1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 03 OF 1990 1. Mohd. Raisuddin S/o Mohd. Baleguddin Kazi Died L. R.'s. i. Ameeroddin Raisuddin, Age : 35 Years,, R/o Ambejogai, Dist. Beed. ii. Alimoddin S/o Raisuddin, Age : 19 Years, R/o Ambejogai, Dist. Beed. 2. Mohd. Tajuddin S/o Mohd. Kaberroddin, Died L.R.'s. i. Shakeeloddin S/o Tajuddin, Age : 22 Years, R/o Ambejogai, Dist. Beed. ii. Shafikoddin s/o Tajuddin, Age : 10 years, u/g of mother Sami Begum W/o Tajuddin, R/o Ambejogai, Dist. Beed. iii. Sami Begum W/o Tajuddin, Age : Major , R/o Ambejogai, Dist. Beed. 3. Mohd. Nizamuddin S/o Mohd. Kabiroddin, Died L.R.'s 2 i. Salimoddin S/o Nizamuddin, Age : 20 Years, R/o Ambejogai, Dist. Beed. 4. Mohd. Zakiyoddin S/o Mohd. Afzalludin, Age : 28 Years, Occu. : Labourer, R/o Ambejogai, Dist. Beed. .. .. Appellants Versus 1. Jankabai w/o Dnyanoba Patil, Age : 48 Years, Occu. : Agriculture, R/o Ambejogai, Dist. Beed. 2. Marathwada Wakf Board, Aurangabad, through its District Wakf Officer, Beed. .. .. Respondents Smt. M. K. Pisolkar, Advocate for the Appellants. Shri D. R. Bhadikar, Advocate for the Respondent No. 1. Shri Sadaf Quazi, Advocate h/f Shri J. R. Shaikh, Advocate for the Respondent No. 2. CORAM : K. U. CHANDIWAL, J. DATE : 19TH JUNE, 2009. ORAL JUDGMENT : 1. Heard the respective counsels for the parties. The appeal in fact is 3 admitted by an order dated 02nd May, 2008 formulating the following questions as substantial question of Law. i. What is effect of this Second Appeal of not bringing LRs of respondent Nos. 2 to 4 on record in Regular Civil Appeal No. 51 of 1983 when the appeal was pending in the District Court ? ii. Whether the Trial Court was right in deciding issue No. 2 regarding leasing out of the property in 1954 by Md. Kabirroddin to the original plaintiff and her having been in possession of the property without referring the issue to tenancy authority under the Hyderabad Tenancy and Agricultural Lands Act, 1950 was required for decision of said issue ? iii. Whether the suit was barred by limitation due to the provisions of Wakf Act, 1954 ? iv. Whether in deciding issue No. 1 by the Trial Court and point No. 1 by the District Court, said Courts below have exercised the jurisdiction which was not vested in them under the provisions of the Hyderabad Abolition of Inams and Cash Grants Act, 1954 ? 2. During the course of submissions, it was informed by the respective counsel for the respondent No. 1 and No. 2 and not disputed by the counsel for the appellants, that original respondent No. 1 Mohd. Raisuddin has filed consent written statement and did not even prefer 4 appeal in the District Court. Consequently, he and his legal representatives, are not be heard to file the second appeal. The remedies available to the Wakf board are independent which, it may resort at any time. The suit lands are proved to be community service Inam lands given to Kazi for the benefit of community. The Muntakab No. 1570 dated 25.12.1307 F was placed on record. The Court rightly found, the suit lands are not dedicated to the benefit of Sangeen Masjid of Ambajogai. The defendant No. 2 has accepted plaintiffs status to enjoy the suit property. For the present, the substantial questions of Law which are formulated on 02nd May 2008, will have to be answered with the non bringing of legal representatives of respondent No. 2 to 4 on record in Regular Civil Appeal No. 53 of 1983, when the appeal was pending in the District Court is fatal to the findings recorded by the learned Trial Judge, while answering issue No. 1 about leasing out the property by Mohd. Kabrrodin Kazi to the original plaintiff. At this stage it does not require any interference. 3. The suit is not barred by Law of Limitation as the controversy is not between the muslims, but Jankabai being one of the party. The suit will be within limitation, as the action is initiated within two years. 4. The Hon'ble Lordships of Apex Court in the matter of The Board of Muslim Wakfs, Rajasthan v. Radha Kishan (AIR 1979 S. 5 C. 289) have observed, where a stranger who is a non-Muslim and is in possession of a certain property his right, title and interest therein cannot be put in jeopardy merely because the property is included in the list published by the Wakf Board. Consequently, the action initiated by Jankabai was within the limitation. The point No. 4 formulated on 02nd May, 2008, is in fact subject in the Writ Petition 5157 of 1996 titled as Mohd. Salimoddin S/o Nijamoddin Vs. State. 5. In the light of above scenario, the Second Appeal sans merit. It is rejected, however rights accrued to the Wakf Board if any, shall be independently dealt by it. [ K. U. CHANDIWAL, ] JUDGE bsb/June09/SA 03.90