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Cheedella Kotaiah Vs. Wakf Board, Andhra Pradesh, Hyderabad and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtAndhra Pradesh High Court
Decided On
Case NumberAppeal No. 415 of 1974
Judge
Reported inAIR1978AP34
ActsWakf Act, 1954 - Sections 4(3), 5, 6 and 6(1)
AppellantCheedella Kotaiah
RespondentWakf Board, Andhra Pradesh, Hyderabad and ors.
Appellant AdvocateJ. Eswara Prasad, Adv.
Respondent AdvocateK.F. Baba, Adv.
Excerpt:
.....not valid - plaintiff contended that a notification under section 5 had been made to effect that suit properties are properties granted to mosque and no suit has been filed questioning said notification - right to file a suit is confined only to board or 'mutawalli' or persons interested in 'wakf' and appellant is not a person interested in 'wakf' as he does not belong to categories of persons referred in section 3 (h) - appellants purchased said property in 1958 long before enquiry and publication of list of 'wakfs' under section 5 - appellant is not bound by said list and it is open to him to contend that said property is not 'wakf' property which eventually he could not establish - held, suit was rightly decreed. - - b-1 did form part of the properties comprised in inam tile..........deed ex b-1 dated 16-8-1958 from four muslim gentlemen. the suit o. s. 72 of 1971 was filed by the wakf board, andhra pradesh, for recovery of possession of several items of land from a number of defendants including the 7th defendant. the case of the plaintiff was that all these properties belonged to a mosque called macca maszid mosque at kandukur. the alienation of several items belonging to the mosque in favour of the defendant was not valid and that the wakf board is entitled to recover possession of the said properties.2. the appellant denied that the suit properties were endowed in favour of the mosque.3. in the court below it was contended on behalf of the plaintiff that a notification had been made under s. 5 of the wakf act to the effect that the suit properties are properties.....
Judgment:

Alladi Kuppuswami, J.

1. The 7th defendant in O. S. 72 of 1971 on the file of the Subordinate Judge's Court, Kandukur, is the appellant herein. He purchased an extent of Ac. 4. 50 Cents in Survey No. 1655 in Anandapuram Village under a sale deed Ex B-1 dated 16-8-1958 from four Muslim gentlemen. The suit O. S. 72 of 1971 was filed by the Wakf Board, Andhra Pradesh, for recovery of possession of several items of land from a number of defendants including the 7th defendant. The case of the plaintiff was that all these properties belonged to a mosque called Macca Maszid Mosque at Kandukur. The alienation of several items belonging to the Mosque in favour of the defendant was not valid and that the Wakf Board is entitled to recover possession of the said properties.

2. The appellant denied that the suit properties were endowed in favour of the Mosque.

3. In the Court below it was contended on behalf of the plaintiff that a notification had been made under S. 5 of the Wakf Act to the effect that the suit properties are properties granted to the Macca Maszid Mosque and as no suit has been filed questioning the notification, the notification became final and cannot be questioned by the defendants in the suit. It was further contended that even on the merits the property was wakf property having been granted to the Mosque.

4. The Court below framed several issues, but we do not find an issue relating to the finality of the notification made under the Wakf Act. However, this question was considered while considering issues 1 to 3 viz., whether the suit properties were endowed for the up-keep and performance of Muthavalli service in Macca Maszid. The learned Subordinate Judge appears to have been of the view that the defendants were bound by that notification as they had not filed a suit under S. 6 of the Wakf Act. Sri Eswara Prasad, the learned Counsel for the appellant, submitted that S. 6 had no application to the facts of the case as the 7th defendant was a stranger to the wakf and he was not bound by any enquiry conducted or any notification made under that Act. To appreciate this contention it is necessary to set out the relavant section of Wakf Act. Section 4 provides for the appointment of a Commissioner of Wakfs. Under Section 4 (3) the Commissioner shall after making such enquiry as he may consider necessary submit his report to the State Government containing particulars viz., :

(a) the number of wakfs in the State, showing the Shia Wakfs and Sunni Wakfs seperately;

(b) the nature and objects of each wakf;

(c) the gross income of the property comprised in each wakf;

(d) the amount of land revenue, cesses, rates and taxes payable in respect of such property;

(e) the expenses incurred in the realisation of the income and the pay or other remuneration of the mutawalli of each wakf; and

(f) such other particulars relating to each wakf as may be prescribed.

Section 4(5) provides that if, during any such inquiry, any dispute arises as to whether a particular wakf is a Shia Wakf or Sunni Wakf and there are clear indications in the deed of Wakf as to its nature, the dispute shall be decided on the basis of such deed. Section 5 provides for publishing in the Official Gazette a list of Wakfs existing in the State containing particulars of the Wakfs after receipt of a report of the Commissioner under Section 4(3). Section 6 is in the following terms :

' 6 (1) If any question arises whether a particular property is wakf property or not or whether a wakf is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a civil court of competent jurisdiction for the decision of the question and the decision of the civil court in respect of such matter shall be final ;

Provided that no such suit shall be entertained by the civil court after the expiry of one year from the date of publication of the lists of wakfs under sub-section (2) of Section 5.

xx xx xx

(4) The list of wakfs published under sub-s. (2) of S. 5 shall unless it is modified in pursuance of a decision of the civil court under sub-section (1), be final and conclusive.'

5. It is seen from a perusal of S. 4 that the enquiry by the Commissioner is confined only to the matters referred to in that section. These matters relate to the number of wakfs, the nature and object of wakf etc. The Commissioner is not invested with any jurisdiction to enquire into the question whether the particular property is wakf property or not Under sub-sec. (5) he is authorised to decide a dispute as to whether a particular wakf is a Shia wakf or Sunni wakf. But there is no provision anywhere in S. 4 which deals with the enquiry by the Commissioner in regard to question whether the property is a wakf property at all. It is no doubt true that such a power is vested in the Board under S. 27 of the Act. The Board may collect information regarding any property which it has reason to believe to be wakf property and if any question arises whether a particular property is wakf property or not or whether a wakf is a Sunni wakf or a Shia wakf, it may decide the question. Under Section 27(2) of the Act the decision of the Board shall, unless revoked or modified by a Civil Court of competent jurisdiction be final. In this case there does not appear to be any enquiry by the Board itself or a decision by the Board that the suit properties are wakf properties. Hence, S. 27 has no application. Even in such a case S. 27 has no application. Even in such a case S. 27 contemplates that the decision of the Board can be questioned in a civil suit and there is no provision similar to S. 6 proviso requiring that a civil suit should be filed within one year from the date of the publication of the list.

6. Section 6 of the Act no doubt starts by saying that if any question arises whether a particular property is wakf property or not or whether a wakf is a Sunni wakf or a Shia wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a civil court of competent jurisdiction for the decision of the question. But it is seen that the right to file a suit is conferred under this section on the Board or the mutawalli or any person interested in the wakf. The expression 'person interested in a wakf ' is defined under S. 3(h) of the Act as meaning any person who is entitled to receive any pecuniary or other benefits from the wakfs and includes -

(i) any person who has a right to worship or to perform any religious right in a mosque, idgah, imambara, dargah etc.

(ii) the wakif and any descendant of the wakif and mutawalli

It cannot be said that the appellant is a person interested in the wakf as he does not belong to any of the categories of the persons referred to in S. 3(h) of the Act. The right to file a suit is confined only to the Board or the mutawalli or the persons interested in the wakf. As a consequence the finality of the list of wakfs published would only be as against such persons who are entitled to file a suit. Section 6 has therefore no application of all to an absolute stranger to a wakf. This view was taken by the Rajasthan High Court in Radhakishan v. State of Rajasthan, and this decision was followed by Chinnappa Reddy, J., in Parvathi Bai v. Wakf Board, (1969) 2 Andh WR 265. The learned Subordinate Judge was not right in distinguishing these decisions on the ground that the appellant had purchased the lands with his eyes open and he did not take shelter under the fact that he was a Hindu on the date when the list was published and they are exempted from the applicability of Ex. A-2 (the list of wakfs). We are unable to see the basis of this distinction. The defendant purchased the property in 1958 under Ex. B-1 long before the Commissioner made his enquiry and the list of wakfs was published under S. 5 of the Act. He was an absolute stranger to the wakf and he is not bound by the enquiry held under S. 4(3) nor was he entitled to file a suit under the proviso to S. 6. If the appellant had purchased the property subsequent to the notification from a person interested in the wakf, it would have been reasonably argued that if the person interested in the wakf, it would have been reasonably argued that if the person interested in the wakf did not file a suit within the prescribed time, he would be bound by the list published and the person who acquired the property from such a person would equally be bound. But that is not the case here. The appellant purchased the property in 1958 long before the enquiry and the publication of the list of wakfs. We are therefore of the view that the appellant is not bound by the list, Ex. A-2 published under S. 5 of the Act and it is open to him to contend that the property is not wakf property.

7. This leads us to the question whether on the merits the plaintiff had succeeded in establishing that the property is wakf property. The plaintiff relied upon Ex. A-1 the Inam Fair Register which referred to certain properties granted for the purpose of service being performed in the Macca Maszid. The defendant contended that survy No. 1655 a part of which was purchased by him under Ex. B-1 does not find a place in the Inam Fair Register, Ex. A-1 and hence it cannot be held that it was granted to the Mosque for purpose of services. It is no doubt true that survey No. 1655 is not found in Ex. A-1 and the plaintiff also did not lead any evidence to correlate survey No. 1655 with the Survey Numbers mentioned in Ex. A-1. But it is clear from a perusal of the very sale deed Ex. B-1 under which the appellant purchased the suit lands, which formed part of the inam in favour of the Mosque, that the schedule to the sale deed describes the property as being part of Survey No. 1655 comprised in inam title deed 2009. This number of inam title deed is mentioned in the Inam Fair Register. Hence, there can be no doubt that the property purchased by the appellant under Ex. B-1 did form part of the properties comprised in Inam Tile Deed 2009. It is well known that the inam enquiry was held some time in 1860 and the survey numbers would have been changed. It is possible therefore that the properties comprised in the Inam Title Deed had a different Survey No. at that time and subsequently came to bear Survey No. 1655. In view of the recitals in the document of title of the appellant himself the Court below was right in holding that the property which he purchased was comprised on the property which was granted to the Mosque and mentioned in Ex. A-1, the Inam Fair Register. The suit was therefore rightly decreed.

8. In the result the appeal is dismissed, but in the circumstances without costs.

9. Appeal dismissed.


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