Decided on November 19,2012

Sardar Abdul Wahid Khan Appellant


- (1.) Instant petition has been filed by the petitioner challenging the order dated 24.02.2010 passed by District Judge, Dehradun in Misc. Case No. 33 of 2009. The petitioner has further prayed to issue a writ of mandamus permitting the petitioner for selling the property no.11A, Municipal Road, Dehradun and Municipal No. 46/31/30 situate at Acharya Narender Deo Road, Dehradun and reinvesting in other property as per Mohammedan Law.
(2.) Briefly stated that that the property in question was inherited by the petitioner from his ancestor late Bibi Benazir Jan w/o Sardar Mohammad Yusuf Khan, who executed Waqf-al-al-aulad deed on 26th June, 1934. Late Bibi Benazir Jan had three sons, namely, Sardar Amin Ullah Khan, Sardar Sher Ahmad Khan and Sardar Abdul Qadir Khan. Sardar Abdul Qadir Khan left two sons as successor, namely Sardar Abdullah Khan (respondent no.2) and Sardar Abdul Wahid Khan (petitioner). By filing Misc. Case No. 33 of 2009 before the District Judge, Dehradun the petitioner sought permission to sell the property in question and invest the same in other property as per requirement of Waqf deed dated 26th June, 1934. It is asserted that pursuant to order dated 11.09.1957, late Bibi Benazir Jan entered into memorandum of understanding dated 25th November, 1988. Before the Court below, the petitioner filed Waqf Deed dated 26th June, 1934, order dated 11.09.1957 and copy of compromise in Suit No. 53 of 1956. Notice was published in the newspaper. The respondent no.2 filed his reply on 28.05.2009/02.07.2009 in the misc. case stating that he has no objection. The Uttarakhand Waqf Board, Dehradun as well as Caption S. Amanullah Khan also moved an application under Order 1 Rule 10 read with Section 151 C.P.C., against which the petitioner filed his objection with the contention that the Central Waqf Act, 1995 excludes from its ambit private Waqfs, which do not fall under the authority and control of administrative scheme provided under the said Act. However, the learned District Judge, Dehradun without entering into the merits of the case, dismissed the petition of the petitioner holding that the same was not maintainable on the ground of jurisdiction.
(3.) Learned Senior Advocate for the petitioner submitted that petitioner had moved a misc. application Case no. 33 of 2009 in the court of District Judge Dehradun under Section 207 of Mulla's Principle of Mohammedan law to obtain permission to sell and reinvest (exchange) the portion of the Waqf al-al-auld property under his management (Mutawalliship), as Clause 7 of the al-al-aulad deed expressly empowers the Mutawalli to exchange the property with another property.;

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