IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD FRIDAY, THE TENTH DAY OF DECEMBER TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL REVISION PETITION NO.3835 OF 2003 Between : Sye Omer ... PETITIONER A N D A.P.Wakf Board …RESPONDENT THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL REVISION PETITION NO. 3835 OF 2003 ORDER: This Civil Revision Petition, under Section 83 of the Wakf Act, 1995, is directed against the judgment and decree dated 12.06.2003 in O.S.No.14 of 2001 on the file of Wakf Tribunal, Hyderabad, whereunder and whereby the Original Suit filed for declaration that the petitioner / plaintiff is the owner and possessor of the suit schedule land, was dismissed. 2. For the sake of convenience, the parties are referred to as they are arrayed before the trial Court. 3. The brief facts that are necessary for disposal of the Civil Revision Petition may be stated as follows: The plaintiff filed Original Suit No.14 of 2001 on the file of Andhra Pradesh Wakf Tribunal, Hyderabad, for declaration that he is the owner and possessor of the suit schedule land bearing Municipal No.9-8-355/1, adjacent to Moti Mahal, Golconda Fort, Hyderabad, admeasuring 255 square yards, having purchased the said property through a registered sale deed, dated 24.05.1982, from Fatima Begum, under registered document bearing No.1066 of 1982, Book I, Volume 681, page 416 to 418, dated 26.05.1982, in the office of the Sub Registrar, Khairtabad, Hyderabad. The plaintiff is also paying tax thereon from 01.04.1982. The vendor of the plaintiff was in possession of the said property since 1958. The plaintiff is carrying on business of fire wood stall, in the suit schedule premises. The plaintiff and his vendor are in possession of the property for a period of 42 years without any interruption from the defendant or anybody. The suit land is not a Wakf property. The defendant is neither the owner of it, nor it has any concern to the said property. The defendant addressed a letter to one Vazeer who is a dead person and the same was delivered to plaintiff, wherein it is falsely asserted that it is a Wakf property and asked him to execute a lease deed on threat, failing which he will be forcibly dispossessed. The said letter was served on the plaintiff on 15.11.99. The said Vazeer expired in the year 1994. The said Vazeer is not concerned with the said land and he was never in possession of the said land. On 17.04.2000, the plaintiff was got vacated the premises through the Inspector of Police. The plaintiff informed that it is not a Wakf property and the defendant is not concerned with the property and he issued, notice dated 17.04.2000, to the defendant. Hence, the suit. 4. The defendant filed written statement stating that the plaintiff is not the absolute owner of the suit schedule land and he did not purchase the same under a registered sale deed. The said sale deed is a sham document and the same will not confer any title. The said property is a Wakf property, belongs to Gande Shah Mosque and Grave Yard, Bada Bazar, Golconda Fort, Hyderabad. It was further stated that the tax receipts would not establish any title to the plaintiff. The Municipal Door No.9-8-355 and 355/1, belongs to Wakf Institution, known as Gande Shah Mosque Grave Yard and its attached property. The principles of adverse possession does not apply to the Wakf property. As per the Survey Commissioners report, the suit schedule land is a Wakf property attached to Gande Shah Mosque. As per the records, Vazeer, was in possession of the said land. The plaintiff is in illegal possession of suit schedule property as an encroacher. The plaintiff is not the owner of the said property and the title deed and sham document are forged by the plaintiff and therefore, he prays to dismiss the suit. 5. On the basis of above pleadings, the following issues have been settled for trial by the trial court: “1. Whether the suit property is a Wakf property? 2. Whether the plaintiff is the absolute owner and possessor of the suit property? 3. Whether the plaintiff is entitled for declaration and consequential injunction as prayed for? 4. To what relief?” 6. During trial, PWs-1 and 2 were examined and Exs.A.1 to A.12 were marked on behalf of the plaintiff, and on behalf of the defendant, DW.1 was examined and Exs.B.1 to B.3 were marked. 7. The Wakf Tribunal after considering the evidence on record dismissed the suit. Aggrieved by the said judgment and decree, this revision is filed. 8. Learned counsel for the plaintiff contended that the burden is on the defendant to establish that the property is a Wakf property. 9. On the other hand, learned counsel for the respondent contended that D.W.1 who is Inspector of Auditor of Wakf Board, specifically stated that it is a Wakf property and is duly notified in Gazette; that the plaintiff failed to show that he has right in the said property. In support of his contention, he relied on a decision reported in Madras State Wakf Board V. Khazi Mohidden Sheriff[1], wherein it was held thus: “The contention is that if the plaintiff wants to support his case that the property is not wakf on the ground that the grant had been made by a non-Muslim, the initial burden is on him to prove such a case.” 10. According to the plaintiff, he purchased the property under Ex.A.1, sale deed dated 24.05.1982, and he is in continuous possession and enjoyment of the same by paying taxes under Exs.A.2 to A.9. There is no evidence to show as to how the Vendor of plaintiff derived the title. His Vendor is not examined to speak about the title. Withholding such evidence, without there being any reason or cause, an adverse inference can be drawn under Illustration (g) of Section 114 of the Indian Evidence Act, 1872. The contention of the learned counsel for the petitioner is that the burden is on the defendant to establish that the property is a Wakf property and it is duly notified in the Gazettee, cannot be accepted, for the simple reason that the plaintiff who has come to the Court and sought for declaration that the property is exclusively belonging to him, the burden lies on him to prove the same. The weakness or lacunae in the defendant’s case can be taken advantage by the plaintiff. Either the plaintiff must succeed or fail on the evidence adduced by him. Even otherwise D.W.1, who is Auditor Inspector of Wakf Board is authorized to give evidence as per Ex.B.3. He categorically stated that the plaint schedule property is a notified Wakf property duly notified in the Gazettee Ex.B.3. The said statement of D.W.1, practically remained unchallenged. When a fact has been stated by a witness, the same is not denied or disputed, it can be said that such a fact is admitted. The trial Court dismissed the suit on the ground that the plaintiff failed to establish that his Vendor has right, title and interest over the suit schedule property. That finding is not shown to be incorrect or perverse, unless the plaintiff establishs that his vendor has right, title and interest, he cannot derive any better title over the suit schedule property. Since, the plaintiff failed to establish that he has got title and interest over the property, the trial Court has rightly dismissed the suit and there are no grounds to interfere with the same. 11. Accordingly, the Civil Revision Petition is dismissed. There shall be no order as to costs. _______________ K.C.BHANU. J DECEMBER 10, 2010. YVL [1] AIR 1974 Madras 225 (V.61, C.71((1)