Karnataka High Court
Kalyanrao S/O Shivabasappa Malashetty vs The Karnataka Wakf Board on 17 November, 2023
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NC: 2023:KHC-K:8650
CRP No. 200022 of 2020
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 17TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
CIVIL REVISION PETITION NO. 200022 OF 2020
(GM-WAKF)
BETWEEN:
KALYANRAO S/O SHIVABASSAPPA MALSHETTY
AGE: 58 YEARS, OCC: AGRICULTURE & SECRETARY
SRI HANUMAN DEVASTHAN AND BASVESHWAR
COMMITTEE, VILLAGE CHITALI, TQ: ALAND,
DIST: KALABURAGI.
...PETITIONER
(BY SRI AJAYKUMAR A K, ADVOCATE)
AND:
THE KARNATAKA WAKF BOARD
Digitally signed THROUGH ITS DISTRICT OFFICER, DISTRICT: WAKF,
by SHILPA R ADVISORY, COMMITTEE, KALABURAGI,
TENIHALLI DIST: KALABURAGI-585102.
Location: HIGH
COURT OF
KARNATAKA ...RESPONDENT
(BY SRI LIYAQAT FAREED USTAD, ADVOCATE)
THIS CRP IS FILED U/S. 83(9) OF WAKF ACT, PRAYING
TO ALLOW THE PETITION BY SETTING ASIDE THE JUDGMENT
AND DECREE DATED 02.05.2012 PASSED IN OS NO.23/2011
BY THE LEARNED I/C PRESIDING OFFICER, KARNATAKA WAKF
TRIBUNAL, KALABURAGI DIVISION, KALABURAGI VIDE
ANNEXURE - E.
THIS PETITION COMING ON FOR HEARING, THIS DAY,
THE COURT MADE THE FOLLOWING:
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NC: 2023:KHC-K:8650
CRP No. 200022 of 2020
ORDER
The petitioner being the defendant in O.S.No.23/2011 on the file of Karnataka Wakf Tribunal, Gulbarga Division,Gulbarga (hereinafter referred to as 'Tribunal' for brevity), is impugning the judgment and decree dated 02.05.2012, decreeing the suit of the Karnataka Wakf Board (hereinafter referred to as 'the Board' for brevity) and declaring that the suit property is the wakf property and restraining the defendant by way of permanent injunction from interfering with the same.
2. Parties are referred to as per their ranking before the Tribunal.
3. Brief facts of the case are that, the Board filed the suit O.S.No.23/2011 for declaration of its title over the property i.e., Chilla Hazarat Haji Malang (Sunni), Chitali Taluk, Aland, measuring 3.6X10.6 feet with open space 75X85 feet with the boundaries mentioned therein (hereinafter referred to as 'the suit property' for brevity).
4. It is contended by the Board that it is incorporated under the Wakf Act, 1995 and it is functioning under the Act to supervise the wakf properties situated in Karnataka and to -3- NC: 2023:KHC-K:8650 CRP No. 200022 of 2020 safeguard the interest of wakf Institution. It is stated that the Board Chilla Hazarat Haji Malang (Sunni), situated in Chitali village, Aland Taluk since time immemorial being visited by the devotees irrespective of caste and religion and the same was duly notified under the Official Gazette published at Sl.No.170 of wakf properties pertaining to Aland Taluk. The suit property belongs to the plaintiff- Board. The defendant is not having any right, title and interest over the same. But, on 01.06.2011, the defendant tried to dig the land to put up the pillars for construction of a building in the open space. Thereby, he has interfered with the exclusive possession and enjoyment of the suit property by the plaintiff. Hence, he prayed for declaration and injunction as stated above.
5. The defendant filed the written statement denying the contentions taken by the plaintiff. It is denied that Chilla Hazarat Haji Malang (Sunni), Chittali village was in existence since time immemorial or that it is a wakf property duly notified in the Official Gazette. It is also denied that the defendant is not having any manner of right, title and interest over the suit property or that he is interfering with the peaceful possession and enjoyment of the plaintiff.
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NC: 2023:KHC-K:8650 CRP No. 200022 of 2020
6. It is contended that there was no cause of action for the plaintiff to file the suit. The plaintiff is not having any revenue document to show the existence of the suit property as contended by the plaintiff. On the other hand, it is contended that the defendant's temple i.e., Hanuman and Basaveshwara temples are situated in the suit property and the defendant is paying the revenue. Even the village panchayath records disclose existence of such temples.
7. It is contended that the defendant had filed the suit O.S.No.289/1997 before the learned Civil Judge (Jr. Dn.), Aland against the plaintiff to restrain it from interfering with the peaceful possession and enjoyment of the property by the defendant. The said suit came to be transferred to Gulbarga Wakf Board and it was registered as O.S.No.10/2003. The defendant herein being the plaintiff in the said suit, had lead his evidence. But, the plaintiff herein being the defendant in the said suit, remained absent. Subsequently, the suit O.S.No.10/2003 was transferred by the Wakf Board Gulbarga, again, to the Civil Court at Aland on the ground that the defendant herein being the plaintiff in the said suit is contending that the suit property was not the wakf property -5- NC: 2023:KHC-K:8650 CRP No. 200022 of 2020 and therefore, the dispute cannot be determined by the Tribunal and thus, it was held that the Tribunal could not determine the dispute in the present case as it lacks jurisdiction. It is also contended that since civil suit is pending against the plaintiff before the competent Civil Court at Aland, the suit is barred by the principles of res-judicata. Accordingly, he prays for dismissal of the suit.
8. On the basis of these pleadings, the Tribunal framed the following issues:
1) "Whether plaintiff proves that the suit property as described in para no.2 of the plaint is the wakf property and is in lawful possession of the plaintiff?
2) Whether the plaintiff proves that the alleged inerference by defendant?
3) Whether the plaintiff proves that the District wakf officer D.W.A.C. Gulbarga has go power and locus standi to file this suit on behalf of Karnataka wakf Board, Bangalore ?
4) Whether the plaintiff is entitled to the reliefs sought?
5) What decree or order?"-6-
NC: 2023:KHC-K:8650 CRP No. 200022 of 2020
9. The plaintiff examined the District Wakf Officer, Gulbarga as PW-1 and got marked Exs.P1 to 3 in support of its contention. The defendant examined himself as DW-1 and got marked Exs.D1 to 11 in support of his defence. The Tribunal after taking into consideration all these materials on record, answered issue Nos.1 to 4 in the affirmative and accordingly, decreed the suit of the plaintiff declaring that the suit property is the wakf property and the defendant was restrained by way of permanent injunction from interfering with the possession and enjoyment of the suit property by the plaintiff.
10. Being aggrieved by the same, the defendant is before this Court.
11. Heard learned counsel Sri Ajaykumar A.K., for the petitioner/defendant and learned counsel Sri Liyaqat Fareed Ustad for the respondent/plaintiff. Perused the materials on record including the trial Court records.
12. Learned counsel for the petitioner/defendant contended that the description of the suit property is not sufficient to identify the property. No property number is mentioned therein. Moreover, even though the plaintiff relies -7- NC: 2023:KHC-K:8650 CRP No. 200022 of 2020 on Ex.P1, the property referred to in the same does not bear the extent of the land either in inches or in feet.
13. Learned counsel submitted that admittedly, Hanuman and Basaveshwara temples are situated over the suit property since time immemorial. The defendant is paying the revenue and the revenue records stand in the name of the defendant. Under such circumstances, the Suit Property cannot be considered as a Wakf Property.
14. It is further contended that the suit of the plaintiff is barred by limitation. The defendant herein as plaintiff, filed the suit O.S.No.289/1997 specifically denying the rights of the Wakf Board in respect of the suit property. But the present suit came to be filed during 2011 i.e., after lapse of the period of limitation. Therefore, he submits that the Tribunal has committed an error in decreeing the suit of the plaintiff without any basis. Accordingly, he prays for allowing the petition and to set aside the impugned judgment and decree passed by the Tribunal.
15. Per contra, learned counsel for the respondent/plaintiff opposing the petition submitted that the -8- NC: 2023:KHC-K:8650 CRP No. 200022 of 2020 Notification was published in the Official Gazette as per Ex.P1. The said Notification was only after following the procedure contemplated under the Wakf Act, especially under Sections 4 and 5 of Wakf Act. Therefore, Ex.P1 is having the presumptive value with regard to its validity.
16. Learned counsel also submitted that as per Section 6 of the Wakf Act, the defendant should have challenged the Notification- Ex.P1 within one year from the date of its publication. But, the defendant has not chosen to challenge the same and therefore, the defendant cannot take such defence challenging the ownership of the Wakf Board over the suit property.
17. Learned counsel placed reliance on the decision of the Hon'ble Apex Court in Sayyed Ali Ors. Vs. Andhra Pradesh Wakf Board, Hyderabad & Ors.1 to contend that once a wakf, it is always a wakf. Therefore, once the property is notified in the Official Gazette as wakf property, the same will have presumptive value and therefore, the defence raised by the defendant is to be rejected. The Tribunal on proper 1 1998 (1) SCR 398 -9- NC: 2023:KHC-K:8650 CRP No. 200022 of 2020 appreciation of the materials on record, rightly decreed the suit of the plaintiff and there are no reasons to interfere with the same. Hence, he prays for dismissal of the petition with cost.
18. In view of the rival contentions urged by learned counsel for the parties, the point that would arise for my consideration is:
"Whether the impugned judgment and decree passed by the Tribunal suffers from any perversity or illegality and calls for interference by this Court?"
My answer to both the point is in the 'affirmative' for the following:
REASONS
19. It is the specific contention of the plaintiff before the Tribunal that the suit property is the wakf property. The description of the suit property found in the plaint is that Chilla Hazrath Haji Mallang (sunni), totally measuring 3.6X10.6 with open space measuring 75X85 feet, with the boundaries mentioned therein, situated at Chittali Village, Aland Taluk. Strangely, the property do not bear any property number. The plaintiff is placing reliance on Ex.P1- the Gazette Notification.
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NC: 2023:KHC-K:8650 CRP No. 200022 of 2020 But, Ex.P1 consists of only one page starting from Sl No.169 and the suit property is said to be described at Sl.No.170. Ex.P2 is the copy of Gazette Notification dated 29.01.1975 issued by the Office of the Karnataka Board of Wakfs, Bengaluru, describing various properties as the properties belonging to the wakf. Even this is not a complete document in itself. Strangely, many other properties referred to in Ex.P2 refer to either survey number or property number, whereas the suit property which is said to be described in Sl.No.170 does not have any such description. But, it refers only to the measurement of a property.
20. The plaintiff has examined Abdul Hameed Sagri- the District Wakf Officer, Gulbarga as PW-1. He has filed his affidavit in lieu of examination in chief and reiterated the contentions of the plaintiff before the Tribunal. He was cross- examined by the learned counsel for the defendant. During cross-examination, witness pleaded his ignorance as to who is the Chairperson of the Managing Committee and who is the Mutawalli of the suit property. Witness states that on 01.06.2011, the defendant tried to convert the Suit Property into a pakka temple and therefore, the suit was filed. He states
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NC: 2023:KHC-K:8650 CRP No. 200022 of 2020 that the Board is paying the revenue in respect of the suit property and Mutawalli owns documents with him. He denies the suggestion that there exists Hanuman and Basaveshwara temples in the suit property. The witness admits filing of the suit O.S.No.289/1997 by the plaintiff. But, pleads his ignorance that the Board is the defendant in the said suit. He also pleads his ignorance regarding transfer of the said suit to the Board and thereafter, again to the Court at Aland.
21. The evidence of PW-1 discloses that the witness is not aware as to who are the persons in the Managing Committee of the suit property and who was Mutawalli of the same. Even though he has stated that he is paying the land revenue and the Mutawalli is having documents to evidence the same, nothing has been placed before the Court.
22. The defendant examined himself as DW-1 and has filed his affidavit in lieu of examination in chief and reiterated his contention as taken in the written statement. During cross- examination, witness stated that he was the member of panchayath since 1994-2004. He denied the suggestion that the documents relied on by him were obtained by furnishing
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NC: 2023:KHC-K:8650 CRP No. 200022 of 2020 false information. He also denies the suggestion that Exs.D4 to 7 are concocted documents. Witness denied the suggestion that he tried to interfere with the peaceful possession and enjoyment of the suit property and the plaintiff is entitled for the relief as sought.
23. On perusal of the oral and documentary evidence placed before the Court, even though the plaintiff contends that the suit property is the wakf property, the description of the same is not sufficient to identify the same. There is no explanation as to why the property is not bearing any property number, survey number or village panchayath number etc., to identify the same. There is also no explanation as to why the entire Gazette Notification was not produced before the Court. It is also not explained as to why no documents to establish the possession of the property by the plaintiff are placed before the Court, except one page of the so called Gazette Notification. On the other hand, the defendant has produced the Trust Deed as per Ex.D1 which is dated 14.02.1990. Ex.D2 is the panchayath register extract in Form No.9 for the years 1984-85 levying land revenue in respect of the Property Number No.1-2, which is described as Basaveshwara temple. Exs.D3 to 7 are
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NC: 2023:KHC-K:8650 CRP No. 200022 of 2020 tax demand register extracts. Ex.D8 is the tax paid receipt issued by the Village Panchayath. Exs.D9 and 10 are the photos said to be pertaining to the suit property.
24. Ex.D11 is the copy application filed in O.S.No.289/1997 before the Court at Aland seeking to furnish the certified copy of the plaint, written statement, order sheet, Exs.D1 to 11, interlocutory applications, deposition of witnesses and final order passed in O.S.No.289/1997. The endorsement found on the document is to the effect that the file in O.S.No.289/1997 is misplaced, concerned inward clerk has been transferred to other Court and time was sought to trace out the records and to furnish the copies.
25. It is pertinent to note that learned counsel for the plaintiff has not disputed filing of such suit for permanent injunction by the defendant in O.S.No.289/1997. Therefore, it is clear that even during 1997, the defendant herein as plaintiff, had filed the suit making allegations against the Board. When the said fact is not denied, the plaintiff should have an explanation as to why the suit for declaration was not
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NC: 2023:KHC-K:8650 CRP No. 200022 of 2020 filed atleast within 3 years from the date of the suit O.S.No.289/1997.
26. Learned counsel for the respondent contended that since the defendant started interfering with the possession and enjoyment of the suit property by the plaintiff, the present suit was filed during 2011. But, the fact remains that the defendant herein has alleged interference by the plaintiff and it is stated that the property being the wakf property was also denied and therefore, the suit once transferred to the Wakf Tribunal was again re-transferred to the Court at Aland.
27. All the above facts probabilise the defence taken by the defendant that even during 1997, the defendant had denied the right of the plaintiff, but it has not chosen to seek any declaration regarding its title. Therefore, prima-facie the suit of the plaintiff is barred by limitation.
28. It is also to be noticed that the description of the defendant is as Secretary to Sri Hanuman Devasthan and Basaveshwr Committee. The photo relied on by the defendant disclose such structures standing therein. If at all the defendant had put up the structure, the plaintiff should
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NC: 2023:KHC-K:8650 CRP No. 200022 of 2020 have objected then and there. There is no explanation as to how and when such structures came into existence and why the plaintiff has not initiated any action against the defendant or any other person who is responsible for the same.
29. Section 4 of the Wakf Act deals with preliminary survey before treating the property as a wakf property and Section 5 deals with publication of list of such wakf properties by the State Government. It is the settled proposition of law that under the Muslim law, a wakf can be created in different ways, but there must be a permanent dedication of the property by a person professing islam and for the purpose of pious, religious or charitable purposes. Even in the absence of such dedication, if there was long usage of the property as wakf property for such religious or public charitable purposes, then also, it can be treated as a wakf property. Depending upon the facts and circumstances of the case, the dedication for such purposes could be presumed.
30. The Hon'ble Apex Court in Salem Muslim Burial Ground Protection Committee Vs. State of Tamil Nadu &
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NC: 2023:KHC-K:8650 CRP No. 200022 of 2020 Ors.2 discussed about creation of wakf property, the procedures that are to be followed, the characteristic of the same and held in para Nos.31 and 32 as under;
"31. The Wakf Act, 1954, which actually is relevant for our purpose, provides that, first, a preliminary survey of wakfs has to be conducted and the Survey Commission shall, after such inquiry as may be deemed necessary, submit its report to the State Government about certain factors enumerated therein whereupon the State Government by a notification in the official Gazette direct for a second survey to be conducted. Once the above procedure of survey is completed and the disputes arising thereto have been settled, on receipt of the report, the State Government shall forward it to the Wakf Board. The Wakf Board on examining the same shall publish the list of wakfs in existence with full particulars in the official Gazette as contemplated under Section 5 of the Act. Similar provisions exist under the Waqf Act, 1995.
32. A plain reading of the provisions of the above two Acts would reveal that the notification under Section 5 of both the Acts declaring the list of the wakfs shall only be published after completion of the process as laid down under Section 4 of the above Acts, which provides for two surveys, settlement of disputes arising 2 (2023) 7 SCR 388
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NC: 2023:KHC-K:8650 CRP No. 200022 of 2020 thereto and the submission of the report to the State Government and to the Board. Therefore, conducting of the surveys before declaring a property a wakf property is a sine qua non."
31. The Hon'ble Apex Court also made it clear that once the Notification is published in the Official Gazette, it will have a presumption of knowledge to the general public just like an advertisement published in the newspaper. But the same cannot bind the State Government.
32. Section 81 of the Indian Evidence Act, also presumes the genuiness of the Notification published in the Official Gazette which can be read along with Section 114 of the Act with reference to illustration 'e' there to. But, definitely it is a rebuttal presumption by leading contrary evidence. Therefore, for the Board to rely on the Notification said to have published in the Official Gazette, it has to prove the primary requirement of law as contained under the Wakf Act. It is incumbent for the Board to rely on the Notification which was published in the Official Gazette to place reliance on the same by producing the Notification in its entirety. It cannot rely on a stray sheet of paper contending that it is the part of the Official
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NC: 2023:KHC-K:8650 CRP No. 200022 of 2020 Notification, which will not attract any presumption as stated above. Under such circumstances, heavy burden lies on the Board to prove the dedication or long usage of the property for the purpose for which it was meant and also following the procedures for notifying in the Official Gazette.
33. Learned counsel for the respondent tried to contend that the Board is exempted from paying the land revenue to the Government. But, however, he could not substantiate the same with reference to any provisions of law either under Wakf Act or under any other statute. On the other hand, Chapter VII of the Wakf Act deals with finance of the Board and Section 72 refers to the annual contribution payable to the Board. When the annual income of the Wakf is not less than Rs.5,000/-, the land revenue is to be paid to the Government on priority from out of the net income. Therefore, the contention of learned counsel for the respondent that the Board is exempted from paying the land revenue to the Government will have to be rejected.
34. It is to be noticed that Order VII Rule 3 of CPC deals with description of the property which is sufficient to
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NC: 2023:KHC-K:8650 CRP No. 200022 of 2020 identify it, when the subject matter of the suit is the immovable property. It is the requirement of law that the description of the property shall contain the property number in any public document with its boundaries and the measurement to know its extent. Without there being the property number, I don't think there will be any property that may be in existence either at village panchayath level or within the municipal or corporation jurisdiction. From the description found in the plaint, the property in question cannot be identified only with the help of the measurements and the boundaries. Not even a scrap of paper or convincing evidence is produced to support the contention of the Board that it was in possession and enjoyment of the property in question since from the date of the Notification in the Official Gazette. On the other hand, the defendant has produced sufficient materials to probabilise his contention. There cannot be any explanation for the documents that are relied on by the defendant, especially, the revenue records and the tax paid receipts.
35. Strangely, the plaintiff has not produced any document to show that the revenue documents stand in its name pursuant to the Notification published in the Official
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NC: 2023:KHC-K:8650 CRP No. 200022 of 2020 Gazette. It is strange to hear from the learned counsel for the respondent that once the Notification is issued, the property is to be held to be the wakf property irrespective of the fact as to whether the said Notification was referred to in any of the revenue records by showing the characteristic of the property, in the absence of any material to show the usage of the said land for the purpose for which it was dedicated. Such arguments are not only fancy but are without any basis. Hence, I am of the opinion that the contention raised by the plaintiff cannot be accepted.
36. The discussions held above disclose that the plaintiff even though asserts its title over the suit property, the identification of the same is not proved. The possession of the same is also not proved by the plaintiff. Importantly, dedication of the property as wakf by any person or existence of the property as wakf property by long usage is not even probabilised. Under such circumstances, the plaintiff is not entitled for any relief as sought.
37. Even though learned counsel for the respondent placed reliance on the decision in Sayyed Ali (supra), in the
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NC: 2023:KHC-K:8650 CRP No. 200022 of 2020 said case, there was no dispute that the property in question was the wakf property. However, the applicant sought for confirming of the right under Inams Act and the same was questioned. On the facts and circumstances of the said case, the Hon'ble Apex Court observed as under;
"It may be stated that a wakf is a permanent dedication of property for purposes recognized by Muslim law as pious religious or charitable and the property having been found as Wakf would always retain its character as a Wakf. In other words, once a Wakf always a Wakf and the grant of patta in favour of Mokhasadar under the Inams Act does not, in any manner, nullify the earlier dedication made of the property constituting the same as Wakf. After a Wakf had been created, it continues to be so for all time to come and further continues to be governed by the provisions of the Wakf Act and a grant of patta in favour of Mokhasadar does not affect the original character of the Wakf property."
38. Bare reading of the above discloses that once it is having found that the property is the wakf property, then, it will have the character of such property as wakf property. In the present case, the discussions held above disclose that the plaintiff has failed to prove the existence of the property as
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NC: 2023:KHC-K:8650 CRP No. 200022 of 2020 described and it has also not proved that it is the wakf property. Hence, the decision is not applicable to the facts of the case.
39. I have gone through the impugned judgment and decree passed by the Tribunal. It has proceeded to decree the suit only on the ground that the Notification Ex.P1 was not challenged by the defendant and therefore, concluded that the plaintiff is entitled for the relief. When the plaintiff fails to prove the identity of the suit property and also fails to produce the Official Gazette Notification to prove its contention, including the possession of the property, the Tribunal has committed an error in raising such presumption in favour of the plaintiff and decreeing the suit. Therefore, the finding of the Tribunal is erroneous and illegal and the same is liable to be set aside.
40. In view of the above, I am of the opinion that the petitioner has made out a case to allow the petition. Accordingly, I answer the above point in the 'affirmative' and proceed to pass the following;
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NC: 2023:KHC-K:8650 CRP No. 200022 of 2020 ORDER
a) The petition is allowed with costs.
b) The judgment and decree passed by the Wakf Tribunal, Gulbarga dated 02.05.2012 passed in O.S.No.23/2011, is set aside.
c) Consequently, the suit O.S.No.23/2011 filed by the respondent herein is dismissed with costs. Registry to send back the records along with copy of this order.
Sd/-
JUDGE PN List No.: 1 Sl No.: 3