Delhi District Court
Civil Judge vs Delhi Wakf Board on 7 November, 2012
IN THE COURT OF MS. RUCHI AGGARWAL ASRANI,
CIVIL JUDGE, CENTRAL-02, TIS HAZARI COURTS, DELHI
Suit No. 107/91
1 Sh. Aalam Mirza Suharwardhi
2 Sh. Khalid Mirza Suharwardhi
Both sons of Late Sh. Hatam Mirza and
Both R/o H. No. 1948-50,
Basti Dada Peer, Turkmangate,
Delhi-110006. ....Plaintiff
VS.
1 Delhi Wakf Board,
Through its Secretary,
Bachon Ka Ghar, Darya Ganj,
Delhi-110002.
2 Sh. Akhtar Hussain,
S/o Sh. Mohd. Hussain,
1003, Basti Dada Peer,
Mohalla Qabrastan,
Turkman Gate, Delhi-110006.
3 Sh. Naseer Khan @ Pathan,
S/o Sh. Nanneh Khan,
1993, Basti Dada Peer,
Mohalla Qabrastan,
Turkman Gate, Delhi-110006.
4 Sh. Nazeruddin,
S/o Sh. Saleemuddin,
Suit No. 107/91 Page 1 of 21
1913, Basti Dada Peer,
Mohalla Quabrastan, Turkman Gate,
Delhi-110006.
5 Sh. Waheeduddin,
S/o Sh. Saleemuddin,
1913, Basti Dada Peer,
Mohalla Qabrastan, Turkman Gate,
Delhi-110006.
6 Sh. Shahzad Ahmad,
S/o Sh. Karimuddin,
1883, Basti Dada Peer,
Mohalla Qabrastan, Turkman Gate,
Delhi-110006.
7 Sh. Mohd. Tayyab
S/o Maulvi Mohd. Ishaq,
1883-84, Basti Dada Peer,
Mohalla Qabrastan, Turkman Gate,
Delhi-110006.
8 Sh. Irshad Ahmad,
S/o Sh.Karimuddin,
1883, Basti Dada Peer,
Mohalla Qabrastan, Turkman Gate,
Delhi-110006.
9 Sh. Abdul Hameed
S/o Sh. Abdul Rehman,
9883, Basti Dada Peer,
Mohalla Qabrastan, Turkman Gate,
Delhi-110006.
10 Sh. Mohd. Idrees,
S/o Sh. Mohd. Ibrahim,
Suit No. 107/91 Page 2 of 21
1913, Basti Dada Peer,
Mohalla Qabrastan, Turkman Gate,
Delhi-110006.
11 Sh. Abdul Jabbar,
S/o Sh. Mohd. Zikariya,
1913, Basti Dada Peer,
Mohalla Qabrastan, Turkman Gate,
Delhi-110006.
12 Sh. Mohd. Yakub,
S/o Sh. Nanneh Khan,
1913, Basti Dada Peer,
Mohalla Qabrastan, Turkman Gate,
Delhi-110006.
13 Sh. Sharfuddin Alias Shabaddin,
S/o Sh. Moinuddin,
1883, Basti Dada Peer,
Mohalla Qabrastan, Turkman Gate,
Delhi-110006.
14 Sh. Naseeruddin,
S/o Sh. Saleemuddin,
1913, Basti Dada Peer,
Mohalla Qabrastan, Turkman Gate,
Delhi-110006.
15 Sh. Mohd. Zahid,
S/o Sh. Alnabi,
1883, Basti Dada Peer,
Mohalla Qabrastan, Turkman Gate,
Delhi-110006.
16 Sh.Slahuddin,
S/o Sh.Zaheeruddin,
Suit No. 107/91 Page 3 of 21
1913, Basti Dada Peer,
Mohalla Qabrastan, Turkman Gate,
Delhi-110006.
17 Smt. Tahira Khatoon,
Widow of Sh. Alnabi,
1883, Basti Dada Peer,
Mohalla Qabrastan, Turkman Gate,
Delhi-110006.
18 Smt. Bano Begum
Wife of Sh. Ahmed Hussain,
1913, Basti Dada Peer,
Mohalla Qabrastan, Turkman Gate,
Delhi-110006.
19 Sh. Mohd. Sharif,
S/o Sh. Buddhan,
1913, Basti Dada Peer,
Mohalla Qabrastan, Turkman Gate,
Delhi-110006.
20 Sh. Mohd. Jamil
S/o Sh. Mohd. Din,
1883, Basti Dada Peer,
Mohalla Qabrastan, Turkman Gate,
Delhi-110006. .....Defendants
Date of institution:27.02.1991
Date of reserving of judgment:26.10.2012
Date of pronouncement of judgment:07.11.2012
JUDGMENT
The plaintiffs have filed the present suit against the defendants for declaration and permanent injunction.
Suit No. 107/91 Page 4 of 21Plaintiffs' version:
2 The plaintiffs have stated in their plaint that the Dargah known as Dargah Hazrat Shashul Afreen Suharwardhi Shah Turkman Biyabani (Dada Peer) Delhi at Turkman Gate bears property bearing municipal no. 1883-84 and 1913 was under the Mutwalliship and Sajjadanashinship of Late Shri Nawab Mirza, grandfather of the plaintiffs. They have further stated that Late Shri Nawab Mirza had purchased the entire income of the said Dargah i.e. income from the properties/ houses constructed on the land of the Dargah vide document no. 2823 registered on 12.08.1920 and document no. 2824 registered on 12.08.1920. Late Shri Nawab Mirza had thereby become entitled to the income of the said Dargah and its management.
3 The plaintiffs have averred that after the death of Late Shri Nawab Mirza, his only son Shri Hatam Mirza Suharwardhi inherited the Mutwalliship and Sajjadanashinship of the said Dargah and was appointed as such in the ceremony held for that purpose. It is their case that Shri Hatam Mirza continued to act as Sajjadanashin and Mutwalli of the said Dargah.Suit No. 107/91 Page 5 of 21
4 It is the case of the plaintiffs that after the death of Shri Hatam Mirza on 27.10.1987, as per customs, the plaintiffs were appointed as Sajjadanashin and Mutwalli in a ceremony held for that purpose on 14.11.1987. Since the plaintiffs were minors, their mother, Mst. Sughra Begum was appointed as Nigran (protector) of the plaintiffs in that ceremony. The ceremony of Dastarbandi (i.e. Turban of Honour) of plaintiff no. 1 was performed by Shri. Islamuddin, the Chief Imam of Illahi Masjid, Nizamuddin Aulia, New Delhi. The Turban of Honour was presented to plaintiff no. 1 only as he was the eldest in the family.
5 It is further the case of the plaintiffs that they and prior to them, their father and prior to him, their ancestors had been exclusively, continuously and without any interference whatsoever were controlling the affairs of the Dargah, its property and management since last more than 100 years and were never dispossessed from the Mutwalliship and Sajjadanashinship of the Dargah. It is also their case that they have also been receiving the entire income of the said Dargah and other property attached to the said Dargah and have been utilising the surplus income for their personal use after spending the amount on the daily maintenance of the Dargah and other activities of the Dargah such as annual Urs, monthly Suit No. 107/91 Page 6 of 21 Fateha etc. They have also been paying house tax of the property.
6 The plaintiffs have further contended that after they were crowned as Mutwalli and Sajjadanashin and their mother, Nigran, they started receiving rent from all the tenants of the property attached to the Dargah and received it up till August, 1998 from all the tenants including defendant nos. 2 to 20. It is their contention that all the tenants except defendant nos. 2 to 20 are still paying rent to the plaintiffs.
7 It is the case of the plaintiffs that at the instigation of some persons who are relatives of the plaintiffs, the defendant no. 1 issued notices to the tenants of the plaintiffs of the Dargah asking them to pay the rent to Delhi Wakf Board. On coming to know about the said notices on 19.09.1988, the plaintiffs served a legal notice dated 29.09.1988 on defendant no.1 asking them not to recover any rent from the tenants or interfere in the affairs of the Dargah.
8 It is also the case of the plaintiffs that there is privity of contract between the plaintiffs and defendant nos. 2 to 20, who are tenants, under the plaintiffs, and defendant no. 1 as such has no right to claim any rent from them.Suit No. 107/91 Page 7 of 21
9 Since defendant nos. 2 to 20 are threatening to pay the rent to defendant no.1 and defendant no. 1 is threatening and compelling defendant nos. 2 to 20 to pay the rent to them, the plaintiffs have filed the present suit.
Version of defendant no. 1:-
10 Defendant no. 1 has contended the suit of the plaintiffs on the following grounds:-
i) That the alleged purchase deeds of the plaintiffs dated 07.08.1920 and 12.08.1920 are negated by the Wakf Deed dated 08.10.1908.
ii) That Mutwalliship and Sajjadanashinship is not inheritable. Defendant no. 1 has specifically denied that the plaintiffs or their father were ever the Mutwalli or Sajjadanashin of the Dargah in dispute.
iii) It is the case of defendant no.1 that Sh. Hatam Mirza was found totally unfit to manage the wakf properties in the enquiry conducted by the Chief Legal Advisor of Delhi Wakf Board and therefore, Delhi Wakf Board assumed direct management of the same vide resolution dated 02.01.1988 and the notification Suit No. 107/91 Page 8 of 21 to this effect was issued on 13.04.1988. Thereafter, the tenants were directed to pay rent to defendant no.1.
iv) It is the case of defendant no. 1 that the plaintiffs have filed an application under s. 43 -A(2) of the Wakf Act before the Lt. Governor of Delhi on the same grounds and since this suit of the plaintiffs is frivolous, it is liable to be dismissed with heavy costs.
Version of defendant nos. 2 to 6, 8, and 10 to 20:-
11 Defendant nos. 2 to 6, 8, and 10 to 20 have contended the suit of the plaintiffs on the following grounds:-
i) There is no cause of action against them and hence the suit is liable to be dismissed.
ii) That the suit is bad for misjoinder and non-joinder of parties.
iii) The defendant nos. 2 to 6, 8, and 10 to 20 have denied that the plaintiffs had purchased the income of the Dargah and had any right to use it for their personal purpose. They have also contended that Mutwalliship is not inheritable and Suit No. 107/91 Page 9 of 21 therefore, no question of inheritance of the right of Mutwalliship arises.
iv) It is the case of defendant nos. 2 to 6, 8, and 10 to 20 that plaintiffs are misusing and mismanaging the affairs of the Dargah and its properties for their own benefits.
v) Defendant nos. 2 to 6, 8, and 10 to 20 have denied that they ever paid rent to the plaintiffs but have admitted that defendant no. 1 had issued notices to them to pay rent to it as it had claimed itself to be the Mutwalli and Manager of the property in dispute as per the notification in Delhi Gazette in 1970. They have also admitted that after the notice, defendant nos. 2 to 6, 8, and 10 to 20 have been paying rent to defendant no. 1.
12 On merits the defendant nos. 2 to 6, 8, and 10 to 20 have denied all the allegations of the plaintiffs and have stated that the plaintiffs are not entitled to receive any rent from them. Hence, the suit of the plaintiffs should be dismissed.
Version of defendant no. 7:-
13 Defendant no. 7 has contended the suit of the plaintiffs on the following grounds:-
Suit No. 107/91 Page 10 of 21i) There is no cause of action against him and hence, the suit is liable to be dismissed.
ii) That the suit is bad for misjoinder and non-joinder of parties.
14 On merits, defendant no. 7 has denied all the allegations of the plaintiffs and has stated that he is paying rent to the plaintiffs therefore, the plaintiffs have no claim against him and hence, the suit of the plaintiffs should be dismissed against him.
15 Replication to the written statement filed by defendant no. 1 and all other defendants except defendant nos. 1, 7 and 9 was also filed on behalf of the plaintiff, denying the contents of the written statements and reiterating and reaffirming the contents of the plaint.
16 From the pleadings of the parties, vide order dated 28.02.2002, Ld. Predecessor of this court framed the following issues:-
1. Whether the suit is bad for mis-joinder and non-joinder of parties? OPD
2. Whether the pltffs no. 1 and 2 are the legally appointed Suit No. 107/91 Page 11 of 21 Mutwalli and Sajjadanashin of the Dargah in question?
OPP
3. Whether the grandfather of pltff no. 1 and 2 had purchased the right of income of the Dargah as stated in the plaint? OPP
4. Whether the DWB has any right to claim the rent from the tenants of the Dargah as stated in W.S.? OPD
5. Whether the plaintiff were entitled to the relief of declaration as prayed? OPP
6. Whether the plaintiffs are entitled to the relief of permanent injunction as prayed? OPP
7. Relief.
17 In order to discharge its onus, the plaintiffs examined Mr. Khalid Mirza Suharwardhi as PW1. On the other hand, defendant no.1 examined Mohd. Arif as DW-1; defendant no. 7 examined Mohd. Yaqoob as D7W1 and Mr. Abdul Sattar as D7W2.
18 Final arguments were addressed by the Ld. Counsels for the plaintiffs and defendant nos. 7,12, 15 and 20. Despite various opportunities, defendant no. 1 failed to address final arguments and therefore, it was deemed appropriate to hear the plaintiffs and the other defendants.
Suit No. 107/91 Page 12 of 2119 I have carefully perused the record and given my considered thoughts to the arguments addressed by Ld. Counsels for the parties and my findings on various issues are as under:-
Issue No. 1:
Whether the suit is bad for mis-joinder and non-joinder of parties? OPD
20 Onus to prove this issue was placed upon the defendants. However, neither of the defendants has led any evidence or placed on record any document to prove that the suit is bad for mis-joinder and non-joinder of parties. Therefore, this issue is decided in favour of the plaintiffs and against the defendants.
Issue No. 2.
Whether the pltffs no. 1 and 2 are the legally appointed Mutwalli and Sajjadanashin of the Dargah in question?
OPP 21 Onus to prove this issue was placed upon the plaintiffs. PW-1 deposed that "...the said Dargah was under the Mutwalliship and Sajjada Nashinship of Late Nawab Mirza who was my grandfather and he had purchased the entire income of the said Dargah i.e. income from the properties/houses Suit No. 107/91 Page 13 of 21 constructed on the land of Dargah vide document no. 2823 registered on 12/8/1920 and document no. 2824 registered on 12/8/1920. I have seen the said original sale deed dated 12/8/1920 executed by Sh. Sahabuddin s/o Shamsuddin in favour of my grandfather Sh. Nawab Mirza whereby selling 1/3 income of the Dargah. The original wakf nama is exhibit PW-1/1. Its English translation is exhibit PW-1/1A. I also seen the other original sale deed dated 12/8/1920 executed by Sh. Iqbaluddin in favour of my grandfather Sh. Nawab Mirza selling 2/3 income of the Dargah. The said original sale deed is exhibit PW-1/2. Its English translation is exhibit PW-1/2A. Another sale deed is Ext. PW-1/2B & its translation PW-1/2C."
22 He further deposed that "...after the death of my grandfather namely Sh. Nawab Mirza my father namely Sh. Hatim Mirza Suharwardhi inherited the Mutwalliship and Sajjada Nashinship of the said Dargah and he was appointed as such in the ceremony held for that purpose...The Dargah property were also mutated in the name of my father and house tax is also being paid in the name of my father Sh. Hatim Mirza even today. The latest house tax bill for the year 2002-03 is exhibit PW-1/3." He also deposed that "...my father died on 27/10/1987 and as per old custom, I and my brother plaintiff no. 1 were appointed as Sajjadanashin and Mutwalli in Suit No. 107/91 Page 14 of 21 a ceremony held for that purpose on 14/11/1987. I and my brother plaintiff no. 1 also inherited the Sajjadanashinship and Mutwalliship by inheritance and by custom. The photographs taking at the time are exhibit PW-1/5, PW-1/6, PW-1/7 & PW-1/8."
23 Even D7W1 has admitted in his cross-examination that "It is correct that plaintiffs are acting as Mutwali and Sajjadanasi of the Dargah Hazrat Shamsul Arfeeen Suharwardy Shah Turkaman Diyavani (Dada Peer)." To support the case of the plaintiff, D7W2 has also deposed in his cross- examination that "It is correct that one Nawab Mirza was Mutwali and Sajjadanashin of the Dargah in dispute. It is also correct that after the death of Sh. Nawab Mirza his son Hatim Mirza became Mutwali and Sajjadanashin of the said Dargah. It is also correct that Sh. Hatim Mirza has also died and now the plaintiff Sh. Alam Mirza and Khalid Mirza are Mutwali and Sajjadanashin of the Dargah."
24 From the above depositions and the perusal of Ex. PW-1/1A and Ex. PW-1/2A, it is established and proved that Sh. Nawab Mirza had bought the income of the Dargah. It is also clear from the depositions of D7W1 and D7W2 and the photographs which are Ex. PW-1/5 to Ex. PW-1/8 that the Suit No. 107/91 Page 15 of 21 plaintiffs are the Mutwallis and Sajjadanashins of the Dargah in dispute.
25 The defendant no. 1 has contended the stand of the plaintiffs on the ground that the plaintiffs are not the Mutwallis. It is the case of defendant no. 1 that Mutwalliship and Sajjadanashinship are not inheritable. However, the defendants have not led any evidence to prove that Mutwalliship and Sajjadanashinship are not inheritable. DW-1 has nowhere deposed that these offices are not inheritable. They have also not placed on record any document to prove that Mutwalliship and Sajjadanashinship are not inheritable.
26 DW-1 has also not proved that Sh. Hatam Mirza was found unfit to manage the wakf property and therefore, DWB had assumed direct management of the Dargah vide Resolution dated 02.01.1998. No report of the enquiry conducted by the Chief Legal Advisor of DWB has also been placed on record.
27 From the above discussion, it is clear that the plaintiffs have been able to establish that they are the Mutwallis and Sajjadanashins of the Dargah in dispute and the defendant has failed to controvert the same. Accordingly, this issue is Suit No. 107/91 Page 16 of 21 decided in favour of the plaintiffs and against the defendants.
ISSUE NO. 3:
Whether the grandfather of pltff no. 1 and 2 had purchased the right of income of the Dargah as stated in the plaint? OPP
28 Onus to prove this issue was placed upon the plaintiffs. In view of the above discussion, it is established and proved that by way of Ex. PW-1/1 and Ex. PW-1/2, the grandfather of the plaintiffs had purchased the right of the income of the Dargah. Therefore, this issue is decided in favour of the plaintiffs and against the defendants.
ISSUE NO. 4:
Whether the DWB has any right to claim the rent from the tenants of the Dargah as stated in W.S.? OPD
29 Onus to prove this issue was upon the defendants. In order to discharge its onus, defendant no. 1 examined DW-1 who stated in his cross-examination that he does not have any authority letter authorising him to depose in the court. He also deposed that he is not aware of the contents of the written statement and that he does not remember how many tenants are residing in the property. In view of his deposition, his testimony cannot be read as evidence. In any case, he has not Suit No. 107/91 Page 17 of 21 led any evidence to prove that the defendant no. 1 is entitled to claim the rent from the tenants of the Dargah. He has only placed on record the Gazette Notification which, as discussed above, is not sufficient to entitle defendant no. 1 to claim the rent.
30 Defendant no. 7 had examined D7W1 who has deposed that the plaintiffs are the Mutwallis and Sajjadanashins of the Dargah. He has also deposed that "DWB's people has been claiming rent from me and from other tenants but no documents was shown to me and to other tenants by DWB that they have right to demand rent."
31 From this deposition of D7W1, it is clear that the defendant no. 1 has never shown any document to the witness to establish that they have the authority to demand the rent. Moreover, defendant no. 7 also examined D7W2 who, besides deposing that the plaintiffs are the Mutwalli and Sajjadanashins also deposed that "It is correct that wakf board had never celebrated Urs. It is correct that the persons from DWB do not take care of Dargah and nowadays, the plaintiffs are doing the same."
32 From the testimony of D7W2, it is clear that not only Suit No. 107/91 Page 18 of 21 are the plaintiffs, Mutwallis and Sajjadanashins but are also taking care of the management of the Dargah which defendant no. 1 has failed to do. Since, they are not taking care of the management, it can be safely concluded that they have not assumed the management upon themselves and the plaintiffs only are taking care of the management. Therefore, defendant no. 1 cannot be said to have any right to claim the rent from the tenants of the Dargah. Accordingly, this issue is decided against the defendants and in favour of the plaintiffs.
ISSUE NO. 5:
Whether the plaintiff were entitled to the relief of declaration as prayed? OPP
33 Onus to prove this issue was upon the plaintiffs. The plaintiffs have sought a declaration that the defendant no. 1 has no right to receive any rent from the tenants and the defendant nos. 2 to 20 are liable to pay the rent to the plaintiffs. Since issue no. 4 has been decided against defendant no. 1, the defendant no. 1 is not entitled to receive rent from the tenants and as issue no. 2 has been decided in favour of the plaintiffs, the plaintiffs are entitled to receive the rent from defendant nos. 2 to 20. Accordingly, this issue is decided in favour of the plaintiffs and against the defendants.
Suit No. 107/91 Page 19 of 21ISSUE NO. 6:
Whether the plaintiffs are entitled to the relief of permanent injunction as prayed? OPP 34 Onus to prove this issue was also placed upon the plaintiffs. Since issue nos. 2,4 & 5 have been decided in favour of the plaintiffs and against the defendants, this issue is also decided in favour of the plaintiffs and against the defendants and the defendant no. 1, its servants, employees, officers, nominees etc. are restrained from receiving any rent from any of the tenants of the Dargah including defendant nos. 2 to 20 and defendant nos. 2 to 20 are restrained from paying any rent to defendant no. 1 or any other person except the plaintiffs.
Relief:-
35 In view of my findings on various issues, as discussed above, the suit is decreed in favour of the plaintiffs and against the defendants declaring hereby that the defendant no. 1 has no right to receive any rent from the tenants and the defendant nos. 2 to 20 are liable to pay the rent to the plaintiffs.
The plaintiffs are also entitled for a decree of permanent injunction against the defendants and the defendant no. 1, its servants, employees, officers, nominees etc. are restrained from receiving any rent from any of the tenants of the Dargah including defendant nos. 2 to 20 and defendant nos. 2 to 20 are Suit No. 107/91 Page 20 of 21 restrained from paying any rent to defendant no. 1 or any other person except the plaintiffs. Costs of the suit are also awarded in favour of the plaintiffs and against the defendants. Decree sheet be prepared accordingly.
File be consigned to Record Room after due compliance.
Announced in the open court today on this 07th day of November, 2012.
(RUCHI AGGARWAL ASRANI) CIVIL JUDGE, CENTRAL-02, TIS HAZARI COURTS, DELHI.
Suit No. 107/91 Page 21 of 21 Suit No. 107/91 Page 22 of 21