Karnataka High Court
Syed Shah Yousuf Hussaini vs The Karnataka State And Anr on 11 October, 2023
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 11TH DAY OF OCTOBER 2023
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
C.R.P NO.200007/2019
C/W
C.R.P NO.200008/2019
IN CRP NO.200007/2019
BETWEEN:
1. SYED SHAH YOUSUF HUSSAINI
NOW AGED ABOUT 70 YEARS,
S/O SYED SHAH MOHAMMED
MOHAMMED-UL-HUSSAINI, LATE
Digitally signed
by SHILPA R OCCUPATION: AGRICULTURE,
TENIHALLI
R/O ROZA BUZURG, KALABURGI AND
Location: HIGH
COURT OF RESIDING OF PLOT NO.447, ROAD NO.20,
KARNATAKA
JUBILEE HILLS - 500033, HYDERABAD.
2. SYED SHAH ARIF HUSSAINI
NOW AGED ABOUT 66 YEARS,
S/O SYED SHAH MOHAMMED
MOHAMMED-UL-HUSSAINI, LATE
OCCUPATION: AGRICULTURE,
R/O ROZA BUZURG, BADI DEODI,
KALABURGI - 585104,
SINCE DECEASED BY LRS
2A. MRS.SAMIA HUSSAINI,
AGED ABOUT 50 YEARS,
2
WIDOW OF SYED SHAH ARIF HUSSAINI
2B. MRS.UMME KULSUM HUSSAINI,
AGED ABOUT 34 YEARS,
D/O SYED SHAH ARIF HUSSAINI, LATE
2C. MRS.MAARIA FATIMA HUSSAINI,
AGED ABOUT 32 YEARS,
D/O SYED SHAH ARIF HUSSAINI, LATE
2D. SYED MURTUZA AL-HUSSAINI,
AGED ABOUT 29 YEARS,
S/O SYED SHAH ARIF HUSSAINI, LATE
2E. SYED AQUIB HUSSAINI,
AGED ABOUT 25 YEARS,
S/O SYED SHAH ARIF HUSSAINI, LATE
SL.NO.1 IS THE 1ST WIFE AND SL.NO.2 TO 5
ARE THE DAUGHTERS AND SONS OF THE
DECEASED PETITIONER NO.2
ALL AT H.NO.5-1-20, DARGAH ROAD,
NEAR KBH DARGAH, BADI DEVDI, ROZA-B,
KALABURGI-585104.
2F. MRS.NISHAT ARIF,
AGED ABOUT 65 YEARS,
WIDOW OF SYED SHAH ARIF HUSSAINI,
R/O PLOT NO.17, BASWESHWAR COLONY,
KALABURGI - 585104.
3. MRS.DURDANA YAMEEN,
NOW AGED ABOUT 67 YEARS,
D/O SYED SHAH MOHAMMED
MOHAMMED-UL-HUSSAINI, LATE,
3
R/O ROZA BUZURG, KALABURGI -585104 AND
RESIDING OF PLOT NO.447, ROAD NO.20,
JUBLIEE HILLS - 500033,
HYDERABAD.
REPRESENTED BY HER GPA HOLDER
MR.SYED SHAH YOUSUF HUSSAINI.
4. MS.IFFAT JAMALUNNISA,
AGED MAJOR,
D/O SYED SHAH MOHAMMED
MOHAMMED-UL-HUSSAINI, LATE,
R/O ROZA BUZURG, KALABURGI -585104 AND
RESIDING OF PLOT NO.447, ROAD NO.20,
JUBLIEE HILLS - 500033, HYDERABAD.
SINCE DECEASED BY HER LRS
4A. MRS.HAJERA BAKHTIAR KHAN
AGED ABOUT 41 YEARS,
D/O MOHD SULEMAN SIDDIQUI
WIFE OF BAKHTIAR MOHAMMED KHAN
4B. MR.MOHAMMED SALMAN AHMED SIDDIQUI
AGED ABOUT 45 YEARS,
S/O MOHD SULEMAN SIDDIQUI,
BOTH R/O PLOT NO.447/1, ROAD NO.20,
SHAIKPET, JUBLIEE HILLS,
HYDERABAD-500033.
...PETITIONERS
(BY SRI.MAHMOOD PATEL, ADVOCATE)
AND:
1. THE KARNATAKA STATE BOARD OF WAKFS,
REPRESENTED BY ITS CHAIRMAN,
4
DARUL AWKAF, NO.6, CUNNINGHAM ROAD,
BANGALORE-560052.
2. THE DARGAH HAZRATH KHAJA BANDA NAWAZ
(R.H), REPRESENTED BY ITS SAJJADA NASHIN-CUM-
MUTAVALLI, DR.SYED SHAH KHUSRO HUSSAINI,
BADI DCODI, ROZA 'B', KALABURGI-585104.
...RESPONDENTS
(BY SMT.ANURADHA S.R., SENIOR COUNSEL FOR
SRI.SUDARSHAN M., ADVOCATE FOR R1,
SRI.S.R.MALGATTI, ADVOCATE FOR R2)
THIS PETITION IS FILED UNDER SECTOIN 83(9)
OF WAQF ACT, 1995 PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE PASSED BY THE KARNATAKA
WAKF TRIBUNAL, GULBARGA DIVISION, GULBARGA,
IN O.S.NO.16/2012 DATED 12.10.2012 AND GRANT
THE RELIEF AS SOUGHT BY THE PETITIONERS IN
THEIR PLAINT IN O.S.NO.16/2012.
IN CRP NO.200008/2019
BETWEEN:
SYED SHAH YOUSUF HUSSAINI
AGED ABOUT 70 YEARS,
S/O SYED SHAH MOHAMMED
MOHAMMED-UL-HUSSAINI, LATE
OCCUPATION: AGRICULTURE,
R/O ROZA BUZURG, KALABURGI AND
RESIDING OF PLOT NO.447, ROAD NO.20,
JUBILEE HILLS - 500033, HYDERABAD.
...PETITIONER
(BY SRI.MAHMOOD PATEL, ADVOCATE)
5
AND:
1. THE KARNATAKA STATE BOARD OF WAKFS,
REPRESENTED BY ITS CHAIRMAN,
DARUL AWKAF, NO.6, CUNNINGHAM ROAD,
BANGALORE-560052.
2. THE DARGAH HAZRATH KHAJA BANDA NAWAZ
(R.H), REPRESENTED BY ITS SAJJADA NASHIN-CUM-
MUTAVALLI, DR.SYED SHAH KHUSRO HUSSAINI,
BADI DEWADI, ROZA 'B', KALABURGI-585104.
...RESPONDENTS
(BY SMT.ANURADHA S.R., SENIOR COUNSEL FOR
SRI.SUDARSHAN M, ADVOCATE FOR R1,
SRI.S.R.MALGATTI, ADVOCATE FOR R2)
THIS PETITION IS FILED UNDER SECTOIN 83(9)
OF WAQF ACT, 1995 PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE PASSED BY THE PRESIDING
OFFICER, KARNATAKA WAKF TRIBUNAL, KALABURAGI
DIVISION, KALABURAGI, IN O.S.NO.13/2012 DATED
12.10.2012 AND GRANT THE RELIEF AS SOUGHT BY
THE PETITIONERS IN THEIR PLAINT IN
O.S.NO.13/2012.
THESE PETITIONS HAVING BEEN HEARD AND
RESERVED FOR ORDERS ON 05.07.2023 COMING ON
FOR PRONOUNCEMENT OF ORDER THIS DAY, THE
COURT MADE THE FOLLOWING:
6
ORDER
These two revision petitions are filed by the plaintiffs assailing the judgment rendered by the Court in OS.No.16/2012 and OS.No.13/2012. The suits are filed by the plaintiffs/petitioners seeking a declaration that the WAKF notification in respect of the suit land dated 16.7.1974 is null and void and for a consequent direction to first defendant to delete the suit land from the register of WAKF and for consequential relief of injunction to restrain the defendants from interfering with the plaintiffs' possession.
2. The parties are referred to as per their rank before the trial Court.
3. In OS.No.13/2012 the subject matter of the suit are agricultural land bearing Survey Nos.59 measuring 20 acres 11 guntas and Survey no.62 measuring 39 acres 19 guntas respectively. 7
3.1. In O.S.No.16/2012, the subject matter of the suit is agricultural lands bearing Survey Nos.13 measuring 16 acres one gunta. O.S No.16/2012 is filed by the legal heirs of one Moin Jahan Begum. O.S.No.13/2012 is filed by son of Defendant No.2 who is asserting right on the basis of occupancy right granted by Land Tribunal in respect of Survey No.59 and 62. The plaintiffs claim that these petition lands were Service Inam attached to defendant No.2- Dargah which is a notified WAKF institution. The plaintiffs contend that their mother was a tenant and she filed Form No.1 under Section 5 of the Karnataka Certain Inams Abolition Act, 1977 (for short "Act, 1977") and the land Tribunal has conferred occupancy rights to their mother and plaintiff in O.S No.13/2012 therefore, the subsequent notification of the land in question as WAKF property is null and void. 8
4. The defendant No.1 has contested both the suits by filing written statement. The first defendant has stoutly denied the entire averments made in the plaint and a specific contention is taken that these lands were granted to render service to Dargah Hazrath Khaja Banda Nawaz i.e. defendant No.2 and therefore, a specific contention is taken that once WAKF is created, there cannot be revocation of service and therefore, plaintiffs cannot assert title over the WAKF property. First defendant has further contended that the suit properties were declared to be WAKF properties during the year 1968 and therefore the plaintiffs who are the children of the Mutawalli cannot assert title based on a Land Tribunal order. The first defendant has contended that since Inam is classified as Mushrut-Udkhidmat and the grant was necessarily meant to support defendant No.2-Dargah, the property granted as a service inam could partake 9 the character of WAKF property and therefore, prayed for dismissal of the suit.
5. Defendant No.2 has filed a written statement and supported the plaintiffs' claim. Defendant No.2 has contended that immediately after enforcement of the Act, 1977, the Inam ceases to exist and the land would automatically vest with the State Government and therefore, the impugned Gazette notification is rendered infructuous.
6. The WAKF Tribunal referring to the oral and documentary evidence let in by the plaintiffs in both the suits has recorded a finding that the order passed by the Land Tribunal in granting occupancy rights in respect of a WAKF property is non est and void. The WAKF Tribunal has dismissed both the suits by recording a finding that the plaintiffs have failed to prove that they are the absolute owners of the suit property.
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These two judgments are challenged in these petitions by filing two separate revision petitions.
7. Learned counsel appearing for the petitioners in both the petitions reiterating the grounds urged in the civil revision petitions would vehemently argue and contend that first defendant- Board having challenged the order of the Land Tribunal conferring occupancy rights have withdrawn the writ petitions and that has given finality to the Land Tribunal proceedings. Referring to the pleadings in the written statement filed by the first respondent-Board, he would point out that the Board admits that the suit lands are Inam lands and as on the appointed date i.e. 1.3.1974 on which day the Inams were abolished, all the Inam lands including the above lands stood vested with the State Government under Section 4 of the Act, 1977 and the subsequent impugned Gazette Notification declaring the suit lands 11 as WAKF properties does not create any right in favour of first respondent-Board. He would emphasize on the fact that the impugned notification issued by first respondent is dated 16.7.1974 which is subsequent to appointed date i.e. 1.3.1974 and therefore, the impugned notification does not bind the plaintiffs in O.S.16/2012 who are the legal heirs of one Moin Jahan Begum, who is conferred with occupancy rights and therefore, petitioners being the legal heirs of original applicant have inherited the properties left behind by their mother. Similarly impugned notification does not bind plaintiff in O.S.13/2012. He would vehemently argue and contend that first defendant has attempted to introduce a new case and even otherwise, first defendant has not let in any rebuttal evidence.
8. The learned counsel would place reliance on Section 4 of the Act, 1977 and contend that the 12 tenure of all Inams and Minor Inams to which the Act applies, would automatically stand abolished and consequences of abolition would follow as contemplated under Section 4(2)(b) of the Act, 1977. Referring to the said Section, he would contend that after abolition of Inams, these lands vested absolutely with the State Government free from all encumbrances. Therefore, he would point out that the first defendant-Board had no authority to notify these petition lands as WAKF properties. Referring to Section 5(2) of the Act, 1977, he would vehemently argue and contend that petitioners' mother who was rendering religious service to the WAKF institution- defendant No.2 and cultivating the lands is entitled to get herself registered as an occupant of the lands. Similarly, plaintiff in O.S No. 13/2012 who is son of Defendant No.2 had also filed Form No.1. He has also referred to Section 44 of the Karnataka Land Reforms 13 Act, 1961 (for short "KLR Act") to demonstrate that the lands stood vested with the Government.
9. Referring to Section 26(B) of the WAKF Act, 1984 and Section 39 of the WAKF Act, 1995, he would contend that the publication of the petition lands as WAKF is nonest and void ab initio as these lands stood vested with the State Government as on 1.3.1974. Therefore, he would contend that the WAKF institution and owners of lands have a limited right to claim compensation of the land under Section 23 of the Act, 1977. He would vehemently argue and contend that the provisions of the KLR Act would over ride the WAKF Act, 1984 as well as the WAKF Act, 1995. He would also refer to Section 138 of the KLR Act and point out that in the present case on hand, the perpetual dedication of Inams tenure stood extinguished in view of abolition of Act, 1977 and therefore, the lands stood vested with the 14 Government free from all encumbrances and therefore, the WAKF if any stood terminated or discontinued and as a consequence, the WAKF ceases to exist.
10. In support of his contention, he has relied on following judgments:
"1.Karnataka State Board of WAQFS .vs. Smt. Syeda Hameeda Jahan alias Saheba and another [2014(2) KCCR 1452];
2.Karnataka State Board of WAQFS .vs. Smt. Smt. Syeda Hameeda Jahan alias Saheba and another Smt. Syeda Hameeda Jahan alias Saheba and another;
3.Karnataka State Board of WAKF and another .vs. The Land Tribunal, Afzalpur District, Gulbarga and others [W.P.No.13733/2007];
4.Sri.D.H. Venkata Ramaiah(deceased) By Lrs and others .vs. State of Karnataka and others [2004(2) KCCR 923];
5. State of Kerala and others .vs. Koliyat Estates (1999)8 SCC 419;
6. Mohammed Jaffar and another .vs. State of Karnataka and others [2003 (1) KCCR 110(FB)];15
7.Aresh alias Ashok J Mehta (dead) by proposed L.Rs. .vs. Special Tahsildar, Belgaum and another;
8.Karnataka State Board of WAQFs and others .vs. The State of Karnataka and others [W.A.Nos.31367-71/2013(LR), 31356/2013 and 100094-97/2014;
9. Gurdi Singh Aulakh (deceased) through LRs' .vs. State of Punjab and others [AIR 1974 SC 2058]
10. Sulochana Chandrakant Galande .vs. Pune Municipal Transport and others [2010 (3) SCC (Civil) 415."
11. Learned Senior Counsel Smt. Anuradha, while repelling the contentions urged by the learned counsel for the petitioners has reiterated the written submissions submitted on behalf of defendant No.1/respondent No.1. She would point out that common issues are involved in both the suits and the core question that requires consideration at the hands of this Court is as to whether the plaintiffs have succeeded in establishing that they are the absolute owners of the suit properties. Countering the claim 16 of the plaintiffs' counsel that there is no rebuttal evidence let in by defendant No.1, would point out that plaintiffs have brought in a comprehensive suit seeking the relief of declaration and injunction and therefore, the burden rests on the plaintiffs to establish their title over the property in question. She would point out that the plaintiffs have sought relief of declaration of their title and have clearly admitted that the properties in question are WAKF properties. She would point that the plaintiff in O.S.No.13/2012 has failed to substantiate that he was cultivating the land bearing Survey Nos.59 and 62. Therefore, the learned Judge has rightly taken cognizance of Inams Act, Land Reforms Act and the provisions of the WAKF Act. She would vehemently argue and contend that plaintiff in O.S.13/2012 has never rendered service to the second defendant WAKF institution and was never cultivating the lands. Therefore, she would contend 17 that finding of the Land Tribunal on cultivation is perverse as it is based on collusive statements of plaintiffs and their father/defendant No.2.
12. Referring to Section 5(2) of the Act, 1977, she would point out that the person claiming occupancy rights in respect of the Inam land has to satisfy twin requirements. Firstly rendering service to the Institution and secondly personal cultivation. She would further point out that as per the provisions of the Act, 1977, the Land Tribunal has no jurisdiction to confer occupancy rights. Therefore, she would point out that the order of the Land Tribunal based on which plaintiff in O.S.No.13/2012 and the legal heirs/plaintiffs of Mainjahan Begum are asserting right and title is wholly without jurisdiction and the same is a nullity and the question of nullity can be raised at any time. Reliance is placed on the 18 judgment rendered by the Apex Court in the case of Kiran Singh .vs Chaman Paswan and others1.
13. She has further raised strong objection questioning the locus of family members of Mutuwalli seeking occupancy rights. She would contend that the Mutuwalli of WAKF is not entitled to seek occupancy rights and it follows that his immediate family members equally cannot seek occupancy rights. Therefore, grant of occupancy rights in favour of plaintiff in O.S.No.13/2012 and also grant of occupancy rights in favour of mother of plaintiffs in OS.No.16/2012 is bad in law. She would also point out that there is a thin distinction in creating Inam in respect of an Institution and an individual. In the present case on hand, Inam was granted to defendant No.2 Institution and not to plaintiffs' father. Referring to provisions of WAKF law, she would point that the 1 AIR 1954 SC 340 19 Manager of the WAKF institution cannot seek grant of occupancy rights either under Inam Abolition Act or under the KLR Act. The learned Senior Counse has placed reliance on the following judgments:
(1) Karnataka State Board of WAKFS .vs. State of Karnataka [ILR 1996 KAR 3566] (2) Karnataka State Board of WAKFS .vs. State of Karnataka and others [ILR 2000 KAR 1859] (3)State of Karnataka .vs. Land Tribunal [ILR 1999 KAR 3319] She would further point out that the order of the Land Tribunal does not bind the first defendant. The Board is not a party to the proceedings and therefore, she would contend that the WAKF Tribunal was justified in holding that the order of the Land Tribunal will not confer a right in favour of the plaintiffs. While contending that no order regarding WAKF property could be passed without hearing the WAKF Board, reliance is placed on the judgment rendered by the 20 Division Bench in Rukmawwa vs Moh. Shamsuddin Mujawar rendered in W.A.No.5505/1998 disposed of on 25.08.1999.
14. Questioning the locus of the plaintiffs, she would contend that the WAKF Act, 1954 is a central legislation enacted by the Parliament and the notification of the suit lands as WAKF properties is preceded by an enquiry under Section 4(3) of the WAKF Act and after independent examination, the Board has notified the suit lands by issuing a gazette notification under Section 5(2) of the WAKF Act, 1954. She would further point out that the controversy revolving around declaration of the property as WAKF property under Section 5(2) of the WAKF Act, 1954 and whether it ceases to exist in view of vesting of land under the provisions of the Inams Act is given a quietus by this Court and said controversy is no longer res integra. Reliance is placed on the judgment 21 rendered by this Court in the case of Karnataka WAKF Board .vs. The Land Tribunal2.
15. The learned Senior Counsel would further point out that the present suit questioning the notification is hopelessly barred by limitation. She would point out that plaintiff's father who claims to be the Mutuwalli of the respondent-WAKF Institution was a party to the enquiry under Section 4(3) of the WAKF Act and he was very much aware of the survey done by the Commissioner and therefore, she would contend that the present plaintiffs who are the legal heirs of Mutuwalli had the knowledge of the commission work carried under Section 4(3) of the WAKF Act. Therefore, she would vehemently argue and contend the present plaintiffs would also fall within the definition of the persons interested in the 2 2008(3) Kar.L.J.647 22 WAKF and therefore, plaintiffs could not have asserted a lease in their favour and therefore, the occupancy rights granted will not enure to their benefit and create right and interest in favour of the plaintiffs. Reliance is placed on the judgment rendered by the Apex Court in the case of Board of Muslim WAKFs, Rajasthan .vs. Radhakishan and others3. Therefore, referring to Section 6.1 of WAKF Act ,1954, she would contend that plaintiffs who fall within the category of 'persons interested' have failed to question the notification within one year. Therefore, she would contend that the plaintiffs' suit filed after thirty years is hopelessly barred and the Tribunal has rightly answered issue No.5 in the negative and has dismissed the suit on the ground of limitation apart from merits.
3 (1979) 2 SCC 648 23
16. She would also point out that the present suit without impleading the State Government is bad for non-joinder of necessary parties and the Tribunal has answered Issue No.4 in the negative and against the plaintiffs in both the suits. Learned Senior Counsel has also adverted to several other contentions by taking this Court through the written submissions submitted on 26.6.2023.
17. Heard the learned counsel for the respective parties. Perused the orders passed by the WAKF Tribunal in both the suits. I have given my anxious consideration to the written arguments and judgments cited by both the parties.
18. The following points would arise for consideration before this Court:
"1. Whether the finding of the Tribunal that suit filed by the plaintiffs is 24 barred by limitation is erroneous an suffers from infirmities.
2. Whether the Tribunal was justified in holding that the plaintiffs have failed to prove the Notification dated 16.07.1974 is null and void?
3. Whether the Tribunal was justified in holding that the plaintiffs have failed to prove that they are the owners suffers from perversity?
19. Findings on Point No.1:
The suit lands are notified as WAKF properties vide Gazette Notification dated 16.7.1974 and thereby the suit lands are declared to be the WAKF properties of the 2nd defendant-Durgah. It is borne out from the records that inclusion of the suit lands in the gazette notification is preceeded by an enquiry under Section 4 of the WAKF Act, 1995. Sections 4 and 5 of the WAKF Act, 1995 form one component. They deal with preliminary survey of WAKFs and publication of list of WAKFs. Section 4 of WAKF Act, 1995 provides for preliminary survey of WAKFs and under Section 4(1), 25 State Government is empowered by a Notification in the official Gazette to appoint a survey Commissioner for the purpose of making survey of the WAKF.
During the course of enquiry, the father of the plaintiffs who is the Mutuwalli of the second defendant-Dargah is notified and heard in the enquiry. After receipt of report, the State Government has forwarded the same to the WAKF Board and the suit lands are published in the official Gazette. Survey of existing WAKF under the Act cannot be construed as a administrative act. Such a recourse adopted by the Survey commissioner would obviously partake the quasi-judicial character.
20. Once the lands are notified and published in the official gazette, the said notification operates as a legal notice to all concerned and therefore, any aggrieved parties are required to institute a suit within a period of one year from the date of notification. The 26 present plaintiffs who are the legal heirs of Mutuwalli have taken a contention that they were never notified and were heard by the Commissioner during the course of survey under Section 4 of the WAKF Act, 1995. Their contention cannot be acceded to as they fall within the ambit of the persons interested as defined under Section 3(k) of the Act, 1995. The fact that plaintiffs' father being a Mutuwalli was managing the affairs of defendant No.2-Dargah is not in dispute. Therefore, it has to be presumed that the plaintiffs who are the legal heirs of Mutuwalli had the notice of the Commission work and therefore, this Court is bound to impute constructive notice on the plaintiffs. The plaintiffs cannot claim that they were not aware of the Gazette Notification of the suit lands in the list of WAKF, as the process and exercise of survey under Section 4 of the WAKF Act, 1995 by the Commissioner cannot be termed to be a private affair. If plaintiffs' 27 father is found to be the Mutuwalli of defendant No.2- Dargah, the plaintiffs obviously had means of acquiring knowledge of publication of the suit lands in the WAKF list and therefore, had the means of the source was righty exhausted by the plaintiffs, they would have in all probability received the conscious awareness about the gazette notification of the WAKF list by the State WAKF Board. The foundation of doctrine of notice is the knowledge of affair and is not restricted to absolute certainty but is inclusive of such a belief in the existence of the fact in question. This knowledge can actually be possessed by the person or may be imputed to him by law.
21. The plaintiffs in O.S.No.16/2012 who are the original legal heirs of the Mutuwalli as well as plaintiff in O.S No.13/2012 therefore, were bound to make an enquiry and having failed to do it should be held to have notice of the impugned Gazette 28 Notification. It is equally trite law that willful abstention from enquiry means that such abstention from enquiry or search as would show the bonafides on the part of the parties.
22. If these factual aspects are taken into consideration, the plaintiffs have slept over their rights for almost 38 years and the gazette notification issued in 1974 is questioned in 2012. The present suit is hopelessly barred by limitation and the WAKF Tribunal has rightly taken cognizance of these significant details while answering the issue on limitation against the plaintiffs.
23. The Apex Court in the case of BOARD OF MUSLIMS WAKFS, RAJASTHAN .VS. RADHA KISHAN AND OTHERS4 has clearly laid down the limitation of one year period to challenge the 4 AIR 1979 SC 289 29 notification published in the Government Gazette notifying the WAKF properties. Therefore, Point No.1 is answered in the negative and against the plaintiffs.
24. Findings on POINTS 2 and 3:
The plaintiffs in both the suits are asserting that they have become owners of the land in question and their right and title is traced based on a Land Tribunal's order granting occupancy rights vide order dated 4.4.1981. The counsel has placed reliance on several judgments to demonstrate that the land stood vested with the State Government as on 1.3.1974 and a contention is canvassed to the effect that subsequent gazette notification on 16.7.1974 by the State WAKF Board notifying the suit properties as WAKF properties is null and void. The suit lands are admittedly Inam lands and therefore, Section 44 of 30 KLR Act has no application to the present case on hand. The wordings "All Lands" indicated in Section 44 of the KLR Act, will not embrace and cover Inam lands. Section 44 deals with vesting of private lands with State which are found to be in possession of tenants. The requisite condition is that under Section 44 of KLR Act, if the land was held to be in possession of the tenant immediately prior to the date of commencement of the amendment Act i.e. 1.3.1974, the land would vest with the State. It is also worth to note that there is no automatic vesting under Section 44 of the KLR Act. The question of vesting of land needs a determination at the hands of jurisdictional Land Tribunal.
25. In the present case on hand, the suit lands were offered as Inam to the religious institutions (Dargah). If the suit lands are the Inam lands, there 31 is no vesting of these lands under Section 44 of the KLR Act. The inams were abolished in the State of Karnataka w.e.f. 8.5.1978. Vesting is contemplated under Section 4 of the Act, 1977. It is the State Government by notification has appointed a Commissioner to carry out survey in regard to the petition lands. The Survey Commissioner has concluded his survey under Section 4(3) of the WAKF Act, 1995 and has submitted a report to the State Government and the State Government has forwarded the same to the WAKF Board and the WAKF Board has thereafter published the present suit lands in the official gazette as WAKF properties.
26. Therefore, if at the instance of the State Government, the suit lands are notified as WAKF properties, the occupancy rights granted by the Land Tribunal subsequent to notification is of no consequence. Since, the petitioners/plaintiffs have 32 failed to question the Gazette Notification dated 16.07.1974 within one year of the publication, the Tribunal was justified in holding that plaintiffs have failed to prove the notification dated 16.7.1974 as null and void. Therefore, points 2 and 3 are answered in the affirmative and against the plaintiffs.
27. In the light of the discussions made supra, I record my following conclusions:
(i) The present suit for declaration, injunction and mandatory injunction assailing the WAKF notification dated 16.7.1974 filed on 17.5.2012 is hopelessly barred by limitation and therefore, no reliefs can be granted to the plaintiffs.
(ii) The materials on record clearly disclose that the petition lands were notified and published in the Official Gazette in 1974, which is preceded by an enquiry under Section 4(3) of the Act, 1995. 33
Therefore, the impugned notification operates as a legal notice to all concerned and therefore aggrieved parties were required to institute a suit within a period of one year from the date of notification.
(iii) It is the duty of the Court under Section 3 of the Limitation Act to check at the threshold whether suit is barred by limitation and the said provision clearly imposes a mandatory duty on the Court to dismiss the suit, if it is instituted after it is barred by limitation.
(iv) The plaintiffs claim that the grant of occupancy rights of the Land Tribunal has attained finality and therefore, the impugned notification thereby notifying the petition properties as WAKF properties is null and void cannot be acceded to.
(v) Even if the plaintiffs have acquired voidable title and even if some rights vest with the plaintiffs on 34 the strength of the Land Tribunal Order, in view of the suit being hopelessly barred by limitation, the impugned notification cannot be set-aside.
(vi) In view of Section 3 of the Limitation Act, even if plaintiffs have not lost their rights, if any, however, cause of action to question the impugned notification is clearly barred under Section 3 of the Limitation Act and therefore, this Court concurs with the findings recorded by the Tribunal while answering issue No.5 in the Negative and against the plaintiffs.
(vii) A person in possession of land in the capacity of Mutawalli cannot be construed as a tenant and therefore, he is only a care taker of the property and therefore, it is not open for the Mutawalli to claim occupancy rights either by himself or through family members. The bar for a person other than Mutawalli to claim occupancy rights in respect of WAKF property 35 provided lease is obtained from the competent authority cannot exclude wife and children of a Mutawalli.
(viii) It is a settled law that Mutawalli has no right to register himself as an occupant of a WAKF property. If this proposition is accepted, then the plaintiffs who are the children of Mutawalli claiming under the Mutawalli also cannot be registered as occupants.
28. In the light of my findings recorded on the points and conclusions recorded, both petitions are devoid of merits and accordingly, stand dismissed.
Sd/-
JUDGE ALB