Heard learned counsel for the parties.
These four cases have been filed by U.P. Sunni Central Board of Wakf. The dispute relates to plot no.2162 which is situate towards south of plot no.2164. Plot no.2164 is admittedly a mosque. The dispute is only in relation to plot no. 2162 which according to the petitioner Wakf Board is also Wakf and is in the form of grave yard. However according to the contesting respondents it is not grave yard and it is private property of Shamsul Islam and before him of his ancestors. The other respondents are his tenants in different portions which were constructed by him. Respondents have also pleaded that in several earlier litigations including one suit of 1905 (O.S. no.224 of 1905) and another suit of 1931 (Original Suit No.282 of 1931) which were instituted by the Muslims of the locality, it was categorically held that plot no.2162 was not Wakf/grave yard and it was private property of Shamsul Islam's ancestors.
Wakf Board claimed that plot no.2162 was entered as Wakf in its register. The Board therefore sent a requisitions to the Collector under Section 57-A of U.P. Muslim Wakf Act, 1960 for possession. The Collector passed the order of dis-possession of the respondents. Thereupon five appeals were filed by the respondents being Misc. Appeal No.43 of 1988 and 48 to 51 of 1988. One was filed by Shamsul Islam and the four by his four tenants. The appeals were filed under Section 49-B (4) read with Section 57-A(2) of U.P. Muslim Wakf Act, 1960. All the appeals except Misc. Appeal No.51 of 1988 filed by Shri Ghani were decided/allowed by common judgment and order dated 20.3.2001 passed by IV Additional District Judge, Etawah. Appeal of Ghani was separated as he had died. One writ petition has been filed against the said judgment in respect of Shamsul Islam and the other writ petition has been filed against the same judgment and order in respect of the three tenants - Wahid Khan, Ziauddin and Siraj.
Even before issuance of order by the District Magistrate against the contesting respondents, Shamsul Islam had filed two references under Section-71 of U.P. Muslim Wakf Act 1960 before Wakf Tribunal/Civil Judge (Senior Division), Etawah numbered as Misc. Case No.52 of 1987 and 161 of 1987. Both references were allowed on 5.4.2003. Both the Revisions are directed against the said orders of the tribunal.
The U.P. Muslim Wakf Act has been repealed by Section 112 (3) of Wakf Act 1995 however, pending proceedings are to be decided in accordance with the repealed Act.
The first question is regarding maintainability of the reference. In U.P. Sunni Central Board of Wakf vs. Ist A.D.J. Jhansi 2007 (1) A.R.C. 428 after taking into consideration various provisions of different Wakf Acts I held in paragraph-14 as follows:-
Para. 14.-- It is one thing to say that declaration/decision regarding a property being Wakf property particularly under Section 33 of U.P. Act was neither final nor conclusive and it is quite another to say that it could not have any effect upon a person who was not interested in the wakf. Such decision prima-facie established that the property was wakf property. However, such decision was open to challenge in civil suit or before Tribunal. If a person even after becoming aware of entry of the property as wakf property in the register of the wakf board did not file suit regarding title or challenged the same before Tribunal then he could not resist eviction proceedings under Section 57(A) or 49(B).
In the instant case according to the Wakf Board after coming to know that plot no.2162 was also Wakf, it entered that in register as Wakf in 1957 under old U.P. Wakf Act 1936. Accordingly, it is a case covered by Section 33 of U.P. Muslim Wakf Act, 1960 (or its corresponding provision of 1936 Act) Section 33 of U.P. Muslim Wakf Act 1960 is quoted below:-
S.33: Decision if a property is Wakf property.--(1) The Board may collect or cause to be collected information regarding any property which it has reason to believe to be a Wakf property and if any question arises whether a particular property is Wakf property or not, it may, after making such enquiry as it may deem fit, decide the question.
(2) Any person aggrieved by the decision of the Board under sub-section (1) may by application within 90 days from the date of such decision refer the dispute to the Tribunal which shall give its decision thereon.
As far as question of limitation is concerned, on the principal of Article 59 of the Schedule to the Limitation Act limitation will start when the facts entitling the applicant to have the wakf entry cancelled or set aside first become known to him.
Accordingly reference was quite maintainable.
In both the judgments the courts below held that the Wakf Inspector Nasim himself reported on 12.2.1957 that only mosque in plot no.2164 was Wakf property and adjoining property was not wakf. Wakf Board could not bring on record that since when constructions had been made over the land in dispute. The earlier suits of 1905 and 1931 were filed in representative capacity accordingly the judgments thereof operated as res-judicata by virtue of Section-11 Explanation-VI C.P.C. Moreover the said judgments have got great evidentiary value under Section-42 of Evidence Act (vide Virupakshayya Shankarayya v. Neelakanta Shivacharya Pattadadevaru AIR 1995 S.C. 2187). Explanation-VI to Section 11 C.P.C. and Section 42 Evidence Act are quoted below:
Explanation VI- S-11 C.P.C. Where persons litigate bona fide in respect of a public right or of private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section be deemed to claim under the persons so litigating.
42. Relevancy and effect of judgments, orders or decrees, other than those mentioned in section 41. ---Judgments, orders or decrees other than those mentioned in section 41, are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state.
The argument of learned counsel for the petitioner Wakf Board that earlier litigation was initiated only by a particular section of Muslim Community is neither substantiated nor of much value. In the earlier suit of 1931 property in dispute was claimed to be Wakf in which Muslims in general and people of particular communities in particular had right to bury their dead and the said plea was negatived by the court. The judgment in O.S. No.282 of 1931 dated 20.2.1933 passed by Munsif, Etawah is Annexure-12 to the first writ petition wherein it was held that defendants Ibrahim (father of Shamsul Islam) and others were in possession for more than 16 years, had made construction 16 years before and had acquired title by adverse possession. The fact that Karim Bux father of Ibrahim was Mutwalli of mosque will not mitigate the effect of judgment of O.S. No.282 of 1931. Even Wakf property can be lost by adverse possession vide Mosque known as Masjid Shahid Ganj and others vs. Shiromani Gurdwara Parbandhak Committee, Amritsar and another AIR 1940 P.C. 116 and Dr. M. Ismail Farooqi Vs. Union of India, 1994 (6) S.C.C. 360. According to the petitioner Wakf Board the first entry was made in October, 1957 copy of which is Annexure-4 to the first writ petition. In the said entry it is mentioned that mosque alongwith kabristan having four houses which were let out and remaining property was also let out. However while making the said entry the judgment in O.S. No.282 of 1931 was not taken into consideration.
Accordingly, I do not find any error in the impugned orders. Both the writ petition petitions and both the revisions are therefore dismissed.
Order Date :- 16.7.2012 RS