C.R.A.No.216 of 2011 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.216 OF 2011 Suresh s/o Govindrao Patil and anr. ..Applicants Versus Hyder s/o Chandsab Momin and ors. ..Respondents Mr A.A.Nimbalkar, Advocate holding for Mr V.D.Salunke, Advocate for applicants Mr S.S.Kazi, Advocate for respondent Nos.1 and 2 Mr S.B.Khan, Advocate holding for Mr M.B.W.Khan, Advocate for respondent No.3 CORAM : K.U. CHANDIWAL, J. DATE : 23rd November 2011 PER COURT 1. Heard extensively and finally. 2. Grant of injunction in Wakf Suit No.80/2010 by order dated 23.8.2011 in an application below Exh.5 is questioned by the revision applicant. 3. Respondents (original plaintiffs in Wakf Suit) canvassed that there existed a graveyard in land old S.No.102 Gut No.333 of village Nitur, Taluka Nilanga, which has been disputed by the revision applicant claiming that there cannot be such graveyard as the graveyard even if exist was in land Gut No.101, supported by Government gazette of 1980 and the Dargah which was in existence in land S.No.102 (Gut No.333) was confined in an area of one guntha. The learned Counsel for the C.R.A.No.216 of 2011 2 revision applicant, by inviting my attention to a panchnama dated 12.10.2010 submits that the activities of burial of a corps has been taken in a standing crop in land Gut No.333 which was rightly objected to by revision applicant, as it was not a demarcated area treating to be a graveyard. Learned Counsel for the applicant asserted that activities of these Holyguns is mischievous and is causing tranquility and disturbance of the order in the village. By placing on record Notification dated 24.4.1980 in respect of Ashoor Khana Chilla, Dargah Hussain Shah Qadri, Dargah Mehboob Shah Wali, Graveyard Chilla Nasir Jang, the learned Counsel for the revision applicant submits that it is in village Nitur and it is certainly in compass land Survey No.101, which covers an area of two acres. 4. The learned Counsel for the respondents (original plaintiffs) submits that the document showing existence of Ashoor Khana Chilla dated 24.4.1980 is not depicting correct position, as it has alterations created adding of Survey No.101 by ink as graveyard confined in particular area. Learned Counsel submits, it is a matter of record, land Survey No.101 is under government supervision and Ek-Sala lavani is regularly effected by auction for the purposes of cultivation. Learned Counsel by giving reference to the government Notification dated 24.4.1980, particularly at Serial No.29 of village Nitur submits that the Dargah Peer Syed Abdeullah Shah and graveyard area two acres will C.R.A.No.216 of 2011 3 have to be read distinctively, as the Dargah in land Survey No.102 associated with graveyard. Learned Counsel refers to copy of Kad- patrak of village Nitur. At Serial No.99 therein, reference of Survey No. 102 as Dargah is shown and in the last column, it is written in Marathi that in the Potkharab field there is Dargah of Syed Abdul and also Chilla associated as graveyard of community of Muslims. This document, according to the learned Counsel is of way back 1354 fasli (corresponding to 1945 A.D.). 5. Learned Counsel submits, injunction is in force from 4.12.2010 and needs no disturbance. He has shown willingness to proceed with the on going litigation expeditiously in a time frame. 6. On hearing both the learned Counsel, the point arise for consideration is, “Whether the order of learned Presiding Officer of the Wakf Tribunal dated 23.8.2011 granting injunction calls for interference and whether the order is bad in law for want of proper appreciation of prima facie evidence ?” My answer to these point is, the order does not call for interference. It cannot be said to be associated with non application of mind or non appreciation of prima facie documents. 7. The documents referred by the learned Counsel for the respondents indeed is seen flowing in material particulars in paragraph 16 C.R.A.No.216 of 2011 4 of the order. The learned Presiding Officer has also discussed in paragraph 22 of the order about the flaw and ripples created by the revision applicant by restriction in the area of Dargah in land Survey No. 102 to the extent of one guntha. He has categorically informed that the necessary original documents are not produced by the revision applicant for evaluation of such incorporation of one guntha. He naturally did not believe such area of Dargah to be one guntha, at prima facie stage I find substance in it. 8. There cannot be a quarrel that once a Wakf is always a Wakf. The dedication for Kabrastan always remains same for same purpose even the non user does not extinguish the nature of existence of Kabrastan. The reference to newspaper in the order even if excluded from consideration, the fact remains before the learned Presiding Officer there was ample revenue record which had the presumptive value. He has also browsed to Form No.9 maintained under the Prevention of Fragments and Consolidation of Holdings Act, 1947. At Exh.3/13, there was certified copy, which mentions existence of Abdul Shah Dargah in Survey No.102 (Gut No.333). However, as stated earlier, the revision applicant surreptitiously interpolated one guntha and produced evidence of Exh.3/14. The learned Presiding Officer, was also equipped with papers of Regular Civil Suit No.268/2009 filed by the defendant, wherein the application for grant of temporary injunction was rejected and suit was C.R.A.No.216 of 2011 5 ultimately withdrawn on 6.12.2010. Adding Survey No.101 by ink for existence of Chillah, Ashoor Khana etc. in Government gazette will not diagnose it for land Gut No.101. 8. Taking survey of above facts, I do not see any reason to interfere with the order questioned, as it is in tune with the available record. Civil Revision Application lacs merit. Dismissed. The hearing of the pending suit before the Presiding Officer, Wakf Tribunal is expedited. Observations of this Court being prima facie in nature, should not be weighed while deciding the pending suit. ( K.U. CHANDIWAL, J. ) (vvr/216.11.cra)