Dismissed

Raj Board of Muslim Wakf Jaipur v. Thakurdas Thr Lr and Anr.

Rajasthan HC7 Feb 2024CSA/130/2018

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal filed by the Muslim Wakf Board against the abatement of a possession suit. The trial court had dismissed the suit because it was pending when the Places of Worship (Special Provision) Act 1991 commenced, which bars proceedings regarding the conversion of religious character existing before August 15, 1947. The High Court found no substantial question of l

What did the court decide?

Second Appeal dismissed; no substantial question of law found.

Raj Board of Muslim Wakf Jaipur Vs Thakurdas Thr Lr and… — Property and Title | Rajasthan HC (2024)

¶1

[2024:RJ-JP:26510]

¶2

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶3

S.B. Civil Second Appeal No. 130/2018

¶4

Rajasthan Board Of Muslim Wakf, Jaipur Through Secretary, Board Of Muslim Wakf, Jaleb Chowk, Jaipur

¶5

----Appellant

¶6

Versus

¶7

Thakurdas S/o Jamnadas, Secretary, Arya Samaj, Alwar, R/o Hathi Chhap Sabun Dukan, Anaj Mandi, Kedalganj, Alwar Deceased

¶8

1/1. Arya Samaj Mandir Bajaja Bazar, Alwar Through Secretary Dharampal Arya Bichhawan Emporium, Bajaja Bazar, Alwar

¶9

Dharampal Arya Bichhawan Emporium, Bajaja Bazar, Alwar, Secretary, Arya Samaj Mandir, Alwar

¶10

----Respondents

¶11

For Appellant(s)	: Mr. Asgar Khan with
	Mr. Junaid Khan
For Respondent(s)	: Mr. Vaibhav Bhargava

¶12

HON'BLE MR. JUSTICE ASHOK KUMAR JAIN

¶13

Order

¶14

07/02/2024

¶15

Instant second appeal is preferred by appellant, aggrieved from judgment dated 29.11.2017 in civil regular appeal No. 98/2000 (61/1996) (09/1996) passed by learned Additional District Judge No.2, Alwar wherein appeal preferred under Section 96 of CPC aggrieved from judgment and decree dated 15.12.1995 in civil suit No. 80/1995 was dismissed.

¶16

A civil suit was filed by the plaintiff appellant under Order I Rule 8 CPC on 14.08.1967 for eviction and possession of properties, described in para No.1 of the plaint and also marked in

[2024:RJ-JP:26510]

[CSA-130/2018]

(2 of 7)

the plaint against Thakur Dass who was Secretary of Arya Samaj Alwar and representative of entire Arya Samaj.

¶21

During pendency of the civil suit an application under Section 4(2) of the Places of Worship (Special Provision) Act 1991 (hereinafter referred as ‘the Act of 1991’) was enacted and it was prayed that the period as prescribed in para Nos. 2 and 3 of plaint came into possession of Custodial Department Alwar on 15.08.1947 and there was no mosque prior to 15.08.1947 rather property was in possession of Arya Samaj. The Act of 1991 came into force on 18.04.1991 therefore all suit/appeal or other proceeding stands abated in view of legal position.

¶22

Learned Additional Civil Judge (Junior Division) No.3, Alwar has allowed the application on 15.12.1995 and dismissed the suit in abatement in wake of provision under Section 4(2) of the Act of 1991. Aggrieved from aforesaid, first appeal was preferred by the plaintiff appellant and same was dismissed on 29.11.2017, hence this second appeal.

¶23

Learned counsel for appellant submitted that the trial court and the appellate court has wrongly arrived at a conclusion that before 15.08.1947 the suit property was not used as mosque rather these properties belong to mosque and same were used as properties of mosque therefore the Act of 1991 was not applicable. He also submitted that the trial court was duty bound to consider the contentions of the plaint before deciding the issue as both the parties have concluded their evidence in the matter. He also submitted that the trial court has failed to consider the order of the custodian made in 1957 and without considering the material on record, abated the proceedings which is contrary to

[2024:RJ-JP:26510]

[CSA-130/2018]

(3 of 7)

settled legal proposition. He raised substantial question of law as proposed in memo of appeal.

¶28

Aforesaid contentions were opposed by learned counsel for respondent and submitted that the Act of 1991 was enacted to prohibit conversion of any place of worship and to maintain religious harmony. He also submitted that the suit was abated in view of legal provision and if the plaintiff has any right then he should have challenge the provisions of law. He also submitted that the suit property belong to Arya Samaj and much prior to claim of plaintiff the property was used as property of Arya Samaj therefore the claim of appellant plaintiff was misconceived and misconstrued and suit was rightly abated by the trial court.

¶29

Heard learned counsel for parties and perused the record. 8. During pendency of civil suit, the Parliament has enacted the Act of 1991 and object behind enactment was to prohibit conversion of places of worship and to provide for the maintenance of the religious character of any place of worship as it existed on 15.08.1947. The Act of 1991 came into force on 11.07.1991.

¶30

Section 3 of the Act of 1991 bars the conversion of places of worship of any religious denomination or any section thereof into a place of worship of a different section of the same religious denomination or a different religious denomination or any section thereof. Section 4 of the Act of 1991 provides for declaration and bar of jurisdiction of the court.

¶31

Section 4(2) of the Act of 1991, which is controversy in case is reproduced as under:

[2024:RJ-JP:26510]

[CSA-130/2018]

(4 of 7)

“ 4.2. If, on the commencement of this Act, any suit, appeal or other proceeding with respect to the conversion of the religious character of any place of worship, existing on the 15th day of August, 1947, is pending before any court, tribunal or other authority, the same shall abate, and no suit, appeal or other proceeding with respect to any such matter shall lie on or after such commencement in any court, tribunal or other authority:

¶36

Provided that if any suit, appeal or other proceeding, instituted or filed on the ground that conversion has taken place in the religious character of any such place after the 15th day of August, 1947, is pending on the commencement of this Act, such suit, appeal or other proceeding shall be disposed of in accordance with the provisions of sub-section (1).”

¶37

Aforesaid clearly shows that in a suit, appeal or other proceedings with respect to conversion of religious character of any place of worship is pending before any court, tribunal or other authority same was abated. The trial court on the basis of Section 4 (2) of the Act of 1991 has closed the proceedings as same has abated in view of legal enactment.

¶38

A perusal of plaint clearly indicated that Rajasthan Board of Muslim Wakf has filed a suit on 14.08.1967 inter alia stating that due to communal riots in 1947 certain section of muslim community had left their house and aforesaid property was taken in possession by Thakur Das on behalf of Arya Samaj. The facts narrated in the plaint clearly indicated that the plaintiff Wakf Board came into existence in 1962. The dispute pertains to alleged dis-possession from the religious structure of Muslim Sect, during period of partition of India and Pakistan. The Act of 1991 was

[2024:RJ-JP:26510]

[CSA-130/2018]

(5 of 7)

enacted by the Parliament so as to maintain religious character as existed on 15.08.1947.

¶43

Herein this case the dispute was squarely covered under the Act of 1991 therefore the suit cannot be continued in wake of Section 4(2) of the Act of 1991. The law itself provided abatement and no court can continue the proceeding.

¶44

The trial court has rightly decided the application and on the basis of application, suit was rightly abated. The plaintiff has no right to continue the suit after the provision of law as mentioned hereinabove. The first appellate court has also rightly dismissed the appeal, after considering the objection and grounds raised by present appellant.

¶45

Since this is a second appeal preferred by appellant and same is against the legal provision, therefore unless there is substantial question of law, appeal cannot be entertained. The duty lies upon appellant to show the substantial question of law as mandated under Section 100 of CPC.

¶46

Having considered the material available on record, no substantial question arises from the grounds raised by appellant plaintiff.

¶47

In order to determine the substantial question of law we have to consider the test laid down by the Constitution Bench of Hon’ble Supreme Court in case of Chunilal V. Mehta & Sons. Ltd. Vs. Century Spg. and Mgf. Co. Ltd . AIR 1962 SC 1314

¶48

Hon’ble Supreme Court has observed has observed as under: The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the

(6 of 7)

[2024:RJ-JP:26510]

[CSA-130/2018]

parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law."

¶53

In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC

¶54

405 , Hon’ble Supreme Court explained the purpose of framing

¶55

question of law in following manner:

¶56

“a) The purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question.

¶57

b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter they have to be given an opportunity to advanced arguments thereon. c) If any additional questions were framed at the time of hearing, the Court must hear the parties on that question as well.”

¶58

19. Hon’ble Court in case of Chandrabhan Vs. Saraswati 2022 SCC

¶59

Online (SC) 1273 (decided on 22.09.2022) has summarised

¶60

principle relating to Section 100 of CPC in following words:-

¶61

“(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.”

¶62

20. Hon’ble Supreme Court in case of Suresh Lataruji

¶63

Ramteke versus Sau. Sumabai Pandurang Petkar & Ors.

¶64

(Civil Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023) referred to the judgments and

[2024:RJ-JP:26510]

[CSA-130/2018]

(7 of 7)

observed that the general rule is that the High Court will not interfere with the concurrent findings of the Courts below but same is not an absolute rule. The requirement, most fundamental under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction.

¶69

Herein, we do not find anything wrong in the judgment of the first appellate court in an appeal passed under Section 96 of CPC. The appellants herein have challenged the judgment of first appellate court under Section 100 of CPC and there are no grounds on which we can conclude that the trial court or the first appellate court has committed serious error while adjudicating the issue on hand.

¶70

Hence, no substantial question of law arises for adjudication in the instant appeal.

¶71

In view of aforesaid, the instant S.B. Second Appeal is hereby dismissed.

¶72

Misc. application, if any, stands disposed of.

¶73

(ASHOK KUMAR JAIN),J

¶74

PREETI VALECHA /46

Raj Board of Muslim Wakf Jaipur v. Thakurdas Thr Lr and Anr.

Case brief

What is this about?

What did the court decide?

Raj Board of Muslim Wakf Jaipur v. Thakurdas Thr Lr and Anr.

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Manak Chand (Deceased Represented through) Vs State of Rajasthan

Kailash Chand Patni S/O Shri Gorulal Patni, Vs Satyanarayan Maheshwari S/O Shri Chhitarmal Maheshwari

Bhagwan Sahay S/O Shri Krishan Chand, Vs Satyanarayan Maheshwari S/O Shri Chhitarmal Maheshwari

Manak Chand and Anr. Vs Nirmal Kumar and Anr.

Shri Subhash Chand Vs Smt Parma Devi Kabra and Ors.

Nagar Palika Khetri Thr Exe Officerandors Vs Smt Gyanwati Devi