Karnataka High Court
Syed Shah Ameeniddin Hussaini vs Syeda Khatoon W/O Syed Shah Mehamood ... on 21 April, 2023
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CRP No. 2022 of 2011
IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH
DATED THIS THE 21ST DAY OF APRIL, 2023
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
CIVIL REVISION PETITION NO. 2022 OF 2011 (-)
BETWEEN:
SYED SHAH AMEENIDDIN HUSSAINI,
SINCE DECEASED BY HIS LR'S
1(a). SYED SHAH ASADULLA HUSSAININ
S/O SYED SHAH AMENIDDIN,
AGE: 46 YEARS, OCC: SAJJADA NASHEEN
& MUTHAWALLI OF KHANKHA OF DARGAH,
KHAJA ABDUL FAYAZ, SYED MINALE, HUSSAINI,
R/O: H.NO.3-2-152, NOORKHAN TALEEM,
BIDAR.
1(b). SYED SHAH AHEMADULLA HUSSAININ
@ SAYED TARIQ S/O SYED H AMENIDDIN,
AGE: 39 YEARS, OCC: NIL,
Digitally signed by
R/O: H.NO.3-2-152, NOORKHAN TALEEM,
SOMANATH
PENTAPPA MITTE BIDAR.
Location: High
Court of Karnataka
1(c). S.YASOOBUNISA SAFOORA
W/O K.S.S. AMEENULHA HUSSAINI,
AGE: 54 YEARS, OCC: HOUSEHOLD,
R/O: ASTHAN-E-MADOOMULLAH,
AMEN PEER ROAD, KADPAH,
ANDHRA PRADESH.
1(d). S. IMAMUNISA FARKHUNDA
W/O MOBINPASHA INAMDAR,
AGE: 52 YEARS, OCC: HOUSEHOLD,
R/O: H.NO.191, MALI GALLI,
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CRP No. 2022 of 2011
BELGUM.
1(e). S. MOHAMMADI BEGUM HAJERI
W/O S.IBRAHIM QUADRI,
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O: KHANKA ALMAL PASHA,
QUADRIPURA, BIDAR.
1(f). KANEEZ HYDER TAHERA
W/O S.S.K. MOHSIN HUSSAINI,
AGE: 48 YEARS, OCC: HOUSEHOLD,
R/O: SAMTHA COLONY, TOLICHOKI,
HYDERABAD.
1(g) S. KANEEZ ZAHERA ARSHIYA
W/O S. SADERUDDIN HUSAINI,
AGE: 41 YEARS, OCC: HOUSEHOLD,
R/O: ARKAT GALLI, NOORKHAN TALEEM,
BIDAR.
...PETITIONERS
(BY SRI AMEET KUMAR DESHPANDE, SENIOR COUNSEL ALONG
WITH SRI GANESH S.KALABURAGI, ADVOCATE FOR P1(A) TO
P1(G);
AND:
1. SYEDA KHATOON
W/O SYED SHAH MEHAMOOD HUSSAINI,
AGE: 50 YEAS, OCC: HOUSEHOLD,
R/O: CHRISTIPURA, T: & DIST: BIDAR.
(LR.NO.1 OF DEFENDANT NO.2)
2. SYED SHAH MEMAMOOD HUSSAINI,
DEAD BY HIS LRS.
i. SYEDA KHATOON
W/O SYED SHAHA MEHAMOOD HUSSAINI,
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CRP No. 2022 of 2011
AGE: 75 YEARS, OCC: HOUSEHOLD,
R/O: CHRISTIPURA, BIDAR, TQ: & DIST: BIDAR.
ii. SYED SHAH AMEERULLA HUSSAINI
@ TOUFIQUE HUSSAINI,
S/O LATE SYED SHAH MEMAMOOD HUSSAINI,
AGE: 56 YEARS,
R/O CHRISTIPURA, BIDAR.
iii. KANEEZ FATIMA
D/O LATE SYED SHAH MEMAMOOD HUSSAINI,
W/O SYED SHAH HAJI HUSSAINI,,
AGE: 56 YEARS,
R/O H.NO.3-5-782/A/1, PLOT NO.672, KING KOTE,
HYDERABAD.
iv. SYED SHAH ATEEK HUSSAINI
S/O LATE SYED SHAH HUSSAINI,
S/O LATE SYED SHAH MEMAMOOD HUSSAINI,
AGE: 58 YEARS,
R/O: CHRISTIPURA, BIDAR. T. & DIST: BIDAR.
v. SYED SHAH RAFEEQ S/O. LATE SYED SHAH
MEMAMOOD HUSSAINI,
AGE: 56 YEARS,
R/O: CHRISTIPURA, BIDAR, TQ: & DIST: BIDAR.
vi. BANI BEGUM
D/O. LATE SYED SHAH MEMAMOOD HUSSAINI,
W/O SYED HASSAN ALI,
AGE: 49 YEARS, OCC: HOUSEHOLD,
R/O: IN FRONT OF MADRASA MEMAMOOD GAWAN
CHOWK, BIDAR.
vii. KASAIR FATIMA
D/O LATE SYED SHAH MEMAMOOD HUSSAINI,
AGE: 47 YEARS, OCC: HOUSEHOLD,
R/O: CHRISTIPURA, BIDAR.
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CRP No. 2022 of 2011
viii. SAYEDA NUSRATH BEGUM W/O LATE SYED SHAH
MEMAMOOD HUSSAINI,
AGE: 61 YEARS, OCC: HOUSEHOLD,
R/O: KHADRIPURA, PATALANAGARI, BIDAR.
3. KARNATAKA STATE BOARD OF WAQFS
THROUGH ITS SECRETARY
NO.9, CUNNINGHAM ROAD,
BENGALURU-560 052.
...RESPONDENTS
(BY SRI. RAVI B.PATIL, ADVOCATE FOR R1 & R2(1) TO R2(8);
SRI. SUDARSHAN M, ADVOCATE FOR R3)
THIS CIVIL REVISION PETITION IS FILED UNDER SECTION
83(9) WAQF ACT, 1995, PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE DATED 19.08.2011 PASSED IN O.S.NO.23/2010 BY
THE KARNATAKA WAQF TRIBUNAL, GULBARGA DIVISION,
GULBARGA AND TO FURTHER DECREE THE SUIT OF THE
PETITIONER AS PRAYED IN THE PLAINT IN THE INTEREST OF
JUSTICE.
THIS CRP HAVING BEEN HEARD THROUGH PHYSICAL
HEARING/VIDEO CONFERENCE AND RESERVED FOR ORDER ON
28.02.2023, COMING ON FOR PRONOUNCEMENT OF ORDER THIS
DAY, THE COURT MADE THE FOLLOWING:
ORDER
This revision petition is directed against the judgment in O.S.No.23/2010 dated 19.08.2011 by the Waqf Tribunal, Gulbarga, whereby the said suit came to be dismissed.
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2. The plaintiff before the Tribunal is the revision petitioner herein. The parties are referred as per their ranks before the Trial Court for the sake of convenience.
3. The facts in brief that are necessary for the purpose of this revision, as stated by the petitioner, are summarized as below:
(a) The plaintiff/revision petitioner in his plaint before the Tribunal contended that he is Sajjada Nasheen and Muthawalli of Dargah Sharif of Hazarath Khaja Abdul Fayaz Syed Minale Hussaini, Bidar since time immemorial from the time of his fore-fathers and the present suit in respect Dargah Sharif only. The plaintiff sought for the relief of perpetual injunction restraining the defendants/ respondents from calling themselves as Muthawalli and Sajjada Nasheen and making any interference in the possession and management of the Sajjadagi and Towliat rights over the Dargah Sharif. It is the case of the plaintiff that Khanka Sharif is situated on the road from Choubara to Mangalpet Iron door way and the Dargah Sharif is -6- CRP No. 2022 of 2011 situated at abadi. The said Dargah has buildings including Samakhana etc., and it is in land Sy.No.73 of Haldkeri village, Taluka Bidar. The plaintiff contends that he is in exclusive, rightful possession and enjoyment of the Dargah Sharif as Sajjada and Muthawalli and there is continuous sanad and other title deeds from time to time from the founder Hazarath Khaja Abdul Fayaz and subsequently granted by the Government and competent authority including the Waqf authorities which have been issuing the grant in favour of the plaintiff and his four fathers.
(b) The plaint avers that defendant No.1 is the wife of defendant No.2 and both have nothing to do the vested legal status plaintiff over the Dargah Sharif and they have no right and interest in the said institutions or its Sajjadagi and Touliyat. It is further contended that with the help and instigation of defendant No.2, the defendant No.1 has tried to get some sort of interest in the Touliyat of the institution exclusively possessed by the plaintiff, in the -7- CRP No. 2022 of 2011 Waqf Department, i.e. Karnataka Board of Waqf Bangalore by referring the same to the Law Committee, which after due enquiry passed final order dated 19.05.1982 against the defendant No.1, in favour of the plaintiff holding that plaintiff is the only and sole Sajjada Nasheen and Muthawalli of the Dargah Sharif. It is contended that on the basis of the order of the Karnataka Waqf Committee, Bidar informing the Chairman that the name of the plaintiff as a Muthawalli cannot be deleted and that the defendant No.1 is not entitled to receive annuity.
(c) In spite of such pronouncement of the competent authorities, the defendants again are adopting some other methods to create cloudy atmosphere against the right, title and interest of plaintiff pertaining to the suit Sajjadagi and Touliyat. It was alleged that they are trying to make interference and obstruction thereof and in spite of request they refused to stop such interference. Such interferences gave rise to the cause of action to file the suit on 06.04.1983. Therefore, it was contended that the -8- CRP No. 2022 of 2011 plaintiff is the sole and exclusive Sajjada Nasheen and Muthawalli of the Dargah Sharif Hazarath Khaja Abdul Fayaz Syed Minale Hussaini, Bidar and he is in possession and enjoyment of the right and privilege of the said institution. It was prayed that it be declared that the plaintiff is the sole and exclusive Sajjada Nasheen and Muthawalli of Dargah Sharif and for perpetual injunction restraining the defendants from calling themselves as Sajjada Nasheen and Muthawalli of Dargah Sharif and making any obstruction in the enjoyment regarding Sajjadagi and Touliyat rights of the plaintiff over the institution of the Dargah Sharif be granted.
4. During the proceedings before the Tribunal, the original defendant No.2 died and his legal heirs are brought on record. The defendant No.3, i.e., Karnataka State Board of Waqf was impleaded during the pendency of the proceedings.
(a) The defendant No.1 and LRs of defendant No.2 have filed their written statement. They have denied the -9- CRP No. 2022 of 2011 entire plaint allegations and contended that the plaintiff is the Sajjada Nasheen and Muthawalli of the Dargah and Khankha Hazarat Khaja Abdul Faiz at Bidar only to the extent of performing the Sandal and Urus once in a year;
for which jahagir of village Rukul Tq. Zaheerabad, Dist. Medak in Andhara Pradesh and lands were given to the ancestors of the plaintiff by the then Government of Hyderabad. It was contended that the plaintiff is Mutwalli and Sajjada of Khankha Sharif situated at Noorkhana Talim, Bidar, but at present Syed Shah Gazi Hussaini S/o Syed Akbar Hussaini is Sajjada of the said Khankha situated at Chistipur Noorkhan Talim, Bidar. It was admitted that Dargah Sharif is having pakka construction and buildings and there is also one Samakhana. It is also contended that there are also two Chowkhandies and Dargah Sharif is situated in Sy.No.73 of the village Haldkeri. It is stated these facts are borne out of the Muntakab. The defendants also contended that the ancestors of the plaintiff have got ½ share and the ancestors of the defendant have got ½ share and the
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CRP No. 2022 of 2011municipality has given separate municipal numbers to the Dargah Sharif. They contended that the plaintiff is not in exclusive possession and the enjoyment of the Dargah, but the plaintiff is entitled to perform the only the Urus and Sandal of the Dargah once in a year.
(b) The defendants contended that to perform the Sandal and Urus every year, the plaintiff used to get cash grant of Rs.6,000/-. They denied that Sanad are in the name of plaintiff and the founder of the Dargah. They contended that Sanad and title deeds are coming from time to time of Hazarth Syed Abdul Khader Hussaini and thereafter two muntakabs have been sanctioned. They contended that one of the muntakabs is in the name of the ancestors of the plaintiff regarding mash of Jahagir of Rikul village, Tq. Zaheerabad in Andrha Pradesh and another Muntakab pertaining to the mash of Chatnalli, Tq. and Dist. Bidar is in the name of ancestors of the defendants. Subsequently, Muntakab is granted only in the name of the then Government of Hyderabad and that
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CRP No. 2022 of 2011there are corrections in the same. It is stated that the defendants have got their legal status over the Dargah Sharif as Muthawalli; and the duties of the plaintiff and defendant No.1 are separate. It is contended that the defendants are rendering their daily service of Ood-o-gul and the plaintiff has got no right or concern in respect of rendering the daily services of Ood-o-gul which is only rendered by the defendant and for which the exclusive mash of the village in Chatnalli is in the name of the defendants.
(c) It is contended that the matter had been referred to the Law Committee of the defendant No.3 Waqf Board and the Law Committee has given a decision and that the defendant No.1 aggrieved by the order of the Law Committee has filed writ petition before the High Court of Karnataka challenging the order of the Law Committee and the said writ petition has been disposed of with the observations that since the suit in O.S.No.50/1983 was pending before the Addl Munsiff Court, Bidar, the said
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CRP No. 2022 of 2011Court has to deal with those aspects regarding the decision rendered by the Law Committee. It is contended that the defendants are unaware of the letter sent by the Karnataka Board of Waqf Bengaluru in the name of Waqf Committee, Bidar intimating that the defendant No.1 is not entitled to receive the annuity. It is contended that the Deputy Commissioner, Bidar has held a proper inquiry in respect of the sanction of the annuity in the name of defendant No.1 and the plaintiff had filed objections in that case, but the learned Deputy Commissioner has sanctioned the annuity in the name of the defendant No.1 on the basis of the Muntakab granted in the name of the defendant No.1. It is contended that the allegations that the plaintiffs are interfering in the duties of the plaintiff are false and denied. It is further contended that the plaintiff is not the sole Sajjada Nasheen and Muthawalli of Dargah Sharif, but it is the plaintiff and the defendant No.1 are both the Muthawalli of Dargah Sharif but their duties are different. When both the plaintiff and defendants are rendering the services of Dargah Sharif, the question of
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CRP No. 2022 of 2011interference and obstruction does not arise, but the clever plaintiff in order to deprive the defendants from legal heirs vested rights has made wrong allegations and filed the suit.
(d) It is contended that the decision of the Law Committee constituted by the Karnataka Waqf Board was questioned by the defendants before the High Court and the High Court has ordered that the correctness of the decision rendered by Law Committee is also to be decided by the Civil Court.
(e) It is contended that the plaintiff previously filed a suit in respect of the present matter in O.S.No.50/1983 and on dismissal of the suit, an appeal was filed wherein the plaint was returned and the present suit came to be filed before the Waqf Tribunal and as such the correctness and validity of the order of Law Committee is also to be decided in the present suit.
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CRP No. 2022 of 2011
(f) They also contended that the father of the plaintiff had filed an appeal being aggrieved by the order of the District Collector, Bidar dated 18.06.1951 before the Nazim-e-Atiat Court Hyderabad in File No.21/87/1956 regarding sanction of grant of Chatnalli village and the said appeal was dismissed on 16.01.1953. Therefore, in view of the said judgment, the present suit is hit by principle of res-judicata and hence the suit is not maintainable.
(g) They also contended that ancestors of defendants and Lalan Hussaini are buried in the Dargah Sharif and the graves are in the said Dargah and as such the defendants are rendering fateha to the said graves of their ancestors.
(h) It was also contended that the plaintiff having no right in whatsoever manner and by misrepresenting the fact, is intending to get some decree against the defendants, but on the other hand, the defendant No.1 is
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CRP No. 2022 of 2011valid holder of Muntakab rendering the services of Ood-o- gul.
(i) Apart from that the defendants contended that plaintiff had filed O.S.No.50/1983 seeking declaration and perpetual injunction that he is the sole and exclusive Sajjada Nasheen and Muthawalli of Dargah Sharif. It was contested by the defendants that in the said suit the plaintiff filed IA U/o 23 rule 1 of CPC for abandonment of the right of declaration as sole Sajjada Nasheen and Muthawalli. The said IA No.29 came to be allowed on 20.08.2009 and subsequently the learned Addl Civil Judge (Jr.Dn.) Bidar dismissed the said suit. Aggrieved by the said order, the plaintiff had preferred regular appeal in R.A.No.18/2010 before Civil Judge (Sr.Dn.) Bidar and the appeal came to be allowed whereby the plaint is ordered to be returned. Thereafter the plaintiff filed the present suit in continuation of the earlier suit under the provisions of Order 7 Rule 10 of CPC, but however the plaintiff has again included the relief of declaration. Therefore, when
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CRP No. 2022 of 2011the plaintiff had abandoned his claim for declaration, he could not have filed the present suit including the prayer of declaration of his right and as such the plaintiff is barred from claiming the right of declaration.
(j) It is also stated by the defendants in the written statement that the order of the competent authority granting Muntakab in the name of defendant No.1 for performance of Ood-o-gul and due recognition of the same by grant of the land of Chatnalli by the Deputy Commissioner, Bidar; and Nazim Atiat Court ; having passed an order in favour of the defendants; and in pursuance to the same annuity being granted to the defendant by the Deputy Commissioner; go to show that the defendant is also a Muthawalli.
(k) It is also contended that the plaintiff in collusion with some of the officials of the Waqf Board have got illegally entered his name in Serial No.595 of Notification u/s 4 of the Act and on the bases of the request by the defendant No.1, the District Waqf Advisory Committee,
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CRP No. 2022 of 2011Bidar recommended the matter to the Chief Executive Officer, Karnataka Waqf Board, Bangalore for deleting the name of the plaintiff and to include the name of the defendant No.1 as per the Muntakab. The defendant No.1 is receiving the annuity amount in respect of her services of Ood-o-gul. Therefore, the defendants had sought for dismissal of the suit.
5. On the basis of the above pleadings, the Tribunal framed necessary issues and additional issues. The plaintiff in order to prove his case was examined as PW1 and one witness examined as PW2 and Ex.P1 to Ex.P44 were marked in evidence. The defendants in order to prove their case, examined the son of the defendant No.1 and also power of attorney holder of the defendant No.1 as DW1 and two witnesses were examined as DW2 and DW3 and Ex.D1 to Ex.D26 were marked on their behalf.
6. On hearing both the sides, the Tribunal answered the issues as below and dismissed the suit.
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CRP No. 2022 of 2011
No. Issues Finding of
Tribunal
1. Whether the plaintiff proves that Negative he is the sole and exclusive Sajada Nasheen and Muthawalli of Dargah Sharif of Hazarath Khaja Abdul Fayaz of Bidar?
2. Whether the plaintiff further Negative proves that he is in exclusive possession and enjoyment of suit Dargah Sharif of Hazarath Khaja Abdul Fayaz of Bidar?
3. Whether defendants prove that Affirmative plaintiff and defendant No.1 both are the Muthawalli of Dargah Hazarath Khaja Abdul Fayaz of Bidar and services rendered by them to the said Dargah are separate as contended in para No.5 of their written statement?
4. Whether the plaintiff is entitled Negative to reliefs sought for?
5. What decree or order?
ADDITIONAL ISSUES
1. Whether the suit of the plaintiff Negative in the present form is maintainable?
2. Whether the plaintiff proves that Negative the order passed in O.S.No.50/1983 in para No.7 of the written statement creates res judicata in view of Ex.P.41?
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CRP No. 2022 of 2011
7. Aggrieved the said judgment, the plaintiff has approached this Court in revision under Section 83(9) of the Waqf Act, 1995. The revision petitioner contends that he is appointed as a sole and exclusive Muthawalli as may be found from the order passed by the Waqf Board, Bengaluru as per Ex.P7 notification dated 09.03.1972, which has attained finality. Therefore, the suit should have been decreed by the Tribunal.
a) He contends that Ex.P27 Gazette notification reflects the name of the petitioner herein and his father as Muthawalli being in occupation of the land belonging to the Dargah. Whereas the name of the defendant No.1 is not shown in the Gazette notification which was published under Section 5 of the Waqf Act 1954 and the said notification has not been challenged by the defendants. Even after the commencement of the Waqf Act 1995 the said Gazette notification has not been challenged before the Waqf Tribunal as permissible under Section 6 of the Waqf Act. Therefore, the revision petitioner herein ought
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CRP No. 2022 of 2011to have declared as sole and exclusive Sajjada Nasheen and Muthawalli.
b) It is further contended that Ex.P11, the order passed by the Law Committee of Waqf Board dated 22.09.1982 rejected the claim of the defendant Nos.1 and 2 regarding performance of the Ood-o-gul and held that the revision petitioner is the sole and exclusive Sajjada Nasheen and Muthawalli of Dargah. It is contended that the Writ Petition No.7758/1983 was dismissed by the High Court and the defendant Nos.1 and 2 have not filed any suit challenging the order of the Law Committee. It is also stated that defendants neither made any counter claim in O.S.No.50/1983 nor in the OS No.23/2010 which was filed before the Waqf Tribunal. It is stated that the Waqf Board being the only competent authority to approve the appointment of the Sajjada Nasheen and Muthawalli, the order of the Waqf Board having attained the finality, the rights of the petitioner herein ought to have been declared by the Tribunal.
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CRP No. 2022 of 2011
c) It is contended that the Ex.D16, the order of the Nazim-e-Atiat Court was without the jurisdiction as held by the Trial Court while passing an order on IA No.1 in O.S.No.50/1983. It is stated that the said order operates as res-judicata in subsequent stages and order passed Nazim-e-Atiat Court has also not decided regarding the Touliyat or Muthawalliship of the respondent Nos.1 and
2. That was only in respect of adjudication of the Muntakab but not regarding the rights of Sajjada and Muthawali. Therefore, it is contended that the order of the Nazim Atiat Court cannot act as a res-judicata. However, after the enforcement of the Waqf Act 1954, the Atiat Enquiries Act has been repealed and the authorities under the Karnataka Land Revenue Act get jurisdiction in the matter.
d). It is submitted that the Tribunal has committed a grave error of law in not framing the issue regarding grant of perpetual injunction in favour of the revision petitioner.
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CRP No. 2022 of 2011
e). It is contended that the plaint was presented before the Waqf Tribunal only when the earlier plaint in O.S.No.50/1983 was returned and therefore the revision petitioner is entitled for exemption under Section 14 of the Limitation Act.
f). It is submitted that the respondents did not raised the plea regarding the suit of the petitioner being barred by limitation and the Tribunal has also not framed any issue in that regard.
g). They contended that the Tribunal without considering the entire material on record has erroneously come to the conclusion that the suit of the revision petitioner is barred by limitation. It is contended that Section 107 of the Waqf Act 1995 makes the Limitation Act inapplicable to the suits not only for possession of the Waqf property but also for any interest in such property. It is contended that the revision petitioner is claiming interest in the Waqf property i.e., regarding Muthawalliship
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CRP No. 2022 of 2011and Sajjadagi and exclusive claim for annuity of the Waqf property and as such the provisions of 107 are applicable.
h). It is contended that the DW1 has stated that a woman cannot be Sajjada and Muthawalli and the observation of the Tribunal that woman can act as Muthawalli by appointing a proxy or an agent is against the basic tenets of Mohammedan law. It is contended that a person who has no power cannot delegate the authority to the agent.
i). It is contended that the presentation of the plaint before the Tribunal after the same was returned by the Civil Court amounts to filing of the fresh suit except that the plaintiff will be entitled for excluding the time spent for prosecuting the case before the Civil Court under Section 14 of the Limitation Act.
j). It is contended that the performance of Ood-o- gul by the petitioner being Muthawalli is bonafide and Muthawalli alone is entitled to claim the same. There
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CRP No. 2022 of 2011being no order by a competent authority in law appointing the defendant No.1 as Muthawalli or sharer of Muthawalli, the judgment and decree passed by the Tribunal is not sustainable and as such the judgment of the Tribunal is set aside.
8. On issuance of notice to the respondents, they have appeared through their counsel. The respondent No.3 has also appeared through its counsel. The Tribunal records have been secured. The submissions by learned counsel appearing for the revision petitioner and the learned counsel appearing for respondents are heard.
9. Learned Senior counsel Sri. Ameet Kumar Deshpande, appearing for the revision petitioner has taken me through the various provisions of the Waqf Act 1954 and the Waqf Act 1995 to contend that there was no such notification whereby the defendant was shown to be the Muthawalli of Dargah Sharif. He contends that in the notification issued by the Waqf Board after holding preliminary enquiry under Section 4 of the Act, publication
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CRP No. 2022 of 2011of the list of Waqf under Section 5 of the Act, the name of the defendant No.1 was never shown. The defendant No.1 had raised dispute before the Tribunal (under Section 6 of the 1995 Act) which was referred to a Law Committee. The Law Committee after deliberations passed an order as per Ex.P11 holding that the plaintiff is the only Sajjada Nasheen and Muthawalli as Dargah Sharif. The said order was questioned by the defendants before the Hon'ble High Court of Karnataka in the writ petition. In the meanwhile, OS No.50/1983 was filed, which was dismissed against which the appeal was filed. The writ petition came to be disposed of holding that the correctness of the finding of the Law Committee is to be dealt by the Court in OS No.50/1983. Therefore, the said OS No.50/1983 having culminated in return of the plaint and resulting in the present suit, the correctness of the finding of the Law Committee has to be decided in the present suit itself. Therefore, he contends that the scope of the suit not only concerns about the exclusive right in the nature of Sajjada Nasheen and Muthawalli of Dargah Sharif, but also
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CRP No. 2022 of 2011regarding correctness of the finding of the Law Committee of the defendant No.3 Waqf Board.
10. Regarding the merits, he submits that the services of Ood-o-gul is only a service of offering fragrances and roses to the Dargah. It is not only the defendants who can perform the services of Ood-o-gul, but any public who intends to offer prayers can perform the services of Ood-o-gul. Therefore, he contends that the right to perform the services of Ood-o-gul cannot be brought in the purview of Muthawalli or Sajjada Nasheen.
11. He further contends that even though there were two Muntakabs, one granting the rights concerning the services of Sandal and Urus to the Dargah and the other for the services of Ood-o-gul, it is only services of Sandal and Urus which was recognized by the Waqf Board and therefore the name of the plaintiff alone was entered in the Gazette notification issued by the defendant No.3. He submits that when notification issued under Section 5 of the Act is preceded by an enquiry, the presumption that
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CRP No. 2022 of 2011the Survey Commissioner had enquired into the matter and then only showed the name of the plaintiff as Muthawalli has to be accepted and such persumption is liable to be rebutted by the defendants with cogent evidence. When the name of the defendant did not appear in the notification issued by the Waqf Board, the defendant cannot claim any right in the nature of Sajjada Nasheen and Muthawalli of Dargah Sharif.
12. The third aspect which he contends is that there cannot be two Muthawalli for a single Waqf institution. He submits that this aspect was considered by the Law Committee of the Waqf Board and there is no sufficient reason to hold that the defendant is also permissible to act as a Muthawalli.
13. He contends that the evidence on record show that the plaintiff had submitted the budget, accounts etc., and there is voluminous correspondence with the Waqf Board showing that he had acted as Muthawalli and Sajjada Nasheen. This evidence is not considered by the
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CRP No. 2022 of 2011Tribunal, but only on the basis of the Muntakab in favour of the defendant, for the purpose of performance of Ood- o-gul services, the Tribunal has dismissed the claim of the sole and exclusive rights of Muthawalli and Sajjada Nasheen of the plaintiff.
14. Lastly he contends that the defendants after the dismissal of the writ petition before the High Court of Karnataka questioning the order of the Law Committee, had not made any counter claim in the O.S.No.50/1983 or in the present suit. Therefore, it is submitted that the judgment passed by the Tribunal is not sustainable under law.
15. Per contra, the learned counsel appearing for the respondent No.1 and the legal heirs of respondent No.2 has contended that Ex.D19 which is the copy of the audit report shows the name of the defendant as beneficiary of Ood-o-gul, it refers to Muntakab No.2227. Whereas the notification as per Ex.P27 issued by the Waqf
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CRP No. 2022 of 2011Board shows at serial No.595 that only the name is changed as that of the plaintiff's grand father. It is submitted that Muntakab No.2227 mentioned the name of the defendant, but the Karnataka Waqf Board erroneously has entered the name of the grand father of the plaintiff. Therefore, the defendant approached the Waqf Board and they sought for Rs.100/- as charges for rectification which was also paid. However on technical grounds, the Law Committee has rejected the claim of the defendants, which was promptly questioned by the defendant before High Court in writ petition. Since the writ petition came to be disposed of holding that the correctness of the Law Committee has to be considered by the Civil Court, in O.S.No.50/1983 there was no necessity for the defendant to file any counter claim. The very prayer of the plaintiff was to exclude the rights of the defendants and the defendant was disputing the order of the Law Committee. Therefore, he contends that there was no necessity for challenging the order of the Law Committee in the form of a counter claim.
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CRP No. 2022 of 2011
16. He then contended that when the plaintiff had abandoned the claim of declaration in OS No.50/1983, he could not have sought for declaration once again after re- filing the plaint on the same cause of action.
17. Thirdly he contends that the family pedigree shown in Ex.D6 shows that there are two branches from the founder of the Dargah. The services in the form of Sandal and Urus and in the form of Ood-o-gul were divided and accordingly two separate Muntakabs were granted by the State of Hyderabad. The Ex.D4, the Muntakab would show the name of the defendant. It is contended that the Muntakab issued in favour of the plaintiff was in respect of Sandal and Urus and bears No.1645. Whereas the Muntakab issued in favour of the defendant is 2227/1. The Ex.D5 statement also show that plaintiff is claiming under the Muntakab 1645, but not 2227.
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CRP No. 2022 of 2011
18. It is contended that the Inam Patrika at Ex.D8 and Ex.D9 show the name of the defendant and all these documents clearly show that the defendant is receiving annuity and the certificate by the Waqf Board is declaring the defendant as Muthawalli for certain services.
19. He further submits that there are two kinds of services which may be raised under Section 6 of the Waqf Act i.e. Sunni or Shia Waqf and the second category of the dispute is whether it is the Waqf property or not and such dispute shall be raised within a period of one year. He contends that one year embargo will not apply to the question of Muthawalli and therefore the defendant was having every right to question concerning the rights of Muthawalli. He further contends that Section 42 of the Act deals with the power to appoint Muthawalli and only when there is vacancy, the Waqf Board will get a right to appoint a Muthawalli, otherwise, if Muthawalli is appointed under the old law, and if there is Muthawalli functioning, the Waqf Board will not get any right to displace a Muthawalli
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CRP No. 2022 of 2011who is working. Therefore, he contends that the dismissal of the suit by the Tribunal is right and he supports the views taken by the Tribunal in its judgment.
20. It is evident from the arguments of both the sides that an effort is made by both the sides to re- appreciate the evidence on record. A revision before the High Court under Section 83(9) of the Waqf Act 1995 have limited scope for consideration. The provisions of Section 83(9) of the Waqf Act read as below:
"No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal.
Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality or propriety of such determination and may confirm, reverse or modify such
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determination or pass such other order as it may think fit."
21. Regarding the scope of Section 83(9), it is apposite to refer to the decision of the Apex Court in the case of Telangana State Waqf Board and another V/s Mohamed Muzafar1. In para 16 and 17, it was observed as below:
"16. At the outset it is necessary to indicate that the consideration by the High Court ought not to have been in the nature of reappreciating the evidence which is permissible in an appeal. In a revision petition the scope of consideration is limited and the judgment/order under challenge can be interfered only in the event of there being perversity seen on the face of the order and if the conclusion reached cannot be acceptable to any reasonable person. In the instant case, on the factual aspects as noted, the Tribunal had referred to the evidence including the manner in which the extent of 1 (2021) 9 SCC 179
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the Waqf property was rectified and indicated as 998.66 sq. yd and also had taken into consideration the first round of litigation between the State Waqf Board and the father of the respondent wherein the conclusion reached was that the property in question is Waqf property. Therefore, such finding of fact which had been recorded by the Tribunal based on evidence available on record could not have been lightly interfered with by the High Court.
17. In that regard it would be appropriate to refer to the decision of this Court in Kiran Devi v. Bihar State Sunni Waqf Board which was authored by one of us (Hemant Gupta, .) wherein the scope of jurisdiction to be exercised under Section 83 of the Waqf Act is crystallised as follows: (SCC p.26, para 22) "22. therefore, when a petition is filed against an order of the Waqf Tribunal before the High Court, the High Court exercises the jurisdiction under Article 227 of the Constitution of India. Therefore, it is wholly
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CRP No. 2022 of 2011immaterial that the petition was titled as a writ petition. It may be noticed that in certain High Courts, petition under Article 227 is titled as writ petition, in certain other High Courts as revision petition and in certain others as a miscellaneous petition. However, keeping in view the nature of the order passed, more particularly in the light of proviso to sub-section (9) of Section 83 of the Act, the High Court exercised jurisdiction only under the Act. The jurisdiction of the High Court is restricted to only examine the correctness, legality or propriety of the findings recorded by the Waqf Tribunal. The High Court in exercise of the jurisdiction conferred under proviso to sub-section (9) of Section 83 of the Act does not act as the appellate court." "
22. In view of the above observation, there is no necessity for the High Court to re-appreciate the evidence on record as if it is an appeal. It is evident that the legislature has not provided any provision whereby the
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judgment of the Tribunal may be appeal. When there is no provision for appeal, the only remedy is under Section 83(9) of the Waqf Act. Obviously the scope of the revision under Section 83(9) is limited and therefore it is not necessary for this Court to enter into the re-appreciation of the evidence. It would suffice to find out whether there is any prima-facie illegality and impropriety committed by the Tribunal in coming to the conclusion. It is only in this background that the judgment of the Tribunal and the records has to be looked into.
23. The first contention of the revision petitioner is that a notification had been issued by the Waqf Board as per Ex.P27, wherein the name of defendant No.1 was not shown to be a Muthawalli. Therefore, when there was an enquiry / survey conducted by the concerned authority to ascertain regarding the Waqf property, the defendant was not shown to be the Muthawalli and their doing service of Ood-o-gul. Therefore, the respondent cannot be termed to be a Muthawalli. It is relevant to note that the said non
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entry of the name of the defendant was the subject matter of the dispute and the defendant No.2 had made an application to the Waqf Board to rectify the notification and to insert the name of the defendant. The Waqf board requested the defendant to make certain payments and ultimately the Waqf Board referred the matter to the Law Committee. Thus, it is evident that the notification as per Ex.P27 entry No.595 was the subject matter of the dispute raised by the defendant before the Waqf Board. She claimed her rights through Muntakab No.2227/1 which is produced at Ex.D4. Therefore, no fault can be found with the defendant that she did not exercise her right to get her name inserted in the Gazette notification as per Ex.P27. It is also relevant to note that the defendant was enjoying the annuity and therefore it cannot be said that she had to invoke the provisions of Section 83 of the Waqf Act 1995. The provisions of Section 83 of the Waqf Act 1955 deal with the constitution of the Tribunal etc,. Sub-section 2 of Section 83 reads as below:
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"83.2. Any mutawalli person interested in a waqf or any other person aggrieved by an order made under this Act, or Rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the waqf."
24. It is pertinent to note that it was not the contention of the defendant that she was appointed for the first time. It was not her contention that the plaintiff was not the Muthawalli. It was only her contention that her name be inserted in the notification which was left out erroneously. It is also relevant to note that when the matter was referred to the Law Committee, they also did not feel it proper that the defendant be asked to approach to Tribunal under Section 83(2) of Waqf Act. If at all the Law Committee constituted by the defendant No.3 Waqf Board had opined that the matter has to be decided by the
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CRP No. 2022 of 2011Tribunal, it could have said so. But it is to be noted that they acted under 1954 Act. Therefore, the revision petitioner herein cannot say that the defendant had to approach the Tribunal under Section 83(2) of the Waqf Act 1995.
25. The second contention is that the Law Committee came to the conclusion that the defendant No.1 Syeda Khatoon is not the Muthawalli and she is not offering the Ood-o-gul and she is not entitled for annuity. A perusal of the said order of the Law Committee produced at Ex.P11 would disclose that there were two branches under the founder and the plaintiff herein could establish his lineage till the founder but the defendant could only establish the lineage upto 8th generation. It further came to the conclusion that the name of the respondent appeared in the Muntakab Auqaf of the erstwhile Hyderabad State, but the survey report show that the name of the defendant was not found during the enquiry when the Act came into force on 15.01.1955. It also
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CRP No. 2022 of 2011noticed that the Muntakab in favour of defendant was issued in the year 1962 for the first time and therefore it holds that there cannot be a Touliyat under the Touliyat. It is relevant to note that the Law Committee did not go in to the details as to when the Survey Commissioner had made the enquiry under the relevant provisions of the Waqf Act 1954 which was in pari-materia with Section 4 of the 1995 Act. It notices that the erstwhile Hyderabad State had prepared Muntakab Auqaf entering the name of the father of the plaintiff as Muthawalli which was not agitated by father or grand father of the respondent Syeda Khatoon.
26. The other observation was that the property assigned to the Dargah for Ood-o-gul at Chatnalli village must have been enjoyed by the defendant and her ancestors as Shikmidars which does not give rise to any title to become Muthawalli of the said Dargah. Then it observes that every Muslim has a right to offer Ood-o-gul to the same and all the Inams have been abolished in the
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CRP No. 2022 of 2011erstwhile Hyderabad State long back and therefore the respondent do not have any right to become the Muthawalli. An effort was made by the Law Committee to trace the Muntakab and the genealogy and came to the conclusion that it is the plaintiff alone is the Muthawalli.
27. The said decision by the Law Committee was challenged before the High Court ino the writ petition. Obviously the writ petition came to be dismissed by observing that the matter has to be decided in OS No.50/1983. It is relevant to note that none of contentions which are raised by the plaintiff in the proceeding before the Law Committee were raised before the Tribunal. It is pertinent to note that when the defendant approached the Waqf Board to insert her name which was left out, the Waqf Board should have gone into the question whether there was any enquiry and it should have directed the defendant to approach the Tribunal. Obviously no such efforts were made and it is also to be noted that the Law Committee made its decision
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CRP No. 2022 of 2011somewhere in the year 1982. Thus, it is evident that defendant has made her effort to get her name entered in the notification which was as per Ex.P27. In view of the fact that the grounds raised by the plaintiff before the Law Committee were made subject matter of his suit by the plaintiff, there was no occasion for the Tribunal to consider the same. On behalf of the defendant, she has consistently stated her contention in her written statement though there was no such counter claim by her. Thus, the Tribunal was right in coming to the conclusion that there was no necessity of the counter claim by the defendant.
28. The Tribunal in para 16 and 17 of the impugned judgment has considered the contentions and documents produced by both the sides. It also considers the capacity of DW1 to depose before it and by relying on the decision in the case of Bhimappa and others V/s Allisab and others2, holds that the DW1 is competent in deposing before it. In para 20 of the impugned judgment, it holds 2 ILR 2006 Karnataka 3129
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CRP No. 2022 of 2011that documentary evidence play a vital role than the oral evidence. It considers the Ex.D3 which is the certified copy of the order passed by the Deputy Commissioner and Nazim-e-Atiyat Court Bidar, dated 12.10.1962. In the said order of the Nazim-e-Atiyat Court, the property in the village Chatnalli was divided and the manner in which the division was made is discussed in detail by the Tribunal. Then it considers the Muntakab No.2227/1, dated 21.11.1962 issued by the office of the Deputy Commissioner and the Nazim-e-Atiyat Bidar at Ex.D4 and Ex.D4(a). As per this document the grant of Chatnalli village property was in respect of conditional service and the name of the defendant No.1 Syeda Khatoon is mentioned as Muthawalli. Therefore, in the year 1962 the name of Sayeda Khatoon was recognized to be a Muthawalli under the Muntakab No.2227/1. The manner in which the said order came to be passed or its validity are not questioned.
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CRP No. 2022 of 2011
29. It is also relevant to note that the PW1 has stated that his father had filed appeal challenging the order of the Nazim-e-Atiyat Court before the Nazim-e- Atiyat Committee Hyderabad. The said appeal also came to be dismissed. On the basis of the same, the order passed by the Deputy Commissioner and Nazim-e-Atiyat Court has become final so far as the service rendered by the defendant is concerned and the Muntakab No.2227/1 is concerned. Of course the decision of the Atiyat Court and the Nazim-e-Atiyat Committee would not constitute a res-judicata for the plaintiff. It was only in respect of the Muntakab granted in the name of the defendant and the said Muntakab issued in favour of the defendant has become final. It is relevant to note that the definition of the Muntakab may be found in The Andhra Pradesh (Telangana Area) Atiyat Enquiries Act, 1952. The relevant provisions for the purpose of the present petition read thus:
"(1) In this Act unless there is anything repugnant in the subject or context-
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CRP No. 2022 of 2011
(a) "Atiyat Court" means a Court or authority competent to make Atiyat enquiries and enquiries as to claims to succession to and any right, title or interest in Atiyat grants and matters ancillary thereto;
(b) "Atiyat grants" mean-
(i) in the case of jagirs abolished under [the Telangana (Abolition of Jagirs) Regulation, 1358F.] the commutation sums payable in respect thereof under [the Telangana Jagirs (Commutation) Regulation, 1359 F.];
(ii) inams to which [the Telangana Abolition of Inams Act, 1954] is not applicable;
(iii) in the case of inams abolished under [the Telangana Abolition of Inams Act, 1954] the compensation payable under that Act;] xxxxxxxxx
(c) "Muntakhabs and Vasiqas" means documents issued by competent authorities as a result of Inam or succession enquiries held under the Dastoorul-Amal Inams or other Government orders on the subject and issued by way of continuance or confirmation of Atiyat grants"
(The Apex Court has discussed in detail about the jurisdiction and the scope of the Atiyat Courts in the case of State of Andhra Pradesh (Now State of Telangana) Vs A.P. State Wakf Board and Others - 2022 SCC OnLine SC 159)
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30. In view of the above, the continuance of the Inam in the name of the defendant was considered by the Atiyat Court but it was not in respect of the Sajjada or Muthwalli. The Tribunal considers the Muntakab granted in the name of the defendant in para 21, it has observed the payment of the interim annuity to the defendant Syeda Khatoon. These are the documents ranging from 1962 to 1979. It is also relevant to note that all these years, the defendant No.3 Waqf Board never came in picture to say whether the order of the Nazim Atiyat Committee was either wrong or correct. Then in the year 1983, the revenue inspector conducted a panchanama as per Ex.D10 and it clearly mentioned Syeda Khatoon is performing the duties of the Dargah and therefore there was no objection for issue of annuity to her. Thus, it is clear from the records that despite there being a resistance by the father of the plaintiff for the issuance of Muntakab No.2227/1, such issuance of Muntakab had become final. Now the question would be whether grant of the Muntakab
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CRP No. 2022 of 2011No.2227/1 would indicate the defendant Syeda Khatoon to be a Muthawalli.
31. It is in the light of this prima-facie material which was observed by the Tribunal that it considers the evidence placed on record by the plaintiff. From para 24, it considers the evidence of the plaintiff and notices that the plaintiff has been submitting the budget as a Muthawalli of the Dargah Sharif. There is no doubt that there is voluminous documents on behalf of the plaintiffs to show that he is Sajjada Nasheen and Muthawalli of the Dargah Sharif and the Tribunal has meticulously observed all these documents produced by the plaintiff in para 24 of the impugned judgment. It observed that when the plaintiff is claiming that he is the Muthawalli in exclusion of the defendant, and he being the plaintiff in the suit, the burden is on him to show that the documents produced by the defendant are not correct. There should be positive evidence by the plaintiff to show his exclusivity. While considering the oral evidence of the plaintiff in para 26 of
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CRP No. 2022 of 2011its judgment, the Tribunal observes that PW1 has fairly admitted in his evidence that because the defendant No.1 has been offering the Ood-o-gul to Dargah, the land of Chatnalli had been given to the defendant No.1. Based on the said admission, it was held that the defendant No.1 is performing the rituals of Ood-o-gul of the Dargah Sharif. He also observed that the PW1 had admitted that his father had filed a suit in O.S.No.1/1/1350 Fasli before the Munsiff Court Bidar (approximately in the year 1940) and had sought the relief of Muthawalliship and Dargah and Khanka. He admits that the said suit was dismissed. Thus, it is evident that there have been consistent effort by the plaintiff and his father or his ancestors to exclude the defendant No.1 and their branch from exercising the services of the Dargah Sharif. The records reveal that despite there being such an effort, the defendant No.1 or her ancestors had succeeded in getting annuity and recongization from the Nizam-e-Atiyat Committee Hyderabad and had succeeded in getting Muntakab No.2227/1. However, the entry of the name of the
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CRP No. 2022 of 2011defendant in the Gazette notification after coming into force of 1954 Act did not happen. But there is no material to show that an enquiry was held by the Survey Commissioner which resulted in the notification as per Ex.P27, which is dated 09.03.1973. It is evident that prior to 09.03.1973 there was no occasion for the defendant to challenge the same. Under these circumstances, when the records clearly reveal that the Muntakab was issued in the year 1962, the Law Committee could not have stated that the defendant is only a Shikmidar and that there cannot be Towliyat under the Towliyat. Therefore obviously the conclusion reached by the Law Committee appears to have certain defects.
32. The Tribunal bestows its attention over the oral testimony of the PW1 and PW2 and observes that the PW2 do not have any knowledge about the Muntakab granted in favour of the ancestors of the plaintiff and it do not fully support the case of the plaintiff. It also considers the evidence of the DW1 to DW3 and has dealt with the same.
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CRP No. 2022 of 2011
33. It is relevant to note that the learned counsel for the appellant contends that Ood-o-gul is not a service of Muthawalli, but any Muslim can do Ood-o-gul, and it is observation of the Law Committee also. Be that as it may, it may be service that may be offered by any Muslim. The State of Hyderabad through Nizam-e-Atiyat Committee had confirmed the grant of the lands of Chatnalli village in favour of the defendant or her fore-fathers for the services to be rendered. It is immaterial whether it is the service of Ood-o-gul or anything else. If any Muslim could do Ood-o-gul, there was no reason for the State to grant Muntakab in favour of the defendant alone. It is not that the Muntakab was granted clandestinely. It was challenged by the father of the plaintiff and the challenge was rejected. Therefore, the service of Ood-o-gul can be done by any Muslim and it cannot be termed as a service by Muthawalli cannot be accepted.
34. It is evident that there are two Muntakabs and the first one is at Ex.D2 under which the plaintiff is
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CRP No. 2022 of 2011claiming the rights. The Ex.D4 is the Muntakab in favour of the defendant. The defendant is not denying the role of the plaintiff as a Muthawalli. But it is the plaintiff who is denying the defendant to be a Muthawalli in respect of the limited services of Ood-o-gul. The recognition by the Nazim-e-Atiyat Court and confirmed by Nizam-e-Atiyat Committee, show that they were two kinds of services. Simply because the plaintiff has submitted the budget etc., to the Waqf Board, it cannot be said that such act of the plaintiff excluded the rights of the defendant.
35. It is also relevant to note that Ex.P27 entry No.595 and entry No.674 speak of Muntakab No.2227 in column No.5 which pertains to Waqf deed. Thus, it is evident that the notification of the year 1973 in fact considered the Muntakab No.2227 but not the one concerning the plaintiff i.e. 1645. A perusal of the Ex.D5 which is pertaining to the Muntakab Taleem No.1646 show that it was in respect of Dargah Sharif. It is the outcome of the enquiry and it was held that the succession of the
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CRP No. 2022 of 2011deceased Sayeda Shah Ameeniddin Hussaini. Therefore, Ex.P27 should have mentioned the Muntakab No.1646 but not 2227/1. Therefore, it is evident that the entry of the name of the plaintiff at serial No.595 of Ex.P27 was also in fact erroneous. Under these circumstances, I do not find any reason to hold that the conclusion reached by the Tribunal to hold that the defendant was also entrusted with the duty of performing Ood-o-gul as a service under Muntakab No.2227/1, such service was recognized by the State of Hyderabad much prior to the enquiry held by the Survey Commissioner, which resulted in a Gazette notification as per Ex.P27 was either wrong or erroneous.
36. The Tribunal has considered the oral testimony of PW1 in detail in para 30. It holds that the admissions given are in respect of document and therefore they cannot termed as stray sentences. It also distinguishes the decisions which were relied before it. In para 31 of its judgment, it discussed about the limitation. It is pertinent to note that though the discussion in respect of the
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CRP No. 2022 of 2011limitation is not detailed, it has observed that the claim of the defendant No.1 is not barred. It is relevant to note that the defendant No.1 had contended that the entry of the name of the plaintiff was erroneous and her name also to be entered in view of the Muntakab No.2227/1. Obviously the claim was referred to the Law Committee by the defendant No.3. The defendant No.3 did not reject the claim on the ground of limitation. Now the plaintiff is raising the contention that such a claim by the defendant was barred by limitation. The defendant has not approached this Court saying that the enquiry conducted by the Survey Commissioner was wrong. What she has sought is that her name should have been entered in respect of the Muntakab No.2227/1 but not the name of the plaintiff. The Waqf Board through its Law Committee held that the defendant is not the Muthawalli, but it never mentioned about the Muntakab No.2227/1 to be the Waqf deed in the notification at Ex.P27. Therefore, the contention that the claim of the defendant was barred by
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CRP No. 2022 of 2011time cannot hold any water and this is what has been done by the Tribunal in its judgment.
37. It also deals with the contention of the plaintiff that the defendant is not appointed as Muthawalli under Section 63 of Waqf Act 1995 and whereas the plaintiff has been appointed by the Waqf Board. The Tribunal has observed that the defendant No.1 is not appointed by the Waqf Board as Muthawalli and it observes that in case of vacancy the Muthawalliship has to be dealt by the Waqf Board under Section 63 of the Waqf Act. Whereas the defendant was the Muthawalli from the date of the Atiyat Court order, on the basis of the Muntakab. Therefore, holding that non mentioning of the name of the defendant as Muthawalli in the Gazette notification as merely an error, the Tribunal holds that the contention of the plaintiff cannot be accepted. There is detailed discussion by the Tribunal in coming to such conclusion in para 34 of its judgment.
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38. In view of the above discussion, it is evident that no fault can be found with the observations and conclusion reached by the Tribunal in holding that the plaintiff has failed to establish that he is Muthawalli to the exclusion of the defendant No.1 as Muthawalli for the limited purpose of services of Ood-o-gul. The Tribunal has rightly held that the plaintiff is also the Muthwalli for the purpose of the Sandal and Urus etc., and that he is in the control of the budget and other management of the Dargah Sharif. The fact that the plaintiff is the Muthawalli is not at all in dispute. It is the plaintiff who is disputing the defendant to be the Muthawalli to the limited extent. Hence, I do not find any reason to hold that the conclusions reached by the Tribunal are prima-facie erroneous on the face of the record. There is no apparent illegality or impropriety which has been committed by the Tribunal.
39. The other questions raised are regarding the limitation. When the merits of the case has been
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CRP No. 2022 of 2011considered by the Tribunal in detail, I do not find any reason to hold that much discussion is needed in respect of the question of limitation, even though the Tribunal holds that the claim of the plaintiff is time barred. It is pertinent to note that during the pendency of OS No.50/1983, the plaintiff had filed an application for abandoning the relief of declaration that he is the exclusive Muthawalli of Dargah Sharif. Such application was allowed and the plaintiff was permitted to abandon his claim. Thereafter, the Court of the Addl. Munsiff Bidar was found to be having no jurisdiction and as a result, the plaint was ordered to be returned for presentation before the Waqf Tribunal. While presenting the plaint, the plaintiff has again introduced the prayer for declaration which he had abandoned earlier. After elaborate discussion and noting the decisions cited before it, the Tribunal come to the conclusion that the presentation of the suit has to be treated as a fresh suit as the claim for declaration has also been incorporated. It holds that if the earlier plaint which was presented before the Addl Munsiff was taken
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CRP No. 2022 of 2011back and re-presented, then there was no bar of limitation. It is notices that the plaintiff having abandoned his claims before the Court by way of an interim application, again he re-introduces the claim for the declaration when the suit was presented in the year 2010. Obviously the plaintiff had abandoned his claim in respect of the cause of action which he had stated in OS No.50/1983. Once he has abandoned the claim arising out the cause of action mentioned in OS No.50/1983, he cannot again file a suit on the same cause of action. It is true that if the same plaint is presented, the plaintiff is entitle for the excluding the time spent in the Court which has no jurisdiction, from the purview of the limitation. Minor changes in the plaint can also be allowed as may be seen from the decision referred by the Tribunal in the case Hanamanthappa and another V/s Chandrashekharappa and others3 wherein it is held that if the plaint which was returned was not filed but a 3 AIR 1997 Supreme Court 1307
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CRP No. 2022 of 2011fresh plaint with certain other averments was filed, it is treated as a fresh plaint subject to limitation, Court fee and pecuniary jurisdiction. Therefore, the conclusion reached by the Tribunal is also based on sound principles of law.
40. So far as the question of res-judicata is concerned, the Tribunal has considered the same in para 37 to 39. It has come to the conclusion that the contention raised by the defendant Nos.1 and 2 regarding the res-judicata is not applicable. It was a contention of the defendants that the question whether the suit is hit by the principles of the res-judicata was decided by the Court of the Addl Munsiff in O.S.No.50/1983 and the said finding act as a res-judicata. Obviously the Court of the Addl. Munsiff was not having jurisdiction and on that count the Tribunal has held that the question of res-judicata is not applicable. No fault can be found in respect of the same as it is based on sound principles of law.
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41. In the light of the above discussions, it is evident that the conclusions reached by the Tribunal do not suffer from any illegality or impropriety. Moreover the relevant questions of law which were raised before the Tribunal have been answered by it with valid reason. It has come to the conclusion that the plaintiff has failed to prove his exclusivity to act as a Muthawalli and Sajjada Nasheen. The records unequivocally point out that the defendant No.1 was also a Muthawalli to the limited extent. Such service of the defendant was also recognized by the erstwhile State of Hyderabad and subsequently till the defendant No.3 published the name of the plaintiff in Ex.P27. After the publication of Ex.P27 notification, the defendant No.3 Waqf Board has started to sail with the plaintiff. Under these circumstances, the contention of the defendant No.3 is not of any relevance. Hence, this Court finds that the revision is bereft of any merits. Consequently, the revision is liable to be dismissed. Hence, the following:
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ORDER The revision is dismissed.
The judgment of the Tribunal in OS No.23/2010 dated 19.08.2011 is hereby confirmed.
Sd/-
JUDGE SMP List No.: 1 Sl No.: 16