that the board is the competent
authority to determine as to who would be mutawali. I am
fortified in observing that in the case at hand the defendant
board failed to discharge the statutory functions. Further
reliance is placed on the judgment in Bhudev Mallick @ Bhudeb
Mallick and another Vs. Ranajit Ghoshal and others reported in 2025 SCC
OnLine SC 360. I have gone through para Nos. 53 to 58, which lays
down the contours of error of jurisdiction. In the present case
tribunal committed error of jurisdiction and failed to exercise the
jurisdiction in identifying the encroached portion and
entitlement of the plaintiffs.
41. Learned A. G. P Mr. Jahagirdar has relied upon the
judgment of the Apex Court in the matter of Anathula Sudhakar Vs. P.
Buchi Reddy (Dead) by L.Rs. and others reported in (2008) 4 SCC 594 and
various other judgments on the merits of the matter. As this
Court proposes to remand the matters to the tribunal it would be
open to the parties to cite the judgments before the Tribunal. It
27 cra 135.13
is not necessary to consider these judgments at this stage.
42. Hence I pass following order.
ORDER
(A) All civil revision applications are allowed partly.
(B) Impugned judgment and decree passed by the Tribunal in Waqf Suit No. 69 of 2011, Waqf Suit No. 24 of 2004, Waqf Suit No. 23 of 2004, Waqf Suit No. 43 of 2004, Waqf Suit No.25 of 2004 and Waqf Suit No. 22 of 2004 are quashed and set aside and suits are remanded to the Waqf Tribunal.
(C) Waqf Tribunal shall decide above referred suits afresh and on their own merits after extending an opportunity of hearing and adducing of evidence.
(D) Suits shall be decide as expeditiously as possible and in any case not more than 18 (eighteen) months from the date of appearance of the parties.
(E) Parties shall appear before the Waqf Tribunal, Aurangabad on 20.04.2026.
(F) The respondents - defendants shall cooperate for expeditious disposal of the suits and any lapses on their 28 cra 135.13 part shall invite action U/O XXXIX Rule 11 of the C. P. C. (High Court Amendment).
(G) There shall be no order as to costs.
[ SHAILESH P. BRAHME J. ] bsb/April 26