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Civil Appeal Nos. 13345 - 13346 of 2015 Page 1 of 30

REPORTABLE

IN THE SUPREME COURT OF INDIA

(CIVIL APPELLATE JURISDICTION)

\

CIVIL APPEAL NOS. 13345 - 13346 OF 2015

(@ Special Leave Petition (Civil) Nos. 13229 - 13230 of 2009)

SYED MOHAMMED GHOUSE PASHA KHADRI

… APPELLANT

versus

SYED MOHAMMED ADIL PASHA KHADRI & ORS. ETC.

… RESPONDENTS

J U D G M E N T

VIPUL M. PANCHOLI, J.

1. These are the civil appeals challenging the common judgment

and order dated 15.04.2008 passed by the High Court of

Karnataka at Bengaluru in Regular Second Appeal Nos. 1574 of

2005 and 1575 of 2005, whereby the High Court dismissed the

second appeals filed under Section 100 of the Code of Civil

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Procedure, 1908 (hereinafter referred to as “the CPC”), and

affirmed the concurrent judgments and decrees of the Courts

below, which had declared Syed Mohammed Adil Pasha Khadri

(Respondent No. 1 herein) as the lawful Sajjadanashin of the

Hazarath Mardane-e-Gaib Dargah, Shivasamudram, located in

Chamarajanagar District, Karnataka.

FACTUAL BACKGROUND

2. The present dispute concerns succession to the office of

Sajjadanashin of the Hazarath Mardane -e-Gaib Dargah,

Shivasamudram, located in Chamarajanagar District,

Karnataka.

3. The original Sajjadanashin of the Dargah was Peer Pasha

Khadri, as per the Wakf Board’s Notification dated 01.04.1965.

Thereafter, Peer Pasha Khadri appointed his eldest son, Akhil

Pasha Khadri, as Jan-Nasheen Sajjada (i.e. successor of the

Sajjadanashin) of the Dargah. On 27.10.1980, Akhil Pasha

Khadri passed away, predeceasing his father.

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4. On 26.02.1981, at a religious function held in the presence of

Sajjadanashins of other dargahs and elders in the community,

Peer Pasha Khadri appointed and nominated Syed Mohammed

Adil Pasha Khadri (respondent no. 1 herein), his grandson and

son of late Akhil Pasha Khadri, to be the Jan-Nasheen Sajjada

of the Dargah. The appointment and nomination was reduced

in writing as Khilafatnama dated 26.02.1981 (Ex. P-72). On

06.10.1988, the original Sajjadanashin passed away and the

respondent no. 1 became the Sajjadanashin of the Dargah.

5. The appellant (Syed Mohammed Ghouse Pasha Khadri), being

the youngest son of the original Sajjadanashin, asserts a rival

claim to the office of the Sajjadanashin, relying upon certain

documents, including a General Power of Attorney (Ex. D-1), a

handwritten Khilafatnama (Ex. D-13) and an affidavit (Ex. D-

23) executed by the predecessor. Whereas, the respondent no.

1, being the grandson of the original Sajjadanashin, claims

succession to the same office on the basis of a nomination made

by the predecessor in Khilafatnama dated 26.02.1981 (Ex. P-

72).

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6. Thus, two civil suits came to be instituted before the Principal

Civil Judge (Senior Division), Mysuru:

A. O.S. No. 724 of 1988 (renumbered as O.S. No. 342 of

1995), instituted by the appellant, asserting his claim as

Sajjadanashin of the Dargah. Respondent No. 1 was not

made a party to the suit and later filed an impleadment

application.

B. O.S. No. 233 of 1989, instituted by the respondent no. 1,

seeking declaration that he was the duly nominated

Sajjadanashin of the Dargah and for consequential reliefs.

7. By a common judgment and decree dated 14.11.2000, the Trial

Court decreed O.S. No. 233 of 1989 and dismissed O.S. No. 342

of 1995, holding that the office of Sajjadanashin was hereditary

in nature, and thus, the respondent no. 1 had been validly

nominated through Khilafatnama dated 26.02.1981 (Ex. P-72)

and the documents relied upon by the appellant, including Ex.

D-1, Ex. D-13 and Ex. D-23, did not confer Sajjadanashin-ship.

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8. The appellant preferred two separate appeals, namely R.A. No.

8 of 2004 (against the decree in O.S. No. 233 of 1989) and R.A.

No. 9 of 2004 (against the dismissal of O.S. No. 342 of 1995).

Both the Regular Appeals were dismissed by the First Appellate

Court and the findings of the Trial Court were upheld, by a

common judgment and order dated 07.07.2005.

9. The Regular Second Appeals preferred by the appellant, namely

R.S.A. Nos. 1574 and 1575 of 2005, were dismissed by the High

Court of Karnataka, by the impugned common judgment and

order dated 15.04.2008.

10. Vide the impugned judgment, the High Court recorded that the

Trial Court had decreed O.S. No. 233/1989 in favour of the

respondent no. 1 and O.S. No. 342/1995 (appellant’s suit) was

dismissed, the First Appellate Court had reappreciated the

evidence and affirmed the findings. Thus, there were concurrent

findings of fact in favour of the respondent no. 1. The High

Court accepted the concurrent finding that the office of

Sajjadanashin is hereditary in nature and succession was

governed by established practice and nomination. It was held

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that the Khilafatnama dated 26.02.1981 (Ex. P-72) was duly

proved and executed by the original Sajjadanashin, and thus,

the nomination of the respondent no. 1 was valid and further

rejected allegations of fabrication or interpolation with Ex. P-72.

It was further held that Ex. D-1, Ex. D-13 and Ex. D-23 relied

upon by the appellant did not amount to nomination and these

documents did not confer Sajjadanashin-ship.

11. Thus, the High Court concluded that the findings were factual

in nature, no perversity was demonstrated and no substantial

question of law arose under Section 100 of the CPC.

Accordingly, the Regular Second Appeals were dismissed and

the Trial Court and First Appellate Court judgments were

affirmed, thereby declaring the respondent no. 1 as the rightful

Sajjadanashin.

12. Aggrieved by the impugned judgment, the appellant filed Special

Leave Petitions (Civil) Nos. 13229 and 13230 of 2009 before this

Court. This Court, by the interim order dated 14.09.2009,

directed the parties to maintain status quo and, by the order

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dated 04.11.2015, leave to appeal was granted, culminating

into the present appeals.

SUBMISSIONS ON BEHALF OF THE APPELLANT

13. Mr. Rabin Majumder, learned Counsel appearing on behalf of

the appellant, at the outset, disputes the fact that the father of

the respondent no. 1 was appointed as Jannasheen Sajjada in

1966. It is stated that the father of the respondent no. 1 was

never appointed as Jannasheen or Sajjadanashin of the

Dargah, nor did he hold any Khilafatnama at any time. The

record demonstrates that he permanently shifted to Bangalore

in 1966, after mortgaging certain Dargah lands and ceased to

participate in the affairs of the Dargah.

14. It is stated that during this period, the appellant was granted

Khilafatnama on 06.07.1969 (Ex. D -13) and thereafter

maintained and managed the Dargah continuously from 1966

to 1981 and subsequently from 1982 onwards. Only after the

demise of the original Sajjadanashin in 1988 did the respondent

no. 1 seek to intervene by getting himself impleaded in O.S. No.

724 of 1988 (renumbered as O.S. No. 342 of 1995), thereby

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disputing the appellant’s long-standing management of the

Dargah.

15. Learned Counsel submitted that the Courts below committed

serious errors in treating Khilafatnama dated 26.02.1981 (Ex.

P-72) as conferring Sajjadanashinship despite it being only a

record of Khilafat, and failing to properly interpret the Urdu,

Persian and Arabic terminology used in the original document.

It is stated that the document does not confer the office of

Sajjadanashin, as under Islamic practice, the status of Khalifa

or Jannasheen is distinct from that of Sajjadanashin, and the

Courts below erred in treating the document as conferring

succession to the office.

16. The office of Sajjadanashin primarily relates to spiritual

functions, including religious teaching, conduct of Urs, Sandal

ceremonies and spiritual discourse at the Dargah. It is

submitted that the Courts below erred in treating

Sajjadanashinship as a purely documentary right, contrary to

the principles laid down in Syed Mohd. Salie Labbai v. Mohd.

Hanifa (1976) 4 SCC 780 . It is further submitted that the

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Courts below wrongly assumed the existence of a custom

without proof, contrary to the principle that custom must be

specifically pleaded and strictly proved, as held in the case of

Ebrahim Aboobaker v. Tek Chand Dolwani, AIR 1953 SC

298.

17. It is further submitted that the Courts below erred in ignoring

material evidence, including Ex. D-1 (registered GPA of 1981)

and Ex. D-23 (affidavit of the original Sajjadanashin), and the

testimony of several witnesses supporting the appellant’s claim

to the office of Sajjadanashin. It is submitted that the affidavit

executed by the predecessor Sajjadanashin was wrongly

disregarded, despite affidavits being admissible evidence of

intention and nomination, reliance is placed on Narbada Devi

Gupta v. Birendra Kumar Jaiswal (2003) 8 SCC 745 .

18. It is further submitted that historically, movable and immovable

assets of the Dargah, including Golak collections, Tabeez,

Fateha offerings and other income, have been shared among the

descendants of the original Sajjadanashin, who constitute the

stakeholders of the Wakf property, and any declaration

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recognizing a new Sajjadanashin cannot extinguish the

established rights of other stakeholders, thus, the declaration

granted by the trial court disregards this long-standing practice

of shared management and benefit. In addition, it is submitted

that the Wakf Board should not open the Golak solely in the

presence of the Sajjadanashin, but in the presence of all

stakeholders, in accordance with the established practice

followed over generations.

19. Learned Counsel for the appellant submitted that Ex. P -72

suffers from the following serious suspicious circumstances:

A. The original document only recorded the grant of Khilafat

to the respondent no. 1.

B. The word “Jannasheen” was subsequently inserted in the

document by the same scribe, who was the maternal uncle

of the respondent no. 1.

C. This interpolation occurred nine years after the death of

the original Sajjadanashin and the addition was not

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countersigned or authenticated with the proper seal of the

original authority.

20. It is stated that these serious suspicious circumstances

surrounding Ex. P-72 were ignored by the Courts below, despite

the requirement of a heightened standard of proof as held in the

case of H. Venkatachala Iyengar v. B.N. Thimmaiamma, AIR

1959 SC 443. It is therefore prayed that Ex. P-72 be sent to the

Central Forensic Science Laboratory (CFSL) for examination, in

the interest of justice before final adjudication, to determine

whether the word “Jannasheen” was inserted later, whether the

ink and handwriting differ, and the approximate time of the

original writing and subsequent additions.

21. Learned Counsel for the appellant further submitted that the

burden of proof was wrongly shifted onto the appellant, though

the respondent no. 1, as the propounder of Ex. P-72, bore the

primary burden, reliance was placed on Rangammal v.

Kuppuswami (2011) 12 SCC 220 .

22. Learned Counsel for the appellant further relied upon extensive

documentary evidence, including 163 documents and

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correspondence with the Wakf Board, demonstrating that the

appellant had been recognized and functioning as

Jannasheen/Sajjadanashin both during the lifetime of the

original Sajjadanashin and thereafter.

23. In light of the above submissions, learned Counsel for the

appellant submitted that the findings of the Courts below are

legally unsustainable, having been based on misinterpretation

of documents, failure to consider material evidence and

incorrect application of legal principles governing succession to

the office of Sajjadanashin. It is therefore submitted that the

impugned judgment is liable to be set aside.

SUBMISSIONS ON BEHALF OF RESPONDENT NO. 1

24. Ms. Pritha Srikumar Iyer, learned Counsel for the respondent

no. 1, at the outset, submitted that the Sajjadanashin is the

spiritual head and manager of the Dargah, superior to the

Mutawalli and responsible for religious guidance and

administration. The position is traditionally hereditary and the

founder or incumbent Sajjadanashin has the authority to

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nominate a successor (Jan Nasheen) from among his disciples

(Khalifas).

25. It is submitted that the Trial Court declared the respondent no.

1 as Sajjadanashin and dismissed the appellant’s suit, the First

Appellate Court dismissed both appeals filed by the appellant,

and the High Court of Karnataka dismissed the Second Appeals,

thereby confirming the findings in favour of the respondent no.

1.

26. Thus, all three courts (Trial Court, First Appellate Court, and

High Court) concurrently held that:

A. Peer Pasha Khadri was the original Sajjadanashin and the

office of the Sajjadanashin was hereditary in nature.

B. The respondent no. 1 was validly appointed successor (Jan

Nasheen) through a religious ceremony witnessed by

fakirs, murids and other Sajjadanashins.

C. The appointment was documented contemporaneously in

Ex. P-72 dated 26.02.1981.

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D. The appellant was present at the ceremony and attested

the document as a witness, demonstrating

acknowledgment of the appointment.

E. The documents relied upon by the appellant do not

constitute a valid nomination of successor, as the General

Power of Attorney (Ex. D-1) operated only during the

lifetime of Peer Pasha Khadri and the Affidavit (Ex. D-23)

does not amount to a Khilafathnama or appointment as

Sajjadanashin.

27. Learned Counsel for the respondent no. 1 submitted that the

contention of the appellant that only a living son can succeed

as Sajjadanashin was never pleaded in the written statement

and is an afterthought. In earlier proceedings, the appellant

himself admitted that a Sajjadanashin can nominate any

successor and there is no rigid rule of succession.

28. It is further submitted that the argument of the appellant that

the respondent no. 1 resided in Bangalore was examined and

rejected by both the Trial Court and the First Appellate Court.

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It is stated that the evidence shows that the respondent no. 1

also resided in Shivasamudram.

29. Learned Counsel for the respondent no. 1 submitted that three

courts have concurrently found, on facts and law, that the

respondent no. 1 was validly appointed successor (Jan

Nasheen) and is the rightful Sajjadanashin of the Dargah. In

addition, the contentions raised by the appellant lack pleading,

legal basis or evidentiary support, and therefore, the findings in

favour of the respondent no. 1 deserves to be upheld.

ANALYSIS, DISCUSSION AND FINDINGS

30. Having heard the learned Counsel appearing for the parties and

having carefully perused the pleadings, documentary material

and the judgments of the Courts below, the principal question

which arises for consideration before this Court is whether the

High Court was justified in dismissing the Regular Second

Appeals filed under Section 100 of the CPC, on the ground that

no substantial question of law arose for consideration,

particularly in the light of the concurrent findings recorded by

the Trial Court and the First Appellate Court with respect to the

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succession to the office of Sajjadanashin of Hazarath Mardane-

e-Gaib Dargah, Shivasamudram.

31. At the outset, it must be emphasised that the jurisdiction of the

High Court under Section 100 of the CPC is confined to

examination of substantial questions of law arising from the

judgment of the First Appellate Court, as held in the case of

Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179 .

It is well settled that concurrent findings of fact recorded by the

Courts below cannot ordinarily be interfered with in second

appeal unless such findings are shown to be perverse, based on

no evidence, or arrived at by ignoring material evidence or by

applying erroneous legal principles.

32. In the present case, both the Trial Court and the First Appellate

Court, upon detailed appreciation of oral and documentary

evidence, have recorded concurrent findings that Syed

Mohammed Peer Pasha Khadri was the original Sajjadanashin

of the Dargah and that the office was hereditary in nature, with

the incumbent Sajjadanashin possessing the authority to

nominate a successor.

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33. In this regard, the First Appellate Court relied upon the

admission made by the official witness of the Wakf Board. The

appellate court recorded the following extract from the cross-

examination of DW-6:

“In column No.4 there is mention that Mohammed Peer

Pasha Khadri is the Sajjadanasheen… Instead of

pronging as Mutatwlli by mistake it has been printed

as Sajjadanasheen. It is a true that the said

notification has not been so far corrected or

cancelled… It is true that the designation of

Sajjadanasheen is a hereditary post.”

Therefore, the appellate court rightly rejected the contention

that the predecessor was merely a Mutawalli and held that the

office of Sajjadanashin was hereditary in character.

34. Apart from the concurrent findings recorded by the Courts

below, it is necessary for this Court to independently examine

the legal principles governing succession to the office of

Sajjadanashin, particularly in the context of religious

endowments and Wakf institutions.

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35. The office of Sajjadanashin occupies a distinctive position in

Islamic religious institutions connected with Dargahs and Sufi

shrines. The Sajjadanashin is not merely an administrative

manager of Wakf property but is primarily the spiritual head of

the shrine, responsible for preserving the spiritual lineage

(silsila), guiding disciples (murids), conducting religious

ceremonies such as Urs and Sandal, and maintaining the

spiritual traditions associated with the shrine.

36. The legal position in this regard has been recognised by this

Court in Syed Mohd. Salie Labbai (supra) , wherein it was

observed that the office of Sajjadanashin is fundamentally

spiritual in character, though it may carry with it certain

incidental rights relating to the management of the shrine.

Similarly, Mulla: Principles of Mahomedan Law (20th

Edition) in Chapter XII, defines the office of Sajjadanashin as

under:

“The word “sajjadanashin” (spiritual superior) is

derived from sajjada, that is, the carpet used by

Mahomedans for prayer, and nashin, that is, sitting.

The sajjadanashin takes precedence on the carpet

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during prayers. The office of a mutawalli is a secular

office; that of a sajjadanashin is a spiritual office, and

he has certain spiritual functions to perform. All

dargahs are not Khankhas but there is nothing

uniform or rigid. All Sajjadanashins are not

necessarily mutawallis of the properties of the

institution. The office of mutawalli may be in another

person. A Sajjadanashin was said in this case to

resemble a Mahant of a Hindu Math. A sajjadanashin

of a Khankhah enjoys the unique position of being a

spiritual preceptor and a mutawalli. Differences

between a sajjadanashin and a mutawalli were

pointed out in Ikramiul Haq Shah v. Board of Wakfs

(Rajasthan). The founder is generally the first

sajjadanashin and after his death the spiritual line is

continued by a succession of sajjadanashins.”

37. At the same time, Indian courts have consistently held that

succession to such religious offices is ordinarily determined by

custom, usage, or nomination by the incumbent, depending

upon the particular traditions governing the institution. In the

context of Muslim religious institutions, the Supreme Court has

recognised that offices such as that of a Sajjadanashin or

Mutawalli may devolve in accordance with the established

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customs of the institution, including nomination by the

predecessor rather than strict rules of inheritance, as held in

Syed Mohd. Salie Labbai (supra) . Mulla: Principles of

Mahomedan Law (20th Edition) in Chapter XII , provides for

the same as under:

“In the absence of a direction in the wakfnama the

succession to the office of sajjadanashin is regulated

by custom. One custom is that the “bhek” or order i.e.,

an electoral body consisting of fakeers and murids,

instal a competent person generally a son or nominee

of the late sajjadanashin. In a case before the Privy

Council the “bhek” delegated their power to elect a

sajjadanashin and it was held that the appointment

of the sajjadanashin made in this manner was valid.

If the Court is appointing a sajjadanashin, it should

take account of the spiritual tradition and appoint if

possible a descendant of the founder. As to the

importance of nomination by the last sajjadanashin

see the observations of Agha Haider J., in Ghulam

Mahommad v Abdul Rashid. The Lahor e High Court

has decided that in the absence of directions in the

Deed of Trust, or usage, a sajjadanashin can

nominate his successor.”

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38. From the record it transpires that the respondent no. 1 had

been nominated as Jan -Nasheen Sajjada by the original

Sajjadanashin through the Khilafatnama dated 26.02.1981 (Ex.

P-72). The said document was accepted through a religious

ceremony attended by members of the fraternity and other

Sajjadanashins. It also transpired from the record that

prevailing practice governing the Dargah recognises nomination

by the incumbent Sajjadanashin as a valid mode of succession.

It would, however, emerge that the docume nt Ex. P-72,

originally written in Urdu, Persian and Arabic, had been

translated into English for the purpose of the proceedings. Upon

analysing the document together with the surrounding

circumstances and the oral evidence adduced by the parties, it

can be said that the Khilafatnama conferred upon the

respondent no. 1, the spiritual authority previously exercised

by the incumbent Sajjadanashin and thereby constituted a

valid act of nomination.

39. At this stage, it is relevant to observe that the execution of the

said document was supported by the testimony of the attesting

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witnesses. One of the witnesses, who was himself associated

with another Dargah, deposed that the predecessor

Sajjadanashin had formerly conferred spiritual authority upon

the respondent no. 1 in the presence of several people. We find

that the testimony of the said witness is credible and in fact the

present appellant had failed to elicit any material in cross-

examination that could discredit the evidence of the aforesaid

witness.

40. From the record it also transpires that another witness also

corroborated the circumstances in which the Khilafatnama was

executed and described the religious ceremony during which

the respondent no. 1 was nominated. Thus, the appellant has

failed to point out from the documentary as well as oral evidence

that the document Ex. P-72 is a fabricated document.

41. Now, it is the contention of the appellant that Ex. P-72 merely

conferred Khilafatnama and did not amount to nomination as

Sajjadanashin. From the examination of the aforesaid

document as a whole and considering the surrounding evidence

as well as the findings recorded by the Courts below, it can be

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said that the document might not expressly use the term

“Sajjadanashin”, but, it clearly conveyed the intention of the

incumbent Sajjadanashin to confer his spiritual authority upon

the respondent no. 1 and to designate him as a successor. It is

also the contention of the appellant herein that the word “Jan-

Nasheen” had been subsequently interpolated in the said

document. With regard to the said contention, we may observe

that the appellant himself had admitted the existence and

acceptance of the document, and once such admission was

made, the burden shifted upon the appellant to establish the

alleged interpolation. However, the appellant neither effectively

cross-examined the attesting witnesses on this issue nor sought

examination of the said document by a hand writing expert.

Thus, in the absence of any substantive evidence supporting

the allegation, the contention of the appellant is required to be

rejected. We may add that at this stage it is not open for the

appellant to contend that the said document be sent for

necessary examination to the concerned expert.

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42. It is a settled principle that mere suspicion cannot displace a

document which has otherwise been duly proved. The burden

of establishing forgery or interpolation lies on the party alleging

it and this principle has been reiterated in H. Venkatachala

Iyengar (supra). In the present case, the appellant failed to

produce any cogent evidence to substantiate the allegation of

interpolation before this Court as well.

43. It is also required to be observed at this stage that the appellant

himself had earlier admitted the practice of succession through

nomination by the incumbent Sajjadanashin. Thus, the

admission of the appellant demonstrated that the office was not

confined strongly to succession by a living son and that

nomination by the incumbent Sajjadanashin was recognised in

practice. Significantly, the material on record does not establish

any rigid rule that the office must invariably devolve upon the

eldest son of hereditary succession. Thus, the contention raised

by the appellant that under Mohammadan law, only a living son

may succeed to the office of Sajjadanashin is without factual

basis and no material is produced by the appellant to support

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this argument. The extracts produced by the appellant from

Mulla (supra) in the course of oral submissions pertain to

succession to property and not to appointment of a successor

as Sajjadanashin.

44. On the contrary, the evidence produced before the Courts below

indicates that the prevailing practice recognises the authority of

the incumbent Sajjadanashin to nominate his Jan-Nasheen. We

have gone through the reasoning recorded by the Courts below

with regard to the aforesaid aspect based on documentary as

well as oral evidence and we are of the view that the Courts

below have not committed any error while recording the findings

to the aforesaid effect.

45. The appellant has also relied upon certain documents, namely

the General Power of Attorney (Ex. D-1), the Khilafatnama dated

06.07.1969 (Ex. D-13) and the Affidavit (Ex. D-23), to assert his

claim to the office of Sajjadanashin.

46. We have examined the aforesaid documents upon which the

appellant has placed reliance. From the General Power of

Attorney (Ex. D-1), it can be said that the said document was

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merely a power of attorney authorizing the appellant to act on

behalf of the executant and did not confer any right of

succession to the office. This view is consistent with the settled

legal principle that a power of attorney creates only an agency

relationship and does not transfer title or confer independent

rights. The authority granted under such an instrument is

ordinarily co-terminus with the life and authority of the

principal. Consequently, a power of attorney cannot operate as

a mode of succession to a religious office.

47. This position has been authoritatively affirmed by this Court in

Suraj Lamp & Industries (P) Ltd. v. State of Haryana,

(2012) 1 SCC 656, where it was held that a power of attorney

is merely an instrument of agency and cannot by itself transfer

ownership or create proprietary rights. Applying the same

principle, a document which merely authorises another person

to act on behalf of the executant cannot be construed as

conferring succession to a spiritual office such as that of a

Sajjadanashin.

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48. So far as the affidavit (Ex. D-23) is concerned, the same cannot

be recorded as a valid instrument of nomination. It is required

to be observed that from the evidence on record, it transpires

that an act as significant as the appointment of a successor to

the office of Sajjadanashin would ordinarily be performed

through a clear and formal act consistent with the traditions of

the institution. Thus, in absence of any other reliable

corroborative evidence demonstrating that the affidavit

represented such an act of nomination, we are of the view that

the Courts below have rightly declined to treat the said

document conferring any right of succession.

49. Another contention raised by the appellant is with regard to

certain correspondences, photographs and oral testimonies to

suggest that the appellant had been managing the affairs of the

Dargah for several years. We have examined the said evidence

and we are of the view that, at best, the said evidence indicated

that the appellant had participated in certain managerial or

ceremonial activities associated with the Dargah, however, such

_____________________________________________________________________________________________

Civil Appeal Nos. 13345 - 13346 of 2015 Page 28 of 30

participation by itself cannot establish succession to the office

of Sajjadanashin.

50. With regard to the contention raised by the appellant that the

respondent no. 1 resided in Bangalore and not at

Shivasamudram, it is a specific finding recorded on the basis of

the evidence by the Courts below that the respondent no. 1 was

also a resident of Shivasamudram, and therefore, when a

concurrent finding of the fact is recorded by the Courts below,

at this stage, the said finding of fact cannot be interfered with.

51. The appellant has further contended that recognition of the

respondent no. 1 as Sajjadanashin would extinguish the rights

of other family members or stakeholders in the Wakf property.

This submission is misconceived. The present litigation

concerns succession to the office of Sajjadanashin and not the

proprietary rights of descendants in Wakf property or income.

The recognition of one individual as Sajjadanashin does not

determine or extinguish the independent legal rights of other

beneficiaries under Wakf law.

_____________________________________________________________________________________________

Civil Appeal Nos. 13345 - 13346 of 2015 Page 29 of 30

52. Considering the entire evidence on record, we are of the view

that the respondent no. 1 was nominated as Jan-Nasheen by

the original Sajjadanashin through the Khilafatnama dated

26.02.1981 (Ex. P-72) and lawfully succeeded to the office of

Sajjadanashin upon the demise of the predecessor in the year

1988.

53. We have also gone through the reasoning recorded by the High

Court while exercising jurisdiction under Section 100 of the

CPC, we are of the view that the High Court has correctly held

that no substantial question of law arose for consideration.

54. In fact, the entire challenge raised before this Court essentially

seeks a re-appreciation of evidence and reconsideration of

factual findings recorded by three courts. It is well settled that

this Court, while exercising jurisdiction under Article 136 of the

Constitution, does not ordinarily interfere with concurrent

findings of fact unless such findings suffer from manifest

illegality or result in grave miscarriage of justice.

55. Having examined the record, we find no such infirmity in the

judgments of the Courts below.

_____________________________________________________________________________________________

Civil Appeal Nos. 13345 - 13346 of 2015 Page 30 of 30

56. In view of the aforesaid discussion, we find no merit in the

present appeals.

CONCLUSION

57. Accordingly, the present Civil Appeals are dismissed.

58. Interim orders, if any, stand vacated.

59. Pending applications, if any, stand disposed of.

…………………………… J.

[M.M. SUNDRESH]

…………………………… J.

[VIPUL M. PANCHOLI]

NEW DELHI

02

nd

April, 2026

SLP (C) Nos. 10706-10709 of 2025 Page 1 of 60

REPORTABLE

IN THE SUPREME COURT OF INDIA

(CIVIL APPELLATE JURISDICTION)

CIVIL APPEAL NO(S). 4174-4177 OF 2026

(@ Special Leave Petition (Civil) Nos. 10706-10709 of 2025)

SYED MOHAMMED ADIL PASHA QUADRI

ALIAS SYED BUDAN SHA QUADRI ... APPELLANT

versus

SYED HASNAL MUSSANNA SHA KHADRI

& ORS. ETC. …RESPONDENTS

J U D G M E N T

VIPUL M. PANCHOLI, J.

1. Leave granted.

2. These appeals are directed against the final common

judgment and order dated 16.12.2024 passed by the High

Court of Karnataka, Principal Bench at Bengaluru, in

Regular Second Appeal (RSA) Nos. 1004, 1064, 1069, and

SLP (C) Nos. 10706-10709 of 2025 Page 2 of 60

1141 of 2023. By way of the impugned judgment, the High

Court set aside the concurrent findings and decrees of the

Trial Court and the First Appellate Court, holding that the

Civil Court lacked inherent jurisdiction to adjudicate the

dispute regarding the Office of Sajjadanashin of a notified

Waqf institution, as such power is statutorily and

exclusively reserved for the Waqf Board under the provisions

of the Waqf Act.

FACTUAL BACKGROUND

3. The detailed facts leading to the present litigation, as

adduced from the comprehensive records and written

submissions, are as follows:

3.1. The present litigation involves a challenge to the final

judgment and order dated 16.12.2024 passed by the

High Court of Karnataka in Regular Second Appeals

(RSA) Nos. 1004, 1064, 1069, and 1141 of 2023. The

core of the controversy pertains to the entitlement to

the spiritual and hereditary office of Sajjadanashin of

the Hazarath Akhil Shah Quadri Dargah (popularly

known as the “Big Makan”) situated at Channapatna,

Ramanagara District.

SLP (C) Nos. 10706-10709 of 2025 Page 3 of 60

3.2. The Suit Dargah is a notified Waqf institution, and the

office of Sajjadanashin is recognized under

Mahomedan Law as that of a spiritual preceptor and

teacher of religious doctrine, a post which is governed

by long-standing customs and is distinct from the

secular office of a Mutawalli.

3.3. The historical pedigree of the institution traces back

to the founder, Janab Hazrath Syed Mohammed Akhil

Shah Quadri, who was a spiritual mentor to Nawab

Hyder Ali Khan Bahadur of the Mysore State. Official

Muzrai records dating back to 16 June 1904 (marked

as Ex. P-18) reflect that the great-grandfather of the

present Petitioner, Syed Sultan Mohadin Sha Khadri,

was the recognized Sajjadanashin of the Suit Dargah.

3.4. Upon the demise of the great-grandfather, the office

devolved upon his son, Syed Mohammed Peer Pasha

Khadri (the Petitioner’s grandfather), who served as

the presiding Sajjadanashin for several decades. In

1964, in accordance with the custom of nominating a

successor-designate (Jan-Nasheen Sajjada), the

grandfather nominated his eldest son, Syed

SLP (C) Nos. 10706-10709 of 2025 Page 4 of 60

Mohammed Akhil Pasha Khadri (the Petitioner’s

father), to the office.

3.5. A pivotal vacancy occurred on 27 October 1980, when

the Petitioner’s father, while serving as the nominated

successor, passed away during the lifetime of the

presiding grandfather. To ensure spiritual continuity,

the grandfather convened a religious function on 26

February 1981, in the presence of Sajjadanashins,

Mujawars, and community heads, where he

nominated his eldest grandson the Petitioner, Syed

Mohammed Adil Pasha Quadri as the Jan-Nasheen

Sajjada. This nomination was formalised in a written

Khilafathnama (Ex. D.1).

3.6. The Petitioner’s position in this litigation is anchored

in this 1981 nomination and the subsequent

devolution of the office upon him following his

grandfather's death on 6 October 1988. He asserts

that as the eldest grandson of the first branch, his

right is superior and consistent with the proved

customs of the Dargah, a contention that was upheld

by both the Trial Court and the First Appellate Court.

SLP (C) Nos. 10706-10709 of 2025 Page 5 of 60

3.7. Conversely, a rival claim was asserted by the line of

the original Defendant No. 3, Mohammad Adil Basha

Khadri, who is the father of the current Respondent

No. 1, Syed Hasnal Mussanna Sha Khadri.

Respondent No. 1’s position is based on the assertion

that the office of Sajjadanashin had devolved to his

father through a Will executed in April 1944 by an

uncle, Syed Sha Mohammed Ali Basha Khadri. He

further contends that his father was selected and

recognized as Sajjadanashin by a congregation of

Fakirs and Murids on 10 December 1987.

3.8. Respondent No. 1 maintains that he succeeded his

father to the office and is the one currently performing

the spiritual duties at the Dargah. His primary legal

stance throughout the second appeal has been that

the Civil Court lacked inherent subject -matter

jurisdiction, arguing that once the Dargah was

notified as a Waqf, all matters of appointment and

succession fell within the exclusive domain of the

Waqf Board under Section 32(2)(g) of the Waqf Act.

3.9. The litigation formally commenced on 28 November

1988, when the Petitioner's uncle, Syed Mohammed

SLP (C) Nos. 10706-10709 of 2025 Page 6 of 60

Ghouse Pasha Quadri (Respondent No. 30), filed O.S.

No. 92/1988 seeking a declaration of his own status

as Sajjadanashin based on a competing 1969

nomination. The Petitioner impleaded himself as

Defendant No. 8 and filed a counter-claim on 16

January 1990, seeking a formal declaration of his

title.

3.10. A significant procedural detour occurred on 22 August

2002, when the suit was transferred to the Karnataka

Waqf Tribunal, Bangalore. However, on 17 December

2002, the Tribunal held that the dispute was not

maintainable before it and returned the matter to the

Civil Court for adjudication, a decision that went

unchallenged for over two decades.

3.11. Following a trial spanning 31 years, during which 8

witnesses and 59 documents were examined for the

defense, and 3 witnesses and 27 documents for the

plaintiff, the Trial Court (Additional Civil Judge,

Channapatna) delivered its judgment on 20 December

2019. The Court dismissed the suit of the uncle and

decreed the counter-claim of the Petitioner, declaring

SLP (C) Nos. 10706-10709 of 2025 Page 7 of 60

him the rightful Sajjadanashin after finding the 1981

Khilafathnama to be genuine and duly proved.

3.12. The Trial Court specifically rejected the 1944 Will and

the 1987 selection claims made by Respondent No. 1's

father, noting that the office of Sajjadanashin is a

spiritual headship that cannot typically be

bequeathed via a testamentary document in violation

of customary hereditary lines.

3.13. On 27 February 2023, the First Appellate Court

(Senior Civil Judge, Channapatna) affirmed the trial

court’s findings in their entirety. The Court held that

the Petitioner had successfully established his

nomination as Jan-Nasheen Sajjada in a public

function and that the office of Sajjadanashin occupies

a superior status to that of a Mutawalli.

3.14. Aggrieved by these concurrent findings, the

Respondents, including Syed Hasnal Mussanna Sha

Khadri (who preferred RSA No. 1004/2023),

challenged the decrees before the High Court of

Karnataka. The High Court, while not delving into the

merits of the competing Khilafathnamas, set aside the

judgments on 16 December 2024.

SLP (C) Nos. 10706-10709 of 2025 Page 8 of 60

3.15. The High Court reasoned that under Section 3(i) of the

Waqf Act, 1995, the term "Mutawalli" explicitly

includes a "Sajjadanashin". Consequently, it held that

the power to appoint or recognize a Sajjadanashin of

a notified Waqf institution falls within the exclusive

jurisdiction of the Waqf Board, rendering the 37-year

Civil Court proceedings and decrees a nullity.

3.16. The Petitioner subsequently moved to this Court via

the present Special Leave Petition, filed on 17 March

2025. On 13 May 2025, this Court issued notice and

directed that "status quo, as of today, shall be

maintained by the parties". The Petitioner has since

filed an application for clarification, alleging that

Respondent No. 1 forcibly took possession and broke

the locks of the Dargah on 17.12.2024, a day after the

High Court's pronouncement but before the judgment

was uploaded.

SUBMISSIONS ON BEHALF OF THE APPELLANT

4. Ms. Pritha Srikumar Iyer, learned counsel appearing for the

appellant, primarily contended that the impugned judgment

of the High Court holding that there is an implied bar on the

SLP (C) Nos. 10706-10709 of 2025 Page 9 of 60

jurisdiction of the civil courts in matters relating to

appointment of a Sajjadanashin is wholly erroneous in law,

contrary to the scheme of the Wakf Act, 1954 and Wakf Act,

1995, inconsistent with settled principles governing

exclusion of civil court jurisdiction, and is thus liable to be

set aside. Learned counsel has made the following

submissions:

4.1. At the outset, it was submitted that the present

dispute pertains to the appointment of the

Sajjadanashin of Hazrath Akhil Shah Quadri Dargah,

Channapatna, Karnataka (“Suit Dargah”), which is a

spiritual office. A Sajjadanashin is the spiritual head

of a Khanqah/Dargah, a religious teacher and guide,

whose position is higher than that of a Mutawalli, who

is merely a secular manager. The High Court itself has

noted this distinction in the impugned judgment. The

status and incidents of the office of Sajjadanashin are

recognised in Mulla’s Principles of Mahomedan Law

(20th Edn., Chapter XII – Wakfs), which clearly

delineates the spiritual character of the office.

4.2. It was contended that the High Court has

fundamentally erred in conflating the office of

SLP (C) Nos. 10706-10709 of 2025 Page 10 of 60

Mutawalli with that of Sajjadanashin and misreading

Section 3(j) of the Wakf Act, 1995 (pari materia with

Section 3(f) of the 1954 Act). The definition of

“Mutawalli” includes a Sajjadanashin only in limited

circumstances where the Sajjadanashin performs the

functions of a Mutawalli. This does not obliterate the

distinction between the two offices. The Wakf Board’s

powers are confined to appointment and removal of

Mutawallis, i.e., secular managers, and do not extend

to appointment or removal of a religious head such as

a Sajjadanashin.

4.3. Learned counsel submitted that the Wakf Act itself

maintains this distinction. Section 64(2) of the Wakf

Act, 1995 (Section 43(3) of the 1954 Act) expressly

preserves the rights of a Sajjadanashin even upon

removal of a Mutawalli, thereby recognising the

independent and distinct status of the Sajjadanashin.

It was further pointed out that during oral

submissions before the High Court, counsel for the

Karnataka Wakf Board (Respondent No. 24) conceded

that the Wakf Board has never appointed any

Sajjadanashin. This itself demonstrates that the

SLP (C) Nos. 10706-10709 of 2025 Page 11 of 60

statutory scheme does not vest such power in the

Board.

4.4. It was further contended that civil courts possess

plenary jurisdiction under Section 9 of the Code of

Civil Procedure to try all suits of a civil nature unless

jurisdiction is expressly or impliedly barred. The

exclusion of jurisdiction is not to be readily inferred.

Even in relation to the Wakf Act, this Court in Ramesh

Gobindram (Dead) through LRs v. Sugra Humayun

Mirza Wakf, (2010) 8 SCC 726 has categorically held

that the jurisdiction of civil courts is excluded only in

respect of matters which the Act expressly requires to

be determined by the Wakf Tribunal. The Wakf

Tribunal is a creature of statute and cannot assume

jurisdiction beyond what is conferred by Sections 6,

7, 83 and allied provisions of the Act.

4.5. Relying on Ramesh Gobindram (supra), it was urged

that Section 85 of the Wakf Act, 1995 does not bar

civil court jurisdiction in respect of all disputes

relating to wakf property; it bars jurisdiction only in

respect of those matters which are required by or

under the Act to be determined by the Tribunal. The

SLP (C) Nos. 10706-10709 of 2025 Page 12 of 60

present dispute-relating to succession to the spiritual

office of Sajjadanashin-is not one such matter.

Indeed, the suit had earlier been transferred to the

Wakf Tribunal and was returned to the civil court on

the ground that it was not within the jurisdiction of

the Tribunal.

4.6. The reliance placed by the High Court on S.V.

Cheriyakoa Thangal v. S.V.P. Pookoya & Ors., 2024

SCC OnLine SC 1586 is misplaced, as that case

pertained to appointment of a Mutawalli and not a

Sajjadanashin. Similarly, reliance on Fakhruddin v.

Tajuddin, (2008) 8 SCC 12 is misconceived; in that

case, although this Court recognised the distinction

between a Mutawalli and a Sajjadanashin, the issue

of exclusion of civil court jurisdiction did not arise in

the context of appointment of a Sajjadanashin. The

bar on jurisdiction in that case arose in a distinct

factual matrix and cannot be extended to the present

case.

4.7. It was further submitted that the High Court gravely

erred in raising and deciding a jurisdictional issue in

2025 in a suit instituted in 1988, after nearly 37–38

SLP (C) Nos. 10706-10709 of 2025 Page 13 of 60

years of litigation. The original suit (O.S. No. 92/1988)

was filed by Respondent No. 30 seeking declaration

and injunction. The Petitioner was impleaded and

filed a counter claim asserting his own status as

Sajjadanashin. The Trial Court, after full-fledged trial

and appreciation of evidence, dismissed the plaintiff’s

suit and decreed the counter claim in favour of the

Petitioner by judgment dated 20.12.2019. The First

Appellate Court, by judgment dated 27.02.2023,

affirmed the findings and dismissed all appeals. These

were concurrent findings on facts.

4.8. It was emphasised that no jurisdictional objection had

been raised by the original plaintiff or other contesting

respondents in their pleadings before the Trial Court

or the First Appellate Court. Despite this, the High

Court in second appeal set aside the concurrent

judgments solely on the question of jurisdiction,

holding that there was an implied ouster of civil court

jurisdiction.

4.9. Learned counsel submitted that such an approach is

impermissible. The suit had proceeded to full trial; the

Wakf Board, though a party, did not challenge the

SLP (C) Nos. 10706-10709 of 2025 Page 14 of 60

maintainability of the suit on the ground of lack of

jurisdiction. In Mumtaz Yarud Dowla Wakf v. Badam

Balakrishna Hotel (P) Ltd., 2023 SCC OnLine SC 1378,

this Court held that a remand order ought not to be

passed on a belated plea of lack of jurisdiction in a

case not involving coram non judice. In the present

case, given the wide jurisdiction of civil courts under

Section 9 CPC and absence of an express bar, no

question of coram non judice arises.

4.10. It was further submitted that the High Court framed

only limited substantial questions of law, of which

Question No. 1 related to jurisdiction. Question No. 2

did not arise, as the Petitioner had pleaded and proved

his entitlement to the office of Sajjadanashin.

Question No. 3 regarding consequential relief also did

not arise, as the Petitioner had sought and was

granted consequential relief of injunction. No other

substantial question of law warranting

reconsideration of merits was framed. In such

circumstances, remanding the matter after nearly

four decades would cause grave prejudice to the

SLP (C) Nos. 10706-10709 of 2025 Page 15 of 60

Petitioner and amount to prolonging litigation

unnecessarily.

4.11. On relief, it was submitted that this Court ought not

to remand the matter to the High Court. Instead, the

Second Appeals ought to be rejected and the

concurrent findings of the Trial Court and First

Appellate Court restored. Alternatively, if this Court is

inclined to remand the matter for reconsideration,

appropriate directions may be issued to restore status

quo as on the date of the impugned High Court

judgment dated 16.12.2024. It was brought to the

notice of this Court that subsequent to the impugned

judgment, Respondent No. 1 broke open the lock of

the Suit Dargah and entered the premises, claiming

authority under the impugned order. Although this

Court directed maintenance of status quo while

issuing notice in the present SLP, the Petitioner’s

application for clarification was not entertained.

Hence, protective directions are necessary to

safeguard the Petitioner’s entitlement pending final

adjudication.

SLP (C) Nos. 10706-10709 of 2025 Page 16 of 60

4.12. In sum, learned counsel submitted that: (i) there is no

express or implied bar on the jurisdiction of civil

courts in disputes relating to appointment of a

Sajjadanashin; (ii) the High Court erred in conflating

the offices of Mutawalli and Sajjadanashin; (iii) the

Wakf Act does not vest power in the Wakf Board to

appoint or remove a Sajjadanashin; (iv) the suit was

fully tried and resulted in concurrent findings in

favour of the Petitioner; and (v) remand after nearly

four decades is wholly unwarranted. Accordingly, the

impugned judgment deserves to be set aside and

appropriate relief granted in favour of the appellant.

SUBMISSIONS ON BEHALF OF THE RESPONDENTS

5. Per contra, Mr. Anand Shankar Jha, learned counsel

appearing for the respondent no. 1, made the following

submissions:

5.1. Learned Counsel appearing for Respondent No. 1

(Syed Hasnal Musanna Sha Khadri) submitted that

the impugned judgment of the High Court raises

substantial questions concerning the statutory

powers of Waqf Boards across the country and

SLP (C) Nos. 10706-10709 of 2025 Page 17 of 60

correctly addresses two core issues, namely: (i)

whether “Sajjadanashin” falls within the definition of

“Mutawalli” under the Waqf Act, 1954 and Waqf Act,

1995; and (ii) whether the Waqf Board has jurisdiction

over appointment and removal of a Sajjadanashin to

the exclusion of civil courts.

5.2. It was submitted that the present dispute pertains to

the Hazrath Syed Akhil Shah Quadri Dargah,

Channapatna, Karnataka (“Channapatna Dargah”),

and concerns entitlement to be declared as

Sajjadanashin thereof. The original suit (O.S. No.

92/1988) was instituted in 1988. The Trial Court

dismissed the suit but granted a declaration in favour

of Defendant No. 8 (Petitioner herein). The First

Appellate Court dismissed all appeals. In Second

Appeal, the High Court framed substantial questions

of law including whether the Waqf Board is exclusively

authorised under the Waqf Acts to appoint and

remove the Mutawalli and whether the jurisdiction of

the Civil Court is ousted, and whether the office of

Mutawalli and Sajjadanashin are one and the same.

SLP (C) Nos. 10706-10709 of 2025 Page 18 of 60

5.3. Learned counsel submitted that Section 3(i) of the

Waqf Act, 1995 (pari materia with Section 3(f) of the

1954 Act) defines “mutawalli” in inclusive terms and

expressly includes within its ambit “sajjadanashin”,

among others. Thus, for the purpose of statut ory

administration and regulation of Waqf, the office of

Sajjadanashin is subsumed within the inclusive

definition of Mutawalli.

5.4. It was further submitted that Sections 32(2)(g), 63, 64

and 65 of the 1995 Act (and corresponding provisions

of the 1954 Act) vest comprehensive powers in the

Waqf Board, including:

● To appoint and remove Mutawallis (including

those falling within the inclusive definition, i.e.,

Sajjadanashin);

● To assume direct management where no suitable

person is available; and

● To exercise superintendence over the entire

administration of Waqf, including religious offices

integrally connected to the Dargah.

SLP (C) Nos. 10706-10709 of 2025 Page 19 of 60

5.5. Reliance was placed on the decision of this Court in

S.V. Cheriyakoya Thangal v. S.V.P. Pookoya & Ors.,

(Supra), wherein it was held that appointment of a

Mutawalli under Section 3(i) is wholly within the

jurisdiction of the Waqf Board and not the Civil Court,

and that the Waqf Tribunal is only an adjudicatory

forum after the Board has exercised its jurisdiction.

5.6. It was further submitted that the reliance placed by

the Petitioner on Section 64(2) of the 1995 Act

(removal of Mutawalli not affecting personal rights as

Sajjadanashin) is misplaced. Section 64(2) merely

safeguards independent personal or spiritual rights

and does not curtail the statutory power of the Board

to regulate the office in its administrative dimension.

5.7. Learned counsel contended that if the Petitioner’s

argument is accepted, anomalous consequences

would arise, namely:

● Appointment/removal of Mutawalli would lie

before the Waqf Board;

● Appointment/removal of Sajjadanashin would lie

before Civil Courts;

SLP (C) Nos. 10706-10709 of 2025 Page 20 of 60

● Parties would bypass the specialised statutory

authority and indulge in forum shopping;

● The entire statutory scheme of the Waqf Act would

be rendered meaningless.

5.8. It was also submitted that there can be no estoppel

against statute. In Fakruddin (Dead) through LRs v.

Tajuddin (Dead) through LRs., (Supra), this Court held

that jurisdictional defects cannot be cured by consent,

waiver or acquiescence. Hence, the fact that parties

initially approached the Civil Court is legally

irrelevant.

5.9. Learned counsel for the respondent No. 1 has also

placed reliance upon the following decisions in

support of his submission in Kolhapur Canesugar

Works Ltd. & Anr. Vs. Union of India & Ors. (2000) 2

SCC 536, Harshad Chiman Lal Modi Vs. DLF Universal

Ltd. & Anr. (2005) 7 SCC 791 and Aliya Thammuda

Beethathebiyyappura Pookoya & Anr. Vs. Pattakal

Cheriyakoya & Ors. (2019) 16 SCC 1.

5.10. On facts, it was pointed out that the Petitioner failed

to establish valid nomination or entitlement; the

SLP (C) Nos. 10706-10709 of 2025 Page 21 of 60

alleged Khilafatnama was not satisfactorily proved; no

independent religious authority supported the alleged

nomination; and the Petitioner was not residing in

Channapatna nor continuously associated with the

Dargah. It was submitted that in any event, the

factual record does not support the Petitioner’s claim.

5.11. Accordingly, Respondent No. 1 submitted that the

High Court correctly examined the substantial

questions of law and that the Civil Court’s jurisdiction

stands ousted in view of the statutory scheme.

6. Ms. Vrinda Bhandari, learned counsel appearing on behalf

of respondent no. 24 has made the following submissions:

6.1. Learned Counsel appearing for Respondent No. 24

(Karnataka State Board of Waqf) submitted that the

High Court’s finding that disputes qua the position-

holder of Sajjada Nasheen lie within the exclusive

subject-matter jurisdiction of the Waqf Board is

erroneous in part and requires proper statutory

interpretation.

6.2. It was submitted that Section 32(1) of the Waqf Act,

1995 provides:

SLP (C) Nos. 10706-10709 of 2025 Page 22 of 60

“Subject to any rules that may be made under this

Act, the general superintendence of all [auqaf] in a

State shall vest in the Board established or the State;

and it shall be the duty of the Board so to exercise its

powers under this Act as to ensure that the auqaf

under its superintendence are properly maintained,

controlled and administered…”

6.3. Further, Section 32(2)(g) empowers the Board:

“to appoint and remove mutawallis in accordance

with the provisions of this Act.”

6.4. It was submitted that these provisions relate to the

non-religious and administrative aspects of Waqf,

such as appointment of Mutawalli as manager,

protection of property, utilisation of income, and

supervision of management. A Mutawalli is

essentially a manager of Waqf property appointed

under Section 32(2)(g), whose duties are

enumerated under Section 50 of the 1995 Act and

Rule 57 of the Karnataka Waqf Rules, 2017. These

duties pertain to protection, preservation,

maintenance and management of the Waqf

institution and its properties.

SLP (C) Nos. 10706-10709 of 2025 Page 23 of 60

6.5. On the other hand, a Sajjada Nasheen is the

“spiritual superior” of a Dargah and in charge of

spiritual affairs. Rule 2(xiii) of the Karnataka Waqf

Rules defines Sajjada Nasheen as:

“Sajjada Nasheen means a spiritual superior of

Dargah and incharge of spiritual affairs of such

Dargah.”

6.6. It was submitted that declaration of a Sajjada

Nasheen is a religious affair over which the Waqf

Board has no jurisdiction. The inclusive definition of

Mutawalli in Section 3(i) must be read contextually,

particularly in cases where the same individual holds

both posts. A Mutawalli appointed under Section

32(2)(g) cannot automatically function as Sajjada

Nasheen unless appointed under custom and

succession.

6.7. Section 64(2) of the 1995 Act clarifies:

“The removal of a person from the office of the

mutawalli shall not affect his personal rights, if any,

in respect of the waqf property either as a beneficiary

or in any other capacity or his right, if any, as a

sajjadanashin.”

SLP (C) Nos. 10706-10709 of 2025 Page 24 of 60

Thus, removal of Mutawalli does not affect independent

spiritual rights as Sajjada Nasheen.

6.8. It was submitted that the Waqf Board, being an

administrative body, can only sanction the

appointment of a Mutawalli. The post of Sajjada

Nasheen is customary and must be established

according to rules of succession. Any inter se disputes

regarding entitlement must be adjudicated by the

competent authority in law.

6.9. Without prejudice, it was submitted that if directed by

this Court, the Board would adjudicate the dispute

between the parties in accordance with customary

and succession laws. However, based on the material

on record, none of the parties have conclusively

established entitlement to the post.

7. Accordingly, Respondent No. 1 and Respondent No. 24 have,

on distinct yet statutory grounds, supported the

interpretation of the Waqf Act within their respective spheres

and have prayed that the impugned judgment be sustained

or appropriate clarification be issued in accordance with the

statutory scheme of the Waqf Act, 1954 and 1995.

SLP (C) Nos. 10706-10709 of 2025 Page 25 of 60

ANALYSIS, DISCUSSION AND FINDINGS :

8. Having heard learned counsel appearing for the parties and

having gone through the material placed on record, it would

emerge that the controversy in the present matter pertains

to the entitlement to the spiritual hereditary office of

Sajjadanashin of Hazarat Akhil Shah Quadri Dargah

situated at Channapattana (hereinafter referred, to as ‘suit

dargah'). It is the case of the present petitioner that Janab

Syed Mohammed Peer Pasha Quadri was the Sajjadanashin

of the suit Dargah. The grandfather of the petitioner

appointed his elder son (father of the petitioner) as Jan-

Nasheen Sajjada of suit Dargah as well as Shivanasamudra

Dargah, in the year 1964. Thereafter, father of the petitioner

died in the year 1980. It is further the case of the petitioner

that on 26.02.1981 at a religious function held in presence

of Sajjadanashins, Mujawars, Mutawallis of various

Dargahs, Devotees and Community Heads , Syed

Mohammad Peer Pasha Khadri appointed and nominated

the petitioner, his eldest grand son and son of late Syed

Akhil Pasha Khadri, to be the Jan-Nasheen Sajjada of the

suit Dargah. It is also stated that appointment and

nomination was also reduced in writing and signed by Syed

SLP (C) Nos. 10706-10709 of 2025 Page 26 of 60

Mohammed Peer Pasha Khadri as well as those present at

the function including the contesting respondent (original

plaintiff). The said document was produced by the petitioner

at Ex. D-1 before the concerned Trial Court.

9. It further transpires from the pleadings that the grand father

of the petitioner passed away on 06.10.1988 and thereby the

petitioner became Sajjadanashin of the suit Dargah as well

as Shivanasamudra Dargah. Thus, the contesting

respondent herein filed suit being O.S. 92/1988 for

declaration and injunction asserting his claim as

Sajjadanashin of the suit Dargah. In the said suit, the

petitioner filed written statement along with counter claim

seeking declaration and injunction in his favour in respect

of the office of Sajjadanashin of the suit Dargah. At this

stage, it is pertinent to mention that the suit was transferred

to the Presiding Officer, Waqf Tribunal, Bangalore Division

for adjudication on 22.08.2002. It is also revealed that on

17.12.2002, the Presiding Officer, Waqf Tribunal, Bangalore

Division held that suit was not maintainable before the

Tribunal and the same is sent back to the Civil Court. After

the matter is sent back by the Tribunal to the Civil Court,

the Civil Court issued notice to the parties to appear.

SLP (C) Nos. 10706-10709 of 2025 Page 27 of 60

10. It further transpires from the record that the Trial Court,

after considering the documentary as well as oral evidence,

passed judgment and order on 20

th December, 2019

whereby the suit filed by the contesting respondent/original

plaintiff came to be dismissed and further decreed the

counter claim of the petitioner.

11. The original plaintiff/contesting respondent herein preferred

Regular First Appeal No. 7/2020 and 8/2020 against the

dismissal of the original suit and decreeing of counter claim

in favour of the present petitioner respectively. The other

respondents also preferred Regular First Appeal No. 19 and

16 of 2020.

12. The First Appellate Court dismissed the appeals filed by the

concerned respondents herein against which Regular

Second appeals were preferred by the concerned

respondents before the High Court.

13. As observed herein above, the High Court, by impugned

judgment allowed the appeals by holding that there was a

implied bar of the jurisdiction of the Civil Court and,

therefore, the decree and the order passed by the Trial Court

as well as the First Appellate Court were set aside by

observing that the same are nullity. However, liberty has

SLP (C) Nos. 10706-10709 of 2025 Page 28 of 60

been granted to the parties to approach the Waqf Board. The

petitioner has, therefore, filed the present appeals.

14. The following questions are posed for our consideration in

the present matter:

A. Whether the office of the Mutawalli and of the

Sajjadanashin is the same?

B. Whether the Civil Court has jurisdiction to decide the

issue involved in the matter?

C. Whether the High Court is right in quashing and

setting aside the decree passed by the Trial Court in

favour of the petitioner and also setting aside the

orders passed by the First Appellate Court?

15. For considering the aforesaid questions posed before us the

relevant provision of the Waqf Act of 1995, Karnataka Waqf

Rules, 2017 are required to be examined.

16. Section 3 (i) of the Waqf Act (Act of 1995) defines the word

Mutawalli which provides as under:

“(i) “mutawalli” means any person appointed, either

verbally or under any deed or instrument by which a

1[waqf] has been created, or by a competent authority, to

be the mutawalli of a 1[waqf] and includes any person

who is a mutawalli of a waqf by virtue of any custom or

who is a naib -mutawalli, khandim, mujawar,

sajjadanashin, amin or other person appointed by a

mutawalli to perform the duties of a mutawalli and save

as otherwise provided in this Act, any person, committee

SLP (C) Nos. 10706-10709 of 2025 Page 29 of 60

or corporation for the time being, managing or

administering any waqf or waqf property:

Provided that no member of a committee or corporation

shall be deemed to be a mutawalli unless such member

is an office-bearer of such committee or corporation:

Provided further that the mutawalli shall be a citizen of

India and shall fulfil such other qualifications as may be

prescribed:

Provided also that in case a waqf has specified any

qualifications, such qualifications may be provided in the

rules as may be made by the State Government;”

17. Section 32 provides for the powers of the Waqf Board which

reads as under:

“32. Powers and functions of the Board.—(1) Subject to

any rules that may be made under this Act, the general

superintendence of all auqaf in a State shall vest in the

Board established or the State; and it shall be the duty of

the Board so to exercise its powers under this Act as to

ensure that the auqaf under its superintendence are

properly maintained, controlled and administered and the

income thereof is duly applied to the objects and for the

purposes for which such auqaf were created or intended:

Provided that in exercising its powers under this Act in

respect of any waqf, the Board shall act in conformity

with the directions of the waqif, the purposes of the waqf

and any usage or custom of the waqf sanctioned by the

school of Muslim law to which the waqf belongs.

Explanation.—For the removal of doubts, it is hereby

declared that in this sub-section, “waqf” includes a waqf

in relation to which any scheme has been made by any

court of law, whether before or after the commencement

of this Act.

(2) Without prejudice to the generality of the foregoing

power, the functions of the Board shall be— (a) to

SLP (C) Nos. 10706-10709 of 2025 Page 30 of 60

maintain a record containing information relating to the

origin, income, object and beneficiaries of every waqf;

(b) to ensure that the income and other property of auqaf

are applied to the objects and for the purposes for which

such auqaf were intended or created;

(c) to give directions for the administration of auqaf;

(d) to settle schemes of management for a waqf:

Provided that no such settlement shall be made without

giving the parties affected an opportunity of being heard;

(e) to direct—

(i) the utilisation of the surplus income of a waqf

consistent with the objects of waqf;

(ii) in what manner the income of a waqf, the objects of

which are not evident from any written instrument, shall

be utilised;

(iii) in any case where any object of waqf has ceased to

exist or has become incapable of achievement, that so

much of the income of the 1[waqf] as was previously

applied to that object shall be applied to any other object,

which shall be similar, or nearly similar or to the original

object or for the benefit of the poor or for the purpose of

promotion of knowledge and learning in the Muslim

community:

Provided that no direction shall be given under this clause

without giving the parties affected, an opportunity of

being heard.

Explanation.—For the purposes of this clause, the powers

of the Board shall be exercised— (i) in the case of a Sunni

waqf, by the Sunni members of the Board only; and

(ii) in the case of a Shia waqf, by the Shia members of the

Board only:

Provided that where having regard to the number of the

Sunni or Shia members in the board and other

circumstances, it appears to the Board that the power

should not be exercised by such members only, it may co-

SLP (C) Nos. 10706-10709 of 2025 Page 31 of 60

opt such other Muslims being Sunnis or Shias, as the case

may be, as it thinks fit, to be temporary members of the

Board for exercising its powers under this clause;

(f) to scrutinise and approve the budgets submitted by

mutawallis and to arrange for auditing of account of

auqaf;

(g) to appoint and remove mutawallis in accordance with

the provisions of this Act;

(h) to take measures for the recovery of lost properties of

any waqf;

(i) to institute and defend suits and proceedings relating

to auqaf;

(j) to sanction lease of any immovable property of a waqf

in accordance with the provisions of this Act and the rules

made thereunder:

Provided that no such sanction shall be given unless a

majority of not less than two-thirds of the members of the

Board present cast their vote in favour of such

transaction:

Provided further that where no such sanction is given by

the Board, the reasons for doing so shall be recorded in

writing.

(k) to administer the Waqf Fund;

(l) to call for such returns, statistics, accounts and other

information from the mutawallis with respect to the

1[waqf] property as the Board may, from time to time,

require;

(m) to inspect, or cause inspection of, waqf properties,

accounts, records or deeds and documents relating

thereto;

(n) to investigate and determine the nature and extent of

waqf and waqf property, and to cause, whenever

necessary, a survey of such waqf property;

SLP (C) Nos. 10706-10709 of 2025 Page 32 of 60

(na) to determine or cause to be determined, in such

manner as may be specified by the Board, market rent of

the waqf land or building;

(o) generally do all such acts as may be necessary for the

control, maintenance and administration of auqaf.

(3) Where the Board has settled any scheme of

management under clause (d) or given any direction

under clause (e) of sub-section (2), any person interested

in the 1[waqf] or affected by such settlement or direction

may institute a suit in a Tribunal for setting aside such

settlement or directions and the decision of the Tribunal

thereon shall be final.

(4) Where the Board is satisfied that any waqf land,

which is a waqf property, has the potential for

development as an educational institution, shopping

centre, market, housing or residential flats and the like,

market, housing flats and the like, it may serve upon the

mutawalli of the concerned waqf a notice requiring him

within such time, but not less than sixty days, as may be

specified in the notice, to convey its decision whether he

is willing to execute the development works specified in

the notice.

(5) On consideration of the reply, if any, received to the

notice issued under sub-section (4), the Board, if it is

satisfied that the mutawalli is not willing or is not capable

of executing the works required to be executed in terms of

the notice, it may, take over the property, clear it of any

building or structure thereon, which, in the opinion of the

Board is necessary for execution of the works and execute

such works from waqf funds or from the finances which

may be raised on the security of the properties of the waqf

concerned, and control and manage the properties till

such time as all expenses incurred by the Board under

this section, together with interest thereon, the

expenditure on maintenance of such works and other

legitimate charges incurred on the property are recovered

from the income derived from the property:

Provided that the Board shall compensate annually the

mutawalli of the concerned waqf to the extent of the

average annual net income derived from the property

SLP (C) Nos. 10706-10709 of 2025 Page 33 of 60

during the three years immediately preceding the taking

over of the property by the Board.

(6) After all the expenses as enumerated in sub-section (5)

have been recouped from the income of the developed

properties, the developed properties shall be handed over

to mutawalli of the concerned waqf.”

18. Section 50 of the Act of 1995 deals with duties of Mutawalli

which provides as under:

“50. Duties of mutawalli.—It shall be the duty of every

mutawalli—

(a) to carry out the directions of the Board in accordance

with the provisions of this Act or of any rule or order made

thereunder;

(b) to furnish such returns and supply such information or

particulars as may from time to time be required by the

Board in accordance with the provisions of this Act or of

any rule or order made thereunder;

(c) to allow inspection of 1[waqf] properties, accounts or

records or deeds and documents relating thereto;

(d) to discharge all public dues; and

(e) to do any other act which he is lawfully required to do

by or under this Act.”

19. Rule 57 of the Karnataka Waqf Rules (hereinafter referred to

as Rules) also provides for duties of Mutawalli which reads

as under:

“57. Duties of the Mutawalli/Managing Committee.- (1)

The Mutawalli or Managing Committee shall,-

SLP (C) Nos. 10706-10709 of 2025 Page 34 of 60

(1) take all steps to protect, preserve, maintain and

manage the Waqf institution and its properties;

(2) take steps to update records of Waqf institution and its

properties as provided in these rules;

(3) initiate proceedings in accordance with the provisions

of the Act to recover the Waqf/Waqf properties under

encroachment;

(4) identify the Waqf property which has potential for

development as an educational institution, hospital,

shopping centre, market, housing or residential flats and

the like including agriculture/horticulture and forward the

proposal for development of the same to the Board for its

prior approval. The Board shall accord the approval in

accordance with Act;

(5) open and operate Bank Account in any nationalized

bank for the purpose of management of the affairs of the

concerned Waqf institution. In the absence of the

nationalized banks, the Mutawalli shall obtain prior

approval of the Chief Executive Officer to open account in

other banks;

(6) the interest accrued in these bank accounts shall be

utilized for the needs of the destitute without expecting

any reward and the transaction shall be accounted for;

(7) shall furnish quarterly progress report together with

income and expenditure details in Form 49; and

(8) carry out all the duties as provided under the Act.”

20. Thus, from the aforesaid provisions of the Act of 1995, it can

be said that Mutawalli means any person appointed to

manage/administer Waqf which includes naib-mutawalli,

Idiadim, mujawar, sajjada nashin, amin or mutawalli.

SLP (C) Nos. 10706-10709 of 2025 Page 35 of 60

21. Duties of the Mutawalli, as provided under Section 50,

includes the duty to carry out direction of Waqf Board,

proper maintenance of Waqf Property, keep accounts, apply

income for waqf purposes and not to alienate property

without permission. Similarly, Rule 57 of the Rules also

provides for duties of Mutawalli which covers maintenance

of accounts, budget preparation, audit compliance,

reporting to Waqf Board. Thus, it can be said that the

aforesaid functions of the Mutawalli are purely

administrative functions. An office of Mutawalli is not a

spiritual office.

22. At this stage, we would like to refer provisions contained in

Section 64 of the Act of 1995 which provides as under:

“64. Removal of mutawalli. —(1) Notwithstanding

anything contained in any other law or the deed of

1[waqf], the Board may remove a mutawalli from his

office if such mutawalli—

…

(2) The removal of a person from the office of the mutawalli

shall not affect his personal rights, if any, in respect of the

1[waqf] property either as a beneficiary or in any other

capacity or his right, if any, as a sajjadanashin. …”

23. Thus, from the aforesaid provision, it is clear that the

removal of a person from the office of Mutawalli shall not

SLP (C) Nos. 10706-10709 of 2025 Page 36 of 60

affect his personal rights in respect of Waqf property either

as a beneficiary or in any other capacity or his right if any

as Sajjadanashin.

24. At this stage, we would also like to examine the issue

whether the office of Mutawalli and Sajjadanashin are one

and the same. It is also relevant to observe at the outset that

the word Sajjadanashin has not been specifically defined

under the Act of 1995, however, under the Rules, it has been

defined as under:

“Sajjadanashin means a spiritual superior of a Dargah

and incharge of spiritual affairs of such Dargah.”

25. At this stage, it is required to be observed that in the

impugned judgment, the High Court has discussed the

aforesaid aspect while considering the aforesaid issue at

issue no. IV and discussed as under:

“(c) Appropriate to refer to the terms “Khanqah”,

“Sajjadanashin” and “Dargah” as explained by Asaf A A

Fyzee in his “Outlines of Mahomedan Law” IV Edn., at

page 325, which is as under:

A “Khanqah” (Persian, Carvanseral ) is a Muslim

Monastery or a religious institution where Dervishes and

other seekers of truth congregate for religious instructions

and devotional exercise. It is a muslim institution

analgous in many respects to a math where religious

instructions given according to Hindu faith. A “Khanqah”

is founded by a Holy man in the place where his esoteric

teaching acquires a certain fame and sanctity. After his

SLP (C) Nos. 10706-10709 of 2025 Page 37 of 60

death if he is buried there, as often happens the place

may be also called his “takia’ abode or resting place.

The religious head of a Khanqah is called a

Sajjadanashin (literally, one who sits at the head of

prayer-carpet). He is essentially a spiritual preceptor; he

may- and enerally is- the mutawalli of Waqf property,

thus, the secular office of a mutawalli must be

distinguished from the spiritual status of Sajjadanashin.

The special feature of the office of a Sajjadanashin is that

the original founder has the right to nominate his

successor, who, in turn, enjoys the same right. Thus a

chain of preceptors (called a Silsila) comes into being, and

the followers, known as murids pay homage not only to

the founder but also to the whole line, including the

present link, called Pir murshid. Theoretically the most

illustrious disciple is to be installed as heir-apparent, but,

according to custom, in the majority of cases the office

becomes hereditary. In one case the Sajjadanashin was

found to be so worthless that he was removed from the

mutawalliship, but was allowed to retain the spiritual

office (Sajjadanashin) which was considered to be

hereditary.” (See Syed Shah Muhammad Kazim V. Syed

Abi Saghir I.L.R. (1931) Pat. 288; Ghulam Mohammad V.

Abdul Rashid I.L.R. (1933) Lah. 558 and Mohamed

Oosman V. Essaq Salemahomed ILR (1938) Bom. 184).

The word Dargah, in Persian and Urdy, means a

threshold. In india it is a term applied to a shrine or the

Tomb of a Muslim Saint and is therefore a place of resort

and prayer.

(d) Syed Ameer Ali in his “Mahommedan Law,” Vol. 1,

pages 443, 444, states:

‘Sajjada’ is the carpet on which prayers are offered. The

Sajjadanashin is not only a Mutawalli but also a spiritual

preceptor. He is the curator of the Dharga where his

ancestor lies buried, and in him is supposed to continue

the spiritual line Silsila. These Dhargas are the tombs of

celebrated dervishes, who, in their lifetime, were

regarded as saints. Some of these men had established

Khankahs where they lived, and their disciples

congregated. Many of them never rose to the importance

SLP (C) Nos. 10706-10709 of 2025 Page 38 of 60

of a Khankah, and when they died their mausoleum

become shrines or Dhargas. These dervishes professes

esoteric doctrines and distinct systems of initiation. They

were either Sufis or the disciples of Mian Roushan

Bayezid, who flourished about the time of Akbar and who

had founded an ‘independent esoteric brotherhood,’ in

which the chief occupied a peculiarly distinctive position.

They called themselves Fakirs on the hypothesis that they

had abjured the world, and were humble servitors, of

God; but their followers were honoured with the title of

Shah or king.

Herklot gives a detailed account of the different

brotherhoods and the rules of initiation in force among

them. The preceptor is called the Pir- the disciple, the

Murid. On the death of the Pir his successor assumes the

privilege of initiating the disciples into the mysteries of

Dervishism or Sufism. The relations which exists between

a Pir and his Murids, as I understand the theory and

practice of Dervishim, was a spiritual and personal one.

(e) Mulla in his Principles of “Mohomedan Law” (13

th

Edition) at page 204, has given the following description

of the therm “Sajjadanashin”:

The status of Sajjadanashin is higher than that of a

mutawalli. He is the head of the institution and has a right

to exercise supervision over the mutawalli’s management.

But the Sajjadanashin may also be a mutawalli and in

that case, with reference to the Waqf property he is in no

better position than a mutawalli. He has no power to

borrow money for the purpose of carrying out the objects

of the trust but he may like a mutawalli borrow money

and incur debt, with the sanction of the Court, for the

preservation of the Waqf property. The Court may remove

a Sajjadanashin for misconduct and when framing a

scheme may separate the offices of Sajjadanashin and

mutawalli.

(f) Saksena in his “Muslim Law as Administered in India

and Pakistan” (Third Edition) defines the rights and

powers of a Sajjadanashin, at page 545, as follows:

A person may hold both the offices of a mutawalli and a

Sajjadanashin, but the Court in framing the scheme u/s

SLP (C) Nos. 10706-10709 of 2025 Page 39 of 60

92 of the CPC may separate the two offices. He should

give all facilities to the devotees to perform their spiritual

rites at the shrine at all reasonable hours. An new

Sajjadanashin cannot be appointed by the Court, nor can

he be ordered to furnish accounts. An injunction cannot

be issued restraining him from alienating the property. He

has full power of disposition over the income of the Waqf

property, unless he spends money in Wicked living or an

objects alien to his office. But it does not mean that the

whole usufruct of a Khankah is at his disposal. The costs

of religious ceremonies, etc., must be defrayed first. At

some shrines, the members of the founder’s family also,

other than the Sajjadanashin, can share the surplus

offerings which remain after payment of expenses. It is

the duty of a Sajjadanashin to maintain accounts to show

that he was rightly and properly spending money of the

way/property upon expenses in connection with the

object of the Waqf. It is the duty of the Sajjadanashin to

apply the income of the waqf properties for the purposes

of endowment. He has ordinarily full powers of

disposition over any surplus income. In the exercise of

that power he may, and no doubt it is very desirable that

he should, provide for the needs of indigent members of

the family. It may even be said that he is under amoral

obligation to do so. But legally the disposition of the

money is in his hands, subject to the terms of grants

under which the property is held and to any proved

custom of the institution. Mohammed Noor, J., of the Patna

High Court has held that provision for a Sajjadanashin is

not a provision for the man but for the institution. A

khankah cannot exist and continue without a

Sajjadanashin. In other systems, the personal

expenditure of the head of such an institution has been

curtailed to almost nothing by enjoining celibacy, as for

instance, in the case of Christian monasteries or Hindu

mutts or sangats. But islam prohibits celibacy, and a

saint with family is the rule rather than an exception. In

these circumstances, devotees and adherents of

Khankahs have always made provisions for maintenance

of the Sajjadanashin and his family, so that he may

devote all his time to imparting religious and spiritual

instructions to his disciples and be free from secular

cares. A Sajjadanashin is an integral part of the

SLP (C) Nos. 10706-10709 of 2025 Page 40 of 60

institution and the central figure so to speak therein. Its

existence depends on his personality. In him is supposed

to continue the spiritual line. Therefore, provision for his

maintenance and that of his descedants is a provision for

him as the head of the institution. It is a trust and not a

personal grant.

“Khawja Muhammad V. Hamid AIR 11928 Lah. 778’

Vidya Varuthi V. Baluswam (1922) 41 M.L.J. 346: AIR

1922 384 (Privy Council); Zooleka Bibi V. Abdein 6 Bom.

L.R. 1058; Saiyad Jaffar El Edroos Vs. Saiyad Mahomed

El Edroos.

(g) Since the office of Sajjadanashin as seen above is to

be held and occupied by person considered to be

spiritually superior and would be in charge of spiritual

affairs, which falls within the realm of Islamic spirituality,

it is appropriate to have a glimpse on the concept of

Islamic spirituality to the extent relevant for the purpose

of this case as under:

(i) Origin of the concept is traceable to verse No. 13 of Sura

Hujarat, Chapter 49- of Holy Quran which states:

O mankind, we have created you from a male and a

femaly, and made you into races and tribes, so that you

may identify one and another. Surely the noblest of you,

in the Allah’s sight, is the one who is most pious of you.

Surely Allah is All-Knowing, All-Aware.”

(ii) Useful to refer to the preface to ‘The Book of Wisdoms

(Kitab Al-Hikam), A collection of Sufi Aphorisms by

Shaykh Ibn ‘Ata illah al-Iskandari, Translated by Victor

Danner with the commentary Ikmail al -Shiyam by

Shaykh ‘Abdullah Gangohi’ published by White Thread

Press, White Thread Limited, London, UK, few excerpts of

which are as under:

The discipline of Islamic spirituality had – as pointed by

Mufti Taqi Usmani (b. 1362/1943)- a variety of titles in

Arabic, such as ihsan (performing good deeds), tariqa (the

Path), suluk (Good Manners) and tasawwuf (often

translated as sufism). The most popular English title for

Islamic spiritualilty is sufism, with the practitioner of

sufism being called a sufi- the later corresponding to its

SLP (C) Nos. 10706-10709 of 2025 Page 41 of 60

Arabic equivalent. … Tasawwuf, strictly speaking, is now

method of the Orders (turuq, sing. Tariqa) and their

Masters (simply called shyukh, sing shaykh). Some of the

most famous Orders are the Naqhsbandi, Chishti, Qadiri,

and Shadhili. Although tasawwuf is, in addition, used

more generally by some non-Order scholars to simply

denote the spiritual teaching of Qur’an and Sunna, or

“way” of the Prophet Muhammad (PBUH).

Ibn Khaidun who linked tasawwuf to the Companions of

the Prophet (PBUH), and he provided a very basic

definition of tasawwuf:

“The basis of the spiritual path is dedication to worship,

devotion to Allah Most High, turning away from the

adornment and ornamentations of this worldly life,

renunciation of what most people crave of pleasure,

wealth and prestige, limiting one’s interaction with the

creation and being free for worship”.

Imam Ahamed Sirhindi, (d. 1624) a Master of Naqhsbandi

Order wrote;

“After one has acquired right beliefs (which refers to

orthodox Islamic theology, or tenets of faith, known in

Arabic as ‘Aqida Ahl Al-Sunna Wa’l-Jama’a’) and subject

oneself to the rules of Shari’a, one should if God so wills,

enter the path of Sufis”.

More over, Junayd-al-Badhdadi(d. 297/910) one of the

foremost Sufis of all time and a jurist of Imam Abu

Thawr’s school of jurisprudence said;

“Whoever has not memorized the Noble Quran or recorded

the Hadith is not be taken as a guide in this affair because

this knowledge of ours is tied (muqayyad) to the Book (of

God) and Sunna.”

If tasawwuf is thus connected to the Sacred Law and

theology of Islam- as both Sirhindi and Junayd al-

Baghdadi have mentioned then it naturally follows that

the discipline, in essence, is part of Prophetic inheritance;

hence it has always been the part of message of Islam.

SLP (C) Nos. 10706-10709 of 2025 Page 42 of 60

(h) The aforesaid commentaries and exegesis on the

subject of Sajjadanashin makes it clear that the both the

office of Mutawalli and of the sajjadanashin can be held

by a single person. Office of Sajjadanashin however

carries with it higher and greater status in Islamic

spirituality. There is no idol worship. That unless a person

claiming to be appointed to the said office acquires and

possesses such qualification and status in Islamic

Spirituality, his appointment to the said post is not

justified merely because he happens to be the eldes

member in the male lineal descendancy. This is not a

claim for person rights of an individual in respect of any

estate or propitiatory assets of the deceased restricted to

personal use and benefit of the claimant. This is an office

requiring qualification, experience, recognition, following

and adherence by many of those believe in the concept of

Islamic spirituality of a particular Order and discipline at

large and requires further teaching, preaching and

propagating the same. It is in the interest of the institution

that person claiming to the office of Sajjadanashin should

be the one deserving for and qualified in al parameters as

broadly noted above, needs to be appointed.

(j) In the case of Faqruddin (dead) through Lrs Vs.

Tajuddin (dead) through Lrs (Supra) the Apex Court while

dealing with the mode of succession to the office of

Mutawalli also examined the office of Mutawalli vis-à-vis

Sajjadanashin at paragraphs 29, 34, 36 and 46 has held

as under:

29. Sajjadanashin is a spiritual office. Mutawalli is a

manager of secular properties. Both of them are

connected with a dargah of a Waqf. Matmi, however,

is a process of mutation carried out in the revenue

register in terms of Matmi Rules.

34. The law of inheritance amongst the

Mohammedans is governed by their personal laws. If

the properties are Waqf properties, the offices of

sajjadanashin and mutawalli are to be filled up in

accordance with the law or the custom. If the

properties are heritable, those who are the “Quranic

Heirs” would be entitled to hold the said posts.

Indisputable, the law of primogeniture has no

SLP (C) Nos. 10706-10709 of 2025 Page 43 of 60

application amongst the Mohammedans vis -à-vis

their law of inheritance.

36. It is beyond any doubt or dispute that a mutawalli

is the temporal head. He is the manager of the

property. Office of sajjadanashin, however, is a

spiritual office. It has to be held by a wise person. He

must be fit for holding the office.

46. Inheritance or succession to a property is

governed by statutory law. Inheritance of an office

may not be governed by law of inheritance; but, the

office of sajjadanashin is not an ordinary office. A

person must possess the requisite qualifications to

hold the said office.”

26. From the aforesaid observation of the High Court, it is

absolutely clear that as per the outlines of “Mohamedan Law

(iv edition)”, the special feature of the office of Sajjadanashin

is that the original founder has the right to nominate his

successor who in turn enjoys the same right. It is further

clear that in majority cases the office of Sajjadanashin

becomes hereditary. It has been also observed that in one

case Sajjadanashin was found to be so worthless that he was

removed from the Mutawalliship but was allowed to retain

the spiritual office “Sajjadanashin” which was considered to

be hereditary. Further, Mulla in his principles of

“Mohamedan Law (13

th Edition) has also describes the term

Sajjadanashin by observing the status of Sajjadanashin is

SLP (C) Nos. 10706-10709 of 2025 Page 44 of 60

higher than that of Mutawalli. He is the head of the

institution and has a right to exercise supervision over the

Mutawallis management. But the Sajjadanashin may also

be a Mutawalli and in that case with reference to the Waqf

property, he is in no better position than a Mutawalli. It has

been further observed that the Court may remove a

Sajjadanashin for misconduct and when framing a scheme

may separate the office of Sajjadanashin and Mutawalli.

27. At this stage, it is also relevant to observe that in the case of

Faqruddin (dead) through Lrs Vs. Tejuddin (dead) through

Lrs. (Supra), this Court observed in paragraph 29 that

Sajjadanashin is the spiritual office. Mutawalli is the

manager of secular properties. In paragraph 36 of the

aforesaid decision, this Court has further observed that it is

beyond any doubt or dispute that a Mutawalli is the

temporal head. He is the manager of the property. Office of

Sajjadanashin, however, is a spiritual office. It has to be held

by wise person. He must be fit for holding the office.

28. It is relevant to observe that though the High Court has

discussed the aforesaid aspect, ultimately while giving the

answer to the issue no. IV has wrongly held that claim to the

office of Sajjadanashin can neither be made as a matter of

SLP (C) Nos. 10706-10709 of 2025 Page 45 of 60

right nor any rule of primogeniture and after observing the

same it is also wrongly held that the Act of 1995 makes no

distinction between the term Mutawalli and Sajjadanashin

and ultimately High Court has committed an error while

giving the finding that Civil Court has no jurisdiction to deal

with the issue of appointment of Sajjadanashin.

29. At this stage, we would also like to refer the stand taken by

the Respondent No. 24, Waqf Board in the written

submission filed before us. It is the specific case of the

Respondent No. 24 also that the role of Mutawalli of a Waqf

only pertains to the administration and management of the

Waqf and it is appropriate, therefore, his appointment comes

within the purview of the Waqf Board as has been upheld by

this Court in the case of S.V. Cheriyakoya Thangal v. S.V. P

Pookoya & Ors., (supra). It is also the case of the Respondent

No. 24, Board that Sajjadanashin of a Waqf is the spiritual

superior of a Waqf, who is incharge of only the spiritual

affairs of a Waqf. Thus, it is stated by Respondent No. 24,

Board that Sajjadanashin is the spiritual head of Waqf and

as such declaration of Sajjadanashin is a religious affair,

over which the Waqf Board would have no jurisdiction. It is

also clarified by Respondent No. 24 that Sajjadanashin of a

SLP (C) Nos. 10706-10709 of 2025 Page 46 of 60

Waqf can also discharge the function of its Mutawalli, if

appointed under Section 32(2)(g) of the Act of 1995.

However, a Mutawalli under Section 32(2)(g) cannot function

as a Sajjadanashin and can only perform the duties as

prescribed under the Act and the Rules.

30. In view of the aforesaid discussion, we are of the view that

the High Court has committed grave error while concluding

that Trial Court and the First Appellate Court were not

justified in assuming the jurisdiction and deciding the

matter pertaining the office of Sajjadanashin of suit Dargah

and the same is required to be dealt with and adjudicated

by the concerned Waqf Board.

31. Thus, in view of the aforesaid discussion, we are of the view

that the Civil Court has jurisdiction to entertain the dispute

involved in the present case and, therefore, the Trial Court

has not committed any error while adjudicating the dispute

involved in the present matter.

32. Even otherwise, it is required to be observed at this stage

that it is the contesting respondent, the original plaintiff who

has filed O.S. No. 92/1988 before the concerned Civil Court

in which the present petitioner filed Written statement and

filed his counter claim and after considering the evidence

SLP (C) Nos. 10706-10709 of 2025 Page 47 of 60

adduced by the parties, the Trial Court decided the matter

in favour of the present petitioner. Further during the

pendency of the suit before the concerned Civil Court the

case was transferred to the Waqf Tribunal (copy of the

relevant document is produced at Page 152 and 153 of the

compilation). The said case was registered as O.S. No.

14/2002 before the Waqf Tribunal. Thereafter, the Waqf

Tribunal transferred the case to the Civil Court once again

in the year 2002 itself and ultimately as observed

hereinabove the concerned Civil Court, after considering the

material placed before it decided the issue in favour of the

present petitioner. It is pertinent to observe that the order of

the Waqf Tribunal transferring the case to the Civil Court

has not been challenged by the contesting

respondent/original plaintiff and the said decision has

attained finality. Further, at the relevant point of time also

the plaintiff/contesting respondent herein did not raise the

objection with regard to the jurisdiction of the Civil Court.

In the Regular First Appeal filed by the contesting

respondents herein they did not raise the issue of

jurisdiction before the First Appellate Court also and for the

SLP (C) Nos. 10706-10709 of 2025 Page 48 of 60

first time the issue of the jurisdiction of the Civil Court was

raised in the second appeal before the High Court.

33. At this stage, we would like to refer the decision rendered by

this Court in the case of Mumtaz Yarud Dowla Waqf v.

Badam Balakrishna Hotel(P) Ltd., (Supra). This Court has

observed in paragraph 26 and 33 as under:

“26. Having dealt with the aforesaid principle and

making it applicable to the Courts in India, we are inclined

to hold that any failure on the part of the Court to do so

would draw the legal maxim “actus curiae neminem

gravabit’ (no one shall be prejudiced by an act of Court).

As a consequence, in a case where a Court has failed to

check its jurisdiction and a plea has been raised

subsequently and that too after receiving an adverse

verdict, the forum shall not be declared as the one having

lack of jurisdiction, especially when there is no apparent

injury otherwise to the rights conferred under a particular

statute. Indore Development

Authority v. Manoharlal, (2020) 8 SCC 129,

“320. The maxim actus curiae neminem gravabit is

founded upon the principle due to court proceedings

or acts of court, no party should suffer. If any interim

orders are made during the pendency of the litigation,

they are subject to the final decision in the matter. In

case the matter is dismissed as without merit, the

interim order is automatically dissolved. In case the

matter has been filed without any merit, the maxim is

attracted commodum ex injuria sua nemo habere

debet, that is, convenience cannot accrue to a party

from his own wrong. No person ought to have the

advantage of his own wrong. In case litigation has

been filed frivolously or without any basis,

iniquitously in order to delay and by that it is

delayed, there is no equity in favour of such a person.

Such cases are required to be decided on merits.

In Mrutunjay Pani v. Narmada Bala Sasmal [AIR

SLP (C) Nos. 10706-10709 of 2025 Page 49 of 60

1961 SC 1353], this Court observed that : (AIR p.

1355, para 5)

“5. … The same principle is comprised in the Latin

maxim commodum ex injuria sua nemo habere debet,

that is, convenience cannot accrue to a party from his

own wrong. To put it in other words, no one can be

allowed to benefit from his own wrongful act.”

324. In Mahadeo Savlaram Shelke v. Pune Municipal

Corpn. [(1995) 3 SCC 33], it has been observed that

the Court can under its inherent jurisdiction ex debito

justitiae has a duty to mitigate the damage suffered

by the defendants by the act of the court. Such action

is necessary to put a check on abuse of process of the

court. In Amarjeet Singh v. Devi Ratan [(2010) 1 SCC

417 : (2010) 1 SCC (L&S) 1108], and Ram Krishna

Verma [Ram Krishna Verma v. State of U.P., (1992) 2

SCC 620], it was observed that no person can suffer

from the act of court and unfair advantage of the

interim order must be neutralised. In Amarjeet

Singh [Amarjeet Singh v. Devi Ratan, (2010) 1 SCC

417 : (2010) 1 SCC (L&S) 1108], this Court observed

: (SCC pp. 422-23, paras 17-18)

“17. No litigant can derive any benefit from mere

pendency of the case in a court of law, as the interim

order always merges in the final order to be passed

in the case, and if the writ petition is ultimately

dismissed, the interim order stands nullified

automatically. A party cannot be allowed to take any

benefit of its own wrongs by getting an interim order

and thereafter blame the court. The fact that the writ

is found, ultimately, devoid of any merit, shows that

a frivolous writ petition had been filed. The

maxim actus curiae neminem gravabit, which means

that the act of the court shall prejudice no one,

becomes applicable in such a case. In such a fact

situation, the court is under an obligation to undo the

wrong done to a party by the act of the court. Thus,

any undeserved or unfair advantage gained by a

party invoking the jurisdiction of the court must be

neutralised, as the institution of litigation cannot be

permitted to confer any advantage on a suitor from

SLP (C) Nos. 10706-10709 of 2025 Page 50 of 60

delayed action by the act of the court. (Vide Shiv

Shankar v. U.P. SRTC [1995 Supp (2) SCC 726 : 1995

SCC (L&S) 1018], GTC Industries Ltd. v. Union of

India [(1998) 3 SCC 376] and Jaipur Municipal

Corpn. v. C.L. Mishra [(2005) 8 SCC 423]).

18. In Ram Krishna Verma v. State of U.P. [(1992) 2

SCC 620], this Court examined a similar issue while

placing reliance upon its earlier judgment

in Grindlays Bank Ltd. v. CIT [(1980) 2 SCC

191 : 1980 SCC (Tax) 230] and held that no person

can suffer from the act of the court and in case an

interim order has been passed, and the petitioner

takes advantage thereof, and ultimately the petition

is found to be without any merit and is dismissed, the

interest of justice requires that any undeserved or

unfair advantage gained by a party invoking the

jurisdiction of the court must be neutralised.”

325. In Karnataka Rare Earth v. Deptt. of Mines &

Geology [(2004) 2 SCC 783], this Court observed that

maxim actus curiae neminem gravabit requires that

the party should be placed in the same position but

for the court's order which is ultimately found to be

not sustainable which has resulted in one party

gaining advantage which otherwise would not have

earned and the other party has suffered but for the

orders of the court. The successful party can demand

the delivery of benefit earned by the other party, or

make restitution for what it has lost. This Court

observed : (SCC pp. 790-91, paras 10-11)

“10. In … the doctrine of actus curiae neminem

gravabit and held that the doctrine was not confined

in its application only to such acts of the court which

were erroneous; the doctrine is applicable to all such

acts as to which it can be held that the court would

not have so acted had it been correctly apprised of

the facts and the law. It is the principle of restitution

that is attracted. When on account of an act of the

party, persuading the court to pass an order, which

at the end is held as not sustainable, has resulted in

one party gaining advantage which it would not have

otherwise earned, or the other party has suffered an

SLP (C) Nos. 10706-10709 of 2025 Page 51 of 60

impoverishment which it would not have suffered, but

for the order of the court and the act of such party,

then the successful party finally held entitled to a

relief, assessable in terms of money at the end of the

litigation, is entitled to be compensated in the same

manner in which the parties would have been if the

interim order of the court would not have been

passed. The successful party can demand : (a) the

delivery of benefit earned by the opposite party under

the interim order of the court, or (b) to make restitution

for what it has lost.

11. In the facts of this case, in spite of the judgment

[Karnataka Rare Earth v. Department of Mines &

Geology, WPs No. 4030-4031 of 1997, order dated 1-

12-1998 (KAR)] of the High Court, if the appellants

would not have persuaded this Court to pass the

interim orders, they would not have been entitled to

operate the mining leases and to raise and remove

and dispose of the minerals extracted. But for the

interim orders passed by this Court, there is no

difference between the appellants and any person

raising, without any lawful authority, any mineral

from any land, attracting applicability of sub-section

(5) of Section 21. As the appellants have lost from the

Court, they cannot be allowed to retain the benefit

earned by them under the interim orders of the

Court. The High Court has rightly held the appellants

liable to be placed in the same position in which they

would have been if this Court would not have

protected them by issuing interim orders. All that the

State Government is demanding from the appellants

is the price of the minor minerals. Rent, royalty or tax

has already been recovered by the State Government

and, therefore, there is no demand under that head.

No penal proceedings, much less any criminal

proceedings, have been initiated against the

appellants. It is absolutely incorrect to contend that

the appellants are being asked to pay any penalty or

are being subjected to any penal action. It is not the

case of the appellants that they are being asked to

pay the price more than what they have realised from

the exports or that the price appointed by the

SLP (C) Nos. 10706-10709 of 2025 Page 52 of 60

respondent State is in any manner arbitrary or

unreasonable.”

326. In A.R. Antulay [A.R. Antulay v. R.S.

Nayak, (1988) 2 SCC 602 : 1988 SCC (Cri) 372], this

Court observed that it is a settled principle that an act

of the court shall prejudice no man. This maxim actus

curiae neminem gravabit is founded upon justice and

good sense and affords a safe and certain guide for

the administration of the law. No man can be denied

his rights. In India, a delay occurs due to procedural

wrangles. In A.R. Antulay [A.R. Antulay v. R.S.

Nayak, (1988) 2 SCC 602 : 1988 SCC (Cri) 372], this

Court observed : (SCC p. 687, para 102)

“102. This being the apex court, no litigant has any

opportunity of approaching any higher forum to

question its decisions. Lord Buckmaster in Montreal

Street Railway Co. v. Normandin [[1917] A.C.

170 (PC)] (sic) stated:

‘All rules of court are nothing but provisions intended

to secure the proper administration of justice. It is,

therefore, essential that they should be made to serve

and be subordinate to that purpose.’

This Court in State of Gujarat v. Ramprakash P.

Puri [(1969) 3 SCC 156 : 1970 SCC (Cri) 29],

reiterated the position by saying : (SCC p. 159, para

5)

‘5. … Procedure has been described to be a

handmaid and not a mistress of law, intended to

subserve and facilitate the cause of justice and not to

govern or obstruct it. Like all rules of procedure, this

rule demands a construction which would promote

this cause.’

Once judicial satisfaction is reached that the direction

was not open to be made and it is accepted as a

mistake of the court, it is not only appropriate but also

the duty of the court to rectify the mistake by

exercising inherent powers. Judicial opinion heavily

leans in favour of this view that a mistake of the court

can be corrected by the court itself without any

SLP (C) Nos. 10706-10709 of 2025 Page 53 of 60

fetters. This is on principle, as indicated in Alexander

Rodger case [Alexander Rodger v. Comptoir

D'Escompte De Paris, [L.R.] 3 P.C. 465 : 17 ER 120]. I

am of the view that in the present situation, the

court's inherent powers can be exercised to remedy

the mistake. Mahajan, J. speaking for a four-Judge

Bench in Keshardeo Chamria v. Radha Kissen

Chamria [(1952) 2 SCC 329 : 1953 SCR 136 : AIR

1953 SC 23], SCR p. 153 stated : (AIR p. 28, para 21)

‘21. … The Judge had jurisdiction to correct his own

error without entering into a discussion of the

grounds taken by the decree-holder or the objections

raised by the judgment-debtors.’”

328. Reliance was placed on Neeraj Kumar

Sainy v. State of U.P. [(2017) 14 SCC 136 : 8 SCEC

454] There, this Court observed that no one should

suffer any prejudice because of the act of the court;

the legal maxim cannot operate in a vacuum. It has to

get the sustenance from the facts. As the appellants

resigned to their fate and woke up to have control

over the events forgetting that the law does not assist

the non-vigilant. One cannot indulge in the luxury of

lethargy, possibly nurturing the feeling that forgetting

is a virtue. If such is the conduct, it is not permissible

to take shelter under the

maxim actus curiae neminem gravabit. There is no

dispute with the aforesaid principle. Party has to be

vigilant about the right, but the ratio cannot be

applied. In the opinion, the ratio in the decision

cannot be applied for the purpose of interpretation of

Section 24(2).”

…………………

33. We would like to consider one more issue by drawing

a distinction between institution and adjudication.

Institution of a suit before a forum where an adjudication

process is the same as the other, insofar as the rights and

liabilities are concerned, has got no relevancy when

subsequently either an act or amendment has been

brought forth conferring the jurisdiction to some other

forum. In other words, the issue for consideration is the

SLP (C) Nos. 10706-10709 of 2025 Page 54 of 60

forum to adjudicate. This principle is subject to the rider

that it may not have an application when there is already

a decree where a party has not raised the issue of

jurisdiction at any point before.”

34. Keeping in view the aforesaid decision, if the facts, as

discussed hereinabove, are examined we are of the view that

the issue of jurisdiction of Civil Court raised by the present

contesting respondent before the High Court for the first

time in second appeal was not required to be entertained by

the High Court.

35. In the case of S.V. Cheriyakoa Thangal Vs. S.V. P Pookoya &

Ors. (Supra) the Court was considering question with regard

to the jurisdiction of the Waqf Board. In the said case before

the Waqf Board, both the parties claimed their respective

rights to Mutawalliship and Sheikhship. The Waqf Board

held in favour of the concerned appellant declaring him as

Mutawalli. The said order was challenged before the Waqf

Tribunal. This Court in paragraph 9 & 10 has observed and

held as under:

“9. Though arguments have been made at length, we are

inclined to hold that the impugned order cannot be

sustained in the eyes of law as the Waqf Board has

rightly exercised the jurisdiction in exercise of power

conferred under Section 32(2)(g) read with the definition

under Section 3(i) which defines a ‘Mutawalli’. We have

SLP (C) Nos. 10706-10709 of 2025 Page 55 of 60

also perused Section 83 sub-Sections (5) and (7) of the Act

which deals with the powers of the Tribunal. The Waqf

Tribunal is deemed to be a civil court having the same

powers that can be exercised by the civil court under

the Civil Procedure Code, 1908. In other words, a dispute

can be tried like a suit by the Waqf Tribunal. Under sub-

section (7) of Section 83 of the Waqf Act, the decision of

the Tribunal shall be final and binding upon the parties

and it shall have force of a decree made by a civil court.

10. The word ‘competent authority’ as mentioned in the

definition clause contained in Section 3(i) makes the

position further clear that it is the Waqf Board which has

got the jurisdiction and not the Waqf Tribunal. After all,

the Waqf Tribunal is only an adjudicating authority over

a dispute while the Waqf Board is expected to deal with

any issue pertaining to administration. The power of

superintendence cannot be confined to routine affairs of a

Waqf but it includes a situation where a dispute arises

while managing the property and that would certainly

include a right of a person to be a Mutawalli after all, it is

the Mutawalli who does the job of administering and

managing the Waqf.”

36. We are of the view that the facts of the present case are

different. In the present case dispute is with regard to the

office of Sajjadanashin. In the said case, the dispute was

with regard to the appointment of Mutawalli and in the said

case Waqf Board exercise the jurisdiction conferred under

Section 32(2)(g) of the Act.

37. In the case of Harshad Chiman Lal Modi Vs. DLF Universal

Ltd. & Anr. (Supra), this Court has held in para 30 and 32

as under:

SLP (C) Nos. 10706-10709 of 2025 Page 56 of 60

“30. We are unable to uphold the contention. The

jurisdiction of a court may be classified into several

categories. The important categories are (i) territorial or

local jurisdiction; (ii) pecuniary jurisdiction; and (iii)

jurisdiction over the subject-matter. So far as territorial

and pecuniary jurisdictions are concerned, objection to

such jurisdiction has to be taken at the earliest possible

opportunity and in any case at or before settlement of

issues. The law is well settled on the point that if such

objection is not taken at the earliest, it cannot be allowed

to be taken at a subsequent stage. Jurisdiction as to

subject-matter, however, is totally distinct and stands on

a different footing. Where a court has no jurisdiction over

the subject-matter of the suit by reason of any limitation

imposed by statute, charter or commission, it cannot take

up the cause or matter. An order passed by a court having

no jurisdiction is a nullity.

………………………………..

32. In Bahrein Petroleum Co. [(1966) 1 SCR 461 : AIR

1966 SC 634] this Court also held that neither consent nor

waiver nor acquiescence can confer jurisdiction upon a

court, otherwise incompetent to try the suit. It is well

settled and needs no authority that “where a court takes

upon itself to exercise a jurisdiction it does not possess,

its decision amounts to nothing”. A decree passed by a

court having no jurisdiction is non est and its invalidity

can be set up whenever it is sought to be enforced as a

foundation for a right, even at the stage of execution or in

collateral proceedings. A decree passed by a court

without jurisdiction is a coram non judice.”

38. We cannot dispute the proposition of law laid down by this

Court in the aforesaid decision, however, in view of the

discussion made by us in the foregoing paragraphs and

looking to the facts of the present case, the aforesaid

decision would not be applicable to the present case.

SLP (C) Nos. 10706-10709 of 2025 Page 57 of 60

39. In the case of Aliya Thammuda Beethathebiyyappura

Pookoya & Anr. Vs. Pattakal Cheriyakoya & Ors. (Supra) this

Court has held in paragraph 43 as under:

“43. Thus, we may conclude that while no person can

claim the office of mutawalli merely by virtue of being an

heir of the waqif or the original mutawalli, if they can

show through a long-established usage or custom that the

founder intended that the office should devolve through

hereditary succession, such usage or custom should be

followed. Additionally, the practice would have to comply

with the requirements which are generally applicable

while proving a custom i.e. it must be specifically pleaded,

and should be ancient, certain, invariable, not opposed to

public policy, and must be proved through clear and

unambiguous evidence.”

40. We are of the view that the High Court has not gone into the

merits of the case and decree rendered by the Trial Court

which has been affirmed by the First Appellate Court, has

been set aside only on the ground that the same is nullity as

the Civil Court has no jurisdiction and, therefore, when the

High Court has not gone into the aforesaid aspects, the

learned counsel for the respondent No. 1 has wrongly placed

reliance upon the aforesaid decision contending the facts of

the case on merits before this Court.

41. It is also pertinent to mention at this stage that the civil suit

has been filed by the contesting respondents/plaintiff before

SLP (C) Nos. 10706-10709 of 2025 Page 58 of 60

the Civil Court in the year 1988 and the proceedings

remained pending before various Courts for a period of 37

years and, therefore, at this belated stage, it would not be

proper to relegate the party to the Waqf Board to decide the

issue raised in the present proceedings.

42. In view of the aforesaid discussion our answer to the

questions posed before us are as under:

A. The office of the mutawalli and Sajjadanashin cannot

be said to be one and the same in view of the aforesaid

discussion. Sajjadanashin of a Waqf can also

discharge the function of its Mutawalli, if appointed

under Section 32(2)(g) of the Act of 1995, however,

Mutawalli under Section 32(2)(g) cannot function as a

Sajjadanashin but can only perform the duties as

prescribed under the Act and the Rules.

Sajjadanashin is the spiritual head of Waqf and

declaration of Sajjadanashin is a religious affair,

however, role of Mutawalli of a Waqf only pertains to

the administration and management of the Waqf.

B. In the present case issue is with regard to the

appointment of Sajjadanashin of a suit Dargah and

not with regard to the appointment of Mutawalli.

SLP (C) Nos. 10706-10709 of 2025 Page 59 of 60

Hence, the Civil Court has jurisdiction to decide the

issue involved in the present matter.

C. High Court has committed grave error in quashing

and setting aside the decree passed by the Trial Court

in favour of the petitioner and also the orders passed

by the First Appellate Court by holding that the same

are nullity as the Civil Court has no jurisdiction to

entertain the dispute involved in the present matter.

43. It is required to be observed that the High Court has not

dealt with the merits of the case and decided the issue with

regard to the jurisdiction of the Civil Court and ultimately

quash and set aside the decree of the Trial Court as well as

the judgment of the First Appellate Court on the aforesaid

ground by holding that the same are nullity. Thus, in view

of the aforesaid discussion the impugned judgment and

order rendered by the High Court in Regular Second Appeal

(RSA) Nos. 1004, 1064, 1069, and 1141 of 2023 is hereby

quash and set aside. The judgment and decree dated

20.12.2019 passed by the Addl. Civil Judge & JMFC,

Channapatna in O.S. NO. 92/1988 as well as the judgment

and decree dtd. 27.02.2023 passed by the Senior Civil Judge

and JMFC, Channapatna passed in R.A. NO. 16/2020 stand

SLP (C) Nos. 10706-10709 of 2025 Page 60 of 60

restored. However, as the High Court has not decided the

issue on merits, we remit the matter back to the High Court

to decide the case of the parties on its own merits in

accordance with law except the issue of jurisdiction as

decided by us in this appeal. Further, as the dispute

between the parties is pending since the year 1988, we

request the High Court to expedite the hearing and make an

endeavour to decide the matter as early as possible

preferably within a period of 09 months.

44. Accordingly, the appeals are partly allowed to the aforesaid

extent.

45. Pending application(s), if any, stand disposed of.

.......……….…………………….J.

[M.M. SUNDRESH]

..….....………………………….J.

[VIPUL M. PANCHOLI]

NEW DELHI,

02

nd

April, 2026