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Kurban S/O. Kasimali Kazi Vs. Tasduq Ahmedali S/O. Kasimali Kazi and ors. (23.03.20 07 - Bomhc) - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtMumbai High Court
Decided On
Case NumberWrit Petition No. 6427 of 2006
Judge
Reported in2007(4)ALLMR79; 2007(3)BomCR613; 2007(4)MhLj486
ActsWakf Act, 1995 - Sections 3; Atiyat Inquiries Act, 1952 - Sections 2 and 6; Hyderabad Abolition of Inams Act, 1954
AppellantKurban S/O. Kasimali Kazi
RespondentTasduq Ahmedali S/O. Kasimali Kazi and ors.
Appellant AdvocateR.R. Shaikh, Adv.
Respondent AdvocateS.S. Kazi, Adv. for Respondent No. 1 and ;Kishor Patil, AGP for Respondent No. 2 and 3
DispositionPetition allowed
Excerpt:
- section 3: [s.b. mhase, d.s. bhosale & a.s. oka, jj] offences of atrocities - complaint under held, merely because the caste of the accused is not mentioned in the fir stating whether he belongs to scheduled caste or scheduled tribe, it cannot be a ground for quashing the complaint. after ascertaining the facts during he course of investigation it is always open to the investigating officer to record tht the accused either belongs to or does not belongs to schedule caste or scheduled tribe. after final opinion is formed, it is open to the court to either accept the same or take cognizance. even if the charge sheet is filed at the time of consideration of the charge, it si open to the accused to bring to the notice of the court that the materials do not show that the accused does not..........holder, filed an application exhibit 24 in special darkhast no. 46/2003 seeking attachment of the land survey no. 329/h and sale of the suit property by auction, for the recovery of decreetal amount of rs. 1,48,361.83. this application after hearing the parties, is allowed by the learned jt.civil judge (senior division), latur by the order passed on july 17th, 2006. this order is passed below exh.24 in special darkhast no. 46/2003, is under challenge in this writ petition.4. the agricultural land survey no. 329/h, admeasuring 0 acre 19 gunthas, is situated at village ausa, dist.latur. attachment and sale of the property is sought by the decree holder. the learned counsel mr. r.r. shaikh, for the petitioner, has invited my attention to 7/12 extract of the land survey no. 329/h/6.....
Judgment:

S.B. Deshmukh, J.

1. Heard the learned Counsel Mr. R.R.Shaikh, for the petitioner, learned Counsel Mr.S.S.Kazi, for respondent No. 1 and learned AGP Mr. Kishor Patil, for respondent Nos. 2 & 3.

2. Rule, returnable forth with. Rule is heard finally with the consent of the parties.

3. A resume of relevant facts would suffice. The petitioner was defendant No. 3 in Special Civil Suit No. 7/1993 filed by the respondent No. 1 in this petition. Special Civil Suit No. 7/1993, for recovery of Rs. 49,264.33, was decreed by the learned Jt. Civil Judge, (Senior Division), Latur by the Judgment and Decree dated June 25th, 1998 against the original defendant Nos. 3 and 4 to 7 in the suit. This money decree, is put into execution by the respondent No. 1/original plaintiff by filing Special Darkhast No. 46/2003. The respondent No. 1/Decree holder, filed an application Exhibit 24 in Special Darkhast No. 46/2003 seeking attachment of the land survey No. 329/H and sale of the suit property by auction, for the recovery of decreetal amount of Rs. 1,48,361.83. This application after hearing the parties, is allowed by the learned Jt.Civil Judge (Senior Division), Latur by the order passed on July 17th, 2006. This order is passed below Exh.24 in Special Darkhast No. 46/2003, is under challenge in this writ petition.

4. The agricultural land survey No. 329/H, admeasuring 0 Acre 19 Gunthas, is situated at village Ausa, Dist.Latur. Attachment and sale of the property is sought by the Decree Holder. The learned Counsel Mr. R.R. Shaikh, for the petitioner, has invited my attention to 7/12 extract of the land survey No. 329/H/6 admeasuring 01 Hector 82 R. It appears from this 7/12 extract that the name of present petitioner is shown for the area of 0 Hector 19 R out of this land survey No. 329/H/6. This land, according to the learned Counsel for the petitioner, is Wakf property. In support of this contention, he has invited my attention to the Maharashtra Government Gazette dated April 17th, 1980 which is enclosed in this petition. It appears that this land survey No. 329 has a holding admeasuring 37 Acres 21 Gunthas, situated at village Ausa, Dist.Latur as mentioned in this Government Gazette, owned by Jama Masjid, a Wakf. From Column No. 3 of this Government Gazette it appears that this Wakf is of 'Sunni' sect. It is also mentioned, in column No. 4 that it is religious Wakf. Annexure-F, is crop statement of the land survey No. 329/1. This revenue record seems to be of the year 1954. Reference in this record, in relation to land survey No. 329/1 appears to be as 'Inam'. The Wakf Property is defined under Section 3(r)(ii) of the Wakf Act, 1995, which reads thus:

3(r)(ii) 'grants', including mashrut-ul-khidmat for any purpose recognised by the Muslim law as pious, religious or charitable;

5. From the material which is placed on record and in view of the definition 'wakf', in my view, land survey No. 329/H prima facie, can be said to be Wakf Property.

6. Mr. R.R. Shaikh, learned Counsel for the petitioner has also invited my attention to Section 6 of the Atiyat Inquiries Act, 1952 (Hyderabad). Section 6 of the Atiyat Inquiries Act, 1952 (Hyderabad), ( hereinafter referred to as 'Act of 1952' for short ) lays down that Atiyat grants shall not be liable to be transferred or encumbered. 'Atiyat grants', are defined under Section 2(b) of the Act of 1952, which reads thus:

2(b) 'Atiyat grants' means

(i)...

(ii) Inams to which the Hyderabad Abolition of Inams Act, 1954 (VIII of 1955) is not applicable;

7. According to the learned Counsel for the petitioner, in view of Section 2(b)(ii) the land survey No. 329, is Atiyat grants and in view of the provisions laid down under Section 6 of the Act of 1952, is not liable for transfer, attachment or encumbrance. Prohibition is also for attachment and sale of such Atiyat grants by any Court.

8. There is no serious dispute regarding the nature of the property. The learned Counsel Mr. S.S. Kazi, for respondent No. 1, has invited my attention to the provisions of Section 6 of the Act of 1952. According to him, Court is contained to attach or sale any Atiyat grant or any portion or share thereof. He also admits that Atiyat grant, is not subject to transfer or encumbrances. However, proviso, permits the attachment of the income, in execution of a decree through the Revenue Department. Exh.24 is the application filed by the Decree Holder for attachment and sale of the land to the tune of O Hector 19 R, out of survey No. 329, situated at village Ausa, Dist.Latur. In this view of the matter, it is not necessary now, in this proceedings, to consider the scope of proviso of Section 6 of the Act of 1952. Suffice it to say that the attachment and sale, which is ordered by the trial court, by allowing the application Exh.24 in Special Darkhast No. 46/2003, is illegal. If the order impugned is not quashed and set aside, it would result in failure of justice. The order impugned, in this view of the matter, is without jurisdiction and requires to be quashed and set aside under supervisory jurisdiction of this Court.

9. In the result, petition is allowed. The impugned order in this writ petition, below Exh.24 passed by the learned Jt.Civil Judge (Senior Division), Latur in Special Darkhast No. 46/2003 dated 17.07.2006, is quashed and set aside. No costs.

10. Rule is made absolute in the above terms.


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