1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO.1073 OF 2004 Rashid Khan s/o Gulzarshah Appellant Versus Marathwada Wakf Board, Panchakki, Aurangabad others Respondents Mr.S.K.Kulkarni, advocate for the appellant. Mr.G.R.Syed, advocate for Respondent No.1. Mr.P.P.More, A.G.P. For Respondent No.3. Mr.S.M.Gunjal, advocate for Respondent No.5. CORAM: R.M.BORDE, J. DATE : 08th October, 2009. P.C.: 1 This is an appeal by original plaintiff raising challenge to the concurrent judgments delivered by both the Courts below. 2 Plaintiff instituted suit claiming declaration of title and injunction against the defendants. According to the plaintiff, one Gulzar Shah, great grand father of plaintiff was owner and possessor of open space along with house, which comprises CTS Nos.9080, 9080/1, 9080/2, 9080/3 and 9081 to 9090, situate at Town Hall, Jalna. According to the plaintiff, there is a family graveyard or kabrastan of the plaintiff bearing CTS No.9080 admeasuring 100 feet x 50 feet. Plaintiff contends that the property was succeeded by descendant of Gulzar Shah. After demise of Gulzar Shah, his son Ramazan Shah became owner of the property. Some construction was raised by 2 Ramazan Shah on the portion of open space and was residing there. According to him, open space of 50 feet East-West and 100 feet in North- South was left by Ramazan Shah for utilising same as family graveyard. Plaintiff, thus, claims that property bearing CTS No.9080 is a family graveyard or kabrastan and is not a public graveyard. Defendants No.1 and 2 having no interest in respect of the property, claimed same on the basis of publication made in the Government Gazette showing the property belonging to Wakf Board. In fact, according to the plaintiff, there is no such transfer of property by Gulzar Shah to Wakf Board for utilising same as public graveyard. According to the plaintiff, subordinate officials of Wakf Board issued notice making allegation that CTS No.9080 is a Government property and plaintiff has made encroachment thereon and had directed him to remove the same. In fact, the property is not Government property and is belonging to the family of plaintiff. Plaintiff, as such, approached the Court claiming declaratory relief as well as injunction. 3 Defendants appeared and resisted the suit by filing written statement. According to Wakf Board, the disputed property is not the family kabrastan or graveyard and is not having CTS Nos.9080/1, 9080/2 and 9080/3. In fact, property bearing CTS No.9080 is one property and said property cannot be claimed by the plaintiff as a private graveyard. Defendants have admitted that plaintiffs are owners of the property bearing CTS No.9083. However, claim raised by the plaintiff in respect of CTS No.9080 claiming same to be private graveyard is not sustainable. Same is public graveyard and entry to that effect is recorded in municipal as well as city survey record. 4 Considering the contentions raised by the rival parties, trial Court framed issues and after receiving evidence led by the parties, 3 recorded a finding that the plaintiff has failed to prove that disputed property is a family graveyard and is belonging to the family of plaintiff. The suit presented by plaintiff, thus, came to be dismissed. The judgment and decree passed by the trial Court was subjected to challenge at the instance of plaintiff in Regular Civil Appeal No.89/1993, which came to be heard and disposed of by Additional District Judge, Jalna, who was pleased to dismiss same by judgment and decree dated 19.10.2000. 5 I have perused the judgments delivered by both the Courts below. Plaintiff claims that the disputed property, is a family graveyard, belong to his forefathers, however, there is no evidence, documentary or otherwise to reach the conclusion that property admeasuring 100 feet x 50 feet bearing CTS No.9080 is a part of residential property, which is given separate city survey number and same belongs to the plaintiff. It has been observed by the Courts below that in 1975, there was revision taken by the city survey office in respect of the properties situate at Jalna. During the inquiry conducted by city survey officials, it was found that neither plaintiff nor his forefathers were occupying the disputed portion, which is claimed by them as a private graveyard. It appears that in 1981, on the basis of certain applications made by plaintiff, the city survey authorities recorded name of the plaintiff in the record. However, the entry appears to have been made by the city survey officials in 1981 solely on the basis of affidavit tendered by the plaintiff. The entry taken in 1981, reversing earlier entry of the year 1975 was, therefore, rejected by the authorities and the position prevailing in 1975 was restored. The Courts below have considered all these aspects and on appreciation of evidence, oral as well as documentary, have recorded a finding that the plaintiff has failed to substantiate his case in respect of his entitlement to the property bearing CTS No.9080 admeasuring 100 feet x 50 4 feet, which is claimed by the plaintiff as a private graveyard. There is also no evidence to demonstrate that the open space claimed by the plaintiff is part of residential premises, entry of which, is recorded in his name in the city survey record. In the absence of any cogent evidence in support of case of the plaintiff, the Courts below were justified in dismissing the suit presented by plaintiff. The findings of facts recorded by the Courts below need not be interfered in exercise of power under Section 100 of the Code of Civil Procedure. No substantial question of law arises for consideration in the appeal. 6 Appeal, therefore, stands dismissed. (R.M.BORDE) JUDGE ******* adb/sa107304 5 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL APPLICATION NO.3971 OF 2009 WITH CIVIL APPLICATION ST.NO.5185 OF 2009 IN SECOND APPEAL NO.1073 OF 2004 Rashid Khan s/o Gulzarshah Applicant Versus Marathwada Wakf Board, Panchakki, Aurangabad others Respondents Mr.S.K.Kulkarni, advocate for the applicant. Mr.G.R.Syed, advocate for Respondent No.1. Mr.P.P.More, A.G.P. For Respondent No.3. Mr.S.M.Gunjal, advocate for Respondent No.5. CORAM: R.M.BORDE, J. DATE : 08th October, 2009. P.C.: These are applications for bringing on record legal heirs of deceased Respondent No.6 as well as for condonation of delay of four months occurred in presenting the application for said purpose. Heard learned Counsel for respective parties. For the reasons stated in the applications, applications are allowed. Delay occurred in presenting application for bringing on record legal representatives of deceased Respondent No.6 is condoned. Legal representatives of deceased Respondent No.6 are permitted to be brought on record. Record be amended accordingly. Both the applications stand disposed of. (R.M.BORDE) JUDGE ******* adb/sa107304