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U.P.SUNNI CENTRAL BOARD OF WAQF,LUCKNOW versus XII ADDL. DISTRICT JUDGE, MORADABAD

High Court of Judicature at Allahabad

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U.P.Sunni Central Board Of Waqf,Lucknow v. Xii Addl. District Judge, Moradabad - WRIT - C No. 14388 of 1990 [2005] RD-AH 32 (1 January 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

COURT NO.31

CIVIL MISC. WRIT PETITION NO.14388 OF 1990

U.P. Sunni Central Board of Waqf, Lucknow.   ...Petitioners

Through its Secretary and another.                  

Versus

XIIth Additional District Judge, Moradabad

and others.                                                     ...Respondents

---------  

Hon'ble Bharati Sapru, J.

The present petition has been filed by the petitioner, which is a Waqf Board against the judgment of XIIth Additional District Judge, Moradabad dated 16.1.1990.  The order is an order passed in an appeal made by the defendants under Section 49-B Sub-section 4 of the U.P. Muslim Waqf Act, 1960, which emanated from a notice dated 8.9.96 in Form-II issued by the Collector against the respondents in the case directing them to deliver possession of the disputed property within a period of 30 days from the receipt of notice issued under Section 49 B-2 of the Act aforesaid, by the Collector for eviction of the respondents from the property of the Waqf Board.  

The facts of the case  are that one Azizur Rahamn Khan created a Waqf and executed it on 19.1.26.  According to the petitioner, this Waqf Deed was duly registered with the Registrar and thereafter, upon the coming of the Act, it was registered under Section 30 of the Act.  It is contended by the petitioner that the respondents were illegal occupants over the property of the said Waqf and, therefore, sent a requisition to the Collector to issue a notice in proceedings under Section 49-B of the Act.  

Learned counsel for the petitioner has contended that while hearing the appeal under Section 49B-2, the District Judge has wrongly entered into the merits of the case and has given a decision of the case against the Waqf Board.  

He has made three submissions.  

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Firstly, that the appeal was filed by the respondents at a late stage.  The notice issued under Section 49-B(2) by the Collector has limited jurisdiction and under this provision, the Collector only acts as an executing Court and, therefore, the appeal which lies against this is also of limited jurisdiction and the Court can not go into any question on merits.  For this purpose, he has relied on the decision of the Hon'ble High Court as reported in  AIR 1985 ALLAHABAD 79 in the case of Afzal Husain Vs. Ist Addl. District Judge.

The second argument of the petitioner is that it is not open to the respondents to challenge the registration of the Waqf in the present proceedings, as the proper stage to challenge the same is provided under Section 29 of the Act, which the respondents did not undertake.  

The third argument advanced is that once again proceedings under Section 49-B read with 57-A of the Act  are confined to execution alone and do not extend to trying or deciding any questions relating to title etc.

Shri M.A. Qadeer also argued that in the present proceedings, the Court cannot go into the questions of validity of Waqf Deed and the impugned order is bad for the reason that the District Judge has clearly exceeded the jurisdiction so vested in him and has passed a sweeping order by taking into account the entire property of the Waqf.

Shri V.P. Rai has appeared on behalf of the respondent and has brought to the notice of this Court the statement made in the decision of the District Judge that the original Waqf Deed executed on 19.1.26 was not filed by the petitioner.  The Court below has, therefore, rightly observed that the correct picture of the share and ownership of the creator of the Waqf Azizur Rahman Khan could have been made clear from the Waqf Deed dated 19.1.26. The Court has observed that the Waqf Board has withheld this

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important documents and has, therefore, drawn adverse inference against the Waqf.  

It has also been contended by the learned counsel for the respondent that they were tenants of the property in dispute for a long time and the property on which they were tenants, was in fact not the property of the Waqf and, therefore, at no stage, did they have any reason to challenge the registration of the Waqf Deed dated 19.1.26.

Having heard learned counsel for the parties and also having perused the records, from the documents, it is clear that in fact the Court below, while coming to its conclusions, did not clearly delineate the boundaries of the Waqf property.  The property of the Waqf was not identified separately or distinguished from the property held in the tenancy of the respondents.  

Even if the argument of the learned counsel for the petitioner is accepted that proceedings under Section 49-B of the Waqf Act, 1960 are in the nature of execution proceedings, even then, from the facts and circumstances of the present case, it would be necessary that in order to complete the execution proceedings that first the property of the Waqf, if there was one at all, should have been identified.  

I, therefore, think that it is necessary that the matter be remanded to the Court below to clearly distinguish and identify the property of the Waqf and the respondents.  The order of the District Judge is vitiated because it has failed to do this and, therefore, the order of the District Judge dated 16.1.90 is, hereby, set aside.  

The matter is remanded for consideration afresh and as it is an old matter, it may be concluded within a period of one year after providing to both the parties an opportunity of hearing and of leading evidence.  It is, however, made clear

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that until the matter is decided, the respondents shall not be dispossessed from the portion they are occupying as tenants.  

The petition is, therefore, allowed.  No order as to costs.  

Dated : 30.11.05

L.F.


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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