DELHI WAKF BOARD Vs. SHARAFAT HUSSAIN

JUDGEMENT

(1.) The questions that this petition U/S 115 of Civil Procedure Code . raises is as to the correct interpretation and true construction of the provisions of Sections 57 and 59 of the Wakf Act, 1954, as to the right of the petitioner to be impleded in the proceedings out of which the impugned order has arisen and to have the decree sought to be executed declared void. The petition has been filed in the following circumstances :

(2.) It appears that a chhajja bearing municipal No 2393, situated in gali Imliwali, Phatak Habash Khan, Delhi is surrounded on the one side by property bearing municipal No. 2397 and 2398 and on the other by a mosque which is apparently a wakf property, while one door of the chhajja opens in the mosque the other abuts on a public street, although respondent No. 1 who had admittedly purchased property bearing municipal No. 2397 and 2398 after the same had been declared as an evacuee property and had been sold by auction by the Rehabilitation Department, contends that the said chhajja, though bearing a separate municipal number, formed part of the property purchased by the said respondent and that originally the chhajja had an extension and through the extension the chhajja was connected with the property of the said respondent by an inter-communicating door. Respondent No. 1 filed a suit for recovery of the said chhajja from respondents No. 2 & 3, who were said to be in illegal occupation thereof, being suit No. 327/68. The said respondents No. 2 and 3 resisted the suit principally on the ground that the said chhajja did not form part of the property of which respondent No. 1 claimed to be the owner and the trial court by its judgment and decree of January 6, 1971 returned the finding that the said chhajja formed part of the property purchased by respondent No. 1. The argument urged on behalf of respondents No. 1 and 2 in th& course of the hearing, though not raised in the written statement, that the said chhajja formed part of the adjoining mosque and was wakf property was repelled and the suit of the respondent No. 1 for possession of the said chhajja was decreed. The relief of mandatory injunction claimed by the plaintiff was, however, turned down. The aforesaid judgment and decree have since been upheld in appeal R.C.A. 15/71 and R.S.A. against the First Appellate judgment and decree was, turned down in limine by this Court. 87

(3.) When respondent No. 1 sought to dispossess respondents No. 2 and 3 in execution of the said decree, the petitioner, the Delhi Wakf Board, established under Chapter III of Wakf Act, 1954, made two applications to the executing Court. One under Section 57 and 59 of the Wakf Act, 1954 and the other under Order 21 Rule 5 a of the Code of Civil Procedure.