MASJID AND MADARASA COMMITTEE Vs. STATE OF BIHAR

JUDGEMENT

(1.) This petition under Art. 226 of the Constitution of India has been preferred by the petitioner for setting aside the order dated 30.09.2008 passed by Additional Collector, Rohtas in Dakhil Kharij Revision Case No. 43 of 2005/ 22 of 2008-09 by which and where under he set aside the order dated 03.12.2002/ 09.09.2003 passed by the Circle Officer, Sasaram in Mutation Case No. 22 of 2003-04 remitting the matter to the court of Circle Officer with a direction to examine the matter afresh and pass a fresh order in accordance with law.

(2.) The brief facts are that the petitioner applied for mutation of Old Khata No. 108, Plot No. 246, area 41 decimal of village Amri on the ground that the aforesaid land was of wakf property. The Circle Officer, Sasaram passed the order of mutation on 03.12.2002/09.09.2003 on the basis of report of Halka Karamchari and Circle Inspector. The private respondents challenged the aforesaid order dated 03.12.2002/09.09.2003 before the D.C.L.R, Sasaram in Dakhil Kharij Appeal Case No. 67 of 2004-05 which was disposed of by the D.C.L.R., Sasaram vide order dated 31.12.2004 directing the parties to seek relief before the Wakf Tribunal as the only Wakf Tribunal was competent to decide the issue in question. The aforesaid order dated 31.12.2004 passed by the D.C.L.R. was challenged by the private respondents before the Collector, Sasaram in Mutation Revision Case No. 43 of 2005/22 of 2008-09 which was disposed of by the Additional Collector passing order dated 30.09.2008 in the manner as stated above and against the impugned order dated 30.09.2008 the petitioner has preferred this writ petition.

(3.) The case of the petitioner is that C.S. Khata No. 108, Plot No. 246 measuring 41 decimal of lands of village Amri was recorded as "Ghair Mazarua Aam Shamilat Malikan" and in remarks column, the same was mentioned as Khaliyan showing joint possession of Abdul Ghani and Noorul Hasan as malikan of Khewat No. 8. The cadastral survey khatiyan was published in the year 1913 and as per claim of the petitioner, just after publication of cadastral survey khatiyan, the landlords of the aforesaid land orally gifted 41 decimals of C.S. Plot No. 246 to one Qutub Ali for establishing a Madarsa and Mosque for local Muslims. The aforesaid Qutub Ali was appointed Mutawalli and accepted the oral gift in the year 1914. Subsequently, in the year 1915, a deed of memorandum regarding the aforesaid oral gift was prepared on 11.05.1916. However, further case of the petitioner is that in the year 1915, Mosque and Madarsa were built on some portion of the aforesaid lands and the local Muslim community started their religious rituals uninterrupted and the remaining part of the aforesaid lands are being used as sehan land of the Mosque and Madarsa since the year 1915. The ex-landlords granted rent free receipts. In revisional survey, the three revisional khatas i.e. Khata No. 201 having revisional survey Plot No. 209 and 310, Khata No. 102 having revisional survey Plot No. 308, Khata No. 73 having revisional survey Plot No. 311 were carved out from C.S. Plot No. 246 and accordingly, Khata No. 201 containing R.S. Plot No. 309 and 310 were recorded as "Anabad Sarv Sadharan" whereas the nature of Plot No. 309 area 12 decimal was shown as Mosque and Plot No. 310 area 21 decimal was shown as Purani Parti but the survey officials wrongly recorded khata no. 102, Plot No. 308 area 5 decimal in the name of Bhagan and Jagan as well as Khata No. 73, Plot No. 311 area 3 decimal in the name of Jhapsi Chamar and in remarks column, the respective houses of aforesaid persons were wrongly shown by the survey officials though the aforesaid lands belong to wakf property. Further the case of the petitioner is that the aforesaid Bhagan and Jagan had their houses over R.S. Plot No. 304 and 306, Khata No. 52 which are adjacent to R.S. Plot No. 308 but taking the survey officials in their connivance, they got entered their house over Plot No. 308 and similarly, Jhapsi Chamar had built his house over R.S. Plot No. 295, Khata No. 74 but the survey officials in connivance with Jhapsi Chamar made entry of his house in R.S. Plot No. 311 though the said plot belongs to petitioner. Further case of the petitioner is that R.S. Plot No. 309 having an area of 12 decimals of land was registered in the Wakf Board in the year 1987 whereas 29 decimal of remaining area of C.S. Plot No. 246 was registered in the Wakf Board in the year 1994. Further case of the petitioner is that the descendants of Jhapsi Chamar and Bhagan and Jagan filed Title Suit No. 28 of 1987 against the members of Muslim community who were representing the petitioner in respect of the disputed plots but the aforesaid suit was dismissed for default which had attained finality and thereafter, Bihar State Sunni Wakf Board on 16.11.1994 directed the petitioner to get his name mutated in records of right and thereafter, petitioner filed petition before the Circle Officer, Sasaram who allowed the mutation petition and pass order of mutation in favour of the petitioner.