1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATIONNO.126 OF 2009 Date of decision:25.1.2010 For approval and signature HON'BLE MR. JUSTICE K.U.CHANDIWAL 1. Whether the Reporters of Local Papers Yes/ may be allowed to see the Judgment ? 2. To be referred to the Reporter or not ? /No 3. Whether Their Lordships wish to see /No. the fair copy of the Judgment ? 4. Whether this case involves a substantial? /No. question of law as to the interpretation of the Constitution of India, 1950, or any order made thereunder ? 5. Whether it is to be circulated to the /No. Civil Judges ? 6. Whether the case involves an important /No question of law and whether a copy of the Order should be sent to Bombay, Goa and Nagpur Office ? (A.G. PARALIKAR) Private Secretary agp/office/126-09cra 2 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.126 OF 2009 Syed Shah Salauddin s/o Yusufoddin Quadri Inamdar, Age 52 yrs. Occ. Agri., r/o Jaitpur mohalla Pathri, Tq. Pathri, Dist.Parbhani, Through G.P.A. Rafeeque Farooqui s/o Shafeeque Farooqui Age 50 yrs. Occ. Agri r/o Jaitpur Mohalla, Pathri, Tq.Pathri, Dist.Parbhani. ...APPLICANT (Ori.Plaintiff) VERSUS 1. Syed Fassi Pasha s/o Syed Fakir Pasha Age 50 yrs, Occ.Agri., r/o Jaitpur Mohalla, Pathri, Tq.Pathri, Dist.Parbhani. 2. Syed Taskeen Pasha s/o Syed Mastan Pasha Age 45 yrs, Occ.Service, r/o Jaitpur Mohalla, Pathri, Tq.Pathri, Dist.Parbhani. 3. Syed Aijaj Pasha s/o Syd.Mastan Pasha Age 43 yrs, Occ.Service, r/o Jaitpur Mohalla, Pathri, Tq.Pathri, Dist.Parbhani. 4. Syed Makin Pasha s/o Syed Mastan Pasha Age 41 yrs, Occ.Labour, r/o Jaitpur Mohalla, Pathri, Tq.Pathri, Dist.Parbhani. 3 5. Sayed Akhil Pasha s/o Syed Mastan Pasha, Age 39 yrs, Occ.Auto Rickshaw driver Tq.Pathri, Dist.Parbhani. 6. Syed Jarif Pasha s/o Syed Mastan Pasha, Age 37 yrs. Occ. Labour, r/o Jaitpur Mohalla, Pathri, Tq. Pathri, Dist. Parbhani. 7. Syed Shakil Pasha s/o Syed Taskeen Pasha Age 23 yrs. Occ. Tailor, r/o Jaitpur Mohalla, Pathri, Tq.Pathri, Dist.Parbhani. 8. Syed Nasir Pasha s/o Syed Taskeen Pasha, age 21 yrs. Occ.Labour, r/o Jaitpur Mohalla, Pathri, Tq.Pathri, Dist.Parbhani. 9. Syed Irshad Pasha s/o Syed Aijaj Pasha, Age 21 yrs. Occ. Auto Rickshaw driver r/o Jaitpur Mohalla, Pathri, Tq.Pathri, Dist.Parbhani. 10. Awaiz Begum w/o Syed Taskeen Pasha, Age 40 yrs. Occ. Household, r/o Jaitpur Mohalla, Pathri, Tq.Pathri, Dist.Parbhani. 11. Bano Begum w/o Syed Aijaj Pasha, age 38 yrs. Occ. Household, r/o Jaitpur Mohalla, Pathri, Tq.Pathri, Dist.Parbhani. 12. Sajeda Begum w/o Syed Makeen Pasha, age 35 yrs. Occ. Household, r/o Jaitpur Mohalla, Pathri, Tq.Pathri, Dist.Parbhani. 13. Rizwana Begum w/o Syed Akhil Pasha, Age 32 yrs. Occ. Household, r/o Jaitpur Mohalla, Pathri, Tq.Pathri, Dist.Parbhani. 4 14. The Maharashtra State Wakf Board, Through Chief Executive Officer, Panchakki, Aurangabad. ...RESPONDENTS (Ori.Defendants) ... Mr. Ramesh T.Rathod, Adv., for the petitioner. Mr. K.S.Chavan, Adv., for respondent no.1. Mr. S.S.Kazi, Adv., for respondent nos. 2 to 13. Mr. M.B.W.Khan, Adv., for respondent no.14. ... CORAM: K.U. CHANDIWAL, J. DATE : 25/1/2010 *** ORAL JUDGMENT: 1. Rejection of Exh.5 application for grant of injunction in Suit No.73/2009 by the learned Presiding Officer, Maharashtra Wakf Tribunal, Aurangabad, dt.23.7.2009, is impugned by the aggrieved plaintiff. Rule. Heard finally. 2. Extensive submissions are advanced by both the Counsel. Both the sides have interpreted the voluminous record to suit their respective contentions. 3. The Counsel for the plaintiff (appellant) has taken recourse to the respective land revenue receipts paid by his client for 5 which receipts are at page No.96 dt.22.10.2002, 101 dt.5.11.2004, 105 dt.16.1.2007, 107 dt. 27.11.2007, 109 dt.13.12.2008 and the latest receipt of land revenue is also flashed and tendered today. The corresponding entries in the 7/12 extract showing "JATINE" (personal) and, in the column of ownership, name of Masihunnisabegum is shown. 4. "Occupant" is spelt out in Section 2 sub-section (23) of the Maharashtra Land Revenue Code, "2(23) "Occupant" means a holder in actual possession of unalienated land, other than a tenant or Government lessee; provided that, where a holder in actual possession is a tenant, the land holder or the superior landlord, as the case may be, shall be deemed to be the occupant. " Section 168 of the Code spells out the liability for land revenue, casting a responsibility on the occupant or the lessee of the State Government. 5. Considering the short point involved now, the details of the land revenue being paid by the present appellant/plaintiff for a period from 2000 onwards, coupled with revenue entries, prima facie indicates his possession over the property. Installation of the Electric meter is by the plaintiff, deposit of Rs.10,000/- is at 6 page nos. 81-82 by the plaintiff. 6. In the field there is a well for which loan is disbursed by Land Development Cooperative Bank, however, no record is produced. 7. A declaration of `Mutawalliship' or `Sujjadanshin' is in question. The grandfather of present plaintiff was Sajjadnashin of the said Dargah while Mashihunnisa-Begum was `Mutawalli', she has died and her daughter is given in marriage. 8. The reference given by Mr.Kazi, Counsel, to the litigation, flowing in RCS No.60/2006, M.C.A. No.23/2007 and Writ Petition No.5131/2007, rejection thereof, will not come to the rescue of defendant/respondent herein as said suit RCS No. 60/2006 was withdrawn by the defendant wherein intervention application moved by the present plaintiff/appellant was allowed. The defendant withdrew the said proceedings with indication to file independent other proceedings, however, they did not adhere to the same. It was, on the contrary, the plaintiff herein who has filed suit being No.73/2009 before the learned Presiding Officer, seeking his claim. 9. The photographs tendered at page nos. 72,73,74, 75, 76 and 77 indicate that the land is 7 in possession of the plaintiff and on his behalf his labours are working and are either providing manure to the land, excavating or carrying out agricultural operations. Sugarcane crop is at a middle stage of its growth. 10. The past supply of the sugarcane, allegedly by the defendant, does not relate to the suit property as no nexus thereof is indicated, no affidavit to support, is tendered by the defendant/respondent herein. 11. Taking stock of all the facts I find, prima facie, the plaintiff/appellant herein is in possession of the suit property. The learned Judge should not have rejected the application below Exh.5. 12. However, a care will have to be taken as the title of both the plaintiff and defendant is under cloud as to enjoyment. The service to be rendered to the Dargah is put to in fact, a dismal and a wayward situation. The parties are litigating for self earnings and profits out of the fields designated for rendering services. Hence, the amount whatever is earned from the said field needs to be accounted for. Hence order. 8 (a) The application below Exh.5 moved by the plaintiffs is granted/allowed. The defendant/respondent herein shall not disturb the possession/occupation of the plaintiff till disposal of the proceedings before the learned Presiding Officer. (b) The plaintiff/appellant herein shall deposit an amount of Rs.50,000/- before the Presiding Officer within two months from today and shall also deposit the yield of sugarcane received from the Cooperative Sugar Factory or from the sugar factory. (c) The learned Judge seized with the matter will make an endeavour to expeditiously dispose of the case. If the matter is not decided within a year, needless to add, the plaintiff herein shall be required to deposit Rs.50,000/- at the end of next agricultural year which will be by the commencement of August, 2010. Civil Revision Application is allowed in above terms. Rule absolute. (K.U.CHANDIWAL) JUDGE ... agp/126-09cra