IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI

WRIT PETITION No.2618 of 2024

Between:

KALIMELA KIRAN KUMAR,, S/O SOWRI, CHRISTIAN, AGED ABOUT

47 YEARS. FLAT NO. 108, VIJAYA SAI APARTMENT,

CHENCHUPETA, TENALI -522202, GUNTUR DISTRICT.

... PETITIONER

AND

THE STATE OF ANDHRA PRADESH, REP BY ITS PRINCIPAL

SECRETARY, MINORITY WELFARE DEPARTMENT, AP

SECRETARIAT, VELAGAPUDI, AMARAVATI AND 3 OTHERS.

... RESPONDENTS

DATE OF ORDER PRONOUNCED : 16.06.2025

SUBMITTED FOR APPROVAL :

HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

1. Whether Reporters of Local Newspapers

may be allowed to see the order? : Yes/No

2. Whether the copy of order may be

marked to Law Reporters/Journals? : Yes/No

3. Whether His Lordship wish to

see the fair copy of the order? : Yes/No

___________________________

JUSTICE SUBBA REDDY SATTI

Page 2 of 23

* HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

+ WRIT PETITION No.2618 of 2024

% 16.06.2025

WRIT PETITION No.2618 of 2024

Between:

KALIMELA KIRAN KUMAR,, S/O SOWRI, CHRISTIAN, AGED ABOUT

47 YEARS. FLAT NO. 108, VIJAYA SAI APARTMENT,

CHENCHUPETA, TENALI -522202, GUNTUR DISTRICT.

... PETITIONER

AND

THE STATE OF ANDHRA PRADESH, REP BY ITS PRINCIPAL

SECRETARY, MINORITY WELFARE DEPARTMENT, AP

SECRETARIAT, VELAGAPUDI, AMARAVATI AND 3 OTHERS.

... RESPONDENTS

! Counsel for Petitioner : Sri Eluru Sesha Mahesh Babu

^ Counsel for Respondents : Sri Shaik Khaja Basha

Sri S.M.Subhani

< Gist:

> Head Note:

? Cases referred:

1) AIR 2007 SC 1447

2) 2014 (6) ALD 411

3) AIR 1955 SC 233

4) AIR 1967 SC 1274

5) (1994) 3 SCC 357

6) (2003) 8 SCC 134

7) (2008) 9 SCC 306

8) W.P.No.42457 of 2017 dated 06.05.2025

This Court made the following:

Page 3 of 23

APHC010044982024

IN THE HIGH COURT OF ANDHRA PRADESH

AT AMARAVATI

(Special Original Jurisdiction)

[3331]

MONDAY, THE SIXTEENTH DAY OF JUNE

TWO THOUSAND AND TWENTY FIVE

PRESENT

THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI

WRIT PETITION NO: 2618/2024

Between:

Kalimela Kiran Kumar, ...PETITIONER

AND

The State Of Andhra Pradesh and Others ...RESPONDENT(S)

Counsel for the Petitioner:

1. ELURU SESHA MAHESH BABU

Counsel for the Respondent(S):

1. GP FOR SOCIAL WELFARE (AP)

2. MASALEGAR HIDAYATHULLA

3. S ARIFULLAH (SC FOR AP WAQF BOARD)

4. SHAIK KHAJA BASHA

The Court made the following:

ORDER

The 12

th

defendant in O.S.No.3 of 2024 on the file of Andhra

Pradesh Wakf Tribunal at Kurnool, filed the above writ petition seeking

writ of prohibition.

Page 4 of 23

2. a) Averments in the affidavit, germane, for consideration, are that

the petitioner purchased the agricultural land of an extent of Ac.1.64

cents in S.No.249/1B1B, old S.No.54 of Guntupalli village,

Ibrahimpatnam Mandal, NTR District. The land has been owned by the

vendors since 1938. The revenue authorities updated the name of the

petitioner in the Records of Rights and issued the Pattadar Pass Book.

The petitioner sold an extent of Ac.0.28 cents to Devireddy Anjaneya

Reddy and an extent of Ac.0.20 cents to Koneti Nagarani in the year

2017. The respective vendees also got Pattadar pass books. The

agricultural land was converted into non-agricultural land. The petitioner

is developing the land for commercial purposes.

b) The 4

th

respondent filed the suit as mentioned above, by

suppressing the material facts and the earlier suit O.S.No.151 of 1975 on

the file of the Subordinate Judge, Vijayawada. The suit filed by the 4

th

respondent is hit by Section 7 of the Wakf Act, 1995. The findings

recorded in O.S.No.151 of 1975 on the file of the Subordinate Judge,

Vijayawada, became final.

3. a) A counter-affidavit was filed on behalf of the 2

nd

respondent. It

was contended, inter alia, that the writ petition filed by the petitioner is not

maintainable. The 4

th

respondent, Mazlum Shah Darvesh Takia & Masjid-

Wakf, represented by its Mutavalli, filed suit O.S.No.3 of 2024 against the

writ petitioner and others for a declaration of title in respect of Ac.45.32

cents in R.S.No.249/1B1B of Guntupalli village. The property was

recognised, as per the Survey Commissioner Report, on the survey of

wakf dated 07.12.1955, as wakf property and notified in the Gazette.

The Wakf tribunal directed the parties to maintain the status quo by its

Page 5 of 23

order dated 19.01.2024. The writ petitioner, instead of filing a written

statement, filed the above writ petition.

b) In the counter affidavit, it was further pleaded about the British

Regime; amendment to Andhra Pradesh (Andhra Area) Inams (Abolition

and Conversion into Ryotwari) Act, 1956. However, those averments are

not extracted it being a legal aspect. It was further pleaded that the

Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 does

not apply to the lands belonging to the State and Central Government.

The petitioner suppressed the facts and secured the Pattadar Pass Book.

The suit O.S.No.151 of 1975 was filed for recovery of possession from

the defaulting tenants. The issue of title was not decided in the said suit.

The scope and nature of suit O.S.No.151 of 1975 and O.S.No.3 of 2024

are different, and hence, Section 7 of the Wakf Act, 1955 has no

application. The judgment passed in contravention of the statute is non-

est in the eye of the law. No individual can set up adverse possession to

the Wakf property. Section 108-A of the Wakf Act had an overriding

effect on other Acts. The petitioner has an efficacious and alternative

remedy under Section 83 (2) of the Wakf Act and eventually prayed to

dismiss the writ petition.

4. The 4

th

respondent filed a separate counter-affidavit, reiterating the

averments made in the counter-affidavit filed on behalf of the 2

nd

respondent. Since the averments in the counter affidavit of the 2

nd

respondent and the 4

th

respondent are similar, the averments in the

counter affidavit filed by the 4

th

respondent are not specifically extracted

herein.

5. Heard Sri K.G.Krishna Murthy, learned senior counsel assisted by

Sri Eluru Sesha Mahesh Babu, learned counsel for the petitioner, Sri

Page 6 of 23

Shaik Khaja Basha, learned standing counsel for the 2

nd

respondent and

Sri S.M.Subhani, learned counsel for the 4

th

respondent.

6. Learned senior counsel for the petitioner would contend that the

father of Syed Gulam Gouse, Mutavalli of the 4

th

respondent, filed the

suit O.S.No.151 of 1975 on the file of Subordinate Judge, Vijayawada,

against the predecessors in title of the petitioner as well as A.P. Wakf

Board, Hyderabad. The said suit was dismissed on merits by judgment

and decree dated 30.09.1978. The findings recorded in the said suit

became final, and hence, the suit O.S.No.3 of 2024 filed by the 4

th

respondent in the writ petition is hit by Section 7 of the Wakf Act, 1995.

7. Learned senior counsel relied upon Saradha Khan Vs Syed

Najmul Hassan (Seth)

1

and Syed Ammen Vs Andhra Pradesh State

Wakf Board, Rep by its Chief Executive Officer

2

.

8. Sri Shaik Khaja Basha and Sri S.M.Subhani, learned counsel for

respondents 2 and 4, on the other hand, would submit that the judgment

and decree in O.S.No.151 of 1975 do not take away the jurisdiction of the

tribunal in adjudicating the suit filed by the 4

th

respondent for the

declaration of title. The petitioner’s vendors are tenants and hence, the

tenants can never claim ownership. Taking advantage of the findings in

O.S.No.151 of 1975, the tenants sold the properties. The petitioner is one

of the vendees, and all other purchasers have been contenting the suit.

The petitioner initially filed I.A. to reject the plaint and later, has

withdrawn the same.

1

AIR 2007 SC 1447

2

2014 (6) ALD 411

Page 7 of 23

9. Now, the point for consideration is:

Whether the Wakf tribunal has jurisdiction to entertain and

proceed with the suit O.S.No.3 of 2024 filed by the 4

th

respondent for declaration of the title, for cancellation of

the sale deeds etc. and recovery of possession of the

property, given the judgment and decree in O.S.No.151 of

1975?

10. Before proceeding further, let this Court examine the scope of the

Writ of Prohibition.

11. According to CRAIG R. DUCAT, a Writ of prohibition is an order

issued by a superior Court to an inferior Court directing it to cease

consideration of some matter to prevent it from usurping jurisdiction it did

not have

3

12. In the words of Blackstone

4

, a Prohibition is a writ directed to the

judge and parties to a suit in any inferior court commanding them to

cease from the prosecution thereof, upon a suggestion that either the

cause originally, or some collateral matter arising therein, does not

belong to that jurisdiction, but to the cognizance, of some other court ...

Or, if, in handling matters clearly within their cognizance, they transgress

the bounds prescribed to them by the laws of England.

13. The prohibition is an order directed to ... an inferior Court, which

forbids that Court to continue proceedings therein in excess of its

jurisdiction or in contravention of the laws of the land. ‖

3

Craig R Ducat, Constitutional Interpretation, 8

th

Edition, Glossary

4

Durga Das Basu, Commentary on The Constitution of India, 9

th

edition, Volume 11(1)

at Page: 11677

Page 8 of 23

14. In Corpus Juris Secundum

5

, "Prohibition" is defined as "a

prohibition is that process by which a superior court prevents inferior

courts, tribunals, officers or persons from usurping or exercising

jurisdiction with which they have not been vested".

15. The Hon’ble Apex Court in Hari Vishnu Kamath Vs. Syed

Ahmad Ishaque & Ors

6

, held thus:

―15. … When an inferior court takes up for hearing a matter over

which it has no jurisdiction, the person against whom the

proceedings are taken can move the superior court for a writ of

prohibition, and on that, an order will issue forbidding the inferior

court from continuing the proceedings.‖

16. In S.Govinda Menon Vs. Union of India

7

, the Hon’ble Apex Court

held thus:

―5. The jurisdiction for grant of a writ of prohibition is primarily

supervisory and the object of that writ is to restrain courts or inferior

tribunals from exercising a jurisdiction which they do not possess at

all or else to prevent them from exceeding the limits of their

jurisdiction. In other words, the object is to confine courts or tribunals

of inferior or limited jurisdiction within their bounds. It is well settled

that the writ of prohibition lies not only for excess of jurisdiction or for

absence of jurisdiction but the writ also lies in a case of departure

from the rules of natural justice (See Halsbury's Laws of England, 3rd

Edn., Vol. 11, p. 114). It was held for instance by the Court of Appeal

in King v. North [1927 (1) KB 491] that as the order of the Judge of

5

Durga Das Basu, Commentary on The Constitution of India, 9

th

edition, Volume 11(1)

at Page: 11678

6

AIR 1955 SC 233

7

AIR 1967 SC 1274

Page 9 of 23

the Consistory Court of July 24, 1925 was made without giving the

vicar an opportunity of being heard in his defence, the order was

made in violation of the principles of natural justice and was therefore

an order made without jurisdiction and the writ of prohibition ought to

issue. But the writ does not lie to correct the course, practice or

procedure of an inferior tribunal, or a wrong decision on the merits of

the proceedings. It is also well established that a writ of prohibition

cannot be issued to a court or an inferior tribunal for an error of law

unless the error makes it go outside its jurisdiction

(See Regina v. Comptroller General of Patents and Design [1953 (2)

WLR 760, 765] ) and Parisienne Basket Shoes Proprietary

Ltd. v. Whyte [59 CLR 369] . A clear distinction must therefore be

maintained between want of jurisdiction and the manner in which it is

exercised. If there is want of jurisdiction then the matter is coram non

judice and a writ of prohibition will lie to the court or interior tribunal

forbidding it to continue proceedings therein in excess of its

jurisdiction.‖

17. In Union of India Vs. Upendra Singh

8

, the Hon’ble Apex Court

held that a writ of prohibition is issued only when a patent lack of

jurisdiction is made out.

18. In Thirumala Tirupati Devasthanams Vs. Thallappaka

Ananthacharyulu

9

, the Hon’ble Apex Court held thus:

―… A writ of prohibition is normally issued only when the inferior court

or tribunal (a) proceeds to act without or in excess of jurisdiction, (b)

proceeds to act in violation of the rules of natural justice, (c)

proceeds to act under law which is itself ultra vires or

8 (1994) 3 SCC 357

9

(2003) 8 SCC 134

Page 10 of 23

unconstitutional, or (d) proceeds to act in contravention of

fundamental rights. … A writ of prohibition must be issued only in

rarest of rare cases. Judicial discipline of the highest order has to be

exercised whilst issuing such writs …‖

19. Thus, a conspectus of the above authoritative pronouncements,

the superior Court would issue a writ of prohibition, prohibiting/preventing

from usurping or exercising the jurisdiction that was not vested in it. It is a

negative order intended to preclude future unlawful action or decision.

Keeping in the same mind, let this Court examine the issue.

20. The 4

th

respondent filed suit O.S.No.3 of 2024 against 17

defendants. The prayer sought in the plaint is for a declaration that the

plaintiff-wakf is the absolute owner of the plaint schedule property; for

cancellation of alleged deeds, 12 in number with consequential relief of

recovery of possession and to direct the defendants 14, 15 & 17 to enter

the plaintiff-wakf’s in the revenue records etc. The extent of the property

mentioned as per the schedule is Ac.1.64 cents, out of Ac.45.32 cents in

old R.S.No.54, R.S.No.249/1B and present R.S.No.249/1B1B of

Guntupalli village and Gram Panchayat, Ibrahimpatnam Mandal, NTR

District. Along with the plaint, 51 documents were filed.

21. A perusal of the entire plaint, neither an averment was made

regarding the judgment and decree in O.S.No.151 of 1975, nor a copy of

the judgment, decree and pleadings in the suit, is made as part of the

suit. Of course, this Court is conscious of the fact that it is adjudicating a

writ of prohibition, not an appeal arising out of any interlocutory orders

passed in the suit.

Page 11 of 23

22. Learned senior counsel for the petitioner emphasised the findings

in the judgment and decree in O.S.No.151 of 1975. Learned counsel for

respondents 2 and 4 would contend that the judgment and decree in

O.S.No.151 of 1975 have no relevance, since the present suit is filed for

a declaration of title.

23. The pleadings and judgment in O.S.No.151 of 1975 are made as

part of the writ petition, vide WPUSR No.68252 of 2024.

24. Section 7 of the Wakf Act 1995, expressly Section 7(5) of the Act,

plays a pivotal role, and hence it is profitable to extract the entire section:

7. Power of Tribunal to determine disputes regarding auqaf.—

(1) If, after the commencement of this Act, any question or

dispute arises, whether a particular property specified as waqf

property in a list of auqaf is waqf property or not, or whether a waqf

specified in such list is a Shia waqf or a Sunni waqf, the Board or the

mutawalli of the waqf, or any person aggrieved by the publication of

the list of auqaf under section 5 therein, may apply to the Tribunal

having jurisdiction in relation to such property, for the decision of the

question and the decision of the Tribunal thereon shall be final:

Provided that—

(a) in the case of the list of auqaf relating to any part of the State

and published after the commencement of this Act no such

application shall be entertained after the expiry of one year from the

date of publication of the list of auqaf; and

(b) in the case of the list of auqaf relating to any part of the State

and published at any time within a period of one year immediately

preceding the commencement of this Act, such an application may

Page 12 of 23

be entertained by Tribunal within the period of one year from such

commencement: Provided further that where any such question has

been heard and finally decided by a civil court in a suit instituted

before such commencement, the Tribunal shall not re-open such

question.

(2) Except where the Tribunal has no jurisdiction by reason of

the provisions of sub-section (5), no proceeding under this section in

respect of any waqf shall be stayed by any court, tribunal or other

authority by reason only of the pendency of any suit, application or

appeal or other proceeding arising out of any such suit, application,

appeal or other proceeding.

(3) The Chief Executive Officer shall not be made a party to

any application under sub-section (1).

(4) The list of auqaf and where any such list is modified in

pursuance of a decision of the Tribunal under sub-section (1), the list

as so modified, shall be final.

(5) The Tribunal shall not have jurisdiction to determine any

matter which is the subject-matter of any suit or proceeding instituted

or commenced in a civil court under sub-section (1) of section 6,

before the commencement of the Act or which is the subject-matter

of any appeal from the decree passed before such commencement in

any such suit or proceeding or of any application for revision or

review arising out of such suit, proceeding or appeal, as the case

may be.

(6) The Tribunal shall have the powers of assessment of

damages by unauthorised occupation of waqf property and to

penalise such unauthorised occupants for their illegal occupation of

Page 13 of 23

the waqf property and to recover the damages as arrears of land

revenue through the Collector:

Provided that whosoever, being a public servant, fails in his

lawful duty to prevent or remove an encroachment, shall on

conviction be punishable with fine which may extend to fifteen

thousand rupees for each such offence.

25. Thus, section 7 of the Act prescribes the power of the Tribunal in

deciding the disputes regarding auqaf. While sub-section (1) expressly

delineates the jurisdiction, sub-section 5 expressly confines the

jurisdiction of the Tribunal to the suits or other proceedings in the Civil

Court under Section 6 (1) of the Act, before the commencement of the

Act, either instituted or pending, including appeal, revision or review.

26. Section 6 of the Act deals with disputes regarding auqaf. Section

6(1), which is germane, is extracted hereunder:

6. Disputes regarding auqaf.—(1) If any question arises whether a

particular property specified as waqf property in the list of auqaf is waqf

property or not or whether a waqf specified in such list is a Shia waqf or

Sunni waqf, the Board or the mutawalli of the [waqf or any person

aggrieved may institute a suit in a Tribunal for the decision of the

question and the decision of the Tribunal in respect of such matter shall

be final:

Provided that no such suit shall be entertained by the Tribunal

after the expiry of one year from the date of the publication of the list of

auqaf:

Provided further that no suit shall be instituted before the

Tribunal in respect of such properties notified in a second or

Page 14 of 23

subsequent survey pursuant to the provisions contained in sub-section

(6) of section 4.

27. Thus, once a civil Court has already adjudicated an issue relating

to the property before the commencement of the Act 43 of 1995, the

same issue cannot be agitated again. As narrated, the pleadings and

judgment in suit O.S.No.151 of 1975 are made available, this Court

perused the same cautiously.

28. Suit O.S.No.151 of 1975 was filed by the Muzlum Shah Darvesh

Takia Masjid, represented by its Mutavalli Syed Masoom Shah Khadri,

against Guntupalli Bhaskara Rao and others. The 6

th

defendant in the

suit is the Andhra Pradesh Wakf Board. Items No.2 and 3 of the

schedule property were sought to be recovered. Item No.1 of the plaint

schedule property, as per the averments in the plaint, was acquired by

the Government. Item No.2 is Ac.2.00 cents is inam dry in D.No.54.

Item No.3 is Ac.1.28 cents in the same D.No.

29. A perusal of the averments in the plaint in O.S.No.151 of 1975

would disclose that the plaint schedule property belonged to the plaintiff

institution. The Commissioner confirmed the grant in favour of the

plaintiff in 1860 and issued title deed No.899 in respect of Ac.123.19

cents. One Syed Fasululla, the grandfather of Mutavalli, filed suit

O.S.No.560 of 1955 on the file of the District Munsif Court, Vijayawada,

against Guntupalli Hanumantharao, the father of the 1

st

defendant, for

recovery of possession and mesne profits in respect of item No.1 of the

schedule property. He also filed suit O.S.No.562 of 1955 for recovery of

items No.2 and 3. The above suits and other suits filed by the same

plaintiff institution in respect of Inam lands were decreed on 28.02.1957.

Guntupalli Hanumantharao filed appeals A.S.Nos.63 and 64 of 1957.

Page 15 of 23

Pending the appeals, the named Mutavalli died and Syed Gulam Gouse,

father of Syed Masoom Shah Khadri, Mutavalli of the institution, who

filed suit O.S.No.151 of 1975 was added as successor Mutavalli. The

said Syed Gulam Gouse, a man of weak mind, entered into a

compromise with unsuccessful parties, despite judgment in A.S.Nos.410

and 411 of 1943, arising out of suits O.S.Nos.48 of 1940 and 42 of 1941.

While the land of similar nature could get 10 bags of paddy a lease

amount, fixing two bags of paddy in the compromise is nothing but

putting the interest of the institution in jeopardy. The said compromise

was entered into without the sanction of the Wakf Board, and the

compromise is contrary to the provisions of Section 60 of the Wakf Act.

Thus, the plaintiff prayed for profits and possession of items No.2 and 3

etc.

30. The said suit was contested by the defendants. The 1

st

defendant

filed a written statement. It was contended that Hanumantha Rao

purchased item No.1 of the schedule property and some property under

a registered sale deed from Zamamunnisa Begum and others. The

vendors’ children, Shamsunnisa Sahiba, who in turn got the same as a

part of the property allotted to her in a suit for partition in O.S.No.407 of

1938 on the file of the District Munsif Court, Vijayawada. Before the sale

of the property, the vendor’s predecessors, including father of vendor,

entered into an agreement, in which Ac.9.60 cents in R.S.No.28 of

Kondapalli village, in which the vendors had a joint right, was

surrendered to one Syed Fasilullah for rendering service to the plaintiff

mosque. Consequently, on an agreement, the Guntupalli lands were

released from the burden of the service. The 1

st

defendant’s mother

purchased items No.2 and 3 of the schedule property on 30.06.1946

from one P.Sitakantham, who in turn appeared to have purchased the

Page 16 of 23

same from Salar Shariff. In respect of items No.2 and 3, the above

arrangement was in force. The said agreement was taken note of by the

Wakf Board, and the same was evident from the Gazette publication in

the year 1962 at Page No.708, wherein it was mentioned that the

plaintiff’s land in Guntupalli village is only Ac.88.84 cents. The plaint

schedule properties are not included in the said Gazette. The property in

old S.No.28 is shown as property of the mosque.

31. Thus, a plain reading of the pleadings, the plaintiff pleaded title to

the property, sought recovery of possession, and the defendants denied

the title.

32. The Mutavalli of the institution was examined as P.W.1 and

Exs.A1 to A4 were marked. The 1

st

defendant was examined as D.W.1

and Exs.B1 to B26 were marked.

33. In the suit, 12 issues were framed. The first issue is whether the

plaint schedule land belonged to the plaintiff institution? Issues 1 to 4

were dealt with commonly.

34. As seen from the narration of the facts and discussion, the

schedule properties were purchased by the vendor of the defendants on

05.09.1944 and 30.06.1944 (Exs.B22 and B23). A compromise was

entered into by creating permanent tenancy rights in favour of the

defendants with a condition that the defendants should pay two bags of

paddy for wet land and one bag of paddy for dry land.

35. Since this Court is dealing with a Writ of Prohibition, some

excerpts of the judgment are here extracted:

Page 17 of 23

36. In Paragraph-12 of the judgment, the competent civil Court

recorded the following findings:

―I have stated this fact again because Exs.B24 (28.06.1962 – Entry

at Page 708 and 709 in Andhra Pradesh Part II Gazette for items

733 and 745 for Columns 1 to 11), the list of wakf’s publication, it is

total silence about the schedule property and did not show the

schedule property was surveyed. The fact that the schedule

property was not surveyed and that the same was not included

in the list of wakf’s are circumstances in favour of the

inference that the schedule property is not at all treated as

wakf’s property. It may be due to the fact that it was converted

into private property and substituted by another property covered

by R.S.No.28 at Kondapalli village and that may be the reason for

not including this in the list of wakf’s property. No reason has been

placed for not surveying this property. Though the wakf board has

been added as party as 6

th

defendant in the suit, the wakf board did

not take any interest either to produce any reliable evidence or

documentary evidence to prove the reason why the same was not

surveyed and included in the said publication. (emphasis is added)

37. Paragraph-13 of the judgment, it was observed as follows:

―13. … So as per procedure it is for the wakf board to declare

that the schedule property is wakf or not and this decision shall be

final unless superseded or modified by a competent civil Court. So

first of all, there should be an order of the Board declaring schedule

property as wakf property. But unfortunately there is no such order

in respect of the schedule property by the Board. When there is no

such order, there is nothing for the civil Court to supersede or

modify. In such circumstances and in view of the procedure which I

have just now mentioned, if the plaintiff is very particular about the

Page 18 of 23

plaint schedule properties, it is his duty to apply to the wakf board

to give a finding or decision regarding schedule property as to

whether it is wakf property or not and then come to the civil Court

questioning the said decision, if he is aggrieved. In the said

circumstances, it is not open for the plaintiff to come to the Court

directly and file this suit for possession without obtaining the finding

of the Board that the schedule property is wakf’s property. In the

said circumstances, when the schedule property is not included in

the list of wakf property, the same has not been registered as

wakf’s property i.e. the suit filed by the plaintiff for a decision that he

said property is the wakf, it not at all maintainable. The right of

mutavalli to file a suit for the possession arises only after the

declaration of schedule property is wakf’s property … No evidence

has been placed before the Court as to on what basis the Board is

able to claim that the schedule property is wakf.

A categorical finding was recorded by the civil Court that –

―Moreover I have already said that the service with which the

schedule property was burden was taken over and the schedule

property was substituted by another property. So the schedule

property si not burdened with such service and it is obvious as

already stated by me from Exs.B25 and B26 etc., that even right

from 1938 the schedule property is being treated as private

property free from any service and it was being sold.‖

38. In Paragraph-14 of the judgment it was observed that:

―14. In the said circumstances, I am of the view that the

plaintiff has no right to file this suit without obtaining the decision of

the Board in this regard. So it cannot be said that the schedule

property is the wakf property, simply because the plaintiff claims

that it is wakf’s property. Considering all these aspects and as

Page 19 of 23

matters stand at the stage it cannot be said that the schedule

property is wakf property irrespective of the fact that whether the

allegation of the plaintiff that this suit property is the wakf property

or not, is true or not.‖

39. In Paragraphs-21 and 22 of the judgment, the civil Court recorded

the following findings:

―21. … … So I hold on issue No.1 that there is no material

on record to show that the schedule property is the property of the

plaintiff institution. On issue No.2, I hold that the plaintiff is not

entitled to possession of items 2 and 3. In this regard, I have to

necessarily say at this stage that item No.1 was already acquired

and the amount was deposited in the Court and a reference under

Section 31 of the Land Acquisition Act was already made and

disposed of as revealed by Ex.B21 in which it was held that the

defendants should enjoy 3/4

th

interest on the compensation amount

deposited in the schedule property and that the plaintiff should

enjoy 1/4

th

of such interest. The parties are bound by that order

regarding item No.2.

22. So far as issue No.3 is concerned, I held that the

compromise decree in A.S.63/57 and 64/57 are legal and binding

on the plaintiff. So far as item No.1 is concerned the said

compromise is not hit by Section 60 of the Muslim Wakf Act.‖

40. The Civil Court also framed an issue regarding limitation. While

considering the said issue, it was held that Sitaratnam purchased the

property in 1944 and 1941 under Exs.B23 and B24. The defendants

have perfected their title, and hence, the suit is barred by time.

Page 20 of 23

41. Thus, after considering both oral and documentary evidence,

including the Gazette, the Civil Court recorded a finding that the suit

schedule property is not wakf property and the suit is also barred by

limitation.

42. The said judgment was pronounced on 30.09.1978, and it became

final, as per the contention of learned counsel on either side. Thus, the

suit filed by the wakf board, represented by its Mutavalli, for recovery of

possession of the plaint schedule property, based on the title, was

dismissed, and the competent Civil Court recorded the finding that the

property doesn’t belong to the wakf institution. In fact, a finding was also

recorded that the property was not published in the Gazette.

43. When a competent Civil Court recorded a finding in an earlier suit

that the property does not belong to the wakf institution, the present suit

filed by the wakf institution after a lapse of 4½ decades for declaration of

title, in the considered opinion of this Court, is not maintainable given

Section 7(5) of the Act. The present Mutavalli, the son of the earlier

Mutavalli who lost the suit on an earlier occasion, woke up from deep

slumber and filed the present suit after 4½ decades.

44. Once Section 7(5) of the Act comes into action, the Tribunal, at no

stretch of imagination, can continue the suit on its file for further

adjudication. The corollary would be that the tribunal lacks jurisdiction,

and hence, a writ of prohibition can be issued in the facts of this case.

45. At the hearing, the learned counsel appearing for the 2

nd

and 4

th

respondents would contend that, given Section 107 of the Act, the suit

filed by the institution is maintainable. The answer to the said question is

no longer res integra.

Page 21 of 23

46. The Hon’ble Apex Court in T.Kaliamurthi Vs Five Gori Thaikkal

Wakf and others

10

considered whether Section 107 of the Wakf Act is

retrospective in operation or whether it can have the effect of reviving

barred claims and held that it cannot revive a dead claim. Paragraphs

42, 43 and 58, relevant are extracted:

―42. From the above, it is clear that the right of action, which is

barred by limitation at the time when the new Act comes into force,

cannot be revived by the change in the law subsequently. In Ram

Murti v. Puran Singh [AIR 1963 Pun 393] , it has been held that

Section 107 renders the Limitation Act, 1963 inapplicable to suits for

possession of immovable properties comprised in any wakf or any

interest therein but the right of a person to institute such a suit which

is already barred at the commencement of this Act cannot revive. It

was further held that his title is extinguished and a good title is

acquired by the person in possession and that where the title of the

true owner is extinguished in favour of the wrongdoer, it is not

revived by that person again getting into possession. There is no

remitter to the old title.

43. Let us also see Section 112 of the Wakf Act dealing with

repeal and savings. Sub-section (1) repeals the Wakf Act, 1954 and

the Wakf (Amendment) Act, 1984. Sub-section (2) provides that

notwithstanding such repeal, anything done or any action taken

under the said Acts shall be deemed to have been done or taken

under the corresponding provisions of this Act. In the present case,

there is no specific provision which stipulates that Section 107 has

any retrospective effect. If we look at Section 112, it is clear that sub-

section (2) is the saving clause and provides validity to the actions

taken under the repealed Act. As noted herein earlier, the High Court

10

(2008) 9 SCC 306

Page 22 of 23

has proceeded on the assumption that a reading of Section 112 of

the Act leads to the conclusion that the provisions of the Act are

intended to apply to pending proceedings also.

53. In view of the above authorities, we are of the view that in the

present case, once it is held that the suit for possession of the suit

properties filed at the instance of the Wakf were barred under the

Limitation Act, 1908, the necessary corollary would be to hold that

the right of the Wakf to the suit properties stood extinguished in view

of Section 27 of the Limitation Act, 1963 and, therefore, when

Section 107 came into force, it could not revive the extinguished

rights. The authorities relied upon by the learned counsel for the

respondents in this regard in Sree Bank Ltd. v. Sarkar Dutt Roy &

Co. [AIR 1966 SC 1953 : (1965) 3 SCR 708] , Dhannalal v. D.P.

Vijayvargiya [(1996) 4 SCC 652 : 1996 SCC (Cri) 816] , New India

Assurance Co. Ltd. v. C. Padma [(2003) 7 SCC 713 : 2003 SCC (Cri)

1709] and S. Gopal Reddy v. State of A.P. [(1996) 4 SCC 596 : 1996

SCC (Cri) 792] have no application to the facts of the case because

in these cases, unlike the present case, there was no extinguishment

of the rights.‖

47. This Court, indeed, dealt with a rather analogous issue, in Valluri

Siva Prasad Vs the District Registrar, Registration Stamps, Guntur

and others

11

, wherein it was held that the judgment in a suit between a

private individual and Wakf Board, which became final, would operate as

res judicata and hence the wakf institution cannot request the revenue

authorities to keep the property in dispute register under Section 22-A of

the Registration Act. This Court also held that the wakf institution, being

11

W.P.No.42457 of 2017 dated 06.05.2025

Page 23 of 23

an instrumentality of the State, cannot overreach the judgment passed

by the Civil Court.

48. Thus, given the discussion supra, the writ petition filed by the

petitioner stands allowed. The Wakf Tribunal, Andhra Pradesh, had no

jurisdiction to adjudicate the suit O.S.No.3 of 2024, given Section 7(5) of

the Wakf Act, 1995.

As a sequel, pending miscellaneous petitions, if any, shall stand

closed.

__________________________

JUSTICE SUBBA REDDY SATTI

PVD