Second Appeal No. 431 of 1994. Case: Maratwada Wakf Board Vs Vibhawari and Ors.. High Court of Bombay (India)

Case NumberSecond Appeal No. 431 of 1994
CounselFor Appellant: Masood Shareef and Aadil Mirza, Advs. and For Respondents: C.S. Kaptan, Senior Counsel, P.S. Chavan and R.S. Kalangiwale, Advs.
JudgesA. S. Chandurkar, J.
IssueCode of Civil Procedure, 1908 (CPC) - Order XLI Rule 25; Sections 100, 100(5), 96; Code of Criminal Procedure, 1973 (CrPC) - Section 145; Limitation Act, 1963 - Section 3
Judgement DateFebruary 26, 2016
CourtHigh Court of Bombay (India)

Judgment:

A. S. Chandurkar, J.

  1. This appeal under Section 100 of the Code of Civil Procedure (for short, the Code) takes exception to the judgment dated 16.09.1994 passed by the first appellate Court allowing the appeal filed by the respondent nos. 1 to 4 and setting aside the judgment and decree passed by the trial Court.

  2. Facts found relevant for deciding the second appeal are that according to the appellant there was a Dargah and graveyard admeasuring about 350 ft. X 250 ft. in Survey No. 153 at Rajura Tahsil, District Chandrapur. The said Dargah and graveyard was shown as Wakf property in the development plan of Rajura town in 1972. In the Government Gazette dated 06.03.1975 it was shown at Sr. No. 49. According to the appellant the defendant no.1-Deepak Deshpande had encroached an area admeasuring 160 ft. X 170 ft. of said property in the month of May 1974. The defendant no.1 had also sold the portion admeasuring 95 ft. X 80 ft. to the defendant no.2 on 29.06.1976. In this background the appellant filed Regular Civil Suit No. 4 of 1977 for a declaration that the suit property was Wakf property and sought possession of the encroached portion. The suit was filed on 19.01.1977.

  3. The defendant no.1 filed his written statement vide Ex. 101. The case as pleaded was denied by the defendant no.1. It was specifically pleaded that said defendant was the recorded owner of Survey No. 153/2 admeasuring 1 acre 30 gunthas. It was pleaded that said property was purchased in a Court auction in the year 1923. In the southern portion there was a petrol pump of the defendant no.1 and on the northern portion the land was vacant. Taking the advantage of the same, some members of the Muslim Community had sought to bury dead bodies there. Reference was made to proceedings under Section 145 of the Criminal Procedure Code, 1898 in relation to said property.

    The defendant no. 2 filed his written statement below Ex. 105. The defendant no.2 claimed title to land admeasuring 90 ft. X 80 ft. on the basis of sale deed dated 20.06.1976.

  4. The parties led evidence before the trial Court. By the judgment dated 09.07.1985 the trial Court decreed the suit and held that the suit property was wakf property and that the plaintiff was entitled to possession of the same. It was declared that the sale deed executed by defendant no.1 in favour of defendant no.2 was not binding on the plaintiff.

    The defendants being aggrieved filed two separate appeals under Section 96 of the Code. By judgment dated 16.09.1994 the first appellate Court allowed both the appeals and set aside the decree passed by the trial Court. Being aggrieved, the original plaintiff has filed the present second appeal.

  5. When the appeal was admitted the following substantial question of law was framed:

    (1) That S/6(i) of the Wakf Act of 1954, prescribes the period of one year of publication of notification in the Government Gazette dated 06.03.75 for raising any objections for inclusion and notification of property as a Wakf property, for whom the provision would apply to the plaintiff who among other evidence and factors relied upon the publication of the land as a Wakf land for recovery of possession of the said land or upon the defendant who denies the suit land as Wakf property?

    It may be mentioned that the second appeal came to be dismissed on 06.09.2012 by holding that it did not give rise to any substantial question of law. This judgment was set aside by the Hon'ble Supreme Court in Civil Appeal No. 9888 of 2014 by order dated 27.10.2014 and the proceedings were remitted for fresh consideration. After hearing the learned counsel for the parties on 03.12.2015, two more substantial questions of law were framed in terms of the proviso to Section 100(5) of the Code. Said substantial questions of law are as under:

    (2) In absence of any issue as regards suit being filed within limitation being framed by the trial Court and in absence of such ground in the memo of appeal, whether the Appellate Court was justified in going into said question?

    (3) Whether the appellate Court has failed to consider relevant evidence that was available on record?

    The learned counsel for the parties were thereafter heard on all the three substantial questions of law.

  6. In support of the appeal Shri Masood Sharif, the learned counsel for the appellant made the following submissions:

    (a) The suit as filed was in limitation and the appellate Court was not justified in holding that the suit had been filed beyond the period of limitation. It was submitted that as per the Gazette Notification dated 06.03.1975, property admeasuring 350 ft. x 250 ft from Survey No. 153 was a Wakf property. It was alleged in the plaint that in May 1974, the defendant No. 1 had encroached an area admeasuring 160 ft. x 170 ft. Thereafter on 29/06/1976 the defendant No. 1 had sold area admeasuring 90 ft. X 80 ft. to the defendant No. 2. The suit was filed on 19/01/1977 and hence...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT