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The Board of Muslim Wakfs for Rajasthan, Jaipur Vs. Bhanwar Chand and ors. - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies;Property
CourtRajasthan High Court
Decided On
Case NumberCivil Special Appeal No. 8 of 1970
Judge
Reported inAIR1981Raj98; 1980()WLN344
ActsWakf Act, 1954 - Sections 5, 5(2), 6, 57, 57(1) and 57(3); Code of Civil Procedure (CPC) - Sections 151
AppellantThe Board of Muslim Wakfs for Rajasthan, Jaipur
RespondentBhanwar Chand and ors.
Appellant Advocate Ahmed Bux Sindhi, Adv.
Respondent Advocate Hasti Mal Parekh, Adv.
DispositionAppeal dismissed
Cases ReferredRajasthan v. Radhakishan
Excerpt:
.....published under section 5(2) does not bind respondents--no question relating to title to wakf property was involved in suit.;merely the list published under sub-section (2) of section 5 of the act does not bind the respondents whose title has been declared in respect of the property. on the basis of the list published under sub-section (2) of section 5 of the act, it cannot be said that the suit which was instituted by the respondents was limited to a title to the wakf property out of which the second appeal arose and which was disposed of without notice under sub-section (1) of section 57 of the act. we are firmly of the opinion that it cannot be said that any question relating to the title to the wakf property was involved in the suit.;(c) words & phrases - words..........any notice to the board of muslim wakfs for rajasthan, as the proceedings related to a title to a wakf property. the learned single judge, by his judgment dated december 9, 1969 dismissed the application holding that it would be open to the board to file a suit in the civil court if competent jurisdiction for the decision of the question whether the nohara in question is a wakf property? feeling dissatisfied with the judgment dismissing the application dated september 8, 1969, the board has come up in appeal as aforesaid.5. a preliminary objection regarding maintainability of this appeal for want of leave of the court as contemplated by section 18 (2) of the rajasthan high court ordinance, 1949, was raised by the respondents on the ground that the judgment dated december 9, 1969,.....
Judgment:

S.K. Mal Lodha, J.

1. Against the judgment dated December 9, 1969, of a learned single Judge of this Court, the appellant (the Board of Muslim Wakfs for Rajasthan, Jaipur) has filed this appeal under Section 18 (1) of the Rajasthan High Court Ordinance, 1949, passed in S. B. Civil Misc. Application No. 107 of 1969 refusing to declare the decree dated July 9, 1969, passed in S. B. Civil Second Appeal No. 602 of 1963, as void.

2. A few facts leading to the filing of this appeal may briefly be recounted here :

3. The respondents Bhanwar Chand, Padam Chand and Moolchand as trustees of Khatargach sect instituted a suit in the Court of Civil Judge, Nagaur on March 20, 1958, for declaration of title to, and possession of, a 'nohara', described in para No. 3 of the plaint against for Ayub, Hafiz, Kasam and others as managers of Masjid Khari, situated in Mohalla Teliwada, Nagaur alleging that the Nohra belongs to the Khattargach sect of Nagaur, on which the defendants had taken unlawful possession. The defendants contested the suit, inter alia, on the ground that the Nohra in dispute belonged to the Masjid and was under its possession for more than 60 years. The learned Civil Judge, by his judgment and decree dated July 31, 1962, decreed the suit of the plaintiffs. An appeal was taken before the District Judge, Merta by the managers of the Masjid (mosque), who by his judgment dated November 30, 1963 dismissed the same. A second appeal was preferred, which was registered as S. B. Civil Second Appeal No. 602 of 1963, and the same was dismissed by a learned single Judge of this Court vide judgment dated July 9, 1969.

4. After the decision of the second appeal by the learned single Judge of this Court, the Board of Muslim Wakfs for Rajasthan (hereinafter referred to as the Board) through its Chairman Shri Allahnoor Chowdhary filed an application on September 8, 1969, under Section 57(3) of the Wakf Act, 1954, (for short 'the Act' hereafter) read with Section 151 C. P. C. and prayed that the decree passed in S. B. Civil Appeal No. 602 of 1963, be declared void, as it was passed without any notice to the Board of Muslim Wakfs for Rajasthan, as the proceedings related to a title to a wakf property. The learned single Judge, by his judgment dated December 9, 1969 dismissed the application holding that it would be open to the Board to file a suit in the Civil Court if competent jurisdiction for the decision of the question whether the Nohara in question is a Wakf property? Feeling dissatisfied with the judgment dismissing the application dated September 8, 1969, the Board has come up in appeal as aforesaid.

5. A preliminary objection regarding maintainability of this appeal for want of leave of the Court as contemplated by Section 18 (2) of the Rajasthan High Court Ordinance, 1949, was raised by the respondents on the ground that the judgment dated December 9, 1969, appealed against, was passed in a civil miscellaneous petition No. 107 of 1969, but it arose out of S. B. Civil Second Appeal No. 602 of 1963. This Court repelled the preliminary objection vide order dated January 25, 1977.

6. We have heard Mr. Ahmed Bux Sindhi, learned counsel for the appellant and Mr. Hasti Mal Parekh, learned counsel for the respondents.

7. Learned counsel for the appellant strenuously contended that the learned single Judge was in error when he dismissed the application of the appellant under Section 57 (3) of the Act thereby refusing to declare void the decree, which was confirmed in second appeal vide judgment dated July 9, 1969. He submitted that the suit out of which the second appeal arose and which was decided on July 9, 1969, related to the title of the Wakf property and, therefore, in the absence of notice under Section 57 (1) of the Act, the decree passed should have been declared void and it was not open to the learned single Judge to adjudicate the question whether the property in question is a Wakf property or not. It was pressed for our consideration that the learned single Judge has observed in his judgment under appeal that no other evidence worth the name was put on the record to enable him to come to the conclusion that the appellant had established even prima facie that the property in question is a Wakf property. According to the learned counsel, this amounted to hold that the property in question is not a Wakf property, still the learned single Judge directed the Board to file a suit in the Civil Court of competent jurisdiction for the decision of the question whether the property (Nohra) in question is a Wakf property or not.

8. On the other hand, Mr. Hasti Mal Parekh, learned counsel for the respondents supported the judgment of the learned Single Judge and submitted that the application under Section 57 (3) of the Act was rightly dismissed, for, the suit out of which the appeal arose did not relate to the title to the Wakf property. We have bestowed our most anxious and thoughtful consideration to the rival contentions raised by the learned counsel for the parties.

9. The Commissioner of Wakfs was appointed under Section 4 of the Act on October 18, 1957. The Wakfs Board was constituted on August 6, 1962. The suit was filed by the respondents against Ayub and four others on Mar. 20. 1958. The trial Court decreed the suit for declaration and possession on July 31, 1962.The first appeal preferred by the defendants on August 28, 1962 was dismissed on November 30, 1963. Thereafter, this Court dismissed the second appeal on July 9, 1969. According to the appellant, Mutawallis informed the Board on September 2, 1969, and thereafter, an application under Section 57 (3) of the Act was filed on September 8, 1969. Para No. 3 of the application under Section 57 (3) of the Act read with Section 151 of the Civil P. C. is as under:--

'That one of the Mutawallis of the said mosque informed the petitioner for the first time of the decree and judgment (passed by this Hon'ble Court on 9-7-1969) as well as the pleadings of the parties on 2-9-1969. Original application dated 2-9-1969 and the pleading (Exts. D & E). The said information (application) is marked as Ex. F alongwith the orders of the Chairman of the Wakf Board is submitted herewith'.

The learned Single Judge, having regard to the circumstances that led to the filing of the application under Section 57 (3) of the Act did not believe the plea of the Board that it came to know of the suit or proceedings out of which the application under Section 57 (3) of the Act arose only within one month of making of the application.

At the risk of repetition, it may be stated that the application under Section 57 (3) of the Act was presented on September 8, 1969. The respondents (plaintiffs) instituted the suit against Ayub, Hafiz, Kasam, Jahoor Mohammed and Ramzanbux in their capacity as Mutawallis of the Masjid Khari situated in Mohalla Teliwara, Nagaur. The first appeal was brought by the trustees of the Masjid Khari. According to Section 57 (3) of the Act, the application has to be made within one month of the date of the knowledge of the suit or proceedings, in which, decree or order which is sought to be declared void is passed. The first appeal was filed on August 28, 1962. The Board had already been constituted on August 6, 1962. The first appeal was dismissed on November 30, 1963. The second appeal was lodged on December 9, 1963 and it was decided on July 9, 1969. The suit was contested by the defendants (Ayub and 4 others) in their capacity as trustees of the Masjid Khari. After the decision of the suit, the defendants in that capacity filed the first appeal. The Board had come into existence prior to the filing of the first appeal, which was decided on November 30, 1963. The application under Section 57 (3) of the Act is conspicuously silent on the question whether the Board had any knowledge about the filing of the first appeal or its decision. The learned single Judge was right when he held that it is difficult to believe that the Board came to know of the suit or proceedings only on September 2, 1969. The Mutawallis of the Masjid Khari were defendants in the suit. They were appellants in the first appeal and the second appeal. One of them, as appears from para No. 3 of the application under Section 57 (3) of the Act informed the Board about the judgment and decree passed by this Court on July 9, 1969. We find it extremely difficult to believe that for a period of about 7 years, the Board was not apprised of the suit for declaration and possession, until September 2, 1969 and when the Mutawallis of the Masjid Khari had filed the second appeal and took chance of the decision in their favour.

10. In Commissioner of Wakfs, West Bengal v. Smt. Ayesa Bibi, AIR 1966 Cal 68, while considering Section 70 of the West Bengal Wakf Act (No. 13 of 1934), a learned single Judge of the Calcutta High Court held that the language of Section 70 (1) was imperative and the Court could not be exonerated from the statutory obligation imposed upon it and that any decree or order which was made without notice under Section 70 (1) should be declared void by the Court as it has no other option. In that case, a title suit was filed by the plaintiffs for declaration that the Wakf deed was illegal, invalid, inoperative and void and not binding on the plaintiffs. It appears from the report of that case, that the plaintiff and three other defendants who were closely related had themselves, for a long number of years, accepted the Wakf and two of them had in fact acted as Mutawallis. The Commissioner of Wakf was the fourth defendant. The plaintiff and three other defendants submitted a compromise petition in Court on May 15, 1958. The Commissioner was not, however, served with a copy of the petition. The Commissioner continued to contest the suit and had also filed documents to support the written statement earlier filed by him in which it was stated that wakf was treated as Wakf for over 40 years. Thereafter, an application was moved on behalf of the plaintiffs for expunging the name of the Commissioner as party defendant and later, on the same date, a consent decree was passed but no notice under Section 70 (1) was served on the Commissioner. In those facts, it was observed as under:

'The knowledge of the Commissioner aliunde or independently was not enough to exonerate the Court from its obligation to issue a notice under Section 70 (1) of the Bengal Wakf Act.'

Commissioner of Wakf's case is wholly distinguishable and is of no assistance.

11. The next authority on which the reliance was placed by the learned counsel for the appellant is State Wakf Board, Madras v. Abdul Azeez Sahib, AIR 1968 Mad 79. In that case, the dispute related to a Wakf known as Rustom Saheed Durga Wakf. The Wakf was included in the list of Wakfs published by the Wakf Board. The suits were filed for recovery of possession of two properties. The actions were resisted by the Durga on the ground that these were properties of the Durga in which the plaintiff had no right whatsoever. The suits were dismissed by the trial Court. The appeals were allowed thereby declaring the title of the plaintiff and his right to possession. Second Appeals were decided in favour of the plaintiff and were dismissed on January 25. 1956. The Act received the assent of the President on May 21, 1954. There was a period of an interregnum, when no Wakf Board under the Act was constituted in Madras State; but ultimately such a Board was constituted on February 1. 1958. Subsequently, a suit was instituted on behalf of the Durga for a declaration that the decrees in the two previous suits in the first appellate court and in second appeals in that Court, which allowed and established the claim of the plaintiff to the suit properties and his right to possession were really fraudulent and collusive decrees obtained by collusion between the plaintiff and the then representative of the Durga. The suit instituted by the Durga was dismissed. The first appeal was also dismissed. The second appeal was also disposed of by a learned single Judge and it was dismissed on April 2, 1964. On June 6, 1964, the Secretary of the State Wakf Board received a letter from one L.N. Gulam Mohamed, pointing out the above fact, and equally stressing that the Wakf Board ought to have been made a party at least to the subsequent litigation which came into existence after the Board was constituted, and that the interests of the endowment have suffered because the statute was not complied with in this regard. On this letter on July 6, 1964, namely, within the period of one month specified as the period of limitation in Section 57 (3), the Wakf Board filed an application under Section 57 (3) of the Act. In those facts, it was held as under:

'As a principle of law, it cannot be maintained that any kind of knowledge or information, furnished to some officer of a corporate body entity in any context whatever, can be fixed with the character of the knowledge or notice of the concerned corporate entity.'

This decision was also rendered in different facts and circumstances and is of no assistance.

12. We, therefore, affirm the conclusion of the learned single Judge that the plea of the Board that it came to know of the suit or proceedings out of which the application arose only within one month of its making has no force.

13. This, however, does not conclude the matter. The question that remains for our consideration is whether the learned single Judge was right in dismissing the application under Section 57 (3) of the Act on merits on the ground on which he did. In this connection, it is necessary to notice some of the sections which are having bearing on the question. Chapter II of the Act deals with survey of Wakfs, It contains Sections 4, 5, 6, 7 and 8. Section 4 deals with preliminary survey of wakfs. Section 5 (1) provides that on receipt of a report under Section 4 (3), the State Government shall forward a copy of the same to the Board. It has been enjoined on the Board under Section 5 (2) to examine the report and to publish in the Official Gazette a list of Wakfs (existing in the State, or as the case may be, the part of the State to which the report relates) containing such particulars as may be prescribed. The material portion of Section 6 reads as under:

'6. Disputes regarding Wakfs: (1) If any question arises (whether a particular property specified as Wakf property in a list of Wakfs published under Sub-section (2) of Section 5 is Wakf property or not or whether a Wakf specified in such list is a Shia Wakf or Sunni Wakf) the Board or the Mutawalli of the Wakf or any person interested therein may institute a suit in a Civil Court of competent jurisdiction for the decision of the question and the decision of the Civil Court in respect of such matter shall be final:

Provided that no such suit shall be entertained by the Civil Court after the expiry of one year from the date of the publication of the list of Wakfs under Sub-section (2) of Section 5.

Provided... ...

(2) & (3) ......

(4) The list of Wakfs published under Sub-section (2) of Section 5 shall, unless it is modified in pursuance of a decision of the Civil Court under Sub-section (1) be final and conclusive.'

Chapter IV deals with registration of Wakfs. Section 25 provides for registration and Section 26 makes it incumbent on the Board to maintain a register of Wakfs containing the particulars mentioned therein. Section 27 of the Act is as under:

'27. Decision if a property is Wakf property:

(1) The Board may itself 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 after making such inquiry as it may dean fit, decide the question.

(2) The decision of the Board on any question under Sub-section (1) shall, unless revoked or modified by a civil court of competent jurisdiction be final.'

Section 57 finds place in Chapter VII and it deals with judicial proceedings. Section 57 of the Act is as follows:

'57. Notice of suits, etc., by courts:-- (1) In every suit or proceeding relating to a title to Wakf property or the right of a Mutawalli, the court shall issue notice to the Board at the cost of the party instituting such suit or proceeding.

(2) Whenever any Wakf property is notified for sale in execution of a decree of a Civil Court or for the recovery of any revenue, cess, rates or taxes due to the Government or any local authority, notice shall be given to the Board by the Court, Collector or other person under whose order the sale is notified.

(3) In the absence of a notice under Sub-section (1), any decree or order passed in the suit or proceeding shall be declared void, if the Board, within one month of its coming to know of such suit or proceeding, applies to the court in this behalf.

(4) In the absence of a notice under Sub-section (2), the sale shall be declared void, if the Board, within one month of its coming to know of the sale, applies in this behalf to the court or other authority under whose order the sale was held.'

14. A Division Bench of this Court, while considering the preliminary objections regarding maintainability of the Special Appeal for want of leave of the Court as contemplated by Section 18 (2) of the Rajasthan High Court Ordinance, 1949 and Section 57 of the Act, in this special appeal observed as under:

'A close reading of the above quoted sections reveals that in every suit or proceeding relating to a title to wakf property the Court is bound to issue a notice to the Board at the cost of the party instituting such suit or proceeding. An application under Section 57 (3) is required to be filed by a third party who was not a party to the proceedings and the relief which the Court on such an application can grant is to declare the decree or order in that suit or proceeding as void. The Court is not required to rejudge the merits of the case, and set aside the decree or modify it. The impugned order in this case was made in a proceeding started under the Act and as such the qualification for a right to appeal imposed by Section 18 (2) of the Ordinance need not be satisfied. Section 57 (3) of the Act vests a special jurisdiction on the concerned court to declare the decree void. It gives an additional right to the Wakf Board to get a decree or order declared void by making an application which otherwise in the absence of Section 57 (3) of the Act could not have been done unless the Board would have filed a suit for declaration of such a decree or order as void. The concerned court exercising the powers under Section 57 (3) of the Act exercises original jurisdiction.'

It may be mentioned here that the learned counsel for the appellant has placed strong reliance on these observations in support of his contention. We may hasten to add that the above observations, read in the context, in whichthey were made do not help in answering the question with which we are concerned in this appeal viz. whether the Court was required to give notice to the Board of the suit or proceedings under Section 57 (1) of the Act. According to the above observations, a third party, who was not a party to the proceedings can make an application under Section 57 (3) of the Act for granting the relief that the decree or order in the suit or proceedings may be declared void and that the Court seized of the application is not required to re-judge the merits of the case with an object to set aside the decree or modify it.

15. The expression 'relating to' used in Section 57 (1) of the Act was examined in State Wakf Board, Madras case (AIR 1968 Mad 79) (2) In that case, it was held that a suit for a declaration that the decree in certain previous suits which allowed and established the claim of the plaintiff to the suit properties and his right to possession were really fraudulent and collusive decrees, obtained by collusion between the plaintiff and the then representative of the defendant Durga has to be interpreted as within the scope of the words employed in Section 57 (1), namely 'In every suit or proceeding relating to title to wakf property.' There is ample judicial authority for the view that such words as 'relating to' or 'in relation to' are words of comprehensiveness which might both have a direct significance as well as an indirect significance, depending on the context. They are not words of restrictive context and ought not to be so construed. In para 9 of the report, it was observed as under:

'If allowance of the claim in the second suit would necessarily have consequences upon the declaration of title to the property claimed as Wakf property in the earlier suit, it is also a suit or proceeding 'relating to the Wakf property'. The fact that two steps have to be taken to arrive at this inference instead of one direct step, cannot make any essential difference,' State Wakf Board, Madras' decision was given in the peculiar facts of that case and is of no assistance.

16. The learned Judge has relied on Radhakishan v. State, AIR 1967 Raj 1, wherein, it was held that if a person is a non-Muslim, whether he be a Christian, a Hindu, a Sikh, a Parsi or of any other religious denomination and if he is in possession of a certain property, his right, title or interest cannot be put in jeopardy simply because that property is included in the list published under Section 5 (2) of the Act. It was further observed that if a dispute is raised by a non-Muslim the Board cannot by simply entering the property in the register of Wakfs drive him to take recourse to Civil Court. An appeal by certificate was directed against this judgment and the Supreme Court in Muslim Wakfs Board, Rajasthan v. Radhakishan, AIR 1979 SC 289 observed as under:

'The making of such an enquiry is a necessary concomitant of the power to survey. The High Court was clearly in error in observing;

'Except Sub-section (5) there is nothing in Section 4 or in the Rules made by the State to, show that the Commissioner is empowered to adjudicate on a question if one arises, whether a particular property is a wakf property or not.'

However, the Supreme Court expressed its agreement with the reasoning of the Court in Radhakishan's case and, observed as under:

'It follows that where a stranger who is non-Muslim and is in possession of a certain property, his right, title and interest therein cannot be put in jeopardy merely because the property is included in the list. Such a person is not required to file a suit for a declaration of his title within a period of one year. The special rule of limitation laid down in proviso to Sub-section (1) of Section 6 is not applicable to him. In other words, the list published by the Board of Wakfs under Sub-section (2) of Section 5 can be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises.' As regards Section 27 of the Act, after considering the observations made by this Court, their Lordships of the Supreme Court held that the High Court was clearly in error in dealing with Section 27 or Section 368 of the Act and the conclusion reached by their Lordships of the Supreme Court was that the list published under Section 5 (2) will not bind a stranger who is in possession of the property merely because he happens to be a person affected by the publication of the list of wakfs. In the case before us, the question is whether under Section 57 (1) of the Act, the Court was required to issue notice to the Board as the suit or proceedings related to the title to the Wakf property. In the second appeal, the decree passed by the Courts below regarding declaration and possession was maintained. The material reliefs claimed in the plaint were these:

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The defence of the defendants (Mutawallis) was that the land in question has been in possession of Masjid Khari since generations and they have been renting it out and that the possession of the Masjid has ripened in the ownership on account of adverse possession. The defence raised by the defendants (Mutawallis) was not found to be correct and the property was declared to be of the ownership of the plaintiffs in the suit. Merely the list published under Section 5 (2) of the Act does not bind the respondents whose title has been declared in respect of the property. On the basis of the list published under Section 5 (2) of the Act, it cannot be said that the suit, which was instituted by the respondents was limited to a title to the Wakf property, out of which, the second appeal arose and which was disposed of without notice under Section 57 (1) of the Act. We are firmly of the opinion that it cannot be said that any question relating to the title to the Wakf property was involved in the suit, and, therefore, the learned single Judge was right in not declaring the decree dated July 9, 1969 passed in S. B. Civil Second Appeal No. 602 of 1969 as void.

17. In this view of the matter, the application under Section 57 (3) of the Act was rightly dismissed.

18. The result is that this appeal has no force and it is, accordingly, dismissed without any order as to costs.


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