ZUBAIDA Vs. KHAN MUBEEN AHMED ALI

JUDGEMENT

(1.) Applicants have invoked revisionary jurisdiction of this Court under sub-sec. (9) of Sec. 83 of the Waqf Act, 1995 for setting up a challenge to the judgment and order dtd. 15/5/2024 passed by the Maharashtra State Waqf Tribunal, Aurangabad. The Tribunal has decreed the suit filed by Respondent Nos.1 and 2 and has directed the Applicants to deliver vacant possession of the suit property to Respondent No.3-Waqf Institute with further direction to conduct enquiry into mesne profits under Order 20 Rule 12 of the Code of Civil Procedure , 1908 (the Code).

(2.) It is the case of the Plaintiffs (Respondent Nos.1 and 2) that Kamruddin Masjid (Jamaiyatul Kubra) Camp, Pune is a Waqf Institute. Plaintiffs claim that they are Muslims professing Islam and are interested persons in the said Waqf Institute. House No.1870, Ground floor, Gaffar Baig Street, Near Kamruddin Masjid, Kamathipura admeasuring 350 sq.ft. is the 'suit property'. Plaintiffs' case is that the suit property belongs to the Waqf Institute, which is also the property included in Schedule-I thereof. The Waqf Institute allowed Applicant No.1 to use the suit property on lease basis for a tenancy of 11 months on payment at the rate of Rs.200.00 per month. That the lease was not renewed under the provisions of Sec. 56 of the Waqf Act. That Applicant No.1 sublet the suit property to Applicant Nos. 2 to 5 without the consent of the Waqf Institute. Plaintiffs therefore branded Applicants/Defendants as the encroachers over the suit property. It was Plaintiffs' case that despite being requested, the members of the Defendant No.6-Institute failed to take steps to recover possession of the suit property. Therefore, on 1/12/2016, Respondent Nos.1 and 2 called upon the Applicants to handover possession of the suit property. Upon failure of the Applicants to do so, Respondent Nos.1 and 2 instituted Waqf Suit No.16/2017 before the Waqf Tribunal, inter-alia seeking recovery of possession of the suit property from the Applicants.

(3.) The suit was resisted by the Applicants/Defendant Nos.1 to 5 by filing Written Statement, in which they did not dispute that the suit property belongs to the Waqf Institute. They however pleaded that the father-in-law of Applicant No.1 and grandfather of Applicant Nos.2 to 5 was put in possession of the suit property by the Waqf Institute in the year 1960 as a tenant. That after demise of Umar Abdul Shakur Memon in the year 1990, his son Gulam Kadar Umar Memon, who is the husband of the First Applicant and father of Applicant Nos.2 to 5 continued to remain in possession of the suit property with the consent of the Waqf Institute on payment of agreed rent. That Gulam Kadar Umar Memon passed away on 11/5/2011, whereafter his widow (Applicant) and children (Applicant Nos.2 to 5) continued to remain in use and occupation of the suit property. This is how Applicants claimed that there are encroachers in respect of the suit property. Applicants also questioned the locus-standi of the Plaintiffs to file and maintain the suit. They pleaded that Plaintiffs were facing criminal prosecutions. Applicants prayed for dismissal of the suit. The suit proceeded ex-parte against Defendant Nos.6 and 7 (Respondent Nos. 3 and 4). Based on pleadings, the Tribunal framed issues. The parties led evidence in support of their respective contentions. Plaintiffs examined Khan Mubeen Ahmed Ali as P.W.1. Defendant Nos.1 to 5 (Applicants) examined Kadeer Gulam Kadar Memon as D.W.1. During pendency of the suit, Original Plaintiff No.2 passed away and his name was deleted from the cause-title of the suit. Applicants filed application at Exhibit-59 seeking dismissal of the suit on the ground that the sole Plaintiff came to be elected as trustee of the Trust in the year 2018 and he started accepting rent from the Defendants. The application at Exhibit-59 was directed to be decided alongwith the main suit.