1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 618 OF 1977 1. Azimuddin S/o Fakruddin R/o Nagina Masjid, Nawabpura, Aurangabad. 2. Salimuddin S/o Fakruddin R/o as above. 3. Kalumuddin S/o Fakruddin R/o as above. 4. Shamimuddin S/o Fakruddin R/o as above. 5. Fahimuddin S/o Fakruddin R/o as above. 6. Shahnaz Begum D/o Fakruddin R/o as above. 7. Parvez Begum D/o Fakruddin R/o as above. 2 8. Parvin Begum D/o Fakruddin, minor R/o as above. guardianship of her real mother Asmatunnisa Begum, described at serial no.10. 9. Mehbub Begum (since deceased) left one daughter 9-A Samdani Begum W/o Miyanjani 10. Asmatunnisa Begum W/o Fakruddin R/o Nagina Masjid, Nawabpura Aurangabad. (Legal Representatives of original plaintiff ) 11. Maharashtra State Board of Waqf Panchakki, Aurangabad Appellants V E R S U S 1. Sugrabi W/o Sheikhlal R/o Police Colony, H.No.74, Behind Cotala Colony,Aurangabad. 2. Shahzadi Begum W/o Syed Mohammad R/o as above. 3. The State of Maharashtra Respondents 3 ------------------------------------------------------------------------------------------------- Mr. K G Khader, Advocate for Appellants. Mr. Rahul P.Dhase , holding for Shri. A.H.Vaishnav for respondent no.1 . Mr. A .M. Dabir , Counsel for Respondent no.2 Mr. T.V.Tele . A .G.P. for Respondent no.3 . ------------------------------------------------------------------------------------------------ ( CORAM : V.R.KINGAONKAR,J.) Date of Judgment Reserved : 15/07/2009 Date of Judgment Pronounced : 18/07 /2009 JUDGEMENT 1. Challenge in this appeal is to Judgment rendered by learned District Judge, Aurangabad in Regular Civil Appeal No.180 of 1973 whereby and whereunder the Judgement and Decree passed by the learned Civil Judge (J.D.) in Regular Civil Appeal No.290/1969 came to be reversed and thus the plaintiff ’s suit has been dismissed. 2. The appellants are legal representatives of deceased plaintiff. The respondent no.1- Sugrabi is the original defendant. The suit was filed by deceased Syed Shah Fakruddin in his capacity as Mutawalli 4 and Sajjada Nashin of Dargah Hazrat Syed Shah Fakhrul Aulia Termezi, mohalla Kotwalpura, Aurangabad. 3. The suit was for recovery of possession of disputed plot admeasuring 27 ft.X 16 ft. shown in red colour in the plaint map. The plaintiff’s case, stated briefly, is that the suit plot is part and parcel of land originally bearing survey no.96. The land survey no.96, admeasuring 3 acres 35 gunthas , is dedicated to the Dargah called “ Dargah Hazrat Syed Shah Fakrul Aulia, Termezi.” The dedication was made a way back in order to secure performance of religious services to the said Dargah. He and his forefathers were in possession of the said land i. e. survey no.96. The defendant, without any right or concern, entered into possession of the disputed plot in 1967. Her possession is that of a trespasser being unauthorized. Consequently, the deceased plaintiff sought recovery of possession of the suit plot from the defendant/respondent no.1. 4. By filing her written statement (Exh.10) the defendant resisted the suit. She submitted that she had no knowledge whether the land survey no.96 is property of the Dargah and that deceased plaintiff Syed 5 Shah Fakruddin was the Mutawalli thereof. She alleged that she purchased the house property which is standing on the suit plot, from previous owner, by name, Mehboobbi W/o Abdul Raheman. Thus she is a bonafide purchaser for valuable consideration. She contended that her possession is not unauthorized or that of trespass but is of owner. Thus, she denied title of the deceased plaintiff inrespect of the suit plot and sought dismissal of the suit. 5. The trial Court decreed the suit on basis of material place on record. The first Appellate Court however reversed the Judgment and Decree of the trial Court and dismissed the suit. Hence the second appeal. 6. Before I proceed to consider rival submissions, let it to noted that no substential question of law was formulated when this appeal came to be admitted. The then Hon’ble Judge ( Shimpi J.) passed order: “ admit ”on 29/09/1977. The second appeal can be entertained only when the substential question of law exists and is formulated. Otherwise, such appeal would be outside the scope of Section 100 of 6 Civil Procedure Code. Any other substential question of law can be however framed when already there is some substential question of law formulated, in view of Sub Section (5) of Section 100 of the Civil Procedure Code. In the absence of any substential question of law formulated originally when the appeal was admitted, now, it is difficult to formulate any such question in the exercise of powers available under Sub Section (5) of Section 100. 7. Mr.Khader would submit that the learned District Judge committed patent error while allowing the appeal by misreading the admissions of the plaintiff's witness and the misconstruction of document Exh.68. He would submit that when the entry of land survey no.96 is recorded in the Waqf register ( Kitabul Awakf) then it ought to have been held as conclusive proof about ownership of the said land being with the Dargah. He would submit that impugned judgment is otherwise bad in law because points for determination were not raised as contemplated vide Order 41 Rule 31 of Civil Procedure Code. He seeks to rely on “ Dilip Vishnuji Kolte and others V/s Dattatraya Babuji Peche and other '' 2008 (6) Mh.L.J.150. Mr. Dabir and Mr.Dhase , however, contended that the Judgments rendered by the first appellate Court are based on available material and are only the findings of facts 7 without any involvement of question of law and as such the second appeal is liable to be dismissed. They support the impugned judgment . 8. I shall proceed on assumption that substantial questions of law enumerated herein below are involved in this appeal. (i) Whether in the facts and circumstances of the present case the impugned judgment rendered by the first appellate Court is patently erroneous because admission of the plaintiff's witness is mis-interpreted and that the learned District Judge did not appreciate the entries in the waqf register in appropriate manner ? (ii) Whether in the facts and circumstances in the present the impugned judgment is liable to be interfered with in as much as it is not in keeping with the provisions of Order 41 Rule 31 of the Civil Procedure Code ? 9. So far as the objection regarding non compliance of Order 41 Rule 31 of C .P. C. is concerned, I find that though no specific caption 8 was given and the points were framed for determination yet the learned District Judge seems to have considered the three contentions raised by the learned advocate for the respondent no.1 ( defendant ). The learned District Judge dealt with each of the argument advanced on behalf of the respondent no.1 (defendant). Needless to say the learned District Judge treated the contentions raised on behalf of the respondent no.1 as points for determination. The learned District Jude observed in paragraph 7 of the impugned Judgment as below :- “ Material issue or question which has to be answered in the appeal and suit is, whether the property in disputed is part and parcel of survey no.96 or otherwise .” 10. It was after raising such question that the learned District Judge proceeded to deal with the said point and appreciate the evidence on record. In other words, the points to be determined were spelt out during course of discussion and there is compliance of Order 41 Rule 31 of the Civil Procedure Code in substance though not in the form. 11. Indeed, the crux of the problem is whether the suit plot is proved to be part and parcel of land survey no.96. There is no dispute about 9 the fact that the respondent no.1 (defendant) is not owner of any part of survey no.96. She claims to be bonafide purchaser of the house property which was already standing on the suit plot and was in possession of her vendor. The case of the deceased plaintiff is that the suit plot is encroached over and therefore he was entitled to claim possession being owner of land survey no.96. The first appellate Court came to the conclusion that the land survey no.96 is property of Dargah. The extract of register called “ Kitabul Awakaf “ was produced at Exh.61. The said extract reveals that land survey no.96 comprises of 3 acres 28 gunthas and there are Dargah, mosque, graves, tombs ,12 Nuzuli houses standing therein. The deceased plaintiff was recorded as Mutawalli of the Dargah. 12. What is held by the learned District Judge is that without fixing correct boundaries of land survey no.96 it was difficult to assume that the suit plot is part and parcel of the said land. The deceased plaintiff adduced evidence of P W 4 Shri. Wanegaonkar in support of measurement map. Admittedly, P W 4 Shri. Wanegaonkar is not a cadestral surveyor, or expert having due knowledge of methodology of measurement of the lands. He is draftsman and was previously employed as such in the public works department. The learned District 10 Judge held that the survey work is of more technical nature. Though P. W. 4 Wanegaonkar stated that he had seen tounch map yet has rightly not referred to such basis for the measurement. The copy of the tounch map was not produced on record by the deceased plaintiff. As stated earlier, the land survey no.96 comprises of Tombs, Dargah, Mosque and 12 Nuzuli houses . Therefore the map should have been prepared to indicate the area covered by such houses etc. The version of a tracer, is not worthy of significance unless he had knowledge of measurement on basis of original tounch map . 13. The learned District Judge appreciated evidence of P. W. 4 Wanegaonkar. He notices several deficiencies in the version of P W 4 Wanegaonkar . He reached conclusion that the measurement carried out by P W 4 Wanegaonkar could not be regarded as reliable. It is chiefly because of such reason that the correctness of the measurement map was found unacceptable and hence the learned District judge held that the disputed plot was not proved to be part and parcel of land survey no.96. As rightly contended by learned Advocate Mr.Dabir, the findings recorded by the learned District Judge are the findings of fact. No substantial question of law as such is involved. Even assuming that the two questions referred to herein 11 above can be raised as substantial questions of law then also I find it difficult to hold that the impugned judgment is erroneous. The learned District Judge duly considered the recitals of copy of said survey record (Exh.68) and the entries in the Shetwar Patrak ( Exh.65). True, the entries in the waqf register could be treated as final. It can be gathered that the land survey no.96 is property of the Dargah of which deceased plaintiff was Mutawalli. The contentious issue is whether the suit plot is proved to be part and parcel of land survey no.96. The finding of fact reached in this behalf, by the first appellate Court , is based on material. Under these circumstances, there appears no merit in the second appeal. 14. In the result , appeal is dismissed with no order as to costs. ( V.R. Kingaonkar) Judge DSP/ SANo.618 of 1977