Karnataka High Court
Md.Abrar Khan S/O Md.Arif Khan vs The State on 5 January, 2012
Author: N.Kumar
Bench: N.Kumar
IN THE HIGH COURT OF KARNATAKA CIRCUIT BENCH
AT GULBARGA
Dated this the 5th day of January, 2012
BEFORE
THE HON'BLE MR.JUSTICE N.KUMAR
CRPNo. 2045 0F2010
BETWEEN:
Md.Abrar Khan,
Sb Md.Arif Khan,
Aged About 17 Years,
By Natural Father Md.Arif Khan,
Sb Md.Bashir Khan,
Aged 50 Years,
0cc: Business,
R/o Golakhana,
Bidar. . . . Petitioner
(By Sri.Ameet Kumar Deshpande. Advocate)
AND:
1. The State
Through The Deputy Commissioner,
Bidar.
2. The Administrator,
Karnataka State Board of Wakf,
Derul Awakaf, No.6,
Cunningham Road,
Bangalore 560 052.
-
3. The Chairman,
District Wakf Advisory Committee,
Bidar.
4. The Commissioner/Secretary to
Wakf, M.S.Building,
Bangalore.
Respondents
(By Sri P.S.MalipatiL Advocate for R2 & R3
Ri and R4 are Sd)
This CRP is filed under Section 115 of CPC, praying to set
aside the order dated 13.01.2010 in O.S.No. 6/2005 by the
Karnataka Wakf Tribunal, Gulbarga Division, Gulbarga and
pass any other appropriate order, in the interest of justice and
equity.
This CRP coming on for disposal this day, the Court made
the following:
JUDGMENT
The plaintiff has preferred this petition against the judgment and decree of the Karnataka Wakf Tribunal, Gulbarga. which has dismissed the suit of the plaintiff for declaration and other consequential reliefs.
32. For the purpose of convenience, the parties are referred to as they are referred to in the original proceedings.
3. The case of the plaintiff is that he purchased a vacant piece of land measuring East to West 55' and North to South 49'-6" within the boundaries mentioned in the plaint, for short, hereinafter referred to as the 'schedule property'. He purchased the schedule property from its previous owner Abdul Aziz Khan, S/o Abdul Rahman Khan under a registered sale deed dated 15.07.1998. His vendor has purchased the said property from one Dr. Abbas Hussain, S/o Mulla Fida Mi under a registered sale deed dated 19.10.1963. Dr. Abbas Hussain had inherited the said property from his ancestor Md.
Shamsheer Mi who in turn has purchased the property from one Gulam Hussain Siddiqui under the registered sale deed bearing document No.1330/1920 dt. 16Ardibashest 1332 Fasli. It is not a grave yard or Darga at any point of time.
44. The entry bearing No.652 in the official Gazette published on 09.03.1972 is an erroneous entry and not concern to suit open space belonging to the plaintiff. The plaintiff issued a legal notice under Section 89 of the Karnataka Wakf Act 1995 to the defendant before filing the present suit.
The plaintiffs case is that the schedule property which is an open space belongs to him and earlier, it belonged to the plaintiffs vendor.
Plaintiffs predecessors are in possession from the days immemorial. The enquiry conducted at the time of incorporating the entry in official Gazette is not known to the plaintiff or to its vendors at any point of time . No enquiry is conducted in presence of plaintiffs or its vendors.
So the claim of the defendants over the open space belongin g to the plaintiff is unsustainable and the entry in the official Gazette is not binding on the right and interest of the plaintiff.
5. On the instigation of some of the unsocial elem ents of the society for their own personal gain, unau thorisedly and illegally filing mischievous complaints befo re the defendant's 5 office and the defendant's office without any due enquiry started obstructing the peaceful possession of the plaintiff over the suit open space. The plaintiff and its vendors have filed a suit in O.S.No.75/96 and an order of temporary injunction again st the miscreants who allege themselves as mutavallies was passed.
The said order is still in force. The appeal preferred by the other side is dismissed.
6. The third defendant is insisting the other defendants for taking action against the plaintiff unauthori sedly and illegally under the guise that the property is a wakf property, which is erroneous. Therefore the plaintiff has this suit for declaration of his title, perpetual injunction and for removal of the entry in the official Gazette.
7. After service of summons, defendants-2 and 3 entered appearance and filed their written statement.
They have denied the case of the plaintiff in its entirety. The said property is Wakf property duly notified under the prov isions of 6 at S.No,652 under notification the Wakf Act 03.1973 total measuring 56 x No.MYW/244/ESR/72 dated 09.
n ty attached to Wakf Institutio 60 and this is a Wakf proper open plot Golekhana Bidar. called Grave yard mazar and whom the plaintiff claims title Gulam Hussain Siddiqui from perty. All the documents are has no title over the schedule pro grab the Wakf property. The concocted one and are created to official Gazette published on Entry bearing No.652 in the neither the plaintiff nor any 09.03.1973 has become final as the same within one year interested persons have challenged immemorial the suit property is after its publication. Since time ve yard Mazar and open plot a Wakf property by name Gra uiry the same is published in Golkhana Bidar and after due enq n. Neither the plaintiff nor the Government Gazette notificatio e challenged the same before the predecessor of the plaintiff hav now they cannot challenge the competent authority. Hence red. The sale deed executed by same and their claim is time bar fictitious one, created to grab plaintiff and his predecessor are f property is created, its nature the Wakf property. Once a wak 7 or challenged. The Muthwalli of or origin cannot be changed t the abo ve sai d ins titu tio n inf ormed these defendants tha the the iff to gra b the wa kf pro perty started to threaten pla int alli and als o trie d to interfere with the peaceful Mu thw ent of the pro per ty by the Muthwalli. Hence the plaintiff enjoym The and his associates were wa rned to check their activities.
se within the knowledge of the filing of O.S.No.76/96 is not intiff ties to the said suit. The pla defendants as they are not par ties property started illegal activi with a evil eye to grab the wakf s are perty, hence these defendant at the spot, i.e., Wakf pro t to provisions of the Wakf Ac taking legal action under the ty intiffs. There is a wakf proper check the illegal acts of the pla Bidar and open plot, Golekhana known as 'Graveyard Mazar ties at Sl. No. 652 of wakf proper and the same is duly published Wakf sting in Bid ar Ta luk . It is submitted that the exi its tio n is the re sin ce tim e immemorial and after institu er n in the off icia l gaz ette notification and aft public atio al tio n of stip ula ted per iod of one year, it has become fin comple d or e or origin cannot be change and conclusive and its natur IL 8 challenged, once a wakf property always been a wakf property.
Therefore, the suit of the plaintiff is barred by time. Therefore.
they sought for dismissal of the suit with compensatory costs of Rs.5,000/-.
8. On the aforesaid pleadings, the Tribunal framed 5 issues which are as under:
(1) Whether the plaintiff proves that he is the owner and in possession of the suit schedule property?
(2) Whether the piainttfffurther proves that the entry in the official gazette in Si. No. 652 dated
9.3.1973 is not binding over the plaintiff?
(3) Whether the plaintiff proves the alleged interference by the defendant?
(4) Whether the plaintiff is entitled for the declaration and other reliefs as prayed for?
(5) What order?
4 99. The plaintiff in support of his case exam ined his father Mohd. Arif Khan as PW1 and he also examined a witness by name Mohd. Taher Abdulla as PW2 and produced 20 documents which are marked as Exs. P1 to P20. On behalf of the defendants, one Hundekar Waheeduddin was examined as DW1. No documents were produced on behalf of the defendants.
10. The Tribunal on consideration of the aforesaid oral and documentary evidence on record held that, the documents produced by the plaintiff do not tally with the suit property.
The subject matter of the aforesaid docu ments and the suit schedule property are different, Further, the plaintiff has failed to prove his source of title to the suit property.
There is lot of discrepancies in respect of house number, bou ndaries and the extent of the suit schedule property with that of house number and boundaries mentioned in the sale deed s and assessment extracts. The suit property cannot be iden tified. Therefore, he held the plaintiff failed to prove that he is the owner in 10 possession of the suit schedule property. The plain tiff has not filed the suit within one year from the date of notif ication.
Therefore, the suit of the plaintiff is barred by limit ation. The plaintiff has failed to prove the alleged interferen ce by the defendants and therefore the suit of the plaintiff came to be dismissed. Aggrieved by the said judgment and decr ee, the plaintiff has preferred this appeal.
11. The learned counsel appearing for the appellant assailing the impugned judgment and decree of the Tribunal contended that the schedule property is an open space which the plaintiff has purchased under a registered sale deed dated 15.7.1998 as per Ex. P6. His vendor purchased the said property under a registered sale deed dated 19.1 0.1963 which is marked as Ex.P5. His vendor is a legal heir of the earlier owner by name Shamsheer Au who in turn has purchased under Ex.P3 from Gulam Mohammed Hussain Sidd iqui. The sketch drawn to scale is enclosed to all three sale deeds.
Therefore, he submits the schedule property is not a property 11 belonging to any Wakf. The plaintiff has clearly established his title to the plaint schedule property. Merely on the ground of discrepancy in numbers and boundaries , the Tribunal without proper appreciation of the registered documents at an undisputed point of time has held that the schedule property described in the plaint is not the proper ty which is the subject matter of the aforesaid sale deeds and ther efore the Court below committed a serious error in dismissing the suit of the plaintiff.
Further he contended the plaintiff has deni ed the very existence of the Wakf and he has denied that the suit property is not a Wakf property. Therefore, in view of the judgment of the Apex Court read with Section 6 of both the Wak f Act, 1954 as well as the present Act. 1995, as the plaintiff bein g a Muslim is not a person interested in the Wakf, the period of one year limitation for filing the suit for declaration of title can not be held against him and therefore the Tribunal committed a serious error in dismissing the suit of the plaintiff on the gro und of limitation.
1212. Per contra, the learned counsel appearing for the Wakf Board submitted that, plaintiff is a Muslim;
the gazette notification was issued in the year 1973: the suit was filed in the year 2005 and therefore the suit was barred by time as rightly held by the Tribunal. Further he also submitted there is a discrepancy in the description, the boundarie s and the number of the suit schedule property. It is in those circumstances, the Tribunal was justified in holding that the plaintiff has failed to establish his title to the prop erty and therefore he submits no case for interference is made out.
13. From the aforesaid facts and the rival contentions, the points that arise for consideration are as under :-
(1) Whether the finding of the Tribunal that the plain tiff has not proved his case and therefore not entitled to decla ration of title is valid and legal?
(2) Whether the suit of the plaintiff is barred by law of limitation?13
(3) Whether the plaintiff is entitled to the relief of a direction to the authorities to remove the entry in the gazette notification?
14. Point No. (1): In the plaint, description of the property which is the subject matter of the suit is clearly set out as hereunder : -
"House No. 5-3-301 / I situated at Golekhana, Bida.r, within the boundaries as under :-
East: Al Ameen School
West: Fort Road
North: Area. of Al Ameen School and
South: Own passage"
15. The plaintiff claims title under a registered sale deed dated 15.7.1998 as per Ex.P6. Therefore, it is necessary to see what is the description of the properv as given in Ex.P6.
In the registered sale deed, the property which was the subjec t matter of sale is described as under 14
"Whereas, the vendor is owner arid possessor qf an open space, portion of house bearing C.M.C. No. 5-2-177 ('old,), 5-2-213 (new) admea.suring -
East-West 55 feet North- South 49'6"
Equivalent to total area of 2722.6 sq.feet Situated at Golekhana, Bidar, having the following Boundaries --
East - Alameen School Building
West - Fort Road (CMC Drain)
North - Area of vendor
South - Own way
(hereinafter referred to as 'open space under sale)"
The vendor of the plaintiff purchased this prop erty under a registered sale deed dated 19.10.1963 at Ex. .P5. The description of the property sold in the said sale deed is under:
"House No. 5-1-48 situated at Qazipura Bidar Shan ff Talim Maniyar as per the map shown in red colo ur bounded by 15 East: house of Md. Yasin Sab West: Fort Govemement Road North: Houses of Shabir Alt Scth and Late Rasool Khan Sab South: Houses of Md. Abdul Hafiz Sab Shoukatunisa and Gousia Begum Saheba"
The map which is registered along with the sale deed gives the measurement of the property. It shows on the eastern side there is a house property and on the western side is the Fort Road. There is a drain. In between the house property and drain, in front of the house lies the vacant space which is called as open yard. It measures East-VTest on the Southern side 55', on the Northern side it measures 49.6'. on the Eastern side 33'6", on the Western side 49.5'. Thereafter, there is an open space measuring 49.6' on the Southern side, 51' on the Northern side, 19.6' on the Eastern side and 16' on the Western side. In Ex.P3 which is the document of the year 1920 under which the plaintiffs predecessor in title got the property, a 16 sketch drawn to scale is annexed which is also marked as Ex.P3(a), The sketch is identical with the sketch which is registered along with Ex.P5.
16. A perusal of these registered sale deeds and the sketches drawn to scale which are enclosed to the sale deeds which are also duly registered gives the boundaries as well as the measurement of the property which is the subject matter of these sale deeds. From 1920 to 2005, the adjoining properties have changed hands. Therefore, the names of the persons who own the property on the day the suit is filed is certainly differe nt from the names of the owners as mentioned in those documents. In all the documents there is one thing common.
Western boundary Fort Road and the map clearly discloses this vacant land is surrounded by 3 sides by building and on the Western side by the Road. The measurement of this vacant piece of land is clearly mentioned in the 1920 document which is the measurement, which is mentioned in the plaint schedule also. Unfortunately, the Tribunal was carried away by the 17 names of persons who own the proper ty and the difference in the numbers and came to an erroneo us conclusion that the property which the plaintiff is claiming in the suit schedule is not the property which is the subject mat ter of these documents of title. It is a clear case of misreading the evidence on record, non application of mind and therefore the said finding of the Tribunal cannot be sustained. The con tents of the sale deeds.
the sketches drawn to scale which is reg istered along with the sale deeds, the boundaries mentioned therein, the measurements given therein and the location of the property makes it abundantly clear that the plai nt schedule property which is an open space is the subject matter of these sale deeds and the plaintiff has acquired title to the said property under a registered sale deed for a valuable consideration and is in possession of the said property as the same being a vacant piece of land. Therefore, the plaintiff has established his title to the property. Accordingly. point No.1 is answered in favour of the plaintiff.
F, 18
17. Point No. (2): The contention is the Wakf Board has issued a notification notifying the plaint schedule property as a Wakf property as far back as on 9.3.1 973 as per Ex.P9.
The previous owner Mr.Abdul Aziz Khan did not challenge the said notification. Plaintiff has purchased the said property after the notification on 15.7.1998. He also did not choose to challenge the notification within one year from the date of notification or within one year from his acqu iring the title to the suit schedule property. Therefore, it is subm itted the suit filed by the plaintiff is barred by time.
18. Before we go into the question of law of limit ation, it is necessary to find out whether the property which is notified is the property which the plaintiff is claim ing. Entry 652 in notification Ex.P9 reads as under: - r 19 Si. Name of Description of Date Deta Names & No. Wakf/Sunni wakf properties of us of address of or Shia to be and particulars year Wak Mutawallis specified and thereof such as of f location Sy. No. House creat Deed No., Boundaries, ion Village, Town of Wak f 65 Grave Yard, 56' x 60' T A .Gaffar, 2 Mazar and Son of Open Plot. Mahboob Golekhana, Bidar I Maniyar I Taleem, Bidar A perusal of the notification makes it clear that item No. 652 refers to Graveyard, Mazar and an open space, Golekhana, Bidar. It measures 56' x 60'. The number of the prop erty is not mentioned, the boundaries of the property is not men tioned. In fact the plaintiffs vendor filed a suit O.S. No. 75/1 996 on the file of the Addl. Civil Court at Bidar for a decree of perpetual injunction restraining one Abdul Gaffar, Iqbal and Asif Khan from interfering with his peaceful possession and enjo yment of the present plaint schedule property. In the said suit the said defendants contended the schedule property is a registered if 20 Wakf property, defendant No.1 is the Mutawalli of the same and some area on the Southern side of the Courtyard is a Government land which is being used as a common passage.
Plaintiff has no title and therefore he is not entitled to any order of injunction. The Tribunal after hearing both the parties, looking into the documents on which the plaintiff is relying on here categorically held that the copy of the said notification shows the existence of the Wakf property in Bidar Talu k but in the said notification there is no specific mention of Municipal Property number and boundaries and therefore it cannot be presumed from the said notification that the said open space belongs to the Wakf property and therefore he was granted an order of temporary injunction. Aggrieved by the said order, the defendants in the said suit preferred an appeal in MA No. 6/1996 which came to be dismissed. The said order has become final. In fact on behalf of the Wakf Board in the present suit they have examined a witness. No documents are produced to show that the schedule property is a Wakf prop erty, who is Wakif, who is the Mutawalli, whether any Urns is conducted 21 the nt is made by the Mutawalli to annually, whether any payme activities of this Wakf is Wakf Board and whether any ification do not in conducted. The description given in the not schedule property. It is because any way tallies with the suit tawalli tried to interfere with the persons claiming to be the Mu the intiff was constrained to file plaintiffs possession, the pla d a cloud is sought to be create aforesaid suit for injunction. As contending that it is a Wakf on the title of the plaintiff by per ty he is con stra ine d to file the suit for declaration. pro in ere the existence of Wakf is not Section 6 applies to a case wh property which is notified as the dispute and only if a particular kf the ground that it is not a Wa Wakf property is challenged on in erested in the Wakf as well as property by a person who is int on tant case, from the material the Wakf property. In the ins ty Wakf, there is no Wakf proper record, it is clear there is no his the plaintiff is based on and the entire claim of de in the notification which is apprehension and the entry ma to be set up aga ins t him in the earlier suit of injunction sou ght g to a Mutawalli. It is interestin by the person claiming to be note that the persons who claim to be the Mutawalli was not examined in the present suit and the person who was examined was not aware of the very existence of such Mutawallis. Under these circumstances, it cannot be said that Section 6 is attracted to the facts of the case and the suit is barred by law of limitation as the same is not filed within one year. The the Tribunal has not properly appreciated the facts, statutory provisions and the law which is well settled on this point and committed a serious error in dismissing the suit of the plaintiff on the ground of limitation.
19. Point No. (3): If this Court were to hold that the plaint schedule property is nothing to do with the properv mentioned in the notification as a declaration of title to the plaint schedule property is given to the plaintiff by this judgment. thus in no way affects the plaintiff and therefore it is not necessary for this Court to issue any directions to the Wakf Board to delete the said entry as that property is not the 23 property in respect of which the plaintif f has filed the suit and seeking declaration.
20. For the aforesaid reasons, I pass the following order: -
(a) Petition is allowed.
(b) The judgment and decree of the Tribuna l is hereby set aside.
(ci Plaintiffs suit is decreed partly,
(i) declaring plaintf is the absolute own er in possession of the plaint schedule property.
(ii) A decree of permanent injunction restrain ing the defendants from interfering with the plai ntiffs peaceful possession and enjoyment of the plaint schedule property.
(di The prayer of the plaintiff for deletion of entr y No. 652 in the gazette notfication at Ex.P9 is rejected as 24 the said entry the properties are totally dtfferent and in no way affects the interest of the plaintt I Ic) No costs (N.KJMAR) JUDGE ksplckl/