RADHAKISHAN Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) THE petitioners Radhakishan and Badrinarain, in this case, are Khandelwal mahajans and residents of Jaipur. They are partners in a firm which is known as shivjiram Ramkumar. They have filed this writ application under Article 226 of the constitution of India. It relates to a two-storeyed building situated near Mirza ismail Road at Jaipur.

(2.) THE petitioners' case is that the said building belonged to one Ashan Ali Khan who mortgaged it with possession with Seth Bijaylalji, father of petitioner badrinarain, and Bhuramalji, father of petitioner Radhakishan, for Rs. 7,999 and executed a mortgage-deed on 30-7-1944. At the time of the mortgage, the building was in physical possession of Ashan Ali Khan's tenants. When the mortgage-deed was presented for registration, the Sub-Registrar invited objections, but since no objection was received, that document was registered by him. Ashan Ali Khan had purchased an open land in front of the said building from the Municipal Council in 1943-44 He constructed verandahs on the ground-floor and the first floor thereafter. For making this construction, he raised another loan by effecting a second mortgage of the same property on 7-7-46 for an additional amount of Rs. 9,999 in favour of the same mortgagees. The petitioners purchased the ground-floor of the said building from Ashanali Khan for Rs. 19,999 by means of a registered sale-deed dated 23-11-54. Both the previous mortgages were paid off out of this amount obtained by the mortgagor. The petitioners then purchased the first floor of the said building for Rs. 13,999 by means of another registered sale-deed dated 81-7-1956. After purchasing the entire building, they spent about rs. 12,000 in making certain additions and alterations.

(3.) ON 30-8-1968 respondent No. 4 Hakim Mohd. Shaukat Ali Khan presented an application to the Wakf Commissioner, Rajasthan, respondent No. 2, saying that the said building was wakf property, that its sale was invalid, that it was fit to be cancelled and that its possession should be recovered and entrusted to the Wakf committee Dharamshala. The Wakf Commissioner issued a notice to the petitioners to appear before him in the enquiry which he wanted to make into the matter. The petitioners accordingly appeared before him and raised a preliminary objection to the effect that the Wakf Commissioner had no jurisdiction to make an enquiry as they did not admit that it was a wakf property and that if anybody wanted to dispute the petitioners' right, title or interest in the property, the proper course for him was to file a suit in a civil Court under Section 6 of the Muslim Wakf act, 1954, hereinafter to be referred to as 'the Act'. On 19-9-1962 the Wakf commissioner dismissed this preliminary objection and fixed 4-10-62 for holding an enquiry. On 3-10-62 the petitioners filed a writ petition under Articles 226 and 227 of the Constitution of India before this High Court challenging the validity of the order of the Wakf Commissioner dated 19-9-62. On that application which came before another Bench of this Court. It was observed as follows :