SIBGHAT ULLAH KHAN,J. - (1.) HEARD learned counsel for the parties.
(2.) THESE four cases have been filed by U.P. Sunni Central Board of Wakf. The dispute relates to plot no.2162 which is situate towards south of plot no.2164. Plot no.2164 is admittedly a mosque. The dispute is only in relation to plot no. 2162 which according to the petitioner Wakf Board is also Wakf and is in the form of grave yard. However according to the contesting respondents it is not grave yard and it is private property of Shamsul Islam and before him of his ancestors. The other respondents are his tenants in different portions which were constructed by him. Respondents have also pleaded that in several earlier litigations including one suit of 1905 (O.S. no.224 of 1905) and another suit of 1931 (Original Suit No.282 of 1931) which were instituted by the Muslims of the locality, it was categorically held that plot no.2162 was not Wakf/grave yard and it was private property of Shamsul Islam's ancestors. Wakf Board claimed that plot no.2162 was entered as Wakf in its register. The Board therefore sent a requisitions to the Collector under Section 57-A of U.P. Muslim Wakf Act, 1960 for possession. The Collector passed the order of dis-possession of the respondents. Thereupon five appeals were filed by the respondents being Misc. Appeal No.43 of 1988 and 48 to 51 of 1988. One was filed by Shamsul Islam and the four by his four tenants. The appeals were filed under Section 49-B (4) read with Section 57-A(2) of U.P. Muslim Wakf Act, 1960. All the appeals except Misc. Appeal No.51 of 1988 filed by Shri Ghani were decided/allowed by common judgment and order dated 20.3.2001 passed by IV Additional District Judge, Etawah. Appeal of Ghani was separated as he had died. One writ petition has been filed against the said judgment in respect of Shamsul Islam and the other writ petition has been filed against the same judgment and order in respect of the THREE TENANTS � WAHID KHAN, ZIAUDDIN AND SIRAJ. Even before issuance of order by the District Magistrate against the contesting respondents, Shamsul Islam had filed two references under Section-71 of U.P. Muslim Wakf Act 1960 before Wakf Tribunal/Civil Judge (Senior Division), Etawah numbered as Misc. Case No.52 of 1987 and 161 of 1987. Both references were allowed on 5.4.2003. Both the Revisions are directed against the said orders of the tribunal.
(3.) THE U.P. Muslim Wakf Act has been repealed by Section 112 (3) of Wakf Act 1995 however, pending proceedings are to be decided in accordance with the repealed Act. The first question is regarding maintainability of the reference. In U.P. Sunni Central Board of Wakf vs. Ist A.D.J. Jhansi 2007 (1) A.R.C. 428 after taking into consideration various provisions of different Wakf Acts I held in paragraph-14 as follows:- Para. 14.-- It is one thing to say that declaration/decision regarding a property being Wakf property particularly under Section 33 of U.P. Act was neither final nor conclusive and it is quite another to say that it could not have any effect upon a person who was not interested in the wakf. Such decision prima-facie established that the property was wakf property. However, such decision was open to challenge in civil suit or before Tribunal. If a person even after becoming aware of entry of the property as wakf property in the register of the wakf board did not file suit regarding title or challenged the same before Tribunal then he could not resist eviction proceedings under Section 57(A) or 49(B). ;