Civil Revision Application No. 4 of 2009. Case: Baba Bangal Dargah & Masjid Wakf Committee and Ors. Vs Sayad Hamid Abdul Latif and Ors.. High Court of Bombay (India)

Case NumberCivil Revision Application No. 4 of 2009
CounselFor Appellant: A.S. Bajaj, Advocate and For Respondents: R.S. Deshmukh, Advocate
JudgesT. V. Nalawade, J.
IssueBombay Public Trusts Act, 1950 - Section 72
Judgement DateSeptember 21, 2015
CourtHigh Court of Bombay (India)

Judgment:

T. V. Nalawade, J.

  1. The revision is admitted. After admission notice was made returnable forthwith. Both the sides argued for final disposal by consent.

  2. Present proceeding is filed to challenge the judgment and order made by Wakf Tribunal Aurangabad in Wakf Application No. 131/2006 which was filed by present respondents under section 83(2) of the Wakf Act, 1995. Present petitioners had made application under section 36 of the Wakf Act 1995 (hereinafter referred to as "the Wakf Act") for registration of religious institution by name "Baba Bangal Dargah and Masjid" having its properties. The Wakf Board by letter No. 12/06 dated 17-4-2006 informed to the petitioners that the institution was already registered and published under Wakf Act 1995 and so there was no necessity of making fresh application. It was informed that there was no need of fresh registration under section 43 of the Wakf Act. This so called correspondence made by the Wakf Board to the present petitioners was challenged before Tribunal by presuming that it was order indicating that religious institution and its property are registered under Wakf Act. The Wakf Tribunal has set aside this so called order by observing that proper procedure was not followed under Wakf Act. It is also observed that opportunity ought to have been given to present respondents, applicants of the proceeding filed under section 83(2) of the Wakf act to have their say.

  3. It is the case of the respondents who claim to be owner of Survey No. 64 admeasuring 2.76 acres situated within the jurisdiction of Cantonment Board Ahmednagar that this property cannot be registered as property of aforesaid religious institution. It is contended that this property has come to them from their ancestors and even in revenue record their names are mentioned as holders of the property from many years. It is their case that in the year 1932 partition was effected amongst their predecessors and Survey No. 64 was also considered as the property of the family. It is contended that one of their predecessors had executed a will, vasiyat, and in that Wasiyat it was mentioned that Survey No. 64 is private property left behind by their ancestors.

  4. It is the case of the present respondents that their ancestors had given portions of aforesaid landed property on lease basis to different persons. It is contended that when some of the lessees surrendered the possession they admitted ownership of the respondents and their ancestors over the aforesaid land and in litigations filed against the lessees. It was admitted that respondents are owners. It is contended that present petitioners, so called trustees of aforesaid religious institution, are also tenants in different portions of the property and they are facing eviction proceedings. It is contended that only to avoid the eviction, the proceedings are created to show that the property belongs to the Trust, religious institution.

  5. It is the case of the respondents that one of their ancestors had taken loan from one Karamsing Punjabi and in execution proceeding filed by Punjabi for recovery of the said loan, objection was taken by their ancestor that the property was trust property but this objection was rejected by the Civil Court. It is contended that the Civil Court has thus decided that the property is private property of the respondents.

  6. It is the case of the respondents that one of their ancestors viz. Sayyad Bandu had registered the trust under the Bombay Public Trusts Act 1950 in the year 1953 but it was only in respect of 276 square yards portion of aforesaid survey number and the Dargah was registered as Trust. It is contended by the respondents that due to incident of Panshet Dam the record of the Trust office from Pune was destroyed in the year 1963. It is contended that this circumstance was misused by Sayyad Bandu and he showed the area of the trust property as 2.76 acres when it was only 276 square yard. According to respondents, the ancestor had taken objection in the aforesaid execution proceeding filed in the year 1968 (Execution Proceeding No. 57/1968). It is the case of the respondents that when the decree holder succeeded, some property was sold in auction in the execution proceeding and the auction purchaser had then filed suit for partition and possession of portion purchased by him (Regular Civil Suit No. 131 of 1977). It is the case of the respondents, that the then trustee, predecessor of the respondents had taken objection in Civil Court but this objection was rejected and the said decision of the Civil Court has become final. It is contended that execution petition filed on the basis of decree given in partition suit is still pending (Execution petition No. 183/1977). It is the case of the respondents that the sharers of the property had filed partition suit bearing Regular Civil Suit No. 43/1979 and in that suit present petitioners were made party as they were holding some portions as tenant. It is contended that in that suit also it is held that the aforesaid property is private property excluding 276 square feet portion.

  7. It is the case of the respondents that the Civil Court has already decided that the portion admeasuring only 276 square feet belongs to the Trust. It is contended that the initial entry made about 2.76 acres is now deleted from the record of Trust office. It is contended that this decision of the Civil Court was taken to High Court and in Second Appeal 829 of 2005 order of status quo was made by the High Court (In Civil Application No. 5382/2005). It is contended that even when there was such order of the High Court, the present petitioners, so called trustee, started proceeding before the Wakf Board of aforesaid nature and that was only with intention to avoid the eviction orders. It is contended that in that proceeding the Board had not issued notice to them and no opportunity of having their say was given to them. It is contended that inquiry ought to have been made under section 4 of the Wakf Act and as there was no such inquiry, registration under section 36 of the Wakf Act is illegal and it is not binding on them.

  8. In the present proceeding, learned counsels for both the sides were allowed to produce some record like photographs of the structures which are present on Survey No. 64 and also record in respect of cash grant given to the predecessor-in-title of present respondents. Record of this nature was already before the...

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