APPEAL FROM THE APPELLATE DECREE No.180 OF 1996 ---- Against the judgment and decree dated 27.04.1996 passed by Additional District Judge, X, Patna in Title Appeal No.119 of 1993 affirming the judgment and decree dated 31.07.1993 passed by Subordinate Judge II, Danapur in Title Suit No.53 of 1980 dismissing the said title suit. ---- 1. Surya Kant Sharma S/O Kesho Singh 2. Baidehi Devi W/O Late Chandram Sharma 3. Hiramani Devi W/O Late Siyasaran Sharma. Both daughters of Kesho Singh. All residents of Village-Moriawan, P.O. Datiyana, P.S.Bikram, District- Patna. -- Plaintiffs-Appellants-Appelants. Versus 1. Ashwani Kumar Singh @Ashwani Kumar Sharma 1(a) Sri Sushila Kumar Singh (minor) Both sons of Late Tulsi Singh and minor is under the guardianship of mother Mahsundri Devi. 1(b) Smt. Chhotak Devi 1(c) Smt. Bulan Devi Both daughters of Late Tulsi Singh. 1(d) Smt. Asha Devi D/O Tulsi Singh W/O Shri Rama Shankar Singh of Village Kurkuri, P.S. Phulwari, District-Patna. 2. Surendra Singh 3. Birendra Singh Both sons of Sri Kapildeo Singh (deceased) All residents of village Moriawan, P.S. Bikram, P.O. Datiyana, District- Patna. -- Defendants 1st Party-Respondents 1st Set-Respondents 1st Set. 4. Harsuddin Sah 4(a) Qamuddin Sah 4(b) Salabuquddin Sah All sons of Qumruddin Sah All residents of Village Moriawan, P.S.Bikram P.O. Datiyana, District- Patna at present residing at Jalahwa Raghopur, P.S. Bihta, P.O. Datiyana District-Patna. -- Defendants 2nd Party-Respondents 2nd Set-Respondents 2nd Set. 5. Name not known W/O Basiruddin Sah 6. Najemuddin Sah son of Qamruddin Sah Both residents of Village Moriawan, P.S. Bikram P.O. Datiyana, District Patna, at present residing in village Jalahwa Raghopur, P.S. and P.O. Bihta, District-Patna. -- Defendants 3rd Set-Respondents 3rd Set-Respondents 3rd Set. 7. Bibi Batulan W/O Subhash Sah and D/O Qadir Sah through his legally married wife Bibi Bahidan of Village Moriawan, P.S. Bikram, P.O. Datiyana, District Patna at present residing in village Daulatpur P.S. Arrah Muffasil, District Bhojpur. -- Defendant 4th party-Respondent 4th Set-Respondent 4th Set. 8. Ramshila Devi W/O Arbind Singh 9 (a) Lalan Sharma 9(b) Pintu Sharma. Both sons of Late Arbind Singh 9(c) Pinki D/O Late Arbind Sharma All residents of village Moriawan, P.S. Bikram P.O. Datiyana, District-Patna. -- Defendants-Respondents-Respondents. ---- - 2 - For the appellants : M/s D.P.Sharma & Arbind Kumar Singh, Advocate For the respondents : Mr. Keshav Srivastava, Senior Advocate M/s Sunil Kumar No.II & Gaurav Govind, Advocates ---- P R E S E N T HON'BLE MR. JUSTICE S.N. HUSSAIN ---- S. N .Hussain, J. This second appeal has been filed by plaintiffs-appellants-appellants challenging the judgments and decree of the learned courts below. 2. The matter arises out of Title Suit No.53 of 1980 with respect to 35 decimals (11 kathas, 2 dhoors and 16 dhurkies) of plot no.964, (having total area of 1.16 acres) appertaining to Khata No.548 situated in village Moriawan under Bikram Police Station within the district of Patna for the following reliefs:- (a) Declaration of plaintiffs‟ right, title and interest over the suit land and non-title of defendants 1st Party and defendants 2nd Party. (b) Decree of recovery of possession against defendants 1st Party and 2nd Party in favour of the plaintiffs regarding suit land. (c) Past and future mesne profit to be paid by defendants 1st and 2nd party to the plaintiffs. (d) Permanent injunction against defendants 1st and 2nd Party. (e) Cost of suit. (f) Any other relief. 3. The plaintiffs claimed that the recorded raiyat was one Quadir Sah who died in the year 1953-54 leaving behind a widow Bibi Wahidan, two sons Basiruddin Sah (defendant no.4) and Quamruddin Sah (defendant no.5) and one daughter Bibi Batulan (defendant no.9). It is also claimed that Qamruddin Sah (defendant no.5) had two sons Nayeemuddin Sah (defendant no.7) and Zeyauddin Sah (defendant no. 8), whereas Basiruddin Sah had a wife defendant no.6. It is further claimed that by registered deed of gift dated 03.05.1961 (Ext.-7) Bibi Wahidan gifted her share to her daughter Bibi Batulan (defendant no.9) and much thereafter Bibi Batulan by registered sale deed dated 26.09.1967 (Ext.-2) sold her share inherited from her father along with her gift land obtained from her mother, totalling 35 decimals of plot no.964 to the plaintiffs, whereafter vide order dated 02.12.1969 (Ext-6), the names of plaintiffs were mutated with respect to the - 3 - purchased land and rent receipts of 1972-82 (Ext-1 Series) were issued to the plaintiffs by the authorities concerned. GENEOLOGICAL TABLE 4. The further claim of plaintiffs was that Case No.220 M of 1972 was initiated under Section 145 of the Code of Criminal Procedure by the brothers of Bibi Batulan and order (Ext-G) was passed therein which was challenged by the plaintiffs in the High Court vide Cr.Rev.146 of 1980 which was dismissed by this court on 04.03.1980 (Ext.-K) with a liberty to file title suit with respect to their claims and hence the instant title suit was filed within one month thereafter. It is also claimed by the plaintiffs that during the aforesaid proceeding under Section 145 Cr.P.C. Basiruddin Sah (defendant no.4) executed sale deed dated 25.07.1973 (Ext.- B) in favour of defendant no.1 for 35 decimals of land, whereas during the pendency of the title suit, Quamruddin Sah (defendant no.5) executed a sale deed dated 14.05.1980 (Ext.-B/1) in favour of defendants no.2 and 3 for 15 decimals of land, but the said deeds suffered from lis pendens and cannot be legal and binding upon the plaintiffs as it was much after the purchase of the plaintiffs with respect to the specific lands of Bibi Batulan. 5. On the other hand, the claim of defendant 1st and 2nd Party was that neither Bibi Wahidan was widow of Quadir Sah, nor Bibi Batulan was daughter of Quadir Sah, rather Bibi Wahidan was the widow of Mobarak Sah and was sister of Quadir Sah (recorded raiyat (1953-54) = Bibi Wahidan Quamruddin Sah (D.5) Basiruddin Sah (D.4) = Name not known (D.6) Bibi Batulan (D.9) Zeyauddin Sah (D.8) Nayeemuddin Sah (D.7) - 4 - Bibi Rasulan. It is also claimed that the said Bibi Rasulan was the wife of Quadir Sah and she died a month after the death of Quadir Sah leaving behind only two sons as their heirs and legal representatives, namely defendants no.4 and 5. Hence, they claimed that Bibi Wahidan and Batulan had no right or title in the suit property and the sale deeds (Ext.-7 and Ext.-2), executed by them are ab initio void and illegal on the basis of which the plaintiffs did not acquire any right, title and interest in the suit property, whereas the sale deeds, Ext.-B and Ext.-B/1, executed by defendants no.4 and 5 in favour of defendants no.1 to 3 are legal and valid as they had full authority to execute the sale deeds and transfer their right, title and interest in the suit property to defendants no.1 to 3. 6. Considering the respective pleadings of the parties, the learned trial court framed the following issues for deciding the suit:- (i) Is the suit as framed maintainable? (ii) Have the plaintiffs got any cause of action for the suit? (iii) Is the suit bad for misjoinder of parties? (iv) Is the suit under valued and court fee paid insufficient? (v) Was Most.Rasoolan widow of Quadir Sah? (vi) Was Wahidan wife of Quadir Sah or Mobarak Sah and is Batulan daughter of Quadir Sah? And was Wahidan Mousi of Basiruddin and Kamuruddin? (vii) Is the deed of gift alleged to have been executed by Bibi Wahidan in favour of Bibi Batulan sham and fraudulent document and are the recitals in it incorrect? (viii) Is the alleged sale deed dated 30.9.1967 executed by Bibi Batulan in favour of plaintiff on 30.9.67 legal; valid and for consideration and has it conferred any title and possession on the plaintiffs? (ix) Was Kapildeo Singh and Tulsi Singh in possession of 35 decimal of plot no.964 since Jeth 1972 and has sale deed dated 25.7.1973 executed by Basiruddin and his wife in favour of Kapildeo Singh and Tulsi Singh conferred title on them? (x) Is the suit barred by limitation and adverse possession? (xi) To what relief or reliefs plaintiffs are entitled for? 7. After considering the evidence produced and the arguments led by the contesting parties to the suit, the learned Subordinate Judge, II, Danapur dismissed the suit on contest vide his judgment and decree dated 31.07.1993 after arriving at the following findings:- (a) The evidence adduced on behalf of the defendants is superior to the evidence led by the plaintiffs. - 5 - (b) Bibi Wahidan was not the wife of Quadir Sah, nor Bibi Batulan was the daughter of Quadir Sah. (c) Bibi Rasulan was the wife of Quadir Sah who had only two sons Quamruddin and Basiruddin. (d) The alleged deed of gift (Ext.-7) executed by Bibi Wahidan in favour of Bibi Batulan with respect to the land left by Quadir Sah was illegal, sham, showy and inoperative. (e) Bibi Batulan did not derive any title and hence she was not entitled to transfer the suit land to the plaintiffs vide Ext.-2. (f) The registered sale deeds (Exts.-B and B/1) executed by Basiruddin and Quamruddin in favour of defendants no.1, 2 and 3 were legal and proper and conferred right, title and interest on the said purchasers. (g) The material would go to show that the plaintiffs were never in actual cultivating possession as Ext.-1 series are only three rent receipts of 1981-82, 1976-77 and 1972-73 and merely on its basis the plaintiffs‟ possession cannot be presumed, especially when they had not been found in possession in the proceeding under Section 145 Cr.P.C and there is no other material to prove their possession. (h) It is clear from the evidence that defendants had throughout been in possession of the suit land and acquired title over the same even by adverse possession. (i) The suit is also against the sale deed of 1973, Ext.-B and hence it is barred by limitation. 8. Against the aforesaid judgment and decree of the trial court, the plaintiffs filed Title Appeal No.119 of 1993 and after hearing the pleadings of the parties, the learned court of appeal below framed the following points for deciding the title appeal:- (i) Was Most. Waheedan widow and is Bibi Batulan daughter of Quadir Shah (Sain)? (ii) Is the deed of gift in question valid, legal and operative document? - 6 - (iii) Have the plaintiffs acquired valid, right, title and interest over the suit land by virtue of sale deeds in question executed by Bibi Batulan? (iv) Are the plaintiffs entitled to get decree for declaration of title as well as recovery of possession over the suit land as prayed for? (v) Is the judgment and decree under appeal liable to be set aside? 9. After considering the arguments and evidence of the parties on the aforesaid points, the learned Additional District Judge, X, Patna dismissed the title appeal on contest with cost vide his judgment and decree dated 27.4.1996 after arriving at the following findings:- (a) In absence of any document produced by the defendants to show that Bibi Rasoolan was the widow of Quadir Sah, the said claim of the defendants stands proved. (b) From the oral and documentary evidence, it is quite clear that Most Wahidan was widow of Quadir Sah and Bibi Batalun was his daughter. (c) In the khatian (Ext.F) disputed plot is recorded in column 2 as “Gairmazarua Fakiranadar”, whereas in column 3 thereof, it has been described as “Dargah”, whereas in column 5 of the same document, the entire land has been mentioned as “Partiquadeem”. Hence, disputed plot was originally Dargah under possession of Fakiranadar as has been admitted by Bibi Batulan (defendant no.9) herself while deposing as P.W.3 in her cross-examination of paragraph 7, although in paragraph 7 of the written statement defendant 1st party averred that the character of the land was lost long ago, but in paragraph 17 of the same written statement they had admitted that 13 decimals of land is still treated as Dargah and almost similar averments have been made by defendant 2nd party in their written statement. (d) Quamruddin Sah (Defendant no.5) had also admitted in paragraph 5 of his deposition as D.W.12 that there is Kabristan over 4 kathas of land. - 7 - (e) It is well settled that the character of the land in question has yet not been changed substantially and it has remained as Dargah. (f) According to the specific provision of law, neither Most. Waheedan nor Bibi Batulan have any right to alienate the property in question which is admittedly “Dargah” and hence the documents regarding transfer of Dargah is void and illegal and no person can claim any right over Dargah (waqf property) on the basis of any transfer deeds. (g) Since the waqf land in dispute was recorded as “Dargah” in the khatiyan, Bihar State Sunni Waqf Board was necessary party to the suit, but no notice was issued to it in the suit. (h) Neither deed of gift executed by Bibi Wahidan, nor the deed of sale executed by the parties to the suit are valid and legal documents and hence they did not acquire any right, title and interest over the suit land by virtue of the sale deeds. The plaintiffs cannot succeed in the suit without proving legality of their title, especially when at present defendant 1st and 2nd party are found in possession of the disputed land. (i) Plaintiffs are not entitled to get declaration of title and recovery of possession with respect to the suit land. 10. Against the aforesaid judgments and decree of the learned courts below, the plaintiffs-appellants filed the instant second appeal which was admitted on 07.01.1998 after formulating the following substantial questions of law. (i) Whether the lower appellate court without any pleadings and evidence made out an altogether new and third case? (ii) Whether without any dedication or even an iota of evidence of such dedication by any person simply because plot no.964 in question was recorded as Dargah in remark column of Khatiyan, it could be held that the disputed plot is a wakf property and the plaintiffs be non suited on this score? (iii) Whether without holding or deciding that the disputed plot is a wakf property, provisions of Section 47 of the Wakf Act and provisions of Sections 193, 207 and 208(B) of the Mulla Mohamadan Law be applicable? - 8 - (iv) Whether on the finding of the lower appellate court that Most.Waheedan and Bibi Batulan were wife and daughters respectively of Quadir Sah and they had got their share in the property of Quadir the plaintiffs‟ suit be decreed? 11. So far substantial question of law no.(iv) is concerned it is apparent from the impugned judgment of the learned lower appellate court that after considering the pleadings and evidence of the parties it had come to the specific finding that although Bibi Waheedan and Bibi Batulan were respectively the wife and the daughter of Quadir Sah, but they had no share in the suit property as it did not belong to the said Quadir Sah, hence there is no self contradiction in its findings and on that score there was no occasion for decreeing the suit. 12. So far substantial question of law no.(i) is concerned it is quite apparent that the suit was with respect to the right, title and interest of the parties and the plaintiffs were claiming on the basis of the alleged title of Quadir Sah, hence the most important question for deciding the suit was the title of Quadir Sah, which had come into a dense cloud due to the production of Ext.F, the Khatian of the suit land and also due to the absence of any material to prove the right, title and interest of Quadir Sah in the suit property. 13. The documents relied upon by the parties are self serving documents created by the widow and children of Quadir Sah and there is absolutely no material to prove the title of Quadir Sah over the suit property. It is an admitted fact that the said Quadir Sah was Sain. „Sain‟ is a person who looks after a dargah or a qabristan and in this case also it is proved by several witnesses that Quadir Sah used to pray in the dargah and looked after it. Furthermore Ext.F is the khatian which showed in column 2 thereof that the suit land is „Gairmazarua Fakiranadar‟ and in column 3 it has been described as „dargah‟, hence in view of the materials on record it was well proved that the suit land contained Dargah, which was looked after by its Mujawir or Sain merely as Fakiranadar. In that view of the matter the learned court of appeal below did not make out a new case without any evidence rather it would have failed in its duty if it had ignored the said aspect of the matter. - 9 - 14. So far substantial questions of law no.(ii) and (iii) are concerned they are interrelated and hence they are hereby taken up together. When this case was being heard on the aforesaid substantial questions of law framed earlier it became quite apparent that in view of the pleadings of the parties as well as their depositions and documentary evidence, the main issue which has arrived for consideration is as to whether the property involved in the instant litigation is a waqf property. The learned court of appeal below has itself noted in its impugned judgment that Ext.F is the khatiyan of the property in dispute, which in column 2 is recorded as “Gairmazarua Fakiranadar” and in column 3 thereof the entire plot has been described as “Dargah”, whereas in column 5, the entire land has been mentioned as “Parti Quadeem” and thus it was quite clear that the entire disputed plot was originally Dargah under possession of Fakiranadar. The vendor of the plaintiffs, namely Bibi Batulan, herself has admitted while deposing as P.W.3 on behalf of the plaintiffs that the plot in dispute contained Dargah in which Quadir Shah used to worship. Plaintiff no.1 himself deposing as P.W.5 in paragraph 3 of his deposition admitted about the existence of Dargah in the disputed plot. Both the sets of contesting defendants had also admitted in their respective written statements that Dargah is situated in the suit land. Similarly defendant no.2 deposing as D.W.8 as well as his co-villagers as D.W.1, D.W.2 and D.W.4 had admitted that Dargah is still existing in the middle of the disputed plot. The vendor of defendants while deposing as D.W.12 has also stated that there is a Kabristan in the plot in dispute. In the said circumstances, there was sufficient pleadings and evidence on record to show the existence of a Dargah/Kabristan in the disputed land, specially in absence of any document to prove the title of Quadir Sah. 15. It may be noted in this connection that Dargah is a respectful term applied to the shrine or tomb of a saint and therefore is a place of resort and prayer, as has been held by the Bombay High Court in case of Mahomed Oosman V. Essak Salemahomed, reported in [1938] Bom 184. The most redeeming feature of Dargah is that they attract members of all faiths and communities due to the teachings of the - 10 - saints regarding compassion and love for all the beings as well as endurance and patience with gratitude and submission to the Will of God, which form the basic feature of the religion and its waqfs. Thus Dargahs are waqfs and are governed by the provisions of Law relating to Waqfs as has also been held by the Hon‟ble Apex Court in case of Dargah Committee Ajmer V. Syed Hussain, reported in (1962) 1 SCR 383. 16. It is quite apparent from the provisions of law as well as judicial pronouncement that Dargah or Kabristan comes under the definition of Waqf and for the purposes of management, supervision and control of the waqf, the law makers have been enacting statutes regarding waqf from time to time. In Section 15 of the Waqf Act, 1954, it was provided that a Board be established for the State to exercise its power under the Act to ensure that the waqfs are under its superintendence and are properly maintained, controlled and administered for the objects and purposes for which it was created. Thereafter, Waqf Act, 1995 has also been enacted with exactly the same purpose, according to which all the waqfs come under its purview whether registered in the Waqf Board or not. 17. Section 57 of the Waqf Act, 1954 as well as Section 90 of the Waqf Act, 1995 specifically provide that in every suit or proceeding relating to the title or possession of a waqf property, the court or the tribunal hearing the said case shall issue notice to the Board at the cost of the party instituting such suit or proceeding. In the said circumstances, when there is specific pleadings and evidence of the parties in the instant case with respect to a waqf property in the disputed land as found by the lower appellate court, it was mandatory for the learned court of appeal below that before deciding the title appeal on the said issue regarding waqf property it should have issued notice to the Board concerned, namely Bihar State Sunni Waqf Board through its Secretary, as it transpires in the instant case that the vendors of both the parties belonged to Sunni Sect of Muslims. Only thereafter the said issue should have been decided, along with the questions of the limit of the said Dargah as well as the right of Quadir Sah and his heirs and successors over Fakiranadar land, as - 11 - no title should be conferred to any of the two parties to the suit in a mock litigation, if claim of both sets of parties are found to be based on illegal deeds executed by persons having no title at all. 18. In the said circumstances and in view of the specific provisions of law mentioned above, the impugned judgment and decree of the learned court of appeal below is set aside and the matter is remanded to the learned lower appellate court to decide the entire matter afresh on all the issues already framed as well as the above mentioned issues after impleading the Bihar State Sunni Waqf Board through its Secretary as a party to memorandum of title appeal and after issuing notice to it in accordance with law at the cost of the appellants of the title appeal and also after considering its pleadings and evidence in accordance with law. 19. With the aforesaid directions, this second appeal is allowed. (S. N. Hussain, J.) Patna High Court Dated, 15th April, 2009. N.A.F.R. Sunil/