DILIP B.BHOSALE - (1.) This petition, in the public interest, under Article 226 of the Constitution of India, has been instituted by an Advocate practicing in this Court seeking a direction commanding the official respondents to immediately remove the encroachment made on a plot of land allotted to the High Court and Advocate General's office, bearing Nazul Plot No. 59, Civil Station, Allahabad, measuring 8019.57 Sq. Meters (for short 'the plot'). The allegation of encroachment was initially made against an unknown person, who subsequently was identified as the respondent No. 7-Waqf. It is stated that respondent No. 7 has recently constructed a Masjid on the portion of the plot, towards it's south-west corner, measuring about 100'x50' known as "Masjid High Court", hereinafter referred to as "the site in dispute". Respondent No. 7 is a registered Waqf, bearing No. 3155-Allahabad, and it is represented through its President-Managing Committee.
(2.) The questions raised and which fall for our consideration are: i. Whether respondent No. 7 has encroached on the site in dispute and constructed/created a public Mosque over the same, some time after disposal of Writ Petition No. 32344 of 2001, instituted by ex-lessees; or whether it was constructed/created in 1981, as claimed by respondent Nos. 7 and 8? ii. Whether the site in dispute was ever dedicated by the lessees, including respondent No. 8 by way of waqf/for the purpose of a public Mosque, divesting themselves completely and permanently from the same, and if yes, whether they could have done so in the facts and in the circumstances of the case? iii. Whether respondent no. 7 perfected title to the site in dispute by adverse possession, resulting in extinguishment of the title of the High Court/State by operation of Section 27 of the Limitation Act? iv. Whether right of the High Court/State to seek ejectment of respondent No. 7 stands extinguished on account of estoppel, waiver and acquiescence, delay and laches? 2. 1. Having regard to the nature of controversy and for addressing the questions, that fall for our consideration, narration of factual matrix in depth is of great consequence. We have, therefore, divided the narration of facts into two parts. The first part would consist of the facts which are either admitted or are disputed and in the second part, we would make reference to the facts/case, as narrated by the parties in the writ petition, counter affidavits, supplementary affidavits, rejoinder affidavits, civil misc. applications etc. 2. 2. Before proceeding further, we wish to note for sake of clarity that Waqf Masjid High Court sought its impleadment as a party respondent by filing an application, which was allowed on 11.4.2017. On the same date, on an oral prayer made by Azim Ahmad Kazmi, one of the ex-lessees and a practicing advocate of this Court, was permitted to be added as a party respondent. In the entire proceedings, which were held after the above two were permitted to be added as respondents, Waqf Masjid High Court has been referred to as respondent No. 7 while Azim Ahmad Kazmi as respondent No. 8. However, it seems that while carrying out amendments in the cause title, the petitioner, who was appearing in person, has arrayed Azim Ahmad Kazmi as respondent No. 7 while Waqf Masjid High Court as respondent No. 8, but in all the affidavits and the orders of the Court, Waqf Masjid High Court has been referred to as respondent No. 7 while Azim Ahmad Kazmi as respondent No. 8. Therefore, to maintain consistency, in the instant judgment, we would refer to the Waqf-Masjid High Court as respondent No. 7 and Azim Ahmad Kazmi as respondent No. 8. Facts admitted disputed:
(3.) The factual matrix either admitted disputed is as follows: In 1868, on 11 January, a lease of the plot was granted in favour of Thomas Crowby for a period of 50 years by the Secretary of State for India in Council and it was signed by the Commissioner of Allahabad Division, for construction of a dwelling house. On expiry of the period of 50 years, on 12th April, 1923, a fresh lease was executed in favour of the successors of Thomas Crowby, namely Mr. William Charles Ducasse, with effect from 1st January, 1918 till 31st December, 1967. 3. 1. On 16th April, 1945, the legal representative of Mr William Charles Ducasse, one Mr Edmond John Ducasse, with the permission of the Collector, Allahabad executed a sale deed in respect of the plot and the dwelling house (for short 'the bungalow') in favour of Lala Purshottam Das. The sale deed was registered on 18th April, 1945. 3. 2. Thereafter, on 30th October, 1958, legal representatives of Lala Purshottam Das, assigned the lease hold rights alongwith the bungalow in favour of the family members of Mohd. Ahmad Kazmi, who then was a practicing Advocate of this Court and also a former Member of Parliament (1952-1957). A registered sale deed was executed by the legal representatives of Lala Purshottam Das, namely, Shyam Sunder and Smt. Durga Devi on 30th October, 1958 for a sum of Rs. 55,000/- in favour of the wife of Mohd. Ahmad Kazmi, Smt. Maimoona Khatoon Kazmi and their two daughters, namely, Smt. Sabra Khatoon Kazmi, wife of Advocate N A Kazmi and Smt. Shakra Khatoon Kazmi (for short 'original lessees'). 3. 3. On 3rd January, 1961, the lessees, with the permission of the Collector, executed a sale deed in respect of an area of 22500 sq. fts./2500 sq. yards approximately towards south of the plot in favour of M/s Great Eastern Electroplaters Ltd. for a sum of Rs. 25,000/-. 3. 4. The lease, which had been granted on 12th April, 1923, expired on 31st December, 1967, but the same was renewed for a long time. Subsequently, a fresh lease deed was executed on behalf of the Governor of Uttar Pradesh on 19th March, 1996, for a period of 30 years with effect from 1st January, 1968 till 31st December, 1997 in favour of the lessees-Smt. Shakra Khatoon Kazmi, Smt. Sabra Khatoon Kazmi, and legal representatives of the deceased lessee Smt. Maimoona Khatoon Kazmi, namely, Shamim Ahmad Kazmi, Aleem Ahmad Kazmi, Azeem Ahmad Kazmi, Maaz Ahmad Kazmi and Umar Ahmad Kazmi, the sons of Nazim Ahmad Kazmi, who hereinafter shall be referred to as "the lessees". This deed contained a clause that the lease deed would be renewed for two successive terms of 30 years each, but the total period shall exceed 90 years, including the original term. In view thereof, on 17th July, 1998, i.e. after expiry of the period of 30 years on 31st December, 1997, this deed was renewed for a further period of 30 years with effect from 1st January, 1998.;