RAJES Kumar, J. - (1.) By means of present writ petition, the petitioner has challenged the order dated 29-4-2003 passed by the Vth Additional District Judge, Shahjahanpur in Misc. Case No. 5 of 2002, Sunni Central Waqf Board v. Harsh Dev Gupta, rejecting the application under Section 151 of C. P. C. filed by Sunni Central Waqf Board for recalling the order dated 16-5-2000 passed by the Additional District Judge, Shahjahanpur in Civil Misc. Appeal No. 61 of 1992, Harsh Dev Gupta v. Sunni Central Waqf Board, Lucknow.
(2.) THE brief facts of the case giving rise to the present petition are that the respondent No. 3 filed a Civil Misc. Appeal No. 61 of 1992 against the order/notice dated 23-6-1992 issued by the Controller, U. P. Sunni Central Waqf Board, Lucknow directing the Collector, Shahjahanpur to evict the respondent No. 3 from the land in dispute and in pursuance thereof notice issued by the Collector. THE Appeal was filed on the ground that the land in dispute Nos. 1625-A to 1268-A measuring 3 acre 36 dismal, which is situated within the Municipal area of Shahjahanpur was not the property of Sunni Central Waqf Board, Lucknow. It is stated that Smt. Munni and her husband Wasi were the Sirdar and after the death of Wasi, their heirs on the deposit of ten times became Bhumidhari. THEreafter, they have sold the land in dispute vide sale-deed which was registered and in this way, they have become the owner of the land in dispute. It was submitted that merely because the said property was mentioned in torn page of a register of Sunni Central Waqf Board, it cannot be said to be the property of Sunni Central Waqf Board, Lucknow. It was submitted that the Controller, Sunni Central Waqf Board, Lucknow has illegally initiated an ex parte proceeding against them for their eviction from the property in dispute while they were not the owners of such property. The Additional District Judge, Shahjahanpur vide order dated 16-5-2000, allowed the Appeal No. 61 of 1992. It appears that the appeal had been decided without hearing the petitioner on the ground that on the date fixed, Counsel for the petitioner could not appear. It appears that before the Additional District Judge, Shahjahanpur two Appeals Nos. 60 of 1992, Shyam Prakash & Anr. v. U. P. Sunni Central Waqf Board, Lucknow and 61 of 1992, Harsh Dev Gupta v. U. P. Sunni Central Waqf Board, Lucknow, were filed. In the present petition, we are only concerned with Appeal No. 61 of 1992, Harsh Dev Gupta v. U. P. Sunni Central Waqf Board, Lucknow. The Additional District Judge, Shahjahanpur held that the revenue record was produced, in which, Khatauni 1378-Fasli to 1380-Fasli, Wasi son of Maikoo name was mentioned as Sirdar. In 1370 Fasli to 1625-A and 1625-A, his name was shown as Sirdar. No record has been produced to show that the land in dispute belong to Sunni Central Waqf Board. It has been held that after the death of Wasi, his son Itwari, Ram Bharosay and Om Prakash have deposited ten times and obtained right of Bhumidhari. It is also observed that in respect of the said property, Sri Ali Husain and another filed a Suit for eviction of Smt. Munni and Wasi. The said suit was decreed, but in Appeal No. 71 of 1968, the Additional Commissioner, allowed the appeal vide order dated 17-8-1970 and Smt. Munni and Wasi were found in possession of the land in dispute. It has been held that the order of the Additional Commissioner dated 17-8-1970 had become final, in which, land in dispute was found in possession of Smt. Munni and Wasi and it has not been accepted that the land in dispute was the property of Waqf. It has been further held that U. P. Muslim Waqf Act, 1960 was not applicable to the non Muslim. It has been held that since in the order/notice dated 23-6-1992 issued by the Controller, order of the Additional Commissioner has not been considered, hence, the order dated 23-6-1992 is illegal and is liable to be set aside.
(3.) THE petitioner thereafter, moved a Misc. Application No. 5 of 2002 under Section 151 of C. P. C. alongwith an application under Section 5 of Limitation Act for recalling the judgment passed in Misc. Civil Appeal No. 61 of 1992, Harsh Dev Gupta v. U. P. Sunni Central Waqf Board, Lucknow, mainly on the ground that under Section 49-B (5) of the U. P. Muslim Waqf Act, 1960 against the notice issued under Section 49-B (2), by the Collector an appeal could be filed before the District Judge having jurisdiction within thirty days, but Harsh Dev Gupta had filed an appeal against the order of the Waqf Board and by misrepresentation, got the appeal No. 61 of 1992 decided. THE District Judge, Shahjahanpur had only jurisdiction to decide the said appeal, thus, the order passed as a result of misrepresentation and fraud, should be recalled. Secondly that by Section 112 (3) of Waqf Act, 1995, if there was any law of similar nature was in existence in a State, the same shall be deemed to be repealed and it amounts that the U. P. Muslim Waqf Act was not enforceable and hence, the appeal filed against the order under Section 49-B of U. P. Muslim Waqf Act, 1960 was not maintainable and thus, the order dated 26-5-2000 was without jurisdiction. The Vth Additional District Judge, Shahjahanpur held that the Appeal No. 61 of 1992, Harsh Dev Gupta v. U. P. Sunni Central Waqf Board, Lucknow, was filed against the requisition notice sent by Collector issued in pursuance of the order dated 23-6-1992 issued by U. P. Muslim Waqf Board, Lucknow. In Appeal, requisition notice issued by the Collector was challenged which was issued in pursuance of notice/order of U. P. Sunni Central Waqf Board, received by Sri Harsh Dev Gupta on 15-12-1992. The appeal was filed on 22-12-1992 under Section 57-A read with Section 49-B (4) of the Act. Under Sections 49-B (4) and 57-A, an appeal lies before the District Judge against the requisition order/notice issued by the Collector. It has been held that from perusal of memo of appeal filed against the notice issued by the Collector under Section 49-B (5), it is wrong to say that the appeal was filed against the requisition issued by the Collector but had been filed against the order of U. P. Sunni Central Waqf Board. Under Section 49-B, the District Judge either himself could hear the appeal or transfer to any other Court of Additional District Judge. Thus, the allegation that the Court had no jurisdiction to decide the appeal, is not correct. It has been further held that the appeal was decided on merit and Sri Harsh Dev Gupta being non Muslim, the provisions of Muslim Waqf Act was not applicable and hence, the order dated 16- 5-2000 passed in Appeal No. 61 of 1992 was neither an order, without jurisdiction nor had been obtained by fraud or misrepresentation and there is no illegality in the order. It has been further held that under Section 112 (3) of Waqf Act, 1995 it did not make any effect of the operation of previous law and hence, the appeal filed in 1992, cannot be said to be without jurisdiction. The Court had further held that the order was passed without hearing the Waqf Board, cannot be considered on an application under Section 151 of C. P. C. , inasmuch as, the appeal had been decided on merit.;