YUSUF KHAN Vs. STATE OF M.P.

JUDGEMENT

(1.) IN this petition filed under Article 227 of the Constitution, the petitioner has challenged the order dated 28.06.2012 (Annexure P/2) passed by the trial Court in Case No. 10 -A/2002 whereby his application under Order 39 Rule 1 & 2 CPC has been rejected. The order dated 01.08.2012 passed by the appellate Court in Miscellaneous Civil Appeal No. 06/2012 (Annexure P/1) whereby his appeal under Order 43 Rule 1 CPC is rejected, is also under challenge. Shri Raja Sharma, learned counsel for the petitioner raised two fold contentions, firstly, by placing reliance on recent judgment of this Court passed in Writ Petition No. 3693/2011 (Baheed Khan & Others Vs. State of M.P. & Others) (Annexure P/7), it is stated that the land/property in question is a Wakf property and any action against the petitioner can be taken only as per provision of the Wakf Act and the Revenue Authorities have no jurisdiction to take action under the provision of the M.P. Land Revenue Code (for brevity 'MPLRC'), secondly, it is stated that the petitioner was in possession of the property for quite long time, therefore, his dispossession is illegal.

(2.) I have heard learned counsel for the parties and perused the record.

(3.) A bare perusal of the petitioner's basic application preferred under Order 39 Rule 1 CPC shows that there is no pleading or material to establish that the property in question is a Wakf property. Even in Miscellaneous Appeal, there was no such assertion/averment by the petitioner about the nature of the property. The petitioner has only placed reliance on para -17 of the order passed by the appellate Court to submit that it is a Wakf property. This is settled in law that whenever a person claims a relief, he is bound to plead about the basic fact on the basis of which he raised legal ground and prayed for a relief. Needless to mention that whether the property in question is a Wakf property is essentially a pure question of fact. In absence of pleading and establishing this fact no law can be applied. The petitioner has not pleaded this fact anywhere as discussed above. This is also settled in law that one has to prove his case on the basis of the pleadings and material produced by him and one cannot take benefit of other's weakness. In absence of any pleading and material regarding nature of property, at this stage petitioner cannot be permitted to raise a new ground on the basis of a new fact, which was never pleaded before the Court below.