# Waqf Qabristan Shehkhan Biradri No. 616, Meerut Revisionist v. U.P. Sunni Central Board of Waqfs & Ors

- **Citation:** (2023) 3 ILRA 860
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-09
- **Case number:** Civil Revision No. 650 of 2014
- **Bench:** Umesh Chandra Sharma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/waqf-qabristan-shehkhan-biradri-no-616-meerut-revisionist-v-u-p-sunni-central-49862
- **Pages:** 5

## Headnote

Civil Law - Civil Procedure Code - Section
- 151 - Order - 23, Rule 1 - Nagar
Mahapalika Act, 1916 - Section - 213 -
Waqf Act, 1995 - Sections - 54 & 55: - Civil
Revision - against impugned order - by which
application 3C2 U/s 151 of CPC moved by the
applicant was allowed - maintainability - nature
of property - suit was withdrawn - after about
11 years court below entertain the application
under section 151 of CPC and restored the
reference to its original number - certainly it is
abuse and misuse of the power and illegal
exercise of the inherent power of the Court -
More so, such withdrawal order is revisable but
no such procedure had been adopted by
opposite party no. 2 and by adopting a short cut
method and by adopting illegal measure, the
impugned order has been obtained which is
factually and legally incorrect - accordingly, the
revision is allowed. (Para - 13, 14, 15)

Revision Allowed. (E-11)

## Text

860 INDIAN LAW REPORTS ALLAHABAD SERIES

15. Thus, on the basis of aforesaid
discussions this Court is of the considered
view that the the impugned order does not
suffer from any illegality or infirmity. The
revision is devoid of merit and is liable to
be dismissed.

16. Accordingly, the revision is
dismissed and the impugned order is
affirmed. The stay order dated 10.2.20217
passed by this Court in this revision stands
vacated.

17. Let a copy of this order be
transmitted
to
the
Court
below
for
necessary compliance.
----------
(2023) 3 ILRA 860
REVISIONAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 09.01.2023

BEFORE

THE HON'BLE UMESH CHANDRA SHARMA, J.

Civil Revision No. 650 of 2014

Waqf Qabristan Shehkhan Biradri No. 616,
Meerut ...Revisionist
Versus
U.P. Sunni Central Board of Waqfs & Ors.
 ...Respondents

Counsel for the Revisionist:
Sri Ayub Khan

Counsel for the Respondents:
---

Civil Law - Civil Procedure Code - Section
- 151 - Order - 23, Rule 1 - Nagar
Mahapalika Act, 1916 - Section - 213 -
Waqf Act, 1995 - Sections - 54 & 55: - Civil
Revision - against impugned order - by which
application 3C2 U/s 151 of CPC moved by the
applicant was allowed - maintainability - nature
of property - suit was withdrawn - after about
11 years court below entertain the application
under section 151 of CPC and restored the
reference to its original number - certainly it is
abuse and misuse of the power and illegal
exercise of the inherent power of the Court -
More so, such withdrawal order is revisable but
no such procedure had been adopted by
opposite party no. 2 and by adopting a short cut
method and by adopting illegal measure, the
impugned order has been obtained which is
factually and legally incorrect - accordingly, the
revision is allowed. (Para - 13, 14, 15)

Revision Allowed. (E-11)

(Delivered by Hon'ble Umesh Chandra
Sharma, J.)

1. This civil revision has been
instituted against the judgment and order
dated
29.9.2014
passed
by
Waqf
Tribunal/Civil Judge (S.D.), Meerut, in
Misc. Case No. 17 of 2004 (Mohammad
Faruk Vs. Sunni Central Board and Others),
by which application 3C2 under Section
151 C.P.C. Moved by the applicantMohammad Farooq, was allowed at the
cost of Rs. 5,00/- and the order passed on
the withdrawal application on 10.12.2003
in reference/original suit no. 1294 of 1993
was recalled.

2. In brief, facts of the case are that
Md. Farooq-plaintiff filed a case in the
Court of Waqf Tribunal/Civil Judge (S.D.)
Meerut, as reference no. 1294 of 1993
against Sunni Central Waqf Lucknow,
Managing Committee and Waqf Qabristan
Biradari Shah Khan, with the averments
that he is owner of the house no. 169 (170)
situtated in Mohalla Gulzar Ibrahim, Lisari
Road, Halka No. 13, Meerut City, and is
living with his family. The house was
constructed about 60 years back and father
of the plaintiff was the resident of the house
in suit as owner with his family and after
his death, the plaintiff inherited his right as
son and is residing in the house as owner,
3 All. Waqf Qabristan Shehkhan Biradri No. 61, Meerut Vs. U.P. Sunni Central Board of Waqfs
 & Ors.
861
the name of the petitioner is recorded as
owner in the corporation Assessment
Register. The house was not dedicated by
his father or by him and it is his personal
property.

3. On 2.11.1993 the plaintiff received
a notice under Section 213 of the Nagar
Mahapalika Act from which it is revealed
that opposite party no.3 has applied for
mutation of its name on the allegations that
the property is a waqf property and the
same has been registered by opposite party
no.1 by order dated 12.9.1991. In the waqf
register boundaries and house number are
not given but since the opposite party no. 3
has applied for mutation hence the plaintiff
is bound to get the order dated 12.9.1994
set-aside. The plaintiff was not given any
notice by the opposite party before
registering the house in dispute as waqf
property and he was not knowing this fact
before
2.11.1993.
The
order
dated
12.9.1991 is illegal without jurisdiction and
is liable to be set-aside. The plaintiff prayed
for setting aside of the order dated
12.9.1991 regarding property in suit passed
by U.P. Sunni Cetral Board of Waqf,
Lucknow.

4. Defendant nos.2 & 3 appeared and
filed written statement/objection and denied
the facts of the plaintiff and in additional
pleas, pleaded that the petition is miserably
time barred and the plaintiff is stopped from
challenging the nature of the property being
part of Waqf Qabristan Biradary of Sheikhan
known as Takia Shad Shah Langot, Meerut.
The land beneath the malba of the house,
which was erected with the permission of the
then Mutwalli of the Waqf Qabristan, forms
part of the big area spread over ten thousand
square yards from time immemorial. The
purpose of permitting the ancestors of the
petitioner to reside within the boundaries of
the Qabristan was to have a watch upon the
waqf property, they did not enjoy and other
privilege like ownership or lessee's rights.
The petition has been filed on malafide
grounds and vague allegations. The plaintiff
has deliberately avoided to mention the
names of his ancestor, who is alleged to have
acquired the land and the mode of its
acquisition, Khasra plot number and other
details.

The real fact is that the land pertains to
Khasra Plot No. 774 and other adjoining
numbers, Mahal Lekhraj Mazbata, Qasba
Meerut, and the then Mutwalli of Qabristan
late Chaudhary Abdul Karim had allowed
Mohd Hafiz father of the petitioner-plaintiff
to occupy the land as a tenant for which a
registered rent deed dated 6.5.1937 was
executed between the parties as such the
petitioner or his father can not claim
ownership right of the property in question.
The entire Qabristan was registered with the
U.P.S.C. Board of Waqf Lucknow in the year
1970 and a committee of management was
appointed for looking after the Waqf property.
The petitioner or his late father had not
challenged or asserted their title over the
property, prior to their objections in the
correction proceedings in the office of Meerut
Corporation. The plaint is defective and is
liable to be rejected on the ground that the
Waqf has been impleaded through president
of the management committee whereas only
secretary
of
the
committee,
presently
M.Haroon son of M. Shafi is entitled to file
or defend the suit on behalf of the Managing
Committee of the waqf.

On the aforesaid grounds, defendant
prayed for dismissal of the suit and the
reference.

5. During course of hearing in the
Court of Civil Judge (S.D.)/Waqf Tribunal,
862 INDIAN LAW REPORTS ALLAHABAD SERIES
Meerut, the plaintiff Mohammad Farooq
moved a withdrawal application that on
10.12.2002 at the time of reference, he was
not fully aware of the facts and now after
getting some old papers, this fact has been
known to him that land Tahti of House No.
169 Mauh Gulzar Ibrahim Meerut, Waqf
Shekhan/page 616 Meerut, is the waqf
property which was taken by Sufi Hafiz
Shah on rent from the Mutwalli of the Waqf
and used to live as tenant. Late Sufi Hafiz
Shah had orally gifted the house and the
tenancy rights to the plaintiff and made the
plaintiff owner in possession. On this basis,
the petitioner had filed the aforesaid suit.
Since the actual and true facts are known
and it is proved that the disputed property
is the waqf property, therefore, the plaintiff
has no objection to the continuance of the
entry in the name of opposite party no.1 as
waqf property. The plaintiff has satisfied
himself by understanding the legal position
hence it was prayed to struck off the
reference no. 1294/1993.

6. This application was allowed on
10.12.2003. The order dated 10.12.2003
reads as under:

"Case is taken up. Called out. The
petitioner has prayed by submitting an
application to struck off his reference. The
opposite has no objection. When the
petitioner himself wants dismissal of his
reference and does not want to contest, then
reference is quashed on the basis of
application of the petitioner."

Order

On the basis of application of the
applicant, the reference is quashed.

File be consigned. "

7. After a long gap the plaintiff Md.
Farooq moved an application 3C2 under
Section 151 CPC stating that the house no.
169 Gulzar Ibrahim Lisari Gate, Meerut, is
the house of the applicant since the time of
his father. The opposite party no.2-waqf has
nothing to do with the house, no one has ever
made Waqf of the debris of the house or tahti
arazi. One Haroon who is the secretary of the
waqf wrongly registered the property of the
disputed house as waqf and on the basis of
wrong entry, name of waqf has wrongly been
entered into the records of the Municipal
Corporation. After knowing, the applicant
filed the reference number 1294/1993 in
which evidence of the applicant was yet to be
done. Haroon in collusion with the Chief
Executive Officer, had wrongly got the order
of eviction against the applicant against
which the applicant had filed case no. 1095 of
2003. The applicant had obtained stay order
in reference no. 1294 of 1993. The applicant
is an old man and wanted to avoid hassle of
the litigation, besides, Haroon is a very
influential person, he tried to intimidate the
applicant through other persons, started
threatening that he would forcefully take over
the house. Since the applicant wanted to
avoid litigation, Hafiz Haroon told the
applicant that if the applicant is handing over
the land, he would consider him owner of the
debris and the arazi, and he would not be
evicted treating him to be tenant. After
withdrawal of the suit, Hafiz Haroon tried to
take possession of the house of the applicant
under Section 55 of the Waqf Act, 1995 and
refused to accept the applicant as tenant. The
applicant came to know from these actions
that his intention was different, he cheated the
applicant and also cheated the Court. On
account of cheating the case had been
withdrawn due to which applicant is suffering
therefore, order dated 10.12.2003 be canceled
and the case be decided on merit.

8.

Defendant-revisionist
filed
objection
23C2
with
affidavit
and
submitted that the statement of the
3 All. Waqf Qabristan Shehkhan Biradri No. 61, Meerut Vs. U.P. Sunni Central Board of Waqfs
 & Ors.
863
applicant-plaintiff is false, the application is
malicious and has been moved under
pressure of some land mafias who want to
take advantage of the opportunity in a
wrong way creating influence on the
brother and sister of the applicant,
therefore, they want to get the order of the
Waqf Tribunal quashed. The application is
time barred and does not indicate as to how
it is maintainable and how it could be
decided on merit. The applicant had
withdrawn the reference on 10.12.2003 and
the original suit number 1095 of 2003 had
also been withdrawn. Arif son of the
applicant was also present in the Court and
they had told the court that he was
withdrawing the reference and the suit on
their free will, it is wrong to allege that
H.M.
Haroon,
Secretary,
Managing
Committee/Mutwalli of the Waqf avoided
to receive rent or refused to treat the
applicant as a tenant. It is specifically
stated that the Waqf Qabristan assures the
Court that if the applicant is avoiding to
perform his undertaking and the fixed rent
is paid by him, the proceeding under
Section 54/55 Waqf Act would not be
initiated against the applicant. It is wrong
to allege that the property is not the Waqf
property. The Court below after being
satisfied had allowed the withdrawal of the
reference. The applicant can not dictate the
Court of law to act as per his choice and
whims, if the application is allowed, the
same shall result the endless litigation. The
applicant has submitted the application on
the greed of land mafias to grab the land.
The applicant has concealed the condition
of the site that one part was to be used as
cemetery and agreed to pay rent on the
other part. In fact he had removed all his
house-hold
articles
from
that
part.
Therefore, the application under Section
151 CPC be dismissed.

9. After hearing both the parties, Civil
Judge (S.D.)/Waqf Tribunal allowed the
application
moved by
the
applicantopposite party no.2, without giving any
cogent reasons, therefore, the revisionistopposite party had moved this civil revision
on the aforesaid grounds.

10. None appeared from both the
sides. Therefore, this revision is being
decided
after
evaluating
the
evidence/material available on record.

11. It is noteworthy that in the
reference, opposite party no. 2 has claimed
himself and his father to be the owner of
the property in question. It is also accepted
by him that it is like debris and part of the
waqf property. He did not deny that he had
not moved the application dated 10.12.2003
before the Waqf Tribunal/Civil Judge
(S.D.), Meerut, in which he had accepted
that he is the son of Safi Hafiz Shah and
had also accepted that the land of house no.
169 is under the ownership of Waqf
Qabristan Shekhran Biradari No. 616,
Meerut, which was taken by his father on
rent and he was living there and during his
lifetime, debris of the house and all the
rights regarding tenancy was transferred to
him by way of oral gift, therefore, he had
filed the suit. Mohd. Farooq had also
accepted that at the time of institution of
the reference, he was not knowing the
detail facts of the matter and after getting
some old papers he knew that the property
in suit is the waqf property which was
taken by his father on rent. He had also
admitted that he has no objection regarding
recording of the property in question as
waqf property. He had further admitted that
he had satisfied himself by taking legal
opinion and the application was moved
with his free will and the same was
864 INDIAN LAW REPORTS ALLAHABAD SERIES
accepted and the reference and the suit of
Md. Farooq was dismissed on 10.12.2003.

12. It is a matter of surprise that
without
moving
any
application
for
condonation of delay and without adopting
any due course of law, the application
under Section 151 CPC was moved and the
same
was
allowed
by
Civil
Judge
(S.D.)/Waqf Tribunal, Meerut, without any
cogent reason and without any basis. Under
Order 23 Rule 1 CPC there is provision for
withdrawal of suit which reads as such:

"As per Order 23, Rule 1(1) of the
CPC, a plaintiff may abandon his suit or
abandon a part of his claim at any time
after the institution of a suit. As soon as an
application is filed under this sub-rule, the
withdrawal of the suit is complete and such
withdrawal is not dependent on the court's
order."

13. In this case no permission was
taken to withdraw the reference with liberty
to institute it again in respect of the subject
matter, therefore, there was no occasion or
right to move an application under Section
151 CPC. The Waqf Tribunal, Meerut, has
hammered on the version of the application
of the applicant that when the revisionist
did not accept him to be tenant then
necessity to restore the case arisen. From
the perusal of the withdrawal application or
from the perusal of the order dated
10.12.2003, it is crystal clear that no such
condition was imposed by Mohd. Farooq or
by the Court. The withdrawal application
was moved without any coercion or undue
influence. It has not been alleged by
opposite
party
no.2
that
he
was
withdrawing the reference case on the
condition that he would be treated to be
tenant of the property in question. The
Court below has wrongly concluded that if
the reference is restored, the multiplicity of
the suit would decrease and the parties
would be saved from any trouble. As the
matter had already been settled and
finalized by way of withdrawal, there was
no occasion to entertain the application
under Section 151 CPC after a gap of about
11 years and restore the reference to its
original number.

14. Certainly it is abuse and misuse of
the power and illegal exercise of the inherent
power of the Court. More so such withdrawal
order is revisable but no such procedure had
been adopted by opposite party no.2 and by
adopting a short cut method and by adopting
illegal measure, the impugned order has been
obtained which is factually and legally
incorrect. Thus, the impugned order is liable
to be set-aside and the revision is liable be
allowed.

15. Accordingly, the revision is
allowed and the order dated 29.9.2014
passed by Waqf Tribunal/Civil Judge
(S.D.), Meerut, is hereby quashed.

16. Let a copy of this judgment be
sent to the Court below for necessary
compliance.
----------
(2023) 3 ILRA 864
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.03.2023

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE MOHD. AZHAR HUSAIN IDRISI, J.

Criminal Appeal No. 630 of 2014

Dhananjay @ Pappu ...Appellant
Versus
State of U.P. ...Respondent