THE HON’BLE SRI JUSTICE V.SURI APPA RAO CIVIL REVISION PETITION No.3669 OF 2005 Dated 13.06.2014 Between:
G.L.N.Reddy & another .. Petitioners-defendants and A.P.State Wakf Board .. Respondent-plaintiff THE HON’BLE SRI JUSTICE V. SURI APPA RAO CIVIL REVISION PETITION No.3669 OF 2005 ORDER:
This Civil Revision Petition under section 83 (9) of the Wakf Act, 1995, has been preferred by the revision petitioners-defendants challenging the order dated 22.03.2005 passed in O.S.No.12 of 2001 by the Andhra Pradesh Wakf Tribunal, Hyderabad, whereby and whereunder the Tribunal decreed the suit filed by the respondent-plaintiff for injunction against the defendants.
For the sake of convenience, parties hereinafter are referred to as they are arrayed before the Tribunal.
Brief facts of the case are as follows:
Plaintiff-A.P. State Wakf Board filed O.S.No.12 of 2001 before the Tribunal stating that Masjid-e-Noorul Hasan Mosque situated at Moghalpura, Hyderabad, has got service Inam properties in S.Nos.82, 83 and 84 totally admeasuring Acs.4-34 guntas excluding the uncultivable portions such as boulders, rocks, etc. (Acs.5-30 guntas including uncultivable portions) situated at Kharmanghat village, Ranga Reddy District. The said property is notified as wakf property by virtue of Gazette No.24-A dated 21.06.1984. The Gazette Notified muthawalli died long back and since none approached the plaintiff claiming muthawalliship, the said Mosque and its attached properties under the control and management of the plaintiff as per Section 32 of the Wakf Act. The defendants, who are no way connected with the suit property, taking undue advantage of the fact that the said property is lying vacant, on 16.01.2001 with an intention of usurp the suit property, entered into the property along with their associates and with a load of plotting stones, dug pits and fixed up the plotting stones over the suit property in order to encroach the said property and thereby to sell away the same to third parties by making plots. Further, on coming to know the same, the staff of the plaintiff rushed the suit property to protect the property, upon which the defendants went away from the spot by threatening the staff of the plaintiff.
Hence, the suit by the plaintiff seeking to restrain the defendants, their henchmen, associates, attorneys, agents, representatives, persons claiming through them or acting under them from interfering or causing any type of interference into the peaceful possession and enjoyment of the plaintiff over the suit property and restraining the defendant from carryout construction or any type of erection either permanent or temporary, encroachments over the suit property and restrain defendants from alienating or transferring into any manner whatsoever the suit property or any part of the suit property and for costs of the suit.
The first defendant filed written statement and the same was adopted by the second defendant. It is stated that the suit property is not at all muthawalli’s property, does not come under the Wakf property and as such the plaintiff has no locus standi to file the suit, one Kanala Durgaiah was the protected tenant of the said property and after his death his legal heirs Kanala Sathaiah bequeathed the property, he also got occupancy rights under Inam Abolition Act, his name was entered in revenue records. Said Sathaiah divided the subject land into plots, alienated the total plots to some third parties and in turn the said third parties again alienated the plots to various purchasers and accordingly the defendant purchased plot bearing No.54 (part) admeasuring 230 Sq.yards through registered agreement-cum-general power of attorney bearing No.8814/2000 dated 19.10.2000 and since then he is in the peaceful possession and enjoyment of the same. The revenue records also do not indicate the name of the plaintiff. As such, the suit filed by the plaintiff with a malafide intention is liable to be dismissed.
In support of plaint averments, the plaintiff got examined P.W.1 and marked Exs.A.1 to A.4. In support of the defendants, D.W.1 was examined and Exs.B.1 to B.17 are marked.
The Tribunal while decreeing the suit held that though the defendants claim that the names of Durgaiah and Sathaiah were entered in revenue records as protected tenants, no document is filed by the defendants to substantiate the same and occupancy rights certificate is not proof of title. The Tribunal also held that though the defendants filed pahanies with a mention of their names, Ex.A.3-Gazette Notification and Ex.A.2-Survey Commissioner Report are way back to 1984 and they clearly reveal that the suit property is attached to the mosque. Thus, the trial Court relying on Exs.A.2 and A.3 decreed the suit. Aggrieved over the same, present revision has been preferred.
The main contention of the learned counsel for the petitioners is that the suit land is admittedly a Dasthagardan Inam Land and that the Revenue Divisional Officer-cum-Inams Tribunal under Ex.B.17 proceedings dated 12.5.1997 issued Occupancy rights Certificate under Section 8 of the A.P. (Telangana Area) Abolition of Inams Act, 1955, in favour of Kanala Sathaiah and the same is binding on all including the lower Tribunal.
According to the learned counsel Ex.B.17 is the source of title and no one can claim any title in respect of the suit land contrary to Ex.AB.17 issued by the Inams Tribunal which has got exclusive jurisdiction in respect of the inam lands and that the respondent-Wakf Board did not make any claim in respect of the suit land before the Inams Tribunal by way of objections or did not file any appeal, therefore the Wakf Tribunal has no jurisdiction to decide the title in respect of the Inam Land.
Heard the learned counsel for therespondent.
It is not in dispute that where a special Tribunal out of the ordinary course is appointee by an Act to determine questions as to rights which are the creation of that Act, then except as far as is otherwise expressly provided or necessarily implied, that Tribunal’s jurisdiction to determine those questions is exclusive. The Wakf Tribunal, however, proceeded on the basis of the notification Ex.A.3 while passing impugned order and that Ex.B.3 to B.15 pahanies for the year 1981 to 1997 shows exclusive possession and title of the petitioners. Ex.A.4-khasra pahani shows that the possession is in favour of the petitioners. The Tribunal also ought to have seen that the suit is filed only for injunction simplicitor and the respondent-Wakf Board has erred in framing the issues as to the title and in declaring that the respondent plaintiff has got title without any prayer or evidence. The respondent Wakf Board in the teeth of ORC, without challenging the it before the competent authority has filed the suit, more so when the claim of the Wakf Board is that they have 4 acres of land, the respondent Wakf Board has came up with unclear facts as to what has happened to remaining extent of land. In those circumstances, the Tribunal ought not to have passed the impugned order. It is the specific case of the petitioners that they is in possession over 230 square yards of land out of Ac.4.30 guntas of land after purchasing the same in the year 2000 that the revision petitioners and others constructed houses in the plots alienated from Sathaiah, who obtained occupancy certificate under Inam Abolition Act in respect of the suit property from the competent authority.
Since the main ingredients as to possession as on the date of filing of the suit was not established by the respondent-plaintiff on the other hand the petitioners could able to prove that they are in possession of the property by filing revenue records and Ex.B.17 occupancy certificate issued by the Revenue Divisional Officer, the Wakf Tribunal is not justified in decreeing the suit filed by the Wakf Board. The proceedings of the Revenue Division Officer issued vide Ex.B.17 were not challenged by the Wakf Board. The remedy if any open for the Wakf Board is to file the suit for declaration of title and for other appropriate reliefs. Since the respondent-plaintiff failed to establish his case for grant of interim injunction the order under challenge is liable to be set aside and it is accordingly set aside.
In the result, the judgment and decree passed by the Court below is set aside and the Civil Revision Petition is allowed. No costs.
JUSTICE V. SURI APPA RAO Sur/kvrm/kk Dt 13-6-2014 THE HON’BLE SRI JUSTICE V.SURI APPA RAO CIVIL REVISION PETITION No.3669 OF 2005 Dated 13.06.2014