Case Note & Summary
The dispute arose from a civil revision application filed before the Bombay High Court, Aurangabad Bench, challenging the order of the Maharashtra State Waqf Tribunal, Aurangabad, which had rejected applications under Order VII Rule 11 of the Code of Civil Procedure. The applicant was original defendant no. 1 in Waqf Suit No. 66/2020; respondent no. 1 was the original plaintiff, and respondent no. 18 was the Maharashtra State Board of Wakfs. The suit concerned 8648 square meters of Survey Nos. 51 and 52 (Gat No. 292 and 293) of CTS No. 14503/1 situated at Usmanpura, Chhatrapati Sambhajinagar. The plaintiff claimed these lands were Waqf property of Dargah Hajrat Shahanoor Hamvi Reh and sought declaration, possession, and injunction. The plaintiff asserted that the lands were service Inam lands and Waqf properties under Section 3(k) of the Waqf Act, 1995, and that illegal sale transactions had been made in favour of defendants without permission of the Waqf Board. The defendants contended that the lands were not Waqf properties, were not included in the notified list, and that they had purchased the lands by registered sale deeds and were in lawful possession. The applicant and respondent no. 9 filed applications under Order VII Rule 11 CPC for rejection of the plaint on grounds that there was no government gazette disclosing the suit lands as Waqf properties, the suit was barred by limitation under the proviso to Section 6 of the Waqf Act, there was no cause of action, and the claim was vexatious. The plaintiff opposed the applications, relying on a letter dated 11.12.1979, an order dated 21.10.2009 by the Chief Executive Officer of the Board, a judgment in Regular Civil Suit No. 81/2017, and Section 107 of the Waqf Act. The High Court examined the record and held that a government gazette published on 17.05.1973 had enlisted properties of the Dargah but did not include Survey Nos. 51 and 52. The letter dated 11.12.1979, which was accompanied by a purported corrigendum, could not be treated as a gazette notification. The court found that the plaintiff had not produced any public document to show that the suit lands were included in the list of Waqf properties. It also observed that reliance on the order dated 21.10.2009 and the judgment in Regular Civil Suit No. 81/2017 was misplaced because those proceedings did not conclusively determine the Waqf character of the suit lands. The court concluded that the suit suffered a fundamental defect and was untenable for want of a gazette notification. Consequently, the revision was allowed and the plaint was liable to be rejected. The court favoured the original defendant/applicant.
Headnote
A) Waqf Law - Recognition of Waqf Property - Mandatory Gazette Notification - Waqf Act, 1995 Sections 3(k), 4, 5, 6, 40, 107; Waqf Act, 1954 Sections 4,5,27 - Plaintiff claimed suit land as Waqf property relying on letter dated 11.12.1979 and purported corrigendum, but no government gazette included Survey Nos.51 and 52. The court held that a letter or corrigendum cannot substitute for official gazette notification and that a public document was essential. Held that the suit suffered a fundamental defect and was untenable (Paras 14-15). B) Civil Procedure - Rejection of Plaint - Order VII Rule 11 Code of Civil Procedure, 1908 - Failure to disclose cause of action and barred by law - The defendant sought rejection of plaint contending no cause of action, limitation under proviso to Section 6, and absence of material to show Waqf status. The court considered only plaint averments and documents, found no public document establishing Waqf property, and concluded plaint liable to be rejected (Paras 6-8, 14-16). C) Limitation - Waqf Suit - Proviso to Section 6 Waqf Act, 1995 - Suit filed after 48 years claiming declaration that properties were Waqf was alleged to be barred; court noted limitation is mixed question but in context of lack of gazette notification, the plaint was untenable (Paras 8, 14-15). D) Evidence - Public Document - Revenue Records and Earlier Orders Not Sufficient - Court rejected reliance on order dated 21.10.2009 and judgment in Regular Civil Suit No. 81/2017 as they did not conclusively determine Waqf character; only gazette notification would suffice (Para 15).
Issue of Consideration
Whether the plaint in Waqf Suit No. 66/2020 was liable to be rejected under Order VII Rule 11 CPC for failure to show that the suit land was Waqf property, absence of cause of action, and being barred by limitation under the Waqf Act, 1995.
Final Decision
The High Court held that the plaintiff failed to produce a public document showing suit lands as Waqf properties; hence the suit suffered a fundamental defect and was untenable. The revision was allowed and the plaint was liable to be rejected.
Law Points
- Order VII Rule 11 CPC permits rejection of plaint for want of cause of action or barred by law
- Waqf property must be included in official gazette list under Section 5 of Waqf Act
- letter or corrigendum cannot substitute gazette notification
- limitation under proviso to Section 6 Waqf Act may bar suit
- Section 107 Waqf Act does not save declaration suit for property not notified
- plaint must disclose cause of action and clever drafting cannot create one
