Allahabad High Court
Waqf Kabristan Waqf Baadshah Kuli No.35 vs Smt. Bibban Begum And 9 Others on 7 March, 2024
Author: Jayant Banerji
Bench: Jayant Banerji
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:41059 RESERVED In Chamber Case :- MATTERS UNDER ARTICLE 227 No. - 6679 of 2023 Petitioner :- Waqf Kabristan Waqf Baadshah Kuli No.35 Respondent :- Smt. Bibban Begum And 9 Others Counsel for Petitioner :- Shreyas Srivastava Counsel for Respondent :- Arvind Srivastava,C.S.C.,Saurabh Tiwari Hon'ble Jayant Banerji,J.
1. This petition has been filing seeking setting aside of the order dated 03.05.2023 passed by the Special Judge, S.C./S.T. (P.A.) Act, District Etawah, passed in Civil Revision No. 27 of 2022 ( Smt. Bibban Begum & Others Vs. State of U.P. & Others.
2. The plaintiff-respondents filed Original Suit No.924 of 2019 against (1) State of U.P. through Collector, Etawah, (2) Sewa Bharti 631, Gandhi Chowk Shri Nagar Shahr & District Kanpur through Regional Member Shri Vinod Kumar Pandey son of Baidhya Ratan Pandey resident of Mohalla Khatrana Tola Shahr & District Etawah, (3) Nagar Palika Parishad through Executive Officer, seeking a decree of permanent injunction with regard to plot no.595/3-Ka, area 0.069 hectares and plot no.595/3-kha area 0.243 hectares, situated in Village Parade Chhawni, Pargana and District Etawah against the aforesaid defendants who are arrayed in this petition as respondent nos. 8, 9 and 10. The petitioner was not a party in the aforesaid suit. It appears that on coming to know about the pendency of the suit, an application 42C dated 24.4.2022 under Order 1 Rule 10 C.P.C. was filed by the petitioner. It appears that another application (Paper no. 68C) dated 21.7.2022 was filed by the plaintiff-respondents seeking to summon certified copies of the revenue record from the Nagar Palika Parishad, Etawah with regard to plot No.595/3 aforesaid and as well as the documents containing the entries of graveyard/ crematorium situated in Village Parade Chhawni, in Etawah City.
3. By an order dated 27.07.2022, the Civil Judge (Junior Division), Etawah decided both the aforesaid applications. The plaintiff-respondents' application (68-C) was dismissed and the petitioner's application (42-C) was allowed. Against the aforesaid order dated 27.7.2022, the plaintiff-respondents filed a revision bearing Civil Revision No.27/2022, which came up for consideration before the Special Judge SC/ST (PA) Act/ Court No.2, Etawah, who by a common order dated 3.05.2023, which is impugned herein, set aside the order of the trial court dated 27.07.2022 and remanded the matter back to the trial court to take a decision afresh.
4. The contention of the learned counsel for the petitioner is :-
(I) A single revision against two orders passed in two separate applications is not maintainable.
It is contended by the learned counsel that a revision under section 115 CPC would lie against a single order, that is to say, in respect of the order disposing off the application 68-C, one revision ought to have been filed and with regard to the order disposing off 42-C, another revision ought to have been filed.
The learned counsel based his contention on a judgment of Delhi High Court in Shail Kumar Vs. Saraswati Devi1 and a judgment of a coordinate Bench of this Court in the case of Ishwar Sharan alias Ishwar Sharan Das (dead) and another Vs. Bharat Kumar and others2.
It is contended that the aforesaid orders disposing off 68-C and 42-C are distinct orders and they ought to have been challenged separately in two separate revisions.
(II) Learned counsel has referred to the order dated 17.11.2022 passed by revisional court that has been enclosed to the second supplementary affidavit filed on behalf of petitioner on 16.10.2023 to contend that in the revision aforesaid, an application under Order 41 Rule 27 CPC was filed, which was allowed by the revisional court and those documents that were accepted by the revisional court by means of the order dated 17.11.2022 have been made the basis of passing the impugned order dated 3.5.2023.
Learned counsel has relied upon a judgment of this Court in the case of Ram Sumer Vs. Narain and others3 to contend that the revisional court had no jurisdiction to record additional evidence. It is, therefore, submitted that the impugned judgment cannot be sustained on this ground and deserves to be set aside.
III. It is contended by the learned counsel that the scope of revision under section 115 CPC is restricted only to consideration of jurisdictional issues. That is to say, where errors of law or fact find place in the order sought to be revised, the same cannot be corrected by the revisional court in exercise of its jurisdiction as is the mandate of the Supreme Court in the case of Tek Singh Vs. Shashi Verma and another dated 4.02.2019 passed in Civil Appeal No.1416 of 2019, which judgment in turn relied upon a previous judgment of the Supreme Court in D.L.F. Housing & Construction Company Private Ltd., New Delhi Vs. Sarup Singh and others4. It is stated by the learned counsel that the material irregularity does not cover errors of facts or of law as held by the Supreme Court in the case of Madan Lal Vs. Shyam Lal5.
(IV) On merits it has been stated by the learned counsel that on record before the trial court were the extracts of Khatauni bearing Paper No.45-C/3 and 45-C/4, which were the extracts made from the register maintained under section 37 of the Waqf Act, 1995 to demonstrate the ownership of the petitioner-mutawalli over the plots in dispute. Learned counsel has stated that under sub-section (4) of Section 6 of the Waqf Act, 1995 the list of Waqfs shall, unless it is modified in pursuance of a decision or the Tribunal under sub-section (1) of the Act be final and conclusive. It is, therefore, stated that a presumption was required to be drawn by the trial court regarding the finality and conclusiveness of the list maintained and therefore, there is no error in the order of the trial court, much less an error of jurisdiction.
5. Shri Arvind Srivastava, learned counsel for the respondents has referred to the aforesaid judgment of Ishwar Sharan to contend that in case, the three orders challenged in a single revision were held to be maintainable by this Court and therefore, it cannot be said that the revision filed before the revisional court in the present case could not be maintained against the order dated 27.7.2022 passed on two separate applications. It has been urged by Shri Arvind Srivastava that the Uttar Pradesh Amendment of Section 115 CPC, in sub-section 3 clause 2 provides an exception to the superior court not reversing or varying any order made where the order it allows to stand would occasion a failure of justice or cause irreparable injury to the party against whom it is made.
It is further contended that the plaintiffs is a dominus litus and they cannot be compelled to implead the petitioner as a party. It is stated that the judgment relied upon by the learned counsel for the petitioner in Tek Singh would not be applicable in the present case, inasmuch as, the provision of U.P. Amendment in Section 115 CPC were not considered in that of judgment.
6. Learned counsel has referred to the discussion in the order of the trial court dated 27.7.2022 with regard to the application (68-C) filed under Order 11 Rule 14 C.P.C to contend that genuine and valid grounds were taken in the application but the trial court had cursorily without applying its mind, has stated that the application is not in accordance with law and is not maintainable at that stage and no reason has been discussed why the application would be allowed.
7. It is therefore, stated that to prevent miscarriage of justice, the revisional court was well within its right to hold that observation of the trial court to be an exercise of jurisdiction with material irregularity and, therefore, it should be set aside.
8. Learned counsel has stated that if an order that is sought to be revised is perverse or patently illegal, then it would be a jurisdictional fact rendering it amenable to the jurisdiction of the revisional court.
9. With regard to the discussion by the trial court on Paper No.42-C filed under Order 1 Rule 10 CPC by the petitioner, it is stated that a perusal of the order reveals that the documents were not perused by the trial court. It is stated that only the provision of Order 1 Rule 10 CPC were relied upon and it was held that the petitioner is a necessary party. It is further contended by the learned counsel that the revisional court has rectified the irregularity by observing that the application No.68C be first considered by the trial court after remand and thereafter a fresh order be passed on the application for impleadment. Learned counsel has pointed out reference to the observations made by the revisional court in this regard.
10. In rejoinder, learned counsel for the petitioner has stated that the U.P. Amendment in Section 115 C.P.C., incorporating sub-section 3 (ii) would be applicable only in the cases where jurisdictional error is found and given the judgment of the Supreme Court aforesaid, there is no jurisdictional error of the trial court that would have warranted interference by the revisional court.
11. Evident it is from the record that the petitioner was not a party in the aforesaid suit filed by the plaintiff-respondents. In the application 42C filed by the petitioner under Order 1 Rule 10 CPC, it was stated that the disputed property in the suit is the property of the petitioner-Waqf, which is a Waqf registered with the Uttar Pradesh Sunni Central Waqf Board, Lucknow and its recognized Mutawalli is Mohd. Rifaquat Ulla Khan. It was stated that the properties in dispute were registered under Section 37 of the Waqf Act, 1995 and over plot no. 595/3, there is a masjid and there is also a graveyard which is being used for burial. It was stated that malafidely, the plaintiffs had shown parts of plot nos. 595/3, 594/1 and 594/2 as plot nos. 595/3Ka and 595/3Kha. It was stated that the plaintiffs have knowledge that with regard to the aforesaid plots, in the court of the Civil Judge (Senior Division), Etawah, a suit is pending in which a stay order has been granted and thus, the interest of the applicant/petitioner in the plots in dispute is inherent and the final judgment in the suit would affect the interest of the waqf.
12. In the objections filed on behalf of the plaintiffs, the application was opposed. It was stated that as regards the plot no. 595/3Ka, having an area of 0.069 hectares is concerned, it is recorded as non-Z.A. and was registered in the name of one Hijrul Hasan, who had gone to Pakistan and the land went into the possession of the Custodian of evacuee property. The Custodian has sold the aforesaid land by means of a registered transfer deed dated 17.10.1960 in favour of Ibrahim Khan and as such, Ibrahim Khan became the owner in possession of the said land. It was further mentioned that with regard to plot no. 595/3Kha, area 0.243 hectares is recorded as non-Z.A. and the name of Gulam Hasan and others are recorded in Class 8 and in the second part of the Khasra, the name of Ibrahim Khan is recorded who had taken possession of the aforesaid two plots and set up a saw-mill and as such, the possession of the plots in dispute is with Ibrahim Khan and his heirs. Further, reference has been made to an order of the court in proceedings under Section 57A of the Waqf Act, 1960, which was decided by a judgment dated 30.3.1989 and which became final after dismissal of a Writ Petition No. 14372 of 1989, by an order dated 9.1.2003. It was stated that the plots in dispute were never recorded as a graveyard.
13. Paper No. 68C was filed on behalf of the plaintiff-respondents on 21.7.2022 for direction to the Nagar Palika Parishad, Etawah for summoning the certified copy of the revenue records pertaining to plot no. 595/3 as well as the documents containing the entries of graveyards and crematorium in the Village Parade Chhawani in the City of Etawah.
14. The petitioner filed his objections to it stating, inter alia, that the property in dispute is registered under the provisions of Section 37 of the Waqf Act, 1995 and as such, application 68C ought to be dismissed. By a common order dated 27.7.2022 passed in the aforesaid suit, the aforesaid two applications 68C and 42C were decided, that is to say, the application 68C filed on behalf of the plaintiff-respondents was rejected and the application 42C filed on behalf of the petitioner was allowed.
15. The trial court considered the objection 74C filed on behalf of the Nagar Palika Parishad in which it was stated that the property register being maintained in the Nagar Palika Parishad, only those properties that are owned by the Nagar Palika Parishad, are mentioned. Since, the properties in dispute are graveyards, they are not under the ownership of Nagar Palika and as such, they do not find mention in the property register. The trial court, accordingly, held that at this stage the application 68C is not maintainable and there is no justifiable reason for summoning the revenue documents from the Nagar Palika Parishad. Accordingly the application was rejected.
While considering the application 42C, the objections filed by the plaintiffs was considered, in which it was stated that the plaintiffs were the heirs of Ibrahim Khan and as such, the owners of the properties in dispute. Copies of the revenue records were also filed; that the suit property was never a waqf property and in this regard, various litigation between the parties had taken place up till the level of the High Court; that the suit property was never the land of a graveyard and there is no necessity for hearing a third party (the petitioner).
The rejoinder affidavit filed by the petitioner bearing paper no. 67C was considered, in which it was stated that the suit property belongs to the waqf and the plaintiff had not impleaded the Waqf Board as a party which is a necessary party. As such, it was observed that necessary parties are required to be impleaded in view of the provisions of Order 1 Rule 10 C.P.C.. It was observed that in case the applicant/third party is not added as a party, his rights would be affected. Accordingly, the application 42C was allowed.
16. Civil Revision No. 27 of 2022 was filed on behalf of the plaintiff-respondents against the aforesaid order dated 27.7.2022 passed by the trial court in which the impugned order dated 3.5.2023 was passed.
17. Learned counsel for the petitioner has not been able to point out any objection taken by the petitioner in the revision regarding maintainability of a single revision against two orders. As far as the application 68C was concerned, it was observed by the revisional court that the trial court has not clarified as to how the application 68C is not in accordance with law and procedure. The provision of Order 11, Rule 14 C.P.C. was referred and it was observed that for summoning of documents, an application could be filed at any stage. It was observed that the documents sought to be summoned would be material documents for the suit to be disposed of in accordance with law, and as such, the material documents were required to be taken on record.
18. As regards paper no. 42C, the revisional court observed that the trial court had not clarified that in what manner is the interest of the third party inherent in the properties in dispute; that after obtaining certified copies of the revenue records in respect of plot no. 595/3 and the documents containing the entries with regard to the graveyards and crematoriums existing within the Village Parade Chhawani in City Etawah, can it be decided whether third party rights in the disputed properties are inherent and whether they are necessary parties. It was observed that the plaintiff is the dominus litus and he can institute a suit against whosoever he wants and against whom he has a cause of action. The revisional court then went on to consider the various documents filed by the third party petitioner and went on to hold that only after a lawful order is again passed on application 68C, after considering the entire facts and records, the trial court should come to the conclusion whether the third party is a necessary party in the suit or not. Accordingly, the revision was allowed and the consolidated order dated 27.7.2022 passed by the trial court was set aside. The trial court was directed to examine the facts and after giving parties afresh opportunity of hearing, to pass an order on merits.
19. It is evident from the record, that the applications 68C and the 42C were separately filed on separate dates, each being based on different facts. The application 42C seeking implementation of the petitioner/Waqf Board, stemmed from the claim regarding the properties in dispute having a graveyard and masjid being recorded as waqf in the register maintained under section 37 of the Waqf Act 1995. Under section 40 of the Waqf Act, the board is empowered to decide a question whether a particular property is a waqf property or not. The decision of the Board on that question, unless it is revoked or modified by the tribunal constituted under Section 83 of the Waqf Act, is final. Under Section 83 of the Waqf Act, the Tribunal constituted by the State Government for determination of any dispute, question or other matter relating to a waqf or waqf property any mutawalli person interested in a waqf or other person aggrieved by an order made under the Waqf Act or rules made thereunder, may make an application within the time as specified or prescribed, to the Tribunal for determination of any dispute, question or other matter relating to the waqf. Section 85 of the Waqf Act bars the jurisdiction of civil courts, revenue courts or any other authority with regard to the suits or other legal proceedings in respect of any dispute, question or other matter relating to any Waqf or Waqf property or other matter which is required by or under this Act to be determined by a Tribunal. Under Section 108A of the Waqf Act, the provisions of the Waqf Act have overriding effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force, or in any instrument having effect by virtue of any law other than the Waqf Act.
20. However, any provision that seeks to oust the jurisdiction of the civil court has to be construed strictly. Whether the petitioner is a necessary party in the suit would, under the facts and circumstances, entail a conclusion by the court, on the basis of admissible evidence and relevant facts that the petitioner is a necessary party. In this view of the matter, though, the revisional Court has not considered the provisions of the Waqf Act, the fact remains that the petitioner has sought to prove that he is a necessary party on the basis of uncertified photocopies of the documents. This fact is not disputed in the petition. Therefore, the order dated 27.7.2022 qua the application 42C cannot be set aside; and unless there is relevant primary or secondary evidence available on record, the courts could look upon such an application for impleadment as a ruse to obfuscate the issues involved.
21. As far as the decision of the revisional Court with regard to the application 68C is concerned, the revisional Court is correct in stating that there is no reason recorded by the trial court as to why the application 68C would not be maintainable. However, the observation of the revisional court that the documents sought to be summoned are relevant and important for purpose of appropriate disposal of the suit, in my opinion, ought to be moderated so as not to convey a mandate to the trial court regarding the course of action to be adopted by it after remand by the revisional court. After all, it is important that the court which is in seisen of the matter, should examine the facts and evidence on record independently to come to a finding/conclusion. Therefore, though setting aside the impugned order as far as the application 68C is concerned, is declined, it is directed that the trial court will duly consider the application 68C afresh and pass a reasoned order in accordance with law.
22. There is another aspect of the matter. On one hand, the documents/records that are sought to be summoned by the application 68C may have a bearing while considering the application 42C. On the other hand, those documents which are required to be produced by Nagar Palika Parishad by means of the application 68C, may not have a bearing, in case the evidence on record clearly points to the fact that the properties in dispute appear in the register maintained by the Board under Section 37 of the Waqf Act. However, this fact too would depend on whether the evidence produced by the petitioner before the trial court is admissible.
23. Learned counsel for the petitioner has urged that a single revision would not lie to challenge the two orders passed on 27.7.2022 inasmuch as each of the orders pertain to a different facet and therefore, separate revision/legal proceedings would be required to be filed. Since, interference in the order impugned dated 3.5.2023 passed by the revisional court qua the application 68C and 42C is declined, question is left open to be considered in another appropriate case. It may be mentioned that the judgment in the case of Ishwar Sharan cited by the learned counsel for the petitioner is of no assistance to the petitioner.
24. Accordingly, and in terms of the observation made hereinabove, interference in the impugned judgment and order dated 3.5.2023 is declined.
25. Another submission that was advanced by learned counsel for the petitioner was with regard to an order dated 17.11.2022 passed by the revisional court allowing an application 13C for filing additional evidence. It is noted that in the order dated 17.11.2022 which has been filed alongwith a supplementary affidavit filed on 16.10.2023, though the revisional court referred to the objection taken by the defendant no.3- Nagar Palika Parishad regarding maintainability of such application before the revisional court, but without addressing the objection so raised, has proceeded to allow the application for additional evidence purportedly in the interest of justice. This order of the revisional court would be without jurisdiction as the powers under Order 41 Rule 27 cannot be exercised by a revisional court exercising jurisdiction under Section 115 of the C.P.C.. As such, the trial court cannot give any credence to the order dated 17.11.2022. However, the fact remains that the plaintiff-revisionists had filed application 13C for filing additional evidence to controvert the claim of the petitioner that it is a necessary party. It is therefore left open to the plaintiff-respondent to seek the leave of the trial court under Order 7 Rule 14 sub-rule (3).
26. Subject to the aforesaid observations, this petition is disposed of.
Order Date :- 7.3.2024 A. V. Singh (Jayant Banerji, J.)