Chand Mahboob Mujawar and Ors. Vs Mahaboob Ali and Ors.

MAHABOOB ALI S/O LATE AHMED SAB, AGE: 30 YEARS, OCC: AGRICULTURE AND MUTHAWALLI OF DARGAH HAZRATH SHA HAJI IBRAHIM QUADRI (SUNNI) OF VILLAGE MASARKAL R/O VILLAGE MASARKAL, TQ: DEVADSURGA DIST: RAICHUR.

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MOHD. SAB S/O MAKHDUM SAB AGE: 60 YEARS, OCC: AGRICULTURE 3. MAHBOOB @ MAKHDOOM SAB S/O MOHD. SAB AGE: 30 YEARS, OCC: AGRICULTURE 4. ZAHEER SAB S/O MOHD. SAB AGE: 25 YEARS, OCC: AGRICULTURE

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GHAREEB SAB S/O MOHD. SAB AGE: 23 YEARS, OCC: AGRICULTURE

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GHOUSE SAB S/O MOIN SAB AGE: 21 YEARS, OCC: AGRICULTURE

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KHAJA SAB S/O MAKHADUM SAB AGE: 45 YEARS, OCC: AGRICULTURE

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SHABNAWAZ S/O KHAJA SAB AGE: 23 YEARS, OCC: AGRICULTURE

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GHAREEB SAB S/O KHAJA SAB AGE: 20 YEARS, OCC: AGRICULTURE

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CRP No. 200054 of 2024

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SADIK S/O KHAJA SAB AGE: 18 YEARS, OCC: AGRICULTURE 11. IQBAL S/O MAHBOOB ALI AGE: 40 YEARS, OCC: AGRICULTURE 12. KANMIL S/O AKBAR SAB AGE: 40 YEARS, OCC: AGRICULTURE 13. BADU S/O IBRAHIM SAB AGE: 30 YEARS, OCC: AGRICULTURE 14. BASHA S/O HUSSAIN SAB GANDAGURTI AGE: 30 YEARS, OCC: AGRICULTURE 15. BADU S/O HUSSAIN SAB GANDAGURTI AGE: 32 YEARS, OCC: AGRICULTURE 16. MAHBOOB S/O WAHID SAB GANDAGURTI AGE: 26 YEARS, OCC: AGRICULTURE DEFENDANTS NO.2 TO 16 ARE R/O VILLAGE MASARKAL, TQ: DEODURGA DIST: RAICHUR. 17. THE CHIEF EXECUTIVE OFFICER, KARNATAKA STATE BOARD OF AUQAF, CUNNINGHAM HON'BLE HIGH ROAD, BANGALORE - 560052. (AMENDED AND IMPLEAD THE PARTY AS PER THE ORDER OF THIS HON'BLE COURT) …RESPONDENTS (BY SRI.M.F.KHAN, ADVOCATE FOR R1; SRI.P.S.MALIPATIL, ADVOCATE FOR R17; R2 TO R5 ARE SERVED; V/O DATED: 08.01.2025 PETITION IS DISMISSED AGAINST R6 TO R16)

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CRP No. 200054 of 2024

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THIS CRP IS FILED U/S. 83(9) OF THE WAKF ACT 1995 R/W SEC. 115 OF THE CPC, BY THE ADVOCATE FOR REVISION PETITIONER PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 20^TH DAY OF AUGUST 2024 PASSED BY THE KARNATAKA WAKF TRIBUNAL, KALABURGI DIVISION, AT KALABURGI, IN O.S NO.4/2019 BY DECREEING THE SUIT OF THE PLAINTIFF AND ETC.,

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THIS CRP HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 10.01.2025 AND COMING ON FOR PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT, PRONOUNCED THE FOLLOWING:

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CORAM: HON'BLE MS JUSTICE J.M.KHAZI

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CAV ORDERS

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(PER: HON'BLE MS JUSTICE J.M.KHAZI)

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In this petition filed under Section 83(9) of Wakf Act,

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1995 r/w Section 115 of the Code of Civil Procedure, defendant Nos.1 to 6 have challenged the judgment and decree dated 20.08.2024 passed by the Waqf Tribunal, Kalaburagi Division Kalaburagi, in O.S.No.4/2019, granting decree of permanent injunction restraining defendant Nos.1 to 17 from interfering with plaintiff discharging the day-today affairs of the Dargah Hazrath Shah Haji Ibrahim Qadri (Sunni) of village Masarkal, Deodurga Taluk, Raichur District (‘Dargah’ for short).

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For the sake of convenience, parties are

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referred to by their ranks before the trial Court.

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Plaintiff filed the suit in question seeking relief of permanent injunction contending that the Dargah in question is a notified Waqf institution. It is in existence since time immemorial. Thousands of devotees, irrespective of their caste and creed visit the Dargah and pay their obeisance, Nazrana and Fathekhowani and also attend Annual ‘Urs-E-Shareef’ and Chiraghan of the holy saint. It is notified at Sl.No.51 in the Official Gazette published by the Karnataka Board of Awkaf vide the Notification dated 18.02.1974 relating to the Deodurga Taluk.

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At the time of survey, the great grandfather of plaintiff by name, Bahauddinsab S/o Ibrahimsab was rendering the services to the Dargah as Muthawalli and accordingly, his name is published in the official Gazette as notified Muthawalli. After his death, his only son Mehboob Ali stepped into his shoes and looked after all the affairs of the Dargah and performing the Annual Urs. After his death, his eldest son Ahmed Pasha, who is no other than the

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father of the plaintiff stepped into his shoes as per “Law of Primogeniture” and family custom and became the Muthawalli and performed the duties of hereditary Muthawalli, including conducting Annual Urs. Vide the order dated 17.06.1998, the Board appointed him as a Muthawalli. After the death of his father, plaintiff is performing the duties of Muthawalli and Sajjadanasheen, including Annual Urs under the supervision of Karnataka Board of Awkaf.

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In fact, he applied to the Board for appointment as hereditary Muthawalli. After holding a full fledged enquiry, recording the statements of the villagers and conducting mahazar, vide order dated 18.06.2018, plaintiff was appointed as Muthawalli for one year. After the expiry of the said period vide order dated 27.09.2019, the plaintiff is appointed as Muthawalli for a period of three years. He is carrying on the duties of Muthawalli without any complaints. However, defendants who are inimical towards the plaintiff are trying to interfere in celebration of Annual Urs of the said Dargah. They filed a suit in O.S.No.14/2018

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for declaration and injunction. However, the Wakf Tribunal rejected the application filed by them for temporary injunction. Defendants have not challenged the said order and as such, it has become final. Before filing of this suit, from 23^rd to 25^th of March 2019, defendant supported by antisocial elements came near the suit property. They warned and gave threat/ultimatum to the plaintiff as to how he is going to perform the Annual Urs, forcing him to file the suit.

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Defendant No.4 has filed written statement and it is adopted by defendant Nos.1 to 3, 5 and 6. Similarly, defendant No.7 has filed written statement and it is adopted by defendant Nos.8 to 12.

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In their written statements, these defendants admit that suit Dargah is a notified Waqf Institution, notified at Sl.No.51 of Gazette Notification dated 18.02.1974 of the Deodurga Taluk. However, they have denied that at that time Bahuddin Sab-the great grandfather of plaintiff was performing the duties of Muthawalli and after his death, his only son Mehboob Ali

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performed the duties of Muthawalli. They have also denied

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that after the death of Mehboob Ali, his eldest son Ahmed Pasha, who is no other than the father of plaintiff became the Muthawalli and Vide order dated 17.06.1998, the Tribunal appointed him as Muthawalli and after his death, plaintiff stepped into his shoes and performing the duties of Muthawalli. Defendants have also denied that vide order dated 18.06.2018, plaintiff was appointed as Muthawalli for

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a period of one year and after expiry of the same, vide order dated 27.09.2019, he is appointed as Muthawalli for a period of three years. Defendants have denied that all the above named persons have performed the duties of Muthawalli and conducted the daily, monthly, annual rituals and also sandal of the Dargah in question.

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Inter alia, defendant Nos.1 to 5 who are siblings and defendant No.6, who is their nephew have claimed that they are performing the duties of Muthawalli and Mujawar of the plaintiff Dargah and they are conducting the Annual Urs and Sandal. They allege that plaintiff is encroacher of the Wakf land in Sy.No.374.//B, 374//K, 376/*/Ya,

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376//P and 376//Aa and enquiry has been conducted against the plaintiff and it is pending. Encroacher of the properties is not entitled to be appointed as Muthawalli.

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Similarly, defendant Nos.7 to 12 have claimed

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that they are performing the duties of Muthawalli and Mujawar. Defendant No.7 is the hereditary Muthawalli and Mujawar of the plaintiff Dargah. Prior to him his father Bahuddinsab was the Muthawalli and Mujawar. After his death, defendant No.7 is performing the duties of Muthawalli. Suppressing the true facts, plaintiff filed the suit and sought for dismissal of the same.

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Based on the pleadings, the Tribunal has framed necessary issues.

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In support of his suit, plaintiff examined himself as PW-1 and relied upon Exs.P1 to 49.

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On the other hand, defendant No.4 is examined as DW-1 and one witness is examined as DW-2. Ex.D1 to 36 are marked on behalf of defendants.

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The trial Court decreed the suit, granting relief of permanent injunction against the defendants.

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Defendant Nos.1 to 6 challenged the impugned judgment and decree contending that it is illegal, perverse, erroneous, and unsustainable both in law and on facts and as such liable to be set aside. The Tribunal has not answered additional issue No.1 and as such, the entire judgment is vitiated. No issue is framed regarding possession of suit property by the plaintiff, which is necessary in a suit for permanent injunction. Suit is liable to be dismissed as Wakf Board is not made a party despite defendants raising objections. The description of the suit property is very vague and for this reason, also suit is not maintainable. Plaintiff failed to prove his case. Viewed from any angle, the impugned judgment and decree is not sustainable and hence the petition.

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In support of his arguments learned counsel for petitioners has relied upon the following decisions:

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(i) Premji Ratansey Vs. Union of India (Premji Ratansey)¹

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(ii) A.Shanmugam Vs. Ariya Kshatriya Rajakula Vamsathu Madalayanandhavana Paripalanai Sangam, Rep. by its President, etc. (Shanmugam)²

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1 1994 SCC (5) 547, dated: 22.07.1994:

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2 (2012) SCCR 565

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(iii) Poojappa (since dead) by L.Rs Vs.Smt. Annapoornamma and Ors. (Poojappa)³

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(iv) Vathsala Manickavasagam and Ors. Vs. N.Ganesan and Anr. (Vathsala)⁴

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(v) Samarpan Varishtha Jan Parisar and Ors. Vs. Rajendra Prasad Agarwal and Ors.( Samarpan Varishtha Jan Parisar )⁵

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(vi) The Tahsildar, Urban Improvement Trust and Anr. Vs. Ganga Bai Menariya (Dead) Through LRs. and Ors. (Ganga Bai Menariya)⁶

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On the other hand, learned counsel for plaintiff supported the impugned judgment and decree and sought for dismissal of the petition.

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Heard arguments of both sides and perused the record.

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The plaintiff sought injunctive relief against defendants to restrain them from interfering with his discharge of services as Muthawalli of the suit schedule Dargah. Defendants not only dispute that plaintiff is the Muthawalli of suit schedule Dargah, but also claimed that they are the Muthawalli and Mujawar of the said Dargah. Therefore, there is no dispute that plaintiff is claiming

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3 2013 (2) Kar.LJ.356

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4 2013 AIAR (Civil) 749

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5 Civil Appeal No.3520/2022 date: 06.05.2022

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6 Civil Appeal No.722/2012, dated: 20.02.2024

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relief in respect of his right to discharge the duties of Dargah in question. Defendants also claiming the same right. Consequently, it is not open to the defendants to claim that the description of suit property is vague and on that ground suit is not maintainable.

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It is also not in dispute that the Dargah in question is notified at Sl.No.51 of Karnataka Gazette Notification dated 18.02.1974 of Deodurga Taluk. Ex.P5 is the certified copy of the Gazette Notification in question. According to the plaintiff at the relevant point of time when the Gazette Notification was issued, his great grandfather Bahuddin Sab was the Muthawalli. Column No.6 of the said Notification which deals with name and address of the Muthawalli state Bahuddin Sab, S/o Ibrahim Sab as the Muthawalli. Thus, the great grandfather of plaintiff was the notified Muthawalli of the suit schedule Dargah. Ex.P31 is the proceedings of the Karnataka Wakf Board dated 17.06.1998, appointing father of the plaintiff as the Muthawalli.

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Ex.P4 is the order dated 18.06.2018 under which the plaintiff was appointed as Muthawalli for a period of one year. Ex.P8 is the enquiry report regarding the proposal for appointment of plaintiff as the Muthawalli, wherein the defendant Nos.1, 4 and 7 have participated and raised objections. After the enquiry, the Chief Executive Officer has recommended appointment of plaintiff as the Muthawalli. Based on the said enquiry report, as per Ex.P9, the Board has appointed plaintiff as the Muthawalli for a period of three years. The documents produced by the plaintiff also establish that his predecessors were and during his period plaintiff is discharging the duties of Muthawalli and in that capacity, they have held Annual Urs and Sandal of the Dargah in question.

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The documents produced by defendants indicate that they have raised objections for appointment of plaintiff as the Muthawalli. However, the objections are not sustained and the plaintiff is appointed as the Muthawalli of the Dargah in question. Of course, if as a

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result of the enquiry is found that the plaintiff is guilty of any misconduct, the Board would certainly take action against him. However, as of now plaintiff has proved that he is the Muthawalli of the Dargah in question and therefore the defendant are not at liberty to cause any interference.

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Issue No.1 is whether plaintiff proves that he is the hereditary Muthawalli of the Wakf Institution in question. As defendant No.7 also claim to be the hereditary Muthawalli, issue No.3 is framed to that effect. Since the defendant Nos.1 to 6 also claimed that they are the hereditary Muthawalli of the said Dargah, the trial Court has framed additional issue as to whether defendant Nos.1 to 6 prove that they are the Muthawalli of Dargah. It appears by oversight the trial Court has not given any separate findings on additional issue No.1. Since these three issues involve common discussion and while discussing issue Nos.1 and 3, the trial Court has also discussed the claim of defendant Nos.1 to 6 over the Muthawalliship. Therefore, no prejudice is caused to the

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defendant Nos.1 to 6 by the trial Court in not specifically giving a finding on additional issue No.1. It would not go to the root of the case of defendants.

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So far as Wakf Board not being made a party is concerned, the plaintiff has not sought any relief against the Wakf Board and therefore there was no necessary for impleading it as defendant. Having regard to the nature of the right exercised by the plaintiff over the administration of the Dargah, it is not a case of having possession over suit property and therefore question of framing issue regarding the lawful possession and enjoyment of suit property as in case of other injunction suits would not arise. Therefore, there was no need for framing of issue regarding possession and enjoyment of suit property by the plaintiff.

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The trial Court on appreciation of the oral and documentary evidence on record has rightly decreed the suit. The conclusions arrived at and the findings given by the trial Court is consistent with the evidence placed on record and this Court finds no perversity calling for

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interference. In the result, the petition fails and

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accordingly the following:

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ORDER

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(i) Petition filed by the defendant Nos.1 to 6 under Section 83(9) of Wakf Act, 1995 r/w Section 115 of C.P.C is dismissed.

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(ii) The impugned judgment and decree dated 20.08.2024 in O.S.No.4/2019 on the file of Karnataka Wakf Tribunal, Kalaburagi Division at Kalaburagi is confirmed.

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(iii) The Registry is directed to send back the

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trial Court records along with copy of this order forthwith.

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In view of disposal of the petition, pending application/s, if any, stands disposed off, as no separate order is required.

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Sd/(J.M.KHAZI) JUDGE

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RR

Chand Mahboob Mujawar and Ors. v. Mahaboob Ali and Ors.

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Chand Mahboob Mujawar and Ors. v. Mahaboob Ali and Ors.

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