Karnataka High Court
Sayed Idrus Darga Trust vs Dattatraya Hanamant Bidikar on 21 November, 2022
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
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W.P. No.68084 of 2011
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 21ST DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR JUSTICE N.S.SANJAY GOWDA
WRIT PETITION NO. 68084 OF 2011 (GM-WAKF)
BETWEEN:
1. SAYED IDRUS DARGA TRUST,
KALAIGAR GALLI, BELGAUM.
2. THE CHIEF EXECUTIVE OFFICER,
THE KARNATAKA STATE BOARD OF WAKFS,
"DARUL AWAKAF" 6, CUNNINGHAM ROAD,
BANGALORE.
3. THE SECRETARY-CUM-AUDITOR
(WAKF OFFICER), DISTRICT WAKF ADVISORY
COMMITTEE, OPP: D. C. COMPOUND, BELGAUM.
... PETITIONERS
(BY SRI. RAMESH N.MISALE, ADVOCATE FOR P1;
SRI. B. MUHAMMED ALI ADVOCATE FOR R2 & P3;
SRI. I.A. MULLA, ADVOCATE FOR P2)
AND:
1. DATTATRAYA HANAMANT BIDIKAR,
AGE: MAJOR, OCC: BUSINESS,
R/O. 105, TANAJI GALLI, BELGAUM,
SINCE DECEASED BY HIS L.RS. .
1(A) APARNA W/O. DATTATRYA BIDIKAR,
1(B) NITIN S/O. DATTATRAYA BIDIKAR,
1(C) MINAL W/O. VINOD CHOUGULE,
ALL ARE R/O: 3RD CROSS,
MAHADWAR ROAD, BELAGAVI.
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W.P. No.68084 of 2011
2. GAJANAN HANAMANT BIDIKAR,
AGE: MAJOR, OCC: BUSINESS,
R/O. 2532/1D1, SHRI. MANGALA LODGING,
FORT ROAD, BELGAUM.
3. MOHAMMAD YUNUS ABDULKHADAR KHANAPURI,
AGE: MAJOR, OCC: BUSINESS,
R/O. 1039, FORT ROAD, BELGAUM.
4. DILSHAD BEGUM W/O. IBRAHIM NASARDI,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O. AZAD COLONY, AMBOLI ROAD,
A/P. AJARA, DIST: KOLHAPUR.
5. BIBI HAZARA W/O. SHABBIRAHMED KHANAPURI,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O. H.NO. 3633/A1, KHANJAR GALLI, BELGAUM.
6. MANZOORAHMED S/O. SHABBIRAHMED KHANAPURI,
AGE: MAJOR, OCC: BUSINESS,
R/O. 3633/A1, KHANJAR GALLI, BELGAUM.
7. LUBNA D/O. SHABBIRAHMED KHANAPURI,
AGE: MAJOR, OCC: BUSINESS,
R/O. 3633/A1, KHANJAR GALLI, BELGAUM.
8. HEENA KAUSAR D/O. SHABBIRAHMED KHANAPURI,
AGE: MAJOR, OCC: BUSINESS,
R/O. 3633/A1, KHANJAR GALLI, BELGAUM.
9. SAMEENA D/O. SHABBIRAHMED KHANAPURI,
AGE: MAJOR, OCC: BUSINESS,
R/O. 3633/A1, KHANJAR GALLI, BELGAUM.
10. ABDULSAMAD MOHIDINSAHEB KHANAPURI,
AGE: MAJOR, OCC: RETIRED TEACHER,
R/O. PLOT NO. 4816/28A, SUBHASH NAGAR, BELGAUM.
... RESPONDENTS
(BY SRI. S.S. KULKARNI FOR V.P. KULKARNI, ADVOCATE FOR C/R1 & R2;
SRI. S.S. KULKNARI, ADVOCATE FOR R1(A) TO R1(C);
R3 TO R10 ARE SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF
THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE IMPUGNED
JUDGMENT ANNEXURE-H DATED 04/10/2011 PASSED BY THE
KARNATAKA WAKF TRIBUNAL, BELGAUM DIVISION, BELGAUM, VIDE
ANNEXURE-H.
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W.P. No.68084 of 2011
THIS PETITION COMING ON FOR ORDERS, THIS DAY, THE
COURT MADE THE FOLLOWING:
ORDER
1. The first petitioner, Sayed Idrus Dargah Trust along with the Administrator and the Secretary-cum- Auditor of the District Wakf Advisory Committee instituted a suit in O.S. No.919/1999 in which a declaration was sought that the sale deed dated 29.07.1980 executed in favour of the defendant Nos.1 to 3 were illegal, null and void and did not bind the plaintiffs. An injunction was also sought for to restrain the defendant Nos.1 to 3 from collecting the rents from defendant Nos.4 to 6.
2. The plaintiffs (hereinafter referred to as "the Trust") contended that the suit property bearing CTS No.1039, originally stood in the name of the Trust and was also registered under the Bombay Public Trust Act (for Short "the BPT Act"). It was stated that the name of the Trust was recorded in the Property Card maintained in the City Survey Office, Belagavi and by virtue of the enactment of the Wakf Act, the property which had been -4- W.P. No.68084 of 2011 registered under the BPT Act, were deemed to be registered under the Wakf Act.
3. It was contended that defendant Nos.1 to 3 had illegally purchased a property from one Shri Mohammadkhan Gouskhan Desai and for this purchase the prior permission of the Wakf Board had not been obtained.
4. It was contended that defendants were never in possession of the property. It was stated that originally the father of defendant Nos.4 to 6 was running a sawmill and they were now posing as a lessee in respect of a portion, which had been occupied by the deceased-father.
5. It was contended that the lease transaction of the father of defendant Nos.4 to 6 was itself illegal as no permission had been sought for from the Assistant Charity Commissioner.
6. It was stated that the possession of the defendant Nos.4 to 6 was illegal and they had no right to -5- W.P. No.68084 of 2011 pay the rents to the defendants and if any decree had been obtained between defendant Nos.1 to 3 and 4 to 6, the same was not binding on the Trust.
7. It was contended that the defendant Nos.4 to 6 were trying to construct a pakka building in the suit open space and defendant Nos.1 to 3 were trying to take possession of the suit open space and construct a pakka building and therefore, they were constrained to approach the Court.
8. This suit was contested by the defendants. Defendant Nos.2 and 3 contended that in the year 1952, Smt. Shahajadbi wife of Sayed Karimsab Sampgaonkar, had leased the property permanently and Mohammad Issaq Abdul Rehman Angolkar had sold the property to one Vinayak Gajananrao Deshpande in the year 1953 and the said Vinayak Gajananrao Deshpande had sold his rights to Shri Amirabi Gouskhan Desai in the year 1958 and the said Shri Mohammadkhan Gouskhan Desai had sold the property in favour of defendant Nos.1 to 3 in -6- W.P. No.68084 of 2011 1980 and their deceased-brother and ever since they were in actual possession.
9. They also contended that the suit would not be maintainable before the Civil Court and the matter ought to be determined only by the Wakf Tribunal.
10. The suit was subsequently transferred to the Wakf Tribunal and the Wakf Tribunal by the impugned order has proceeded to conduct a trial and has ultimately dismissed the suit and hence, the Trust is before this Court by way of this writ petition.
11. The principal contention advanced by Sri. Ramesh N.Misale and Sri. I.A. Mulla, learned counsel appearing for the petitioners, is that the lands in question were undoubtedly Wakfs properties and this was clear from the entries recorded in the name of the Trust in the Registrar of Properties maintained under the BPT Act and therefore, the sale deed obtained by the defendants was of no consequence.
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12. It is also contended that CTS No.1039 formed a part of R.S. No.914 and since there was a Gazette Notification, as provided under the Wakf Act, indicating that Sy.No.914 was a Wakf property, the Trial Court could not have dismissed the suit.
13. Shri S.S. Kulkarni, learned counsel appearing for defendant Nos.1 to 3 on the other hand contended that there was absolutely no evidence to indicate that CTS No.1039 was a part of Sy.No.914. He submitted that even according to the Trust, the Trust was registered in the month of December 1952 by Shahajadabi, whereas Shahajadabi sold the property even before registration on 20.02.1952. he contended that since the alienation was made prior to the coming into force of the Wakf Act in 1954, the question of seeking permission would not arise and the sale was therefore valid. He submitted that since the initial conveyance was valid, the subsequent transactions would also be valid.
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14. He contended that there were four transactions in respect of the property. First one was in the year 1952, second one was in the year 1953, third one was in the year 1958 and ultimately the last transaction was in the year 1980 in favour of defendant Nos.1 to 3 and the Trust without challenging the first three alienations could not have instituted a suit challenging the only the last alienation.
15. It is contended that since it is the principal contention of the Trust that the property bearing CTS No.1039 was a Wakf property and since there was an alienation made of this Wakf property after the land was included in the list of Wakfs, the sale deed put forth by defendant Nos.1 to 3 ought to have been declared as null and void.
16. It is to be stated here at the very outset, that the initial alienation of the property in question was made way back in 1952 and this transaction was followed by two transactions in year 1953 and 1958. Admittedly, the -9- W.P. No.68084 of 2011 notification declaring it to be a Wakf property was made in the year 1979 and even before this notification, the property was sold and hence the question of prior permission would not arise. However, since the Trust claims that the property is a Wakf property, this issue is also examined.
17. The Trust produced the Gazette Notification published under Section 5(2) of the Wakf Act, which indicated the list of Wakfs which existed in the Taluka of Belagavi District. In the said Notification, it is stated as follows:
Sl.No. 1 123
Name of Wakf Sunni 2 X Sayed Idrus Gargah or Shia to be (Sunni) specified and X location Description of Wakf 3 X 230/6 2-22 17-13 properties and 1+2+4A particulars thereof X +6 such as Sy.No. 913 0-13 0-30 House No. X 914 1-13 1-14 boundaries 212 2-35 17-63 village/town X Date or year of 4 -
creation of Wakfs X
Details of Wakf 5 X -
Deed
Name and Address 6 X Smt. Sugarambi
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W.P. No.68084 of 2011
of the Muthavalli, W/o Mohamed Rasool
X Malik Balekundri,
Tq. Belgaum,,
X Muslim Jamat
Total value of the 7 -
property mentioned X
in Co. No.3.
Gross income of the 8 X All the land have been
property annually alienated
Amount of land Rev. 9 X 100/-
cesses rates and
Tax payable X
annually
Total annual 10 X -
expenditure of Wakf
Pay or remuneration 11 X -
of the Muthavalli of
each Wakf X
How the Wakf is 12 Hereditary
administrered X
Any other 13 -
particulars. X
18. As could be seen from the above, the properties bearing Sy.Nos.913 & 914 are stated to be properties of the Dargha. However, the property bearing CTS No.1039 has not been stated in the notification. However, it is the case of the learned counsel for the petitioners that CTS No.1039 has been carved out of Sy.No.914. It is to be noticed here that, in the plaint, there is absolutely no averment that CTS No.1039 formed a part of Sy.No.914 or was carved out of Sy.No.914.
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W.P. No.68084 of 2011
19. Learned counsel seeks to place reliance on the property / mutation register (Annexure-Q) to contend that it is part of RS No 914. The said register reads as follows insofar as the petitioner is concerned.
Sl.No. 1 1392
Date of entry 2 X -
Survey number and 3 1039
sub-division number X
Old revenue, or City 4 R.914 ¥ÉÊQ
X
Survey or Municipal
or Census number
X
Tenure and Class of 5 I
land
X
Area 6 700
Sq. Yds.
X
Assessment Rs. 7
a.
X
p.
Date from which the 8
X
assessment is liable to
revision of lease expires
X
Owner's name 9 1) Imambi Kom. Umar
Saheb
X
2) Jainabi Kom.
Hasansaheb Bagewadi.
X
3) Husanbi Kom.
Mohidin Saheb Mojan
X
Nature and 10 -
Lease 11 X -
Mortgage with 12 -
possession X
Other rights 13 -
Reference To Mutation 14 X -
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W.P. No.68084 of 2011
(M) Register or Property
(P) Register X
Remarks 15 -
20. As could be seen from the said register, in the column meant for survey number and sub division number, the property is mentioned as 1039 and in the column relating to old revenue or city survey or municipal or census number, it is mentioned as R.914 ¥ÉÊQ.
21. Learned counsel for the respondents on the other hand contended that the property bearing CTS No.1039 is not relatable to Sy.No.914. The learned counsel submits that Ex.D14, which was produced by the other co-defendants, stated that it was the certified extract of enquiry register in relation to the Chalta Number 228/A and in column relating to the old CTS number/ survey number, it was shown as open and the area was mentioned as 1039 sq.yds. He submits that in the column relating to old CTS number or RS Number, it was stated as open and thereafter it will have to be held that CTS No 1039 was not relatable to Sy.No.914.
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W.P. No.68084 of 2011
22. Be that as it may, it is to be stated here that it was absolutely essential for the plaintiff to plead specifically and categorically that CTS No.1039 was a part of R.S. No.914 in its plaint. In the absence of this fundamental plea in the plaint, the Trust cannot on the basis of the enquiry register, contend that CTS No.1039 was a part of Sy.No.914.
23. It is also to be stated here that when the Gazette Notification was issued in the year 1979, admittedly, CTS number 1039 had already been assigned and yet the Gazette Notification did not mention the CTS numbers.
24. Sri. I.A. Mulla, learned counsel appearing for one of the petitioners sought to rely upon a Corrigendum to the Gazette Notification of the year 1979, which was published in the year 2014. In this Corrigendum, CTS No.1039 is sought to be indicated as being carved out of R.S. No.914.
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W.P. No.68084 of 2011
25. A reading of this Corrigendum indicates that this was done on the basis of the communication of the Administrator and this Corrigendum has in fact been published after the suit of the Wakf Board had been decided against it by the Tribunal. Since the Corrigendum has been issued after the claim of the Wakf Board and the Committee had been dismissed, it cannot be of any consequence as this Corrigendum has been issued basically to get over the fact that in the notification of the year 1979, CTS No.1039 was not mentioned.
26. It is also to be mentioned here that a Notification of the year 1979 cannot be corrected by way of a Corrigendum after a period of 36 years. Since the Gazette Notification did not contain CTS No.1039, in law, the Wakf Board cannot contend that CTS No.1039 was a notified Wakf. Further, since the Trust did not even plead before the Trial Court that CTS No.1039 had been carved out of Sy.No.914, any argument in this writ petition that it did form a part of Sy.No.914 cannot also be entertained.
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W.P. No.68084 of 2011
27. The Tribunal on consideration of the evidence has recorded a finding that there were serious discrepancies insofar as the measurement of CTS No.1039. The Tribunal, on assessment of the evidence, has noticed that the extent of Sy.Nos.913 & 914 had a different area of measurement as compared to the suit schedule property and the certified copy of entire property extract had also stated that the previous R.S. number was kept blank by stating "open" and therefore, it could not be held that the property in question was a Wakf property and the sale deed could not be cancelled.
28. As already stated above, since the Gazette Notification did not specify that the property bearing CTS No.1039 was a wakf property and since the Trust did not even take up the plea that the property bearing CTS No.1039 was a part of Sy.No.914 in its plaint, this writ petition does not deserve acceptance. Further, having regard to fact that the property in question was sold in 1952 for the first time and nearly 27 years before the
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W.P. No.68084 of 2011 gazette notification was issued in 1979, I am of the view that the finding recorded by the Tribunal that the property in question was not a Wakf property, on the consideration of the plea put forth by the petitioners and the evidence produced by them, is just and proper and does not justify interference under Articles 226 & 227 of the Constitution of India.
The Writ Petition is therefore dismissed. In view of the dismissal of the writ petition, pending applications, if any, do not survive for consideration.
SD JUDGE Vnp* List No.: 1 Sl No.: 19