1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.70/2009 Nasin Ahmed s/o Gulam Dastagir .. APPELLANT VERSUS Shakih Naser Sk. Abdul Quader and others. .. RESPONDENTS .... Shri S.S.Kazi, Advocate for appellant. Shri G.D.Shaikh,Adv. for respondent no.1 Shri S.A.G.Qureshi,Adv.for R.2. .... CORAM : R.K.DESHPANDE,J. DATE : 25/11/2009 ORAL ORDER : 1] This Civil Revision Application is filed by the original plaintiff, 2 challenging the order passed below Exh.5 by learned Presiding Officer,Maharashtra Wakf Tribunal, Aurangabad on 6/5/2009 rejecting application filed by the plaintiff,for grant of temporary injunction in Civil Suit No.97/08. Heard learned counsel for respective parties. 2] Admit. Respective counsel waive service of notice. Heard finally by consent of parties. 3] The plaintiff has filed civil suit no.97/08 for perpetual injunction against the deft.no.1 (who is respondent no.1 herein), or his agent, servant or anybody claiming through them be restrained permanently from interfering in rendering the services by the plaintiff in respect of Wakf institution i.e. Takiya Roshan Ali Shah Quadri and Nashan Gaus-e-paak at Shah Bazar, Aurangabad In the said suit, the plaintiff also filed an application for temporary injunction (Exh.5 ) against deft.no.1 for grant of temporary injunction restraining deft.no.1, his servant, agent or anybody from interfering in the functioning of the petitioner as a Mutawalli of the said Wakf institutions, pending the disposal of the suit. 3] The controversy before the Wakf tribunal in the suit is concentrated on two points (1) Whether there are two Wakfs by name; 3 (a) Takiya Roshan Ali Shah Quadri and (b) Nashan Gaus-e-paak at Shah Bazar, Aurangabad and (2) Whether the plaintiff is appointed as permanent Mutawalli in respect of both the Wakfs or the deft.no.1 is entitled to manage the affairs of the Wakf i.e. Nashan Gaus-e-paak on the basis of heirship certificate dated 15/10/08. 4] The Wakf Tribunal has recorded a finding that unless evidence is led by the parties, it cannot be decided that there is only one Wakf institution viz. Takiya Roshan Ali Shah Quadri and Nashan Gaus-e- paak at Shahbazar, Aurangabad or there are 2 Wakf institutions viz. (1) Takiya Roshan Ali Shah Quadri and (2) Nashan Gaus-e-paak at Shahbazar, Aurangabad. The claim of the plaintiff that he is appointed as permanent Mutawalli is concerned, the Tribunal has held that the plaintiff has suppressed the material fact that he was appointed as temporary Mutawalli and for this purpose, the Tribunal has relied upon the resolution of the Wakf Board dated 1/1/2005, in which, at Item NO. 19, it is unanimously resolved that Mr.Nasim (the plaintiff) be continued as temporary Mutawalli of the institution Nashan Gaus-e-paak at Shahbazar Aurangabad. The Tribunal has further held that the documents produced by the plaintiff on record do not show that he was appointed as permanent Mutawalli in respect of the Wakf Nashan Gaus-e-paak. The Tribunal has further held that the dispute is about 4 the appointment of Mutawalli in respect of Wakf institution Nashan Gaus-e-paak between appellant no.1 and others, one side and the present plaintiff on the other side. It is further held that this dispute is pending before the Wakf Board under Section 63 of the Wakf Act, 1995 and since such a dispute is pending, according to the Tribunal, it is not desirable to grant application Exh.5 for temporary injunction. 5] Shri S.S.Kazi, learned counsel for the petitioner has relied upon the order dated 31/7/96 of Wakf Board, letter dated 27/4/06 of Wakf Board, tax receipt at Exh.3, Akhiv Patrika dated 2/11/01, application by Wakf Board dated 28/2/97 and a written statement filed by Wakf Board. He urged that the petitioner has been appointed as permanent Mutawalli and he has been managing the affairs of the Wakf institution. He alleged that Nashan Gaus-e-paak is merely a name plate and is not a separate Wakf and it is movable property of the Wakf i.e.Takiya Roshan Ali Shah Quadri . For this purpose, he relied upon Government Gazettee Exh.A at page 18 of the petition. Shri Qureshi, learned counsel for Wakf board has supported the contention of the plaintiff in respect of the fact that there exists only Wakf i.e. Takiya Roshan Ali Shah Quadri and Nashan Gaus-e-paak is the only name plate. As against this, Shri Shaikh, learned counsel for Respondent no.1 has relied upon heirship certificate dated 15/10/08 (page 21), 5 which has been issued in favour of the deft.no.1 in respect of CTS No. 10078, which according to him, pertains to the Nashan Gaus-e-paak, Shahbazar, Aurangabad. 6] With the assistance of the learned counsels, I have gone through the order which is impugned in the present petition and the documents which are placed on record of the trial Court. I have gone through the pleadings of the parties. Keeping in view the controversy which is raised in the Civil Suit No.97/08, prima facie the dispute raised by Respondent no.1. seems to be in respect of appointment of the petitioner as Mutawalli of the alleged Wakf Nashan Gaus-e-paak. It is not in dispute that the trial Court has recorded a finding that the petitioner plaintiff has been appointed as temporary Mutwalli of the Wakf Nashan Gaus-e-paak. The resolution which has been relied upon by Shri Shaikh appearing for Respondent no.1 which is dated 1/1/05 on page 104, also supports this contention. Before the tribunal, it does not seem to be prima facie a disputed position that the petitioner plaintiff was appointed as Mutawalli in respect of Wakf Takiya Roshan Ali Shah Quadri. Although the dispute in relation to the fact whether both are different Wakfs or it is only one wakf, is required to be gone into in the suit filed by the Tribunal, prima facie the stand of plaintiff, supported by Wakf Board seems to be right that there is only 6 one Wakf and not two. Prima facie therefore, in my opinion, the petitioner plaintiff has made out an arguable case. 7] It is not disputed that the petitioner plaintiff has been appointed as temporary Mutawalli to manage the affairs of the alleged Wakf i.e. Nashan Gaus-e-paak. So far as appointment of the plaintiff as Mutawalli of another Wakf insitution i.e. Takiya Roshan Ali Shah Quadri is concerned, prima facie, on this aspect, there seems to be no dispute. The petitioner has been performing all the religious ceremonies and hence, in my opinion, the balance of convenience lies in favour of the petitioner plaintiff and pending the decision of the suit, the plaintiff shall be entitled to act as a Mutawalli of the so called Wakf i.e. Nashan Gaus-e-paak as well as Takiya Roshan Ali Shah Quadri . 8] In view of the aforesaid position, in my opinion, the trial Court has wrongly held that there was suppression of material fact that the petitioner was appointed as temporary Mutawalli. The fact remains that the petitioner/plaintiff being Mutawalli, is entitled to perform all religious ceremonies and it was not material whether he was a temporary or permanent Mutawalli. The appointment of Mutavali on the basis of heirship certificate was pending before the Wakf board. The documents produced on record that the petitioner plaintiff prima facie 7 indicated that he was appointed as permanent Mutawalli in respect of the Wakf i.e. Takiya Roshan Ali Shah Quadri and the trial Court ought to have taken into consideration all these documents, to record the findings. The findings recorded by the Tribunal are in ignorance of the relevant material placed on record. The same are therefore, liable to be quashed and set aside. 9] In the result, the instant Civil Revision Application is allowed. The order dated 6/5/2009 passed by the learned Presiding Officer, Maharashtra Wakf Triubnal, Aurangabad below Exh.5 in Civil Suit No. 97/08 is quashed and set aside. The application Exh.5 filed by the plaintiff before the trial Court is allowed. The injunction as prayed for is granted. The same shall continue pending decision of the suit. No order as to costs. [R.K.DESHPANDE] JUDGE umg/ao95-09