Shahjad Shah vs M.P. Wakf Board

S.C. Sharma, J—The present revision has been filed against the order dated 02/05/2015 passed by the Madhya Pradesh State Wakf Tribunal, Bhopal in Case No. 54/2014.

The facts of the case reveal that the present applicant, stating himself to be the descendant of Didar Shah, has approached the Wakf Tribunal by filing an application under Section 83(9) of the Wakf Act, 1995. It was stated by him that his ancestor Didar Shah was given an agricultural land bearing Khasra No. 2167, Raqba 6.36 acre, Patwari Halka No. 24/2, Gram Golamba Road, Harsola, Tehsil Mhow, Distt. Indore by the them Ruler of the State as Inam/gift in the year 1924.

It was also stated that the applicant was in possession of land in question. He was aggrieved by the registration of the property in question as Wakf property. The Wakf Tribunal by an order dated 28/07/2014 has granted injunction in favour of the present applicant (applicant before the Wakf Tribunal), however, after hearing the parties, a final order has been passed on an application preferred under Order 39 Rule 1 & 2 on 02/05/2015 by which, an application for grant of injunction has been rejected.

The contention of the learned counsel for the applicant is that he is in possession of the property in question. It was given by the erstwhile Ruler of Indore and could not have been registered as a Wakf property. It has also been argued that the applicant is in possession of the property in question and his possession should have been protected till the application preferred under Section 83(9) of the Wakf Act, 1995 is decided finally.

On the other hand, learned counsel appearing for the other side has vehemently argued before this Court that the Wakf Tribunal has considered the revenue records and the applicant was in possession of the property in question being Mutawali. The property was given to his ancestors and the ancestors as well as the present applicant was looking after the property in question as Mutawali and therefore, they do not have any right over the Wakf property.

Learned counsel has also drawn the attention of this Court towards paragraph No. 9 & 10 of the order passed by the Wakf Tribunal and his contention is that in the year 1978-1980, the revenue entries reflect that the present applicant as Muzabir of the Darga and the Collector as Manager. He has also stated that the present applicant has never been recorded as Bhoomiswami and in those circumstances, the Tribunal was justified in rejecting the application preferred under Order 39 Rule 1 & 2.

He has placed reliance upon a judgment delivered by the Apex Court in the case of Mst. Kanchaniya and others Vs. Shiv Ram and others, AIR 1992 SC 1239 : (1992) 3 JT 174 : (1992) 1 SCALE 868 : (1992) 2 SCC 250 Supp : (1992) 2 SCR 670 : (1992) 2 UJ 555 . In the aforesaid case, there was a dispute in respect of temple property and the property in question being a temple property was not treated as property of the individual who was a party before the Apex Court.

Learned counsel for the respondent has prayed for dismissal of the present revision.

This Court has carefully gone through the impugned order. It is an undisputed fact that Wakf Tribunal while entertaining Section 83(9) of the Wakf Act, 1995 has initially granted injunction in favour of the petitioner by an order dated 28/07/2014. The order passed by the Wakf Tribunal also reflects that the ancestors of the present applicant were looking after the property in question as Muzabir/Mutawali. The order in paragraph 10 also makes it very clear that in the revenue record, the applicant''s ancestor/applicant''s name is entered as Muzabir and name of the Collector also finds place as Manager. Paragraph No. 11 and 12 of the impugned order makes it very clear that it was the applicant, who was in possession of the property in question. Whether the property was given by the erstwhile Ruler of Holkar State to the applicant by way of gift/inam has to be adjudicated in the civil suit. It is pending before the Wakf Trbiunal, however, the fact remains that the Wakf Tribunal in paragraph No. 12 has held the present applicant to be in possession of the property in question.

This Court in the case of Maulana Haroon Vs. M.P. State Wakf Board, Bhopal in paragraphs No. 13 to 17 has held as under:-

"13. I do not find any merit in the contention of learned counsel for respondent No. 2 that the genuineness, authenticity and hallmark of the rent receipts is doubtful for the reasons assigned by learned Tribunal. The question still remains whether rent receipts are fictitious document or they are genuine, this disputed question of fact can be resolved only after recording the evidence and therefore, prima facie the rent receipts which are filed by the applicant before the Tribunal prima facie shows that he is tenant and possessing the suit property as tenant and cannot be a trespasser. Learned Tribunal has paid much heed in rejecting the application that rent note has not been filed by the applicant. Indeed, no one would deny this fact that the rent note always remains with the landlord and therefore, I am of the view that no adverse inference at this stage can be drawn against the appellant. At this juncture Mukhtyar Ahmad, learned counsel appearing for respondent No. 3 submits that rent note was never executed between the respondent No. 3 and applicant. Be that as it may, since, rent receipts have been filed by the applicant, prima facie at this juncture it cannot be said that he is a trespasser.

So far as the order of Chief Executive Officer is concerned, firstly the said order is ex-parte and secondly that order is under challenge before the Tribunal. The Tribunal is duty bound to examine the order of Chief Executive Officer vis-a-vis with the tenancy right of applicant and the documents which are filed.

Shri Imtiyaz Hussain, learned counsel for the applicant submits that the account of respondent No. 3 was audited and in the audit report the applicant has been shown as tenant. However, this point is seriously disputed by Shri Mukhtyar Ahmad, learned counsel for respondent No. 3. Again this is a disputed question of fact which can be resolved only after recording the evidence. I have already held hereinabove that applicant has a prima facie case in his favour. Admittedly he is in possession of the suit property and if he is dispossessed certainly he will suffer irreparable loss and therefore balance of convenience is also in his favour. Hence all the three limbs of the principle granting temporary injunction are found in favour of plaintiff/applicant. Learned Tribunal has traversed against these well settled principles of law and therefore impugned order not granting temporary injunction to the plaintiff cannot be allowed to remain stand and the same is hereby set aside. The decisions placed reliance by learned counsel for respondent are not on temporary injunction application but are on the merit of the case and therefore, they are presently not applicable in the present case.

For the reasons stated hereinabove, this Revision succeeds and is hereby allowed. The impugned order Annexure-P-1 dated 8/3/2011 is set aside and the application filed under Order XXXIX, Rule 1 and 2, Civil Procedure Code filed by plaintiff/applicant is hereby allowed and respondent No. 3 is hereby restrained from interfering in the possession of the plaintiff till the decision of main application under Section 83(2) of Wakf Act.

Looking to the facts and circumstances of the case Wakf Tribunal is hereby directed to decide the main case as early as possible preferably within a period of six months from the date of submission of certified copy of this order. Let one copy of this order be kept in the record of connected Civil Revisions No. 160/2011, 161/2011, 162/2011 and 163/2011."

Keeping in view the aforesaid judgment, this Court is of the considered opinion that once Tribunal has arrived at a conclusion that the applicant is in possession of the suit property in all fairness the application preferred under the Order 39 Rule 1 and 2 should have been allowed.

In another case i.e. in the case of Ram Babu Vaishya (d) through LRs Vs. Scindia Kanya Vidyalaya and Another, (2008) ILR (MP) 3259 : (2009) 1 JLJ 141 : (2009) 1 MPLJ 180 . The Division Bench of this Court in paragraph No. 37 has held as under:-

"37. Next contention raised by the counsel for the plaintiff respondent is that even in the absence of title, the plaintiff is entitled for decree of injunction against the defendants in the light of the judgment of the Apex Court in the case of Nair Service Society Ltd. Vs. Rev. Father K.C. Alexander and Others, AIR 1968 SC 1165 : (1968) 3 SCR 163 and Rame Gowda (D) by Lrs. Vs. M. Varadappa Naidu (D) by Lrs. and Another, (2003) 10 SCALE 950 : (2004) 1 SCC 769 : (2003) 6 SCR 850 Supp : (2004) AIRSCW 4205 : (2003) 8 Supreme 928 . In both the aforesaid decisions, the Apex Court has laid down that if the plaintiff is in settled possession of the property in question, injunction can be granted in his favour to protect his possession in spite of the fact that his title is not proved."

In the aforesaid case, it has been held that in case the plaintiff is found to be in possession of the suit property in question, injunction can be granted in his favour inspite of the fact that title is not true.

In light of the aforesaid judgment as the tribunal has held the present applicant in his possession, in all fairness, the injunction should have been granted.

In another case i.e., in the case of Nagar Palika Parishad Vs. Hindustan Copper Limited, (2009) ILR (MP) 485 : (2009) 1 MPHT 48 : (2009) 2 MPJR 199 : (2009) 2 MPLJ 222 . This Court in paragraphs No. 10 to 14 has held as under:-

In the present case, the plaintiff has come up with a case that original lessee was SADA, Malahjkhand, however, by operation of law, SADA has been merged in the Municipal Council, Malajkhand. This fact has also been admitted by defendant in its notice dated 14/01/2007. According to the plaint averments, the lease deed was executed on certain conditions which are mentioned in the plaint and thereafter the plaintiff by abiding those conditions constructed bus stand, drains, godowns etc., Earlier also, defendant filed one suit in the Court of Civil Judge Class-II, Baihar bearing Civil Suit No. 11-A/1989, which was withdrawn on the ground that compromise has been taken place out of the Court between the parties. That suit was filed against present plaintiff who was arrayed as defendant. The said civil suit was dismissed as withdrawn on 02/07/1990. According to the plaintiff, even after the dismissal of the said suit filed by the present defendant, the plaintiff continued to possess the suit property and therefore, according to learned counsel for plaintiff the status of plaintiff would therefore, according to learned counsel for plaintiff the status of plaintiff would become that of permanent lessee. Although acquiring the status of plaintiff would become that of permanent lessee. Although acquiring the status of permanent lessee by the plaintiff, has been denied by the defendant, but, factum of filing of suit in the Court of Civil Judge Class-II, Baihar has not been denied and withdrawing that suit is also not disputed in the reply. Thus, according to me, whether plaintiff has acquired status of a tenant at will or tenant at sufferance or tenancy of a tenant at will or tenant at sufferance or tenancy continued by holding it over, as well as whether the lease has been rightly determined or not, is a matter of investigation and the parties are required to adduce evidence in that regard. This court in Shankarlal Debiprasad Rathore Vs. State of M.P. and Others, (1979) ILR (MP) 74 : (1978) JLJ 51 : (1978) MPLJ 419 : (1978) MPLJ 415 , has categorically held that although it is said that plaintiff must show a prima facie case in support of the right claimed by him in the suit before he can be granted temporary injunction, the real thing to be seen only is that plaintiffs plaint is not frivolous or vexatious; in other words, there is a serious question to be tried. It is not the function of the Court at this stage to resolve disputed questions of fact or difficult questions of law which should be left to be decided at the conclusion of the trial. Thus, where the tenancy has been determined by efflux of time or rightly came to an end sending notice of termination of lease is a serious question of fact as well as difficult question of law which should be left to be decided at the time of passing of the judgment. What is the status of the plaintiff and whether he can be said to be a tenant at will or tenant at sufferance are the difficult questions of law and they are also disputed questions of fact which requires investigation and recording of the evidence and therefore, to me, there is a prima facie case in favour of the plaintiff. This court in Shankerlal Rathore vs. State of M.P. And others (supra), by placing reliance on American Cyanamid vs. Ethicon (1975) 1 All ER 504, has categorically held that while taking into consideration the application of temporary injunction generally the plaintiff is not required to make out a clear legal title but is only required to satisfy the Court that he has a fair question to raise as to the existence of the legal right claimed by him in the suit is well recognised in India. Therefore, to me, at this stage, it is difficult to say that the plaintiff is a trespasser as argued by learned Senior Counsel for respondent.

Admittedly, the plaintiff is in possession on the date of filing of the suit and therefore, his possession is required to be protected. In this context, I am placing reliance on a Division Bench Judgment of this Court in Durg Transport Co. Private Ltd. Vs. Regional Transport Authority and Others, AIR 1965 MP 142 : (1965) ILR (MP) 1 : (1965) JLJ 583 : (1965) 10 MPLJ 417 : (1965) MPLJ 417 , wherein in Para 4, it has been held that the principle that a stay order or an ad Interim injunction is issued to maintain and preserve the status quo existing at the time of institution of the proceedings cannot be doubted. The real point, which has to be decided when an application for stay or for a temporary injunction is made, is not how the question ought to be investigated; but it is whether the matter should not be preserved in status quo until the question can be finally disposed of. As per defendant''s own showing the plaintiff is in possession of the suit property, if application for temporary injunction of the plaintiff is dismissed, it would amount to give a licence to the defendant to take possession from the plaintiff by taking the law in their own hands by using muscle power which cannot be permitted. The Supreme Court in C. Albert Morris (supra), in Para 26 by placing reliance on its decision in M/s. Raptakos Brett and Co. Ltd. Vs. Ganesh Property, (1998) 7 AD 37 : AIR 1998 SC 3085 : (1999) 1 CTC 175 : (1998) 6 JT 289 : (1998) 5 SCALE 195 : (1998) 7 SCC 184 : (1998) 1 SCR 485 Supp : (1998) AIRSCW 2994 : (1998) 7 Supreme 276 , has held that the lessee cannot be thrown out physically by the landlord. It would be apposite to quote para 13 of the decision of Raptakos Brett and Co. Ltd., vs. Ganesh Property (supra) which reads thus:-

"In view of the aforesaid settled legal position, it must be held that on the expire of the period of lease, the erstwhile lessee continues in possession because of the law of the land, namely that the original landlord cannot physically throw out such an erstwhile tenant by force. He must get his claim for possession adjudicated by a competent court as per the relevant provisions of law. The status of an erstwhile tenant has to be treated as a tenant at sufferance akin to a trespasser having no independent right to continue in possession."

The Supreme Court in Ashwinkumar K. Patel Vs. Upendra J. Patel and Others, AIR 1999 SC 1125 : (1999) 1 CTC 710 : (1999) 2 JT 136 : (1999) 1 SCALE 689 : (1999) 3 SCC 161 : (1999) 2 UJ 904 : (1999) AIRSCW 780 : (1999) 2 Supreme 436 , in Para 12 has held possessory right was sufficient to permit plaintiff to have an order of temporary injunction in his favour.

Thus, on the above said analysis, I am of the view that the plaintiff/appellant is having a prima facie case and having possession on the suit property, the balance of convenience is also in its favour. Since all the three principles of grant of temporary injunction are in favour of the plaintiff, I am of the view that the learned trial court erred in law in rejecting the application for temporary injunction.

This appeal is accordingly allowed, the impugned order is hereby set aside and the application for issuance of temporary injunction filed by the plaintiff is hereby allowed. The defendant is restrained from interfering with the possession of the plaintiff till the suit is decided. However, looking to the controversy involved in the matter, the learned trial court is hereby directed to decide the suit as early as possible preferably within a period of one year from today.

No costs."

In the aforesaid case this Court has held that in case the plaintiff is found to be in possession of the suit property, his possession should be protected.

In light of the aforesaid judgment in the considered opinion of this Court, the trial Court has erred in law and facts in rejecting the application preferred under Order 39 Rule 1 & 2 of Code of Civil Procedure.

Resultantly, the impugned order dated 02/05/2015 is hereby set aside and the application preferred under Order 39 Rule 1 & 2 of Code of Civil Procedure stands allowed.

Another important aspect of the case is that learned counsel appearing for respondent No. 3 has brought to the notice of this Court towards a subsequent order passed by the Naib Tehsildar on 15/05/2015 and by the aforesaid order, the Tehsildar has directed the Revenue Inspector to take possession of the property in question and it has also been stated that the possession of the property has already been taken on account of the order passed by the Tehsildar.

Learned counsel for the petitioner has placed reliance upon a judgment delivered in the case of Baheed Khan and Others Vs. State of M.P. and Others, AIR 2012 MP 188 : (2012) ILR (MP) 2385 : (2012) 3 MPLJ 708 . His contention is that the land revenue code is not applicable in case of Wakf property and therefore, the order passed by the Tehsildar are bad in law.

This Court is of the considered opinion that once this Court has arrived at conclusion that the petitioner is entitled for grant of injunction, in light of the judgment referred above, all subsequent orders deserves to be set aside.

Resultantly, the impugned order dated 02/05/2015 and the orders passed by the Tehsildar dated 15/05/2015 and all consequential orders passed by the Revenue authorities are hereby set aside. The revenue authorities are directed to place the petitioner forthwith in possession and they are further directed not to disturb the possession till the suit is finally decided by the Wakf Board.

With the aforesaid, the revision stands allowed.

No order as to costs.

Certified copy as per rules.