Delhi District Court
Mr.Mohd.Ahsan vs Delhi Wakf Board on 6 March, 2012
IN THE COURT OF MS.NIVEDITA ANIL SHARMA,
ADDITIONAL DISTRICT JUDGE-02, WAKF TRIBUNAL,
NEW DELHI DISTRICT, PATIALA HOUSE COURTS,
NEW DELHI
Suit ML Number : 06/09.
Unique Case ID Number : 02403C0057472000.
1. Mr.Mohd.Ahsan
2. Mr.Mohd.Irfan
Both sons of late Mr.Haji Mohd.Suleman,
Both residents of 711, Chandni Mahal, Jama Masjid,Delhi.
.................................................................................................Petitioners.
Versus
1. Delhi Wakf Board,
Through its Chairman
Daryaganj, New Delhi.
2. Majidia Trust,
Through its Trustee Mr.M.H.Naqvi,
3031, Qaziwara, Daryaganj, New Delhi.
..............................................................................................Respondents.
Date of institution : 22.12.2000.
Date of conclusion of arguments : 06.03.2012.
Date of judgment : 06.03.2012.
Appearances : Both the petitioners in person with counsel,
Mr.M.P.S.Kasana.
Mr.G.M.Farooqui, counsel for both the respondents.
JUDGMENT
1. This is the oldest case in this Court having been filed on 22.12.2000 and it is saddening to note that the case has traversed over more than a decade to reach a decision and an endeavor has been made by the undersigned to dispose it expeditiously.
Suit ML Number : 06/09.
Unique Case ID Number : 02403C0057472000.
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2. Mr.Mohd.Ahsan and Mr.Mohd.Irfan, both the petitioners, (hereinafter refrred to as the petitioners) have filed this petition under Section 83 of The Wakf Act, 1995 (hereinafter referred to as the Act) against the Delhi Wakf Board and Majidia Trust, both the respondents, (hereinafter referred to as respondent number 1 and respondent number 2 respectively) praying that a decree of declaration in favour of the petitioners and against the respondent may be passed thereby declaring that the impugned order passed by the C.E.O. under Section 54 of the Wakf Act, 1995 null and void in the eyes of law and the same may kindly be set aside/quashed. It is also prayed that a decree of permanent injunction may be passed in favour of the petitioners and against the respondents, thereby restraining the respondent, their agents, employees, servants or any other person or persons acting on its behalf and further S.D.M. concerned to whom the orders under Section 83 of the Delhi Wakf Act have been sent, not to enforce the order passed by the C.E.O. under section 54 of the Wakf Act,1995 and the dispossession of the petitioners may kindly be stayed in compliance of the said order and further to stay the operation of the impugned order.
3. Initially, the case had been filed only against respondent number 1 and subsequently, respondent number was also impleaded as a respondent vide order dated 26.02.2001 of the learned predecessor of this Tribunal.
PETITION
4. In the petition, both the petitioners have averred that property bearing number 711, ward number X measuring 218 square yards situated in Gali Chandni Mahal, Darya Ganj is an ancestral property which was originally owned by Mr. Abdul Mazid, who was the absolute owner of the property.
Suit ML Number : 06/09.
Unique Case ID Number : 02403C0057472000.
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During his life time Mr. Abdul Mazid executed a will dated 24.06.1998 whereby he bequeathed the property in favour of Mr.Mohd. Suleman, the father of the petitioners. Mr. Abdul Mazid expired on 13.11.1992 and thereafter Mr. Mohd. Suleman became the owner of the property and also got the mutation of the property done in his favour on 18.02.1994 vide mutation letter bearing number TAX/CZ/93/7035 dated 18.02.1994. On 20.02.1996, Mr. Mohd Suleman executed two sale deeds in favour of his two sons i.e the two petitioners which was duly registered with Sub Registrar and w.e.f. 20.02.1996 both the petitioners became the owners of the property. They also got the mutation of the property done in their favour vide mutation letter bearing number TAX/CZ- MC/MR No.104/2171 dated 19.07.1996. The respondents have no concern with the suit property. Mr. Shamsuddin and Mr. Wasi were tenants in respect of different portions in the property and the petitioners served notice upon them to pay the rent but they failed to pay due to which the petitioners were compelled to file application for seeking permission for instituting an eviction proceeding against them and the application are pending before the Competent Authority Slums, Tis Hazari. Mr. Shamsuddin changed his name to Mr. Sayed Shamsul Hassa and he along with one Mr. Mujtaba Hussain Naqvi and Mr.Gaji Ullah illegally and unlawfully prepared some forged and fabricated will and applied with respondent number 1 for registration of the same showing themselves to be the Trustee of the property. They had also filed a suit for declaration and injunction which had been withdrawn subsequently. The tenants in collusion with the officials of respondent number 1 got issued to the petitioners a notice dated 18.02.2000 on which the petitioners appeared before the CEO but the CEO again issued a letter dated 24.06.2000 to them asking them to produce the original documents. The tenants in order to grab the property fabricated a Trust Deed and on 17.05.2000 the petitioners sent a notice to the CEO of respondent Suit ML Number : 06/09.
Unique Case ID Number : 02403C0057472000.
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number 1 to withdraw the notice dated 17.02.2000 and to cancel and revoke any type of trust. The petitioners made various complaints to various dignitaries and important persons about the mal-functioning of the Board but no inquiry was conducted. On 18.02.2000 an order purporting to be under Section 54 of the Act was issued. The petitioners were constrained to file a writ petition bearing number 796/2000 in the hon'ble Delhi High Court which is pending. The petitioners, by way of the present petition, have prayed for a decree of declaration in favour of the petitioners and against the respondent may be passed thereby declaring that the impugned order passed by the C.E.O. under Section 54 of the Wakf Act, 1995 null and void in the eyes of law and the same may kindly be set aside/quashed. It is also prayed that a decree of permanent injunction may be passed in favour of the petitioners and against the respondents, thereby restraining the respondent, their agents, employees, servants or any other person or persons acting on its behalf and further S.D.M. concerned to whom the orders under Section 83 of the Delhi Wakf Act have been sent, not to enforce the order passed by the C.E.O. under section 54 of the Wakf Act,1995 and the dispossession of the petitioners may kindly be stayed in compliance of the said order and further to stay the operation of the impugned order.
SERVICE
5. Summons of the case were served upon both the respondents pursuant thereto both the respondents appeared and filed their respective written statements contesting the case wherein they have controverted and rebutted all the averments made in the petition.
WRITTEN STATEMENT OF RESPONDENT NUMBER 1 Suit ML Number : 06/09.
Unique Case ID Number : 02403C0057472000.
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6. In its written statement, respondent number 1, has averred that the property in question is a wakf property created on 02.12.1996 as per Wasyat Nama dated 08.12.1991 of Wakif Mr.Abdul Majeed Allahwaley during his lifetime under Section 25 of the Act in Volume & page 131 under Registration number 132 in the record of the Delhi Wakf Board. The nominated Muttawallis are in full control and managing the affairs of the Wakf property of Majidia Trust, 711, Chandini Mahal, Delhi except a portion thereof which is in the unauthorized occupation of the petitioners. Proper procedure was followed and then the notice under Section 54 of the Act was issued. The petitioners had filed a civil suit of declaration against the respondent in June, 2000 in the Court of Ms.Bimla Kumari, Civil Judge, Delhi which was dismissed as withdrawn on 18.10.2000. They had also filed suit number 5/2000 on 20.10.2000 against the respondent in this Wakf Tribunal which was dismissed as withdrawn on 21,12.2000. The petitioners had also filed a petition number 796/2000 on 13.12.2000 against the SDM and Delhi Wakf Board for seeking stay of SDM's order dated 08.12.2000 in the Hon'ble Delhi High Court which was dismissed as withdrawn on 12.01.2001. The present petition is not maintainable as the mandatory notice under Section 89 of the Act was not served upon respondent number 1. The property in question is a Wakf property by registered wakf deed vide document number 24669 in addl.book number III Vol.number 1807 on page 26 to 28 dated 11.06.19993. The petitioners are unauthorized occupants/encroachers in the property. Prayer for the dismissal of the petition is made.
WRITTEN STATEMENT OF RESPONDENT NUMBER 2
7. In its written statement, respondent number 2 has averred that petitioners have no locus standi to file the present petition. It is admitted that the Suit ML Number : 06/09.
Unique Case ID Number : 02403C0057472000.
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property in question was owned by Mr.Adul Majeed alias Allah Wala. The petitioners have fabricated and forged the so called will of Mr.Adul Majeed alias Allah Wala as well the sale deeds. The alleged will was executed on 24.06.1998 while the passport of deceased Mr.Adul Majeed alias Allah Wala indicates that he left India on 07.06.1998 to Pakistan and returned on 04.08.1989 and he was not in India on the date of alleged execution of the will.
The passport number of Mr.Haji Mohd.Suleman is different from the sale deed of petitioner number 1. The petitioners had filed a civil suit of declaration against the respondent in June, 2000 in the Court of Ms.Bimla Kumari, Civil Judge, Delhi which was dismissed as withdrawn on 18.10.2000. They had also filed suit number 5/2000 on 20.10.2000 against the respondent in this Wakf Tribunal which was dismissed as withdrawn on 21,12.2000. The petitioners had also filed a petition number 796/2000 on 13.12.2000 against the SDM and Delhi Wakf Board for seeking stay of SDM's order dated 08.12.2000 in the Hon'ble Delhi High Court which was dismissed as withdrawn on 12.01.2001. Mr.Adul Majeed alias Allah Wala had infact executed a will dated 08.12.1991 and had bequeathed all the properties owned by him with direction in the will to creat a Trust in the name of Majidia Trust and the names of the Trustees were also disclosed in the will. As per direction and wishes of the Wakif, the Trust was created and as per the rules and regulations of the Wakf Act, the same was registered with the office of Delhi Wakf Board vide registration certificate number 132 dated 02.01.1996. Thereafter, the registration of the properties of the Wakf as Wakf properties the publication was made in Urdu daily paper, New Delhi and meetings were commenced with local residents as well as tenants of the Wakf for intimating about the will and Trust. A legal notice was issued on 07.07.1996 to Mr.Haji Mohd.Suleman (the father of both the petitioners) to vacate the premises in his possession bearing number 711, Chandini Mahal, Suit ML Number : 06/09.
Unique Case ID Number : 02403C0057472000.
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Delhi. Respondent number 2 had filed a suit for declaration and injunction against the petitioners but as the new Wakf Act was enforced, the suit became infructuous and was dismissed as withdrawn. Permission had been granted to respondent number 2 to take legal action as per the Wakf Act and as a result an application was moved under Section 54 of the Act with respondent number 1 and the same was handed over to SDM, Daryaganj for execution. The alleged will dated 24.06.1988 and both the sale deeds are sub-judice under enquiry before the Enquiry Officer, Police Station Chandini Mahal vide letter number 18 dated 16.01.2001 of ACP, Daryaganj. The petitioners have not challenged the will dated 08.12.1991. The present petition is not maintainable as the mandatory notice under Section 89 of the Act was not served upon respondent number 1. The property in question is a Wakf property by registered wakf deed vide document number 24669 in addl.book number III Vol.number 1807 on page 26 to 28 dated 11.06.19993. The petitioners are unauthorized occupants/encroachers in the property. Prayer for the dismissal of the petition is made.
REJOINDER
8. Petitioners filed rejoinder to the written statement of respondent numbers 1 and 2 reiterating and reasserting the averments made in the petition.
APPLICATIONS
9. Vide order dated 09.03.2001 of the learned predecessor, the application of the petitioners under Section 151 CPC for stay of the operation of the impugned eviction order under Section 54 of the Act was allowed subject to the petitioners completing their evidence in maximum four opportunities.
Suit ML Number : 06/09.
Unique Case ID Number : 02403C0057472000.
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10. Vide order dated 27.03.2001 of the learned predecessor, the petitioners were permitted to sign on the verification in the rejoinder as the same was unsigned when it had been filed.
11. Vide order dated 24.08.2001 of the learned predecessor, the application of the respondent number 2 under Order 7 Rule 11 CPC had been dismissed.
12. Vide order dated 24.08.2004 of the learned predecessor, the application of the petitioners under Order 12 Rule 6 CPC was dismissed as withdrawn.
13. Vide order dated 14.02.2007 of the learned predecessor, as Mr.M.H.Naqvi, the President of respondent number 2 had expired, Mr.Sheikh Mubashir Hussain was allowed to represent respondent number 2.
ISSUES
14. Vide order dated 14.09.2001 of learned predecessor, the following issues were framed:
(1) Whether the plaintiffs are owner of property No.711, Chandni Mahal, Delhi, as alleged? OPP.
(2) Whether the order of C.E.O. under Section 54 of the Wakf Act 1995 is null and void, as alleged? OPP.
(3) Whether suit is not properly valued for the purpose of Court fee and jurisdiction, as alleged? If so, to what effect? OPD-1. (4) Whether the suit is not maintainable, as alleged preliminary objections No.3 & 4 in the written statement of Defendant No.2? OPD-2.
(5) Whether the plaintiffs are not entitled for any kind of equitable relief, as alleged in preliminary objection No.5 in W.S. of defendant No.2? OPD-2.
Suit ML Number : 06/09.
Unique Case ID Number : 02403C0057472000.
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(6) Relief. EVIDENCE OF THE PETITIONERS
15. In order to prove their case, the petitioners have examined as many as 7 witnesses.
16. PW1, Mr.A.Rehman, Section Officer, Sub Registrar Office, Kashmere Gate, Delhi was partly examined and as his evidence was never concluded nor he was put to cross examination, therefore his evidence cannot be taken into consideration. He proved the original will dated 11.06.1993 as Ex.PW1/1. He proved the sale deed dated 20.02.1996 as Ex.PW1/2 and deposed that it was registered with them at serial number 2073 in additional book no.1,volume number 7147, pages 6 to 11 registered on 20.02.1996 and was accompanied by site plan.
17. PW2 is Mr.Mohd.Ameen. He tendered his affidavit in his examination-in-chief as Ex.PW2/A. He has supported the petitioners version.
18. PW3 is Mr.Mohd.Ahsan who tendered his affidavit in his examination-in-chief as Ex.PW3/A. He placed on record the certified copy of the sale deed in favour of him and his brother as Ex.PW1/2. He proved the certified copy of the site plan annexed with the sale deed as Ex.PW3/1. He deposed that in paragraph 3 of the affidavit, reference has been made to mutation letter dated 18.02.1994 in favour of his father and same is Ex.PW3/2(however the mutation letter dated 18.02.1994 is not on the record) and the document which has been referred as Ex.PW3/3 in the affidavit is also not on the record. The house tax receipts Ex.PW3/4 to Ex.PW3/6 are also not on the record. The photocopy of the notice dated 18.02.2000 which was issued Suit ML Number : 06/09.
Unique Case ID Number : 02403C0057472000.
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by DWB is Ex.PW3/7 and the carbon copy of the reply dated 14.03.2000 bearing the original stamp is also not on the record. Photocopy of reply is mark A.
19. PW4 Mr.Swadeshi Ram, Record Clerk, MCD, Citi Zone, Minto Road, Delhi brought the mutation file pertaining to property bearing number 711,Chandni Mahal, Daryaganj,Ward Number 10. He deposed that on this file, there was office copy of a mutation letter dated 19.07.1996 regarding mutation of the above mentioned property in the name of Mohd.Ehsaam and Mohd.Irfan and copy of the said letter is Ex.PW4/A.
20. PW5 is Mr.Mohd.Irfan who tendered his affidavit Ex.PW5/A in his examination-in-chief. He proved photocopy of original mutation letter dated 18.02.1994 as Ex.PW5/1 and carbon copy of notice dated 17.05.2000 as Ex.PW5/2. He deposed that it was sent by registered AD post and acknowledgment receipt is E.PW5/3.
21. PW6 is Mr.Mohd.Rafiq who deposed that Mr.Abdul Majid who was residing in property bearing number 711,Chandani Mahal executed a will Ex.PW1/1 in favour of his cousin Mr.Suleman on 24.06.1988 in his presence. PW6 put his thumb impression on the said will as an attesting witness at point X.
22. PW7 is Mr.Jai Narayan, UDC, Office of Sub Registrar I, Kashmiri Gate,Delhi who proved the original will dated 11.06.1993 Ex.PW1/1, sale deed dated 20.02.1996 as Ex.PW1/2 and the sale deed Ex.PW7/A purported to have been executed by Haji Mohd.Suleman on 20.02.1996 also registered on Suit ML Number : 06/09.
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20.02.1996 at registration number 2054, Additional Book Number 1, Volume Number 7146, pages 123 to 128. He deposed that the sale deed was registered alongwith its site plan.
EVIDENCE OF THE RESPONDENTS
23. Defendants have examined Mr.M.H.Naqvi as DW1 who tendered his affidavit Ex.DW1/A in his examination-in-chief. He proved the certified copy of the will obtained from the court of Mr.Manoj Jain as Ex.DW1/1. He brought the original certificate of registration issued by Delhi Wakf Board and photocopy of the same is Ex.DW1/2, the carbon copy of notice issued by Wakf Majjidia Trust to the father of the plaintiff as Ex.DW1/3, newspaper Awam dated 31.01.1997 as Ex.DW1/4, the photocopy of passport in the name of Mr.Abdul Majid as Ex.PW3/DA, the copy of letter dated 05.07.200 addressed by Mr.Mohd.Ehsan to the Prime Minister of India as Ex.DW1/6(earlier exhibited as Ex.PW3/DA), the certified copies of the orders passed by the courts as Ex.DW1/7 , DW1/8,DW1/9 and DW1/10, the birth certificates as Ex.DW1/11 and Ex.DW1/12.
24. DW2 is Mr.G.D. Mehmi,Tehsildaar, Kotwali. He deposed that the will dated 08.12.1991, certified copy of which is Ex.DW1/A was presented for registration in the office of Sub-Registrar I, Kashmiri Gate on 23.11.1995.
25. RW3 is Mr.Amir Ahmad who tendered his affidavit in his examination in chief as Ex.X.He deposed that one photocopy of document which is given Ex.RW3/1 in his affidavit is marked X. Suit ML Number : 06/09.
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26. DW4 is Mr.Abdul Razzaq who tendered his affidavit in his examination in chief as Ex.Y. He relied upon the wakfnama/will Ex.DW1/1, the survey report dated 15.04.1996 as Ex.DW4/2. DW4 deposed that the certificate of registration as Ex.DW4/5 was an original one which was filled up by Mr.Akhlaq-Ur-Rehman, in his hand writing, who has signed the same, copy of inspection application is Ex.DW4/7.
ARGUMENTS
27. I have heard the learned counsel for both the sides at great length and have given my conscious thought and prolonged consideration to the material on record, relevant provisions of law and the precedents on the point. I have also carefully perused the written arguments and submissions filed by both the sides.
28. From the material on record and the arguments addressed and filed, my findings on the issues are as follows:
ISSUE NUMBERS 1, 2 AND 5
29. As issues numbers 1, 2 and 5 are inter-related and inter-connected, the same are being considered and decided together.
30. Issue number 1 is........Whether the plaintiffs are owner of property No.711, Chandni Mahal, Delhi, as alleged? OPP.
31. Issue number 2 is..........Whether the order of C.E.O. under Section 54 of the Wakf Act 1995 is null and void, as alleged? OPP.
Suit ML Number : 06/09.
Unique Case ID Number : 02403C0057472000.
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32. Issue number 5 is................. Whether the plaintiffs are not entitled for any kind of equitable relief, as alleged in preliminary objection No.5 in W.S. of defendant No.2? OPD-2.
33. The preliminary objection number 5 in written statement of respondent number 2 is that vide will dated 08.12.1991 of Mr.Abdul Majid a Trust by the name of Majidia Trust was created and registered in the office of Respondent number 1 vide registration certificate number 132 dated 02.01.1996 as wakf property; publication was made in Urdu daily paper New Delhi; meetings were held; legal notice was issued on 07.07.1996 to Mr.Haji Mohd.Suleman to vacate the premises; the petitioners did not challenge the will in any Court which draws the presumption that the will is genuine; and there is no cause of action in favour of the petitioners.
WILL DATED 24.06.1988
34. The landmark judgment relating to will and the manner in which the same is to be proved and the manner in which the attestation to the will is to be proved have been given by the hon'ble Supreme Court of India in the judgment reported as H.Venkatachala Iyengar v. B.N.Thimmaajamma and others, AIR 1959 SC 443 and it may also be aptly called the Bible of wills. Some of the very relevant paragraphs of the judgment are 18, 19, 20, 21, 22 and 31 which are being reproduced hereinafter for ready reference.
18. What is the true legal position in the matter of proof wills? It is well known that the proof of wills presents a recurring topic for decision in Courts and there are a large number of judicial pronouncements on the subject. The party propounding a will or otherwise making claim under a will is no doubt seeking to prove a document and, in deciding how it is to be proved, we must inevitably refer to the statutory provisions which govern the proof of documents. Section 67 and 68, Evidence Act are relevant for this purpose. Under Suit ML Number : 06/09.
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Section 67, if a document is alleged to be signed by any person, the signature of the said person must be proved to be to be in his handwriting, and for proving such a handwriting under Ss. 45 and 47 of the Act the opinions of experts and of persons acquainted with the handwriting of the person concerned are made relevant. Section 68 deals with the proof of the execution of the document required by law to be attested; and it provides that such a document shall not be used as evidence until one attesting witness at least has been called for the purpose of proving its execution. These provisions prescribe the requirements and the nature of proof which must be satisfied by the party who relies on a document in a Court of law. Similarly, Ss.59 and 63 of the Indian Succession Act are also relevant Section 59 provides that every person of sound mind, not being a minor, may dispose of his property by will and the three illustrations to this section indicate what is meant by the expression "a person of sound mind" in the context.
Section 63 requires that the testator shall sign or affix his mark to the will or it shall be signed by some other person in his presence and by his direction and that the signature or mark shall be so made that it shall appear that it was intended thereby to give effect to the writing as a will. This section also requires that the will shall be attested by two or more witnesses as prescribed. Thus the question as to whether the will set up by the propounder is proved to be the last will of the testator has to be decided in the light of these provisions. Has the testator signed the will ? Did he understand the nature and effect of the dispositions in the will ? Did he put his signature to the will knowing what it contained ? Stated broadly it is the decision of these questions which determines the nature of the finding on the question of the proof of wills. It would prima facie be true to say that the will has to be proved like any other document except as to the special requirements of attestation prescribed by S. 63 of the Indian Succession Act. As in the case of proof of other documents so in the case of proof of wills it would be idle to expect proof with mathematical certainty. The test to be applied would be the usual test of the satisfaction of the prudent mind in such matters.
19. However, there is one important feature which distinguishes wills from other documents. Unlike other documents the will speaks from the death of the testator, and so, when it is propounded or produced before a Court, the testator who has already departed the world can not say whether it is his will or not; and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last will and Suit ML Number : 06/09.
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testament of the departed testator. Even so, in dealing with the proof of wills the Court will start on the same enquiry as in the case of the proof of documents. The propounder would be called upon to show by satisfactory evidence that the will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document of his own free will. Ordinarily when the evidence adduced in support of the will is disinterested, satisfactory and sufficient to prove the sound and disposing state of the testator's mind and his signature as required by law, Courts would be justified in making a finding in favour of the propounder. In other words, the onus on the propounder can be taken to be discharged on proof of the essential facts just indicated.
20. There may, however, be cases in which the execution of the will may be surrounded by suspicious circumstances. The alleged signature of the testator may be very shaky and doubtful and evidence in support of the propounder's case that the signature in question is the signature of the testator may not remove the doubt created by the appearance of the signature; the condition of the testator's mind may appear to be very feeble and debilitated; and evidence adduced may not succeed in removing the legitimate doubt as to the mental capacity of the testator; the dispositions made in the will may appear to be unnatural, improbable or unfair in the light of relevant circumstances; or , the will may otherwise indicate that the said dispositions may not be the result of the testator's free will and mind. In such cases the Court would naturally expect that all legitimate suspicions should be completely removed before the document is accepted as the last will of the testator. The presence of such suspicious circumstances naturally tends to make the initial onus very heavy; and, unless it is satisfactory discharged, Courts would be reluctant to treat the document as the last will of the testator. It is true that , if a caveat is filed alleging the exercise of undue influence, fraud or coercion in respect of the execution of the will propounded, such pleas may have to be proved by the caveators; but, even without such pleas circumstances may raise a doubt as to whether the testator was acting of his own free will in executing the will, and in such circumstances, it would be a part of the initial onus to remove any such legitimate doubts in the matter,
21. Apart from the suspicious circumstances to which we have just referred in some cases the wills propounded disclose another Suit ML Number : 06/09.
Unique Case ID Number : 02403C0057472000.
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infirmity. Propounders themselves take a prominent part in the execution of the wills which confer on them substantial benefits. If it is shown that the propounder has taken a prominent part in the execution of the will and has received substantial benefit under it, that itself is generally treated as a suspicious circumstance attending the execution of the will and the propounder is required to remove the said suspicion by clear and satisfactory evidence. It is in connection with wills that present such suspicious circumstances that decisions of English Courts often mentioned the test of the satisfaction of judicial conscience. It may be that the reference to judicial conscience in this connection is a heritage from similar observations made by ecclesiastical Courts in England when they exercised jurisdiction with reference to wills; but any objection to the use of the word 'conscience' in this context would in our opinion, be purely technical and academic, if no pedantic. The test merely emphasizes that, in determining the question as to whether an instrument produced before the Courts is the last will of the testator, the Court is deciding a solemn question and it must be fully satisfied that it had been validly executed by the testator who is no longer alive.
22. It is obvious that for deciding material questions of fact which arise in applications for probate or in actions on will, no hard and fast or inflexible rules can be laid down for the appreciation of the evidence. It may, however, be stated generally that a pro-pounder of the will as to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the propounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence. It is hardly necessary to add that the result of the application of these two general and board principles would always depend upon the facts and circumstances of each case and on the nature and quality of the evidence adduced by the parties. It is quite true that, as observed by Lord Due Parcq in Harmes v. Hinkson, 50 Cal W N 895 : (AIR 1946 P C 156) " where a will is charged with suspicion, the rules enjoin a reasonable scepticism, not an obdurate persistence in disbelief. They do not demand from the Judge, even in circumstances of grave suspicions, a resolute and impenetrable incredulity. He is never required to close his mind to the truth." It would sound platitudinous to say so, but it is nevertheless true that in discovering truth even in such cases the judicial mind must always be open though vigilent, cautious and circumspect.
Suit ML Number : 06/09.
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31. In Sarat Kumari Bibi v. Sakhi Chand, 56 Ind App 62 : (AIR 1929 P C 45), the Privy Council made it clear that " the principle which requires the propounder to remove suspicions from the mind of the Court is not confined only to cases where the propounder takes part in the execution of the will and receives benefit under it. There may be other suspicious circumstances attending on the execution of the will and even in such cases it is the duty of the propounder to remove all clouds and satisfy the conscience of the Court that the instrument propounded is the last will of the testator." This view is supported by the observations made by Lindley and Davey L. JJ. In Tyrrell v. Painton, 1894 P. 151 at pp. 157, 159. "The rule in 1838-2 Moo P C 480(supra) ;
1875-7 H L 448 and Brown v. Fisher, 1890-63 L T 465", said Lindley L. J., "is not in my mind confined to the single case in which the will is prepared by or on the instructions of the person taking large benefits under it but extends to all cases in which circumstances exist which excite the suspicions of the Court."
35. The above referred judgment has been followed in a catena of subsequent judgments including Gurdial Kaur and others v. Kartar Kaur and others, AIR 1998 SC 2861 and Nagulapati Lakshmamma v. Mupparaju Subbaiah, AIR 1998 SC 2904.
36. The present case in hand is now being considered keeping the law, as enunciated in the above referred judgments.
37. The will of Mr.Abdul Majid relied upon the petitioners is dated 24.06.1988 and registered on 11.06.1993 (Ex.PW1/1) and the will relied upon the respondents is dated 08.12.1991 (Ex.DW1/1) and it is also registered.
38. It is also apparent especially the evidence of PW6, Mr.Mohd.Rafiq, who is claimed by the petitioners to be an attesting witness to the will dated 24.06.1988, that PW6 has deposed that Mr.Abdul Majid who was residing in property bearing number 711,Chandani Mahal executed a will Ex.PW1/1 in Suit ML Number : 06/09.
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favour of his cousin Mr.Suleman on 24.06.1988 in his presence. He is related to the petitioners and not Mr.Abdul Majid.
39. Further, PW6 has put his thumb impression on the said will as an attesting witness at point X but he has admitted that he puts signatures in Urdu language. In such a situation, PW6 was required to explain why instead of signatures, he had allegedly put thumb impression but he has failed to do so.
40. Also, it is interesting to note that the attesting witness in the will is one Mr.Rafi while the person produced before the Court as PW6, and allegedly attesting witness of the will, is Mr.Mohd.Rafiq. He has also admitted that he is not known as Rafi. Further, he has also mentioned the names of the other attesting witnesses wrongly which he has corrected subsequently on a subsequent date when his cross examination was concluded due to which the possibility of his being tutored cannot be ruled out.
41. It also cannot be ignored that the witness of the petitioners, PW6, has admitted the passport of Mr.Abdul Majid (although the petitioners have disputed it) and the same shows that on 24.06.1988, Mr.Abdul Majid was not even in India as he was in Pakistan. If he was in Pakistan on the said date then how the will dated 24.06.1988 could be executed in Delhi on that day is not explained by the petitioners. The document Ex.PW3/DA, copy of the passport of Mr.Abdul Majid, shows that he left India for Pakistan on 07.06.1988 and returned on 04.08.1989. It is needless to mention here that a passport is a public document and judicial note of the same can also be taken. The petitioners have also not produced any witness from the concerned Government office to controvert the copy of the passport relied upon by the respondents.
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42. The will dated 24.06.1988 has Mr.Rafi, Mr.Mohd.Miyan and Mr.Najimuddin as the attesting witnesses but the petitioners have failed to produce and examine Mr.Mohd.Miyan and Mr.Najimuddin and therefore, as no attesting witness has been examined by the petitioners, the will dated 24.06.1988 remains unproved.
43. There is no explanation furnished by the petitioners for not getting the will dated 24.06.1988 registered during the life time of late Mr.Abdul Majid and it was got registered on 11.06.1993 after his demise on 13.11.1992. This fact throws a suspicion of doubt about the genuineness of the will dated 24.06.1988.
44. Also, it is an admitted position especially in the evidence of the petitioners that Mr.Abdul Majid has a daughter who is married and is living in Pakistan. This daughter has neither been produced in the Court nor examined by the petitioners. In such a situation, the Muslim Law that no Muslim can give more than one-third of his property to any one without the express consent of his relations / heirs comes into operation. In the will of 24.06.1988, the entire property of Mr.Abdul Majid is bequeathed in favour of Mr.Mohd.Suleman which indicates that it is not a valid will. Reliance can also be placed upon the judgment of the Kerala High Court reported as Mohammed Haneefa v. Salim, 2011 (4) CCC 51 (Ker.) wherein it has been observed that such a bequest would be valid only is all the other heirs give their consent, after the death of the testator. If no such consent is given, the bequest to the extent of the excess of the legal one-third is invalid.
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45. All these facts cast a shadow of doubt on the story of execution of will by Mr.Abdul Majid on 24.06.1988 in favour of Mr.Mohd. Suleman and the petitioners have miserably failed to remove the doubt. A pro-pounder of the will as to prove the due and valid execution of the will and that if there are any suspicious circumstances surrounding the execution of the will the pro-pounder must remove the said suspicions from the mind of the Court by cogent and satisfactory evidence.
46. Therefore, it appears that the will of Mr.Abdul Majid allegedly executed on 24.06.1988 in favour of Mr.Mohd. Suleman in respect of the suit property does not appear to be genuine.
47. Lastly, even if for the sake of argument it is assumed that the will of Mr.Abdul Majid allegedly executed on 24.06.1988 in favour of Mr.Mohd.
Suleman in respect of the suit property is genuine, then also it cannot be relied upon as during his life time, Mr.Abdul Majid executed a subsequent will dated 08.12.1991 thereby superceeding the earlier will.
48. Therefore, no reliance can be placed upon the will of Mr.Abdul Majid allegedly executed on 24.06.1988 in favour of Mr.Mohd. Suleman in respect of the suit property.
TITLE OF THE PETITIONERS
49. The petitioners are claiming themselves to be the owners of the suit property by virtue of the will dated 24.06.1988 executed by Mr.Abdul Majid in favour of their father Mr.Mohd.Suleman (Ex.P1/1) and the two sale deeds Suit ML Number : 06/09.
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executed by Mr.Mohd. Suleman in their favour (Ex.PW1/2 and Ex.PW7/A) as well as the mutation of the suit property in their favour.
50. As already discussed above, it has already been observed that the will dated 24.06.1988 executed by Mr.Abdul Majid in favour of Mr.Mohd.Suleman (Ex.P1/1) is not valid and genuine.
51. It is the settled preposition of law that no one can pass off a better title to another. When Mr.Mohd. Suleman did not become the owner of the suit property, he was not competent to sell it to the petitioners who are his sons and they have got not better title than him as Mr.Mohd.Suleman did not have any right, title or interest in the same which he could transfer in the favour of the petitioners.
52. An interesting fact also is revealed here that when Mr.Abdul Majid, an unrelated person, allegedly bequeathed his property in favour of Mr.Mohd.Suleman then where was the requirement of Mr.Mohd. Suleman also not to bequeath it to the petitioners who are his sons and he sold the suit property to them. This fact has also not been addressed to by the petitioners.
53. The petitioners may have got the property mutated in their favour but it cannot be ignored that the mutation does not show that title at all and is only for the purpose of house tax and other levies.
54. Also, the sale deeds in favour of the petitioners mention a different passport number of Mr.Mohd. Suleman while the date of issuance is the same. It cannot be said to be a typographical error as the numbers are entirely different.
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This fact also indicates that the possibility of fabrication of the documents by the petitioners, for the purpose of usurping a wakf property, is strong as no one can have more than one passport.
55. Therefore, it appears that the petitioners are not the owners of the property.
WHETHER THE SUIT PROPERTY IS A WAKF
56. The claim of the respondents is that the suit property is a wakf property while the petitioners are claiming to be the owners of the same.
57. The term 'Wakf" denotes detention and signified the detention of the property in the ownership of God, the total extinction of the ownership of the wakif or the founder and appropriation of the usufruct for objects recognised by Islamic Law as pious, religious or charitable. As pointed out by Their Lordship of the Judicial Committee of the Privy Council in Vidya Varuthi Thirtha Swamigal v. Balusamy Iyer, Wakf constitutes the "tying up of property in the ownership of God, the Almighty and the devotion of the profits for the benefit of human beings". The law is built on a few Quranic verses and mostly on the percepts and practices of the Holy Prophet.
58. It would be pertinent here to refer to some provisions of the Act so as to understand the meaning of wakf and regarding adjudication of cases involving a wakf.
59. Section 3 (r) of the Act defines a Wakf as follows:
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"Wakf" means the permanent dedication by a person professing Islam, of any movable or immovable property for any purpose recognized by the Muslim laws pious, religious or charitable and includes-
ia wakf by user but such wakf shall not cease to be a wakf by reason only of the user having ceased irrespective of the period of such cesser;
ii"grants", including mashrut-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and iiia wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, and "wakif" means any person making such dedication;"
60. Section 3 (s) of the Act defines a Wakf Deed as follows:
"wakf deed" means any deed or instrument by which a wakf has been created and includes any valid subsequent deed or instrument by which any of the terms of the original dedication have been varied;"
61. Section 6 of the Act only relates to the cases where there is a question to be determined whether a property specified as a Wakf property in the list of Wakfs is a Wakf property or not or whether a wakf specified in such list is a shia wakf or a sunni wakf. The list of wakf referred to in this section is a list which is prepared on the basis of a survey by Survey Commissioner of Wakf appointed under Section 4 of the Act which is published thereafter by the Board after it is forwarded by the Board to the Government under Section 5 of the Act. It may also be noted that such disputes cannot be entertained by a Tribunal after the expiry of one year from the date of publication of the list of Wakfs. Such disputes can be raised only by three categories of persons:-
(i) The Board ;
(ii) The Mutawali of the Wakf; and
(iii) any person interested in the Wakf.
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62. Section 54 of the Act elucidates the manner of removal of an encroacher from wakf property and it reads as follows:
Removal of encroachment from wakf property. (1) Whenever the Chief Executive Officer considers whether on receiving any complaint or on his own motion that there has been an encroachment on any land, building space or other property which is wakf property and, which has been registered as such under this Act, he shall cause to be served upon the encroacher a notice specifying the particulars of the encroachment and calling upon him to show cause before a date to be specified in such notice, as to why an order requiring him to remove the encroachment before the date so specified should not be made and shall also send a copy of such notice to the concerned mutawalli.
(2) The notice referred to in sub-section(1) shall be served in such manner as may be prescribed.
(3) If, after considering the objections, received during the period specified in the notice, and after conducting an inquiry in such manner as may be prescribed , the Chief Executive Officer is satisfied that the property in question is wakf property and that there has been an encroachment on any such wakf property, he may, by an order, require the encroacher to remove such encroachment and deliver possession of the land, building, space or other property encroached upon to the mutawalli of the wakf.
(4) Nothing contained in sub-section (3) shall prevent any person aggrieved by the order made by the Chief Executive Officer under that sub-section from instituting a suit in a Tribunal to establish that he has right, title or interest in the land, building, space or other property:
Provided that no such suit shall be instituted by a person who has been let into possession of the land, building, space or other property as a lessee, licensee or mortgagee by the mutawalli of the wakf or by any other person authorised by him in this behalf.
63. Section 83 of the Act provides about the Constitution of Tribunals, etc. and it reads as follows:
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Constitution of Tribunals, etc.(1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute , question or other matter relating to a wakf or wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals.
(2)Any mutawalli, person interested in a wakf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunals for the determination of any dispute, question or other matter relating to the wakf.
(3)...........
64. These provisions deal with removal of encroachments of wakf property. The Chief Executive Officer acting suo motu or on any complaint of encroachment of wakf property registered as such under this Act, shall issue notice to the encroacher with a copy to the mutawalli and after considering the objection, if any, and after holding an enquiry pass an order, if he is satisfied of the encroachment, calling upon the encroacher to remove the encroachment and deliver possession of the encroached portion to the mutawalli. Sub-section (4) gives the aggrieved person the right to institute a suit before the Tribunal and establish his right, title and interest in the encroached portion. The proviso to sub-section (4) denies such a right of suit to a person who has been let into possession of the property as a lessee or a licensee or mortagagee by the mutawalli or any other person authorised by him in this behalf.
65. The expression "encroachment" means an unlawful gaining upon the right or possession of another person, a gradual entering on and taking possession by one of what is not his own; the gaining upon the rights or possession of another (Ramanatha Iyer's Law Lexicon).
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66. The Wakf Act, 1995 is a complete Code in itself. A Tribunal can entertain the petitions / suits only those which are envisaged in the Act. It also is settled now after the judgment of Hon'ble Supreme Court in the case of Ramesh Gobindram v. Sugra Humayun Mirza Wakf, AIR 2010 SC 2897 that even in respect of the matters which may have some connection with a Wakf, the jurisdiction of the Civil courts is not completely ousted. Instead in the said judgment there was reference made to the judgment of Hon'ble Supreme Court in the case of Rajasthan S.R.T.C. v. Bal Mukhand Biarwa, (2) (2009) 4 SCC 299 wherein it was observed "there is a presumption that a civil court has the jurisdiction. Ousted of the civil court jurisdiction is not to be readily inferred. A person taking the plea contra must establish the same. Even in a case where the jurisdiction of a civil court is sought to be barred under the statute, the civil court can exercise its jurisdiction in respect of some matters particularly, when the statutory authority or Tribunal acts without jurisdiction". Thus, there exits a presumption that in every civil matter the civil court has the jurisdiction unless it has been specifically excluded. In other words, the special statutes created need to be construed strictly so as not to readily infer that the jurisdiction of the civil court is ousted to deal with the subject matter of civil nature.
67. In order to satisfy myself whether the present petition can be entertained under Section 83 (2) of the Act, I have examined this provision as well. There are three categories of persons who can file under this provision an application before the Tribunal for the determination of any dispute question or other matter relating to the Wakf and they are:
(i) any Mutawali;
(ii) person interested in Wakf;
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(iii) any other person aggrieved by the order made under the Act or rules framed thereunder.
68. In the judgment of the hon'ble Supreme Court reported as Abdul Rais v. Madhya Pradesh Wakf Board, 2005(1) SCC 741, the hon'ble Supreme Court was dealing with the matter where an application was filed before the Tribunal seeking a declaration that the suit property specified in the official gazette (Wakf List) dated 13.09.1985 was not a Wakf property but it belongs to the appellant's (applicants). The said application was rejected by the Board, inter-alia, on the ground that it was time barred for section 6 of the provides that a challenge could be made in respect of the Wakf listed / notified within a period of one year of the enactment. The Tribunal had held the application to be within time. There was revision filed against the said order wherein it was held that the limitation to file a suit for declaration as to whether a particular is a Wakf property or not is one year begins from the date of the publication of the list of the Wakf properties. The reference in this respect was made to Section 6 of the Act. The Hon'ble Supreme Court had interpreted the word "therein" used in the phrase "the Board or the Mutawali of the Wakf or any person interested therein" in Section 6 of the Act. The Hon'ble Supreme Court had made reference to its earlier judgment in the case Board of Muslim Wakfs Rajasthan Vs. Radha Krishnan & Ors., 1979 (2) SCC 468 wherein the word "therein" in the expression "any person interested therein" was interpreted to mean any person interested in the Wakf. It is difficult to understand as to how the said judgment would help the petitioners to establish that this Tribunal has the jurisdiction to entertain the present petition. As one may notice it is the mismanagement of the Wakf which is in question in this case and not the Wakf property as such.
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69. Turning to the case in hand, keeping in mind the legal provisions and the definition of wakf, it can be said that the property in question is a wakf property.
70. In the will executed by Mr.Abdul Majid, relied upon by the respondents, which is dated 08.12.1991, there is no individual beneficiary and a wakf of a school for poor girls was created. A Trust by the name of Majidia Trust was created and registered in the office of Respondent number 1 vide registration certificate number 132 dated 02.01.1996 as wakf property and publication was made in Urdu daily paper New Delhi. It is also certain that as per the Shariyat Law and Customs, a wakf deed is not required to be registered with the office of the Sub-Registrar and is to be registered with the office of the State Wakf Board. In the present case, as per the evidence of the respondents' witnesses, the same has been so done. A survey was also conducted in which the petitioners were found in unauthorized possession of the suit property as encroachers and tresspassers. They were given a fair hearing before the impugned eviction order was passed.
71. The contention of the petitioners that they have been residing in the suit property for decades does not appear to be correct as they have not been able to produce even a single document or an iota of evidence to show their presence in the same. Their presence, as disclosed in the survey report, does not show in any manner that they are living there in a legal and valid capacity but only shows their presence.
72. PW1 has admitted that his father along with his family was residing at 676, Chandini Mahal. The petitioners have electoral card, ration card, Suit ML Number : 06/09.
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passport also of the same address. They have never resided at the suit property and do not have any documentary evidence to the same effect. This fact also indicates that the petitioners are encroachers in the suit property.
73. It is also admitted during the evidence by the petitioners and their witnesses, especially PW6, that they are facing trial in a criminal case of forgery and fabrication of false documents pertaining to alleged will of Mr.Abdul Majid dated 24.06.1988 and the matter is still sub-judice.
74. Vide letter Ex.PW3/DA, the petitioners had written to the hon'ble Prime Minister of India that the property in question is a wakf property.
75. DW4 has deposed that a wakfnama / will was received in the office of respondent number 1 vide which the properties of Mr.Abdul Majid were bequeathed in the name of the Lord All Mighty, Allah, and had been registered as a wakf property and the certificate of registration is Ex.DW4/5. A survey was also conduced and the petitioners were granted opportunity before the Board to contest the proceedings in which their counsel had also inspected the records. The property in question is a Wakf property by registered wakf deed vide document number 24669 in addl.book number III Vol.number 1807 on page 26 to 28 dated 11.06.19993.
76. The petitioners have claimed that the proceedings before the CEO of the respondent number 1 were unfair, illegal or erroneous but have failed to show the same on the record. It is clear from the evidence of the DWs that a fair and legal procedure was followed by the CEO and due opportunities and Suit ML Number : 06/09.
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hearings were given to the petitioners to contest the proceedings and produce proper documents of ownership but they could not do so.
77. A wakf can be created by user and/or deed. In the present matter there is will of Mr.Abdul Majid executed on 08.12.1991 whereby a wakf has been created by a deed. Not only is it a will of a Muslim as per the Shariyat Law but it is also a registered document and it has also not been challenged by the petitioners in any Court of law nor they have been able to show before this Tribunal that it is a sham or fabricated document.
78. The fact that there is no Gazette notification in respect of the suit property that it is a wakf is immaterial as it is clear from the evidence of the DWs that once the will dated 08.12.1991 of Mr.Abdul Majid was brought to the notice of respondent number 1, the process for declaring it as a wakf was immediately initiated as a publication of the will dated 08.12.1991 was made in Awam, the Urdu daily newspaper (Ex.DW1/4) and meetings were held with the local residents and no one came forward to raise any objection to the same. The wakf deed dated 08.12.1991 or the certification of registration of wakf properties mentioned in the wakf deed have not been challenged in any manner by the petitioners yet for which the limitation has already been expired much earlier and for this reason the same can be presumed to have been admitted as correct and genuine by the petitioners.
79. Also, it is a factual situation that the petitioners have failed to serve the mandatory notice under Section 89 of the Act before filing of the present case and on this ground also the suit is not maintainable.
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80. The petitioners had challenged the eviction order in earlier litigations which were dismissed as withdrawn vide orders Ex.DW1/7 to Ex.DW1/10 and subsequently, the petitioners filed the present suit before the Wakf Tribunal without getting liberty from the previous Courts. In such a situation, the present case would not maintainable as the petitioners have failed to obtain the liberty to file to suit under consideration.
81. The respondents have placed reliance upon the will dated 08.12.1991 (Ex.DW1/1), survey report (Ex. DW4/2), certificate of registration (Ex.DW4/5). The survey report mentions that "the property was surveyed for the purpose of publishing and gazette notification" which indicates that process of publishing the gazette notification with regard to the suit property was initiated. In the meanwhile the spate of litigation was commenced by the petitioners and the process of publishing the Gazette notification was stalled.
82. The fact that the will dated 08.12.1991 on the basis of which the respondents are claiming their rights in the suit property surfaced much later has been suitably explained by DW1, Mr.M.H.Naqvi when he has deposed that "We were informed of the Will by Mr. Ansari in 1996......The Will dated 08.12.1991 came to my knowledge in the year 1996. The residents of the mohalla informed about the Will. I think Mr. Abdul Majid had kept the Will with is legal advisor Mr. S.D.Ansari. Mr. S.D.Ansari had written letters to all the three trustees inviting them to collect the Will from him." It is immaterial that Mr.Ansari was not produced as a witness as he is not an attesting witness of the will and therefore his non-examination is not fatal to the stand of the respondents.
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83. Further, PW2, Mr.Mohd Ameen, who is an attesting witness to will dated 08.12.1991 has also denied that he has not signed the same and that it has not been executed by late Mr.Abdul Majid. It is apparent that he is hostile to the version of the respondents but his evidence does show that his admitted signatures and thumb impressions with the disputed signatures and thumb impressions were never got sent by the petitioners to the hand writing or forensic expert for the purpose of examination to ascertain the genuineness and this fact gives a lethal blow to the story of the petitioners.
84. The fact that no survey report of the Survey Commissioner was sent to the petitioners is irrelevant as the same is not required to be sent to the encroachers or trespassers. Even the petitioners, at no point of time, asked for a certified copy of the same which indicates that they admit the same.
85. The petitioners have claimed that the alleged Majidia Trust is not in existence and was never formed. However, it is clear from the evidence of the respondents especially DW1 that it was formed and was functioning also.
NOMENCLATURE
86. The respondents have claimed that the suit in the present form is not maintainable as the petitioners have approached the Tribunal under Section 83 of the Act while they were required to use Section 54 of the Act.
87. I am of the considered opinion that the nomenclature is immaterial and irrelevant and the only essential requirement is that all the requisite details are mentioned in the body of the petition.
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88. In the present case, it is crystal clear that the petitioners are challenging the eviction order passed by the C.E.O. under Section 54 of the Wakf Act, 1995.
89. Therefore, it is seen that this is a suit for declaration for declaring the impugned eviction order and for permanent injunction for restraining the implementation of the impugned eviction order. The nomenclature is completely immaterial.
90. In view of the foregoing discussion, issues numbers 1, 2 and 5 are decided against the petitioners and in favour of the respondents.
ISSUE NUMBER 3
91. Issue number 3 is........... Whether suit is not properly valued for the purpose of Court fee and jurisdiction, as alleged? If so, to what effect? OPD-1.
92. Both the sides have failed to lead any evidence regarding this issue. It is clear that the petitioners are challenging the eviction order of the CEO in respect of the suit property and the suit for the said purpose is properly valued.
93. Therefore, as the respondent number 1 has failed to substantiate its claim that the suit is not properly valued for the purpose of Court fee and jurisdiction, issue number 3 is decided in favour of the petitioners and against the respondents.
ISSUE NUMBER 4 Suit ML Number : 06/09.
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94. Issue number 4 is..............Whether the suit is not maintainable, as alleged preliminary objections No.3 & 4 in the written statement of Defendant No.2? OPD-2.
95. The preliminary objections numbers 3 and 4 in the written statement of respondent number 2 are that as the petitioners had earlier filed civil suits and writ petition which were subsequently withdrawn, the present case is not maintainable.
96. It is clear from the bare perusal of the petition that the petitioners had not disclosed about the earlier litigations (which they were so required to do) and no explanation is also coming forth from them regarding the omission. It was only when the written statements were filed that the petitioners admitted regarding the previous litigations and submitted that this Tribunal had the jurisdiction to try the present matter.
97. At this stage, it can be presumed that on being aggrieved by the eviction order and the proceedings conducted by the CEO of respondent number 1, the petitioners approached the Courts immediately on the basis of whatever legal advice, right or wrong, they may have received and subsequently when they became aware that this was the proper forum, they approached the same vide the present petition under consideration.
98. However, this fact does not absolve them of their duty and responsibility to disclose about all the previous litigations between the parties in respect to the suit property and the impugned order. It appears to be a deliberate omission on their part but still solely on this basis the case cannot be said to be Suit ML Number : 06/09.
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not maintainable. However, this fact also shows that the petitioners have not approached the Tribunal with clean hands and on this score alone, the case is liable to be dismissed.
99. In the circumstances, issue number 4 is decided against the petitioners and in favour of the respondents.
CONCLUSION AND RELIEF
100. Issue number 6 is the relief.
101. Although issue number 3 has been decided against the respondents and in favour of the petitioners, but as issues numbers 1, 2, 4 and 5 have been decided against the petitioners and in favour of the respondents, the conscience of this Tribunal is satisfied that the petitioners have failed to prove their case that the impugned order passed by the C.E.O. under Section 54 of the Wakf Act, 1995 is null and void in the eyes of law and is liable to be set aside/quashed. Consequently, the case of the petitioners is hereby dismissed.
102. As required under Section 84 of the Act, copy of the decision be furnished to both the sides.
103. After the completion of the formalities, the ahlmad shall consign the file to the record room.
Announced in the open Court (NIVEDITA ANIL SHARMA) on this 06th day of March, 2012. ADJ-02, Wakf Tribunal, New Delhi.
Suit ML Number : 06/09.
Unique Case ID Number : 02403C0057472000.
Mohd.Ahsan and another v. Delhi Wakf Board and another. -:: Page 35 of 35 ::-