KACHCHH WAKF BOARD Vs. KACHCHH MEMON JAMAT

JUDGEMENT

(1.) This Second Appeal is by two of the defendants Nos. 1 and 2 in original Civil Suit No. 237 of 1970, in the Court of Joint Civil Judge, Bhuj-Kutch, against the judgment and decree dated 15-10-1978 passed by Extra Assistant Judge, Kutch in Civil Regular Appeal No. 176 of 1974 affirming the judgment and decree passed by Joint Civil Judge, Bhuj-Kutch, on 18-11-1974. The appellants are Kutch Wakf Board through its Secretary, Kutch Muslim and Education Welfare Society, a Wakf registered under the Wakf Act, 1954.

(2.) The facts leading to the present appeal are that respondent Nos. 2 and 3 - Sadhu Nandram Govindram and Thacker Purshottam Ganesh filed a suit as the representative suit under Order I, Rule 8 for the following reliefs :

(3.) According to the assertions in the plaint, the original land bearing Survey No. 917 was granted by then Maharao of Kutch, the Ex-Ruler, a Native State of Kutch under the Chhapa Lekh of Samvat year 1930 corresponding to March 1874 to one Memon Shaikh Karim Bin S. Nani for the purpose of construction and to use the same as Dharmashala for the use and benefit of public by and large without any reservation of any caste, creed or colour. On some of the portion of this land, some building structure was constructed and was used as Dharmashala by the general public at large without any reservation of caste, creed or colour. From the very beginning the nature of the property is the public trust property and from its inception it was not intended to be Wakf property and the provisions of Wakf Act, 1954 do not apply to this property. Under the provisions of Wakf Act, the Kutch Wakf Board published in the Government Gazette the list of Wakf properties as were existing on the commencement of the Act, 1954 in the district of Kutch on 16-7-1964. In the said list, the aforesaid property was not shown as Wakf property. However, afterwards supplementary list of Wakf properties was published on 6-5-1965 in Government Gazette in which it was shown as Haji Karim dina @ Kalu Suleman Musafirkhana as the Wakf property belonging to the defendant No. 3 Kachhi Memon Jamat. The property since its inception was being used as Dharmashala but subsequently defendants Nos. 1 to 3 in collusion have changed the use of the said property and have illegally and fraudulently got suit property listed in the Wakf property. It was also pleaded that the defendant No. 3 Kachhi Memon Jamat, a registered Wakf has transferred the suit property to defendant No. 2 - Kutch Muslim Education and Welfare Society, another registered Wakf by a gift document dated 16-9-1968, which is illegal, void, fraudulent and without any authority. It was also pleaded that defendant No. 2 is trying to demolish the building, structure of Dharmashala and wants to construct Muslim hostel for the exclusive use of Muslim students on the suit land, which they have no right to use. In the aforesaid circumstances, plaintiffs averred that if defendants are allowed to change the user, plaintiffs' right to have access to the building Dharmashala for accommodation as a citizen would be infringed. Therefore, the plaintiffs had to file the suit for a declaration that the above mentioned property is not a Wakf property for the grant of permanent injunction restraining the defendant Nos. 1 to 3 or their agents or servants from damaging or constructing or changing or altering any construction on the suit property and also restraining the defendants or public at large to use the disputed property and the premises as Dharmashala.