1 Second Appeal No. 725 10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. SECOND APPEAL No. 725 OF 2010 Shaikh Hanif S/o Shaikh Abdul Majid .. APPELLANT VERSUS Shaikh Nasib @ Walli S/o Abdul Majid ...RESPONDENT ... Shri Abdul Aziz and R.T. Ansari , Advocates for the appellant CORAM : S.V. GANGAPURWALA, J. DATE : 29th November, 2010. PER COURT : This is defendant’s Second Appeal. The plaintiff had filed a suit for possession against the defendant on the ground that defendant is a licensee. The Trial Court dismissed the suit, on the ground that plaintiff could not prove that he is Mutawali.. The plaintiff preferred an appeal. The appellate Court allowed the appeal and passed the decree against the present appellant directing the present appellant to hand over the possession of the suit property to the plaintiffs 2 Second Appeal No. 725 10 within three months. The defendant has assailed the judgment and decree in the present Second Appeal. 2. Shri Aziz, learned Counsel for the appellant contended that the plaintiff is not the Mutawali of the said Dargaha. The plaintiff and defendant both are khidmatgar. The plaintiff has no right to evict the defendant. He further submitted that one Mr. Mohd. Taher Mohd. Saheb is a Mutawali of the said Dargah. Unless the plaintiff proves his right and title as a Mutawali, he cannot claim eviction against the present defendant. 3. According to the leaned Counsel the Trial Court has rightly come to the conclusion and dismissed the suit. He further submitted that as the property is Wakf property, the suit could not have been entertained by the Civil Court and it can only have been decided by the Wakf Tribunal. 4. With the assistance of learned Counsel 3 Second Appeal No. 725 10 for the respective parties I have gone through the judgments passed by both the Courts below. 5. The suit property being a Dargah is a wakf property. The defendant is inducted in possession by the plaintiff, in pursuance to agreement of licensee Exh. 100. The original agreement of licensee in Urdu is at Exh. 103 and translation of the same is at Exh. 100. Though the defendant had denied his signature on the said agreement,the Trial Court has considered the evidence on record and held that the defendant has executed the said agreement. It was by virtue of the said agreement Exh. 100, the defendant is inducted in possession by the plaintiff. Appellate Court also on appreciation of evidence came to the conclusion that the defendant has executed the said agreement. The source of possession of the defendant is the said agreement Exh. 100. As such, it is clear that the defendant is inducted in possession by the plaintiff by virtue of the said agreement. It is settled law that the tenant/licensee who has been inducted in possession by a person cannot dispute the title 4 Second Appeal No. 725 10 of that person. Whether plaintiff is Mutawali or not, or whether the wakf board has determined his status as Mutawali or not is not an issue germane to the present proceedings. The fact is that both the Courts have concurrently come to the conclusion that the defendant has executed the agreement of licensee Exh. 100 and his possession in referable to said agreement. As it has been proved that the defendant is inducted by the plaintiff in possession, on the basis of an agreement of licensee, then in such circumstances, the defendant has no other defence open to him. In that light of the matter the issue whether the plaintiff is the Mutawali or not is not required to be gone into. 6. The other contention that the Civil Court could not have decided the matter as it is wakf property is not sustainable. Admittedly, the suit is instituted in the year 1999, when the Tribunal was not established. The Tribunal is established in the year 2000. The suits which are filed prior to the constitution of the Tribunal have to be decided by the Civil Court. 5 Second Appeal No. 725 10 7. In the light of the above, the Second Appeal being sans substantial question of law, is dismissed. However, there shall be no order as to costs. In view of the disposal of the Second Appeal, the Civil Application is also disposed of. [S.V. GANGAPURWALA,J] SDM*725.10SA 291110