Telangana High Court
The Telangana State Wakf Board vs Mohd. Jehangir on 10 June, 2019
Author: M.S.Ramachandra Rao
Bench: M.S.Ramachandra Rao
THE HON'BLE SRI JUSTICE M.S.RAMACHANDRA RAO
CIVIL REVISION PETITION NO.317 OF 2019
ORDER:
This revision is filed under Section 83(9) of the Wakf Act, 1995 ("the Act" for brevity), challenging the order dated 01.09.2017 in O.S.No.183 of 2016 passed by the Telangana State Waqf Tribunal, Hyderabad.
The petitioner herein is the Telangana State Waqf Board, which is the successor of the A.P. State Wakf Board which was first defendant in the said suit, which had been filed originally as O.S.No.42 of 2009 before the A.P State Wakf Tribunal, Hyderabad, by the first respondent.
In the plaint, the first respondent contended that his father had purchased the suit schedule property under registered sale deed bearing document No.780 of 1971 dated 17.05.1971 from his vendor and first respondent father's vendor had purchased the same under a registered sale deed dated 05.11.1965. He also contended that he became the owner of the property by virtue of oral gift (hiba) deed dated 01.01.1985 made in his favour by his father, which was accepted by him and stated that possession of the property was delivered to him. He contended that since the date of gift, he was in actual and physical possession of the suit schedule property. He contended that he came to know that proceedings were issued by the Revenue Divisional Officer, Hyderabad (R-2 herein), on 09.07.2007 by which the second respondent ordered taking of possession of suit 2 schedule property in execution of orders passed by petitioner under Section 54 of the Act. He contended that no notice under Section 54(1) of the Act was issued to him, that no enquiry was conducted under the said provision and that the property in question is not a Wakf property at all. He contended that he had filed W.P.No.15956 of 2007 before this Court challenging the order dated 09.07.2007 of the second respondent and that on 03.12.2008, this Court directed him to approach the A.P. State Wakf Tribunal and so, he has filed the said suit O.S.No.42 of 2009. He alleged that the petitioner had no right, title or claim in the suit schedule property and he cannot direct eviction of the first respondent behind his back.
Written statement was filed by the petitioner opposing the suit claim and denying the title of the first respondent over the suit schedule property. It is contended that the suit schedule property is part and parcel of Wakf property, which was notified; that a report was received from officials of Wakf Board that first respondent was in illegal occupation of the property; that notice under Section 54(1) of the Act was ordered on 17.05.2003 and it was served on the first respondent on 24.06.2003. It is contended that alienation of Wakf property is void and that orders were passed under sub-Section (3) of Section 54 of the Act on 10.08.2003 and the said order was also served on first respondent on 25.09.2003. It is contended that thereafter the second respondent was approached with a requisition under Section 55 of the Act to evict the first respondent and to hand 3 over possession and that was why the eviction order dated 09.07.2007 was issued.
After the constitution of the Telangana State Waqf Tribunal, the suit O.S.No.42 of 2009 was renumbered as O.S.No.183 of 2016 before the Telangana State Waqf Tribunal (for short, "the Tribunal").
Before the Tribunal, the first respondent examined himself as P.W.1 and marked Exs.A1 to A8. The petitioner examined D.W.1 and marked Exs.B1 and B2.
By order dated 01.09.2017, the Tribunal decreed the suit and held that the impugned notice dt. 10.08.2003 issued by the petitioner under Section 54(3) of the Act is null and void and granted perpetual injunction restraining the petitioner from dispossessing the first respondent from the suit schedule property.
After considering the evidence on record, the Tribunal held that Ex.B2 is the Muntakhab with plan and it did not show the municipal number of the suit schedule property as Wakf property and that this was admitted by D.W.1, witness for the petitioner. It also recorded that D.W.1 admitted that there was no plan of suit schedule property and that no record was produced by the petitioner regarding the authority who prepared Ex.B2. It also noted that petitioner did not file any evidence to show that the first respondent received the notice under Section 54(1) of the Act, that the Gazette Notification (Ex.A7) does not mention the suit schedule municipal number. Therefore, it held that petitioner failed to prove that the suit property is part and parcel of the Wakf property and so, the impugned notice issued by the 4 petitioner is without any basis and is null and void. It also held that the petitioner did not file any certified commissioner report in support of its contention that suit schedule property is part and parcel of the Wakf property. It held that possession of the first respondent was established on the date of filing of the suit and therefore, he is entitled to perpetual injunction as prayed for.
Assailing the same, this revision is filed.
Though counsel for the petitioner sought to contend that the findings recorded by the Tribunal are incorrect, he is not able to show that plaint schedule property is treated as Wakf property. The Muntakhab (Ex.B2) did not mention about it and the Gazette Notification (Ex.A7) also did not mention the municipal number of the subject property. He is also unable to show that notice under Section 54(1) of the Act was served on the first respondent and that the order under Section 54(3) of the Act passed on 10.08.2003 was also served on the first respondent. In any event, once the property is not proved to be Wakf property by the petitioner, notice under Section 54(1) of the Act as well as order under Section 54(3) of the Act would be null and void. Since the first respondent had established his possession and enjoyment of the property by virtue of Exs.A4 to A6, the Tribunal had rightly held that he is also entitled for the relief of perpetual injunction. I, therefore, did not find any error of jurisdiction warranting interference by this Court in exercise of its power under Section 83(9) of the Act.
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Revision, accordingly, fails and is dismissed. There shall be no order as to costs. Miscellaneous applications, if any, pending shall stand dismissed.
_____________________________ (M.S.RAMACHANDRA RAO, J) 10th June 2019 RRB