(1) IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AT AURANGABAD. SECOND APPEAL NO. 172 OF 2005 Syed Kashim Syed Ismail, Age : 50 years, Occupation : Business, .. Appellant R/o. Ashti, Taluka : Ashti, (Original defendant District : Beed. no.1. ) versus 1. Mohamad Moijoddin Mahamad Immamoddin, Age : 55 years, .. Respondents Occupation : Agriculture, (No.1 - Original R/o. Kasbe Ashti, plaintiff, Taluka : Ashti, & District : Beed. No.2 - Original defendant 2. District Wakf Board Officer, no.2) (Killa) Beed, Dist. Beed. ....................... Mr. Bhushan B. Kulkarni, Advocate, for the appellant. Ms. A.N. Ansari, Advocate, for respondent no.1. Mr. K.G. Khader, Advocate, for respondent no.2. ........................ (2) CORAM : K.U. CHANDIWAL, J. DATE : 24TH MARCH 2010 COURT'S ORDER : 1. The original defendant no.1, being dissatisfied with judgment dated 29-11-2004, recorded by the learned VIIth Ad hoc Additional District Judge, Beed, in Regular Civil Appeal No. 172 of 1999, is in the Second Appeal. 2. Mr. B.B. Kulkarni, learned Counsel appearing for the appellant. submits, by virtue of provisions of Section 85 of the Wakf Act, 1995, the jurisdiction vests with the Wakf Tribunal, consequently, suit in Civil Court could not have been filed. Secondly, notice mandating two months period, in terms of Section 89 of the said Act, is also not adhered to and hence according to him, it projects a substantial question of law. 3. Few facts, essential to adjudicate the contentions, are narrated. The subject matter of the appeal is a graveyard in use being land Survey No. 921 admeasuring 1 Acre 20 Gunthas situated at village Ashti. It is a Wakf property for which there is no controversy. It has been so notified even in Government Gazette. The plaintiff asserted, he being a president of local Muslim community, was taking care of the religious activities including the properties. He filed the suit having learnt that the (3) defendant no.2 in spite of knowledge, that it is a graveyard of Muslim, let out open land admeasuring 20 feet X 20 feet to the defendant no.1 (appellant) and others. 4. The defendant no.1 (appellant) canvassed, though it was a graveyard of Muslim community of Ashti, however, he has been legally put in possession due to which he erected basement for installing a xerox business based on the lease agreement for 11 months by the Wakf Officer, dated 10-8-1993 (Exhibit 73). 5. The contention, that such lease though was for a period of 11 months and could be extended for three years, as observed by the learned Civil Judge (Junior Division) in paragraph 12 of the judgment, is apparently contrary to the record. Even otherwise, by efflux of time the very purpose and period of so called lease is extinguished. 6. The Wakf property is a graveyard, not yet abandoned, from its status. This Wakf has been systematically tried to be nibbled like roddents for personal use by interested persons ignoring interest of community at large. The action of the plaintiff, though could be branded not of an interested person, certainly was in the interest of the Wakf to protect. Blind eyes showered by the Wakf Officer by itself will not (4) tentamount that his action should be a claimed to be a legal acceleration of rights. The defendant no.2 certainly erred in transgressing his rights bestowed in him. That apart, the property being apparently misused, would certainly attract provisions of Civil Code, though the question of Wakf being projected, since it is not a question relating to decision of Wakf but it relates to obliteration of Wakf property. The objection of non-issuance of notice under Section 89 would be in the event, the controversy rests with the Board, however, the illegality was by the defendant no.2, the Wakf Officer, which did not warrant issue of notice. 7. In the result, the Second Appeal is sans merit. No substantial question of law could be projected. Hence, the Second Appeal is dismissed. 8. Copy of this order be sent to the Chief Officer, State Board of Waks, Panchakki, Aurangabad, to look into other identically placed matters of allotment by defendant no.2 swindling and circumventing the status of Wakf property. ( K.U. CHANDIWAL ) JUDGE ......................... bgp/sa172