Dargah Hazrat Safdar Ali Shah vs Umesha and Others

A.S. Bopanna, J—The petitioner is before this Court assailing the order dated 2.4.2011 passed in M.A. No. 74/2008, impugned at Annexure-''L'' to the petition.

The petitioner which is a Wakf institution had instituted proceedings against Shri Umesha, seeking to evict him from the premises in question. During the proceedings, the said Shri Umesha expired. The legal representatives, namely, wife and children of Shri Umesha are agitating the matter. Against the eviction order dated 9.9.2008 passed by the Competent Authority, they had accordingly filed the appeal in MA. No. 74/2008. The Appellate Judge while taking note of the rival contentions has arrived at a conclusion that the denial of an opportunity of cross-examination of the witnesses examined on behalf of the petitioner Wakf has vitiated the proceedings and as such has remitted the matter to the Competent Authority to redo the matter, after providing opportunity to the respondents to cross-examine the witnesses. While so remanding the learned Appellate Judge has also ordered that if there is a dispossession of the appellants, therein or if any articles of the appellants are removed by the respondents from the schedule premises, then they are directed to be restored with the possession and the proceedings be held in accordance with law. The petitioner claiming to be aggrieved by the same is before this Court.

Heard the learned counsel for the parties and perused the petition papers.

Though the contention has been urged in this petition, assailing the very order of remand, the grievance essentially is with regard to the restoration of the possession being ordered, since the petitioner contends that during the pendency of the proceedings before the Appellate Judge, the possession has already been taken by the petitioners.

In that light, a perusal of the judgment passed by the court below would indicate that a detail consideration has been made with regard to the rival contentions. One of the contentions which had been put forth by the appellants therein was also that the property in question is not a portion of the Wakf property, as claimed by the petitioner herein. To contend that the said question would not be open to be agitated, the learned counsel for the petitioner has made reference to the order dated 11.6.2001 passed in W.A. Nos. 907-908/2001, wherein the Division Bench of this Court has taken note of similar contentions and has held that it would not be open for the appellants therein to contend, at that stage, that the property is not a Wakf property. The said order in fact has also been referred to by the learned Appellate Judge and in that light has taken note of the fact that the parties to the said proceedings are not same as parties to the instant proceedings. The nature of the claim as made by respondent No. 1, herein was therefore taken into consideration and in that light on taking note of the contention that as to whether the portion which is in the occupation of respondent No. 1 herein is also a part of the Wakf property, has arrived at a conclusion that this aspect has not been appropriately considered by the Competent Authority, more particularly in a circumstance where respondent No. 1 herein did not have the appropriate opportunity to cross-examine the witnesses. In that regard, the fact that the witnesses had not been cross-examined and also the fact that the predecessor of respondent No. 1 had died during the said proceedings, cannot be in disputed. If that be the position, to the extent of lower Appellate Judge coming to the conclusion, the matter requires reconsideration after permitting respondent No. 1 herein to cross-examine the witnesses is justified and same would not call for interference.

In that light, the question that would arise is as to whether the lower Appellate Judge was justified in directing the petitioner herein to put respondent No. 1 in possession, if they have been dispossessed or any articles belonging to them had been removed. As noticed the contention urged before the Competent Authority as well as the lower Appellate Judge by respondent No. 1 herein was that the property to which a claim had been made to evict respondent No. 1 herein was not a portion of the Wakf property. Further the consideration of the lower Appellate Judge was also that even if ultimately, it was held as a Wakf property the manner in which the occupation has been terminated, was also the question which should have been taken note by the Competent Authority. Therefore, these aspects of the matter has to be considered by the Competent Authority and when the lower Appellate Judge on detail reasoning had arrived at such conclusion the natural corollary would be that the position relating to possession to the property that existed as on the date of order passed by the Competent Authority, would have to continue till the matter is reconsidered by the Competent Authority and fresh orders are passed. If that be so, the lower Appellate Judge, in fact, was justified in directing that the possession of respondent No. 1 be continued till the decision is ultimately taken by the Competent Authority. Therefore, I see no reason to interfere with the order passed by the lower Appellate Judge.

Having arrived at the above conclusion, the submission made by the learned counsel for respondent No. 2 is also to be taken note of. Section 83 of the Wakf Act has been amended, wherein a provision has been incorporated with regard to the eviction of tenants, as well. Therefore, in the circumstance where the matter has been remanded to the Competent Authority, the Competent Authority shall take note of the provision also and thereafter proceed further in accordance with law depending on the circumstances arising in this case as per the decision of the Competent Authority.

In terms of the above, the petition stands disposed. In view of disposal of the petition, Misc. Cvl. No. 8660/2011 also stands disposed of.