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CASE NO.:

Appeal (civil) 16897 of 1996

PETITIONER:

Karnataka Wakf Board

RESPONDENT:

State of Karnataka & Anr. Etc.

DATE OF JUDGMENT: 30/04/2003

BENCH:

S. RAJENDRA BABU, K.G. BALAKRISHNAN & G.P. MATHUR

JUDGMENT:

J U D G M E N T

With

Civil Appeal No. 16898/1996

K.G. Balakrishnan, J.

Both these appeals raise common questions of law; hence they were

heard jointly and are being disposed of by a common judgment. Under Section 4

of the Wakf Act, 1954, the Survey Commissioner of the State of Karnataka

conducted a survey of Wakf properties existing in the State of Karnataka. After

the survey was over, a list of properties of Wakf was prepared under Section (5)

of the Act and the same was published in Official Gazette by Notification on

8.7.1976. In the said notification, property comprising CTS No. 34B in Ward No.

VI of Bijapur city was included as an item of Wakf property. So also, property

bearing Survey No. CTS 34/A2 situated in Ward No. VI in Bijapur city with a

building thereon was included as an item of Wakf property. After this notification,

the Department of Education, represented through Deputy Director of Public

Instructions of the State of Karnataka, filed Original Suit No. 1/1981 on the file of

the Additional Civil Judge, Bijapur, against the present appellant Karnataka Wakf

board and four others, for declaration that the inclusion of the property bearing

CTS No. 34B in Ward No. VI of Bijapur city as Wakf is illegal and void and also

for consequential injunction to restrain the defendants from obstructing the

plaintiff's possession over this property. Plaintiff had prayed that the notification

of the said property as a Wakf property be declared illegal and void. As an

alternative relief, the plaintiff sought for declaration of title by adverse

possession.

As regards property and the building comprising CTS No. 34/A2 in Ward

No. VI of Bijapur city, the Department of Agriculture, represented through

Director of Agriculture of the State of Karnataka filed Original Suit No. 4 of 1981

on the file of the Principal Civil Judge, Bijapur praying for a declaration of the title

of the plaintiff over this property and sought for further declaration that the

notification published on 8.7.1976 was illegal and void. The plaintiff also sought

for injunction restraining the defendants from obstructing the plaintiff's

possession over the suit property.

In both these suits, the Karnataka State Wakf Board was the first

defendant. The other defendants in both the suits are also common. At first, we

shall take up the case relating to property comprised in Survey No. CTS No. 34B

situated in Ward No. VI of Bijapur city, which is claimed by the Education

Department of the Karnataka State. We shall refer to the parties as arrayed in

the original suit. The plaintiff contended that this property originally belonged to

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the then Government of Bombay. Then the District Local Board, Bijapur

purchased this property and the value was fixed at Rs.16,325/-. Later on, the

District Local Board handed over this property to the District School Board. In

the year 1961, District School Board constructed an office building on that

property. After the re-organisation of the States and coming into existence of the

State of Karnataka, the District School Board merged into the Department of

Education and thus, the property came to belong to the Department of Education,

Government of Karnataka and the plaintiff came to know of the notification

showing this property as a 'Wakf property' and the plaintiff alleged that it was

done at the instance of defendant nos. 2A and 2B and no notice was served on

the plaintiff before the publication of such notification.

The first defendant, the Karnataka Wakf Board denied the allegations of

the plaintiff. It was contended that the suit property was declared as 'Wakf

property' by the State Government and, therefore, the plaintiff is estopped from

challenging the validity of that notification and that the plaintiff was given

sufficient opportunity to dispute any claim, when the Assistant Commissioner

conducted the survey of Wakf properties. Defendants 2A and 2B in their first

written statement contended that one Arab preacher 'Peer' Mahabare Khandayat

came as a missionary to Deccan area in A.D. 1304 and erected Mecca Masjid at

Bijapur. It is alleged that the whole area is known as 'Arkilla area' and the suit

property has been treated as 'Wakf property' and is being managed and

maintained by 'Sajjadanashin' and defendant nos. 2A and 2B are the

'Sajjadanashins' and managing 'Mutawalli' in respect of the suit property.

We heard learned senior counsel, Shri Salman Khursheed who appeared

for the appellant Karnataka Wakf Board and also Mr. Sanjay R. Hegde who

appeared for the respondents. As regards Original Suit No. 1 of 1981 filed by the

Department of Education, there is satisfactory and convincing documentary

evidence to show that this property belongs to the Education Department. Exh. 1

is the certified copy of the order passed by the Government of Bombay dated

29.5.1941 which shows that two acres of land in Bijapur was sanctioned by the

Government of Bombay to the District Local Board, Bijapur. The occupancy

price was fixed at Rs. 16,325/- and this occupancy price was exempted by the

Government. Certain conditions were imposed on the District Local Board for the

user of the said property. Exh. P2 is a letter addressed by the Collector of

Bijapur to the President of the District Local Board. In both these documents, the

property has been described as CTS No. 34B. Exh. P-3 is also an important

document, which shows that the property was resumed from the District Local

Board by the Government and the same was given to District School Board.

Exh. P-4, the property register of 1941 also shows that it was described as the

property belonging to the District School Board. These documents are clinching

evidence to prove the title of the plaintiff. The defendants could not bring any

counter evidence to question the credibility of these documents. Though the

defendants had contended that the Arab religious preacher by name 'Peer'

Mahabare Khandayat came to India in A.D. 1304 and occupied the entire Arkilla

area, there are no documents to show that the suit property was ever in

possession of Wakf Board and under the control and management of defendant

nos. 2A and 2B.

It is true that the suit property was very close to the Arkilla area, but the

defendants 2A and 2B could not produce any documents at least to prove the

possession and enjoyment of this property. The second defendant produced

Exh. D4 to show that in CTS records of the years 1980, the name of the second

defendant was mentioned in respect of the suit property. Except this document,

defendants 2A and 2B could not produce any other document. But that by itself

is not sufficient to establish the possession of the defendants. The plaintiff by the

various documents successfully proved its title and the trial Court rightly held

that the plaintiff has got title to this property.

In respect of the property comprising CTS No. 34/4A-2 situated in Ward

No. VI of Bijapur city, the State of Karnataka is represented by Deputy Director of

Agriculture, who was the plaintiff. The Plaintiff No. 1 was initially designated as

Deputy Director of Agriculture, Bijapur city. The Government of Karnataka

changed the designation of Plaintiff No. 1 as Principal Agricultural Officer. It was

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contended on behalf of the plaintiff that out of the property comprising CTS 34/A-

1, an area admeasuring 1600 square yards had been granted by Deputy

Commissioner Bijapur by Order No. RD-LBP-SR.167-63 dt. 12.4.1965 on the

occupancy price of Rs. 25/- to the District Agricultural Officer. The Plaintiff No. 1

is the Executive Officer/Convenor of the Farmer's forum of Bijapur district.

Plaintiff Nos. 2 and 3 are respectively the President and Secretary of the

Farmer's forum. The office building was constructed on the suit property in 1964-

65 by spending a huge amount. At the instance of defendants 2A and 2B, this

property was included in the notification dated 21.4.1976 as 'Wakf' property. No

notice was served on the plaintiff before the said notification. Defendants were

never the owners in possession of this property and the inquiry under Section 67

of the Karnataka Land Revenue Act was not done properly. Plaintiff was given

notice on 27.1.1979 and plaintiff no. 1 appeared and prayed for adjournment to

produce the documents, but the Deputy Commissioner rejected his prayer and

passed an order holding that the suit property was 'Wakf' property. Plaintiff had

issued notice under Section 80 CPC read with Section 56 of the Wakf Act to the

defendants before filing the suit.

In this case also, the Defendant No. 1 contended that the suit property

was 'Wakf property' and it never belonged to the Department of Agriculture of the

State of Karnataka. It was also contended that the plaintiff was not entitled to

challenge the notification published by the State Government. Defendants 2A

and 2B raised similar contention that religious preacher 'Peer' Mahabare

Khandayat came to India in A.D. 1304 and occupied the whole 'Arkilla' area and

erected Mecca Masjid and the entire area, including the suit property thus,

became 'Wakf property' and for the past 7 centuries, it is being treated as 'Wakf

property'.

In Original Suit No. 4 of 1981 the plaintiff relied on P3 document. The

Hon. Secretary of the District Farmer's Forum was examined as PW 1. He

deposed that an extent of land measuring 1680 square yards was granted to

District Farmer's Forum and in the year 1965, the forum constructed a building

spending about two and a half lakhs rupees. Exh. P4 is an important document

which shows that a grant was made in favour of the Farmer's forum for

constructing a training-cum-meeting hall. Exh. P5 is the property register card

relating to the suit property issued by the City Surveyor, Bijapur. This shows that

the property was in the name of the first plaintiff in the year 1965. The

defendants could not produce any satisfactory evidence to prove their title or

possession of this property. The defendants sought to place reliance on a book

written by T.W. Arnold which states about saint 'Peer' Mahabare Khandayat but

the statements made in such books cannot be relied on unless supported by any

contemporaneous records and the trial Court as well as the High Court rightly

declined to take cognizance of the statements made in the said book. As

regards suit property in O.S. No. 4 of 81 also, the plaintiff succeeded in proving

the title and possession.

In both the appeals, the appellant has raised a common question that

these suits were not maintainable in view of Section 6 of the Wakf Act, 1954 and

it was contended that suits of this nature should have been filed within the period

of one year from the date of publication of the list of Wakf's properties under sub-

section (2) of Section 5. The relevant Section 6 of the Wakf Act 1954 reads as

follows:-

"6. Dispute regarding Wakfs : (1) If any

question arises [whether a particular property

specified as Wakf property in a list of Wakfs

published under sub-section (2) of Section 5 is Wakf

property or not whether a Wakf specified in such list is

a Shia Wakf or Sunni Wakf] the Board or the

mutawalli of the Wakf or any person interested therein

may institute a suit in a civil court of competent

jurisdiction for the decision of the question and the

decision of the civil court in respect of such matter

shall be final :

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Provided that no such suit shall be entertained

by the civil court after the expiry of one year from the

date of the publication of the list of Wakfs under sub-

section (2) of Section 5 :

[Provided further that in the case of the list of

Wakfs relating to any part of the State and published

or purporting to have been published before the

commencement of the Wakf (Amendment) Act, 1969

(38 of 1969), such suit may be entertained by the civil

court within the period of one year from such

commencement.]

[Explanation.- For the purposes of this section

and Section 6-A, the expression 'any person

interested therein', occurring in sub-section (1) of this

section and in sub-section (1) of Section 6-A, shall, in

relation to any property specified as Wakf property in

a list of Wakfs published, under sub-section (2) of

Section 5, after the commencement of the Wakf

(Amendment) Act, 1984, shall include also every

person who, though not interested in the Wakf

concerned, is interested in such property and to

whom a reasonable opportunity had been afforded to

represent his case by notice served on him in that

behalf during the course of the relevant inquiry under

Section 4.]

(2) x x x x x

(3) x x x x x

(4) x x x x x

(5) x x x x x"

Under Section 6 of the Wakf Act, 1954, it is stated that if any question

arises as to whether a particular property specified as Wakf property in the list of

Wakfs published under sub-section (2) of Section 5 is Wakf property or not, or

whether the Wakf specified therein is 'Shia' Wakf or 'Sunni' Wakf, the Board, or

the Muttawalli, or any person interested therein may institute a suit in a civil court

within a period of one year and the decision of the civil court shall be final.

According to the appellant's counsel, these suits, having been filed after a

period of one year were not maintainable and they were barred by time. This

plea was not accepted by the High Court, in our view, rightly, as the plaintiff in

both these suits cannot be construed as 'persons interested in the Wakf.' It is

pertinent to note that the Explanation to Section 6(1) was added by Act 69 of

1984. The Explanation is to the effect that the expression 'any person interested

therein', occurring in sub-section (1) of Section 6 and in sub-section (1) of

Section 6-A, shall, in relation to a property specified as Wakf property in the list of

Wakfs published, include every person who, though not interested in the Wakf

concerned, is interested in such property and to whom a reasonable opportunity

had been afforded to represent his case by notice served on him in that behalf

during the course of the relevant inquiry. At the time when these plaintiffs filed

the suits, they were strangers and they were not interested in the Wakf as such.

The Explanation added to Section 6(1) can operate against these plaintiffs only

after the insertion of the same in Section 6 of the Act. Prior to the insertion of

the Explanation, a third party claiming independent title over a property, which is

illegally included as Wakf property was entitled to file a suit within the period

provided for under the Law of Limitation. Therefore, the inhibition provided under

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Proviso to Section 6 regarding the period of limitation was not applicable to the

plaintiffs at the time when they filed the suits.

Both the appeals are without any merit and therefore, these are dismissed

with costs.