TATIA, J. - (1.) HEARD learned counsel for the parties.
(2.) ACTION of the Wakf Board is under consideration in these matters - One writ petition preferred by Bhanwarlal (now deceased) having No. 6233/1991, another is regular first appeal having No. 29/1991 preferred by Dil Azad Khan and two revision petitions having No. 622/1991 and 623/1991 preferred by Rajasthan Board of Muslim Wakf (for short `wakf Board' ). Since the facts of the case are interconnected and there is change in law as New Wakf Act of 1995 has been enacted subsequent to the passing of the order by the District Collector and District Judge and after the decision of the trial Court in suit filed by Dil Azad Khan, therefore, all these matters are decided together. The facts of the case are that the Wakf Board initially claimed that the land in dispute, which is in possession of Dil Azad Khan (now deceased) was Wakf property and a proper declaration has been made under the provisions of Rajasthan Wakf Act and proper notifications have been published in gazette under Section 5 of the Wakf Act on 16. 6. 1966. The property has been shown at S. No. 77 in the list of wakf properties. Dil Azad Khan was mutawalli of the said Wakf and he was removed by the order of Wakf Board dated 17. 7. 1967. Since Dil Azad Khan did not deliver the possession of the property to the Wakf Board, therefore, an application dated 26. 10. 1967 was submitted by the Secretary, Wakf Board seeking execution of an order of Wakf Board dated 28. 7. 1967 in the Court of Civil Judge, Udaipur. In the said application, it is stated that the Wakf Board has passed the order of eviction against said Dil Azad Khan from Araji No. 1926 measuring 2 bighas 14 biswas situated near Tourist Bungalow, Udaipur and since he has not delivered the possession, therefore, the order be executed by the Civil Court. Notices were issued to Dil Azad Khan who submitted several objections against the executability of the order dated 28. 7. 1967 of Wakf Board. Though there were several objections but the execution of the order dated 17. 7. 1967 sought by the Wakf Board was dismissed by the learned Civil Judge, Udaipur. Wakf Board, therefore, preferred appeal in the District Court which was allowed by the District Judge, Udaipur vide order dated 29. 7. 1973. The learned District Judge, Udaipur rejected the contention of the Wakf Board that the property in possession of Dil Azad Khan is covered by entry at S. No. 77 of the list of the properties of Wakf situated in Udaipur city of Rajasthan. Since the very foundation for issuing the order for eviction of Dil Azad Khan i. e. the property being Wakf property was missing, therefore, the appellants court held that without a proper notification declaring the property to be Wakf property, the Board lacks jurisdiction inherently to pass any order under Section 43 (1) or Section 43 (5) of the Wakf Act. This order became final as has not been challenged by the Wakf Board. The learned District Judge in his order dated 29. 9. 1973 observed that the Wakf Board shall be free if law so permits to publish a notification under Section 5. Therefore, with the order dated 29. 9. 1973 it has been finally decided that the property in question of Dil Azad Khan was not the Wakf property as it is not covered under entry at No. 77 of Wakf properties as published under the provisions of Wakf Act. Subsequent to that, on 21. 4. 1980, an order was issued by the District Collector, Udaipur in the names of Dil Azad Khan, Bhanwar Lal and Rustam Khan. In this notice, copy of which is placed on record of writ petition No. 6233/1991 as Annex. 4, again it is mentioned that the land of Khasra No. 1926 (which was also given in the earlier notice) measuring 2 bighas 9 biswas but subsequently reduced due to some portion being included in the road, has been declared as wakf property and so has been published in Rajasthan Rajpatra Part 2k dated 16. 6. 1966 at page 6 but at item No. 62 (earlier it was claimed to be property described in item No. 77) has been entered as such in the register of Wakf mentioned under Section 26 of the Wakf Act. The notice conveyed that with the publication of notice in the gazette, the property became wakf property conclusively and finally and, therefore, the Wakf Board is entitled to take possession from the above mentioned three persons. This notice was challenged by Dil Azad Khan and Bhanwar Lal by preferring two separate appeals No. 154/1980 and 61/1980 before the learned District Judge, Udaipur. It was contended by both the appellants Dil Azad Khan and Bhanwar Lal that the learned District Judge already held that the property in dispute is not the Wakf property and the Wakf Board has not published any new notification declaring the property to be Wakf property by following the provisions of Wakf Act, therefore, the appellants cannot be evicted by the Wakf Board.
(3.) THE learned District Judge also took note of the fact that the earlier action was taken on the basis of entry No. 77 whereas now action has been initiated treating the property to be covered under entry No. 62. THE learned District Judge observed that the decisions given by the District Collector as well as Wakf Board were without holding any enquiry and, therefore, only on this ground, the orders of the District Collector dated 1. 4. 1979 as well as of Wakf Board dated 21. 4. 1980 were quashed. However, the learned District Judge by the impugned order dated 13. 8. 1991 after quashing orders of eviction of said persons, remanded the matter to the Wakf Board for holding fresh enquiry after giving full opportunity to both the appellants and thereafter to pass appropriate orders. Petitioner Bhanwar Lal has challenged the order of the District Judge dated 13. 8. 1991 by filing writ petition No. 6233/1991 as the petitioner is aggrieved against the remand of the matter to the Wakf Board and according to the petitioner, the Wakf Board itself cannot hold the enquiry as Wakf Board itself is interested party. The Wakf Board being aggrieved against the orders of the District Judge, Udaipur preferred these two revision petitions No. 622/1991 and 623/1991. Plaintiff/appellant Oil Azad Khan preferred regular first appeal No. 29/1991 because of the reason that the trial Court dismissed his suit for declaration and injunction which was filed for the same property from which eviction has been sought by Wakf Board by initiating proceedings under Wakf Act and eviction proceedings were quashed by the District Court by the impugned order dated 13. 8. 1991 impugned in writ petition and two revision petitions. ;