THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR CRP NO. 5072 OF 2006 Date of Judgment: 16.9.2011 Between: The Commissioner, Karimnagar Municipal Council, Karimnagar Town …Petitioner and Managing Committee, Masjid-e-Adlat Karimnagar Town and another ..Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR C.R.P. NO. 5072 OF 2006 ORDER: CRPMP NO. 5097 OF 2011 This application seeking to recall the order passed in CRP No. 5072 of 2006, dated 8.6.2011 is allowed in the facts and circumstances of the case accepting the averments in the affidavit. CRP NO. 5072 OF 2006 Heard learned counsel for the petitioner-Municipality and the learned standing counsel for the respondents/plaintiffs. This revision petition is preferred by the Commissioner, Karimnagar Municipal Council, Karimnagar Town questioning the decree of injunction passed by the A.P. Wakf Tribunal, Hyderabad under the impugned judgment. The learned counsel for the petitioner-Municipality submits that the boundaries and extents as shown in the plaint schedule do not tally even with the gazette notification relied upon by the respondents. He also submits that the claim for the property now made in the plaint schedule is the property other than the notified mosque and with regard to other property, there is neither any notification under the Wakf Act nor there is any material evidence to support the claim of the respondents/plaintiffs. He also points out that though the possession is sought to be claimed by the respondents/plaintiffs through the vegetable vendors, neither any vegetable vendor is examined nor any document is exhibited on behalf of the respondents/plaintiffs to substantiate that the said vegetable vendors are the tenants of the respondents/plaintiffs. He points out, on the contrary, that the petitioner-Municipality exhibited Exs.B9 to B76 the resolutions of the Municipality under which every year the vegetable stalls were auctioned to the vendors and the documents referred to above cover the period at least from 1962 onwards continuously. He also relies upon the statement of P.W.1 in his cross-examination who admitted that the petitioner-Municipality was auctioning the vegetable vendors stalls. Per contra, the learned standing counsel for the respondents/plaintiffs contends that the very suit is purely based on long standing possession through the vegetable vendors and places strong reliance upon the boundaries as mentioned in the gazette notification notified under the Wakf Act. Reliance is also placed on the cross- examination of D.W1, the commissioner to contend that he was unable to establish the acquisition of land for the Government and consequently the title of Municipality over the suit land. The learned standing counsel supports the impugned judgment by contending that there are several weaknesses in the claim of the petitioner- Municipality which was rightly appreciated by the Wakf Tribunal and as such the impugned judgment does not deserve any interference. I have considered the aforesaid contentions in the light of the plaint allegations and evidence of the plaintiffs, as essentially the plaintiffs who approached the Court/Tribunal below, must establish their entitlement to the relief sought for and that they would not get a decree merely on the basis of the weaknesses of the defendant. The facts in brief are as follows, The said suit came to be filed by the respondents on the specific allegations that the Mosque known as Masjid- e-Adalat is a notified wakf property & as per Gazette Notification published in A.P. Gazette dated 11.01.1990 marked as Ex.A3, it is alleged that the said notification is preceded by a Survey Commissioner’s Report, which is also produced and marked as Ex.A4. The first respondent committee alleged that it was constituted to manage the said wakf institution by the second respondent board and they further alleged in the plaint that the petitioner municipality illegally tried to encroach the land of the said wakf institution and already constructed water tank, LIGH quarters, meat market and shops. The first respondent herein (who is first plaintiff) also alleged that they were not aware of ownership of the land on which municipality has taken up those constructions and as such they did not obstruct the construction, but they have however filed the suit for injunction on the allegation that the petitioner municipality is trying to evict the vegetable vendors, who were carrying on business in the remaining existing open land on the northern side. It is alleged that the said vegetable vendors are licencees of the plaintiffs and apprehending their eviction, the committee made representations to the wakf board, who in turn entered into correspondence with the petitioner municipality so as not to evict the vendors by asserting title to the suit schedule property. The said suit was resisted by the municipality inter alia stating that it has been the owner and possessor of the entire land for the last 60 years by contending that Ac.2.18 guntas of land was acquired from the Government of A.P., which comprises of Ac.1.20 gts for construction of reservoir and remaining Ac.0.20 gts for construction of vegetable market. They also alleged that number of writ petitions were filed by the association of vendors of vegetable markets questioning the action of petitioner municipality whereupon the municipality was directed to follow the due process of law and not to evict the vegetable vendors highhandedly. They also made a specific allegation in Para 4 of the written statement that notified wakf property as per the gazettee notification relied upon by the plaintiffs admeasured only 1020 square yards, & was within the physical possession of the committee and they have constructed a compound wall and a Masjid exists inside. The petitioner municipality therefore seriously disputed the claim of the respondents that 3806.66 sq.yards, which is shown as schedule land is not the notified wakf property. The tribunal below framed only two issues: 1. Whether the plaintiff is entitled for perpetual injunction as prayed for and 2. To what relief? On behalf of the plaintiffs, P.Ws.1 and 2 were examined and Exs.A1 to A24 were marked. The commissioner of the defendant examined himself as D.W.1 and Exs.B1 to B77 were marked. The Tribunal below on consideration of the evidence has proceeded to find that the petitioner failed to establish that it acquired property from the government as alleged and it also found that the gazette notification of Ex.A3 contains boundaries, which prevail over the extent of 1020 sq. yards mentioned in the said notification, consequently, decreed the suit of the respondents. Hence this revision. In order to appreciate the rival contentions it is necessary to keep in mind the schedule attached to the plaint which is as follows, Schedule of Property All that part and parcel of land, pertaining to Masjid- e-Adalat, Adm.3806.66 square yards situated at Karimnagar Town, and District, A.P. and bounded as follows: North : Public Road 60’ South : Mosque, Old Building(Evacuee) East : Shops and Public Road West : Encroached properties of Municipal council and Kamadhenu society complex and public road. The schedule in the gazette notification dated 11.1.1990 is as follows, 1. Serial Number: 8148 2. Name of Taluq or village or Ward: Taluq, Karimnagar, Karimangar 3. Name and situation of Wakf Sunni or Shia,- Masjid Adalath inside Abgadi, Area: 1020 Sq. yds. (5) (3) 4. Nature and object of Wakf: Prayer ® 5. Boundaries: N: Fallow Land S: Public Way E: House of Kishan Singh W: Public way. Copy of Ex.A3 notification specifically declares under Col.3 the area of the wakf institution as 1020 sq. yards, the boundaries, which are mentioned in the suit obviously are not existing on the date of suit. I have also seen Ex.A4, the report of the survey commissioner, which specifically mentions against Col.20 that the area as per plan is 1020 sq. yards. The endorsement of the Commissioner of Wakfs is as follows: “I inspected the mosque and the houses attached to it. The income fetched in the shape of rent is hardly sufficient to meet the cost of the Pesh Imam salary and other necessary expenses. This has no Inam lands.” The said report is also accompanied by precise sketch plan showing external and internal dimensions of the said Wakf Institution as well as boundaries on all sides showing bazaar on the north, west and south, whereas to the east shows old court building and house of Keshav Singh. The sketch map also is drawn to scale of one inch º 20 feet, where besides measurements of total extent of 1020 sq. yards as well as built up area of 9185 sq. feet is specifically mentioned. The gazette notification under the Act follows the aforesaid survey and it is for that reason the gazette notification mentions the said extent as per plan, i.e., 1020 sq. yards. The tribunal below has not bestowed its attention to the documents filed by the respondents-plaintiffs themselves together with the fact that the respondents-plaintiffs suit is based upon the said gazette notification. The extent of the wakf property as notified, therefore cannot be presumed to be much more than what is notified, particularly in the absence of any evidence in support of the same. In fact, in Para 11, the tribunal accepts that the plaintiffs have no documents in support of the total extent claimed as wakf property and the entire case is based upon boundaries as described in the gazette notification. The tribunal, in my view, committed two serious errors viz., it has to place the burden of proof on the respondent/plaintiff but has held that the respondent/petitioner herein has failed to prove as to how it acquired the property from the Government and secondly, the tribunal has not considered the GOs filed by the petitioner under Exs.P2 to P8, where under it acquired the property from the Government as well as Ex.A4 survey report. Consequently, the tribunal has chosen to ignore the notified extent on a spacious argument that boundaries prevail over extent. While applying the said principle, the tribunal has ignored that there is no ambiguity or discrepancy whatsoever with regard to the area of the notified property and as discussed above, the survey plan drawn to sketch accompanied the survey followed by gazette notification showing precise extent including the precise extent of built up leaving no room for any ambiguity to the extent. In such situation, therefore, the tribunal could not have applied the boundaries to prevail over the extent assuming that the boundaries as shown in the notification exists and are available and the land between the said boundaries was measured and established before the tribunal to support the claim of the respondents-plaintiffs. The order in writ petition passed by this Court at the instance of vegetable vendors, which was specifically pleaded in the written statement and produced as Ex.B1 was also not considered by the tribunal, which itself show that the petitioner municipality was the landlord/licensor of the said vegetable vendors. So far as the contentions of the learned standing counsel for the respondents/plaintiffs are concerned, there is no evidence on record to show that the vegetable vendors are either licences or tenants of the respondents/plaintiffs. On the contrary, Ex.B1, the order of this Court dated 25.4.2001 in WP No. 8328 of 2001, which was filed by Main Vegetable Market Retail Sellers Association against the Secretary, Agricultural Market Committee, Karimnagar and others, shows that the grievance of the association of vegetable vendors was against the Municipality and that the Municipality was trying to evict them without showing any alternative place. Accepting the said contention, this Court permitted the members of the petitioner-association to carry on business till the Municipality relocates them in the alternative place. The claim of the association of the vegetable vendors as made in the said writ petition completely demolishes the contention of the respondents/plaintiffs that they are in possession of the property through vegetable vendors. As stated earlier there is neither any prima facie title nor any document of possession in support of the respondents/plaintiffs and on the contrary, there is sufficient evidence in support of the petitioner-Municipality showing their prima facie ownership and effective possession through the vegetable vendors who were paying ground rent as well as licence fee to the Municipality year after year in the auctions conducted year after year. The Tribunal having not appreciated any of the aspects as mentioned above, the impugned judgment cannot be sustained and is liable to be set aside. The revision petition is accordingly allowed setting aside the impugned judgment and OS No. 36 of 2002 before the Tribunal below shall stand dismissed. However, there shall be no order as to costs in view of the Wakf institution and the Municipality being the parties to this litigation. _________________________ VILAS V. AFZULPURKAR, J Dt. 16.9.2011 KR