- (1.) HEARD Sri Rahul Sripat, learned counsel appearing for the defendant-appellant and Sri M.K. Gupta with Sri Amit Daga, learned counsel for the plaintiff-respondent No.1. The other respondents are only formal parties. They were other defendants to the suit who have not preferred any appeal and as such have accepted the decree of the lower appellate Court. The counsel for the contesting parties agree for the disposal of appeal in their absence. Accordingly, dispensing service upon respondents No.2, 3/1 to 3/3 the appeal was heard on merits.
(2.) THE dispute in the suit giving rise to the present appeal is in respect of plot No. 80 (old No. 884 and 894) situate in village and kasba Sahapur, District Muzaffarnagar. The Town Area Committee, Sahapur in a representative capacity instituted original suit No. 99 of 1986 against Illiyas and others for possession over the area marked in blue and red colour forming part of the aforesaid land as shown in the plaint map and for a decree of permanent injunction in respect of remaining land of the said plot. In the suit separate written statements were filed by defendants No. 1 and 2. The other three defendants who were the officials/agents of the U.P. Sunni Central Board of waqf Lucknow were deleted and in their place defendant No.3 U.P. Sunni Central Board of waqf Lucknow itself was impleaded under the order of the Court. However, the defendant No.3 did not file any written statement and failed to adduce any evidence in defence though it participated in the proceedings. The suit was dismissed by the Court of first instance vide judgment and order dated 20.2.1998 but the appeal preferred by the plaintiff Town Area Committee, Sahapur has been allowed and the suit for possession as well as permanent prohibitory injunction has been decreed with a mandatory direction to the defendant No.3 to remove the existing constructions from the area of plot No. 80 which has been marked in blue and red colour in the plaint map. Thus, the defendant No.3, the U.P. Sunni Central Board of waqf Lucknow alone had come-up in this second appeal.
(3.) BRIEFLY stated the facts of the case are that the disputed land i.e. plot No. 80 in the basic year i.e. 1359 Fasli was recorded as 'banjar' and 'marghat'. It is said that with the abolition of Zamindari in U.P. it had vested in the State of U.P. by virtue of Section 4 of U.P.Z.A. and L.R. Act, 1950 (hereinafter referred to as an Act) and its management was entrusted to the Town Area Committee, Sahapur by a notification issued under Section 117 of the Act. Later, the said land came to be recorded as 'kabristan'. The defendants on the area shown by blue colour in the plaint map constructed a room and a 'masjid' and were in the process of constructing 10 shops with a 'veranda' on the area shown by red colour in the plaint map which constructions were completed during the pendency of the proceedings. Therefore, the Town Area Committee, Sahapur contended that as the land was entrusted to it for the purposes of management by the State Government, the defendants have no authority of law to raise any constructions and the possession of the said area of the plot is liable to be restored to it. The defendant No. 1 through his written statement contended that the plot in dispute is recorded as 'kabristan'. It is the property of the U.P. Sunni Central Board of waqf Lucknow on whose behalf a committee has been constituted to manage and supervise the working of the 'kabristan'. Even if in the basic year the land was recorded as 'banjar' nonetheless, as it is in use as 'kabristan' it would be treated as 'kabristan' and would not vest in the State of U.P. So the plaintiff Town Area Committee, Sahapur is not entitled for any relief. The defendant No.2 in his written statement pleaded that plot No. 884 and 894 were the properties of one Rahamat Illhai Khan. The land of plot No. 894 was given to his father by the successors of the aforesaid Rahamat Illai Khan as a gift and thus, his father came in possession and started cultivating the same. A part of plot No. 884 was also transferred by the successors of Rahamat Illhai Khan again in favour of his father vide document dated 15.12.1944. His father surrendered the entire land for the 'masjid' and 'madarsa' and himself became the mutwalli retaining part of land of Khasra plot No. 884 for himself. During the consolidation proceedings the aforesaid land was consolidated and was given a new number 80 and the remaining area of 884 came to be recorded as 'banjar'. On the northern part of the said land there exists a 'kabristan' for the last 40 years. The Court of first instance framed as many as four issues. Issues No. 1 and 3 were the main issues concerning the merits of the suit namely: 1. D;k oknh oknxzLr lEifRr dk ekfyd dkfct gSA 3. D;k oknxzLr lEifRr oDQ dfczLrku rfd;k ek:Q cM+k ckx dh feyfd;rh gS o dkfct gS ftldh bUrtkfe;k desnh lqUuh lsUV y oDQ cksMZ ls izfroknhx.k 3 yxk;r 5 gS \ vU; vuqrks"kA;