@JUDGMENTTAG-ORDER
T.V. Nalawade, J.@mdashThis proceeding is filed to challenge the judgment and order passed in Wakf Suit No. 40 of 2010 which was pending before the Presiding officer, Maharashtra Wakf Tribunal, Aurangabad. The suit filed by the respondent nos. 1 to 4 for relief of possession of some immovable properties is decreed in their favour. The Wakf Tribunal has directed the present applicants, defendant nos. 1 and 2 to the suit, to handover possession of suit properties to the plaintiff''s and Wakf Board. Both the sides are heard.
2. The suit was filed in respect of lands bearing Survey Nos. 17 and 18, situated at Dharur, District Beed. Possession of these lands was claimed and relief of declaration was claimed in respect of judgment and decree of Regular Civil Suit No. 91 of 1980 to the effect that the judgment and decree is not binding on the plaintiff''s and Wakf Board. It is the case of the plaintiff that both the lands are service Inam lands and they are given for rendering service to Jama Masjid and Graveyard of Dharur. It is contended that the properties are recorded as Wakf properties by publication in Government Gazette, published on 18.4.1974. It is the case of the plaintiff''s that one Chand Khan Rasool Khan was original Muntakhab holder under Muntakhab No. 1298 and he was rendering services to the Masjid by cultivating these lands. It is contended that Chandkhan left behind three sons namely Umar Khan, Kadar Khan and Rahmat Khan. It is contended that Rehmat Khan had one son by name Sadulla Khan and Sadulla Khan left behind one son by name Jamal Khan. It is contended that Jamal Khan left behind two sons by name Amin Khan and Sadulla Khan. The plaintiff''s are successors of Sadulla Khan s/o Rahmat Khan. It is contended that by way of succession, they are entitled to cultivate the land and render service to Jama Masjid of Dharur.
3. It is the case of the plaintiff''s that possession of the defendants over the suit property is illegal. It is contended that defendant Nos. 1 and 2 have knowledge that the suit properties are Wakf properties but they are not ready to return the possession to the plaintiff''s. It is contended that there was lease made in favour of the defendants but in view of the provisions of Wakf Act, 1995, the lease cannot be recognized and in view of the provisions of the Wakf Act, possession has become illegal. It is contended that they had requested defendant nos. 1 and 2 to handover possession on 15.05.2010 but the defendants turned down the request. It is contended that the plaintiff nos. 3 and 4 are rendering service to Jama Masjid and they require the income from the lands for rendering service.
4. Defendant nos. 1 and 2 filed written statement. They have admitted that the suit properties are shown as Wakf properties in the notification but they have contended that the procedure required to be followed was not followed. They have contended that the plaintiff''s are not successors of original Muntakhab holder-Chand Khan. It is contended that no succession certificate has been granted in favour of the plaintiff''s under the Hyderabad Atiyat Enquiries Act, 1952. It is contended that in the civil suit filed by the defendants bearing No. 91 of 1980, relief of perpetual injunction is given and that decision is binding on the Tribunal. It is contended that Tahsildar has made order in favour of the defendants for allowing them to cultivate the land and that was done on 27.09.1984. It is contended that their predecessors got possession about 70 years back and possession has been continuous. It is contended that notice was issued against them u/s 54 of the Wakf Act but it was dropped when they filed Darkhast No. 47 of 2004 on the basis of previous decree and requested to put the Chief Officer of the Wakf Board in Jail. The defendants have denied that the plaintiff''s are rendering service to the mosk. It is their case that electric meter of Masjid is in the name of defendant no. 1 and there is water tap connection and charges in respect of both are being paid by the defendants. They have contended that the plaintiff''s have no right to get the possession and they requested for dismissal of the suit.
5. Before the Tribunal, both sides gave evidence. Copy of decision given in Regular Civil Suit No. 91 of 1980 was filed on record and copy of deposition was also filed on the record. Some record like Muntakhab was also produced. The tribunal has held that the plaintiff''s are successors of the original Muntakhab holder Chand Khan.
6. Submissions made and the record of previous suit discussed by the tribunal show that the previous suit was filed against the present plaintiff''s and it was contended that the lands are service Inam lands of Masjid and the plaintiff''s were successors of Inamdar. It is not disputed that the properties are notified in the Government Gazette as Wakf properties. Copy of Government Gazette dated 18.04.1974 is on the record to that effect.
7. From the evidence given by the defendant nos. 1 and 2, it can be said that they did admit that first they had got the possession for cultivation purpose from the previous Inamdar and from 1982, they got the land for cultivation purpose from Government. Though in the present matter they disputed that the plaintiff are successor of Chand Khan, there is copy of the Muntakhab on record and these defendants had admitted in previous suit that plaintiff''s'' father was successor of Inamdar.
8. The argument advanced by the learned counsel appearing for the applicants shows that there was some dispute on translation of the original document of Muntakhab and two different translations were given. There was dispute as to whether there was the name predecessor of the plaintiff''s in Muntakhab. It appears that the Presiding Officer of the Tribunal knows Urdu and he pursued the document to ascertain the names of Muntakhab holders and their successors mentioned in the document. Then translation of it was obtained from one more person. The Presiding Officer confirmed that there was the name of Jamal Khan and it was entered as successor of the original Muntakhab holder. The plaintiff''s are claiming to be successors of the said Jamal Khan.
9. The learned counsel for the applicants submitted that it was unwarranted on the part of the Presiding Officer to ascertain the names when one translator had given some evidence with regard to the contents of the documents. This submission is not at all acceptable. The Presiding Officer/Judge is not expected to play in to the hands of the witnesses and every care needs to be taken to see that the translation is correct. In any case, there was no scope to defendant nos. 1 and 2 to deny that present plaintiff''s are successors of the original Inamdar in view of previous admission. Sadulla Khan, father of the plaintiff''s was made defendant in Regular Civil Suit No. 91 of 1980 by the defendant nos. 1 and 2 and he was described as Inamdar.
10. The provisions of Hyderabad Atiyat Enquiries Act, 1952, section 7 shows that last holder of Muntakhab dies, the succession is governed by the personal law. Though the certificate can be obtained under the provisions of Hyderabad Atiyat Enquiries Act, 1952, it cannot be said that unless the certificate is obtained by the successors of last holder they can assert their right. In such cases, the say of the Wakf Board plays important role. Though in the written statement filed before the Tribunal, the Wakf Board had not come with specific defence or positive support in favour of the plaintiff''s, the submissions made show that subsequently Wakf Board appointed one of the plaintiff''s as temporary Mutawali. He came to be appointed only because he is successor of original Muntakhab holder. Thus, the Wakf Board is supporting the plaintiff''s.
11. Argument was advanced by the learned counsel for the applicants that the possession of defendant nos. 1 and 2 is legal and so the possession cannot be taken away from them. In this regard, attention of this Court was drawn to the provisions of Wakf Act, 1954 (section 35-F) and Wakf Act, 1995 (Section 56). These provisions show that Mutawali could not have given lease for a period more than three years in the past and in view of Act of 1995, Mutawli cannot give lease of Wakf land for a period of more than one year. Even Board cannot give lease of Wakf land for a period of three years or more. On this point, reliance was placed on the decision given by this Court in CRA No. 252 of 2012 (Laxman Haribhau Koradkar & others Vs. Saminuissa Fazaluddin Inamdar & others). The observation shows that if there is a lease of property for further period that lease needs to be treated as void. Provisions of Hyderabad Tenancy and Agricultural Lands Act and also the Government Circular issued for giving the land for cultivation purpose were considered by this Court in Civil Revision Application No. 252 of 2012. It can be said that as there was nobody like Inamdar authorized in the past for giving lease, the circular was issued and permission was given to defendant nos. 1 and 2 to cultivate the land. It can be said that when there was notification in the year 1974, Tahsildar ought to have considered the fact that the lands were service Inam lands and proper care ought to have been taken. In any case, due to the order made by the Tahsildar, defendant nos. 1 and 2 did not get right to continue their possession. After coming into force of Wakf Act, 1995, no lease was granted by Mutawali, Inamdar or Wakf Board to defendant nos. 1 and 2. Thus they need be treated as encroacher.
12. Provisions of Wakf Act were considered by the Andhara Pradesh High Court also in the case of Sri Shinde Enterprises Vs. Arastu Talimi Trust and another decided on 20th January, 2005(2005 (2) ALD 239). Reliance was placed by the learned counsel for the plaintiff''s on some reported cases like
13. Though the learned counsel for the applicants tried to take support the decision of Civil Court given in the past in favour of the applicants, that suit was only for the relief of injunction. Admittedly the present applicants were found in possession and they could show that they were given land for cultivation purpose and so the Court gave injunction but that injunction cannot come in the way of the plaintiff''s and Wakf Board to take possession of the land from the present applicants in view of the discussion already made. The other record like some receipts of payment of water charges and electricity charges produced by the present applicants also cannot help them as their are admittedly not the successors of the original Muntakhab holder Chand Khan and they are also not appointed as Mutawali by the Wakf Board.
14. There is also grievance of the applicants that the Wakf Board has not prayed for relief of possession but the Tribunal directed to hand over the possession to the plaintiff''s or Wakf Board. This argument is not at all acceptable. The judgment needs to be read as judgment given in favour of plaintiff''s. The pro perty is to be given to the plaintiff''s and the Wakf Board would have control over it. The Wakf Board has appointed one of the plaintiff''s as temporary Mutawali and therefore no fault can be found with the operative order also.
15. Considering the scope of the present case, this Court holds that there is no case made out for interference in the decision given by the Wakf Tribunal. Relevant material is considered by the Tribunal. In the result, the Revision Application stands dismissed. Learned counsel for the applicants requested for time as he wants to challenge the decision of this court. So, time of six weeks is given to the applicants to handover possession.
