Bombay High Court
Syed Kausar Shah S/O Mansoor Shah vs Syed Gous Ahmed Shah S/O Syed on 22 August, 2013
Author: S.S. Shinde
Bench: S.S. Shinde
1 cra157.04
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 157 OF 2004
WITH
CIVIL APPLICATION NO. 1138 OF 2012
Syed Kausar Shah s/o Mansoor Shah,
Age: 62 years, Occ: Sajjadanashin,
Mutawalli, and Jagirdar,
R/o. Dargah Mansoor Shah Wali,
New Mondha, Beed,
District Beed. ...APPLICANT
VERSUS
1.
Syed Gous Ahmed Shah s/o Syed
Mansoor Shah,
Age: 64 years, Occ: Nil,
R/o. Bara Sardar Shri. Saheb
Kampoo road, Lashkar, Gwalior- 474 001,
(Madhya Pradesh) Through
his duly constituted Attorney
i.e. G.P.A. Holder Syed Matin
s/o Syed Amiruddin, Age: 40 yrs,
Occ: Business, R/o. Juna Bazar,
Bhandar Galli, Beed.
(died Through L.Rs.)
1A. Smt. Farida w/o Sayed Ghaus Ahmed Shah,
Age: 55 years, R/o. Bada Shri Sahib,
Madhav Ganj Kampoor Road,
Lashkar Gwalior, M.P.
1B. Smt. Faiza d/o Late Syed Ghaus
Ahemad Shah, Aged: 35 years, wife
of Nahadudden Khan, R/o. Bada
Shri Sahib Madhav Ganj Kampoor
Road, Gwalior, M.P. 474 001.
1C. Smt. Hazra d/o Late Syed Ghaus
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Ahemad Shah, Wife of Riyazuddin
Khan, Age: 33 years,
R/o. Bada Shri Sahib Madhav Ganj
Kampoor Road, Gwalior, M.P. 474 001.
2. Marathwada Wakf Board,
Through District Wakf Officer,
Beed, District Beed. ...RESPONDENTS
...
Mr. A.B. Kale, Advocate for revision applicant.
Mr. S.S. Kazi, Advocate for Resp. Nos. 1A to 1C.
...
CORAM : S.S. SHINDE, J.
RESERVED ON : 19-08-2013
PRONOUNCED ON : 22-8-2013
JUDGMENT :
. This Civil Revision Application takes exception to the judgment and order passed by the Presiding Officer, Maharashtra Wakf Tribunal, Aurangabad in Regular Civil Suit No. 23 of 2002 on 17th March, 2004.
2. The revision applicant herein, is the original defendant and the respondent No.1 herein, is the original plaintiff. (For sake of brevity, the parties will be referred to their original ::: Downloaded on - 27/08/2013 21:20:18 ::: 3 cra157.04 status as 'plaintiff' and 'defendant No.1').
. The plaintiff filed suit for declaration that, the land Survey No.3 admeasuring 07 acres 14 guntha situated at Beed is service Inam land belonging to Dargah of Hazrat Mansoor Shah Wali, Beed. The plaintiff sought further declaration that, the plaintiff is 'Mutawali' of above wakf property and continues to be 'Mutawali', in pursuance of the order passed by the Deputy Collector (Atiyat), Beed on 23rd March, 1971. The plaintiff prayed for perpetual injunction restraining the defendant No.1 from interfering and disturbing affairs pertaining to Dargah Mansoor Shah Wali, Beed.
3. According to the plaintiff, agricultural land Survey No. 3 admeasuring 7 acres 14 gunthas (wherein 45 shops are given on rent and there are some open spaces on which brick kilns are running, and Dargah of Hazrat Mansoor Shah Wali, Mosque and graveyard are situated). According to the ::: Downloaded on - 27/08/2013 21:20:18 ::: 4 cra157.04 plaintiff, the aforesaid property is wakf property and conditional service Inam land (Mashroot-ul-
Khidmat) belonging to the religious Institution namely Hazrat Mansoor Shah Wali Dargah. The plaintiff is 'Mutawali' of the said Dargah and he is competent to file suit against the defendants.
The suit lands as well as other lands situated at District Beed, which were notified as service Inam land and wakf properties belonging to Hazrat Mansoor Shah Wali Dargah for the services of said Institution in Maharashtra Gazette.
. It was further case of the plaintiff that, father of the plaintiff namely Syed Khader Shah was munktahab holder bearing Muntakhab No. 1868/1354F/785/1297/F/1737/1314F/1380iE 1971 AD Fasli and after his death, succession was sanctioned by the Deputy Collector (Atiyat) in the name of plaintiff in the year 1971 AD vide his order dated 23rd March, 1971 in Case No. Inam W358/66. It was further case of the plaintiff that, succession in his favour was granted by the ::: Downloaded on - 27/08/2013 21:20:18 ::: 5 cra157.04 Deputy Collector (Atiyat) and accordingly, mutation entries were taken in his name in the revenue record. The plaintiff being 'Mutawali' is looking after the management of the Dargah. It was further case of the plaintiff that, he is declared as 'Sajjadanashin' and 'Mutawali' of said Dargah by the competent Court and even he is held entitled to operate Khata No. 579 and to recover the amount of Mahl-E-Shart in respect of said Dargah from the office of Commissioner (Jagir Branch), Aurangabad on 6th December, 1966. Since the plaintiff is sole 'Sajjadanashin' and 'Mutawali' and therefore, he is having full control over the management and supervision of the properties dedicated for the performance of services to the said Dargah exclusively without anybody's interference.
4. It was further case of the plaintiff that, he has appointed Mr. Syed Moinuddin as his Mukhtar-E-Alam i.e. G.P.A., then Mr. Hamid Khan and then Mr. Asadullah Khan and thereafter, Mr. ::: Downloaded on - 27/08/2013 21:20:18 ::: 6 cra157.04 Syed Kausar Shah i.e., defendant No. 1 was also appointed as General Power of Attorney Holder of the plaintiff. It is further case of the plaintiff that, since the defendant No. 1 started misappropriation of movable and immovable properties of the said Dargah, the plaintiff immediately cancelled his power of attorney by registered document dated 16th August, 2000 and accordingly, news was published in the newspaper 'Champawati' dated 18th August,2000. After removing original defendant No. 1, the plaintiff appointed Syed Matin s/o Syed Amiruddin as his G.P.A. on 7th June, 2001 and he is the only person authorised to do all acts on behalf of the plaintiff.
. It was the case of the plaintiff that, the defendant No.1 adopted revengeful attitude and started collecting rent of several months in advance from the persons occupying the shops which caused substantial loss to the Dargah and also to the plaintiff. Therefore, the plaintiff was ::: Downloaded on - 27/08/2013 21:20:18 ::: 7 cra157.04 constrained to file application to the Collector, Beed complaining that, even after cancellation of G.P.A. on 16th August, 2000, the defendant No.1 continues to collect the rent of the properties of Dargah, therefore, necessary action may be taken against the defendant. It was further case of the plaintiff that, there are series of documents which show that, the defendant No. 1 has acted as G.P.A. of the plaintiff even in Suit bearing R.C.S. No. 189 of 1995.
. It was further case of the plaintiff that, the plaintiff was surprised to know that, the defendant No. 1 filed an application before the Deputy Collector (Atiyat), Beed challenging succession which is already granted in favour of the plaintiff as far back as 30 years before, and said authority i.e., the Deputy Collector, passed the order arbitrarily without considering the jurisdiction of the Court, limitation for filing the application, tenability of the application, power of the Court to modify its own orders after ::: Downloaded on - 27/08/2013 21:20:18 ::: 8 cra157.04 30 years. The said authority has also not considered, whether the previous orders of the Court are final and binding or not? It was the case of the plaintiff that, orders passed by the Deputy Collector (Atiyat), Beed are beyond the jurisdiction of said authority under the provisions of Hyderabad Atiyat Inquiries Act, 1952. According to the plaintiff, two applications were filed by the defendant No.1 on 12th June, 2001 and 13th June, 2001, which were not maintainable.
5. It is further case of the plaintiff that, there is no provision that, a case already decided can be reopened after period of 30 years and that too, by officer of the same rank. As rules framed and in particular rule 12(1) of the Hyderabad Atiyat Inquiries Act, 1952, requires that, the Court may for sufficient cause condone the delay in the submission of a claim. The power to condone the delay upto six months is vested with the Deputy Collector, upto one year with the ::: Downloaded on - 27/08/2013 21:20:18 ::: 9 cra157.04 Collector, upto two years with the Nazim Atiyat, and upto three years with the Board of Revenue.
. It is further case of the plaintiff that, he did challenge the order of the Deputy Collector (Atiyat), Beed before the Collector. However, the appeal filed by the plaintiff came to be dismissed. It was the case of the plaintiff that, since he was suffering from serious ailments, he was constrained to appoint G.P.A. and accordingly, his G.P.A. was appointed. It was further case of the plaintiff that, the defendant No.1 on 5th August, 2002 demanded rent from the tenants of Dargah premises and at that time, the plaintiff (G.P.A. Syed Matin) warned him not to collect the rent amount as those orders of Deputy Collector and Collector (Atiyat), Beed are without jurisdiction and when the plaintiff is 'Mutawali' who has removed the defendant No.1 as G.P.A., there is no reason for the defendant No.1 to collect the amount of rent and to interfere in the management of the Dargah, even then the defendant ::: Downloaded on - 27/08/2013 21:20:18 ::: 10 cra157.04 No. 1 did not pay any heed and continued to interfere in the management of said Dargah and continued to collect the rent. Therefore, the plaintiff was constrained to file the suit.
6. The plaintiff filed suit on various grounds which are stated in the plaint from paragraphs-13 to 19. The plaintiff prayed that, it should be declared that, the suit land Survey No. 3 admeasuring 7 Acres 14 gunthas sitauted at Inam land belongs to Dargah Mansoor Shah, Masjid, Graveyard, tomb and Ashoorkhna. Secondly, the defendant No. 1 be ordered and be perpetually restrained from interfering and disturbing in peaceful management of the affairs of the said Dargah which is being managed by the plaintiff. He sought further declaration that, the plaintiff is only 'Mutawali' of wakf property namely Dargah Hazrat Mansoor Shah Masjid, Graveyard, tomb and Ashoorkhana. Further prayer was that, the orders passed by the Deputy Collector (Atiyat), Beed dated 18th September, 2001 and Additional ::: Downloaded on - 27/08/2013 21:20:18 ::: 11 cra157.04 Collector (Atiyat), Beed dated 23rd July, 2002 be declared as void, illegal and ineffective and not binding on the plaintiff. The plaintiff further prayed for permanent injunction restraining the defendant No.1 from interfering in the peaceful possession of the plaintiff over the wakf property.
7. The original defendant No. 1 filed written statement in the said suit thereby denying all the allegations made in the plaint and questioning the jurisdiction of the Wakf Tribunal to entertain the plaint thereby claiming the relief of declaration that, the plaintiff is 'Mutawali' and also other reliefs sought in the plaint. According to the defendant No. 1, the Wakf Tribunal had no jurisdiction to entertain the issue in respect of the 'Mutawali'. The defendant No. 1 also pleaded that, under the Hyderabad Atiyat Inquiries Act, 1952, it is only the authorities appointed and acting under the said Act have jurisdiction to entertain any question ::: Downloaded on - 27/08/2013 21:20:18 ::: 12 cra157.04 which would arise in respect of succession or 'Mutawali'. The defendant No.1 also raised objection about maintainability of the suit which was filed by the G.P.A. on behalf of the plaintiff. The defendant No. 1 further questioned the reliefs claimed by the plaintiff on the ground that, the Wakf Tribunal has no jurisdiction to entertain the claims/prayers made by the plaintiffs. It was also contention of the defendant No. 1 that, it is only Wakf Board which can have jurisdiction dealing with question of 'Mutawali'. The other contentions were also raised in the written statement.
8. The Wakf Tribunal framed five issues at Exhibit-39 and after recording evidence and after hearing the parties, decided the suit finally on 7th March, 2004. The Wakf Tribunal held that, the plaintiff is declared as 'Sajjadahnashin Mutawali' of the wakf in the name of Dargah Mansoor Shah Wali, Masjid, Graveyard, Tomb and Ashur Khana situated in the land survey No. 3 admeasuring 7 ::: Downloaded on - 27/08/2013 21:20:18 ::: 13 cra157.04 Acres 14 Gunthas situated at proper Beed. The defendant No. 1 be restrained from interfering and disturbing administration and management of the wakf and its properties.
9. Being aggrieved by the said judgment and order passed by the Presiding Officer, Maharashtra Wakf Tribunal, Aurangabad, this Civil Revision Application is filed by the original defendant No.1. This Civil Revision Application is heard time to time by this Court and on 6th February, 2012 this Court directed the respondent not to crate third party interest in the property, said interim order was continued until further orders by order dated 24th February, 2012. The matter is taken up for final hearing. The learned Counsel appearing for the parties advanced their arguments at length. They have also produced the documents on record in support of their contentions. The learned Counsel appearing for the parties have filed written notes of arguments. The learned Counsel appearing for the revision applicant i.e, ::: Downloaded on - 27/08/2013 21:20:18 ::: 14 cra157.04 original defendant No.1 made following submissions.
. It is submitted that, the revision applicant is the son of Syed Mansoor Shah and the respondent No. 1 is the elder son of the said Syed Mansoor Shah. The applicant and the respondent No. 1 were having one more brother namely, Mukhtaar-
ul-Hasan. The revision applicant is residing at Beed, whereas the elder son Syed Gous Ahmed Shah i.e, respondent No. 1 herein, and Mukhtaar-ul-
Hasan are permanently residing at Gwalior. It is further submitted that, the land bearing Gat No.3 admeasuring 7 Acres and 14 Gunthas, is Service Inam Land belonging to Dargah Hazrat Mansoor Wali Shah, Beed. It is a family trust and after death of Syed Manasoor Shah, the respondent No.1 alongwith the applicant are declared as successors of said Syed Mansoor Shah. Since the respondent No. 1 was the eldest son, his name was shown in Column No. 5 of Succession order, which was passed by the Sub Divisional Officer, Beed on 23rd March, ::: Downloaded on - 27/08/2013 21:20:18 ::: 15 cra157.04 1971. The learned Counsel invited my attention to the copy of the order passed by the Sub Divisional Officer, Beed on 23rd March, 1971 placed on record alongwith written notes of arguments.
. It is further submitted that, the said succession was issued on the basis of Muntaka No. 1868/1354-F/785/1297/F2737/1814/F. The father of the applicant and the respondent No.1 expired on 6th May, 1976. If the succession is perused, then it can be seen that, it is declared that, the applicant and other family members are share holders in the said Dargah and the liability was casted upon the respondent No.1 since he is eldest in the family. It is further submitted that, since the applicant was residing at Beed and there was family arrangement as the respondent No.1 and his another brother Mukhtar-Ul-Hasan were residing at Gwalior,some of the properties situated at Gwalior were looked after by the respondent No. 1 and other brother. It is further submitted that, so far as the property situated at Beed is concerned, ::: Downloaded on - 27/08/2013 21:20:18 ::: 16 cra157.04 it was to be managed by the applicant. It was also in this context that, the person who is performing day to day prayers and is maintaining the Dargah, is the person can be said to be 'Mutawali' of the said Dargah and since present applicant was residing there, he was performing day to day Puja-
Archa of the said Dargah. While maintaining the said Dargah, the applicant found some difficulties so as to litigate the proceedings against tenants therein and to pursue various officers, therefore, General Power of Attorney was given to the applicant by respondent No.1. The learned Counsel invited my attention to the copy of the General Power of Attorney placed on record alongwith the compilation of Civil Revision Application.
10. It is further submitted that, the applicant since beginning performing duties of the said Dargah and therefore, is acting as Mutawali of the said Dargah. The dispute arose only when the respondent No.1 cancelled the General Power of Attorney and has tried to interfere in the said ::: Downloaded on - 27/08/2013 21:20:18 ::: 17 cra157.04 Dargah. Since he was not in a position to remain present daily at Beed, he has given his General Power of Attorney to one Syed Matin, who is no way concerned with his family. It is further submitted that, when this dispute arose, the applicant immediately approached to the Sub Divisional Officer, Beed by filing application for inquiry under section 5 of the Hyderabad Atiyat Inquiries Act, 1952 thereby inter-alia claiming that, though the applicant is successor of Syed Mansoor Shah and though his name is mentioned in the succession certificate, in the column No. 5 only one name is mentioned of the respondent No.1, and therefore, requested to correct the said succession thereby incorporating names of all three sons of Syed Mansoor Shah i.e., the applicant, respondent No.1 and Mukhtaar-Ul-Hasan.
The said application was filed in view of section 5 of the Hyderabad Atiyat Inquiries Act, 1952.
. It is further submitted that, it is clear from section 5 of the Hyderabad Atiyat Inquiries ::: Downloaded on - 27/08/2013 21:20:18 ::: 18 cra157.04 Act, 1952 that, a person aggrieved can file proceedings or suo moto authority can exercise the powers regarding breach of conditions contained in any Muntakhab or Vasiqa relating to an Atiyat grant or for other sufficient cause, the Government after giving an opportunity to the holder of Atiyat grant to be heard, may by order resume the grant or modify the terms and conditions specified in any Muntakhab or Vaisqa relating thereto or pass such orders in respect of Atiyat grant. Therefore, since the respondent No. 1 was not attending the duties and performing functions and name of the applicant was not mentioned in the Column No. 5, the inquiry was conducted by the Sub Divisional Officer and after considering report submitted by the Tahsildar, Beed, as contemplated under section 5 of the Hyderabad Atiyat Inquiries Act, 1952, has passed an interim order on 18th September, 2001 thereby the applicant was directed to perform Puja-Archa and has directed to manage further charge of the said Dargah, as the applicant was found in ::: Downloaded on - 27/08/2013 21:20:18 ::: 19 cra157.04 possession. It is further submitted that, it is also found in the said inquiry that, the applicant is performing Puja-Archa and maintaining the said Dargah from last 20-25 years and therefore, by way of interim arrangement the applicant was directed to look after the said Dargah. The learned Counsel invited my attention to the copy of the order passed by the Sub Divisional Officer, Beed placed on record alongwith the compilation of Civil Revision Application.
11. It is further submitted that, the said order was again challenged by filing revision before the Commissioner, Aurangabad by the present respondent. Not only this, the respondent No.1 herein has also filed R.C.S. No. 23 of 2002 on 2nd September, 2002 in respect of land bearing Survey No. 13 admeasuring 7 acres and 14 gunthas situated at Beed, which is service inam land belonging to Dargah Hazrat Mansoor Wali Shah, Beed thereby inter-alia claiming as follows :
::: Downloaded on - 27/08/2013 21:20:18 :::20 cra157.04 I. Suit for declaration.
II. To be declared that the plaintiff is Mutawali of above wakf propery in pursuance to the order passed by the Deputy Collector (Atiyat) dated 23rd March, 1971 granting succession.
III. For perpetual injunction restraining defendants therein from interfering in affairs pertaining to Dargah Hazrat Mansoor Wali Shah, Beed.
. It is further submitted that, the order passed by the Additional Collector, Beed was challenged by filing Revision before the Commissioner, Aurangabad bearing Revision No. 64/B/2002/Beed. The said revision was also dismissed on 24th October, 2005. The learned Counsel invited my attention to the copy of the order passed by the Divisional Commissioner, Aurangabad Division, Aurangabad dated 24th October, 2005 placed on record alongwith written notes of arguments.
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12. It is further submitted that, the suit which is filed by the respondent No. 1 herein was contested by the applicant on the ground that, the suit is not maintainable since as per Section 84, the powers are not vested with the Tribunal to decide claims which are made in the said suit since the case squarely covered under the Hyderabai Atiyat Inquiries Act, 1952, therefore, the Tribunal was not having jurisdiction to decide the same. It is further submitted that, the G.P.A. holder is not competent to prosecute the proceedings and he can not be said to be a person as Mutawali. It is also pointed out from the pleadings in the plaint that, the respondent No.1 himself has admitted that, he is not performing Puja-Archa and has appointed G.P.A. holder for this purpose since he is residing at Gwalior and he is not able to attend Puja-Archa at Beed regularly. By raising this and other grounds, the applicant contested the said suit. The said suit was then after finally decided by the Tribunal on 17th March, 2004. The learned Counsel invited my ::: Downloaded on - 27/08/2013 21:20:18 ::: 22 cra157.04 attention to the copy of the order passed by the Tribunal on 17th March, 2004 placed on record alongwith compilation of Civil Revision Application.
. It is further submitted that, in spite of order passed in the suit on 17th March, 2004, the applicant was directed by the competent authority constituted under the Act to look after and manage properties and has declared that the applicant is the only person to look after the said Dargah, by its final judgment and order dated 24th October, 2005, i.e. the order passed by the Divisional Commissioner, Aurangabad.
. It is further submitted that, as on today, the position is that, the inquiry under section 5 of the Act is pending before the Sub Divisional Officer, Beed and to that effect, the applicant is placing reliance on some documents so as to point out that, the matter is pending before the Sub Divisional Officer, Beed.
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. It is further submitted that, the
applicant has challenged the order passed by the Maharashtra Wakf Tribunal on the ground that, the observations of the Tribunal are perverse, contrary to the record. It is submitted that, though the competent authority after holding proper inquiry has came to the conclusion that, the applicant is performing duties and residing at Beed, and though it is noticed by the Tribunal that the respondent No.1/original plaintiff was residing at Gwalior, still injunction is clamped against the applicant, which is totally contrary to the order passed by fact finding authority under the Act.
13. It is further submitted that, the order passed by the Tribunal is without jurisdiction.
The relief claimed in the suit could not have been granted in view of Section 84 of the Wakf Act, as well as in view of remedy provided under section 5,11 and 13 of the Hyderabad Atiyat Inquiries Act, ::: Downloaded on - 27/08/2013 21:20:18 ::: 24 cra157.04 1952. It is also submitted that, an outsider cannot be appointed as 'Mutawali' of the said Dargah since it is private trust and only family members are required to perform prayers and maintain Dargah. It is further submitted that, the Tribunal also having no jurisdiction in view of section 7 of the Wakf Act. The 'Mutawaliship' cannot be termed to be property and therefore, it cannot be said that, it is wakf dispute and therefore, Tribunal has no jurisdiction. The appointment of "Mutawali' and removal is a duty caste upon Board and not on Tribunals, therefore, Tribunal exceeded its jurisdiction, thereby giving declaration in favour of the respondent No.1.
. It is further submitted that, so far as the case of the respondent i.e., original plaintiff, is concerned, though he has admitted that, he is not performing day to day affairs, but still on the basis of succession certificate which was issued in the year 1971, plaintiff is claiming that, he is 'Mutawali' of the said Dargah and can ::: Downloaded on - 27/08/2013 21:20:18 ::: 25 cra157.04 appoint G.P.A. holder. The fact remains that, so far as the dispute on the point of appointment of 'Mutawali' or succession is concerned, cannot be gone into in proceedings before the Tribunal, since so far as the appointment part of 'Mutawali' is concerned, is squarely covered under jurisdiction of the Civil Court, since the Civil Court is competent Court to adjudicate issue of 'Mutawaliship', and so far as the succession part is concerned, it is dispute which can be resolved only before Atiyat Inquiry Court and therefore, suit filed by the respondent No.1 itself is not maintainable.
14. It is further submitted that, so far as interim arrangements are concerned, since it is admitted fact that the inquiry is pending before the Sub Divisional Officer, Beed under the Hyderabad Atiyat Inquiries Act, 1952, then during the pendency of final adjudication of the said proceedings, interim arrangement made by the competent authorities by their orders, which are ::: Downloaded on - 27/08/2013 21:20:18 ::: 26 cra157.04 confirmed till the Commissioner, the same is required to be followed since there is no further challenge to the same. The entire issue can be disposed of by directing the Sub Divisional Officer to hold final inquiry and decide the matter pending before it by maintaining interim order passed by Atiyat Court. The respondent i.e., plaintiff is litigating the matter without there being any legal right in their favour. It is further submitted that, it is an admitted fact that, the respondent No.1 is expired and is no more, therefore, person who was holding G.P.A. is also not having any right. It is also brought on record that, the legal heirs of respondent No.1 namely Hazra, who is only lady claiming that, she is 'Mutawali'. The succession given in her favour in 2008 is also challenged by the applicant by filing appeal before the competent authority and same is also pending. The learned Counsel invited my attention to the copy of the appeal memo challenging succession of respondent No.1, which is placed on record alongwith written notes of ::: Downloaded on - 27/08/2013 21:20:18 ::: 27 cra157.04 arguments.
. It is further submitted that, during pendency of Civil Revision Application, the G.P.A. holder of the respondent No.1 has disposed of many properties though the respondent No.1 Gaus Ahmed is expired in the year 2004, his G.P.A. was terminated then and then only, but still the G.P.A. holder of the respondent No.1 i.e., Mr. Syed Matin has disposed of many properties by letting out same to various tenants and by obtaining huge amount from them. It is further submitted that, it is, therefore, clear that, in stead of managing affairs of the Dargah Mr. Matin is earning money and without giving same even as per share mentioned in the succession and therefore, the G.P.A. in his favour is illegal.
Therefore, it would be in the fitness of things that, the order passed by the Tribunal may be set aside, and the inquiry pending under section 5 of the Act before the Atiyat Court be directed to be decided, and in the meantime interim order passed ::: Downloaded on - 27/08/2013 21:20:18 ::: 28 cra157.04 by the Atiyat Court may be continued till final decision of inquiry pending under section 5 of the Act.
15. The learned Counsel appearing for the revision applicant on the basis of averments in the Civil Revision Application, annexures thereto, provisions of Hyderabad Atiyat Inquiries Act, 1952, provisions of Wakf Act, 1995, judgments of the Supreme Court, this Court and also other High Courts and written notes of arguments submits that, the impugned judgment and order deserves to be quashed and set aside.
16. At the cost of repetition, the learned Counsel appearing for the revision applicant submits that, General Power of Attorney holder cannot file suit, Wakf Tribunal had no jurisdiction to entertain the suit and grant declaration in favour of the plaintiff as 'Mutawaliship and Sajjadanshinship'. The learned Counsel appearing for the revision applicant ::: Downloaded on - 27/08/2013 21:20:18 ::: 29 cra157.04 relying upon the exposition of the Apex Court in the case of Sardar Khan and others vs. Syed Najmul Hasan (Seth) and others [2007 AIR (SC) 1447] submitted that, Wakf Tribunal had no jurisdiction to entertain the suit filed by the plaintiff. It is further submitted that, Calcutta High Court in the case of Mst. Zohra Khatoon vs. Janab Mohammad Jane Alam and others [A.I.R. 1978 Calcutta 133(1)] held that, Wakf Tribunal has no jurisdiction to consider issue of 'Mutawaliship'. The learned Counsel further invited my attention to the judgment of the Calcutta High Court in the case of Sk. Abdul Mannan and others vs. Mutawali of Sm.
Janebali and others [A.I.R. 1956 Calcutta 584] and submitted that, where a Mutawali executes a deed purporting to transfer Mutawaliship for which no power or provision is to be found in the relevant Wakafnamas and that again to a person who would not certainly be in the immediate lines of succession or devolution, as laid down in the said document, such a transfer cannot be upheld under ::: Downloaded on - 27/08/2013 21:20:18 ::: 30 cra157.04 the Mohammedan Law and, the transfer being invalid, the deed must fail to have any legal effect.
. The learned Counsel appearing for the revision applicant invited my attention to the judgment of the Madras High Court in the case of A.M. Ali Akbar and another vs. Keelakarai South Street Jamath Masjid Paripalana Committee and others [A.I.R. 2001 Madras 431] and submitted that, it cannot be said that the word used "any dispute" shall also mean a dispute relating to the Managing Committee. The learned Counsel further invited my attention to the judgment of Patna High Court in the case of Md. Moinuddin vs. Md. Mustafa and others [A.I.R. 2010 Patna 24] and submitted that, Wakf Tribunal does not have jurisdiction in respect of suits pending prior to commencement of the Act. The learned Counsel appearing for the revision applicant relying upon the judgment of the Division Bench of this Court in the case of ::: Downloaded on - 27/08/2013 21:20:18 ::: 31 cra157.04 Smt. Mehmooda Begum w/o Mohd. Abdul through G.P.A. Mohd. Abdul Mannan s/o Mohd. Abdul Rahim [2000(2) Bom.C.R. 794] submitted that, where the title of Inamdar itself was in cloud he could not introduce a lessee on the wakf property.
17. The learned Counsel appearing for the revision applicant invited my attention to the relevant provisions of section 5 of the Hyderabad Atiyat Inquiries Act, 1952. He also invited my attention to the provisions of Section 63 of the Wakf Act, 1995 and submitted that, it is only Wakf Board which is competent authority to decide the issue of 'Mutawaliship'. The learned Counsel also invited my attention to page-18 (Exhibit-A) of the compilation of Civil Revision Application and submitted that, the authorities under the Hyderabad Atiyat Inquiries Act, 1952 have jurisdiction to issue succession. He invited my attention to the statement regarding sanction of succession i.e. Exhibit-A and submitted that, the revision applicant i.e., defendant No.1 is brother ::: Downloaded on - 27/08/2013 21:20:19 ::: 32 cra157.04 of the plaintiff and therefore, the defendant No. 1 has every right to act as 'Mutawali'. The learned Counsel further submits that, when the inquiry under section 5 of Hyderabad Atiyat Inquiries Act, 1952 is pending, the Wakf Tribunal should not have entertained the suit filed by the plaintiff, that too, by his General Power of Attorney Holder. The learned Counsel submitted that, relationship between the plaintiff and the defendant No.1 is not in dispute. It is submitted that, the plaintiff is residing at Gwalior and not performing his duties towards Dargah at Beed. The defendant No. 1 is continuously performing all religious functions for more than 30 years and therefore, according to the learned Counsel appearing for the revision applicant, in view of the provisions under the Hyderabad Atiyat Inquiries Act, 1952 it is only the person who performs Pooja and discharge his duties in person, has right to continue and look after the wakf and its properties.
::: Downloaded on - 27/08/2013 21:20:19 :::33 cra157.04 . The learned Counsel appearing for the revision applicant submitted that, the Tahasildar has rightly held in favour of the revision applicant. Being aggrieved by the order of the Tahasildar, an appeal was filed by the plaintiff, however, the said appeal was also dismissed.
Thereafter, the plaintiff filed revision petition before the Divisional Commissioner, Aurangabad Division, Aurangabad, however, the said Revision is also rejected. The sum and substance of the arguments of the Counsel for the revision applicant is that, once the inquiry is initiated under the Hyderabad Atiyat Inquiries Act, 1952, the Wakf Tribunal should not have entertained the suit since it had no jurisdiction to grant relief as claimed by the plaintiff. Therefore, relying upon the averments in the application, grounds taken therein, annexures thereto, provisions of Hyderabad Atiyat Inquiries Act, 1952, provisions of the Wakf Act, 1995, written notes of arguments filed alongwith relevant documents and judgment cited across the bar, the Counsel appearing for ::: Downloaded on - 27/08/2013 21:20:19 ::: 34 cra157.04 the revision applicant submits that, the Civil Revision Application deserves to be allowed.
18. On the other hand, the learned Counsel appearing for the original plaintiff relying upon the material placed on record including written notes of arguments made following submissions.
. The revision applicant namely Syed Kausar Shah was appointed as G.P.A. by the original plaintiff Syed Gause Ahmed Shah to look after the affairs of Dargah Hazrat Mansoor-Shah-Wali, situated at Beed. The G.P.A. was executed on 24th August, 1980. It is further submitted that, thereafter, since 1980 till 2000 the applicant Kausar Shah had worked as G.P.A. holder and this fact is admitted by him in his cross examination before the Wakf Tribunal and hence, G.P.A. holder cannot have any right the moment he is removed.
The plaintiff Gause Ahmed Shah on 16th August, 2000 had cancelled the G.P.A. which was executed in favour of the applicant Kausar Shah in the year ::: Downloaded on - 27/08/2013 21:20:19 ::: 35 cra157.04 1980.
19. It is further submitted that, it is only thereafter the applicant/defendant NO.1 raised a banner of Revolt against his own master and has continued the illegal act of collecting rent from 45 shops, the plaintiff and his newly appointed G.P.A. Syed Matin had requested the applicant/Kausar Shah that he should not collect rent but the applicant/defendant No.1 had turned down the request and spread a rumor that he is the 'Mutawali' and Gause Ahmed Shah (original plaintiff) is having no right to collect the rent.
Therefore, the plaintiff was constrained to file a suit before the Wakf Tribunal, Aurangabad bearing R.C.S. No. 23 of 2002.
. It is further submitted that, during pendency of the suit the learned Presiding Officer vide order dated 27th September, 2002 was pleased to grant exparte injunction restraining the defendant No.1/applicant from interfering in ::: Downloaded on - 27/08/2013 21:20:19 ::: 36 cra157.04 management of Dargah and also restrained the defendant No.1 to collect rent, the said relief continued till application Exhibit-5 was decided.
It is further submitted that, while deciding application Exhibit-5 the learned Presiding Officer, Wakf Tribunal continued temporary injunction against the defendant No.1 but has also directed the Wakf Board to take the charge and therefore, the plaintiff approached the Hon'ble High Court by filing Civil Revision Application No. 186 of 2003. The Hon'ble High Court vide order dated 22nd April, 2003 was pleased to stay the execution and operation of the order below Exhibit-5 dated 28th February, 2003 and was also pleased to allow the plaintiff to continue to function as 'Mutawali'. It is further submitted that, it is matter of record that, this Court continued the interim relief till the disposal of the suit.
20. It is further submitted that, the plaintiff has examined four witnesses to prove his ::: Downloaded on - 27/08/2013 21:20:19 ::: 37 cra157.04 case. The plaintiff himself entered the witness box and has deposed that, the defendant No.1 was appointed as his G.P.A., and therefore after cancellation of the G.P.A. the defendant No. 1 had no right to interfere. The plaintiff in his evidence has also stated that, prior to Kusar Shah he had appointed other persons such as Syed Mohiuddin, thereafter Abdul Hamid Khan and after him one Asadulla as G.P.A. Even the plaintiff has deposed before the Court that, his father and grandfather also used to appoint G.P.A. for looking after the affairs of Dargah. It is further submitted that, during the course of cross examination of the plaintiff namely Gause Ahmed Shah, it has come on record that, the applicant/defendant No.1 Kausar Shah came to Beed in the year 1980 and since 1980 to the year 2000 there was no any dispute between the parties. It has also come on record that, the defendant No.1 was mismanaging and misappropriating the income and has not paid Wakf Fund, therefore, the plaintiff has cancelled the G.P.A. and appointed ::: Downloaded on - 27/08/2013 21:20:19 ::: 38 cra157.04 another person Syed Matin on 7th June,2001. It has also come on record that, the suit filed by the G.P.A. Syed Matin was at plaintiff's/Gause Ahmed Shah's instance.
. It is further submitted that, other witnesses examined by the plaintiff have also deposed that, the plaintiff is 'Mutawali' and defendant Kausar Shah has no right. Even the District Wakf Officer Shaikh Maqsood entered the witness box and has made a categorical deposition at Exhibit-66 that, the plaintiff is 'Mutawali'.
21. It is further submitted that, so far the evidence of defendant No. 1 is concerned, in his cross examination at Exhibit-58, he has admitted that, Wakf Board has not appointed him as a 'Mutawali', he also admitted that, the plaintiff has executed G.P.A. The learned Counsel invited my attention to the copy of the cross examination of the defendant No. 1 as well as plaintiff and other witnesses placed on record alongwith written notes ::: Downloaded on - 27/08/2013 21:20:19 ::: 39 cra157.04 of arguments.
. It is submitted that, the learned Presiding Officer vide his judgment and order dated 17th March, 2004 decreed the suit and restrained the defendant No. 1 from interfering and disturbing in the management of the Wakf i.e. Dargah. It is further submitted that, the defendant No.1 thereafter had filed the Writ Petition No. 2401 of 2004. The respondents took objection regarding maintainability of the same, vide order dated 30th April, this Court granted status quo as on 30th April, 2004 in the Writ Petition No. 2401 of 2004 and thereafter, said writ petition was withdrawn by the applicant and while admitting the C.R.A. this Court vide order dated 10th September, 2004 continued the ad-
interim relief granted earlier i.e. status quo as on 30th April, 2004 and hence it is submitted that, during pendency of the suit the defendant NO.1 was restrained from interfering in the management of Dargah and from collecting rent and ::: Downloaded on - 27/08/2013 21:20:19 ::: 40 cra157.04 same position continued during pendency of the Civil Revision Application.
22. It is further submitted that, so far the contention of the revision applicant regarding the enquiry under section 5 of Hyderabad Atiyat Inquiries Act, 1952 is concerned, it is submitted that, during the life time of Syed Gause Ahmed Shah the matter was pending before the Divisional Commissioner and stay to the inquiry was granted and the plaintiff Gause Ahmed Shah died on 9th October, 2004 and with his death, the inquiry under section 5 of the said Act stood dissolved as there cannot be any inquiry against the dead person. It is further submitted that, after the death of deceased plaintiff Gause Ahmed Shah the daughters and widow applied for grant of succession before the Deputy Collector (Atiyat) and the defendant No.1 raised an objection for grant of succession, but the Deputy Collector (Atiyat) vide order dated 10th April, 2008 granted succession in favour of eldest daughter Hajra Khan ::: Downloaded on - 27/08/2013 21:20:19 ::: 41 cra157.04 w/o Riyazuddin Khan. The learned Counsel invited my attention to the copy of the order passed by the Deputy Collector (Atiyat), Beed dated 10th April, 2008 placed on record alongwith written notes of arguments.
23. The learned Counsel appearing for the respondent i.e., original plaintiff submits that, reliance placed by the Counsel for the defendant No.1 on the judgments of Supreme Court, this Court and various High Courts are misplaced in the facts of the present case.
24. The learned Counsel appearing for the plaintiff invited my attention to the copies of documents which are placed on record alongwith written notes of arguments and in particular cross examination of the defendant No.1 and submitted that, the defendant No.1 in his cross examination has admitted that, he has no any document to show that, he is appointed as 'Mutawali' and the defendant No. 1 was his G.P.A. holder. The Counsel ::: Downloaded on - 27/08/2013 21:20:19 ::: 42 cra157.04 also invited my attention to the evidence of the plaintiff in the nature of cross examination and submits that, the plaintiff was appointed as 'Mutawali' of the said Wakf. The Wakf Board has issued such order. The officer of the Wakf Board deposed before the Wakf Tribunal that, the plaintiff is appointed as 'Mutawali' to look after the said Dargah. He also submits that, the plaintiff is no more and now, the competent authority has issued succession certificate in the name of daughter of the plaintiff. It is submitted that, one Syed Matin is appointed as G.P.A. holder and there is no bar to institute the suit by the G.P.A. on behalf of the plaintiff. It is submitted that, the defendant No.1 himself has made statement in the cross examination that, now he is not collecting rent of shops. It is submission of the Counsel for the plaintiff that, by virtue of interim orders passed by the Wakf Tribunal time to time, the plaintiff through G.P.A. has full control over the management of the said Dargah and he looks after the wakf ::: Downloaded on - 27/08/2013 21:20:19 ::: 43 cra157.04 properties.
. The learned Counsel invited my attention to the judgment of the Andra Pradesh High Court in the case of Syed Gulam Sarwar Biabani and others vs. Afzalunnisa Begum and others [AIR 2004 AP 485] and submitted that, if the family tree shows that the office of 'Mutawalishjip and Sajjadanship' had never gone out of family, in that case descendant of the said family would occupy offices. The submission of the Counsel appearing for the plaintiff is that, by way of succession the plaintiff is appointed at 'Mutawali'. The Counsel for the plaintiff further invited my attention to the reported judgment of the Division Bench of Madras High Court in the case of Salam Khan and etc., vs. T.N. Wakf Board, Chennai and others etc. [AIR 2005 Madras 241] and submits that, the judgment of the Madras High Court in the case of A.M. Ali Akbar and another (supra), relied upon by the Counsel appearing for the applicant has been ::: Downloaded on - 27/08/2013 21:20:19 ::: 44 cra157.04 overruled by the Division Bench of Madras High Court in the case of Salam Khan (supra). It is submitted that, Madras High Court in the case of Salam Khan (supra), has taken a view that, dispute relating to wakfs should be filed in first instance before Wakf Tribunal. It is further submitted that, a party can invoke jurisdiction of Wakf Tribunal for determination of any dispute, question or other matters relating to wakf or wakf property even if no order has been passed under the Act. The learned Counsel appearing for the original plaintiff also submits that, Wakf Tribunal has all powers to grant temporary injunctions and enforce such injunctions like Civil Court.
25. The learned Counsel appearing for the plaintiff further pressed into service reported judgment of the Bombay High Court in the case of Mohd. Minhajuddin Shaikh Habib Qureshi Died through his legal representatives and others vs. State of Maharashtra and others [2006(2) Bom.C.R. ::: Downloaded on - 27/08/2013 21:20:19 ::: 45 cra157.04 172] and invited my attention to paragraph-18 thereof. He submits that, this Court in the facts of that case, held that, though the Mahomedan Law does not recognize any right of inheritance to the office of Mutawalli but the office may become hereditary by custom, in such case, custom should be followed. The learned Counsel further pressed into service exposition of Allahabad High Court in the case of Maulvi Abdul Rahman Siyai vs. Sardar Maqbool Hasan and others [AIR 2009 Allahabad 62] and in particular Head Note (B) thereof. He submits that, Allahabad High Court in the said judgment has taken a view that, appointment of Mutawalli or Committee for management of wakf will fall within ambit of expression 'other matter relating to a wakf or wakf property' and can be decided by Wakf Tribunals. The learned Counsel further pressed into service exposition of Supreme Court in the case of Board of Wakf, West Bengal and another vs. Anis Fatma Begum and another [2010 ALL SCR 2690] and in particular paragraph-10 ::: Downloaded on - 27/08/2013 21:20:19 ::: 46 cra157.04 thereof. He submits that, all matters pertaining to Wakfs should be filed in the first instance before the Wakf Tribunal constituted under section 83 of the Wakf Act, 1995 and should not be entertained by the Civil Court or by the High Court straightway under Article 226 of the Constitution of India as held in the aforesaid judgment. The learned Counsel further invited my attention to the judgment of the Supreme Court in the case of Syed Mohideen and another vs. Ramanathapura Peria Mogallam Jamath and others [2011 ALL SCR 1547] and submits that, Wakf Tribunal is empowered to exercise all the powers like Civil Court while trying a suit or executing a decree or order. Therefore, he submits that, the Wakf Tribunal has rightly entertained the suit and granted reliefs after appreciating rival contentions and therefore, this Court may not interfere in the impugned judgment and order.
. The learned Counsel appearing for the original plaintiff invited my attention to the ::: Downloaded on - 27/08/2013 21:20:19 ::: 47 cra157.04 provisions of Section 13 of the Hyderabad Atiyat Inquiries Act, 1952 and submitted that, decision of the Civil Court should prevail on question of succession and also legitimacy and therefore, in the facts of the present case, the decision of the Wakf Tribunal will prevail over the proceedings initiated by the defendant No.1 under the provisions of Section 5 of the Hyderabad Atiyat Inquiries Act, 1952. Therefore, relying upon the reasons recorded by the Wakf Tribunal, averments in the plaint, other material which was placed on record before the Wakf Tribunal, and written notes of arguments and documents placed on record alongwith said written notes of arguments and judgments cited supra, the Counsel appearing for the respondent i.e. original plaintiff prays that, this Civil Revision Application is devoid of any merits, same may be rejected.
26. I have given careful consideration to the submissions of the Counsel appearing for the parties. Though the respondent No. 2 is served, ::: Downloaded on - 27/08/2013 21:20:19 ::: 48 cra157.04 none appears for the respondent No. 2 during course of final hearing of this Civil Revision Application. With able assistance of the learned Counsel appearing for the parties, carefully perused the entire material placed on record including evidence led before the Wakf Tribunal and also relevant provisions of the Wakf Act, 1995, provisions of Mohammedan Law, Hyderabad Atiyat Inquiries Act, 1952, judgments of the Supreme Court, this Court and other High Courts relied upon by the learned Counsel appearing for the parties. Already the claims/prayers and averments in the plaint have been referred in the earlier paragraphs while narrating the facts and arguments of the Counsel appearing for the parties. The respondent herein, i.e. original plaintiff filed Regular Civil Suit No. 23 of 2002 before the Wakf Tribunal, Aurangabad through G.P.A. holder namely Syed Gous Ahmed Shah s/o Syed Mansoor Shah. Though the learned Counsel appearing for the revision applicant submitted that, the suit instituted by the respondent-plaintiff ::: Downloaded on - 27/08/2013 21:20:19 ::: 49 cra157.04 through G.P.A. holder was not maintainable, no convincing evidence/reasons have been stated by the revision applicant why the suit filed by the plaintiff through G.P.A. holder, who is appointed to look after the Dargah of Hazrat Mansoor Shah Wali, Mosque and graveyard and Asnurkhan situated at Beed ( For short, "said Dargah") and also properties of the said Wakf is not maintainable.
Therefore, there is no reason to hold that, the suit filed by the respondent-plaintiff through G.P.A. holder was not maintainable.
27. It appears that, the Wakf Tribunal framed as many as five issues for its consideration/determination in paragraph-13 of the impugned judgment. The first issue was ; whether plaintiff proves that he is mutawali of dargah Harat Mansoor Shah Wali and second issue was ;
whether defendant No. 1 proves that since 1975 he is acting as Mutawali of the said dargah and the plaintiff has no right in respect of that dargah.
The Wakf Tribunal has discussed issue Nos. 1 and 2 ::: Downloaded on - 27/08/2013 21:20:19 ::: 50 cra157.04 together from paragraphs-15 to 24. It appears that, Wakf Tribunal has adverted to oral evidence led by the parties and thereafter, reached to the conclusion that, the plaintiff holds Mutawaliship and a successor Mutawali. It is further held that, the plaintiff is Sajjadanashin and thus, a mutawali of the wakf is question. The Wakf Tribunal held that, irrespective of the fact that the defendant No. 1 is administering and managing the wakf and its property from the year 1980 to 2000, it cannot be said that he is acting as 'Mutawali' of the Wakf and its property.
. It further appears that, the Wakf Tribunal has framed issue No. 3 whether plaintiff Syed Ghouse Ahmed is entitled to appoint general power of attorney for rendering services to the said dargah to the exclusion of defendant No.1 and said issue is also answered in the affirmative.
Issue No. 4 whether plaintiff is entitled to claim perpetual injunction is prayed for, is also answered in the affirmative and accordingly, the ::: Downloaded on - 27/08/2013 21:20:19 ::: 51 cra157.04 Presiding Officer, Wakf Tribunal, Aurangabad has declared the plaintiff as Sajjadahnashin mutawali of the wakf in the name of dargah Mansoor Shah Wali, Masjid, Graveyard, Tomb and Ashur Khana situated in the land Survey No. 3 admeasuring 7 Acres 14 Gunthas situated at proper Beed and the defendant No.1 is restrained from interfering and disturbing administration and management of the above wakf and its property.
28. The learned Counsel appearing for the revision applicant has raised objection that, the Wakf Tribunal had no jurisdiction to entertain the suit filed by the plaintiff. In that respect, it would be relevant to refer the judgment of the Supreme Court in the case of Board of Wakf, West Bengal and another (supra), and in particular paragraph-14 thereof, in which it is held thus ;
"14. The Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf Property. The words "any dispute, question or other matters relating to a Wakf or Wakf ::: Downloaded on - 27/08/2013 21:20:19 ::: 52 cra157.04 property" are, words of very wide connotation. Any dispute, question or other matters, whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal. The word 'Wakf' has been defined in Section 3(r) of the Wakf Act, 1995 and hence once the property is found to be Wakf property as defined in section 3(r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal."
(Underlines Supplied).
. Yet in another exposition in the case of Syed Mohideen and another (supra), the Supreme Court in paragraph-6 held that, in terms of section 83(5) of the Act, 1995 the Wakf Tribunal is deemed to be Civil Court and has same powers as are exercised by the Civil Courts under the Code of Civil Procedure, 1908 while trying a suit or executing a decree or order. Therefore, the suit filed by the plaintiff will have to be held maintainable. The contention of the revision applicant that, issue in respect of 'Mutawali' ::: Downloaded on - 27/08/2013 21:20:19 ::: 53 cra157.04 cannot be dealt with by the Wakf Tribunal in view of the provisions of sections 63 and 64 of the Wakf Act, 1995, deserves no consideration. In the facts of the present case, the Wakf Tribunal has considered the evidence brought on record and after appreciating the documents placed on record, held that, the plaintiff is appointed as 'Mutawali' to look after the said Dargah. The Wakf Tribunal has considered the appointment of the plaintiff by the Wakf Board as 'Mutawali'. The District Wakf Officer Mr. Shaikh Maqsood entered the witness box and has made categorical deposition at Exhibit-66 that, the plaintiff is 'Mutawali'. Other witnesses examined by the plaintiff have also deposed that, the plaintiff is appointed and working as 'Mutawali'. The Wakf Tribunal ha also relied upon the Government Notification published in the year 1982 in the name of plaintiff as 'Mutawali' to manage affairs of the said Dargah and wakf properties. It appears that, father of the plaintiff and the defendant No.1 Syed Mansoor Shah died on 6th May, ::: Downloaded on - 27/08/2013 21:20:19 ::: 54 cra157.04 1966 and after his death, succession was sanctioned in the name of plaintiff. It further appears that,said succession certificate was granted on certain conditions. The Wakf Tribunal has discussed in detail in paragraph-18 about succession and held that, the plaintiff is successor mutawali of the wakf in question.
29. It is true that, so far issuance of succession certificate is concerned, the relevant provisions governing the field are under the Hyderabad Atiyat Inquiries Act, 1952. Therefore, under the said Act succession certificate is granted in favour of the plaintiff. Based upon the said succession certificate, 'mutawaliship' is also granted to the plaintiff. Therefore, there is no reason to hold that, Wakf Tribunal had no jurisdiction to entertain claims/prayers in the suit. In fact, any dispute relates to the wakf or wakf properties can be subject matter of the suit before the wakf tribunal. In the present case, the plaintiff filed suit, since according to the ::: Downloaded on - 27/08/2013 21:20:19 ::: 55 cra157.04 plaintiff, though the defendant No. 1 was removed as G.P.A. holder of the plaintiff and one Syed Matin was appointed as his G.P.A. on 7th June, 2001, who was only authorized to do all acts on behalf of the plaintiff, the defendant No. 1 had adopted revengeful attitude and started collecting rent of several months in advance of the shops which is the property of Dargah and thereby caused substantial loss to the Dargah and therefore, the plaintiff was constrained to file the application to the Collector. The plaintiff has also stated in the plaint that, the plaintiff was constrained to file suit since the defendant No.1 raised banner of revolt against the plaintiff and continue the illegal act of collecting rent from 45 shops and therefore, it was necessary to file suit so as to seek relief to restrain the defendant from causing interference in the administration and management of the Wakf.
Therefore, in view of the judgment of the Supreme Court in the case of Board of Wakf, West Bengal and another (supra), the suit filed by the ::: Downloaded on - 27/08/2013 21:20:19 ::: 56 cra157.04 plaintiff is maintainable.
. The contention of the Counsel appearing for the applicant that, in view of the judgment in the case of A.M. Ali Akbar and another (supra), "any dispute" under section 83(1) of the Wakf Act does not mean that "dispute relating to the wakf and only it is in respect of the wakf property", deserves no consideration in view of the judgment of the Division Bench of Madras High Court in case of Salama Khan and etc. (supra). The submission of the Counsel for the revision applicant is that, so far 'Mutawali' is concerned, the Wakf Tribunal has no jurisdiction to decide the question about 'mutawaliship'. In order to appreciate the aforesaid contention it would be apt to refer to the definition of 'Mutawali'. The "mutawalli' has been defined in section 3(i) of the Wakf Act, 1995, as under;
"3(i) " mutawalli" means any person appointed, either verbally or under any deed or instrument by which a Wakf has ::: Downloaded on - 27/08/2013 21:20:19 :::
57 cra157.04 been created, or by a competent authority, to be the mutawalli of a wakf and includes any person who is a mutawalli of a wakf by virtue of any Custom or who is a naib- mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being managing or administering any wakf or wakf property:
Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office bearer of such committee or corporation."
. Upon careful perusal of definition of 'mutawalli', "mutawalli" means any person appointed, either verbally or under any deed or instrument by which a Wakf has been created, or by a competent authority, to be the mutawalli of a wakf and includes any person who is a mutawalli of a wakf by virtue of any Custom or who is a naib-::: Downloaded on - 27/08/2013 21:20:19 :::
58 cra157.04 mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being managing or administering any wakf or wakf property.
30. In the facts of the present case, the plaintiff has successfully established before the Wakf Tribunal that, succession certificate was granted in his favour by the competent authority under the Hyderabad Atiyat Act and thereafter, the plaintiff is appointed as 'Mutawali' by the Wakf Board, and the District Wakf Officer deposed before the Wakf Tribunal that, the plaintiff is appointed as 'Mutawali' and there is also Government Notification published in the year 1982 to that effect.
. The contention of the Counsel appearing for the revision applicant that, the applicant i.e. defendant No.1 is acting as 'Mutawali' for more than 30 years, has not been proved by any ::: Downloaded on - 27/08/2013 21:20:19 ::: 59 cra157.04 documentary evidence whatsoever. On the contrary, the admissions by the defendant No. 1 in his cross examination is that, he was appointed as G.P.A. holder of the original plaintiff. Though the Counsel for the revision applicant submits that, the defendant No. 1 was appointed as G.P.A. of the plaintiff only to look after the court cases. If the entire evidence brought on record before the Wakf Tribunal, if taken in to consideration, there is no doubt that, the plaintiff was appointed as 'Mutawali' and to that effect, documentary evidence was placed on record before the Wakf Tribunal. Therefore, since the plaintiff was appointed 'Mutawali', the question of defendant No.1 acting as 'Mutawali' would not arise.
31. According to the Counsel appearing for the revision applicant, since the proceedings are pending under section 5 of the Hyderabad Atiyat Inquiries Act, 1952 before the competent authority, the Wakf Tribunal should not have entertained the suit since the Wakf Tribunal has ::: Downloaded on - 27/08/2013 21:20:19 ::: 60 cra157.04 no jurisdiction, is devoid of any merits. The relief sought before the Wakf Tribunal was in the nature of declaration and certainly, the Wakf Tribunal like the Civil Court can entertain such prayer and rightly the Wakf Tribunal has considered claims/prayers in the suit and granted the same. It is true that, if there is any question in respect of succession, same is covered under the provisions of Hyderabad Atiyat Inquiries Act, 1952. Therefore, the Wakf Tribunal has not granted any relief so far questioning the succession certificate granted in favour of the plaintiff is concerned. According to the Counsel for the revision applicant, proceedings under section 5 of the Hyderabad Atiyat Inquiries Act, 1952 are pending before the competent authority, and therefore, this Civil Revision Application deserves to be allowed, deserves no consideration.
The Wakf Tribunal has considered the prayers of declaration and injunction well within its jurisdiction. It is true that, the order passed by the competent authority is confirmed before the ::: Downloaded on - 27/08/2013 21:20:19 ::: 61 cra157.04 appellate forum and even by the Divisional Commissioner, Aurangabad Division, Aurangabad.
However, the Counsel appearing for the plaintiff is right in contending that, the plaintiff died in the year 2004 and therefore, such proceedings could not have been continued against the dead person. However, so far those proceedings under section 5 of the Hyderabad Atiyat Inquiries Act, 1952 are concerned, this Court has not expressed any opinion about the same. It is for the parties to put forth their case on merits before the authority under the Hyderabad Atiyat Inquiries Act, 1952, if at all proceedings initiated by the defendant No.1 are pending before the said authority. During course of arguments, the Counsel for the plaintiff has argued that, daughter of the deceased plaintiff got succession certificate, however, said fact was not before the Wakf Tribunal, therefore, this Court refrains itself from going into said aspect.
32. The learned Counsel appearing for the ::: Downloaded on - 27/08/2013 21:20:19 ::: 62 cra157.04 revision applicant has cited judgment of the Supreme Court in the case of Sardar Khan and others (supra) and also other judgments. However, upon perusal of the said judgments, at the most, it can be held that, a suit which is instituted prior to coming into force Wakf Act, 1995, the Wakf Tribunal has no jurisdiction to decide such suits.
.
Whether the original plaintiff could have appointed G.P.A. and the said G.P.A. can look after Dargah and its properties has been considered by the Wakf Tribunal. According to the learned Counsel appearing for the revision applicant, the Wakf Tribunal has recorded perverse findings that, the plaintiff can appoint G.P.A. and G.P.A. can look after affairs of Dargah and its properties. However, the Wakf Tribunal did frame issue No. 3 in that respect and in paragraph-25 held that, plaintiff is entitled to appoint G.P.A. for rendering services of the wakf in question to the exclusion of the defendant ::: Downloaded on - 27/08/2013 21:20:19 ::: 63 cra157.04 No. 1. There is no reason to hold that, the findings recorded by the Wakf Tribunal are perverse.
33. The learned Counsel appearing for the revision applicant, in the alternate, submitted that, in case this Court is not inclined to entertain the Civil Revision Application, in that case the order passed by this Court on 6th February, 2012 which was continued by order dated 24th February, 2012 directing the respondent i.e., plaintiff not to create third party interest in the property is concerned, in case the proceedings under section 5 of the Hyderabad Atiyat Inquiries Act, 1952 are pending before the concerned authority, in that case the plaintiff or his G.P.A. shall not create any third party interest in the suit property. Since the properties belongs to 'Wakf' and once a 'Wakf' is always 'Wakf' and its properties is permanent dedication to the God.
Therefore, the plaintiff cannot alienate the suit properties for his own benefit.
::: Downloaded on - 27/08/2013 21:20:19 :::64 cra157.04 . The Counsel for the revision applicant has also made submission that, in view of interim orders passed by this Court, the defendant No.1 is acting as 'Mutawali' cannot be accepted in view of the admissions given by him before the Wakf Tribu7nal that, he is not aware who is collecting rent of the shops which is wakf property of the Dargah. On the contrary, the Wakf Tribunal has passed interim orders in favour of the plaintiff thereby restraining the defendant No.1 from interfering in the administration of Dargah and its properties. Therefore, this Court is of the opinion that, findings recorded by the Wakf Tribunal are in consonance with the evidence brought on record. The Wakf Tribunal had jurisdiction to entertain the suit and grant reliefs prayed by the plaintiff, except so far succession certificate is concerned, certainly said subject matter is covered under Hyderabad Atiyat Inquiries Act, 1952 and rightly, the Wakf Tribunal has not granted any relief in respect of ::: Downloaded on - 27/08/2013 21:20:19 ::: 65 cra157.04 succession certificate. The Wakf Tribunal has only given declaration that, the plaintiff is 'Mutawali' on the basis of evidence brought on record. That does not amount to granting certificate of 'Mutawali' by Wakf Tribunal. The said findings are based upon the document issued by the Wakf Board and also Government Notification, evidence of the District Wakf Officer and other evidence placed on record.
34. In the light of discussion herein above, the Wakf Tribunal had jurisdiction to entertain the suit. There is no perversity in the findings recorded by the Wakf Tribunal. The judgment and order passed by the Wakf Tribunal is well within jurisdiction. Hence, Civil Revision Application is devoid of any merits, same stands rejected. Rule discharged. The Civil Application does not survive, hence same stands disposed of.
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[S.S. SHINDE, J.] sut/Aug13 ::: Downloaded on - 27/08/2013 21:20:19 :::