IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR -------------------------------------------------------- SPECIAL APPEAL CIVIL No. 7 of 1994 RAJ. BOARD MUSLIM WAQFS V/S ANJUMAN MOINIA Mr. P.C.Sharma, for the appellant / petitioner Mr. H.R.Soni, for the respondent Date of Order : 27.2.2008 HON'BLE SHRI N P GUPTA,J. HON'BLE SHRI SANGEET LODHA,J. ORDER ----- This appeal arises out of the judgment of the learned Single Judge dated 16.1.86, deciding S.B. Civil First Appeal No.164/72 filed by the respondents, by partly allowing the same, and holding the property at serial no. 93 (Majar) to be Wakf property, and the Masjid situated at serial No.96 also to be Wakf property, while remaining property at serial No.96, consisting of Imambara, and three shops, were declared to be belonging to the plaintiff, and not to be considered to be Wakf property. The cross objections filed by the defendants were also dismissed. Against this judgment, two appeals were filed; one by the plaintiff, being D.B. Civil Appeal No.69/86, and other being the present one, by the defendant. This appeal was admitted on 26.5.94, as initially it was lying in the defect side. It was noted in the order sheets, even earlier, that file of D.B. Civil Special Appeal No.68/86 be tagged with it. Likewise, in Appeal No. 69/86, on 1.8.95, it was ordered, that the same be listed alongwith the present appeal. Then again on 12.12.02, in Appeal No.69/86, it was ordered that the matter will be listed alongwith present appeal on 16.12.02, and it is informed, that on 17.12.02, both the appeals were listed before the Division Bench, however, vide judgment dated 17.12.02, the Appeal No.69/86 has been dismissed, specifically observing, that so far as Special Appeal No.69/86 is concerned, none of the contentions raised by the appellants is acceptable. We are at loss to comprehend, as to why, and how, despite the above orders, and despite the fact that both the appeals did arise out of the same judgment of the learned Single Judge, present appeal was not decided on that day. Be that as it may, bereft of unnecessary details, the brief facts of the case are, that a suit came to be filed by the Receiver, against the Board of Muslim Wakf on 2.3.67, praying for decree, to the effect, that the properties mentioned in para no. 1 of the plaint are not Wakf properties; secondly, that the Wakf Board has not made due and proper enquiries required by law; thirdly, that the parties to the Civil Suit No.352/44 are the owners and are in possession thereof jointly and separately as may be 2 finally adjudicated by the competent court; fourthly, to restrain the defendant permanently from interfering with the said properties in any way, and lastly, claimed cost of the suit. In para no. 1 of the plaint, five properties have been described, appearing in the Gazette at Serial Nos. 93, 95, 96, 308 and 309, and claiming that these properties are subject matter of Civil Suit No.352/44, in the Court of Civil Judge, Ajmer, and is under possession, control and management of the plaintiff. Then, issuance of notification by the Wakf Commissioner was pleaded, and it was pleaded that no enquiry was held. Then, delay was sought to be explained. Then, it was stated that owing to a cloud having been cast on the aforesaid properties to the suit, which the plaintiff, as a Receiver has to safeguard their interest, it has become necessary to file the suit for declaration of the title to the said properties, and declaration as non Wakf properties. The written statement was filed by the Wakf Board, pleading ignorance about the properties being the private properties and joint properties of the parties to the Suit No.352/94. Then, it was pleaded that properties have not been erroneously included in the list of Wakf properties, and that the list has been prepared after due care and proper investigation, and on the basis of survey report. It was asserted, that the properties are Wakf properties, and 3 cannot be private properties of the individuals. Regarding the case pending in the High Court being Appeal No.51/60 again, ignorance was pleaded. Then, it was maintained that the properties are the Wakf properties. Other pleas were also taken, which are not necessary to be detailed here. This suit was decreed by the learned trial Court, vide judgment and decree dated 26.4.72, whereby the properties mentioned at serial nos. 308 & 309, and half of the property notified at serial No. 95, were held not to be Wakf properties, and were held to be belonging to the parties to the Suit No.352/44, jointly and separately, as may be finally adjudicated by the competent court in their suit, and necessary restrain order was also passed. Regarding rest of the properties, the suit was dismissed. It is against this decree, that the said Appeal was filed, which was partly allowed by the learned Single Judge. To complete sequence of events in the First Appeal, on 2.4.85, in this appeal an application was filed by Anjuman Moinia Fakhria Chishtia Khaddam Khawaja Shaheb Syed Zadgan, Ajmer, to the effect, that a suit was filed, wherein Receiver was appointed, probably referring the suit No. 352/44, then, pleading of the Gazette Notification declaring the properties as Wakf properties and pleading that in such suit, Receiver filed the present suit, which was decreed then, pleading that during pendency of the present appeal, the matter involved in Suit No.352/44, has 4 been compromised in accordance with law, and Receiver was directed to hand over the possession of the properties to the defendant(applicant), and that since the appeal was filed on behalf of the applicants, by the Receiver, at which time, there was dispute between the parties, and now, therefore, it would be in the interest of justice, that leave of the Court be granted to the applicant to be impleaded as appellant in the appeal in place of the Receiver. This application was opposed by filing reply, taking certain objections about right of the applicant to be impleaded. However, this Court vide order dated 3.9.85, allowed that application, and substituted the applicant as party appellant in the appeal. On 3.9.85, a certified copy of the compromise dated 22.5.73 was also filed before this Court. Though, we have heard learned counsel for the parties at length, inasmuch as, we have been taken through the pleadings, voluminous documents on record, including the judgment rendered in earlier Suit No.352/44, the compromise, and whatever evidence has been led by the parties, however, after hearing the learned counsel, and going through the record, with all regrets at our command, on the considerations of justice, we find, that in the totality of the circumstances, and sequence of events , the parties did not either properly litigate the litigation, or did not get appropriate opportunity to project their pleadings and evidence. 5 We find the above, on the basis, that the present suit was filed, at a point of time, when the Suit No.352/44 was pending, and property was in possession of the Receiver. Admittedly, the Gazette notification declaring the properties to be Wakf properties has come to be issued during pendency of that suit, and at a point of time, when the property was in possession of Receiver. It has also come on record, that some property was purchased by the Receiver also, from out of the income, derived by him as a Receiver. Then, a reading of the plaint also shows, that the suit was filed by the Receiver, only apprehending cloud on the title to the property. According to Section 6 of the Wakf Act, any person interested in the property, which has been declared to be Wakf property, is entitled to file a suit, contending that the property is not a Wakf property, and/or that the property belongs to him. In our view, obviously, when the property was declared as Wakf property, the parties in Suit No.352/44, which included the present respondent, were fighting within themselves, as to, to whom the property belongs, and the suit was filed by the Receiver, which can be said, only to be, rather a protective suit, showing his bona fide management of the property, as a Receiver. But then, the parties to the Suit No.352/44, whose rights have now culminated into compromise dated 22.5.73, did not have any opportunity, either to contend, or to establish, as 6 against the Wakf Board, that the property belongs to them, and/or that the property is not a Wakf property, so as to be required to be deleted from the Gazette Notification. Since, the respondent has come up before this Court, and got himself substituted under Order 22 Rule 10, the respondent, technically therefore, is very much bound by the proceedings so far taken. But then, this is only a hyper technical aspect of the matter. And in view of the above sequence of events, in our view, to decide the controversy, by deciding the present appeal, on the basis of the material existing on record, would be resulting into depriving both the parties of the justice, which is the primary object of the justice giving system. Regrets are there with us, because, the litigation is already pending for decades, more so, when one appeal has been decided, and the other has been kept pending. But then, on that account, looking to the magnitude of the property, it would not be in the interest of justice, to deprive the parties of the adequate opportunity. In these circumstances, we think it appropriate to set aside the impugned judgments and decrees, and remit the matter back to the learned trial Court, giving liberty to the parties, to properly amend their pleadings, so as to take all necessary pleadings, to produce documents, and also to lead fresh evidence, with the further clarification, that it will be open to the parties, to 7 contend before the learned trial Court, so also , it would be open for the learned trial Court, to take into account, as to what is the effect of the judgment rendered by the Division Bench, in Appeal No.69/86. Accordingly, the appeal is allowed, the impugned judgments and decrees are set aside, and the matter is remitted back to the learned trial Court, giving liberty to the parties to properly amend their pleadings, so as to take all necessary pleadings, to produce documents, and also to lead fresh evidence, with further clarification, that it will be open to the parties to contend before the learned trial Court, so also , it would be open for the learned trial Court, to take into account, as to what is the effect of the judgment rendered by the Division Bench, in Appeal No.69/86. The costs of the appeal will abide by the results of the suit. ( SANGEET LODHA ),J. ( N P GUPTA ),J. /aditya / 8