Hussainbashya vs The Secretary Karnataka State

H. Billappa, J

In this writ petition filed under Articles 226 and 227 of the Constitution of India, the petitioners have called in question the order dated 30.06.2014 passed by the Wakf Tribunal, Belgaum in K.W.T./BJR/SR/OS. No. 1/2011 on I.A. NO. 4 vide Annexure-G.

By the impugned order at Annexure-G, the Wakf Tribunal, Belgaum, has rejected I.A. No. 4 filed by the petitioners for appointment of the Court Commissioner to report the existing situation and things like mosque etc., in the suit property.

Aggrieved by that, the petitioners have filed this writ petition.

Briefly stated the facts are;

The petitioners have filed suit in K.W.T./BJR/SR/O.S. No. 1/2011 for declaration and consequential permanent injunction. The parties have adduced their evidence. At that stage, the petitioners have filed I.A. No. 4 to appoint the Court Commissioner to report the existing situation and things like mosque, etc. in the suit property. The Trial Court by its order dated 30.06.2014 has rejected I.A. No. 4. Therefore, mis writ petition is filed.

The learned counsel for the petitioners contended that the impugned order cannot be sustained in law. He also submitted that the specific case of the petitioners is that the suit property is a grave yard. The respondents have contended that the suit property is not a grave yard. There are Ayurvedic Medical College, hostel, play ground, herbal farm etc. in the suit property. Therefore, to ascertain the existing situation appointment of the Court Commissioner was required. Therefore, the impugned order cannot be sustained in law.

As against this, the learned counsel for the respondent No. 6 contended that the impugned order does not call for interference. He also submitted that the Wakf Tribunal taking into consideration that it is for the plaintiffs to prove their case by adducing acceptable evidence has rejected the application. He has also submitted that the Court Commissioner cannot be appointed to collect evidence. The petitioners must prove their case. Therefore, the impugned order does not call for interference.

I have carefully considered the submission made by the learned counsel for the parties.

The point that arises for my consideration is:

"Whether the impugned order calls for interference?

It is relevant to note, the suit in K.W.T./BJR/SR/O.S. NO. 01/2011 has been filed by the petitioners for declaration that the suit property is a grave yard. It is used to bury the dead bodies of Muslim Community. The respondents have denied it. They have contended that there are Ayurvedic Medical College, hostel, play ground, herbal farm etc. in the suit property. The parties have adduced their evidence. At that stage, the petitioners have filed I.A. No. 4 to appoint the Court Commissioner to report the existing situation. Having regard to the nature of controversy namely, the petitioners contend the suit property is a grave yard and the respondents contend that there are college buildings, hostel, play ground etc., in the suit property, it is appropriate to appoint the Commissioner to report the existing situation in the suit property. It would facilitate the court for better appreciation of the evidence on record. In that view of the matter, the impugned order cannot be sustained in law.

Accordingly, the writ petition is allowed and the impugned order passed by the Wakf Tribunal in KWT/BJR/SR/OS. No. 1/2011 on I.A. No. 4 is hereby set aside. I.A. No. 4 is allowed as prayed. The parties can file their memo of instructions before the Wakf Tribunal, Belgaum.

The Trial Court can direct the Court Commissioner to submit the report at the earliest.