IN THE COURT OF ADDL.

DISTRICT JUDGE (CENTRAL

DISTRICT), TIS HAZARI COURTS AT DELHI

Regular First Appeal No. __________/2023

BETWEEN:
Anjuman-e-Khuddam Qabristan Dargah Hazrat
Khawaj Baki Billa & Dargah Hazrat Akhundji & Ahata
Haji Moha Ahmed
Idgah Road Qutab Road, Delhi
Through its Secretary Mohd. Nasir Usman Appellant

AND:
Delhi Wakf Board,
Through its Secretary
Daryaganj, Delhi Respondent

INDEX
Sl. No. Particulars Page No.
1 Memorandum of Appeal under section 96
of the code of civil procedure

Verifying affidavit

ANNEXURE- A : Certified Copy of

Judgment

ANNEXURE- B : Certified Copy of Decree

Vakalathnama

Date:
Place: Delhi Advocate for the Appellant
 IN THE COURT OF ADDL. DISTRICT JUDGE (CENTRAL
DISTRICT), TIS HAZARI COURTS AT DELHI

Regular First Appeal No. __________/2023

BETWEEN:
Anjuman-e-Khuddam Qabristan Dargah Hazrat
Khawaj Baki Billa & Dargah Hazrat Akhundji & Ahata
Haji Moha Ahmed
Idgah Road Qutab Road, Delhi
Through its Secretary Mohd. Nasir Usman Appellant

AND:
Delhi Wakf Board,
Through its Secretary
Daryaganj, Delhi Respondent

SYNOPSIS
Dates Events
08.12.2078 Appellant issued Respondent a notice stating its
management and possession rights.
20.12.1979 Sh. Mohammed Usman received a letter in his
personal capacity that stated that under Section
43 of the Wakf Act, the management is assumed
for one year by Respondent.
19.01.1980 Date of institution of suit by Appellant
27.08.2021 Impugned Judgment was pronounced

BRIEF FACTS OF THE CASE

The Appellant submits that on 08.12.2078 the Appellant
issued Respondent a notice stating its management and
possession rights and also stating that the Respondent society
has no right to appoint any person as Sajda Nashin for the Wakf
property, Anjuman-e-Khuddam Qabristan Dargah Hazrat
Khawaj Baki Billa & Dargah Hazrat Akhundji & Ahata Haji Moha
Ahmed situated at Idgah Road Qutab Road, Delhi.
 The appellants further submits that, as a reply to the above
notice the respondent vide letter dated 22.01.1979
communicated that the matter is being referred to the Board
meeting for consideration and decision. Later, Sh. Mohammed
Usman received a letter in his personal capacity on 25.04.2014
that under Section 43 of the Wakf Act, that the management is
assumed for one year by the Respondent. Moreover, the
respondent have never managed the wakf property in question
and the appellant has been the one who always acted in as a
legal entity for the purpose of suits.

The Appellant being highly aggrieved by the Judgment and

decree dated 27th August, 2021, passed Hon’ble Civil Judge, at
Tis Hazari Courts, Delhi, wherein the Hon’ble court has passed
following order:

“159. In view of above discussions, the plaintiffs are not

entitled for any relief, they prayed for.
160. Hence, the suit of the plaintiff is dismissed
161. Decree sheet be prepared accordingly.
162. File be consigned to record room after due
compliance”

Though the suit was decreed, the relief sought by the

Appellant i.e declaration and permanent injunction dated
27.01.2021, has been denied. Hence the Appellant prefers this
Appeal.

Date:

Place: Delhi Advocate for the Appellant

 IN THE COURT OF ADDL. DISTRICT JUDGE (CENTRAL
DISTRICT), TIS HAZARI COURTS AT DELHI

Regular First Appeal No. __________/2023

IN THE COURT OF CIVIL JUDGE-06, (CENTRAL), TIS HAZARI

COURTS AT DELHI

ORIGINAL SUIT No.: 1264/2020

IN THE COURT OF ADDL. DISTRICT JUDGE (CENTRAL

DISTRICT), TIS HAZARI COURTS AT DELHI

Regular First Appeal No. __________/2023

RANK OF THE PARTIES

Trial Court/ High Court

BETWEEN:
Anjuman-e-Khuddam Qabristan Dargah Hazrat
Khawaj Baki Billa & Dargah Hazrat Akhundji & Ahata
Haji Moha Ahmed
Idgah Road Qutab Road, Delhi
Through its Secretary Mohd. Nasir Usman …Plaintiff/Appellant

AND:
Delhi Wakf Board,
Through its Secretary
Daryaganj, Delhi ...Defendant/Respondent

MEMORANDUM OF REGULAR FIRST APPEAL UNDER

SECTION 96 OF THE CODE OF CIVIL PROCEDURE CODE,
1908
The Appellant herein most respectfully submits as under:

1. The address of the Appellant for the purposes of service of

summons, notices etc. is as shown in the cause title, and that
of his Counsel G. A. Madni, is, 2 nd Floor, 8th Cross, 5th main,
M.R.C.R. Layout, Vijayanagar, Delhi.
2. The address of the Respondents for the similar purposes are
as shown in the cause title.

3. The Appellant being highly aggrieved by the Judgment and

decree dated 27th August, 2021, passed Hon’ble Civil Judge,
at Tis Hazari Courts, Delhi, wherein the Hon’ble court has
passed following order:
“159. In view of above discussions, the plaintiffs are not
entitled for any relief, they prayed for.
160. Hence, the suit of the plaintiff is dismissed
161. Decree sheet be prepared accordingly.
162. File be consigned to record room after due
compliance”
Prefers this appeal on the following facts and grounds

BRIEF FACTS OF THE CASE

4. The Appellant submits that on Qutub Road, outside Delhi
city, there is a shrine of Hazrat Khwaja Baqi Billa which has
been in existence for 100 years. Around the said shrine there
is a grave yard of Mohammedans. It comprises of 43620
sq.yds of land approximately. There is a mosque and Dargahs
adjoining to the Dargah Khwaja Baqi Billa which are named
as Dargah Akhundji Sahab and Ahata Haji Mohd. Ahmed. The
grave yard and mosque are attached with Dargah Hazrat
Khwaja Baqi Billa.

5. The Appellant further submits that there was no specific deed

or Wakf to create the Wakf of the said property by Khwaja
Baqi Billa nor any person had any authority to do so, but in
the Government record, from the 18th Century it continued to
be entered as a grave yard. After mutiny in 1857, this
property was attached by the Government and was released at
 the instance of a Khadim (Mujawar) named Mohammed Hayat
Khadim, the Deputy Commissioner. It was declared a Wakf
property in number of litigations pending in 1987.

In the year 1917 and 1920 suits were filed against Muzaffar
Ali, son of Sh. Mohd. Nazir Ali in respect of Dargah of Hazrat
Khwaja Baqi Billa and grave yard attached with it, in which it
was prayed that Muzaffar Ali had no right to sell or deal with
the property being a Khadim. Futher, in a suit it was admitted
that the said Dargah along with the grave yard was being
managed by Anjuman Muhafiz Aukat a registered body of
which Sayyed Mohd. Mir was declared himself as a secretary
and it was clearly stated that Muzafar Ali was not a
Sajjadanashin or he was related to, nor he was descendant of
Khwaja Baqi Billa.

6. The Appellant submits that as mentioned above that the

custom prevalent in respect of the aforesaid Dargah and grave
yard that from the time immemorial it is being
managed/administered by a committee or Society appointed
elected by Mohammedan Community. There was no Wakf
Deed regulating and appointing any Mutawalli or
Sajadanashin to manage the aforesaid Dargah and the
attached grave yard. Even at the time of partition it was
administered by Committee.

7. The Appellant submits that even after commencement of Wakf

Act, 1954, Delhi Wakf Board had never been in possession of
the aforesaid property nor had control over it nor the Wakf
Board appointed any person as a Mutawalli or Sajada Nashin
or had any such authority under Section 15 of the Wakf Act.
Additionally, according the Act the Board shall act in
conformity with the custom of the sanctioned Muslim Law
 and thus, the custom attached with the aforesaid Dargah and
grave yard should be followed. In the year 1948, Lt. Mumtaz
Ahmed, was entrusted temporarily management of Dargah by
a peace committee constituted by the public/having faith in
the Dargah Khwaja Baqi Billa. The major portion of the land
attached to the Dargah belonged to it had been forcibly
occupied by refugees who had started living thereupon and
they are still living there.

8. It is further submitted that after commencement of the Wakf

Act, the defendant did not take any steps for the possession of
the land till today in spite of number of reminders sent to
them. Approximately about 32,000 sq.yds out of 36,200
sq.yds is occupied by unauthorized occupants. Some
occupants has started encroaching upon the fencing wall of
the grave yard built by the plaintiff committee at its own cost
and the plaintiff had filed a suit for mandatory injunction
against them. One Sh. Anis Hasan is alleged to have filed a
suit for injunction against Late Sh. Mumtaz Ahmed being suit
no. 195 dated 17.06.1960/579 dated 23.12.1957 praying that
he was the Sajjada Nashin of Dargah as he was elected and
nominated by his father who was elected by the congregation
but he was never in possession of the Dargah property and
grave yard. Neither, he managed the property at all. Further
he claimed his right as one of the members of the Committee
while the alleged committee never resumed possession of the
Dargah Hazrat Khwaja Baqi Billa, grave yard etc. nor the said
committee had ever controlled the Management. Virtually the
alleged committee was a body constituted by the defendant on
paper alone.

9. The appellant further submits that after the above incident

the members of the Mohammedan Committee and the
 followers of Khwaja Baqi Billa Naqsh Bandis in the year 1971
and deputed Sh. Mohd. Usman, now the Secretary of the
plaintiff society to look after the affairs of the Dargah Mosque
and grave yard. He constructed 10 feet boundary wall from
his own money and raised funds around the total area of the
grave yard, Mosque and Dargah to maintain the dignity and
sanctity of the Dargah. In the year 1971 when Mohammed
Usman took physical possession of the whole Wakf property
he suggested and after election a society was formed by the
congregation of Mohammedan Committee according to the
custom prevalent. The society was registered in 1972 as per
the resolution dated 02.06.1972 passed and the same was got
registered on 25.06.1972. The said society was named as
Anjuman-e-Khuddam Qabristan and Dargah, Hazrat Khwaja
Baqi Billa and Dargah Akhundji and Hata Haji Mohammed
Ahmed Idgah Road Delhi who is in actual possession and is
managing the affairs of the Wakf properties.

10. The Appelant submits that on 12.04.1977, the plaintiff

society had written a letter under Section 55 (2) of the Wakf
Act for seeking permission to file suit against unauthorized
occupants, but no reply was received nor the defendant took
any action, it proves that the defendant never entered into
possession of the disputed Wakf property nor it managed it
nor they had any right to do so. On 27.05.1978, in another
letter defendant was informed that the plaintiff society is
managing the affairs of the aforesaid property and they are
Mutawallis and that Board can’t take any decision with
respect to management of the Dargah without firstly giving
proper hearings and opportunity to the plaintiff society.
Further, in a subsequent letter dated 15.05.1978 it was stated
that the Wakf Board cannot appoint any person as Sajda
 Nashin. Lastly the plaintiff served a notice dated 08.12.1978
under Section 55 of The Wakf Act, which was acknowledged
by the defendant vide letter dated 22.01.1979 that the matter
is being referred to the Board meeting for consideration and
decision.

11. It is further submitted that vide resolution dated

20.07.1979, the defendant dissolved the committee alleged to
have been appointed on 11.05.1963. Additionally, a personal
letter addressed to Sh. Mohammed Usman in January 1989
stated that vide resolution dated 20.07.1979, the
management of the Dargah is assumed by the defendant
board. The same is unwarranted for when the management
and the possession is with the elected society and not with
Mohammed Usman in his personal capacity. The aforesaid
Anis Hasan in execution of a decree against Lt. Sh. Mumtaz
Ahmed tried to execute the same against the plaintiff. In the
said suit the order of status quo was passed which means
that the plaintiffs’s possession is not disturbed and they will
continue to manage the same.

12. The appellant submitted that defendant has no power or

right to assume the management of the Dargah Hazrat
Khwaja Baqi Billa and the grave yard and Hujras and Mosque
attached with the same. It was further submitted that the
plaintiff is a Mutawalli under Section 3 (f) of the Wakf Act and
that the custom of the Dargha is protected under Section 15
(I) Proviso of the Act. Further, the plaintiff society was not
given the opportunity to be heard which is provided for under
Section 15 2(d) and that under Section 43(a) the Board can
assume direct Management, if no other suitable person is
available as Mutawalli for its appointment but in the present
case this can,t be applied and hence, the resolution dated
 20.07.1979 is contrary to law. In addition, the resolution is
motivated and initiated and passed at the instance of two
members of the Board named Mohd. Ismail and Akram Kadari
who coveted the property to convert the land of grave yard to
construct shops and charge huge rents for them to mis-
appropriated that for their personal benefit thereby depriving
the Mohammedan Community the utility land burying copse
and defeating the main object of the Wakf. As it is clear from
previous instances of their conduct.

13. On hearing the arguments from both the side, the Hon’ble
court on 27th August ,2021 passed the Judgment and thereby
ordered as under:
“159. In view of above discussions, the plaintiffs are not
entitled for any relief, they prayed for.
160. Hence, the suit of the plaintiff is dismissed
161. Decree sheet be prepared accordingly.
162. File be consigned to record room after due
compliance”

14. Though the suit was decreed, the relief sought by the
Appellant i.e permanent injunction and declaration dated
19.01.1980, has been denied. Hence the Appellant prefers this
Appeal.

15. The Appellant submits that he has not filed any other appeal
in this court or any court on the impugned Judgment and
decree.

16. The Appellant submits that the appeal filed is in time

17. The Appellant submits that he has paid court fee of

Rs._________, on the memorandum of Appeal.
 GROUNDS
18. The Ld. Trial court has failed to appreciate that the plaintiff
is a mutawalli of the Wakf property by use. In the present
case, the Dargah Hazrat Khawaja Baqi Billah was the Wakf
by user and therefore there is no deed of Wakf or any
instrument to regulate the Dargah, Mosque and Qabristan.

19. It is further argued that the court failed to appreciate that

the Dargah, mosque and Qabristan has been managed and
administered by the congregation of Muslim Community
through a elected society that takes care, manages,
administers and performs the religious functions. The elected
committee used to manage and administered according to
Muslim law, the affairs of Dargah, Mosque and Qabristan
including appointment of Imam etc. It is further argued that
the appellant society is such society and thus has been the
mutawalli and performing, taking care, managing and
administering the Dargah as a mutawalli, as per section 3 of
Wakf Act, 1954.

20. The appellant society had been maintaining, administering

supervising the affairs of Dargah since 1971 onwards
continuously and constantly even to the knowledge of the
respondent board and since no religious, pious and
charitable purpose of Dargah, mosque and Qabristan had
ever been changed by the appellant society at any moment in
any manner and since the appellant society never misused
the benefits of the Wakf property for their personal use and
personal gain, the appellant society was in all respect a
Mutawalli of Dargah, Mosque and Qabristan Hazrat Khawaja
Baqi Billah situated at Idgah Road, Qutab Road, Delhi-
110006.
21. That the trial court has failed to take into consideration that
there is an explicit and clear admission on the part of the
respondent board that appellant society is in possession of
Dargah, Mosque and Qabristan since 1971 and that the
respondent board from their side never did any Work, any
function or any activities. In the instance case, when the
learned trial court admitted the continuous possession of the
appellant society upon the Dargah, continuous management,
administration and looking after the Dargah should not be
differentiated as the learned court has already decided the
continuous possession in affirmative while answering,
whether the plaintiff has locus standi to file the suit in favour
of the appellant society, admitting thereby the possession and
administration of appellant society upon the Dargah Mosque
and Qabristan of Hazrat Khawaja Baqi Billah.

22. It is further argued on behalf of the appellant that the

learned trial court even decided and admitting that the
appellant society had been taking the legal steps against the
encroachers of Wakf property at their own without any
assistance of any kind of respondent board who despite
giving the information did not provide any assistance to the
appellant society more so, the respondent board never taken
or initiated any legal action against the encroachers.

23. Further, the trial court admitted that the appellant society
being a legal entity competent to sue and to be sued and its
management and administration including the physical
possession of Dargah, and that no other person was found
legible to be impleaded as a party in the suit to decide the
issues in question taking into consideration the subject
 matter of the suit, inspite of the fact, the learned trial court in
its later part of the judgment unnecessarily made the
difference between the continuous possession of the appellant
society and continuous management, administration and
supervision of Dargah in question performed by the appellant
society.

24. The Ld. Trial court while deciding the issues, over sighted its
previous findings in the judgment and came to the conclusion
that the appellant society remained unsuccessful in proving
its case and the issue. The learned trial court wrongly
observed that there is no impediment in drawing adverse
inference against the appellant society for non- production of
any documents or any of the register maintained by the
society for their management work being carried out.

25. The trial court made a mistake and ignored the factual
position of respondent board that within the period of 50
years, the respondent board did not take even a single step in
doing any type of work in Dargah in question for the benefits
and protection of Dargah. It was only the appellant society
who ever worked did each and every work to manage the
Dargah in question for the protection and benefit and welfare
of the Wakf property specifically as a mutawalli.

26. The trial court also failed to appreciate that all the civil
nature cases cannot be dealt with and would not be dealt on
the principal that the plaintiff has to make its case stand on
its own legs and not on the short comings of defendant's
case. It is submitted that the case of civil nature and civil
jurisprudence are usually been decided on the preponderance
of probabilities. It could have been the criminal jurisprudence
 that the prosecution has to stand on its own legs. While the
learned trial court ignored conduct of the respondent board
towards Wakf Property and did not appreciate the continuous
administration by the appellant society in its judgment and
wrongly came to the decision that the possession of the
appellant society over Dargah in question is not as a
mutawalli and the appellant society has failed to establish its
identity as Mutawalli in Dargah. Morover, declining the
possessory right as Morover, declining the possessory right as
Mutawalli.

27. The Ld. Trial court failed to appreciate that the relief of
declaration of the appellant society as Mutawalli was lying
proved as section 3 of the Wakf Act, 1954 recognized any
person or committee for the time being managing or
administering any Wakf property as such. In the instance
case, and taking into consideration the fundamental words of
the section and the definition favours the appellant society
that being the legal entity and duly registered society under
the Societies Registration Act 1860, the appellant society
managing, administering and supervising the Dargah, the
Wakf property in question. It is the trial court who by
ignoring the important and legal fact came to decide that the
appellant society is not the mutawalli of the Wakf property.

28. The trial court has failed to appreciate that the deposition of
DW- 1 who is the employee/officer of respondent board did
not depose against the possession and administration of the
appellant society. The learned trial court did not appreciate
the deposition of the witness in this regard and the learned
trial court unnecessarily differentiates the continuous
possession of the appellant society from continuous
 management, administration and supervision of the appellant
society over Dargah in question.

29. It is further that Ld. Trial court failed to appreciate that the
admission, conduct of the respondent board u/s 4, 5 and 8 of
Indian Evidence Act was ignored and over sighted by the
court. It is a matter of fact that if the appellant society was
not administering, managing and supervising the Dargah in
question since 1971 till the date as to who and by whom the
Dargah in question was being managed, supervised and
administered specifically when there are lot of documents and
the litigations have come on record initiated by the appellant
society against the encroaches and in order to protect and for
welfare of the Wakf property came on record and observed by
the learned trial court even while deciding the issues.

30. The Appellant craves the leave of this Hon’ble Court to raise
additional ground at the time of hearing.

PRAYER

WHEREFORE, the Counsel for the Appellant most

respectfully pray before this Hon’ble Court to
A. Call for the records in O.S.No.1264/2020 on the file of
Hon’ble Civil Judge-06, Tis Hazari Courts, Delhi.
B. Respondent may be restrained by permanent injunction
not to resume possession under Section 43A for the
reasons stated above.
C. That a resolution dated 20.07.1979 passed by the
respondent under Section 43A or Section 42 of the Delhi
Wakf Act may be set aside for the aforesaid reasons.
D. The appellant declared as the Mutavwalli of the suit
property under Section 3 of Delhi Wakf Act.
 E. Set aside the Judgment and decree dated 27th August,
2021, passed Hon’ble Civil Judge, at Tis Hazari Courts,
Delhi, in O.S No. 1264/2020.
F. For cost of the suit and appeal and for such other reliefs
as the Hon’ble Court deems fir to grant under the
circumstances of the case, in the interest of Justice.

Date:
Place: Delhi Advocate for the
Appellant
IN THE COURT OF ADDL. DISTRICT JUDGE (CENTRAL
DISTRICT), TIS HAZARI COURTS AT DELHI

Regular First Appeal No. __________/2023

BETWEEN:
Anjuman-e-Khuddam Qabristan Dargah Hazrat
Khawaj Baki Billa & Dargah Hazrat Akhundji & Ahata
Haji Moha Ahmed
Idgah Road Qutab Road, Delhi
Through its Secretary Mohd. Nasir Usman Appellant

AND:
Delhi Wakf Board,
Through its Secretary
Daryaganj, Delhi Respondent

AFFIDAVIT

I, Mohd. Nasir Usman, S/o Late Mohd. Kabir Usman, Aged

about 42 years, R/o. Galaxy Heights Near Pooja Tower, New
Delhi at Delhi, do hereby state as under:
1. I am the Appellant in this case, I am well conversant with
the facts and Circumstances of the case, hence I swear this
Affidavit.
2. I state that the contents of paragraph number 1 to are
true and correct to the best of my knowledge, belief and
information.
 3. I state that the documents produced as annexure a and b e
r certified copies.

I do swear on oath as to what is stated above is true and

correct to the best of my knowledge, belief and information.

DEPONENT
Identified by me
Advocate
Date:
Place: