CRP/3781/2012 of Abdul Rahman Vs G.Rajeshwari on 31 December 2012

THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

CIVIL REVISION PETITION Nos.3456, 3757 and 3781 of 201231.12.2012

Between:Abdul Rahman, S/o.Saheb Hussain And another

AND

… Petitioners/Petitioners/Defendants

G.Rajeshwari, W/o.late G.Narsimulu And others … Respondents/Respondents/Plaintiffs THE HON’BLE SRI JUSTICE G.KRISHNA MOHAN REDDY

CIVIL REVISION PETITION Nos.3456, 3757 and 3781 of 2012COMMON ORDER:

These civil revision petitions are filed against common orderdated 19.6.2012 passed in I.A.Nos.55, 56 and 57 of 2012 (I.As) in O.S.No.54 of 2003 on the file of the Court of Junior Civil Judge, Kodangal.

The petitioners herein are also the petitioners in the I.As anddefendants in the suit whereas the respondents herein are also therespondents in the I.As and plaintiffs in the suit.

I.A.No.55 of 2012 was filed under Section 151 of the Code ofCivil Procedure, 1908 (CPC) to set aside order dated 30.6.2011passed in the suit closing the evidence and reopen the evidence ofdefendants. I.A.No.56 of 2012 was filed under Order VII Rule 14 readwith Section 151 of CPC to condone delay in filing documents and toreceive them. I.A.No.57 of 2012 was filed under Order XIV Rule 5 readwith Section 151 of CPC to recast and frame additional issue as“Whether the Hon’ble Court is having jurisdiction to entertain the suit”.

The suit was filed by the plaintiffs for permanent injunction inrespect of the suit schedule property whereas the I.As were filed inorder to show that the suit schedule property happened to be Wakf property and not the property of plaintiffs who thereby got no right toseek for the relief of injunction in respect of the property. Earlierdefendants filed I.A.Nos.123 and 124 of 2011 to reopen the matter andframe the issue about the question of jurisdiction, which weredismissed by order dated 30.8.2011 against which CRP Nos.4201 and5705 of 2011 were filed before this Court.

The claim of defendants is that while the earlier CRPs werepending they approached the District Collector, Mahaboobnagar,Andhra Pradesh State Wakf Board, Hyderabad and other officers, andcame to know that the suit schedule property was Wakf property whichwas published in the A.P.Gazette on 24.1.2002 in accordance withSections 4 to 6 of the Wakf Act, 1954. Hence the property comesunder Section 3(o) & (r) of Wakf Act, 1995. But as they could notobtain necessary documents the earlier CRPs were dismissed on02.2.2012. Further, thereafter, they obtained the documents nowsought to be marked by reason of which necessary measures are to betaken.

In fact in the suit they have taken the plea that they purchasedthe property from one Pitla Mallaiah by reason of which they got rightand title over the property. In view of the changed circumstances, theypleaded that they got only right of possession but not any title over theproperty.

The claim of the plaintiffs is that the defendants cannot take newplea contrary to the pleas taken in their written statement earlier. When once the petitions filed earlier for the same reliefs weredismissed, the very same issues cannot be raised again. Apart fromthat it is important that this Court confirmed the order passed in theearlier I.As vide order dated 30.8.2011. The Court below dismissedthe I.As on the ground that the plea in question taken was notsupported by the pleadings of the defendants by reason of which thequestion of receiving the documents and the question of framingadditional issue in that behalf would not arise at all. Further the suitwas posted for arguments.

Learned counsel for defendants has contended that when thesuit was filed for permanent in respect of the suit schedule property, itis relevant as to whether the property belongs to defendants or theWakf Board. Therefore, in that view of the matter, the petitions aretenable.

On the other hand, learned counsel for the plaintiffs has upheldthe observations made by the Court below while disposing of the I.As.

Arguments

What is important here is that the plea in question taken by thedefendants is altogether a different from their pleadings. Earlier in theirwritten statement they had taken the plea that having purchased theproperty from Pitla Mallaiah, the original owner, they became theabsolute owners of the property and accordingly they had been inpossession and enjoyment of the property. They cannot go beyondthe pleadings. That can be done if suitable amendment can bebrought about subject to law. Significantly in the I.As filed earlier thesame plea was taken seeking for the same relief which pleas wererejected following which CRP Nos.4201 and 5705 of 2011 were filedbut they were also dismissed. In fact this Court while disposing of theCRPs observed as follows.

Admittedly, the petitioners have not taken the plea in thewritten statement that the property is wakf property. Butbasing on the subsequent development in O.S.No.28 of 2002,they filed the impugned I.As. Further the petitioners have notplaced any record before the Court below even though it isargued by them that the said property is declared as wakfproperty by notifying the same in the official gazette. In theabsence of any such document filed, the Court below is not ina position to appreciate the contention of the petitioners. Therefore, in the absence of any authenticated document, theCourt below rightly dismissed the impugned I.As., which donot warrant any interference by this Court in exercise of itssupervisory jurisdiction under Article 227 of Constitution ofIndia.

Thereby the same pleas now cannot be taken up. Pertinently thematter has been coming up for arguments.

In Shameem Sulthana v Syed Ibrahim Quadri[[1]], this Court considered the same question. The corresponding suit was filed by the respondents/plaintiffs therein for perpetual injunction in respect ofthe property scheduled therein claiming to be the absolute owner ofthe property. The petitioner therein/defendant in the suit took a pleathat it happened to be Wakf property by reason of which the concernedCivil Court got no jurisdiction. The defendant also filed I.A. to returnthe plaint filed for the purpose of presenting it before the WakfTribunal. The IA was dismissed and then the matter was brought tothis Court which was allowed.

But the same analogy is not applicable herein when thepleadings of the defendants are quite different. Anybody interested inthe Wakf property actually can take necessary action as per law. Therefore, there are no merits in these civil revision petitions.

With the observations made, the civil revision petitions aredismissed. Miscellaneous petitions pending if any shall stand closed. No order as to costs.

December , 2012.YS

_________________________________

(G.KRISHNA MOHAN REDDY, J)

[1]LC 2011 (12) AP 179 : CRP No.744 of 2008, dated 12.11.2010