Sri M.A. Alfatha and Others vs Karnataka State Board of Wakf

A.S. Bopanna, J.—The petitioners are before this Court assailing the order dated 17.06.2013 passed by the Karnataka Wakf Tribunal, Bangalore on I.A. No. 1/2013 in O.S. No. 6/2013. The petitioners herein are before the Wakf Tribunal in a suit filed in O.S. No. 6/2013 wherein the plaintiffs therein have sought for declaration of title by adverse possession and also for the relief of perpetual injunction to restrain the defendant from causing interference. In the said suit, an application under Order 39 Rule 1 & 2 of the CPC was filed seeking temporary injunction pending consideration of this suit. The said application is dismissed. Aggrieved by the same, the petitioners are before this Court.

A perusal of the order impugned would disclose that the Court below has rejected the application after referring to certain non-compliance relating to the issue of notice u/s 89 of the Act and also with regard to the issue raised by the defendants with regard to the maintainability of the suit. Though the learned counsel for the petitioners while assailing the order would refer to the same to contend that the Court below was not justified, the learned counsel for the respondent would seek to sustain the order passed by the Court below.

On behalf of the respondent, it is contended that when the Court below has taken note of the rival contentions and has arrived at a conclusion that in the present circumstance, the interim order as prayed could not be granted, the said order is justified and does not call for interference. In the light of the same, all that is necessary to be noticed is that the observation of the Court below that no notice had been issued u/s 89 of the Act is not the correct position in as much as in the present facts, the notice dated 07.01.2013 has been issued and the Respondent/Board has received it on 15.02.2013. Be that as it may. What is also necessary to be noticed is that though the Tribunal has made certain observations with regard to the maintainability of the suit, the said aspect in any event would be considered by the Tribunal by raising such questions for consideration. The issue, at this juncture is only as to, till the suit is disposed of, whether any interim order as prayed was required to be granted? To that extent, the documents relied on by the petitioners would indicate the electricity bills being paid and the construction license also being issued. In any event, the correctness of the said documents would be considered by the Court below while referring to the evidence that would be tendered in so far as the case put forth by the plaintiffs before the Tribunal claiming right by adverse possession. For the present, when the Court below itself observed that the physical possession of the suit property alone is not sufficient to consider the application, in such event, the possession noticed to the said extent would have to be considered as prima facie and protected till the suit is disposed of. Hence, the order dated 17.06.2013 is modified. The parties are directed to maintain status-quo with regard to possession. The nature of the property existing as on today shall not be altered any further by the petitioners.

In terms of the above, the petitions stand disposed of.

The observations made herein is limited to disposal of these petitions and the Tribunal while considering the suit shall assess the evidence available on record and any of the observations shall not weigh with the Tribunal while disposing of the suit.