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Mohammad Suleman And Ors v. Vishambhardas Rajdev And Ors

Mohammad Suleman And Ors v. Vishambhardas Rajdev And Ors

(High Court Of Madhya Pradesh)

CIVIL REVISION No. 539 of 2018 | 02-08-2022

Anjuli Palo, J.

1. I.A. Nos. 1969/2021 and 10892/2018 are applications for taking documents on record. The documents, which are sought to be brought on record, are relevant and necessary for proper adjudication of the case. Hence, aforesaid interlocutory applications are allowed. The documents are taken on record.

2. This Civil Revision under Section 83(9) of the Madhya Pradesh Wakf Act has been filed by the applicants challenging order dated 02.08.2018 passed by the Madhya Pradesh Wakf Tribunal, Bhopal in Case No. 112/2015, whereby their application under Order 39 Rules 1 & 2 of C.P.C. has been dismissed.

3. The applicants, as plaintiffs, filed a civil suit against the respondents in respect of graveyard land stating that the respondents are illegally raising construction and have sold out certain portion of the land. Therefore, it be declared that the sale deeds executed by respondents in respect of said lands are null and void and the illegal construction so raised over the suit property be demolished. The aforesaid civil suit was registered as Case No. 112/2015.

4. Along with the civil suit, the applicants also filed an application under order 39 Rules 1 & 2 read with 151 C.P.C. stating that during the pendency of civil suit, the respondent Nos. 2 & 6 in collusion with each other are destroying the graves constructed over Khasra No. 268 by a J.C.B. Machine; they are cutting trees and are raising multi storied buildings. It is also mentioned that respondent No. 8 on behalf of respondent No. 1 is trying to raise illegal construction, but the suit property being graveyard and belonged to Muslim community, which is popularly known as "Kale Peer Shah", cannot be sold out and its nature can also not be changed. The act of the respondents/defendants was informed by the applicants to the Chief Minister, District President, Bhopal, Wakf Board, Bhopal, Inspector General of Police, Bhopal, but no action has been taken restraining them from making encroachment over the suit property. The respondents in collusion with the State authorities are spoiling the graveyards, though their nature cannot be changed in any manner. Therefore, it was prayed that till disposal of the suit, the defendants be injuncted from entering into the suit property and interfering in the peaceful possession of the plaintiffs.

5. The defendant No. 1 filed its reply to injunction application under Order 39 Rules 1 & 2 C.P.C. stating that the suit property is not the Waqf property, in-as-much as respondent No. 1 has filed Civil Suit No. 4A/2002, wherein the Second Additional District Judge, Bhopal on 12.11.2002 has held that the suit property belongs to the respondents. The M.P. Waqf Board has filed a suit in respect of Khasra No. 268 before the 4th Civil Judge. Along with the suit an application under Order 39 Rules 1 & 2 C.P.C. has also been filed, which has been dismissed on 17.01.2003. The Waqf Board has also filed Cases Nos. 12/2001 and 41/2001 before the Tribunal, wherein it was decided that the Tribunal has no jurisdiction to decide the proceedings. Thus, the Waqf Board has completely lost the case. The defendant No. 1 and the Trust have been declared as owner. The list on the basis of which the property in question is being regarded as Waqf property has already been cancelled by the State Govt on 24.11.1962 and the same has been affirmed in S.A. No. 75/1980. The possession of the suit property is not with the plaintiffs. The respondent No. 1 has purchased the suit property on 20.05.1964 from Faiyaz Ali Shah and Iliyas Ali Shah for a sale consideration of Rs. 35,000/- through the registered sale deed. The name of the respondent No. 1 has also been mutated in the revenue records; he also got the land diverted and map sanctioned and thereafter sold out 86 plots, whereupon double and triple storied buildings have been constructed. The respondent No. 1 left about 37,268 sq. ft. of land for a community hall and park. The respondent No. 1 also stated that at the spot only two graves of family members of Faiyaz Ali Shah and Iliyaz Ali Shah are there and therefore, no prima facie case in favor of plaintiffs is made out and hence, the application for grant of temporary injunction be dismissed.

6. The defendant No. 6 - Municipal Corporation, Bhopal also filed its reply stating that it granted permission on 12.03.1999 to the defendant No. 1 in respect of certain Khasra numbers including Khasra No. 268. The suit land is not the property of Wakf Board and the plaintiffs are not in possession of the suit property.

7. The defendant/respondent No. 7, who is State authority in his reply stated that there is no entry of any graveyard in the revenue records. The applicants are neither members of Wakf Board nor its employees nor have any authority to file the suit.

8. The defendant/respondent Nos. 8 & 9 also filed their reply stating that Govt. of Madhya Pradesh by order dated 24.11.1962 had cancelled the Wakf Survey Gazette Notification dated 10.01.1958 and 24.11.1961, which has been affirmed by the High Court in Second Appeal No. 75/1980. It is also stated that so called license dated 11.09.1916 is a forged and fabricated document. The land has been purchased by defendants Nos. 8 & 9 and the same is not the Waqf property. It was earlier a godown. On an enquiry being made by the Collector, the land has been found to be of ownership of Iliyaz Ali and Faiyaz Ali and not to be remains of graveyard.

9. The M.P. Waqf Tribunal, Bhopal by the impugned order dated 02.08.2018 held that the suit land having been sold on 20th May, 1964 is in possession of defendants, whereupon houses have already been constructed. The order of State Govt. dated 24.11.1962 reflects that the State Govt. had directed the M.P. Waqf Board to again check the Auqaf list and issue the fresh notification, therefore, no prima facie case in favor of the applicants is made out. Thus, the balance of convenience also does not lie in favor of the plaintiffs and no irreparable injury will be caused to them and accordingly, it dismissed the application of the plaintiffs for grant of temporary injunction. Hence, this civil revision.

10. Learned counsel for the applicants challenged the impugned order on the grounds that the same has been passed in mechanical manner without properly appreciating the documents available on record, which clearly indicate that the suit land is a graveyard. It is further submitted that though the trial Court found two graves of family members of Faiyaz Ali Shah and Iliyaz Ali Shah over Khasra No. 268, despite that passed an impugned order holding that the suit land is not a graveyard. He has placed reliance on the decisions in the cases of Mohd. S. Labbai vs. Mohd. Hanifa AIR 1976 SC 1569 and Mohd. Kasam vs. Abdul Gafoor AIR 1964 M.P. 227. In the facts and circumstances of the case, the trial Court ought to have restrained the respondents from raising construction over the suit property. Hence, he prayed to set aside the impugned order.

11. Learned counsel for the respondent No. 1 submitted that the Waqf Board has been impleaded as defendant No. 3 and not as applicant, on this count alone, i.e. for want of locus and no cause of action, the claim made by the applicants before the Waqf Tribunal deserved to be dismissed as not maintainable. It is further submitted that claim of the applicants is time barred as sale deed was executed in the year 1964, which has been called in question by them in the year 2015. The suit lands were never notified as Waqf properties and the same were never used as graveyard. The respondent No. 1 got the lands diverted under Section 172 of M.P. Land Revenue Code vide Annexure R/1/3 and sought permission on 12.03.1999 from the Town and Country Planning Department. Subsequently, permission was sought by the respondent No. 1 for development of a colony. The Municipal Corporation cancelled its earlier permission on a complaint made by the Board, which lead to filing of Civil Suit No. 295-A/2002 by the respondents, wherein the trial Court vide judgment dated 04.03.2004 decreed the claim of the respondents and declared the order dated 02.02.2001 as null and void. The Board filed a suit of injunction in respect of suit lands and prayed for grant of temporary injunction restraining the respondent No. 1 and other defendants from using suit lands. The trial Court vide order dated 17.01.2003 rejected the application for temporary injunction. On 01.09.2005, the Civil Suit filed by the Board was dismissed in terms of Order 17 Rule 2 C.P.C. Thereafter, the prayer of Board for restoration of Civil Suit was also declined vide order dated 18.08.2007, which was affirmed in appeal vide order dated 29.11.2011 passed in MCA No. 06/2008. The respondent No. 1 also filed a suit against Mohd. Ismile seeking relief of declaration of title and permanent injunction, which was decreed on 12.11.2003. On a complaint filed by applicants before the Collector, an enquiry was conducted and it was found that there is no graveyard. Even the statement of vendor recorded on 05.09.1974 reflects that he admitted that on the lands in question there was no graveyard. Learned counsel for the respondent No. 1 justified the impugned order and claimed dismissal of the instant Civil Revision.

12. Learned counsel for the respondent No. 7 for the State submitted that the applicants have suppressed material facts regarding orders passed by the competent Court on similar issue in respect of the suit properties in previous proceedings. He also supported the averments made by respondent No. 1. Additionally, it has also been stated that vide order dated 17.01.2003 plea of Waqf Board that suit land is the property of Waqf Board has been rejected and it has been held that same is owned and possessed by Rajdev Jan Sewa Nyas. The Waqf Board preferred Regular Civil Appeal No. 25/03, which was dismissed vide order dated 28.07.2003 and it was challenged in W.P. No. 28247/2003 before Hon'ble High Court, which too has been dismissed vide order dated 15.05.2006. Thus, respondent No. 7 also claimed dismissal of the instant Civil Revision.

13. Heard learned counsel for the parties. Perused the record.

14. The suit property is not a graveyard. It was sold by Faiyaz Ali Shah and Iliyas Ali Shah to respondent No. 1 by a registered sale deed dated 20.05.1964. Thereafter, despite continuous sale deeds executed in respect of suit land and one of which was executed in favor of respondent Nos. 8 and 9 on 09.03.2015, they are in possession of the property. In Khasra Panchshala at column No. 7 property was registered in the name of Iliyas Ali Shah, not as graveyard.

15. The disputed property was registered on 14.07.1973 in Auqaf register, whereas prior to registration in Aukaf register, it was sold in favor of respondent No. 1 and also mutated in his name. In respect of the said disputed property, respondent No. 3 - M.P. Wakf Board had filed a case No. 108A/2002 before the 4th Civil Judge Class-II, wherein application for grant of temporary injunction was rejected on 17.01.2003. Thereafter, Wakf Board further filed an appeal against the order dated 17.01.2003 before the 4th Additional District Judge, Bhopal, which was also dismissed on 28.07.2003.

16. After purchase of said land, it was got diverted by the respondent No. 1. Thereafter, he got requisite sanctions from the Town and Country Planning as well as from the Municipal Corporation and made construction over the said suit property. It is clear from the impugned order that respondent No. 1 was possession holder. After perusal of order dated 24.11.1962 of M.P. Govt., it is reflected that State Govt. had directed to the M.P. Wakf Board to again check Aukaf list and then publish the same.

17. Respondent No. 1 along with others filed a Civil Suit No. 04A/2002 against Mohd. Imile, Sajid, Anwar and Jalil, which was decreed in favor of respondent No. 1 on 12.11.2002.

18. Thereafter, applicant No. 1 filed a complaint before the Collector, Bhopal alleging that the land in question is 'Kabristan' of Mosuma Kale Peer Sani Bake as part of Khasra No. 268/1 area 2.88 acre. On this complaint enquiry was conducted by the Tahsildar and it was found that there is no graveyard on the land in question.

19. Another suit (RCS No. 295-A/2002) was filed by the respondent No. 1 for the same property, because on 02.02.2001 the Additional Commissioner, Municipal Corporation, Bhopal refused the permission to construct a community hall, which was earlier granted by the same authority in favor of the respondent No. 1. Thereafter, the suit was again decreed in favor of the respondent No. 1, wherein it was held that order passed by the Additional Commissioner, Municipal Corporation on 02.02.2001 is null and void.

20. M.P. Wakf Board has again filed a suit (RCS A/34/2004) under Rule 2 of Order 17 of C.P.C. for restoration, which was dismissed. Subsequently, Writ Petition No. 28247/2003 has also been dismissed. Thereafter, M.P. Wakf Board has filed a suit (MCA No. 12/2006) for restoration of RCS A/34/2004, which was also dismissed.

21. In view of the aforesaid discussion, in my opinion, the findings arrived at by the Waqf Tribunal in the impugned order are just and proper and need not to be interfered with. In the result, Civil Revision, being sans merit, stands dismissed.

Advocate List

  • SHRI M. SHAFIQULLAH

  • SHRI AVINASH ZARGAR

Bench
  • HON'BLE SMT. JUSTICE ANJULI PALO
Eq Citations
  • AIR 2022 MP 147
  • LQ/MPHC/2022/755
Head Note

1. Locus standi — Civil Revision filed by the applicants challenging order dated 02.08.2018 passed by the Madhya Pradesh Wakf Tribunal, Bhopal — Plea was raised that the suit land is graveyard and M.P. Wakf Board should have been impleaded as applicant and not as defendant — Since the Waqf Board did not file the revision application, the issue was dismissed as not maintainable. 2. Injunction Application — Plaintiffs had filed an application under Order 39 Rules 1 & 2 of C.P.C. stating that during the pendency of the civil suit, respondents are illegally raising construction and have sold out certain portion of the land, hence, they be restrained from entering into the suit property — Tribunal had dismissed the application holding that the plaintiffs had no prima facie case and balance of convenience does not lie in their favor — Held, the applicants did not have a prima facie case and the impugned order passed by the Tribunal cannot be faulted with. 3. Law and Procedure — Waqf litigation — The suit property was sold by Faiyaz Ali Shah and Iliyas Ali Shah to respondent No. 1 by a registered sale deed dated 20.05.1964 — The State Govt. had directed the M.P. Wakf Board to again check Aukaf list and issue fresh notification vide order dated 24.11.1962 — Held, the property was not a graveyard, hence, no case is made out for grant of injunction. 4. Findings of fact — The Tribunal found that the disputed property was sold to respondent No. 1 and he got the land diverted and obtained requisite sanctions from the Town and Country Planning as well as from the Municipal Corporation and made construction over the said suit property — Waqf Board had also filed a suit in respect of the said land and application for temporary injunction was dismissed vide order dated 17.01.2003 — A subsequent suit filed by the respondent No. 1 was decreed in his favor on 12.11.2002 — Held, the impugned order does not call for any interference.