Delhi District Court
The Mehrauli Muslim Welfare ... vs Mohd. Mannan Raza Khan on 1 May, 2013
IN THE COURT OF SH. SANDEEP YADAV, ADDITIIONAL
DISTRICT JUDGE SOUTH EAST, SAKET COURTS, NEW DELHI
MCA06/12
The Mehrauli Muslim Welfare Association
890C/8, Near Aulia Masjid
Mehrauli, New Delhi110030 ...... Appellant
versus
1. Mohd. Mannan Raza Khan
r/o H.No.707, Gali No.8,
Raza Manzil Opposite Raza Masjid,
Zakir Nagar, New Delhi 110025
and also at
34, Saudagran, Bareilly Sharief
Bareilly, UP
2. Delhi Wakf Board
through its Chairman/Executive Officer
Bachhon Ka Ghar, Darya Ganj,
New Delhi
3. Municipal Corporation of Delhi
Through its Commissioner,
Towan Hall,
Delhi ...... Respondents
ORDER
1. Challenge to this appeal is to the order dated 15.12.2010 passed by ld. Civil Judge02 (South) Saket rejecting the plaint u/o 7 rule 11 of CPC on the ground that suit is barred by section 85 of the Wakf Act. The appellant is a nongovernmental and nonpolitical MCA06/12 Page no. 1/7 social welfare organization which has been formed to protect the interest of the general public and Muslim society at large of the locality and to save the Muslim grave yard and other land meant and being used for the social welfare purpose and for other corelated purposes. The appellant society is functioning all over Delhi and more specifically in the area of Mehrauli. A very old and historical mosque by the name of Maszid Aulia is situated in khasra no.1153/3 Mehrauli New Delhi. Just adjacent to the said mosque a plot of land in the same khasra and having an area of 430 square yards (hereinafter referred to as suit property) is lying vacant since long. The said land is being used by the person of locality for different purposes such as socioreligious purposes including arrangement for staying Barat/marriage of the persons of the locality. All these different welfare activities are being carried out under the banner and auspices of appellant society The said plot of land is in the open land in the area. Respondent no.1 is an outsider and is running his activity at different places. He used to grab land illegally for his personal use and gain and has no concern with the publicsocial or religious purposes. Respondent no.2 is a Wakf organization and has various properties at different places at Delhi. Both respondent no.2 and 3 are laying their claim of ownership over the suit property. Respondent MCA06/12 Page no.2 /7 no.1 wants to grab the suit property and the official of respondent no. 2 are actively supporting the illegal act of respondent no.1. Respondent no.1 has started raising unauthorized construction over the suit property. Appellant has sent complaint to respondent no.3 and other authorities but no action has been taken by the concerned authorities on this complaint. The appellant thus prayed in the suit as under: PRAYER
1. That a Decree for permanent injunction, thereby restraining the defendant no.1 and 2 from raising/carrying on any construction activities in the plot of land being part of Khasra no.1151/3 and more specifically shown as red site plan attached with the plaint, be passed in favour of the plaintiff and against the defendant no.1.
2. Decree for Permanent injunction be passed in favour of the plaintiff and against the defendants not to interfere in the peaceful use of the property by the plaintiff for the welfare of the local persons.
3. Decree of Mandatory injunction be passed in favour of the plaintiff and against the defendants directing thereby to the defendant no.3 to remove the pillars raised by the defendant no.1 and also any further structure/construction of any kind raised over the property in suit before or after filing of the present suit.
4. Cost of the suit be also awarded in favour of the plaintiff and against the defendants.
2. Respondent no.1 in its written statement stated that suit MCA06/12 Page no. 3/7 property is owned by Delhi Wakf Board, Respondent no.2 and Respondent no.2 has let out the suit property Muslim Mission of India in terms of agreement dated 10.08.2005 through its President, who is respondent no.1 in the appeal. Respondent no.1 further stated that Muslim Mission of India has been authorized to raise superstructure on the suit property. Respondent no.1 alleged that President of the appellant society made various efforts to trespass on the suit property and a complaint has been made against him on 22.07.2005 to the Police Station Mehrauli. It is further contended that appellant has no locus standi to file the present suit as he is neither the owner nor in possession of the suit property.
3. Respondent no.2 Delhi Wakf Board in the written statement raised a legal objection that the suit is barred by section 89 of the Wakf Act, 1995. Respondent no.2 stated that this court has no jurisdiction to try and hear the present suit which is to be tried by Wakf Tribunal established under Section 83 of the Wakf Act, 1995.
4. After perusing the pleadings of the parties following preliminary issues were framed by the trial court: Issues
1. Whether the suit property bearing Khasra No.1151/3, Mehrauli, New Delhi measuring 430 sq. yard is a Wakf property ? OPD
2. Whether the suit is hit by the provision of Section 85 and 89 of the Wakf Act? OPD MCA06/12 Page no. 4/7
3. Whether the plaintiff has no locus standi to file the present suit? OPD
4. Relief.
5. The Trial court returned the finding that the suit property is a Wakf board and thus concluded that suit is hit by section 85 of the Wakf Act and accordingly rejected the plaint u/o 7 rule 11 (d) of the CPC. The trial court while passing the injunction order relied upon the official Gazzette No.F12(R.S.)/M/Q/318/9596 published on 14.05.98 with respect to Muslim Graveyard, Village Mehrauli, Khasra No.1151/3. The ld. Civil Judge observed that suit property is a part of Khasra No.1151/3 and the appellant has not put on record any document to show that area of 430 square yards falling within khasra no.1151/3 is not covered by Official Delhi Gazette mentioned above. The ld.Civil Judge concluded that it is clear from the perusal of the official Delhi Gazatte that the suit property is a Wakf property and has been placed under the control and management of Delhi Wakf Board.
6. I have carefully perused the Trial court record including the Official Gazette Notification dated 14.05.1998. The said notification nowhere says that the said property is a Wakf property and has been placed under the control, management of Delhi Wakf Board. The question whether the suit property is a part of Wakf property on the basis of notification should have been decided after the trial. The MCA06/12 Page no. 5/7 said question should not have been decided merely on the basis of official gazette notification. It is for the plaintiff to prove that the suit property is a independent property and is not part of the Wakf property. For this plaintiff has to be given an opportunity to lead evidence.
7. It is trite that for deciding an application u/o 7 rule 11 of CPC only the averment of the plaint and documents filed therewith can be looked into. In a case titled M/s Texem Engineering vs. M/s Texcomash Export decided by Hon'ble High Court on 29.04.2011 it was held that, " There can be no gain saying that the application u/o 7 rule 11 of CPC for rejection of the plaint has to be decided entirely on a perusal of the plaint and the documents filed alongwith the plaint."
8. In view of the above discussion the appeal is allowed and impugned order dated 15.12.2010 is set aside. The trial court shall decide all the issues mentioned in the impugned order after trial. The trial court can also frame additional issues, if found necessary, considering the pleadings of the parties and shall decide the suit in accordance with law. Ld. counsel for the plaintiff during the course of argument raised a plea that suit is bound by section 91 of the CPC. Respondent no.1 can raise this plea before the trial court and trial MCA06/12 Page no. 6/7 court will decide the same in accordance with law.
9. Appeal file be consigned to record room. Trial court record alongwith copy of appeal be sent back to the trial court/successor court. The party shall appear before the Trial court/successor court on 30.05.2013.
Announced in the open court ( Sandeep Yadav )
on 01.05.2013 Addl. District Judge South East
Saket Courts, New Delhi
MCA06/12 Page no.7 /7
MCA06/12
Mehrauli Muslim Welfare Association vs. Mannan Raza Khan 01.05.2013 Pr. Mr.S. Islam, Counsel for appellant Mr. Kamal Chaudhary, counsel for respondent no.1 Vide separate order the appeal is disposed off. Appeal file be consigned to record room. Trial court record alongwith copy of appeal be sent back to the trial court/successor court. The party shall appear before the Trial court/successor court on 30.05.2013.
( Sandeep Yadav ) Addl. District Judge South East Saket Courts, New Delhi/09.05.2013