Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 4522 OF 2021
(Arising out of SLP (CIVIL) No.28786 of 2015)
Telangana State Wakf Board & Anr. .…Appellant(s)
Versus
Mohamed Muzafar …. Respondent(s)
J U D G M E N T
A.S. Bopanna,J.
1. The appellant No.1 is the Andhra Pradesh State
Wakf Board, while the appellant No.2 is the Mutawalli of
the registered Wakf institution which is known as
Graveyard Mir Rahmat Ali Shah. The said Wakf
institution is stated to have been registered under
Signature Not Verified
Muntakhab bearing No. 998 dated 24.02.1953 and later
Digitally signed by
Anita Malhotra
Date: 2021.10.30
11:00:54 IST
Reason:
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entered in the book of endowment showing an extent of
666 sq. yards. The Muntakhab was amended by the
Wakf Board in its resolution dated 21.04.1988 to the
extent of correcting the land of the Wakf institution as
998.66 sq. yards and the same was published in the
gazette notification dated 29.12.1988. The wakf
institution/graveyard is situated near Tek Masjid,
Nampally, Hyderabad.
2. The father of appellant No.2, Late Mir Dawood Ali
was the Mutawalli appointed by the Wakf Board, whose
name is recorded in the gazette referred to above. The
appellant averred that during the lifetime of the father of
appellant No.2, the father of the respondent, namely,
Late M.A Qayyum had obtained on rent the premises
bearing Municipal No. 57420/2 measuring 90.16 sq.
yards belonging to the Wakf institution. The father of the
respondent was running a firewood stall which he later
converted into a hotel and has been running the hotel
business in the name and style “Hotel Najran”.
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3. The case of the appellant was that the father of the
respondent was paying rent in respect of the property
and was being enhanced from time to time. The
respondent, after he became a major continued the
tenancy of his father in respect of the said premises and
the monthly rent at the time of filing the suit was
Rs.1,500/ excluding electrical and water charges. The
respondent is stated to have suceeded to the tenancy in
the year 1995 and the rent was being paid to the Wakf
Board since the institution at that point was under
direct management of the Board in view of the death of
the original Mutawalli i.e., the father of appellant No.2.
Subsequent thereto the appellant No.2, as the successor
was appointed as the Mutawalli in place of his father
vide the proceedings dated 04.07.2005 which was
published in the gazette on 04.08.2005. The appellant
No.2 intimated this fact to all the tenants of the property
belonging to the Wakf institution through a letter dated
14.11.2005, whereafter the rent was being paid to him
directly. In respect of the premises in the occupation of
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respondent the rent was not being paid regularly, which
accumulated to Rs.24,500/. Despite repeated requests
the respondent had not paid the arrears from the month
of November 2005 for a period of 7 months which
amounted to Rs.10,500/. The respondent therefore was
due to pay the total amount which was due and unpaid.
4. The appellant further averred that while the Wakf
institution was under the direct management of the
Wakf Board, the respondent had encroached upon 40
sq. yards site of the graveyard on the western side of the
tenanted premises, constructed road thereon and
started running a firewood stall. The appellant No.2
noticed the same when he assumed charge on
04.07.2005. Though the appellant No.2 requested the
respondent to pay damages for the use and the illegal
occupation and vacate both the properties, namely the
tenanted as well as the encroached portion, the
respondent did not vacate. In that background, the
appellant No.2 got issued the legal notice dated
23.05.2006 terminating the tenancy of the tenanted
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portion with effect from 01.07.2006 and demanded to
remove the encroachment. The respondent on receipt of
the notice made payment of Rs.4,500/ as part of the
arrears of rent through a money order and also a sum of
Rs.4,500/ was paid directly to the appellant No.2
towards the rent for the months of August, September
and October, 2005. The respondent however got issued
reply notice dated 12.06.2006 wherein he denied that
the tenanted portion and the alleged encroached portion
referred to was Wakf property and that his father had
taken it on rent. Further, all claims made by the
appellants were also denied.
5. In the above backdrop, the appellants were
constrained to file a suit bearing O.S. No.126/2006
before the Andhra Pradesh State Wakf Tribunal,
Hyderabad seeking eviction of the respondent from the
property belonging to the Wakf institution. The tenanted
portion referred to above was delineated as Schedule ‘A’
in the plaint while the encroached portion was shown as
Schedule ‘B’. The respondent who was arrayed as
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defendant in the suit had appeared and filed his written
statement wherein inter alia he had contended that the
suit property is not a Wakf property and that the exhibit
filed by the appellants dated 30.10.1994 pertaining to
the graveyard is of an extent of 667.8 sq.yards. It was
further contended that the gazette notification clearly
established that this graveyard is not having any non
agricultural lands such as mulgies and houses etc. He
further claimed that the property bearing No. 57420/2
stood in the name of his father. The gazette notification
dated 29.12.1988 mentioning the extent as 998.66
sq.yards was disputed and contended that the same
does not exist. Further, the case put forth by the
appellants herein as plaintiff in the suit was disputed in
toto.
6. The Wakf tribunal on taking note of the rival
contentions had framed the following issues for
consideration:
“1. Whether the land covered by H.
No.57420/2, situated at Nampally
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Hyderabad is part of notified Wakf
Graveyard?
2. Whether there is a relationship of
land lord and tenant between the
parties.
3. Whether the plaintiff is entitled to
evict the defendant as prayed for?
4. Whether the plaintiff is entitled to
arrears of rent, mesne profits as prayed
for?
5. To what relief?”
The parties accordingly tendered evidence before
the Wakf tribunal so as to discharge the burden cast on
them.
7. The appellant No.2 examined himself as PW.1.
Though, witness Mr. Mohd. Yousuf Qureshi was
examined as PW.2, he was not tendered for cross
examination and therefore his chiefexamination was
eschewed. The appellants also relied upon the
documents which were marked as Exhibits A1 to A24.
The respondent examined himself as DW.1 and also
examined a witness Mr. Mohd. Abdul Aziz as DW2 and
relied upon the documents at Exhibits B1 to B40. The
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Wakf tribunal after taking note of the rival contentions
and the evidence tendered, held the issues in favour of
the appellants and decreed the suit holding the suit
schedule properties to be the property belonging to the
Wakf institution and directed the respondent to vacate
the suit schedule properties. The judgment to that effect
was rendered by the Wakf tribunal on 12.10.2012.
8. The respondent claiming to be aggrieved by the
said judgment, preferred a Revision Petition under
Section 83 of the Wakf Act before the High Court of
Judicature at Hyderabad in Civil Revision Petition
No.1331/2013. The High Court while adverting to the
rival contentions has allowed the Revision Petition and
set aside the judgment passed by the Wakf tribunal. The
High Court passed the said order on 02.06.2014. It has
referred to the decision of this Court in the case of
Ramesh Gobindram vs. Sugra Humayun Mirza
Wakf (2010) 8 SCC 726; has accordingly held that the
suit was not maintainable before the Wakf tribunal and
has allowed the parties to avail their remedy as per law.
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The appellants, therefore, claiming to be aggrieved by
the said judgment are before this Court in this appeal.
9. We have heard Ms Akriti Chaubey, learned
counsel for the appellants and Mr. Raavi Venkata
Yogesh, learned counsel for the respondent and perused
the appeal papers as also the written submissions
submitted by the respective learned advocates.
10. As noted from the fact situation narrated above,
the appellant had contended that the suit schedule
properties are Wakf properties and had claimed that the
respondent is a tenant in respect of Schedule ‘A’
property and that he had encroached the Schedule ‘B’
property which also belongs to Wakf institution. The
respondent had contended that the suit properties are
not Wakf properties. From the issues framed by the
Wakf tribunal, it is noticed that the consideration which
was required at the outset was to conclude whether the
land covered by H No.57420/2 situated at Namapally,
Hyderabad is a part of the notified Wakf Graveyard.
Similarly, the status of Schedule ‘B’ property which was
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alleged to be encroached by the respondent was also to
be determined, if it was also part of Wakf property. It is
in that regard, the tribunal having noted the contentions
has analysed the same with reference to the evidence.
What was highlighted by the respondent is that the
gazette notification indicated only 668 sq. yards and as
such the suit schedule properties do not form part of the
same. In that regard, though the appellants relied on the
notification dated 29.12.1988 to contend that the extent
of the land belonging to the Wakf institution is 998.66
sq. yards the respondent disputed the existence of such
notification.
11. The Wakf tribunal, apart from referring to the said
documents had also taken note of the fact that an earlier
suit in O.S. No. 186 of 1982 had been instituted by the
appellant No.1 herein against the father of the
respondent. The judgment passed therein was marked
as Exhibit A13 in the present suit. The tribunal having
noted the same and the nature of the contentions put
forth had in that regard taken into consideration the
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written statement filed by the father as at Exhibit A15,
as also the panchnama dated 1.09.2005 at Exhibit A17.
In that light, the Wakf tribunal had noted that when the
respondent herein had claimed to have succeeded to the
property of his father and in respect of same property
when the father had taken a particular stand in the suit
filed against him, the respondent would be estopped
from putting forth any other contention, keeping in view,
the provision contained in Section 116 of the Evidence
Act.
12. In addition, the tribunal had also taken into
consideration the fact that the brother of the respondent
had filed a writ petition bearing No. W.P. 26338 of 2007
challenging the gazette dated 29.12.1988 wherein the
extent of the property belonging to the Wakf institution
is shown as 998.66 sq. yards. The contents of the
gazette was extracted and noted by the tribunal, wherein
it was indicated that the amendment to Muntakhab
No.998 in file No.2195/2/1350 fasli was notified in
Andhra Pradesh gazette dated 29.12.1988. Thus, as per
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the amended Muntakhab the open land measuring
998.66 sq. yards and the premises bearing MCH
numbers 57429, 57420/1, 57420/2 and 57420/3
are Wakf properties. Therefore, based on the said
conclusion and the finding rendered on other aspects by
the tribunal, the tribunal had at the outset arrived at
the conclusion that the property in question is Wakf
property. In that regard to disbelieve the documents
relied on by the respondent at Exhibits B1 to B37
namely the receipts and the claim that the slum
certificate is issued, the tribunal has noted the
corrections made therein which is visible to the naked
eye and as such did not accept the same.
13. Insofar as the Schedule ‘B’ property, the tribunal
had taken into consideration the notice at Exhibit A7
which was issued by the appellants. In order to arrive at
the conclusion that the said property also forms a part
of the Wakf property which is the Graveyard, the
tribunal had referred to Exhibit A16, i.e., plan which
was made in the year 1985 by the Wakf Board. From the
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said plan, the tribunal had noticed that the Schedule ‘A’
and ‘B’ properties form a part of the Wakf properties
which was also depicted in the photographs which was
marked as Exhibit A22. It is in that light, the Wakf
tribunal had arrived at the conclusion that the relief
prayed for in the suit is liable to be granted and the suit
was decreed in favour of the appellants herein.
14. The High Court on the other hand, before holding
that the suit ought not to have been instituted before the
Wakf tribunal in view of the judgment rendered by this
Court in the case of (supra) has in
Ramesh Gobindram
fact attempted reappreciation of the evidence which was
tendered before the tribunal. Reference is made to the
Entry at Serial No.1698 and the indication of the Wakf
institution known as Graveyard Rehmat Ali Sahab, area
noted as 667.8 sq. yards at Cross road, Masjid
Nampally. It was concluded that the same does not tally.
The gazette notification dated 29.12.1988 was
mentioned, wherein the extent is indicated as 998.66 sq.
yards but the same was disbelieved. At the outset it is
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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 the Wakf property was
rectified and indicated as 998.66 sq. yards and also had
taken into consideration the first round of litigation
between the State Wakf Board and the father of the
respondent wherein the conclusion reached was that the
property in question is Wakf 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.
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15. In that regard it would be appropriate to refer to
the decision of this Court in Kiran Devi versus Bihar
2021 SCC
State Sunni Wakf Board and Others
Online SC 280 which was authored by one of us (Justice
Hemant Gupta) wherein the scope of jurisdiction to be
exercised under Section 83 of Wakf Act is crystallised as
follows:
“20. Therefore, when a petition is filed
against an order of the Wakf Tribunal
before the High Court, the High Court
exercises the jurisdiction under Article
227 of the Constitution of India.
Therefore, it is wholly immaterial 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 Wakf
Tribunal. The High Court in exercise of
the jurisdiction conferred under proviso
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to subsection (9) of Section 83 of the Act
does not act as the appellate court.”
16. Be that as it may, having noticed the manner of
consideration made by the High Court with regard to the
merit not being justified, it would also be necessary for
us to consider as to whether the proceedings before the
Wakf tribunal would be sustainable in the teeth of the
observations made by the High Court with reference to
the decision in (supra) which
Ramesh Gobindram
resulted in the High Court setting aside the order passed
by the tribunal. We have carefully perused the said
decision. The consideration made therein was in the
background of the provisions as contained in Sections 6,
7, 83 and 85 of the Wakf Act 1995. No doubt it is a case
where the question arose as to whether suit for eviction
from the Wakf properties could be instituted before the
Wakf tribunal. However, what is necessary to be noted is
that, the question for consideration has been delineated
in paragraph 2 of the order which clearly indicates that
what was required to be answered therein was as to
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whether the suit for eviction of tenants in respect of the
items of property which are admittedly Wakf properties
could be filed before the Wakf tribunal. After having
taken into consideration Sections 6 and 7 of the Act,
this Court was of the view that the tribunal would have
the jurisdiction to decide such of those disputes arising
thereunder and in respect of eviction of tenants from
what is admittedly a Wakf property should be filed in the
Civil Court as jurisdiction under Section 9 of the Civil
Procedure Code is expansive. It is accordingly held,
since what is to be decided by the tribunal are the
disputes which arise under Section 6 and 7, the bar as
contemplated under Section 85 to file a suit in the Civil
Court does not apply. The said decision was rendered in
a circumstance where the property was admittedly Wakf
property, whereas in the instant case it is not an
admitted case since the respondent had taken a specific
contention that the properties in question are not Wakf
properties.
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17. The learned counsel for the respondent has
however, referred to the decision of this Court in the
case of
Faseela M. vs. Munnerul Islam Madrasa
Committee and Another (2014)16 SCC 38 to point out
that in a similar consideration made by another Bench
of this Court relating to the jurisdiction of Wakf tribunal,
this Court has held that even in a case where it is
disputed by the defendant that the property is not a
Wakf property and if it is a case seeking eviction of the
tenant, the suit is required to be filed before the civil
court and jurisdiction of the Wakf tribunal cannot be
invoked.
18. The learned counsel for the appellants has on the
other hand drawn our attention to the other decisions of
this Court on the same issue. In the case of Board of
Wakf, West Bengal and Another vs Anis Fatma
(2010) 14 SCC 588 and in the case
Begum and Another
of Haryana Wakf Board versus Mahesh Kumar
2014) 16 SCC 45 this Court has held that the question
(
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as to whether a property is Wakf property or otherwise is
exclusively determinable by the Wakf tribunal after
enactment of the Wakf Act. The decision in the case of
(2019) 4
Punjab Wakf Board vs Sham Singh Harike
SCC 698 is also referred by the learned counsel for the
appellant to contend that in order to determine as to
whether there is a bar on the jurisdiction to the civil
court in relation to the provision contained in Wakf Act,
one is to ask the question as to whether the issue raised
in the suit or proceeding concerned is required to be
decided under the Wakf Act, 1995 by the tribunal under
any provision or not and if the answer to that question is
in the affirmative the bar of jurisdiction of the civil court
would operate.
19. Having noted the various decisions rendered by
this Court which are all by a coram consisting of two
judges it would also be apposite for us to take note of
the decision in the case of Kiran Devi (supra) rendered
by a coram of three Hon’ble Judges. The said case also
related to a suit instituted by the tenant in respect of the
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suit premises seeking declaration to that effect and to
continue in the suit premises as tenant on payment of
monthly rent. In the said case, the suit in question was
filed by the plaintiff before the competent civil court but
the defendants, namely the Wakf Board had contended
that the issue is to be decided by Wakf tribunal. They
filed application and sought transfer of the suit to the
Wakf tribunal which was accordingly ordered by the civil
court and was also upheld by the High Court in
Revision. Subsequently, having succeed on merits before
the Wakf tribunal, had failed in the writ petition wherein
the claim of plaintiff was upheld. The Wakf Board at that
point raised the contention that the tribunal did not
have the jurisdiction in the appeal filed before this Court
by placing reliance on Ramesh Gobindram (supra). This
Court in the facts arising therein had held that the
judgment passed by the Wakf tribunal in the
circumstance cannot be held as without jurisdiction.
The said case is one more circumstance to indicate that
the facts and circumstance in each case will have to be
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taken note in the background of the legal frame work
contained in the Wakf Act to determine jurisdiction.
20. In that light, in the present facts it is to be noted
that the appellants at the first instance had got issued a
notice dated 23.05.2006 to the respondent terminating
the tenancy relating to the suit ‘A’ schedule property. A
further notice was issued in respect of the suit ‘B’
schedule property requiring the respondent to vacate the
encroached portion. The respondent, by his reply notice
dated 12.06.2006 denied that the property in question
was a Wakf property. In the said circumstance, the
instant case cannot be deemed as an admitted case of
the property being Wakf property as in the reply notice
itself the respondent had disputed the same. It is in that
circumstance the appellants being of the impression
that the first issue to be established is that the property
in question is the Wakf property, which could be
considered by the tribunal, had filed the suit before the
Wakf tribunal. The respondent having appeared, filed
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the written statement and inter alia had contended as
follows:
“3. This defendant submits that with
regard to the averments made in para 1
of the plaint and the documents annexed
clearly shows that the suit property is
not a Wakf Property. The Gazette filed by
the Plaintiffs dated 30.10.1984 pertains
to the so called graveyard is of an extent
of 667.8 sq. yards. The said Gazette
notification clearly establish that this
Graveyard is not having any non
agricultural land such as mulgees and
houses etc. on the other hand as evident
from the Municipal records, electricity
and water works department record, that
the premises bearing No.57420/2
stands in the name of the father of this
defendant. This defendant further
submits that there is no such Gazette
notification dated 21.12.1999 and the
extent mentioned 998.66 sq. yards is not
supported by any documentary evidence.
The 2 gazette notifications filed by the
Plaintiffs are selfcontradictory. The so
called grave yard is endowed with any
property more over there will not be any
attached properties for the burial
grounds as there will be no
developmental activities or maintenance
like the other wakf institutions namely
the dargah masjid or ashurkhana as
much the averments made in Para 1 of
the plaint is wholly contrary to the
Gazette itself. The plaintiffs are put to
strict proof of the same.”
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21. Apart from the contention put forth by the
respondent what is also to be taken note is that the High
Court has made detailed reference to the contention put
forth by the respondent regarding the gazette
notification relating to the property as claimed by the
appellants and the discrepancy as pointed out by the
respondent by claiming that the extent mentioned is
667.8 sq. yards and not 998.66 sq. yards as contended
by the appellants. The inclusion of the property in the
gazette dated 29.12.1988 which was disputed by the
respondent was also taken into consideration. In that
light, through the discussion and conclusion reached by
the High Court in paras 12 and 13 (b) of the order while
adverting to the contention of encroachment of 40 sq.
yards which was described in Schedule ‘B’ to the suit it
has indicated that there is no evidence of required
standard as to how the extent of Wakf property had
increased from 667.8 sq. yards to 998.66 sq. yards and
by mere recital in the gazette notification under Exhibit
A2 and the resurvey report, the Muntakhab and the
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amended Muntakhab would not be sufficient to decide
the suit since the tenant had denied the case of the
plaintiffs that the ‘B’ schedule property is a Wakf
property. The High Court has further held that the
aspect as to whether the ‘B’ schedule property is a Wakf
property or not cannot be decided without affording an
opportunity to the tenant to question the correctness of
the contents of the gazette notification by following the
procedure established by law.
22. The very observations made by the High Court, in
our view would indicate that the suit was maintainable
before the Wakf tribunal in the facts and circumstances
of the instant case. This is so for the reason that the
High Court notices that the grievance put forth by the
respondent to contend that the property is not Wakf
property is by disputing the extent as shown in the
gazette notification as 998.66 sq. yards since according
to the respondent the actual extent is 667.8 sq. yards
and therefore the land in occupation by the respondent
is beyond that extent. Therefore, in fact the contention
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put forth by the tenant is with reference to the gazette
notification and to contend that the extent of property in
occupation is not within the extent as shown in the
gazette notification or otherwise. The dispute in effect is
to question the extent of land beyond 667.8 sq. yards
being included to be the property of the Wakf Institution
which is included in the list and as such whether that
extent in the list is Wakf property. That will be a
question which falls under Section 7 of the Waqf Act.
The very observation of the High Court indicating that
an opportunity is to be afforded to the respondent to
question the correctness of the contents of the gazette
notification by following the procedure established by
law is to allow the respondent to invoke the provisions of
Section 6 and 7 of the Wakf Act and seek appropriate
orders.
23. When that is the position, it will have to be noted
that in the instant case, though the legal remedy had
not been availed by the respondent within the time
frame as provided under Section 6 of the Act, the issue
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had fallen for consideration before the Wakf tribunal in
view of the defence put forth by the respondent and the
Wakf tribunal had rendered its finding on that aspect
based on the evidence placed before it. Since the gazette
notification had been questioned to indicate that the
property which is in the occupation of the respondent
was not a part of the notified Wakf property, the same
applied both to the suit Schedule ‘A’ as well as Schedule
‘B’ properties. In such circumstance, the Wakf tribunal
had the jurisdiction to determine that question which
had been framed as an issue in this suit. Further as
already noted, on the facts evolving in the instant case,
the tribunal had relied upon the evidence available and
had arrived at the conclusion that the property in
question is Wakf property and had accordingly decreed
the suit.
24. In that view, we are of the opinion that the
judgment dated 12.10.2012 passed by the Wakf tribunal
in O.S. No. 126/2006 was rendered in a suit which was
maintainable before the Wakf tribunal and it had the
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jurisdiction to do so. Insofar as the nature of the
consideration made, we notice that the evidence
available on record has been analysed in its correct
perspective and an appropriate conclusion has been
reached by the Wakf tribunal. On the other hand, as
already noted the High Court has not adhered to the
wellestablished norm of limited scope available in a
Revision Petition. Further the conclusion reached by the
High Court to hold that the suit was not maintainable
before the tribunal is also not justified. The order dated
02.06.2014 passed by the High Court, therefore, cannot
be sustained.
25. For all the aforesaid reasons, we pass the following
order:
i) The order dated 02.06.2014 passed by the High
Court of Judicature at Hyderabad in Civil Revision
Petition No.1331/2013 is set aside.
ii) The judgment dated 12.10.2012 passed by the
Andhra Pradesh State Wakf Tribunal Hyderabad in O.S.
No. 126/2006 is restored.
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iii) The respondent is granted three months’ time to
vacate and handover vacant possession of the suit
schedule ‘A’ and ‘B’ properties subject to payment of
rent, including arrears.
iv) The appeal is accordingly allowed with no order as
to costs.
v) Pending application, if any, shall stand disposed of.
………….…………….J.
(HEMANT GUPTA)
………….…………….J.
(A.S. BOPANNA)
New Delhi,
August 03, 2021
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