1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.146 OF 2005. Kazi Syed Abdul Samad s/o Kazi Syed Ahmed Abdul Aziz,(died through it’s L.Rs.,- 1) Abdul Sattar s/o Abdul Samad Age: 55 Yrs., occu. Labour, r/o Kasba, Old Jalna, District Jalna. 2) Abdul Nab s/o Abdul Samad, Age: 53 Yrs., occu. Labour, r/o as above. 3) Syed Jafar s/o Abdul Samad, Age: 42 Yrs., occu. Labour, r/o as above. 4) Syed Babar s/o Abdul Samad, Age: 41 Yrs., occu. Labour, r/o as above. 5) Syed Anwar s/o Abdul Samad, Age: 39 Yrs., occu: Labour, r/o as above. 6) Syed Azhar s/o Abdul Samad, Age: 37 Yrs., occu. Labour, r/o as above. - PETITIONERS (orig.Pltff.) VERSUS 1) Shivaji s/o Venkoba Katkar, Age:Majopr, occu. Business, /r/o Dahedkarwadi, Old Jalna, District Jalna. 2 2) Shankarappa s/o Laxmanappa (died per L.Rs.) 3) Rukhmanibai w/o Shankarappa, Age: 45 Yrs., occu. Household. 4) Rajuappa s/o Shankarappa, Age: 19 Yrs., 5) Sindhanappa s/o Shankarappa, Age: 15 yrs., minor U/g of real mother, i.e. No.2 above. 6) Sajju s/o Shankarappa, Age: 10 yrs., minor, u/g of real mother, i.e. No.2 above. 7) Raju s/o Shankarappa, Age: 12 Yrs., minor u/g of real mother, i.e. No.2 above. 8) Parasram s/o Ramchandra Age: 35 Yrs., occu. Business, R/o Dahedkarwadi, Old Jalna, District Jalna. 9) Baban s/o Sakharam, Age: 30 Yrs., occu.Business, r/o as above. 10) Nandu s/o Ramkishan Age: 30 Yrs., occu. Business, r/o as above. 11) Wakf Board of Maharashtra, Through C.E.O., at Panchakki, Aurangabad. - RESPONDENTS ***** Mr.SS Kazi Advocate for Petitioners; Mr.MD Shinde,Advocate for Resp.Nos. 1, 3 to 9; 3 Respondent No.10 served. Mr.MC Sayyed, Adv. for Respondent No.11. ----- CORAM : K.U.CHANDIWAL,J. DATE : 24th November,2010. ORAL JUDGMENT : 1) Heard. 2) Dismissal of Wakf suit No.18/2003 by order dated 6.5.2005 is questioned by the petitioners. 3) The learned Presiding Officer observed that the plaintiff/petitioner had no status or right to initiate the proceedings. However, Certificate dated 27.10.1999, vide Ow.No. 1049/1999 established that at least from 1987 the plaintiff was rendering the services to the institution – Shish Masjid situated at Dahedkarwadi Jalna. There is nothing to controvert this certificate. Though in the pleading of Maharashtra Wakf Board, it is denied that the plaintiff is owner however, the petitioner/plaintiff himself has not asserted to be owner of the property. 4) The initial proceedings was for removal of encroachment on CTS No.9550 to the extent of 10ft X 20 ft. However, subsequently, the 4 plaintiff sought possession by carrying necessary amendment. 5) The observation of the learned Judge that the plaintiff should have got appointed T.I.L.R. to get the land measured, may be correct, however, there is a report of Commissioner at Exhibit-63 to locate the area of Shish Masjid and also to locate the encroachment over the property admeasuring 10’ X 20’ marked CEDF which is part of CTS No.9550. 6) The findings by the learned Judge certainly call for interference being not flowing in tune with the record and project an illegality, seeking such interference in terms of Section 115 of CPC. 7) In the result, the impugned order is set aside. The suit No.18/2003 is re stored to original position. The learned Judge will re- appreciate the evidence on the facts, which are enumerated. Plaintiff/Petitioners may move an application for getting T.I.L.R. appointed for measurement of CTS No.9550. The learned Judge to decide the same on its merit. 8) The observations made by this Court in the present proceedings are prima facie in nature. The learned Judge shall not be swayed with the same as to status of the plaintiff/petitioners or rights of the plaintiff/petitioners to the property in 5 question. 8) Civil Revision Application allowed to the extent indicated above. No costs. 9) Wakf Board of Maharashtra at Aurangabad is at liberty to initiate action under Section 54 of the Wakf Act. (K.U.CHANDIWAL) JUDGE bdv/