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[1 Regular Civil Appeal Nos.
436/2010, 153/2011 & 329/2016
BEFORE THE SPECIAL JUDGE, SPECIAL COURT FOR

DIFFERENTLYABLED PERSONS, SENIOR CITIZENS AND
MARGINALIZED SECTION OF SOCIETY, NAGPUR.
(Presided over by Mrs. P.F. Sayyad)
MHNG010068492010 Presented on : 23-09-2010

Registered on : 30-09-2010
Decided on : 02-05-2022
Duration : 11 years, 7 months, 9
days
REGULAR CIVIL APPEAL NO.436/2010 Exh.No

(Arising out of R.C.S.No. 194/2004)
Smt. Jaheda Bi Abdul Razzaque Shetye,

Aged about 61 years, OccAgriculturist,
R/o Bazar Chowk, Kalmeshwar,
DistrictNagpur. APPELLANT
(Original Plaintiff)
…verses..
1) Shri Sheikh Nabi Sheikh Rasool,

Aged about 80 years, OccNot known,
2) Shri Habib Nabi Sheikh,

Aged about 50 years,
3) Shri Shabbir Nabi Sheikh,

4) Shri Asif Nabi Sheikh,

5) Bilkis Asif Sheikh,

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

(Dismissed).odt.odt Continue..P/1
[2 Regular Civil Appeal Nos. 436/2010, 153/2011 & 329/2016
All R/o Budhwari Peth, Umrder,

Tahsil Umrer, DistrictNagpur.
6) Sheikh Zamir Sheikh Ahmad,

R/o Bazar Chowk, Old Nagar Parishad,
Kalmeshwar, Tahsil Kalmeshwar,
DistrictNagpur.
7) Shabana Sheikh Ahmad,

R/oC/o Habib Rahmatullah Sheikh,
New Bidipeth, Plot No.26/A,
Near Corporation School, Ayodhanagar,
Nagpur.
8) Shahin Sheikh Ahamad,

R/o C/o Mohit Haji Abdul Rashid Sheikh
Rahmat Manzil, Itwari, Mirchi Bazar,
Marwadi Chowk, Opposite Maharaja Garage
Nagpur. RESPONDENTS
(Original Defendants)
Appearances:
1) Shri Masood Shareef, learned Advocate for appellant.
2) Shri R.T.Anthony, learned Advocate for respondent Nos. 1 to 4.
3) Shri Anand Gode, learned Advocate for respondent No.5.
-----------------------------------------------------------------------------------------------------
Decided on : 02-05-2022
days

REGULAR CIVIL APPEAL NO. 153/2011

1) Sheikh Zamir Sheikh Ahmad,
R/o Bazar Chowk, Old Nagar Parishad,
DistrictNagpur.
2) Shabana Sheikh Ahmad,

R/oC/o Habib Rahmatullah Sheikh,
New Bidipeth, Plot No.26/A,
Near Corporation School, Ayodhanagar,
Nagpur.
3) Shahin Sheikh Ahamad,

R/o C/o Mohit Haji Abdul Rashid Sheikh
Rahmat Manzil, Itwari, Mirchi Bazar,
Marwadi Chowk, Opposite Maharaja Garage
Nagpur. APPELLANTS
(Original defendant Nos.6, 7 and 8)
…verses..
1) Shri Sheikh Nabi Sheikh Rasool,
2) Shri Habib Nabi Sheikh,

Aged about 50 years,
3) Shri Shabbir Nabi Sheikh,

4) Shri Asif Nabi Sheikh,

5) Bilkis Asif Sheikh,


All are R/o Budhwari Peth, Umrder,

Tahsil Umrer, DistrictNagpur.
(Original defendant Nos.1 to 5)
6) Smt. Jaheda Bi Abdul Razzaque Shetye,

DistrictNagpur.
(original plaintiff) RESPONDENTS
Appearances:
1) Shri R.B.Bomewar, learned Advocate for appellants.
2) Shri M.S.Phadnaik, learned Advocate for respondent Nos. 1 to 4.
3) Shri A.M.Quazi, learned Advocate for respondent No.5.
4) Shri Masood Shareef, learned Advocate for respondent No.6.

Decided on : 02-05-2022
days
REGULAR CIVIL APPEAL NO.329/2016

1) Smt. Jaheda Bi Abdul Razzaque Shetye,

DistrictNagpur.
(original plaintiff)
2) Samir S/o Abdul Razzaque Shete,
R/o near Nagar Parishad Market,
Kalmeshwar, DistrictNagpur.

3) Zameer Ahamad S/o Sheikh Ahmad,

Aged about 38 years, OccBusiness,
R/o near Nagar Parishad Market,
DistrictNagpur.
4) Ku. Shabana D/o Sheikh Ahmad,

Now known as
Mrs. Shabana W/o Sheikh Habib,
Aged about 42 years, OccHousehold,
R/o Bidipeth, Tajabad, Nagpur.
5) Ku. Shaheen D/o Sheikh Ahamad,

Now known as
Mrs.Shaheen W/o Abdul Mohid,
R/o Mirchi Bazar, Itwari, Nagpur.
(Original Defendant Nos. 1 to 5) APPELLANTS
…VERSES..
1) Smt. Bilkis W/o Mohd. Asif Sheikh,
R/o Budhwaripeth, Umrer, DistrictNagpur.
(Original Plaintiff)
2) Sheikh Nabi S/o Sheikh Rasool,

Aged about 75 years, OccNil,
R/o Budhwaripeth, Umred, DistrictNagpur.
(Original Defendant No.2)
Appearances:
1) Shri Masood Shareef, learned Advocate for appellants.
2) Shri U.P.Dable, learned Advocate for respondent No.1.
3) Shri R.T.Anthony, learned Advocate for respondent No.2.
APPEALS UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE

COMMON JUDGMENT
(Delivered on this 2 day of May, 2022)
Being aggrieved by the judgment and decree dated

01/07/2010, passed in Regular Civil Suit No.194/2004, by learned
Joint Civil Judge Jr.Dn.Umred, original plaintiff Jahedabi has filed
R.C.A.No.436/2010, whereas original defendant Nos. 6 to 8 has filed
R.C.A.No.153/2011.
2] So far as R.C.A. No.329/ 2016, is concerned it is filed by

Jahedabi and others against Bilkis and Sk.Nabi, being aggrieved by the
judgment and decree dated 17/11/2015, passed in R.C.S.
No.145/2012, by learned Joint Civil Judge Jr.Dn.Umred.
3] The compromise (Exh.28) took place between the parties

in respect of S.Nos. 200 and 250. These appeals are only in respect of
S.Nos. 294 and 295 of Mouza Umred and S.Nos. 43 and 44 of Mouza
Tas.
4] There were two suits earlier. One was filed by Bilkis in the
year 1999 for declaration, partition, separate possession and
mandatory injunction bearing R.C.S.No.145/2012 (old No.584/1999).
Jahedabai defendant No.1 in the above said suit has filed
R.C.S.No.194/2004, for declaration, permanent and mandatory
injunction. The parties in both the suits are same. Suit properties are
same. The questions involved for discussion are same. Hence, in order
to avoid repetition and complications in discussion I find that it would
be more convenient to decide all the appeals together by common

judgment.
5] The grounds of appeal in R.C.A.No.436/2010, filed by

Jahedabi are as under;
The learned trial Court has decided the issue regarding the
legality and validity of it which is beyond the scope of its jurisdiction
and excess of jurisdiction. The learned trial Court erred in law and facts
in holding that the alleged waqf is valid, without considering the
relevant legal provisions as has been contemplated under the Waqf Act,
1995. The learned trial Court has erred in its holding which are
contrary to each other. The question of validity of creation of waqf was
not before the learned trial Court. Therefore, the findings on the said
point are unwarranted at the proceedings there for the reasons that the
application challenging the registration of waqf is pending on the file of
District Judge, in the Waqf Application No.5/2006, for final disposal of
its merits. The learned trial Court has no jurisdiction to decide the issue
regarding the sale deed to be null and void because
Spl.C.S.No.584/1999, is pending before the learned trial Court. The
learned trial Court has bypassed the main issue of encroachment,
compromising with the said issue which was not existed in the
proceedings below and is redundant. The issue pertaining to validity of
sale deed is pending before the learned trial Court in Special Civil Suit
No.798/1999 for its disposal. The main issue of encroachment has
been decided as incidental, only on the basis of finding the sale deed
as illegal, without scrutinizing the encroachment which was the subject

matter of the suit. The learned trial Court has taken a recourse to the
provisions of Section 3 of the Majority Act, which does not exists in the
matter unless claimed by the adversaries. The learned trial Court has
decided the issue of sale deed on the basis of the majority, but failed to
apply the same principle in deciding the issue of waqf, its validity and
legality. The learned trial Court failed to consider the legal position
that the immovable property cannot be conveyed to the other without
taxing the stamp duty and for a consideration in the legal manner.
Whereas, in the instant case there is no consideration for the
conveyance of the property more particularly, there is no give and take
of the property in a valid manner. It is specifically provided under the
Waqf Act, 1995, that no waqf is created in the name of living person,
on the contrary, it is created in the name of the God. Thus, according to
the appellant Jahedabi the judgment and decree passed by the learned
trial Court is bad in law, perverse, erroneous and requires to be
interfered with in the instant appeal.
6] The grounds of appeal raised in R.C.A.No.153/2011, filed

by Sk.Zameer, Shabana and Shahin, are as under:
The learned trial Court has erred in law and on facts in
holding that the sale deed dated 16/12/1997, is sham and bogus
document in respect of S.Nos. 294 and 295, and alleged waqf is valid,
without considering the relevant provisions of Waqf Act, 1995. The
learned trial Court has erroneously held that the waqf is invalid in
respect of appellant No.1 Zameer on account of his minority. The

question of validity of creation of waqf was not before the learned trial
Court. The Waqf Application No.5/2006, challenging the waqf is
pending before the District Court, Nagpur. The learned trial Court
failed to appreciate the fact that the appellants along with the
respondent No.5 executed the sale deed in favour of the respondent
No.6, on 16/12/1997, therefore does not arise the question of
executing any waqfnama in favour of the respondent No.1 Sk.Nabi.
The respondent No.1 Sk.Nabi and his sons namely Habibrespondent
No.2, Shabbirrespondent No.3 and Asifrespondent No.4, were not in
possession of the entire field, on the contrary they have encroached
upon the said land afterwards in contemptuous manner without
showing any regard to the order of the Court. The learned trial Court
has erred in holding that the minority of Zameer does not render the
entire waqf invalid without taking into account that Zameer owned the
property jointly and there is no partition, separation, division of the
property. The appellants have sold the property in question to the
respondent No.6 and delivered vacant possession to her at the time of
execution of sale deed dated 16/12/1997. Thus, according to the
appellants the judgment and decree passed by the learned trial Court
is bad in law, perverse, erroneous and requires to be interfered with in
the instant appeal.
7] In short, the appellants have challenged the validity of

the waqf and supported the sale deed dated 16/12/1997, in favour of
Jahedabi.

8] The grounds of appeal raised in R.C.A.No.329/2016, filed

by Jahedabi, Samir, Zameer, Ku.Shabana, and Ku.Shahin, are as
under;
The impugned judgment passed by the learned trial Court
shall reveal the sheer lack of application of mind while passing the
impugned judgment in as much as the learned trial Court proceeded to
pass the impugned judgment in a most slip shod, casual and
mechanical manner and without application of its judicial mind the
pleadings of the parties, provisions of law applicable to the facts and
circumstances of the case in as much as the impugned judgment and
decree is not supported by any valid or cogent reasons. The learned
trial Court utterly failed to consider that the respondent No.1 has failed
to prove her case and despite this the learned trial Court pass a decree
in favour of the respondent No.1, Smt.Bilkis. The learned trial Court
failed to consider the argument advanced by the learned counsel for
the appellants much less did not at all exercise the jurisdiction vested in
it by law to dispose of the suit before it and to pass a judicial judgment
in accordance with the law laid down in as much as it had failed to
apply its mind to the pleadings of the respondent No.1, the averments
of the appellants in the written statement. The learned trial Court
utterly failed to appreciate and understand that it is for the plaintiff
respondent No.1 to prove her case beyond any reasonable doubt and
that the plaintiff could not derive an upper hand much less could be
permitted to take advantage of the weakness in the defence. The
learned trial Court passed the judgment and decree on the basis of
conjecture and surmises, without there being any material placed on

record much less any evidence lead by the respondent No. 1 to

substantiate her alleged case. The learned trial Court failed to consider
that the concept of joint ownership is unknown to Mohammedan Law
by which the parties are governed. There is only a concept of “tenant in
common” under Mohammedan Law¸about which there was neither
any pleadings in the plaint nor any proof lead by respondent No.1. The
learned trial court miserably failed to appreciate that there was an
amicable settlement between the appellants and the respondent No.1
as per compromise petition Exh.135, in which the plaintiffrespondent
No.1 clearly admitted the sale deeds, however subsequently at the
behest of the respondent No.2 the respondent No. 1 had withdrawn the
said compromise by moving an application Exh.140, wherein there was
no any genuine and proper reason for withdrawl of compromise. The
findings arrived by the learned trial Court in the impugned judgment is
perverse and while arriving at the said finding the learned trial Court
has traversed beyond the controversy in the suit. According to the
appellants the impugned judgment passed by the learned trial Court is
an outcome of nonapplication of the judicial mind on the part of the
learned trial Court and the non appreciation of the oral and
documentary evidence placed on record by the appellant and the same
deserves to be set aside.
9] The facts of R.C.S.No.194/2004 filed by Jahedabi for

declaration, permanent and mandatory injunction against Sk.Nabi,
Habib Nabi, Shabbir Nabi, Aasif Nabi, Bilkis, Sk.Zameer, Ku.Sabana,
and Ku.Shahin are as under;

The plaintiff owns and possesses half share in S.No.294,

area 1.03 H.R. and S.No.295, area 1.95 H.R. situated at Mouza Umred,
District Nagpur by virtue of registered sale deed dated 16/12/1997,
which was executed by the defendant No.6 in the capacity of holding a
power of attorney on behalf of defendant Nos. 5, 7 and 8 who are the
sisters of the defendant No.6 and inheriting the aforementioned survey
numbers from their deceased mother Smt. Masoombi W/o Sk.Ahmed,
who died on 31/5/1986, at Umred, Tahsil Umred, DistrictNagpur,
leaving behind the immovable property as described in the schedule
annexed in the plaint and forming part and parcel of the same suit.
On 16/12/1997, she was delivered the possession by defendant Nos. 5
to 8 to the extent of half share in S.Nos. 294 and 295 and she continues
to be in undisturbed peaceful possession. Appeal No.101/2002 is
pending before the Additional Commissioner, Nagpur for mutation. The
defendant Nos. 1 to 4 are the strangers who are making an attempt to
interfere with the lawful possession of the plaintiff taking advantage of
the shrine of Hazrat Sayyad Fazle Mohammad @ Pappal Baba Rahemat
Ullah Aleh who was buried in some corners of S.Nos. 294 and 295, who
died on 25/11/1996, at Umred. The plaintiff is staunch follower of said
saint and the mortal remains of Pappal Baba were buried as consented
by the plaintiff so as to pay homage to the departed soul in the survey
number which is in possession of the plaintiff. The devotees of Pappal
Baba throng at the shrine of the Pappal Baba every year on 13 th Razzak
in order to celebrate Urs which lasts continuously for three days. The
shrine of Pappal Baba is situated in S.Nos. 294 and in the half portion
of S.No.295, area 25 x 35 square feet, purchased by the plaintiff. The

plaintiff has also allowed the devotees to make a construction of dome

over the burial place of the Pappal Baba where Urs is held every year
for three days. The plaintiff has moved an Application No.1238/1999,
before the Assistant Charity Commissioner, for registration of said
durgah. As the said case pertains to the Muslim Trust, provisions of
Waqf Act,1995 are applicable, hence said case is pending before the
authority, awaiting the order of transfer of the case to Waqf Board,
Aurangabad, for further progress in the matter. Taking the advantage
of pendency of application, defendant No.1, who claims himself to be
mutawalli, has made an attempt of encroachment and clandestinely
encroached upon the land of the plaintiff and constructed two rooms
admeasuring 10 x 20 feet to the western side of durgah in bricks and
cement wall with a tin room before the 15 days without the knowlede
of the plaintiff who is a permanent resident of Kalmeshwar and also
without obtaining sanction from the Municipal Council, Umred. In
addition to the said construction with the help of defendant Nos. 2 to 5
and some other anti social elements in the society has started to dig
pits around the durgah sharif on the land of S.Nos. 294 and 295
appurtenant to the durgah by commencing it from 28/10/2004. The
said fact came to her knowledge on 28/10/2004, through defendant
No.6 Zameer. The plaintiff deputed the defendant No.6 who is the
vendor of the plaintiff to restrain the defendant Nos. 1 to 5 from
making any illegal construction on the survey numbers of the plaintiff,
however defendants with the help of their associates threatened the
defendant No.6 of dire consequences. Taking advantage of dismissal of
injunction application the defendants particularly defendant No.1 have

trespassed on S.Nos. 294 and 295 and have made illegal construction
of two rooms admeasuring 10 x 20 square feet on the western side of
shrine and the said shrine is also in possession of the plaintiff.
10] The defendant Nos. 1 to 4 filed their written statement

(Exh.51) and denied the claim of the plaintiff. Pappal Baba lived best
part of his life in the house of the defendant No.1 and also left for his
heavenly abode from the house of defendant No.1 on 25/11/1996.
They have denied that the plaintiff owns half share in S.Nos. 294 and
295, by virtue of registered sale deed dated 16/12/1997, said to have
been executed by the defendant No.6, in his capacity as the alleged
power of attorney for the defendant Nos.5, 7, and 8. The alleged
power of attorney is also disputed by the defendant No.5, who is no
other person than defendant No.7, to the best knowledge of these
defendants. The defendant No.5 is understood to be a signatory to the
power of attorney and she has claimed that defendant No.6 has secured
the signature on the power of attorney by misrepresentation. She has
not only sent a notice to defendant No.6 cancelling the power of
attorney but also published a public notice in that regard. Instead of
cancellation of power of attorney, the defendant No.6 has wrongly used
it and registered the sale deed dated 16/12/1997, in favour of plaintiff.
The defendant No.5 has also filed R.C.S.No.584/1999, against
defendant No.6 and challenged the sale deed in question, whereby her
valuable share in properties inherited from their mother is purported to
have been sold to the plaintiff. The defendant No.5 has also filed
objection before the Charity Commissioner to the effect that no trust

should be registered on the basis of false and bogus sale deed in

question in favour of the plaintiff. The defendant Nos. 5, 6, 7 and 8 are
the owners of field S.Nos. 294 and 295, have made an oral waqf of
field S.No.294 in its entirety, total five acres of land on 26/11/1996,
for the purpose of burial of Pappal Baba and shrine. The oral waqf has
been acted upon and defendant No.1 Sk.Nabi has been appointed at
mutawalli of the said waqf property. Hence, on the date of the alleged
sale deed the aforesaid five acres did not vest in the defendant Nos. 5,
6, 7 and 8, nor they remained owner thereof. The sale deed relied upon
by the plaintiff is sham and bogus document. The defendant No.5 is the
real sister of defendant Nos. 6, 7and 8 and niece of the plaintiff. The
plaintiff has impleaded the defendant No.5 in her marital name and
also further impleaded her in her maiden name as defendant No.7,
deliberately and mischievously to create confusion in the matter. The
defendant No.3 Sk.Shabbir leads prayers at the durgah and defendant
Nos. 2 and 4 help the defendant No.1, in running the affairs of the
durgah as mutawalli. They have denied that defendant No.1 has
trespassed over the suit premises after the dismissal of injunction
application and made illegal construction of two roms admeasuring
about 10 x 20 square feet on the western side of shrine. During the
pendency of the suit, Sk.Nabi as the mutawalli of the waqf properties
and in charge and in control of the same and the shrine of Pappal Baba
applied to the Waqf board established at Aurangabad, on 25/11/2004,
for registration of the waqf and its properties as mutawalli. The waqf
board has intimated to various local authorities that the said five acres
of land constitute waqf properties and issued a Gazzetted notification

dated 09/02/2006, published in Government of Maharashtra

supplementary Gazette page No. 244, in this regard.
According to the defendants the plaintiff has no rights, title or interest
in the waqf properties and cannot interfere with the working of the
defendant as mutawalli of the said waqf and its properties, hence the
plaintiff is not entitled to any relief whatsoever and suit is liable to be
dismissed with costs. The suit is also not maintainable and be
dismissed under provisions of Order 7, Rule 11 of C.P.C.
11] The defendant No.5 filed her written statement(Exh.53)

and denied the claim of the plaintiff. She has denied that the plaintiff
owns and possesses the half share or any share in the land survey Nos.
294 and 295. She has challenged the sale deed executed in favour of
the plaintiff by filing Spl.C.S.No.584/1999, and said suit is pending for
disposal before the Court. She has not disputed that she herself and
defendant Nos. 6, 7 and 8 have inherited the aforesaid survey numbers
from their mother Smt. Masoombi who expired when the present
defendant Nos, 5, 6, 7 and 8 were minors and in the absence of their
father who was not known for several years. Consequently, being the
sister of father of the present defendant Nos. 5, 6, 7 and 8 plaintiff
was appointed as guardian by the District Judge, Nagpur, in the
Misc.Civil Appeal No.86/1989. The defendant No.6 has illegally and
unauthorizedly learnt to have executed the sale deed in respect of the
alleged half share of the said land of the plaintiff and defendant No.5
was never party to the said sale deed nor the defendant No.6 in any
manner was justified and authorized to execute the said sale deed.

She has denied that they have delivered the possession of the half
share of S.Nos. 294 and 295 to the plaintiff. She has denied that
defendant Nos. 1 to 5 are the strangers and they are making attempt to
interfere with the alleged lawful possession of the plaintiff. She has also
denied that the Sk. Nabi is self styled mutawalli, however he has been
appointed as mutawalli by the creator of waqf (waqifs), i.e. present
defendant No.5 and defendant Nos. 6, 7 and 8.
12] The defendant No.6, 7 and 8 filed their written statement

(Exh.55). They have not disputed the para Nos. 1 to 7 of the plaint.
According to these defendants there is no cause of action against them
and therefor require no specific reply. They have admitted the
documents filed by the plaintiff. According to them, no relief is claimed
against them by the plaintiff.
13] The plaintiff Jahedabi has examined herself as P.W.1, by

filing evidence on affidavit at Exhs. 76 and 88. She has also examined
Shrihari Krushnajji Palandurkar, (PW2), at Exh.110, Ashlam Subhan
Shetye, (PW3), at Exh.118, Ishwar Shamrao Dandekar, (PW4), at
Exh.119, Ravi Sitaram Bankar, (PW5), at Exh. 122, and Ramu
Changdeo Mandurkar, (PW6), at Exh. 127.
14] The defendant No.6, Sk.Zameer, has filed his evidence on

affidavit at Exh.129, the defendant No.2, Habib Nabi has filed his
evidence on affidavit at Exh.133, defendant No.1 SK.Nabi has filed his
evidence on affidavit at Exh.152, defendant No.5 Bilkis Aasif Shaikh
has filed her evidence on affidavit at Exh.164. The defendants have

examined one Idris (Babubhai) Mohammad at Exh.161, by filing his
evidence on affidavit.
15] After considering the entire evidence on record and

arguments advanced by the respective learned counsels, the learned
trial Court has dismissed the suit. Being aggrieved by the said
judgment and decree the R.C.A.No.436/2010, is filed by original
plaintiff Jahedabi and R.C.A.No.153/2011 is filed by Sk.Zameer
original defendant No.6, Ku.Sabanaoriginal defendant No.7 and
Ku.Shahinoriginal defendant No.8.
16] Heard the argument advanced by the respective learned

advocates for both the sides at length. Considering all these facts,
following points arise for my determination and I have given my
finding to them with reasons as follows :
Points Findings
1. Does plaintiff prove that she is owner of .. .. In Negative.

land bearing S.Nos. 294 and 295, situated
at Umred.
2. Whether the sale deed dated 16/12/1997, .. .. In Affirmative.

is sham and bogus?
3. Whether defendants encroached over the .. .. In Negative.

suit land?
4. Whether defendant No.1 made illegal .. .. In Negative.

construction of two rooms admeasuring 10
x 20 square feet over the suit land?
5. Whether plaintiff is entitled for the reliefs .. .. In Negative.

sought?
6. Whether any interference is required in the .. ..In Negative.

impugned judgment and decree passed by
the learned trial Court?
7. What order? .. .. As per final

order.
17] The grounds of appeal raised in R.C.A.No.329/2016, are as

under;
The impugned judgment passed by the learned trial Court
shall reveal the sheer lack of application of mind while passing the
impugned judgment in as much as the learned trial Court proceeded to
pass the impugned judgment in a most slip shod, casual and
mechanical manner and without application of its judicial mind the
pleadings of the parties, provisions of law applicable to the facts and
circumstances of the case in as much as the impugned judgment and
decree is not supported by any valid or cogent reasons. The learned
trial Court utterly failed to consider that the respondent No.1 has failed
to prove her case and despite this the learned trial Court passed a
decree in favour of the respondent No.1, Smt.Bilkis. The learned trial
Court failed to consider the argument advanced by the learned counsel
for the appellants much less did not at all exercise the jurisdiction
vested in it by law to dispose of the suit before it and to pass a judicial
judgment in accordance with the law down in as much as it had failed
to apply its mind to the pleadings of the respondent No.1, the
averments of the appellants in the written statement. The learned trial

Court utterly failed to appreciate and understand that it is for the
plaintiffrespondent No.1 to prove her case beyond any reasonable
doubt and that the plaintiff could not derive an upper hand much less
could be permitted to take advantage of the weakness in the defence.
The learned trial Court passed the judgment and decree on the basis of
conjecture and surmises, without there being any material placed on
record much less an evidence lead by the respondent Nos. 1 to
substantiate her alleged case. The learned trial Court failed to consider
that the concept of joint ownership is unknown to Mohammedan Law
by which the parties are governed. There is only a concept of “tenant in
common” under Mohammedan Law¸about which there was neither
any pleadings in the plaint nor any proof lead by respondent No.1. The
learned trial court miserably failed to appreciate that there was an
amicable settlement between the appellants and the respondent No.1
as per compromise petition Exh.135, in which the plaintiffrespondent
No.1 clearly admitted the sale deeds, however subsequently at the
behest of the respondent No.2, the respondent No. 1 had withdrawn
the said compromise by moving an application Exh.140, wherein there
was no any genuine and proper reason for withdrawl of compromise.
The findings arrived by the learned trial Court in the impugned
judgment is perverse and while arriving at the said finding the learned
trial Court has traversed beyond the controversy in the suit. According
ot the appellants the impugned judgment passed by the learned trial
Court is an outcome of nonapplication of the judicial mind on the part
of the learned trial Court and the non appreciation of the oral and

documentary evidence placed on record by the appellant and the same

deserves to be set aside.
18] The facts of R.C.S.No.145/2012 are as under;

The plaintiff Bilkis has filed the present suit for declaration,
partition, separate possession and mandatory injunction. According to
her, she herself, defendant Nos. 3, 4 and 5 are the legal heirs of
Sk.Ahmed S/o Sk.Afzal. Sk.Ahmad was the absolute owner of S.Nos.
294, 295, 220, and 250 of Mouza Umred, and S.Nos. 43 and 44 of
Mouza Tas, Tahsil Bhiwapur, DistrictNagpur. Their father was
suffering from insanity since the year 198182 and under the influence
of insanity left the house in the month of June1986 and did not return
nor his whereabouts were known to any person whatsoever. Their
mother also expired on 31/5/1986. That time, they were minor in the
year 1986 and there was nobody to look after the maintenance and
welfare of them, and consequently the defendant No.1 Jahedabi who
was the closed relation being the real sister of Sk.Ahmed, applied
before District Jude vide application No.86/1999, for the appointment
as their guardian in respect of the present properties of the minors who
have inherited so many agricultural fields including stated above. Some
of the property came to be sold by the defendant No.1 with the
permission of the Hon’ble District Judge, Nagpur. The plaintiff and
defendant Nos. 3, 4 and 5 had already attained the majority and
defendant No.3 Zameer attained the majority in the year 1996. One
Pappal Baba had come to Umred from Madhya Pradesh about more
than 21 years back. He left for his heavenly abode on 26/11/1996 and

he was cremated in the field bearing S.No.294, on 26/11/1996. Before

his cremation it was discussed between all his devotees and followers
that he should be buried at such a place where proper shrine could be
raised as tribute to him and which can be ideal place for propagation of
his thoughts, teaching and tradition. That time, in the presence of
devotees, relation of the plaintiff and the defendant Nos. 3 to 5
announced making their intention clear thereby creating oral waqf of
the entire field bearing Khasra No.294, admeasuring 1.03 H.R. and
0.97 H.R. of northsouth portion towards east of the field bearing
S.No.295 being adjacent to field S.No.294, thereby creating oral waqf
in respect of 5 acres of land with clear intention for buriel and
establishment of durgah of the said Pappal Baba. The defendant No.6,
Nabi was appointed as mutawalli. He has accepted responsibility and
charge of the said waqf land and also accepted its symbolic possession
from the plaintiff and defendant Nos. 3 to 5. On 27/11/1996 the
plaintiff and defendant Nos. 3 to 5 also executed the necessary
documents acknowledging therein about the creation of waqf made on
26/11/1996. The defendnt No.3 who was appointed as president of 13
members committee has not submitted the account of offerings and
donation received from the followers who visited the shrine in the
month of November 1997 and consequently the insistence of defendnat
No.6 to the defendant No.3 resulted in annoyance and when the entire
famly of the plaintiff was at Kalmeshwar who had recently got married
with the son of defendant No.6 it was misrepresented to her that
ultimately the legal formalities before the Charity Commissioner to get
the Trust in respect of the durgah and 5 acres of land out of Khasra

No.294 and 295, is to be completed and therefore, all the legal heirs of
Ahmad Patel are requested to sign the document. Under such
misrepresentation the plaintiff was asked to sign the document without
allowing her to go through the same, moreover she had absolutely no
reason to doubt the bonafide of any defendants and therefore, she put
her signature along with her sister on the paper put before her and left
for Umrer i.e. to her in laws. After 45 days she learnt that under the
garb of document as completion of formalities for registration before
Charity Commissioner the defendant No.3 got the general power of
attorney signed from her, she immediately submitted her objection to
the S.D.O.Umred, on 1/12/1997 for cancellation of power of attorney.
The plaintiff also cancelled the power of attorney purported to be
executed by her by publishing notice in daily newspaper “Lokmat”
dated 11/12/1997. She also sent a notice by registered post dated
12/12/1997 making the entire illegal act on the part of the defendant
Nos. 3 to 5 clear and also called upon to return the said power of
attorney within three days. The defendant No.3 deliberately avoided to
receive the notice till 20/12/1997 and executed and registered the
deed of sale in respect of half share in Khasra Nos. 294 and 295 of
Mouza Umred. The defendant No.3 also illegally and without any
authority and power executed and defendant Nos. 1 and 2 got
executed the sale deeds in respect of Khasra Nos. 43 and 44 of Mouza
Tas, Tahsil Bhiwapur, DistrictNagpur in favour of defendant No.2,
falsely showing that sum of Rs. 2,35,000/ has been paid to the seller
including the plaintiff. The defendant No.3 has absolutely no right,
power and authority to sell the said property or any portion thereof on

behalf of the plaintiff as power of attorney under which it has been sold
has been illegally got executed and therefore it does not vest any right
authority in defendant No.3 to dispose of the property. Hence, those
sale deeds are illegal, void and inoperative in law and not binding upon
the plaintiff. The plaintiff never attended the office of Notary, therefore
said power of attorney is illegal document. The plaintiff has got 1/5 th
share in the remaining and balance land of Khasra Nos. 294 and 295
giving 5 aces of land and creating the wakf. She has also 1/5 th share in
Khasra Nos. 43 and 44 of Mouza Tas.
19] The defendant No.6 Sk.Nabi has filed his written statement
at Exh.17, and supported the case of the plaintiff.
20] The defendant Nos. 1 to 5 have filed their written statement

at Exh.26 and denied that plaintiff and the defendant Nos. 3 to 5 made
oral waqf in respect of the said land also appointed the defendant No.6
as mutawalli. Under the Mohammedan Law, there could only be a
Sahzadanashin in respect of the durgah and hence there could be no
mutawalli at all. It is submitted that when once a waqf is created then
the owners dedicating the property to the waqf divest themselves of
their rights in the property and hence subsequently they have no
power, authority and control over the property dedicated to the waqf.
They have denied that on the very next day on 27/11/1996, the
plaintiff and defendant Nos. 3 to 5 also executed the necessary
documents acknowledging therein about the creation of waqf made on
26/11/1996 in respect of portion of agricultural land bearing Khasra

Nos. 294 and 295. They have denied that both the sale deeds are void,
illegal and not binding upon the plaintiff in any manner. They denied
that plaintiff has got 1/5th share in the remaining and balance land of
Khasra Nos. 294 and 295 of Mouza Umred and Khasra Nos. 43 and 44
of Mouza Tas.
21] According to defendant Nos. 1 to 5, Sk.Afzal, the father of

Sk.Ahmed was originally absolute and exclusive owner of the suit
properties. After the death of Sk.Afzal, the suit properties devolved
upon his only son Sk.Ahmed and his only daughter Jahedabi under the
Mohammedna Law of inheritance and they were the tenants in
common of the suit properties. Since Sk.Ahmed was an insane and he
left his house in the year 1986 and did not return nor his whereabouts
were known at any point of time to any person whatsoever, the plaintiff
and defendant Nos. 3 to 5 being his legal heirs along with the
defendant No.1 are the tenants in common of the suit properties. On
27/11/1997, the plaintiff and defendant Nos. 4 and 5 executed an
irrevocable power of attorney in favour of the defendant No.3
authorizing him to enter into an agreement of sale, to sell, and to do all
acts and deeds as their attorney thinks fit and proper in respect of their
shares in the suit properties. The said power of attorney was executed
before the Notary. Therefore, the defendant No.3 executed two sale
deeds dated 16/12/1997 and 17/12/1997. The plaintiff is not entitled
for the relief of cancellation of power of attorney dated 27/11/1997,
executed in favour of the defendant No.3. There is no relief against the
defendant No.2, nor the defendant No.2 has any right, title and interest

in the suit properties as such the suit must fails for misjoinder of party
to the suit.
22] After considering the entire evidence on record and

arguments advanced by the respective learned counsels, the learned
trial Court has decreed the suit and declared that power of attorney
dated 27/11/1997, is illegal, and not binding upon the plaintiff. It is
further declared that sale deed dated 16/12/1997, in favour of
defendant No.1, in respect of Khasra Nos. 294 and 295 of Mouza
Umrer, and sale deed dated 17/12/1997, in favour of defendant No.2,
in respect of Khasra No.43 and 44 of Mouza Tas, executed by
defendant No.3 are illegal and void and not binding upon the plaintiff.
It is also declared that plaintiff and defendant Nos. 4 and 5 are having
1/5th share each and defendant No.3 is having 2/5 th share in property
bearing Khasra No.295, Mouza Umred, ( after deducting 0.97 H.R. area
dedicated to the Pappal Baba durgah, to the waqf) and in properties
bearing Khasra Nos. 220 and 250 of Mouza Umred and Khasra Nos. 43
and 44 of Mouza Tas, Tahsil Bhiwapur, DistrictNagpur.
23] Heard the argument advanced by the respective learned

advocates for both the sides at length. Considering all these facts,
following points arise for my determination and I have given my
finding to them with reasons as follows :

Points Findings

1. Whether plaintiff proves that late .. ..In Affirmative.

Sk.Ahmed S/o Sk.Afzal was the absolute
and exclusive owner of the suit properties
described in the schedule annexed to the
plaint?
2. Whether plaintiff proves that she along .. .. In Affirmative.

with with the defendant Nos. 3 to 5
announced making their intention clear
thereby creating oral waqf of the entire
field bearing Khara No.294, admeasuring
1.03 H.R. and 0.97 H.R. of NorthSouth
portion towards East of the Field No.295,
being adjacent of the field No.294, thereby
creating oral waqf in respect of 5 acres of
land as alleged?
3. Whether plaintiff proves that she along .. ..In Affirmative.

with the defendant Nos. 3 to 5 executed a
declaration of oral waqf dated
27/11/1996, in respect of Khara Nos. 294
and 295 of Mouza Umred, as alleged?
4. Whether the plaintiff proves that she ..In Affirmative.

alongwith the defendant Nos. 3 to 5 by
executing the alleged oral waqf dated
27/11/1996, appointed the defendant
No.6 as the mutawalli of Pappal Baba
Durgah as alleged?
5. Is power of attorney dated 27/11/1997, is .. .. In Affirmative.

illegal and it got executed by
misrepresentation?
6. Whether the plaintiff proves that the sale ..In Affirmative

deed executed by the defendant no.3 on
behalf of her in respect of Khara Nos. 294
and 295 of Mouza Umred, on
16/12/1997, and in respect of Khasra Nos.
43 and 44 of Mouza Tas on 17/12/1997,
are illegal, void and not binding upon her?
7. Whether plaintiff proves that she has 1/5 th ..1/5th share in

share in the suit properties, mentioned in Khasra No.295,
the schedule? after deducting
0.97 H.R. area
dedicated to the
waqf and 1/5th
share in rest of
all suit
properties except
khasra No.294.
8. Whether plaintiff is entitled for the relief ..In Affirmative.

of declaration, partition, separate
possession etc. as prayed?
9. Whether any interference is required in the .. ..In Negative.

impugned judgment and decree passed by
the learned trial Court?
10. What order? .. .. As per final

order.
REASONS.
24] As there are 6 defendants in R.C.S.No.145/2012 filed by

Bilkis, there are 8 defendants in R.C.S.No.194/2004 filed by Jahedabi
who was defendant No.1 in R.C.S.No.145/2012. Parties are holding
different numbers in the title clause in both the suits. Hence, if they are
referred by their party number it would become complicated ( as
plaintiff No. in R.C.S…… defendant No. ……in R.C.S.No.) Hence, I
find that it would be more convenient to refer the parties by their
names instead of party number as per title clause. So also instead of
referring learned advocates for party number it would be convenient to
refer learned advocates by their names.
25] The facts of the present case are very peculiar in nature. In
a suit filed by Bilkis she has pleaded about the oral wakf in respect of 5
acres of land. She has also claimed partition in property deducting the
said area of 5 acres as already given in waqf. Whereas, Jahedabi has
denied creation of any such waqf. She has raised various objection in
respect of the said waqf. Whereas, in suit filed by Jahedabi, she has
pleaded that Reveral Saint Hazrat Sayyad Fazle Mohammad @ Pappal
Baba Rehemat Ullah Aleh was buried in some corner of suit property
who died on 25/11/1996. According to her, she had allowed the
devotees to construct dome over burial place of Pappal Baba. She had
made an application for registration of said durgah. According to her,
Sk.Nabi is self styled mutawalli.
26] As such, Jahedabi has not challenged the said wakf

described in the suit of Bilkis, nor any declaration is sought by her or
Bilkis.
27] The learned advocate Shree Masood Shareef argued that

though there is no specific relief in respect of waqf, nor it is challenged
it has been much discussed in the judgment by the learned trial Court.
Considering the facts of the case, though there is no relief claimed nor
challenged in respect of waqf the entire story of both cases revolved
around the said waqf. Jahedabi has raised objection in her written
statement in the suit filed by Bilkis, hence all those objections are
required to be considered. Hence, said waqf though not the subject

matter, however plays important role. Entire story is based upon the
said waqf. Hence, it needs to be considered.
28] With these backgrounds, now I turn towards the discussion

of points.
29] AS TO POINT NO.1: (R.C.S.No.145/2012)

It is the case of Bilkis that the suit properties i.e. Khasra
Nos. 294, 295, 220, 250 of Mouza Umred, and Khasra Nos. 43 and 44
of Mouza Tas were exclusively owned by her father and father of
Zameer Ahmed, Shabana and Shahin namely Sk.Ahmed. Jahedabi has
denied the said pleading in her written statement. According to
Jahedabi her father and father of Shaikh Ahmed by name Shaikh Afzal
was the original and exclusive owner of suit properties. However, she
has not claimed her share in the suit properties. However, according to
Jahedabi she has purchased ½ share in S.Nos. 294 and 295 by way of
registered sale deed dated 16/12/1997. According to Jahedabi,
Sk.Zameer, Shabana, Shahin and Bilkis have inherited the said
properties from their deceased mother Masoombi W/o Sk.Ahmed who
died on 31/5/1986. Bilkis has produced the record of rights (Exh.64B)
to prove her contention that those properties were given by Sk.Ahmed
to his wife Masoombi in mehar.
30] Bilkis has produced 7/12 extract of Khasra No.294, at

Exh.57, showoing the names of Sk.Zameer, Bilkis, Shabana, Shahin and

Jahedabi, 7/12 extract of Survey No.295, at Exh.60, showing in the

name of above said persons, 7/12 extract of Survey Nos. 220 and 250,
at Exh.58 and 59 respectively, showing in the name of Sk.Zameer,
Bilkis, Shabana and Shahin, 7/12 extract of Khasra Nos. 43 and 44 of
Mouza Tas, at Exh.61 and Exh.62 showing in the name of Sk.Ahmed,
through Bilkis, Shabana, Shahin and Sk.Zameer.
31] In addition to the above said 7/12 extracts Bilkis has also
produced certificate issued by Talathi, Umred, at Exh.63 which shows
that Old S.Nos. 358, 359 and 361 have been renumbered as S.No. 295.
It is argued by learned advocate Shri Masood Shareef that document
(Exh.63) can not be relied upon as the total of the area of S.Nos. 358,
359, 361, and 362/1 is 6.85 H.R. and is not tallied with the area of
Suvey Nos. 294 and 295. In addition to that, there is no pleading to
that effect about old and new survey numbers.
32] It is also argued by learned advocate Shri Masood Shareef

that 7/12 extracts are not the conclusive proof of ownership. On
perusal of documents, it appears that document (Exh.64A) is the copy
of record of rights. As per this document Sk.Ahmed had purchased
those properties.
33] Even Jahedabi has not produced any document to support

her contention that Sk. Afzal was the owner.
34] As per entry No. 228, vide Exh.65, all the above referred
properties i.e. Khasra Nos. 358, 359, 361, and 362/1 were on the name
of Masoombi and after her death names of her legal representatives,

i.e. Sk.Zameer, Bilkis, Shabana, Shahin and name of Jahedabi has been
shown as next friend as they were minors.
35] This certificate was issued in the year 2006 by Talathi to the
allotment of new numbers. This document (Exh.63) is not meant to
prove the ownership. Therefore, though there is discrepancy in the
total of calculation of area this document cannot be discarded. Hence, I
find no substance in the argument advanced by the learned advocate
Shri Masood Shareef.
36] On the other hand, Jahedabi has relied upon the admission
given by Bilkis in her crossexamination that S.Nos. 294 and 295
belong to her father. She has further stated in her crossexamination
that this property was purchased by her grandfather. The learned
advocate Mr.Masood shareef has relied upon the case of Avtar Singh
and others..vs..Gurdial Singh and others, (2006)12, SCC 552,
wherein Hon’ble Apex Court has held that;
“ Admission forms the best evidence as per Section 58 of the

Evidence Act. Things admitted need not be proved”
37] Though, admission forms best evidence as per Section 58 of

the Evidence Act, the documents on record show the ownership of
Sk.Ahmed. It is well settled provision of law that when oral evidence
and documentary evidence are contrary, the documentary evidence
would prevail over. Hence, I find no substance in the argument
advanced by learned advocate Shri Masood Shareef.
38] The learned counsel Shri Masood Shareef has further

placed reliance upon the case of United India Insurance Co.Ltd. and
another..vs..Samir Chandra Chaudhary, (2005) 5 SCC784, wherein
Hon’ble Apex Court has held that;
“ An admission is the best evidence that an opposing party
can rely upon. Evidentiary admissions are not conclusive
proof of the facts admitted and maybe explained or shown to
be wrong; but they do raise an estoppel and shift the burden
of proof placing it on the person making the admission or his
representative in interest. Unless shown or explained tobe
wrong, they are an efficacious proof of the facts admitted. As
the weight of an admission depends on the circumstances
under which it was made, these circumstances may always be
proved to impeach or enhance its credibility. The effect of
admissions is that it shift the onus on the person admitting
the fact on the principle that what a party himself admits to
be true may reasonably be presumed to be so, and until the
presumption is rebutted, the fact admitted musts be taken to
be established”.
The facts of the present case and case supra are

distinguishable in nature, therefore in my view with due respect the
case of United India Insurance supra is not helpful in the present
case.

39] Considering all these facts, I find that Bilkis has proved that
the suit properties were self acquired properties of Sk.Ahmed. Hence, I
find point No.1 in affirmative.
40] AS TO POINT NOS. 2, 3 AND 4:

All these points are interconnected with each other, hence I
have discussed them together to avoid repetition.
41] According to Bilkis she has specifically pleaded in para No.5

of her plaint that Pappal Baba left for heavenly abode on 26/11/1996,
and he was cremated in the suit field bearing Khasra No.294 on
26/11/1996. Before his cremation it was discussed between all his
devotees and followers that he should be buried at such place where
proper shrine could be raised as a tribute to him and which can be ideal
place for propagation of his thoughts, teaching and tradition.
42] It is also pleaded that at this time in the presence of

devotees, relation of plaintiff and the defendant Nos. 3 to 5 announced
making their intention clear thereby creating oral wakf of the entire
field bearing Khasra No.294, admeasuring 1.03 H.R. and 0.97 H.R. of
NorthSouth portion towards east of the field No.295, being adjacent to
the field No.294, thereby creating oral wakf in respect of 5 acres of
land. They also appointed defendant No.6 Sk. Nabi as mutawalli. It is
also the case of Bilkis that on the next day, i.e. on 27/11/1996, plaintiff
and defendant Nos. 3 to 5 executed necessary documents
acknowledging therein about creation of waqf made on 26/11/1996. It

is further case of Bilkis that all the aforesaid proceedings have been
taken palce very much in the presence of Jahedabi who is also
signatory to the said documents executed by plaintiff and defendant
Nos. 3 to 5.
43] Jahedabi has denied the creation of wakf and execution of

document in that respect. She has even denied that all the proceedings
were taken place in the presence of Jahedabi i.e. herself who is also
signatory of the said document.
44] It means, it is the specific case of the Bilkis that Jahedabi

was present at the time of execution of document of waqf and she is
also one of the signatories. Jahedabi has merely denied the execution
of said document in her presence and that she is also a signatory.
Jahedabi has not specifically denied the said fact. She has not given any
explanation about her signature on the said document.
45] As such, creation of oral wakf and execution of document in

that regard is required to be proved by Bilkis as per the provisions of
law.
46] Jahedabi in addition to denial of execution and to be one of

the signatories of document of waqf has raised various grounds to
object the said document.
47] The first objection raised in written statement of Jahedabi is
that there could be no oral wakf under Mohammedan law. As per the
provisions of Mohammedan Law, Muslim law does not prescribe any

form of creating wakf. It may be either oral or in writing. Hence, I find
no substance in the said objection raised by Jahedabi.
48] Another objection raised by Jahedabi is that the wakf

should be created by a duly executed and registered instrument. The
learned advocate for the Bilkis has relied upon the case of Anjuman
Islamia..vs..Mohammad Khair Husain, 1981 ALL.L.J.1120, wherein
it has been held by His Lordship that;
“There is a distinction between an instrument creating a Waqf
and a document recording transaction in the nature of Waqf
which had taken place earlier by words of mouth. Where the
executant had specifically stated in the document that she had
created a waqf of her properties, and the document did not
say that the executant was creating a waqf in present through
the instrumentality of the document itself, the document could
be construed as a memo of waqf which had been orally
created or a document appointing mutawallis and hence did
not require registration”.
49] On the other hand, the learned advocate Shri Masood

Shareef has placed reliance upon the case of Faridsaheb Hussens
Saheb..vs..Sharik Maslat and others, 2010(3) Mh.L.J. 959, wherein
Hon’ble Bombay High Court has held that;
“Gift or Hiba, essentials of – if a document by which property
is gifted and it is executed simultaneously with the oral gift,
the document must be registered”.
50] In the present case, according to the Bilkis the waqf was
created orally and on the next day document was executed
acknowledging there about the recognition of waqf.
51] As the document is disputed by Jahedabi, it is argued by

learned advocate Shri Masood Shareef that, burden lies on propounder
of the document. According to learned advocate Shri Masood Shareef,
Jahedabi has created doubt and suspicion about the said document,
hence according to him burden is on the Bilkis to prove the said
document by removing suspicious circumstances. In support of his
argument, the learned advocate Shri Masood Shareef, has placed
reliance upon the following case laws.
(i) Sebastialo Luis Fernandes (dead), through Lrs and

others, ..vs..K.V.P.Shastri (dead) through Lrs. and others, (2013) 15
SCC 161, wherein Hon’ble Apex Court has held that, initial burden of
proof to establish ownership is on plaintiff and cannot be placed on
defendants.
(ii)Sharad ..vs..Sapana Real Estates, Goa, [2017 (4)
Mh.L.J.278, wherein Hon’ble Bombay High Court has held that,
appellant claimed that balance amount of suit flat was paid to
representatives of respondents, respondents admitted that said persons
were their booking agent, however denied that they had authority to
collect money on behalf of respondent no1, burden of proof lies

on respondent No.1 to prove said persons were not authorized on their

behalf to collect money.
(iii) Smt. Jaswant Kaur..vs..Smt. Amrit Kaur and others,
(1977) 1 SCC 369, wherein Hon’ble Apex Court has held that,
evidence adduced must satisfy the court’s conscience, extent of burden
of proof on the propounder explained, tests laid down in Iyengar’
It is settled principle of law that each case has its own facts
and circumstances and has to be decided taking into consideration the
said facts and circumstances of each case.
52] I have given my thoughtful consideration to the cases cited

supra and find that the facts of the cases supra and present case are
different in nature, therefore in my opinion with due respect, the cases
supra relied upon by learned advocate Mr.Masood Shareef are not
helpful in the present case.
53] It is argued by learned advocate for Jahedabi that one of

the suspicion is that Sk.Zameer, one of the expectants was minor at the
time of execution of the said document and the property of minor
cannot be given in waqf by the guardian. It is admitted fact on record
that after the death of Sk.Ahmed, Zameer Ahmed, Shabana, Shahin and
Bilkis were minors. Hence, Jahedabi was appointed as guardian by the
District Court, vide application No.86/1989.
54] Now, it is to be seen whether Zameer Ahmed was minor at

the time of execution of document in respect of wakf on 26/11/1996.

Bilkis deposed that she herself, Shabana, and Shahin had already
attained majority. However, Zameer Ahmed attained the majority in
the year 1996. Jahedabi has denied the contents of Bilkis that Zameer
Ahmed attained majority in the year 1996. Nobody has produced the
birth certificate of Zameer Ahmed nor stated about his birth date.
55] Attesting witness of memorandum of wakf namely Idris @

Babubhai Mohammad has deposed that when memorandum was
prepared, at that time, the point was raised that Zameer was minor and
therefore Jaheda signed on memorandum of waqf (Exh.84), as
guardian of Zameer.
56] Sk.Nabi, the Mutawali of wakf has deposed that at the time
of making application for appointment of guardian, Zameer was
shown as 11 years old. Accordingly, he would have attained the
majority in the year 1996. He has also deposed that at the time of
execution of memorandum of waqf (Exh.84) some persons present on
the spot had pointed out that Zameer may not have attained the age of
majority, hence Jahedabi willingly scribed her signature on the said
document as guardian.
57] However, Zameer about whose age of minority much has

been pleaded and argued, has not deposed that at the time of execution
of said memorandum of wakf (Exh.84), he was minor. He was the best
person who would have depose about or could have raised objection
against the said document or to challenge it. But, he has not taken any

such step for the reason best known to him.
58] As per the provision of Section 31 of the Specific Relief Act,

any person against whom a written instrument is void or voidable, and
who has reasonable apprehension that such instrument, if left
outstanding may cause him serious injury, may sue to have it adjudged
void or voidable; and it the Court may, in its discretion, so adjudge it
and order it to be delivered up and cancelled. In the present case,
Zameer was the best person who would have taken step to get it
cancelled as the document could have caused him serious injury if left
outstanding.
59] As such, I find that even if it is found that Zameer was

minor at the time of execution of memorandum of waqf (Exh.84), as
the said document has not been challenged within three years, by
Zameer after getting the age of majority it cannot be objected now.
Hence, I find no substance in the said objection raised by learned
advocate for Jahedabi.
60] Another objection is regarding non registration of

memorandum of waqf. The learned advocate for Bilkis argued that as
the waqf is not necessarily to be in writing and it is not required to be
registered.
61] The learned advocate for Jahedabi argued that the said
document does not fulfill the first and foremost requirement of creation

of waqf i.e. dedication of property in the name of almighty. It is further

argued that the said document (Exh.84) itself denotes that it was a
document creating title in the name of Sk.Nabi. The title clause of said
document such as “Lihun Denar” and “ Lihun Ghenar”. It is further
argued that this recital shows that it has been executed in favour of
Sk.Nabi, and it has not been executed for the dedication in the name of
almighty. On the other hand, it is argued by learned advocate for Bilkis
that the contents of document (Exh.84) is to be seen and not the form
of document.
62] It is well settled position of law that the contents of

document and intention of parties are material and the form is
immaterial. Hence, I find no substance in the argument advanced by
learned advocate for Jahedabi. The contents of document (Exh.84),
specifically show that this is a memorandum of oral wakf created by
them on 26/11/1996 and they have appointed Sk.Nabi as mutawalli. It
has also been contended therein that the property described therein has
been given for burial and construction of dome (mazar) of Pappal
Baba.
63] Essential of valid waqf are (i) a permanent dedication to

any property, (ii) the dedicator (waqif) should be a person professing
the Mussalman faith and of sound mind and not a minor or lunatic,
(iii) the dedication should be for a purpose recognized by the
Mussalman law as religious, pious or charitable. According to the
Mohammedan Law, waqf is not complete unless there is declaration

complied with appointment of mutawalli and delivery of possession.

Considering the facts of the case, all the essentials of creation of valid
wakf are fulfilled.
64] So far as the execution of oral wakf is concerned, Bilkis has

deposed that at the time of cremation of Pappal Baba in the presence of
devotees relatives of Bilkis, Zameer, Shabana and Shahin made oral
waqf. Bilkis has specifically deposed that all the aforesaid proceedings
have been taken place very much in the presence of Jahedabi, who is
also signatory to the said document (Exh.84). Even in the cross
examination of Bilkis it has came on record that at that time Jahedabi
was also present and she also gave her consent for the waqf.
65] It has further come in the crossexamination of Bilkis that

document (Exh.84) was scribed by Ramkrushna Mahaguji Kuhikar.
The document (Exh.84)does not bear the signature of Ramkrushna
Kuhikar. She does not know who mentioned the names by the side of
the signatures Nos. 1 to 5. She has also stated in her cross
examination that the names which are mentioned by the side of the
signatures were not written in her presence. On the basis of these
answers, it is argued by the learned advocate for Jahedabi that the
paper of signatures was attached afterwards, because on page Nos. 1
and 2 of the said document, beside the signature of Bilkis there is no
signature anybody But, as there is no pleading in that regard by
Jahedabi, I find no substance in the argument advanced by the learned
advocate Shri Masood Shareef, more particularly as Bilkis has

sufficiently answered that it did not happen that page No.3 of

document (Exh.84) can be attached with any other document. As such,
testimony of Bilkis regarding execution of (Exh.84) has not been
shattered in crossexamination.
66] Sk.Zaheer has deposed in para No.13 of his evidence on

affidavit that upon perusal of alleged waqf deed dated 26/11/1997,
proclaimed by Sk.Nabi, it reveals that same was falsely prepared on
stamp paper of Rs. 100/ wherein there is no signatures of Jahedabi,
Sk.Zameer, Shahin and Shabana. However, the other blank paper
attached with the said stamp paper, in fact the signatures had been
taken from Jahedabi, Zameer, Shabana and Shahin for the purpose of
getting electric connection in the said durgah. It is further deposed by
Sk.Zameer, that there was no intention of them for execution of waqf
deed at any point of time. Further, there are different handwriting of
different persons in the annexed last paper of document (Exh.84).
67] In para No.14 of the evidence on affidavit, Sk.Zameer has

further deposed that it was a fabricated one and it was written
subsequent after getting their signatures on blank paper attached to the
alleged stamp paper.
68] Now, here it is pertinent to note that there are no pleadings

of any such mis representation that they put their signatures under the
pretext of signing a document for getting electricity connection in the
said durgah and that they had no intention to create a waqf. It is well

settled provision of law that evidence beyond pleadings in not

admissible. Hence, I find no substance in the argument advanced by the
learned advocate Shri Masood Shareef. Secondly as the said document
(Exh.84) has not been challenged by seeking any declaration in that
regard.
69] So far as registration of document (Exh.84) is concerned,

learned advocate for Jahedabi has relied upon the case of Zahedabi
W/o Abdul Razaque Shete and others..vs..Maharashtra State Board
of Waqf, Aurangabad and others, [2020(1)Mh.L.J.416, wherein it
has been held by Their Lordships that;
“Period specified in section 36(8) of the Waqf Act, although
lays down specific time period for making an application for
registration of waqf, the waqf Board clearly has power to
grant extension ot the mutawalli to move such an application
beyond the said specified period by exercising power under
Section 60 of the Act, particularly when the Board has power
under section 41 thereof to direct a mutawalli to apply for
registration of a waqf”.
70] The learned counsel for the Jahedabi has further placed
reliance upon the case of Faridsaheb Hussen Saheb..vs..Ahmed
Saheb Hussen Saheb Sharikmaslat and others, 2020(3), Mh.L.J.959,
wherein Her Lordship has held that;
“ Thus, under Muhammadan Law an oral gift by which, the
donor declares his intention to gift a property, the donee

accepts the gift and possession of the property is delivered

simultaneously to the donee, would be a valid gift. The
plaintiff’s evidence has been accepted since there was no
evidence led by the defendant in rebuttal. It would be obvious
from this evidence that the gift was declared by the plaintiff's
father. The plaintiff had accepted the same and the plaintiff
claimed that he had been delivered possession of the suit
property. But, in this case there is a contemporaneous
execution of a document which is a Gift Deed. It is not well
settled that any Gift Deed executed by a Muhammadan which
is not registered affects the validity of the gift. Thus, if there is
a document by which a property is gifted and it has been
executed simultaneously with an oral gift, that document
must be registered. Undoubtedly possession of the property
must be delivered before the gift can be said to be valid.
Admittedly, in the present case, the document at Exh.27 is
not registered, although executed contemporaneously with the
oral gift. Therefore, the gift of the suit property in favour of
the plaintiff is not valid”
71] Whereas, the learned advocate for Bilkis has placed reliance
upon the case of Hafeeza Bibi and otehrs..vs..Shaikh Farid (dead) by
LRs. and others, Air 2011 SC 1695, wherein Hon’ble Apex Court has
held that;
“ Gift can be made by mohammadan orally, but merely
because gift is reduced to writing instead of making it orally,
such writing does not become formal document or instrument

of gift, form is immaterial, registration not necessary”.
72] Considering all the facts and circumstances and the

guidelines given in the aforesaid judgments, I find that registration of
said document (Exh.84) was not necessary. Hence, I find no substance
in the said objection raised by Jahedabi.
73] The learned advocate for Jahedabi further argued that the
document (Exh.84) was prepared on insufficient stamp paper and has
not been registered, hence it is inadmissible. According to Jahedabi the
document (Exh.84) creates title in favour of Sk.Nabi, hence it was
required to be stamped as per law. Considering the entire facts on
record, I find that the contents of documents play important role. In
the contents of document (Exh.84) it is no where mentioned that any
right, title or interest is created in favour of Sk.Nabi. He has been only
appointed as mutawalli of the waqf property. It is also argued by
learned advocate Shri Masood Shareef that mutawalli is only the
manager of the property and no right, title is vested in it. Considering
this fact, I find no substance in the argument advanced by learned
advocate Shri Masood Shareef, that document (Exh.84) is insufficiently
stamped.
74] Secondly, as per Sections 33 and 34 of the Bombay Stamp

Act, document insufficiently stamped needs to be impounded and such

insufficiently stamped document is in admissible in evidence. But, as

per Section 35 of the Bombay Stamp Act, where an instrument has
been admitted in evidence, such admissions, shall not except as
provided under Section 58 be called in question at any stage of the
same suit or proceeding on the ground that the instrument has not
been duly stamped. In the present case, document (Exh.84) has been
exhibited and admitted in evidence. No objection had been raised at
the time of exhibiting the said document. Hence, I find no substance in
the said argument advanced by learned advocate Shri Masood Shareef.
75] As per provision of Section 101 of the Indian Evidence Act,

the burden to prove execution of document (Exh.84) was on plaintiff
Bilkis, and as discussed above she has categorically proved the said
fact. Once, she has proved the execution of valid waqf, burden shifts on
Jahedabi to prove her defence. But, she has not pleaded about her
defence of misrepresentation and fraud. Hence, said defence cannot be
considered. Hence, I find point Nos. 2 to 4 in affirmative.
76] AS TO POINT NO.5:
Plaintiff Bilkis has specifically pleaded in plaint para No.7

that defendant No.6 was managing the affair of the shrine, however
during the period of Urs the defendant No.3 was appointed as
president of the 13 member committee, has not submitted the account
of offerings and donations received from the followers who visited the
shrine in the month of November 1997 and consequently the insistence
of Sk.Nabi to Sk.Zameer resulted in annoyance and when the entire
family of Bilkis was at Kalmeshwar who had recently got married to the
son of Sk.Nabi, it was misrepresented to her that ultimately the legal
formalities before the Charity Commissioner to get the trust in respect
of the durgah and 5 acres of land, out of Khasra Nos. 294 and 295 is to
be completed and therefore all the legal heirs of Ahmed Patel are
required to sign the document. Under such representation she was
asked to sign the document without allowing her to go through the
same. Moreover, she had absolutely no reason to doubt the bonafide of
any of the defendants therefore she had put her signature along with
her sister on the paper put before her and left for Umrer to her in laws.
Immediately after 4 to 5 days she learnt that under the garb of
document as completion of formalities for registration before the
Charity Commissioner Sk.Zameer, got the general power of attorney
signed from her, she immediately submitted her objection to the Sub
Divisional Officer, Umrer, on 1.12.97, for cancellation of power of
attorney.
77] Defendant Nos.1 to 5 in Spl.C.S.N.584/99 have denied the

contents of para 7 of plaint as false. They have specifically pleaded in
the written statement that the plaintiff Bilkis and Shabana and Shahin
had executed irrevocable general power of attorney in favour of
Sk.Zameer, authorizing him to enter into an agreement of sell and to
do all acts and deeds as their attorney thinks fit and proper in respect
of their shares in the suit property. They have also pleaded that the
said POA was executed before the Notary.
78] Plaintiff Bilkis has repeated her entire case in her evidence
on affidavit about the alleged misrepresentation. During her cross
examination she stated that she is post graduate in Arts and completed
IInd year in LL.B in the year 199495. She did her LL.B in English
Medium, however she had some problem in English language. She can
understand English language. She used to sign on document after
reading its contents. She was 23 years old when she appeared in LL.B.
She deposed that she does not know about POA. She signed the said
document called as POA. It is also deposed that she came to know
about POA when she reached to Umrer from Kalmeshwar. She
admitted that her sisters also signed on POA. She has denied the
suggestion that she had signed the POA after due understanding.
79] It is argued by the learned advocate for Jahedabi that this

witness is well educated and could not sign the said POA without
reading it. But, considering her cross examination that she had denied
it that she had signed on it after understanding the contents nothing
material is brought on record to falsify her testimony that she signed on
the said document under misrepresentation that she has signed on the
document under the pretext for signing for legal formality before the
Charity Commissioner to get the trust in respect of said durgah and 5
acres of land.
80] As per the facts of the case the oral waqf was created on
26.11.96 and memorandum of waqf was prepared on 27.11.96.
Therefore, I find no substance in the argument advanced by learned
advocate for Jahedabi.
81] According to Bilkis she had immediately submitted her

objection to Sub Divisional officer, Umrer, for cancellation of POA. She
has produced the said copy of objection at Exh.74. Thereafter, she had
also cancelled the said power of attorney publishing notice in daily
newspaper ‘Lokmat’ dated 11.12.97. It is produced by her at Exh.94.
She had also issued a legal notice through learned Adv.Dadu Sagdeo.
She has also produced the postal receipt at Exhs.76 to 78 and postal
acknowledgment at Exhs.79 to 84. The said POA is at Exh.159.
82] The learned advocate for Jahedabi argued that the said
POA Exh.159 had been motorized before notary Dadu Sagdeo, and
the legal notice Exh.75 was also issued by Shri.Dadu , therefore the
said fact cannot be believed. It is further argued by Ld.Adv. for Jahidabi
that the Bilkis has not examined Adv.Dadu Sagdeo to prove the said
fact. It can be seen that in the notice Exh.75 it has been specifically
contended that in the last week of November 1997, all the noticees put
the signatures of Bilkis forcibly and illegally on a stamp paper
purporting to be a POA in respect of the above said properties without
her consent and by applying force. Bilkis has sufficiently taken the step
to cancel the said POA, therefore I find no substance in the argument
advanced by learned advocate for Jahedabi that Adv.Shri.Dadu
Sagdeo was required to be examined to prove the said documents.
83] Secondly, as said POA was not registered document it can

be cancelled by the executant by issuing a legal notice and also by
public notice.
84] In the present case Bilks has sought the additional relief for
declaration that POA was executed by misrepresentation and therefore,
it is illegal and not binding on plaintiff. The said amendment was
carried out in the year 2008, therefore it was argued by learned
advocate for Jahedabi that the said relief of declaration in respect of
POA is barred by limitation. If the party has any objection regarding
the limitation, if the amendment is carried out when the said fact is
required to be brought on record and if there is a finding in the
amendment order that the said amendment would effect from the date
of its amendment subject to the long limitation in that case the said
objection would be maintainable. But, in the present case considering
the order of amendment by default the doctrine of relation back would
apply. Therefore, I find no substance in the said objection raised by
learned advocate for Jahedabi.
85] In addition to that the original POA has also been not
produced on record nor permission to lead evidence has been sought.
Therefore, in the absence of direct evidence in respect of execution of
POA I find that the contention of the plaintiff is more probable than
that of defendants. Therefore, I find this point in the affirmative.

It is the case of Bilkis that defendant no.3 Zameer has

executed sale deeds in respect of half share in Kh.Nos. 294 and 295
without any authority. Therefore, the sale deeds in respect of Kh.Nos.
294 and 295 of Mouza Umrer and Kh.Nos.43 and 44 in respect of
Mouza Tas are illegal and not binding on her.
87] As discussed above, Bilkis has sufficiently proved that the

POA dt.27.11.97, was executed by misrepresentation and she has
cancelled the said POA by raising objection before Sub Divisional
Officer, and by issuing public notice as well as by giving the legal
notice. Therefore, I find that Sk.Zameer has no authority to execute the
sale deeds as he has no power as the said POA was cancelled by Bilkis.
88] The learned advocate for Bilkis argued that at the time of
execution of the sale deeds Sk.Zameer was minor and therefore also
those sale deeds are illegal void and not binding.
89] As it has been discussed earlier that it has been brought on

record that Sk.Zameer was minor at the time of execution of
memorandum of oral Wakf (Exh.84), though there is no document on
record to show the date of birth of Sk.Zameer it has been brought on
record that Jahedabi has signed the said memorandum of Waqf in the
capacity of guardian of Sk.Zameer. According to Jahedabi, Sk.Zameer
was minor in the year 1996 and at the time of execution of sale deed
i.e. on 16.12.97 and 17.12.97 Sk.Zameer was major. It is argued by
Ld.Adv. for Jahedabi that the recitals of sale deed sufficiently shows
that Sk.Zameer was of 20 years of age at the time of execution of those
sale deeds.
90] As per Section 3(2) of the Indian Majority Act, the age of
majority of a person in case guardian is appointed is 21 years. In the
present case admittedly Jahedabi was appointed as guardian and hence
I find substance in the argument advanced by Ld.Adv. for Bilkis.
91] Another objection raised by the Bilkis is that she has not
received any consideration for said sale deed and therefore the said
sale deeds are illegal. There is no evidence on record to show that
Bilkis has received any amount of consideration for said sale deeds.
92] Learned Adv. for Bilkis has relied upon the case of
Durgamani Behera and others .Vs. Ghasiram Mohanta and others
reported in 1995(1) Civil L J 381 wherein it has been held by Hon'ble
Orisa High Court that :
“The intention of the parties being quite clear and

unambiguous as revealed from the terms of the document,
they alone can be looked into and no extraneous evidence is
admissible. From the recitals the only inference can be that
passing of title was dependent on payment of consideration.
Therefore, if the recycles about payment of consideration is
found to be not true, then it can be legitimately held that title

did not pass by mere execution and registration of the sale
deed. In other words, the sale deed can only be construed as
meaning that the parties intended on passing of
consideration, title would pass to the plaintiff. Therefore, the
submission on behalf of the respondent that under the suit,
sale deed, title pass independent of passing of consideration
cannot be sustained”.
Considering the entire discussion, I find that the plaintiff

Bilkis has sufficiently proved this point. As such, I find this point in
affirmative.
93] AS TO POINT NOS. 7 AND 8:
Considering the entire discussions, I am of the view that the

plaintiff has successfully on preponderance of probability proved that
the suit properties as mentioned in schedule annexed to the plaint,
were the self acquired properties of her father and the father of
defendant Nos. 3 to 5 namely Sk.Ahmed. It is also proved by plaintiff
on preponderance of probability that for waqf the entire field bearing
Khasra Nos. 294, admeasuring 1.03 H.R. was given. So also, the area
0.97 H.R. of Khasra No.295( NorthSouth portion towards East of the
field of Khasra No.295) was given for waqf. In such circumstances, as
the entire field bearing Khasra No. 294, Mouza Umrer, was dedicated
to waqf, in this property the plaintiff as well as the defendant Nos. 3 to
5 will have no share. Whereas, after deducting the area of 0.97 H.R. of
Khasra No.295, the defendant Nos. 3 to 5 and the plaintiff will have

right to share in it. In rest of the suit properties, the plaintiff, defendant
Nos. 3 to 5 will have right to share as the plaintiff has successfully
proved her case to that extent. It has also been proved by her that the
sale deeds of the field bearing Khasra Nos. 294 and 295 of Mouza
Umrer, executed by defendant No.3 in favour of defendant No.1 and in
favour of defendant No.2 of the fields bearing Khasra Nos. 43 and 44 of
Mouza Tas are illegal and void. So, all these sale deeds executed in
favour of defendant No.1 and defendant No.2 are required to be
declared illegal. At the same time, the rightful shares of the plaintiff
and defendant Nos. 3 to 5, are required tobe declared.
94] The defendant No.3 being a male member, brother will

have double share than that of each of his sisters. Therefore, defendant
No.3 will have ½ share in all the suit properties mentioned in the
schedule annexed to the plaint (except Khasra No.294 of Mouza
Umrer) and plaintiff and defendant Nos. 4 and 5 will each have 1/5 th
share in these suit properties (except Khasra No.294) of Mouza Umrer.
95] Considering the entire facts and circumstances of the case

and foregoing discussions, I am of the view that the plaintiff will be
entitled to get the declaration that the power of attorney dated
27/11/1997, is illegal and not binding upon her. She is entitled for the
partition and her 1/5th share as stated above in her separate possession.
Hence, I answer these points accordingly.

Taking into consideration the facts and circumstances of the

case, so also all the legal aspects, I find that the judgment and decree
passed by the learned trial Court is just, legal and proper and requires
no interference in the appeal. Hence, appeal fails.
Points discussed in R.C.S.No.194/2004

As discussed in the abovesaid points, I find that Jahedabi
has failed to prove that suit property was owned by Sk. Afzal. She
claims owner of ½ property on the basis of sale deeds executed by
Zameer which are null and void as discussed above. Hence, I find this
point in the negative.

As discussed in the above said point No.6, it is proved that
the sale deeds dated 16/12/1997, are sham and bogus. Therefore I
find this point in the affirmative.
99] AS TO POINT NOS.3 AND 4:

It has come in the evidence of Jahedabi that defendant No.1
has made a encroachment over her property and constructed two
rooms admeasuring 10 x 20 each near the durgah. She deposed that
said construction was raised in bricks and cement having tin roof. She
deposed that defendant No.1 did not obtain any permission from
Muncipal Council, Umred, and the said construction was raised with
the help of defendant Nos. 2 to 4. She deposed that defendant Nos. 1 to
4 are the encroachers and made illegal construction over the suit

property.
100] However, as discussed above Jahedabi has failed to prove

her ownership over the suit property. On the contrary from the
testimony of Sk.Nabi, Idris Mohd. and Bilkish it is crystal clear that the
land admeasuring 5 acres of suit property was given in waqf on
26/11/1997. Sk.Nabi was appointed as mutawalli and possession was
given to him. From the oral testimony of Sk.Nabi, and Bilkish it is
crystal clear that Sk.Nabi is in valid possession of waqf property as a
mutawalli. Jahedabi has failed to prove that defendant No.1 Sk.Nabi is
encroacher over the suit land. Jahedabi no where stated in her
testimony that the construction raised by Sk.Nabi over the suit property
requires permission from competent authority. Her testimony reveals
that Sk.Nabi has raised a temporary construction for which no
permission is required. Jahedabi failed to prove that Sk.Nabi has
encroached upon the suit property and made illegal construction.
Hence, I answer point Nos. 3 and 4 in negative.
Jahedabi has failed to prove her ownership over the suit
property. She is not entitled to declaration as prayed. She is also not
entitled for relief of possession as she failed to prove her ownership
over the suit property. For the said reasons, she is also not entitled for
relief of mandatory and permanent injunction as prayed. Therefore, I
find his point in negative.
Taking into consideration the facts and circumstances of the

case, so also all the legal aspects, I find that the judgment and decree
passed by the learned trial Court is just, legal and proper and requires
no interference in the appeal. Hence, appeal fails.
In the result, I proceed to pass the following order.
ORDER
I) The appeals (R.C.A.Nos.436/2010 and 153/2011) stand

dismissed.
II) The judgment and decree dated 01/07/2000, passed in

R.C.S.No.194/2004, by learned Civil Judge Junior
Division, Umred, stands confirmed.
III) The appeal R.C.A.No.329/2016 stands dismissed.
IV) The judgment and decree dated 17/11/2015, passed in

R.C.S.No.145/2012, by learned Joint Civil Judge Junior
Division, Umred, stands confirmed.
V) The parties to bear their own costs.
VI) Copy of this judgment be kept in the record of

R.C.A.Nos.153/2011 and 329/2016.
judgment
VII) A decree be drawn up accordingly. Digitally signed by

PARVEEN FARMAN
SAYYAD
Nagpur Location: Nagpur

Date: 2022.05.26
12:32:36 +0530
02/05/2022 (Smt. P.F.Sayyad)

Special Judge, Special Court
for Differently Abled persons,
Senior Citizens and
Marginalized Section of
Society, Nagpur.

CERTIFICATE
I affirm that the contents of this P. D. F. file of judgment are

word to word, as per original judgment.
Name of : P.U.Kitey
Stenographer
(Grade1)


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[1 Regular Civil Appeal Nos.

436/2010, 153/2011 & 329/2016

BEFORE THE SPECIAL JUDGE, SPECIAL COURT FOR

MHNG010068492010 Presented on : 23-09-2010

REGULAR CIVIL APPEAL NO.436/2010 Exh.No

Smt. Jaheda Bi Abdul Razzaque Shetye,

1) Shri Sheikh Nabi Sheikh Rasool,

2) Shri Habib Nabi Sheikh,

3) Shri Shabbir Nabi Sheikh,

4) Shri Asif Nabi Sheikh,

5) Bilkis Asif Sheikh,

/home/ubuntu/Desktop/MAY­2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

All R/o Budhwari Peth, Umrder,

6) Sheikh Zamir Sheikh Ahmad,

7) Shabana Sheikh Ahmad,

8) Shahin Sheikh Ahamad,

/home/ubuntu/Desktop/MAY­2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

REGULAR CIVIL APPEAL NO. 153/2011

2) Shabana Sheikh Ahmad,

3) Shahin Sheikh Ahamad,

2) Shri Habib Nabi Sheikh,

3) Shri Shabbir Nabi Sheikh,

4) Shri Asif Nabi Sheikh,

5) Bilkis Asif Sheikh,

/home/ubuntu/Desktop/MAY­2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

All are R/o Budhwari Peth, Umrder,

6) Smt. Jaheda Bi Abdul Razzaque Shetye,

MHNG010008772016 Presented on : 25-01-2016

REGULAR CIVIL APPEAL NO.329/2016

1) Smt. Jaheda Bi Abdul Razzaque Shetye,

/home/ubuntu/Desktop/MAY­2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

3) Zameer Ahamad S/o Sheikh Ahmad,

4) Ku. Shabana D/o Sheikh Ahmad,

5) Ku. Shaheen D/o Sheikh Ahamad,

2) Sheikh Nabi S/o Sheikh Rasool,

APPEALS UNDER SECTION 96 OF THE CODE OF CIVIL PROCEDURE

/home/ubuntu/Desktop/MAY­2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

Being aggrieved by the judgment and decree dated

2] So far as R.C.A. No.329/ 2016, is concerned it is filed by

3] The compromise (Exh.28) took place between the parties

be more convenient to decide all the appeals together by common

5] The grounds of appeal in R.C.A.No.436/2010, filed by

/home/ubuntu/Desktop/MAY­2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

6] The grounds of appeal raised in R.C.A.No.153/2011, filed

/home/ubuntu/Desktop/MAY­2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

7] In short, the appellants have challenged the validity of

/home/ubuntu/Desktop/MAY­2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

8] The grounds of appeal raised in R.C.A.No.329/2016, filed

/home/ubuntu/Desktop/MAY­2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

record much less any evidence lead by the respondent No. 1 to

9] The facts of R.C.S.No.194/2004 filed by Jahedabi for

/home/ubuntu/Desktop/MAY­2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

The plaintiff owns and possesses half share in S.No.294,

/home/ubuntu/Desktop/MAY­2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

plaintiff has also allowed the devotees to make a construction of dome

/home/ubuntu/Desktop/MAY­2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

10] The defendant Nos. 1 to 4 filed their written statement

/home/ubuntu/Desktop/MAY­2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

should be registered on the basis of false and bogus sale deed in

/home/ubuntu/Desktop/MAY­2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

dated 09/02/2006, published in Government of Maharashtra

11] The defendant No.5 filed her written statement(Exh.53)

/home/ubuntu/Desktop/MAY­2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)

/home/ubuntu/Desktop/MAY2022/R.C.A.No.436of2010, 153of2011 and 329 of 2016(CTZ)