BIHAR STATE SUNNI WAKF BOARD Vs. MANJU SINGH

JUDGEMENT

(1.) The present petition has been filed under Article 227 of the Constitution of India for setting aside the order dtd. 2/7/2015 passed in Misc. Case No. 02 of 2013 by learned 9 th Additional District Judge, Saran at Chapra, whereby and whereunder the petition filed by the petitioner no. 2 on 29/5/2015, for transposing himself as appellant no. 2 after death of original appellant no. 2 Ashraf Ali, was rejected. The petition has also been filed for setting aside the order dtd. 16/11/2017 passed in Misc. Case No. 04 of 2015 by learned 9 th Additional District Judge, Saran at Chapra, whereby and whereunder the petition to recall the order dtd. 2/7/2015 passed in Misc. Case No. 02 of 2013 has been rejected.

(2.) Shorn of unnecessary details, the facts of the case, as it appears from the record are that one Sheikh Afzal Hussain had executed registered deed of Waqf dtd. 9/11/1943 and 26/8/1967 in respect of certain lands. After execution of registered Waqf deeds, Sheikh Afzal Hussain appointed himself as Mutawalli and in the deeds it has also been incorporated who would be Mutawalli after Sheikh Afzal Hussain. The recitals of the deeds was to the effect that author of the Waqf or his descendants would not have right to transfer the properties comprising in the deed of Waqf. However, Sheikh Afzal Hussain transferred various Waqf properties having area 5 bigha 6 katha and 2 dhur in favour of one Sheikh Md. Ramzan on 10/5/1969, by way of gift deed. Subsequently, Ashraf Ali was appointed as Mutawalli who, in order to protect the interest of the public and to preserve the properties of the Waqf so created by Sheikh Afzal Hussain, informed the Bihar State Sunni Waqf Board that the respondents were occupying the schedule properties unauthorizedly. Show cause notice was issued to the respondents who appeared and filed objection controverting the claim of the Board, their contention was disallowed by the Board and steps under Sec. 36(B) of Waqf Act, 1954 were taken against the respondents. The matter was forwarded to the District Magistrate, Saran at Chapra for removal of unauthorized possession of respondents from the trust property. The District Magistrate, Saran at Chapra issued notices against the respondents who filed objection and objections were rejected by the District Magistrate vide order dtd. 31/10/1988 passed in Misc. Petition Case No. 03 of 1988. Against the said order, the respondents preferred Misc. Appeal Nos. 61 and 62 of 1988 before the learned District Judge, Saran at Chapra which was subsequently transferred to the court of 3 rd Additional District Judge, Saran, who after hearing the parties remanded the matter to Bihar State Sunni Waqf Board with a direction vide its order dtd. 30/5/1990. On 14/12/1991, petitioner no. 1, Secretary, Bihar State Sunni Waqf Board and the then Mutawalli of Waqf Estate namely, Ali Imam had filed title suit before 1 st Sub Judge, Chapra which was numbered as Title Suit No. 18 of 1992. The declaration was sought that Schedule I property under Wakf-ul-aulad dtd. 26/8/1967 is a public property . Recovery of possession in respect of 9 bighas 7 dhurs of the property described in Schedule II excluding the property of Schedule III was also sought. Title Suit No. 18 of 1992 was ultimately dismissed by learned Sub Judge-I, Saran at Chapra vide judgment and decree 13/11/1998. Aggrieved by the said judgment and decree, petitioner no. 1 and the then Mutawali filed first appeal bearing F.A. No. 40 of 1999 before the High Court. However, vide order dtd. 29/7/2005 passed in F.A. No. 40 of 1999, the High Court directed for transfer of the memo of appeal to the court of learned District Judge, who became competent to hear the appeal in view of valuation being less than Rs.Two lakhs. Thus, the first appeal came to be transferred to the learned District Judge and thereafter to the court of Fast Trac Court No. 1, Saran at Chapra and the first appeal was renumbered as Title Appeal No. 62 of 2006. The record was transferred to learned Fast Trac Court No. IV on 27/1/2010 and the appeal was dismissed for default on 25/2/2011. Coming to know about the dismissal of the appeal, the then Mutawalli Ashraf Ali, who was appellant no. 2 in the appeal filed a petition on 11/4/2013 under Order 41 Rule 19 of the Code of Civil Procedure (hereinafter 'the Code') vide Misc. Case No. 02 of 2013 before the learned first appellate court for restoration of the appeal. Ashraf Ali, who had been looking after the pairvi of the case, died on 28/12/2014 and thereafter, the Waqf Board vide order dtd. 28/5/2015 issued under Memo No. 706 constituted Managing Committee vide Waqf State No. 1891 and Imamuddin Khan @ Immamuddin Hussain was appointed as President of the Managing Committee. Imamuddin Khan, petitioner no. 2 herein. Thereafter, petitioner no. 2 filed a petition on 29/5/2015 to substitute his name in place of deceased Ashraf Ali in Misc. Case No. 02 of 2013. It further appears that the learned Additional District Judge- 9 th, Saran at Chapra vide order dtd. 2/7/2015 dismissed the petition filed by the petitioner no. 2 on 29/5/2015. Thereafter, the petitioners filed Misc. Case No. 04 of 2015 along with limitation petition on 18/8/2015 before learned Additional District Judge- 9 th for setting aside the order dtd. 2/7/2015 passed in Misc. Case No. 02 of 2013. Even the said Misc. Case No. 04 of 2015 was rejected. Thus, the orders are 2/7/2015 and 11/11/2017 are under challenge before this Court.

(3.) Learned counsel for the petitioners at the outset submitted that the Misc. Case No. 02 of 23013 is still pending and therefore, he does not press his prayer against the order dtd. 16/11/2017 passed in Misc. Case No. 04 of 2015 as the said miscellaneous case was instituted under wrong impression that Misc. Case No. 02 of 2013 has been disposed of having been abated. Learned counsel further submitted that the order dtd. 2/7/2015 has been passed under wrong interpretation of law as well as facts. Petitioner no. 2 sought his transposition in Misc. Case No. 02 of 2013 in place of original petitioner no. 2 Ashraf Ali, who was the Mutawalli of the Waqf Estate. The learned Additional District Judge- 9th, has held that the abatement has taken place in the matter as petitioner no. 2 of the said case died on 28/12/2014 and no application was filed for his substitution. However, the learned Subordinate court did not consider the fact that the miscellaneous case as a whole would not abate because petitioner no. 1 of the present petition was also a party as the petitioner no. 1 in Misc. Case No. 02 of 2013 and even the person who sought transposition has been a party as defendant/respondent in the same case. Learned counsel further submitted that the learned Subordinate court dismissed the application of transposition on the ground that petitioner no. 2 was not appointed as Mutawalli by the Bihar State Sunni Waqf Board. The said observation is not correct as the petitioner no. 2 was appointed head of the Managing Committee constituted after the Waqf property and that is the job of Mutawalli. Mere nomenclature is immaterial. Learned counsel has placed reliance on the decision in the case of Pankajbhai Rameshbhai Zalavadia Vs. Jethabhai Kalabhai Zalavadiya (Deceased) through L.Rs.and Ors. reported in 2017(4) PLJR 181 wherein in paragraph 9 and 14 the Hon'ble Supreme Court has held that the Court can add any person as a party at any stage of the proceedings, if the person whose presence in Court is necessary to effectively and completely adjudicate upon and settle all the questions involved in the suit to avoid multiplicity of proceedings. Learned counsel has also placed reliance on the decision in the case of Guljar Rai Vs. Laldeo Singh and Ors. reported in 2013(4) PLJR 434. Wherein this Court even allowed impleadment of a transferee pendente lite. On these two grounds, the learned submitted that the impugned order is not sustainable and the same needs to be set aside.