ISMAILE SHAH Vs. DISTRICT JUDGE, MATHURA

JUDGEMENT

(1.) Heard Sri Vatsal Srivastava, counsel for the petitioner, Sri M.K. Nigam appearing on behalf of respondents no.3,4 and 5 and Sri M.A. Qadeer, Senior Advocate for respondent no.6. Pleadings have been exchanged and with their consent, this writ petition is being decided finally at the admission stage itself, as per the Rules of Court.

(2.) The petitioner is plaintiff of original suit no.516 of 1994 instituted against Ayub, Shakoor Ahmad and Noor Mohammad (respondents no.3, 4 and 5 herein) and U.P. Sunni Central Waqf Board, Lucknow (respondent no.6 herein). The plaintiff claimed to be owner in possession of Arazi Khasra no.3399 (old no.4379) situated at Mathura Bangar, area 3 acres, being his ancestral property. On the other hand, defendants claim that the same belongs to a waqf and there exists a public graveyard over it. It is admitted to the plaintiff-petitioner that in the year 1966, Yakub, father of defendant-respondent no.3 and Noor Mohammad, brother of defendant-respondent no.4 alongwith certain other persons, instituted a suit in representative capacity in respect of the same property, against Ram Gopal and certain other persons. Since it was a representative suit and, therefore, on publication of public notice, the plaintiff-petitioner made an application for his impleadment therein, which was allowed. He contested the suit claiming the suit property as his ancestral property, while the plaintiffs of the said suit contended that it is waqf property and a public graveyard exists over it. Ultimately, the aforesaid suit was dismissed in appeal and the judgment was affirmed in second appeal. As such, the petitioner claimed that the controversy stands decided in the said suit and he has been held to be the owner of the property in question. However, defendants no.1 to 3 and certain other persons with malafide intention instituted another suit being original suit no.142 of 1973 claiming it to be a public graveyard. The petitioner, who was defendant in the said suit, contested those proceedings and a preliminary issue was struck between the parties regarding the suit being barred by principles of res-judicata. It was decided in favour of the petitioner and against the plaintiff of the said suit. It is admitted between the parties that first appeal filed against decision dated 8.12.1973 holding the suit to be barred by doctrine of res-judicata already stands dismissed and now, appeal at the instance of respondents no.3 to 5 herein is pending before this Court, which, according to Sri Vatsal Srivastava, learned counsel for the petitioner is Second Appeal No.1010 of 2007.

(3.) Yet another suit being original suit no.100 of 1984 came to be instituted by U.P. Sunni Central Waqf Board-respondent no.6 (hereinafter referred to as the 'Board') arraying the plaintiff-petitioner as a defendant thereto, apart from 10 other persons. In the said suit, the Board has prayed for permanent injunction restraining the defendants from interfering in its possession over the suit property and for recovery of possession over property shown by red colour in the plaint map; damages for illegal use and occupation thereof and declaration of decree passed in original suit no.392 of 1966 as null and void. This suit was contested by the plaintiff-petitioner on same plea viz. that the property belonged to his ancestors and was inherited by him. He also placed reliance on the judgment passed in original suit no.392 of 1966. It is admitted between the parties that the aforesaid suit was dismissed by the trial court on 2.3.2004. First appeal was dismissed on 17.3.2010 and second appeal no.677 of 2010 is stated to be pending before this Court.