Karnataka High Court
Sayyad Badruddin Sayyad Murtuza Saheb ... vs Karnataka State Board Of Wakfs, ... on 12 August, 1994
Equivalent citations: AIR1995KANT151, ILR1994KAR2681, 1994(4)KARLJ632, AIR 1995 KARNATAKA 151, (1995) 2 CURLJ(CCR) 429
JUDGMENT
1. The present second appeal has been filed against the judgment and decree dated 19th July, 1982 passed by the Principal Civil Judge, Bijapur in Regular Appeal No. 4 of 1980 whereby he reversed the judgment and decree dated 15th Nov. 1979 passed by the Principal Munsiff, Bijapur in Original Suit No. 102 of 1976.
2. The substantial questions of law as arising out of the impugned judgment are the following:
(1) Whether despite the fact that there is evidence of possession of the plaintiff on the suit property, the lower appellate Court was correct in holding that the appellants had no title to the suit property?
(2) Whether in the facts of the present case, any appeal was maintainable at the instance of defendant No. 5?
3. There is a Wakf known as 'Sayed Peershah Karimullah Shah Dargah' at Bijapur. Pursuant to the preliminary survey and enquiry conducted under Section 4 of the Wakf Act, 1954 (Central Act 29 of 1954) (hereinafter for short, 'the Act' only) read with R. 4 the Karnataka Wakf Rules, 1964, a Notitication was published by the respon-dent-Wakf Board in Karnataka Gazette (Part-VI) dated 6-1-1975, inter alia setting out the list of Wakfs existing in the District of Bijapur and the properties of the said Wakfs. The Wakf in question is at Serial No. 266 of the said Notification. Column 3 of the Notification set out the description of the properties of the Wakf which also includes open site and the houses comprised in land CTS No. 1747 having an area of 3445 square yards.
4. Plaintiffs being aggrieved by the said notification filed the present suit inter alia seeking declaration that the suit property belongs to the plaintiffs and defendants 2 to 4 who have title thereto, and, as such the said property should be deleted from column No. 3 of the Notification referred to above. In the trial, plaintiff No. 4 and defendant No. 5 examined themselves as PW 1 and DW 1 as the sole witnesses on behalf of the contesting parties. Plaintiffs have brought on record Exhibits P-1 to -4 in support of their title; whereas, defendants have filed Exhibits D-1 and D-2 to controvert the same. The trial court decreed the suit in terms of the relief claimed but the same has been reversed by the first appellate court by holding that the materials on record do not justify the declaration of title in favour of the appellants.
5. Some of the facts which prevailed with the appellate court are-
(i) There is no evidence on record to show that the present appellants had acquired title over the suit property;
(ii) Exhibit P1, the property register card merely shows that four persons whose names appear therein and who have claimed as ancestors of the appellant were just leaseholders;
(iii) Exhibit P2 which is also the property register relating the suit property shows the names of five persons. This document also shows that the properly had been exempted from payment of tax. To the same effect are the endorsements in Exhibit P3 which are the extracts of the enquiry register of the City Survey Office.
(iv) It has been admitted by PW-1 in his evidence that out of five persons named in the aforesaid document he cannot identify some of them.
6. The suit property is an open site with two houses built on a portion of it. As per the evidence, during Moharem a Panja is installed for a certain period for offering prayers and then it is taken in procession. It has also been noticed by the lower appellate Court that the plaintiffs have not claimed title to the suit property by way of adverse possession.
7. Sri Arabatti, learned counsel appearing for the appellants has assailed the impunged appellate order on the ground that since admittedly the appellants had been found in possession of the disputed property, unless contrary is proved, in view of Section 110 of the Evidence Act, they should be presumed to be the owners thereof. In support of his submission, he relied on the declarations rendered in the cases of Sailendra Nath Ghosal v. Smt. Ena Dutt and/Phool Chand v. Amrit Lal, . His further submission is that it was on the respondent-Board to establish and prove that the property in question had in fact been dedicated to the Wakf, by producing document of dedication or any other acceptable evidence, which the Board has failed to produce in the present case. According to him, unless this onus is discharged by the Board the property in question could not have been held as that of the Wakf. In support of this part of his submisison, he relied on (Punjab Wakf Board, AmbalaCantonment v. Capt. Mohar Singh), AIR 1974 Kant 28 (Mysore State Board of Wakfs v. K.S. Lakshmaiah Setty) and (Karnataka State Board of Wakfs v. Mohamed Nazeer Ahmed). He has also placed strong reliance on a Division Bench decision of Madras High Court rendered in the case of the Madras State Wakf Board Madras v. Khazi Mohindeen Sheriff .
8. With regard to the non-maintainability of the appeal at the instance of defendant No, 5, Sri Arabatti submitted that the respondent-2 on his own, even if he be treated as Mutwalli on the Wakf in question, could no! have preferred an appeal against the judgment and decree of the trial court which was permissible only under and in accordance with the instructions of the Wakf Board in this regard. According to him, a Mutwalli is merely an agent of the Board and his duties being defined under the Act, he is not entitled to transgress the same. To substantiate his submissions he has cited decision (Maulvi Reza Ansari v. Shyamlal Sah and (1980) 2 Kant LJ 70 (SN) Dargahs of Hazrath Authullahshah Nabi shah v. Kar. Slum Clearance Bd.
9. Sri P.S. Mali Patil, learned counsel appearing for the respondent-Wakf Board, has placed before me the original gazette referred to above and submitted that in view of the gazette notification, the onus of proving title squarely lay on the appellants, which they have failed to discharge in the present case.
10. Sri K. S. Savanur, learned counsel for respondent No. 2 (defendant No. 5) has submitted that Section 6(4) of the Act makes the declaration of the notification under Section 5 final and conclusive subject to any decision of the Civil Court in that respect.
According to him, keeping in view the legislative conclusiveness attached to the notification, the onous of proving any description in the notification as incorrect lies on the person questioning the correctness; and in this view of the matter, the burden of proof envisaged under Section 110 of the Evidence Act may not be of any consequence in such cases. His further submission is that for ascertaining the fact as to whether a particular property is a Wakf property or not it is not necessary that there should be any direct evidence of dedication, because the proof of long user of the property for religious and similar purposes by itself is enough for treating that a property as a wakf property.
11. On the question of maintainability of the appeal, by reference to Section 6(1) read with the definition of 'person interested in a wakf' as defined under Section 3(h) of the Act, Sri Savanur submits that the defendant No. 5 has a statutory right to present the appeal being a person interested.
12. It is not in dispute that the suit land measures 3445 square yards and is a vacant land excepting a portion of 555 square yards over which two houses have been constructed. The appellants claim to be residing therein. Therefore, the possession of the appellants at least in respect of that for portion of the land over which those houses are standing is not in dispute. It is also borne out from the records that there is no evidence showing the acquisition of title over the suit property either by the appellants or by their ancestors. All through, the assertion of the plaintiffs had been that since they were in possession of the suit property and since Exhibits P-1 to P-3 show the names of their ancestors, they should be declared as owners of the suit property.
13. Section 4 of the Act inter alia authorities the Commissioner of Wakfs to make enquiries and submit reports to the State Government in respect of the properties of the Wakf. Under Section 5(1). the State Government on receipt of the said report has to forward a copy thereof to the Board and the Board after examination of the same has to publish in an official gazette a list of Wakfs with such particulars as prescribed under Rule 4 of the Karnataka Wakf Rules, 1964. According to this Rule one of the particulars to be contained in the notification relates to the detail of properties of the Wakf. Subsection (4) of Section 6 provides that the said list of Wakfs on its publication in an Official Gazette shall, unless it is modified in pursuance of a decision of the Civil Court, become final and conclusive. Section 6(1) of the Act provides that if any question arises as to whether a particular property specified as Wakf property in a list of Wakfs published under sub-section (2) of Section 5, is a wakf property or not, the Board or the Mut alli of the Wakf or any person interested therein may institute a suit in the Civil Court of a competent jurisdiction for a decision of the question and the decision of the Civil Court in respect of such matters shall be final. Therefore, any person who feels that any particular property has been wrongly specified as Wakf properly in the statutory notification, can challenge the correctness of such an entry in the notification by bringing a suit in this regard.
14. I would first proceed to determine as to whether a person challenging the correctness of the particulars of the notification can succeed merely by proving that he is in possession of the properties or that he is required to establish his title conclusively to seek that relief.
15. Part 111 of the Evidence Act deals with the burden of proof. Section 102 thereof provides that the burden of proof in a suit or proceedings lies, on that person who would fail if no evidence at all were given on either side. Now, in a suit instituted under Section 6(1) of the Act, if no evidence is led on either side, the consequence woud be that the suit will fail and the notification published under Section 5(2) of the Act will become final and conclusive.
15A. But in the present case the appellants have at least been able to prove their possession on a portion of the suit land. Therefore, Section 110 of the Evidence Act comes to their rescue which provides:
"When the question is whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner."
In view of the above provision, the onus lay on the contesting defendants to prove that the appellants are not the owners of the disputed land.
16. Defendant No. 5 in his deposition has stated that:
"Suit property CTS 1747 is of the ownership of the darga. Sy. Nos. 258, 259 and 260 also are the ownership of the darga. I have produced property Registrar in respect of these four properties, it is certified copy. It is a! Ex. D-1. I have produced CTS map which shows the situation of these properties. It is at Ex, D-2. There are about 3 to 4 houses in CTS 1747 and the remaining in open space. The square shown in the map in Ex. D-2 is a katta and it is a grave. There are three tombs. A moharum panja function is held once in a year in the suit property. Panja of Husen Alam is brought to the suit property in procession and is installed for an hour. Many people collect there for this function. The three Sy. Nos. stated above are adjacent to 1741."
This stalement has not been controverted by the Plaintiffs by adducing any independent evidence or even by suggesting to the witness that these were incorrect. The lower appellate court has given due consideration to this part of the evidence. Now it is well settled that if lands are shown to have been used from time immemorial for a religious purpose i.e. for a mosque or a burial ground or for maintenance of the mosque, then the land is by user wakf although there is no evidence of an express decision (see Mulla's Principles of Mohammaden Law, 15th Edn. Scc. 188).
The Supreme Court also in the case of Mohammed Shah v. Fasiuddin, :
"As a matter of law wakf normally requires express dedication but if land has been used from time immemorial for a religious purpose then the land is by user Wakf although there is no evidence of express dedication."
cases relied upon by the learned counsel for the appellant namely that of the Supreme Court in Punjab Wakf Board (supra) and of this court in the case of Mysore State Board of Wakfs (AIR 1974 Kant 28) (supra) also accept the said legal position but in those cases, on facts, it was held that the properties involved could not be proved to be wakf properties either on the basis of dedication or by user. Therefore, these decisions are of no help to the appellants. In the present case the suit properties have been proved to be of the wakf by user. For the reasons aforesaid, i am of the opinion that the lower appellate court has correctly held that the appellants have no title to the suit property.
17. In so far as the quest ion of maintainability of the first appeal at the instance of defendant No. 5 is concerned, in my opinion, the submissions made on behalf of the appellants is devoid of any merit for the simple reason that a plain reading of Section 6(1) read with Section 3(8) of the Act clearly establishes the right of a Mutwalli or any other person who has a right to worship or to perform any religious right in mosque, Edga, Darga, Magbara or grave-yard can set the law in motion for determination of correctness of the entries in a Notification published under Section 5(2) of the Act in respect of the ownership of the property. In the present case, defendant No. 5 claims to be the Mutwalli and a civil suit is pending adjudication in this regard. Even otherwise, he being a person interested in the wakf and moreover he having been impleaded as a defendant to perfer an appeal against the ad verse judgment and decree of the trial court. The two cases cited on behalf of the appellants as noted at paragraph 8 above are distinguishable since in none of these decisions correctness of notification under Section 5(2) had been questioned and therefore the respective courts had no occasion to address themselves to the provisions contained in Section 6(1) of the Act.
18. For the reasons I do not find any infirmity in the impugned judgment and decree. As such, the appeal is dismissed.
19. Appeal dismissed.