# Waqf Madarsa Qasimul Uloom v. State of U.P. & Ors

- **Citation:** (2025) 5 ILRA 1614
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-12
- **Case number:** Matters Under Article 227 No. 2495 of 2016
- **Bench:** Rohit Ranjan Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/waqf-madarsa-qasimul-uloom-v-state-of-u-p-ors-53306
- **Pages:** 8

## Headnote

Civil Law-The Constitution of India, 1950Article 227 - The Code of Civil Procedure,
1908- Order VI Rule 17 - The Waqf
Act,1995-Sections 3(a), 3(r) & 3(s))---
Petition
challenging
the
order
allowing
amendment application
of
defendants
for
amending
their
written
St.ment---Entire
constructions, which has been raised by the
plaintiff, stands upon the land of National
Highway No.73 and in the garb of waqf
property, the petitioner is claiming right. The
defendants had rightly moved amendment
application for amending the written St.ment on
the ground that it is the National Highway
Authority, who is the owner of land in question
as the constructions are standing over the
National Highway No.73 which does not belong
to the plaintiffs---The plaintiff has made
construction over the land of National Highways
and had let out the structure to different
persons and is realizing the rent treating it to be
property of waqf Madarsa. It cannot be said to
be a case of 'waqf by user' as the owner of the
property in dispute is the National Highway
Authority of India, which is under the control of
Central Government, Ministry of Road Transport
and Highways.

Petition dismissed. (E-15)

List of the cases referred-:

Hiralal Vs Kalyan Mal & ors. 1998 AIR (SC) 618

## Text

1614 INDIAN LAW REPORTS ALLAHABAD SERIES
for the appellant, the said annexure is said
to be taken as an "additional evidence" as
provided under Order 41, Rule 27 of
C.P.C., the fact would remain that nowhere
does the affidavit indicate that the learned
trial court has refused to admit the
annexure as an evidence or notwithstanding
exercise of due diligence by the appellant,
he could not get hold of annexure 1 and
neither is the said annexure accompanied
by the application under the said provision
for treating annexure 1 to be an additional
evidence and consequently, this Court is
not impressed with the argument of the
learned counsel for the appellant for
treating annexure 1 filed along with
application of stay as an additional
evidence.

24. In this regard, it would be apt to
refer to the judgments of the Hon'ble
Supreme Court in the case of Sanjay
Kumar Singh vs. State of Jharkhand
2022 (7) SCC 247, Shivajirao Nilangekar
Patil vs. Dr. Mahesh Madhav Gosavi &
Ors. 1987 (1) SCC 227, Jagdish Prasad
Patel(D) Thr. Lrs. vs. Shivnath 2019 (6)
SCC 82 and Union of India vs. Ibrahim
Uddin & Another 2012 (8) SCC 148.

25.
However,
considering
the
insistence on the part of learned counsel for
the appellant to consider the said document,
the Court proceeds to consider the said
document also.

26. So far as the document which
has been filed along with the appeal is
concerned, which is said to be the
verification from the Transport Authority
Hamirpur,
it
emerges
that
the
said
verification does not pertains to the driving
license which has been filed before the
learned Tribunal i.e. having driving license
No.9112003573.
27.
Learned
counsel
for
the
appellant has also failed to indicate as to
how the aforesaid verification can be
related with the driving license which had
been filed before the learned Tribunal and
thus, in absence of any evidence being led
before the learned Tribunal of the driving
license filed before it of Shri Hori Lal
being fake or forged and the said driving
license not having been controverted in any
manner, consequently, it cannot be said that
the learned Tribunal has committed any
error in holding that the driver namely Shri
Hori lal was having a valid and effective
driving license on the date of the incident.

28. Keeping in view of the
aforesaid
discussion,
no
case
for
interference is made out.

29. Accordingly, the appeal is
dismissed.

30. Let the trial court record of the
appeal be sent back as per rules.
----------
(2025) 5 ILRA 1614
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.05.2025

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Matters Under Article 227 No. 2495 of 2016

Waqf Madarsa Qasimul Uloom ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Ajay Kumar Singh, Ashish Kumar Singh,
Janardan Mishra, Rajni Kant Chaube

Counsel for the Respondents:
C.S.C.
5 All. Waqf Madarsa Qasimul Uloom Vs. State of U.P. & Ors.
1615
Civil Law-The Constitution of India, 1950Article 227 - The Code of Civil Procedure,
1908- Order VI Rule 17 - The Waqf
Act,1995-Sections 3(a), 3(r) & 3(s))---
Petition
challenging
the
order
allowing
amendment application
of
defendants
for
amending
their
written
St.ment---Entire
constructions, which has been raised by the
plaintiff, stands upon the land of National
Highway No.73 and in the garb of waqf
property, the petitioner is claiming right. The
defendants had rightly moved amendment
application for amending the written St.ment on
the ground that it is the National Highway
Authority, who is the owner of land in question
as the constructions are standing over the
National Highway No.73 which does not belong
to the plaintiffs---The plaintiff has made
construction over the land of National Highways
and had let out the structure to different
persons and is realizing the rent treating it to be
property of waqf Madarsa. It cannot be said to
be a case of 'waqf by user' as the owner of the
property in dispute is the National Highway
Authority of India, which is under the control of
Central Government, Ministry of Road Transport
and Highways.

Petition dismissed. (E-15)

List of the cases referred-:

Hiralal Vs Kalyan Mal & ors. 1998 AIR (SC) 618

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. The petitioner before this Court had
instituted an Original Suit No.9 of 2011
against defendants-respondents No.1 to 3
claiming relief of permanent prohibitory
injunction
restraining
them
from
demolishing the property in dispute and
making new construction over the same.

2. In the plaint, it was averred that
plaintiff is the owner and landlord of the
property mentioned in the map marked as
'A', 'B', 'C' and 'D'. It has been let out to
defendants No.1 and 2 on a monthly rent of
Rs.34/- In para 2 of the plaint, it has been
stated that in the aforesaid Madarsa, a
Masjid has been constructed where poor
children are given basic education and
functioning of Madarsa depends upon
contribution made. Further in para 3 of the
plaint, it is stated that on the said property,
a Police Chauki of P.S. Gagalheri is
standing, and, as the new building of the
police station has been constructed, the
aforesaid police chauki has become out of
use and a lock is hanging over the police
chauki. Further it has been stated in para 4
that the defendants were removing the roof
of the police chauki and were demolishing
the structure standing therein.

3.
The
defendants-respondents
contested the suit and filed their written
statement on 08.03.2011 wherein only
tenancy of Rs.34/- per month was accepted
but rest of the contents of the plaint were
denied. In the additional pleas, it was
specifically stated in para 7 that the
plaintiff had claimed the property to be a
waqf property but the same has not been
registered as a waqf before the Waqf
Board, thus the plaintiff had no right to
maintain the said suit.

4. During pendency of the suit, an
amendment application was moved by the
defendants on 12.11.2014 for amending
their
written
statement.
The
said
application was allowed by the trial Court
on 22.5.2015 against which the petitioner
preferred a Revision No.107 of 2015 which
has been dismissed vide order dated
18.3.2016, hence the present writ petition.

5.
Learned
counsel
for
the
petitioner submitted that by the proposed
amendment, defendants are trying to
withdraw from the admission made in their
written statement, which would result in
1616 INDIAN LAW REPORTS ALLAHABAD SERIES
change of defence and would affect the suit
proceedings.
According
to
him,
the
proposed amendment could not be allowed
as the defendants have set up a new case
that the plaintiffs have no right to prosecute
the matter as they are not the owner of the
same. Reliance has been placed upon
decision of Hon'ble Supreme Court in case
of Hiralal vs. Kalyan Mal & Ors. 1998
AIR (SC) 618.

6. Sri Sanjai Kumar Singh, learned
Standing
Counsel
appearing
for
the
respondents submitted that it is not a case of
withdrawal of admission by the defendants. In
fact, after filing of the written statement by the
defendants in the year 2011, the defendants
received a letter dated 18.9.2014 from
Assistant
Engineer,
National
Highway,
P.W.D., Saharanpur requiring for removal of
Police Chauki, which has been constructed on
National Highway No.73, and according to the
records, the width of highway is 135 ft.. The
Highway was to be transferred to the National
Highways Authority of India, Ministry of
Road Transport and Highways, Government
of India (hereinafter called as "NHAI").
Widening of the highways has been proposed
by
National
Highways
Development
Programme, Phase-IV B. He then contended
that another letter dated 26.9.2014 was
received by the office of Assistant Engineer,
National
Highway
Division,
PWD,
Saharanpur wherein it was requested that
unauthorized
construction,
standing
on
National
Highway
No.73,
should
be
immediately stopped. On 13.10.2014, the
Executive
Engineer,
National
Highway
Division, PWD, Saharanpur again wrote a
letter addressed to the defendants requiring
them to remove unauthorized constructions
standing over the land of National Highways.

7. It was on the basis of letters
received from the officials of the National
Highway
Division
that
amendment
application was moved on 12.11.2014 for
amending written statement. According to
him the plaintiff- petitioner had encroached
upon the land of National Highway and this
Police Chauki alongwith other shops were
constructed, which are required to be
demolished in pursuance of the letters of
official of the National Highway Division.
Both the Courts below had rightly proceeded
to allow the amendment application.

8. I have heard the respective
counsel for the parties and perused the
material on record.

9. It is a classic case where the land
of NHAI has been encroached upon by the
plaintiff and Madarsa along with Masjid
and certain other constructions have been
raised and the property is being claimed to
be a 'waqf'.

10. Before adverting to decide the
issue in hand, a cursory glance of some of
the
provisions
of
Waqf
Act,
1995
(hereafter called as "Act of 1995") are
relevant for the better appreciation of the
case.

11. Section 3(a) of Act of 1995
defines "beneficiary", which reads as under
:

"beneficiary" means a person or
object for whose benefit a waqf is created
and
includes
religious,
pious
and
charitable objects and any other objects of
public utility sanctioned by the Muslim law.

12. Section 3(r) of Act of 1995
defines "Waqf", which reads as under :

"waqf" means the permanent
dedication by any person, of any movable
5 All. Waqf Madarsa Qasimul Uloom Vs. State of U.P. & Ors.
1617
or immovable property for any purpose
recognised by the Muslim law as pious,
religious or charitable and includes-

(i) a waqf by user but such waqf
shall not cease to be a waqf by reason only
of the user having ceased irrespective of
the period of such cesser;

(ii) a Shamlat Patti, Shamlat Deh,
Jumla Malkkan or by any other name
entered in a revenue record;

(iii) "grants", including mashratul-khidmat for any purpose recognised by
the Muslim law as pious, religious or
charitable; and

(iv) a waqf-alal-aulad to the
extent to which the property is dedicated
for any purpose recognised by Muslim law
as pious, religious or charitable, provided
when the line of succession fails, the
income of the waqf shall be spent for
education, development, welfare and such
other purposes as recognised by Muslim
law,

and "waqif" means any person
making such dedication;

13. Section 3(s) of Act of 1995
defines "waqf deed", which reads as under
:

"waqf deed" means any deed or
instrument by which a waqf has been
created and includes any valid subsequent
deed or instrument by which any of the
terms of the original dedication have been
varied."

14. Chapter II of Act of 1995
provides for "Survey of Auqaf". Section 4
provides for preliminary survey of auqaf.
Section 5 provides for publication of list of
auqaf. It is on receipt of report under subsection (3) of Section 4 of Act of 1995 that
the State Government shall forward a copy
of the same to the Board. The Board shall
examine the report forwarded to it and
forward it back to the Government within
six months for publication in the Official
Gazette. In case of dispute in regard to
Auqaf, when a question arises whether a
particular property specified as waqf
property in the list of auqaf is waqf
property or not or whether a waqf specified
in such list is a Shia waqf or Sunni waqf,
the Board or mutawalli of the waqf or any
person aggrieved may institute a suit in a
Tribunal for the decision of the question
and the decision of the Tribunal shall be
final.

15. Prior to commencement of Act
of 1995, Waqf Act 1954, which was trice
amended in 1959, 1964 and 1969 was
governing the field. Prior to the Act of
1954,
the
enactments,
which
were
governing the field, were :-

(i)
The
Mussalman
Wakf
Validating Act, 1913

(ii) The Official Trustees Act
1913

 (iii)
The
Charitable
and
Religious Trusts Act, 1920

(iv) Mussalman Wakf Act, 1923

(v) The Hyderabad Endowments
Regulation 1349 Fasli

(vi) Bihar and Orissa Mussalman
Wakf Act, 1926

(vii) Bombay Mussalman Wakf
Act, 1935

(viii) Bengal Wakf Act, 1934

(ix) Delhi Muslim Wakf Act,
1943

(x) United Provinces Muslim
Wakfs Act, 1936

(xi) Bihar Wakf Act, 1947

16. Thus, from the combined
reading of prior enactments on the subject
of waqf, it is clear that 'waqf' means the
1618 INDIAN LAW REPORTS ALLAHABAD SERIES
permanent dedication by any person, of any
movable or immovable property for any
purpose recognised by the Muslim law as
pious, religious or charitable. According to
Act of 1995, it includes a waqf by user, a
Shamlat
Patti,
Shamlat
Deh,
Jumla
Malkkan or by any other name entered in a
revenue record; grants, including mashratul-khidmat for any purpose recognised by
the Muslim law as pious, religious or
charitable; and a waqf-alal-aulad to the
extent to which the property is dedicated
for any purpose recognised by Muslim law
as pious, religious or charitable, provided
when the line of succession fails, the
income of the waqf shall be spent for
education, development, welfare and such
other purposes as recognised by Muslim
law. "Waqif" means any person making
such dedication.

17. 'Waqf deed' means any deed or
instrument by which a waqf has been
created and includes any valid subsequent
deed or instrument by which any of the
terms of the original dedication have been
varied.

18. Thus, essential feature for a
valid waqf, which culls out is that, there
must be dedication of property in the
ownership of God the Almighty and the
devotion of the profits for the benefit of
human beings.

19. Syed Ameer Ali, one of Muslim
Scholar has said as under :

"the Mohammadan law owes its
origin to a rule laid down by the Prophet of
Islam; and means; the tying up of property
in the ownership of God the Almighty and
the devotion of the profits for the benefit of
human beings. As a result of the creation of
a wakf, the right of wakf is extinguished
and the ownership is transferred to the
Almighty. The manager of the wakf is the
mutawalli, the governor, superintendent, or
curator. But in that capacity, he has no
right in the property belonging to the wakf;
the property is not vested in him and he is
not a trustee in the legal sense."

20. From the reading of the plaint,
it transpires that over the waqf madarsa, a
masjid has been constructed along with
certain other structures, one of which has
been let out to the defendants. There is no
disclosure as to how the property in
question is a waqf and when was it
registered. The defendants, in their written
statement, has clearly stated in additional
pleas that there is no registration of the said
waqf nor there is any disclosure in the
plaint.

21. It was the subsequent event,
which had taken place in the year 2014,
where the national Highway Authority took
steps for road widening and it required
defendants to stop construction being made
on the land of National Highway No.73 and
also for removing the same as the NHAI
was
proceeding
under
the
National
Highways
Development
Programme,
Phase-IV B, for widening of national
highways and the illegal constructions,
which were standing, such as the Police
Chauki and the other shops, need to be
demolished. Letter addressed to the Station
House Officer, Gagalheri on 18.09.2014,
26.09.2014 and 13.10.2014 of National
Highway Division in this regard are
extracted hereas under :

"सेवा में,
थािाध्यि,

थािा िािलहेडी,

कजला- सहारिपुर।
5 All. Waqf Madarsa Qasimul Uloom Vs. State of U.P. & Ors.
1619
महोदय,
 अवित िरािा है कि पुकलस कवर्ाि द्वारा राष्रीय
मािभ सं. 73 (िया रा.मा. सं. 344) िे किमी. 36. चैिेज
35.772 पर मािभ िे बांयी तरफ पुकलस चौिी िा किमाभण िर
कलया िया है। यह पुकलस चौिी िा किमाभण राष्रीय मािभ सं. 73
(िया रा.मा. सं. 344) िी र्ूकम पर कस्थत है। अकर्लेखों िे
अिुसार यहां पर "राईड ऑफ वे" (मािभ िी र्ूकम िी चौडाई)
135 फीर् है।
 शीघ्र ही कििर् र्कवष्य में यह मािभ र्ारतीय राष्रीय
राजमािभ प्राकधिरण, सडि पररवहि एवं राजमािभ मंत्रालय, र्ारत
सरिार िो हस्तान्ताररत किया जािा प्रस्ताकवत है। र्ारतीय राष्रीय
राजमािभ प्राकधिरण, द्वारा एि.एच.डी.पी. फेज-4बी (National
Highways
Development
Programme,
Phase-IV B) िे अन्तिभत इस मािभ िा चौडीिरण व
सुदृढ़ीिरण प्रस्ताकवत है कजसिे कलये किकवदा शीघ्र ही फ्लोर् िी
जािे वाली है।
 उपरोक्त िे दृकष्टित अिुरोध है कि उक्त स्थाि पर
किकमभत िी ियी पुकलस चौिी िो शीघ्र ही हर्ािे िी िायभवाही िरिे
िा िष्ट िरें। सूचिाथभ व आवश्यि िायभवाही हेतु प्रेकित है।

सहायि अकर्यंता
राष्रीय मािभ खण्ड, लो०कि०कव०
सहारिपुर
कदिांिः 18/09/2014"
"कदिांि 26/09/2014
सेवा में

थािाध्यि,

थािा िािलहेडी,
 कजला- सहारिपुर।

कविय- राष्रीय मािभ सं. 73 (िया रा.मा. सं. 344)
िे चैिेज किमी. 35.800 पर मािभ िे बांयी तरफ िािलहेडी में
राष्रीय मािभ िी र्ूकम पर किये जा रहे अवैध किमाभण िो रोििे िे
सम्बन्ध में !
संदर्भ- इस िायाभलय िे िोकर्स िा पत्रांिः 43/2सी-
िैम्प-2, कदिांि 10.08.2014, पत्रांिः 14/2सी-िैम्प ए.ई.-
11. कदिांि 03.04.2014 एवं पत्रांि: 58/2सी (िैम्प ए.ई.
कद्वतीय), कदिांि 26/09/2014
महोदय,
 िृपया उपरोक्त कविय िे सम्बन्ध में अवित िरािा है
राष्रीय िािभ सं. 73 (िया रा.मा. सं. 344) िे चैिेज किमी.
35.800 पर मािभ िे बांयी तरफ मध्य से 53 फीर् िी दूरी पर श्री
मौ. तहसीि, िाकसममुलउलूम मदरसा अकधिारी, िािलहेडी, कजला
सहारिपुर द्वारा अिाकधिृत किमाभण किया जा रहा है जो कि
अकतिमण िी श्रेणी में आता है। इससे पूवभ इििे द्वारा दुिािों िा
किमाभण किया िया था जो कि रोड साइड लैन्ड िन्रोल एक्र् 1945
िा उल्लंघि है क्योंकि उििे द्वारा िलेक्र्र / कजलाकधिारी िी
अिुमकत िहीं ली ियी है। इस िायाभलय िे िोकर्स पत्रांि:
43/2सी-िैम्प-2, कदिांि 10.08.2014, पत्रांिः 14/2सी-
िैम्प ए.ई - 11. कदिांि 03.04.2014 एव पत्रािः 58/2 सी
(िैम्प ए.ई-कद्वतीय) कदिांि 26.09.2014 द्वारा पूवभ में सम्बकन्धत
िो िोकर्स कदया जा चुिा है।
 अतः अिुरोध है कि राजिीय र्ूकम पर उक्त अवैध
किमाभण िो रूिवािे िा िष्ट िरें। कजसिे राजिीय र्ूकम पर
अकतिमण रोिा जा सिे।
Sd/-
सहायि अकर्यन्ता राष्रीय मािभ खण्ड,
लो० कि० कव०
सहारिपुर"
"कदिांि 13/10/2014
सेवा में,
थािाध्यि,
थािा िािलहेडी,
कजला- सहारिपुर।
गिषयः राष्रीय मािभ संख्या-73 (िया राष्रीय मािभ
संख्या-344) िे चैिेज किमी 35.800 पर मािभ िे बांयी तरफ
िािलहेडी में राष्रीय मािभ िी र्ूकम पर किये जा रहे अवैध किमाभण
िो रोििे िे सबन्ध में।
संदर्भः इस िायाभलय िे सहायि अकर्यन्ता िा पत्रांि
59/2सी िैम्प-2, कदिांि 26.09.14
महोदय,

िृपया उपरोक्त संदकर्भत पत्र िा अवलोिि िरिे िा
िष्ट िरें कजसिे द्वारा सूकचत किया िया था कि राष्रीय मािभ संख्या-
73 (िया राष्रीय मािभ संख्या-344) िे चैिेज किमी 35.800
पर (किमी. 35.790 से किमी. 35.826) मािभ िे बांयी तरफ
लेकपत मािभ (लेकपत मािभ िी िुल चौडाई 7.00+5.80=
12.80 मीर्र) िे कििारे से 13.50 मीर्र (44 फीर् 3 इंच) िी
दूरी पर श्री मौहम्मद तहसीि, िाकसममुलउलूम मदरसा अकधिारी,
िािलहेडी, कजला सहारिपुर द्वारा अिाकधिृत किमाभण किया जा रहा
है। अकर्लेखों िे अिुसार यह किमाभण राष्रीय मािभ िी र्ूकम पर हो
रहा है जो कि अकतिमण िी श्रेणी में आता है।
1620 INDIAN LAW REPORTS ALLAHABAD SERIES
 [सहारिपुर देहरादूि मािभ, राष्रीय मािभ सं 73 व
72ए यू.पी. रोड साईड लैण्ड िन्रोल एक्र् िे तहत िोकर्फाईड है।
राष्रीय ,मािभ 73 िे चैिेज 35.800 पर लेकपत मािभ िी चौडाई
7.00+5.80=12.80
मीर्र
है
तथा
मािभ
र्ूकम
"आर.ओ.डब्ल्यू" िी िुल चौडाई 41.20 मीर्र है उक्त रथाि पर
7 मीर्र चौडे लोकपत मािभ िे दायीं तरफ 5.80 मीर्र चौडाई में
"वाइडकिंि" िाफी समय पूवभ िी........िे अिुसार संज्ञाि में लाया
िया है कि उक्त चैिेज पर लोकपत सतह, िुल चौडाई 12.80
मीर्र, िे मध्य से मािभ िे बांयी तरफ राष्रीय मािभ िी र्ूकम 24.90
मीर्र (81 फीर् 8 इंच) है व लेकपत मािभ िे कििारे से बांयीं तरफ
यह 18.50 मीर्र (60 फीर् 8 इंच ) है]
 यह र्ी संज्ञाि में लाया िया है कि िई विभ पूवभ इििे
द्वारा स्वयं िी र्ूकम पर दुिािों िा किमाभण किया िया था परन्तु उत्तर
प्रदेश रोड साइड लैन्ड िण्रोल एक्र् 1945 िी धारा -5 िे
अिुसार कजलाकधिारी / िलैक्र्र िी अिुमकत िहीं ली ियी थी। उक्त
एक्र् िी धारा-13 िे अिुसार, कबिा अिुमकत िराये िये किमाभण िो
हर्ािे / दण्ड लिािे िा तथा इस िायभ िे कलये लिी धिराकश िो "
लैण्ड एररयर राजस्व" िी तरह ररिवर िरिे िा प्राकवधाि है।
 उपरोक्त िे दृकष्टित अिुरोध है कि श्री मौ. तहसीि
द्वारा राष्रीय मािभ िी र्ूकम पर किये जा रहे किमाभण (अकतिमण) िो
तुरन्त प्रर्ाव से रूिवािे िा िष्ट िरें।
Sd/-
(ओ.पी. कसह)
अकधशासी अकर्यन्ता
राष्रीय मािभ खण्ड,
लो.कि.कव.
सहारिपुर"

22. From the reading of these
correspondence, it is clear that the entire
constructions, which has been raised by the
plaintiff, stands upon the land of National
Highway No.73 and in the garb of waqf
property, the petitioner is claiming right.
The
defendants
had
rightly
moved
amendment application for amending the
written statement on the ground that it is
the National Highway Authority, who is the
owner
of
land
in question
as
the
constructions
are
standing
over
the
National Highway No.73 which does not
belong to the plaintiffs. Reliance placed
upon decision rendered in case of Hiralal
(supra) is distinguishable in the present set
of case as the defendants have not resiled
from their admission made earlier.

23. In fact, the defendants were
never aware of the fact that the Police
Chauki,
which
was
functioning
was
constructed over the land of National
Highway No.73. It was in the year 2014
when these correspondence were made by
the officials of the National Highway
Division with the Station House Officer,
Gagalheri, defendant No.2 that the true
picture came in light. The trial Court
rightly allowed the amendment application
as it does not set up a new case of the
defendants. The defendants had been
paying rent of Rs.34/- per month for a long
time unknowingly, accepting the fact that
the structure standing therein was the
property of the plaintiff. Once it was
revealed
that
the
constructions
were
unauthorized, standing over the land of
National Highway 73 that the amendment
was sought.

24. This Court is surprised to note
that the plaintiff has made construction
over the land of National Highways and
had let out the structure to different persons
and is realizing the rent treating it to be
property of waqf Madarsa. It cannot be said
to be a case of 'waqf by user' as the owner
of the property in dispute is the National
Highway Authority of India, which is under
the
control
of
Central
Government,
Ministry of Road Transport and Highways.

25. Considering the facts and
circumstances of the case, I find that no
interference is required in the order passed
by the trial Court allowing the amendment
application
filed
by
the
defendants-
5 All. Shiv Narayan Gupta Vs. Garib Chandra
1621
respondents under Order VI, Rule
17 C.P.C. as well as order passed by
revisional Court.

26. Writ petition fails and is hereby
dismissed.
----------
(2025) 5 ILRA 1621
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2025

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Matters Under Article 227 No. 4107 of 2024
With
Matters Under Article 227 No. 3458 of 2025

Shiv Narayan Gupta ...Petitioner
Versus
Garib Chandra ...Respondents

Counsel for the Petitioner:
Hemant Kumar

Counsel for the Respondents:
Shiv Om Vikram Singh Chauhan

Civil Law-The Constitution of India, 1950Article 227-The Code of Civil Procedure,
1908-Section 151 ---Application for amending
decree was allowed against which Petitioner
filed Civil Revision which got dismissed---Once
there was no denial to the fact that endowment
deed of 1969 stands and was not in possession
of plaintiff, the amendment of preliminary
decree cannot be opposed. Had it been a case
where the plaintiff was in possession of the
endowment deed and had deliberately withheld
the same, then the defendant could have
opposed the amendment to the preliminary
decree and judgment relied upon by him would
have come to his rescue. It is also not denied
that a suit for eviction against the occupier of
endowed property has been instituted on behalf
of Deity in the year 2022. Once such is a
position, the defendant cannot oppose the
amendment of a preliminary decree.
Petition dismissed. (E-15)

List of the cases referred-:

1. S. Satnam Singh & ors. Vs Surender Kaur &
anr. (2009) 2 SCC 562

2. Phoolchand Vs Gopal Lal, 1967 AIR (SC) 1470

3. S. Sai Reddy Vs S.Narayana Reddy, 1991 (3)
SCC 647

4. Prema Vs Nanje Gowda & ors., 2011
Supreme (SC) 510

5. Baliram Atmaram Kelapure Vs Indirabai, 1996
(8) SCC 400

(Delivered by Hon'ble Rohit Ranjan
Agarwal, J.)

1. These two writ petitions have been
filed by the petitioner assailing the orders
passed by the Court below after the
preliminary
decree
was
prepared
on
31.10.1995 in Partition Suit No.62 of 1995
filed by plaintiff-respondent.

2.
Matter
under
Article
227
No.4107 of 2024 assails the order dated
16.02.2024 passed by the trial Court on
application 45-A2 filed in Final Decree
Case No.2 of 2005 by which the
application filed by plaintiff-respondent for
modification of preliminary decree was
allowed as well as order dated 11.03.2024
passed by District Judge, Banda in Civil
Revision No.6 of 2024 by which revision
filed by the defendant-petitioner against the
aforesaid order was dismissed.

3.
Matter
under
Article
227
No.3458 of 2025 has been filed assailing
the order dated 29.10.2024 passed by Civil
Judge
(Senior
Division),
Banda
on
application (Paper No.171C-2) moved by
defendant-petitioner as well as order dated