Delhi District Court
Shri Sajid Khan vs Shri Wajid Khan on 27 September, 2021
IN THE COURT OF SENIOR CIVIL JUDGE CUM RENT
CONTROLLER (WEST), TIS HAZARI COURTS, DELHI
Presided by : Ms. Susheel Bala Dagar
RCA No.01/2018
CNR Number: DLWT030000852018
Shri Sajid Khan
S/o Late Shri Sajjan Khan
R/o 39A, DSIDC, Paschim Puri,
DDA Flats, Delhi. ................Appellant
Versus
Shri Wajid Khan
S/o Late Shri Sajjan Khan
R/o A7, Idgah Road,
Opposite Jal Board, D.B. Flats,
Delhi110018. ...............Respondent
Date of Institution : 11.01.2018
Date of judgment was reserved : 25.09.2021
Date of pronouncing judgment : 27.09.2021
Civil Appeal Under Section 96 read with Order 41 CPC against the
Order / Judgment/ Decree dated 01.12.2017 passed by Ld. Civil Judge,
Tis Hazari Courts, Delhi, in CS SCJ 9547/2016 titled as "Wajid Khan
v. Sajid Khan".
Judgment
1. The present appeal has been filed by the appellant/ defendant against
the Order / Judgment/ Decree dated 01.12.2017 passed by Ld. Civil Judge,
Tis Hazari Courts, Delhi, in CS SCJ 9547/2016 titled as "Wajid Khan v.
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Digitally
signed by
SUSHEEL SUSHEEL
BALA DAGAR
BALA Date:
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Sajid Khan"whereby, the suit for perpetual injunction was decreed by Ld.
Trial Court.
Facts of the case
2. The brief facts of the suit are that the dispute pertains to suit property i.e. Dargah Sharif Hazart Mamu Bhanja situated at M.M. Road, Near Petrol Pump, Jhandewalan, Delhi which is Wakq property, duly gazette notified in Delhi Gazette of Government of India dated 16.04.1970. The Delhi Wakq Board having its office at Darya Ganj, Delhi, is responsible for the management of the said Dargah/ suit property. The appellant and respondent are brothers.
3. The respondent/ plaintiff has filed a suit for perpetual injunction alleging that the grandfather of the parties Shri Mohabat Khan was the Sajjadanashin/ mutawali / gaddinashin of the dargah. Their grandfather, during his lifetime appointed their father Shri Sajjan Khan as Mutawali/ Sajjadanashin of the said dargah. The respondent further alleged that Shri Sajjan Khan appointed the respondent/ plaintiff as Mutawali/ Sajjadanashin of the dargah vide writing dated 06.06.2006 and since then he is functioning as such. The father of parties had died.
4. The respondent further alleged that the appellant out of greed and jealously started harassing the respondent by giving threats to interfere / obstruct and cause hindrance in the right of plaintiff to function as Mutawali/ Sajjadanashin of the said dargah on 05.11.2006 and 06.11.2006. It is further alleged that respondent approached the appellant with two respectable persons at 9.00 am on 07.11.2006 and requested him to desist from the threats/ interference, but he refused to listen and the respondent RCA No. 01/2018 Sajid Khan v. Wajid Khan Page No. 2 of 13 Digitally signed by SUSHEEL SUSHEEL BALA BALA DAGAR Date: 2021.09.27 DAGAR 16:10:25 +0530 filed the suit seeking restrain decree against the appellant from causing interference/ hindrance in the rights of the respondent to act as Mutawali/ Sajjadanashin of the dargah.
5. The appellant appeared in the suit before the Ld. Trial Court and filed his written statement stating that the respondent has no locus standi to file the suit and he has not come before the Court with clean hands and the suit is not properly valued. The correct name of the grandfather of the parties is Muhabbe Ali. The grandfather or father of the parties were not Sajjadanashin /Mutawali/ gaddinashin of the dargah. Shri Sajjan Khan, father of the parties was a self appointed so called Sajjadanashin/ Mutawali/ Gaddinashin. Shri Muhabbe Khan never appointed Shri Sajjan Khan as Sajjadanashin /Mutawali/ Gaddinashin of Dargah as alleged falsely by the respondent. The appellant specifically denied that Shri Sajjan Khan appointed the respondent Mutawali/ Sajjadanashin of the dargah vide alleged writing dated 06.06.2006 and submitted that alleged writing is a forged and fabricated documents and has been prepared by the respondent in order to deprive the appellant of his legal and legitimate right in dargah in question. The appellant has also denied that the respondent since 06.06.2006 has been acting as mutawali/ sajjadanashin of the said dargah. Further he denied that the respondent has been seeking police assistance as mutawali for arrangement for holding namaz etc. or that he has applied for obtaining telephone connection as mutawali. Further it is submitted that by seeking alleged police assistance or applying for telephone connection the respondent cannot become the mutawali of the dargah. The appellant further submitted that there are very old electric and water connection in RCA No. 01/2018 Sajid Khan v. Wajid Khan Page No. 3 of 13 Digitally signed SUSHEEL by SUSHEEL BALA BALA DAGAR Date: 2021.09.27 DAGAR 16:10:32 +0530 the name of appellant in the said dargah. The appellant also denied that the respondent has got any exclusive right to function as Mutawali/ Sajjadanashin of dargah, so the question of alleged harassment and interference by the appellant does not arise.
6. Shri Sajjan Khan during his lifetime executed a Will on 16.02.2006 whereby he devised and bequeathed all his rights in dargah and the mosque in favour of both of his sons. The respondent has become dishonest and wants to grab the entire dargah. Even by the alleged writing dated 06.06.2006 Late Sajjan Khan cannot appoint the respondent as Sajjadanashin/ Mutawali/ Gaddinashin of the dargah. The appellant is very much in possession and control of dargah. The parties led their evidence before the Ld. Trial Court. The respondent in plaintiff's evidence examined himself as PW1, Sayeed Javed Ali as PW2, Khuwaja Afzal Nazami as PW3. The appellant in defendant's evidence examined himself as DW1, one official from Delhi Wakq Board as DW2.
7. The appellant has preferred the instant appeal on the ground that Ld. Trial Court has not appreciated that the suit of the plaintiff/ respondent is inherently defective because the respondent has filed the suit for perpetual injunction without having any locus standi to file the suit. The respondent has no alleged right, title, interest of Mutawali/ Sajjadanashin/ Gaddinashin in the suit property. The Ld. Trial Court has totally ignored the documentary evidence i.e. gazette notification and RTI replies which shows that the suit property is Wakq property and the respondent, his father, grandfather have no alleged right, title, interest in the suit property and late Sajjan Khan cannot appoint the respondent as Mutawali/ Sajjadanashin of RCA No. 01/2018 Sajid Khan v. Wajid Khan Page No. 4 of 13 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
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the suit property. Ld. Trial Court has also ignored the fact that as per the gazette notification dated 16.04.1970 at S. No. 19, Column No. 11, it is mentioned that one Haji Mohd. Saddiq is controlling the dargah. Haji Mohd. Saddiq has no concern in any manner with late Sajjan Khan or with the family of Sajjan Khan. The respondent made the said concealment with a view to avoid making Delhi Wakf Board as party in the suit. It is submitted that under the garb of injunction suit, the respondent is seeking declaration of his alleged false claim as such the respondent had to value the suit accordingly. Moreover, the respondent has not sought the relief of declaration of his alleged false claim of mutawaliship/ sajjadanashin as such the suit of the respondent is inherently defective.
8. Ld. Trial Court did not consider that there are contradictions in the testimony of respondent's evidence regarding the execution of alleged Will dated 26.06.2006 and same cannot be relied. It is submitted that the contradiction in cross examination of both PW1 and PW3 shows that the PW3 alleged attesting witness was not present at the time of execution of alleged Will. It is further submitted that PW2 Sayeed Javed Ali has admitted in his cross examination that he was not present at the time of execution of alleged Will and he is not an attesting witness. PW2 has also deposed that no signatures were affixed on the alleged Will in his presence by any person. As such the alleged Will dated 26.06.2006 (Ex. PW1/1) of the respondent has not been proved as per law. The respondent has not lead any evidence to show that a dargah suit property can be transferred by the alleged ceremony of dasterbandi or alleged Will.
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Digitally signed
SUSHEEL by SUSHEEL
BALA DAGAR
BALA Date:
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9. Ld. Trial Court during the course of arguments did not appreciate and consider submissions of appellant that as per the citations "Baldev Singh v. Manohar Singh" (2006) 6 SCC 498 and M/s Modi Spinning and Weaving Mills Co. Ltd. v. M/s Ladha Ram & Co. (1976) 4 SCC 320 the Hon'ble Supreme Court laid the principle that inconsistent or alternative pleas can be made by the defendant, however, this principle is not applicable on the plaintiff. The Ld. Trial Court has given an erroneous interpretation to the Section 3 (i) of Wakq Act. Ld. Trial Court wrongly shifted the said burden on the appellant by observing that the appellant has not produced any documentary proof.
10. Ld. Trial Court has no jurisdiction over the issue as admittedly suit property is wakf property and there is bar of jurisdiction of Civil Courts u/s 85 of Wakf Act, 1995. The Ld. Trial Court held that no such plea was taken in written statement and no such issue has been framed. The Ld. Wakf Tribunal, Patiala House Courts, New Delhi has the jurisdiction to try and entertain the suit. Ld. Trial Court has wrongly relied on the judgment Ramesh Gobindram (deceased by LRs) vs. Surga Hamayun Mirza Wakf AIR 2010 SC 2897 as the said judgment is not applicable in the facts of the present case in view of the subsequent judgment of Hon'ble Supreme Court in the case of Board of Wakf, West Bengal v. Anish Fatima Begum
11. Ld. Trial Court did not appreciate that at the most late Sajjan Khan, respondent as well as the appellant could act as Khidmatgar of the Dargah as any person, who has faith in the dargah Mamu Bhanja/ suit property and RCA No. 01/2018 Sajid Khan v. Wajid Khan Page No. 6 of 13 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2021.09.27 DAGAR 16:10:51 +0530 as devotee of dargah Mamu Bhanja has right to offer his prayer, dedication, services in the dargah/ suit property.
12. Ld. Trial Court has not appreciated the precedents and judgments of Hon'ble Supreme Court and High Court i.e. (i) Board of Wakf, West Bengal v. Anis Fatima Begum, Supreme Court, 2011 (1) RCR (Civil), (ii) Dhulabai v. The State of Mdhya Pradesh 1969 SC 78 (iii) Haji Abdul Latif v. Azizuddin CRP No. 11/2012, Delhi High Court (iv) Salam Khan v. Tamil Nadu Wakf Board AIR 2005 Madras 241 (v) Mohd. Ismail v. Thakur Sabbir Ali AIR 1962 SC.
Reply to the grounds of appeal by respondent
13. Reply was filed by the respondent stating therein that the appeal is not maintainable. The appellant cannot go beyond its pleading made in the main suit. It is submitted that the written statement filed by the appellant was based on false averments and concocted stories. It is submitted that the appellant had failed to discharge the burden of proof regarding the issue no. 1 by examining the witness DW2 and had failed to prove that the respondent had no locus standi to file the suit. The testimony of witness DW2 and the document exhibited in his evidence were irrelevant in the facts and circumstances of the case and in view of the relief sought by the respondent in the main suit. It is denied that the respondent has concealed any facts regarding the suit property or he required any authorization from the Wakf Board to file the suit. The Wakf Board has nothing to do with the suit. It is denied that the respondent sought the declaration in the garb of injunction. It is denied that the respondent was required to seek the relief of RCA No. 01/2018 Sajid Khan v. Wajid Khan Page No. 7 of 13 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
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declaration. It is denied that there is any contradiction in the testimony of respondent's evidence regarding the execution of the Will. The minor contradiction cannot demolish the case of the respondent. The slightest discrepancies and inconsistence in the deposition of the witnesses after lapse of considerable time from the date of occurrence of incident cannot be a ground for disbelief. The citation submitted by the appellant during the course of arguments before the Ld. Trial Court are distinguished and are not applicable to the facts and circumstances of the present case. It is denied that the respondent has not fulfilled the basic requirement of Section 38 of the Specific Relief Act or has failed to prove that right of Mutawali in the suit property was invaded by the appellant. The appellant has failed to understand to seek the relief of perpetual injunction, the respondent had to prove his rights in the suit property and therefore he had led evidence before the Ld. Trial Court to this effect.
14. I have heard Sh. Mohd. Elahi, Ld. Counsel for the appellant and Shri Himal Akhtar Ld. Counsel for the respondent and have gone through the record. Ld. Counsel for the appellant has filed following case laws in support of his arguments : Rajasthan Wakf Board v. Devki Nandan Pathak Civil Appeal No. 6310 of 2017 decided on 04.05.2017 by the Hon'ble Supreme Court, Punjab Wakf Board v. Sham Singh Harike Civil Appeal No. 92 of 2019 decided on 07.02.2019 by the Hon'ble Supreme Court, Board of Wakf, West Bengal v. Anis Fatma Begum Civil Appeal No. 5297 of 2004 decided on 23.11.2010 by the Hon'ble Supreme Court of India, Akkode Jumayath Palli Paraipalana Committee RCA No. 01/2018 Sajid Khan v. Wajid Khan Page No. 8 of 13 Digitally signed SUSHEEL by SUSHEEL BALA DAGAR BALA Date:
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v. P.V. Ibrahim Haji (2013) 9 AD (SC) 341, Mohammed Ghouse
Mohiuddin v. Syed Ismail Mohammed Shah (2017) 1 ALT 779, R.V. Raveendran and P. Sathasivam J.J. Civil Appeal No. 6191 of 2001, Haji Abdul Latif v. Azizuddin CRP No. 11/12 decided on 11.09.2012 of the Hon'ble High Court, Baldev Singh v. Manohar Singh (2006) 6 SCC 498, Anathula Sudhakar v. P. Buchi Reddy (Dead) by LRs AIR 2008 SC 2033.
15. Perusal of the record shows that that the present suit has been filed seeking a decree of permanent injunction restraining the defendant and his agents from causing any interference, hindrance and obstructions in the rights of the plaintiff to act as mutawalli/ Sajjadanashin of the dargah known as Dargah Sharif Hazrat Maamu Bhanje, situated at MM Road, Near petrol pump, Jhandewalan, New Delhi and not to disturb the functioning of the said dargah in any manner.
16. In other words the plaintiff/ respondent had to first prove that he has a right to the suit property i.e. whether in the form of ownership or settled possession of the suit property and secondly to prove that there exists a cause of action for which the plaintiff/ respondent is entitled to grant of injunction to protect this right.
17. Perusal of the judgment and decree dated 01.12.2017 shows that the Ld. Trial Court has only discussed regarding the right of the parties to the suit property. However, there is no discussion whether there exits any cause of action for grant of any injunction to protect the right.
18. It is settled principle of law that the plaintiff/ respondent cannot be dispossessed without due process of law as held by Hon'ble Supreme Court RCA No. 01/2018 Sajid Khan v. Wajid Khan Page No. 9 of 13 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
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in the case of Rame Gowda and others v. M. Varadappa Naidu AIR 2004 SC 4609. In that case, it was held that a person in settled possession is entitled to permanent injunction restraining even the true owner from disturbing his possession without due process of law. The same view was echoed in the cases of Bhagabat Pradhan v. Laxman Praddhan AIR 2004 NOC 53 (Orissa), M/s S.S. Fasteners v. Satya Paul Verma AIR 2000 P & H 301, Shri Balaji Trading Co. v. Veeraswamy Srinivasan CRP No. 2626 of 1979 dated 7.8.1979 (Andhra), Hem Chand Jain v. Anil Kumar 1992 RLR 224.
19. However, in the present case, not only the settled possession was to be proved but also the cause of action for grant of injunction is needed to be proved. It is admitted case of both the parties that the suit property is a wakf property. The plaintiff/ respondent stated himself to be the muttawali of the said property. Thus, as per Section 101, 102, 103 of Evidence Act, it is the duty of the plaintiff/ respondent who approaches the Court to discharge the burden of proof of his case. The case of the plaintiff has to stand on his own legs and cannot take advantage of any weakness of defendant case. However, the plaintiff/ respondent has not produced any documentary proof from any government authority/ wakf board to show that he is acting as muttawali or is in possession of the dargah as a muttawali. The plaintiff/ respondent had led evidence only to prove his alleged Will/ writing.
20. Now coming to the aspect of cause of action to file the present suit. It remains to be examined as to whether there is any cause of action for which RCA No. 01/2018 Sajid Khan v. Wajid Khan Page No. 10 of 13 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2021.09.27 DAGAR 16:11:14 +0530 the respondent is entitled to grant of injunction to protect this right. In order to make out a case for grant of injunction, the respondent must demonstrate not only the existence of the right but also a threat of invasion of the said right. An injunction is granted only when the injury to the rights of respondent is reasonably expected. An injunction is not issued to restrain a person from doing that which he is not attempting or intending to do. Injunction therefore does not lie in absence of actual or presently threatened interference. It is not sufficient for issuance of injunction that the injury may possibly result from the act sought to be prevented. There must be at least a reasonable probability that the injury will be caused if no injunction is granted.
21. As per the case of the plaintiff/ respondent the elements of cause of action of the suit are threat, invasion, interference, but the plaintiff/ respondent has not adduced even a single piece of evidence to prove his alleged cause of action dated 05.11.2006, 06.11.2006 and 07.11.2006. The plaintiff/ respondent has not even disclosed the names of the alleged two respectable persons alongwith whom the plaintiff/ respondent allegedly approached the appellant/ defendant on 07.11.2006. The respondent has not produced the said two alleged persons mentioned in the incident of 07.11.2006 to depose before the Ld. Trial Court. The plaintiff/ respondent has not led any evidence to prove any alleged incidents of dated 05.11.2006, 06.11.2006, 07.11.2006. As such the plaintiff/ respondent has failed to prove any cause of action in the case.
22. In the case of Bheekam Chand v. Ismail AIR 2006 Raj 1, the Hon'ble Rajasthan High Court held that where there is no threat of forcible RCA No. 01/2018 Sajid Khan v. Wajid Khan Page No. 11 of 13 Digitally signed by SUSHEEL SUSHEEL BALA DAGAR BALA Date:
2021.09.27 DAGAR 16:11:19 +0530 dispossession, the plaintiff is not entitled to the grant of any injunction restraining such dispossession. In the case of Sohan Singh v. Jhaman, (P&H) 1986 RRR 579, the Hon'ble Punjab and Haryana High Court observed as under:
"In other words, there must be some overt act on the part of the defendant to invade or a threat to invade the plaintiff's right or commission of an act on the part of the defendant which is contrary to the plaintiff's rights. Except in so far as the above contingencies, no perpetual injunction could be granted against the defendant under the Act. "
23. In the present suit, the plaintiff/ respondent has not led any evidence to show that the defendant has ever done any overt act to invade or threatened to invade any of the plaintiff's/ respondent's by giving threats to interfere / obstruct and cause hindrance in the right of plaintiff / respondent to function as Mutawali/ Sajjadanashin of said dargah on 05.11.2006 and 06.11.2006 rights. Perusal of the crossexamination of PW1 shows that he did not know whether he has made any complaint to police regarding the incident dated 05.11.2006 or 06.11.2006. Even though PW1 stated to have made oral complaint of the appellant / defendant to the official of Delhi Wakf Board but PW1 did not give any written complaint to the concerned officials of the Delhi Wakf Board against the defendant. Thus there is no documentary proof or any statement of any independent witness or any of the alleged two persons who accompanied the plaintiff/ respondent on 07.11.2006. It seems that only on the basis of apprehensions and bald assertions that said relief is being claimed by the plaintiff.
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Digitally signed
by SUSHEEL
SUSHEEL BALA DAGAR
BALA Date:
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24. It needs no emphasis that the case of the plaintiff/ respondent must stand on his own legs and must prove the cause of action existing in his favour as a condition precedent to the grant of injunction. Reference in this behalf may be made to the case of M/s Surajbhan Kailash Chand v. Hari Shanker Vashist AIR 1976 Delhi 70. Order 6 Rule 4 of Code of Civil Procedure mandates that under such circumstances, particulars of the incident must be set out. Hence, cause of action does not subsist against the appellant /defendent, as there is no evidence of any interference, hindrance and obstruction or disturbing the functioning of the said dargah.
25. The Ld. Trial Court has failed to appreciate that no evidence has been led by the plaintiff/ respondent regarding the existence of any cause of action i.e. no evidence has been led to show any interference by the appellant. Hence, for want of cause of action the impugned order/ judgment is liable to be set aside.
26. In view of the abovesaid findings, the appeal of the appellant/ defendant is allowed with costs. The impugned judgment /decree dated 01.12.2017 is set aside. Decree sheet be prepared accordingly. Copy of this order be sent to the Ld. Trial Court for information.
File be consigned to record room.
Digitally
signed by
SUSHEEL SUSHEEL
BALA DAGAR
BALA Date:
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Announced in open Court (Susheel Bala Dagar)
on 27th Day of September 2021 SCJ cum RC(West)
Tis Hazari Courts, Delhi.
(This judgment contains 13 pages.)
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