SYED SALEEMUDDIN SYED NASEERUDDIN Vs. NAYYAR JAHA BEGUM

JUDGEMENT

(1.) Applicant/plaintiff impugns order dtd. 19/7/2014 passed by Maharashtra Wakf Tribunal, Aurangabad, below Exh. 18 in Wakf Suit No. 83 of 2012, thereby rejecting plaint in exercise of powers under Order VII Rule 11 of C.P.C. [For sake of convenience, parties hereinafter are referred as per their original status in suit]

(2.) Respondent/defendant instituted Wakf Suit No. 83 of 2012 claiming relief of declaration plaintiff is Mutawalli of wakf institution, namely, Dargah Sayyad Shah Nizamuddin situated at Nizamuddin Chowk, Aurangabad, recovery of possession and permanent injunction against defendant No.1. According to plaintiff, one Gulam Moinoddin @ Kaisaruddin expired in 1965 leaving behind Mohamudi Begum. In RCS No. 16 of 1966 a decree is passed declaring that Nayyarjahan Begum and Mohamudi Begum are Mutawali and Sajjada of above dargah. According to plaintiff, there were 10 other legal heirs and successors of Gulam Moinoddin, However, RCS No. 16 of 1966 was instituted by defendant No.1 claiming himself as successor of Gulam Moinoddin suppressing the names of other legal heirs. According to plaintiff, the Wakf Board wrongly presumed that Nayarjahan Begum is Mutawalli of Dargah. Even otherwise, she cannot be Mutawalli of Dargah as Mohammedan law do not permit a lady to be Mutawalli. According to plaintiff, he is from pedigree of original Mutawalli of Dargah Syed Shah Nizamuddin and legally entitled for appointment as Mutawalli. He had issued notice under Sec. 89 to Wakf Board to accept his status as Mutawalli and by removing Nayyarjahan Begum from office of Mutawalli and then instituted present suit.

(3.) Defendant No.1 appeared in the suit and filed application under Order 7 Rule 11 of CPC seeking rejection of plaint, contending that plaintiff sans locus-standi to file present suit. According to defendants, plaintiff is claiming right on the basis of succession through his father . In previous suit i.e. RCS No. 97 of 1975 plaintiff's father was party, in which right of defendants being daughter of Kaisaroddin has been approved and that decree has attained finality on dismissal of RCS No. 2 of 1982 on 16/8/1980. Plaintiffs suit is barred by res-judicata, so also, limitation. It is further stated that plaintiff has instituted another suit i.e. Special Civil Suit NO. 908 of 2011 with same pleadings in court of Civil Judge (S.D.) which has been dismissed on 11/3/2013. As such, defendants sought rejection of plaint.