Important Point
Grants by way of service inams for the purposes recognized by the muslim law as pious, religious or charitable would clothe the property with character of wakf.

Headnote:Wakf Act-Sections 3, 5 and 6 -Property in question was endowed by Hyderabad Nizam for support and service of Dargah-Income utilized for up keep of Dargah from time-immemorial-After Constitution of Wakf Board property in question was notified as Wakf property-Tahsildar under Section 3 of Andhra Pradesh Inam Abolition Act in suo motu enquiry gave finding property was not held by any institution-Patta granted to individual (Mokhsadars)-Suit by Wakf Board to declare lease granted by mutawallis as illegal-Defence that property was not wakf property - Not sustainable - Inam register and compromise decree in earlier suit by defendants showed inam as service inam-Inam by way of service inam for purpose recognised by muslim law as pious, religious or charitable would clothe property with character of Wakf.
       Held : Ex. B.3 and Ex. A20 (inam register and certified copy of compromise decree) throw sufficient light on the character of the disputed property. Ex. A.20 shows that the grant was made of land in Devada Mokhasa and the Mokhasa village was resumed and the title deed earlier issued by the Inam Commissioner was cancelled in July, 1902, as the grantees were not rendering service at the Dargah. The Mokhasadar challenged the resumption of land by means of a suit filed before the District Judge, Visakhapatnam being Suit No. 16/1902 and the District Judge decreed the suit by the judgment dated 17.12.1903 (Ex. B.4). The government preferred an appeal against the said judgment before the Madras High Court where the dispute between the government and the Mokhasadar was compromised, vide Ex. A-20. (Para 5)
       The terms of compromise do indicate that the nature of the property is a service Inam. The grant in favour of the Mokhasadars was subject to the condition that they render service at the Dargah and perform the various obligations imposed on them. It was not left to the Mokhasadar to neglect the Dargah and not to incur any expenditure for the upkeep of Dargah or performing Muharrum and other festivals. The purpose for which the Mokhasadars were obligated was for purposes under the Muslim law as pious, religious or charitable. It is true that the compromise decree constituted inam as a service inam, but under the Wakf Act such a grant answers to the description of Wakf even if the Mokhasadars were allowed to enjoy the property, subject to this restriction that they would render service as stipulated in the compromise decree. (Para 6)
       Ex. B.3 shows that an enquiry was conducted wherein it was found that the inam which was classified as Devadayam was granted for the support of Dargah of Visakhapatnam and was free of tax. The enquiry further revealed that the services were being performed by the legal representatives of three ancestors whose names were noted and appear under the words Dargah as Ansar Saheb, Madina Saheb and Mohammed Saheb. The inam was confirmed and title deed No. 42 was issued. Further, Column 8 of the Inam Fair Register indicates that the inam was granted for support of Dargah, Visakhapatnam. Column 10 shows that the grant was to continue so long as the service is performed. These entries in the Inam Fair Register establish the ingredients of Wakfs as defined under Section 3(1) of the Act. For the purposes of that definition, it is not necessary that dedication should be in favour of Dargah. It is sufficient if the dedication is made for the purpose recognized by the Muslim law as pious, religious or charitable. Thus, we are of opinion that grants by way of service inams for the purposes recognized by the Muslim law as pious, religious or charitable would clothe the property with the character of “Wakf”. We, therefore, find that the view taken by the High Court that disputed property is Wakf as defined in Section 3(1) of the Wakf Act is correct in law and the same does not suffer from any legal infirmity. (Para 7)
       The disputed property was shown as Wakf property in the A.P. Official Gazette on 30.11.1961 and no suit having been filed challenging the Wakf property, the entries in the official gazette describing the property as wakf became final and conclusive. Under Section 3 of the Inams Act, Tahsildar may suo motu make an enquiry for the purpose of grant of patta on three points, one of them being, whether inam land is held by any institution. While making an enquiry in the present case as to find out whether the inam land was held by the Dargah, the Tahsildar was not required to enquire into and adjudicate upon the character of the Wakf property mentioned in the list of Wakfs published in the official gazette under sub-section (2) of Section 5 of the Wakf Act, as the dispute in that regard as to its character could only be decided in the manner provided in Section 6 of the Wakf Act. Assuming that the Wakf property was not found to be held by the Dargah under Section 3 of the Inam Act, it was not open to the Tahsildar to adjudicate upon the character of the Wakf property as the same was a grant by way of service inam for purposes recognized by the Muslim law as pious, religious or charitable which constituted the property as Wakf. Thus, we find that the finding of the Tahsildar that the property was not Wakf, was wholly erroneous and beyond his jurisdiction. Consequently, the finding of the Tahsildar that the property is not a Wakf property would not constitute res judicata in the subsequent suit filed by the Wakf Board. It is well settled that if a decision of a Court or a tribunal is without jurisdiction, such a decision or finding cannot operate as res judicata in any subsequent proceedings. The plea of res judicata presupposes that there is inexistence a decree or judgment which is legal but when the judgment is non est in law, no plea of res judicata can be founded on such a judgment. (Para 8)
       It was then contended by the learned counsel for the appellant that the suit filed by the Wakf Board was not maintainable in view of Section 14 of the Inams Act. We having found that the property was a service inam granted to individuals burdened with service, which answered the description of all the ingredients of Wakf, the Tahsildar under Section 3 of the Inams Act, was not required to adjudicate as to whether it is a Wakf property or not. His decision holding that the property is not a Wakf property was not within his domain, and the decision could not be said to have been passed under the Inams Act. Decision or order contemplated under Section 14 of the Inams Act presupposes an order passed within jurisdiction. Since, order passed by the Tahsildar has been found to be without jurisdiction, Section 14 of the Act which bars the jurisdiction of the Civil Court would not be attracted in the subsequent suit. In the present case; since it was not within the domain of the Tahsildar to embark upon an enquiry in respect of Wakf property, Section 14 of the Inams Act cannot affect the maintainability of the suit filed by the Wakf Board. (Para 13)
       It was contended by learned counsel for the appellant that once patta, under the Inams Act, having been granted in favour of Mokhasadar, it was not open to the High Court to hold that the property was a Wakf property. In other words, the argument seems to proceed on the basis that once patta has been granted under the Inams Act to Mokhasadars, the land has ceased to be a Wakf property. It may be stated that a Wakf is a permanent dedication of property for purposes recognized by Muslim law as pious, religious or charitable and the property having been found as Wakf would always retain its character as a Wakf. In other words, once a Wakf always a Wakf and the grant of patta in favour of Mokhasadar under the Inams Act does not, in any manner, nullify the earlier dedication made of the property constituting the same as Wakf. After a Wakf has been created, it continues to be so for all time to come and further continues to be governed by the provisions of the Wakf Act and a grant of patta in favour of Mokhasadar does not affect the original character of the Wakf property. (Para 14)

Judgment

V.N. Khare, J.-This appeal is directed against the judgment of the High Court of Andhra Pradesh dated 6.8.84 passed in Appeal No. 89 of 1976 whereby the High Court allowed the appeal and decreed the original suit filed by the first respondent herein.

2. The facts leading to the filing of the civil appeal are these :

3. The first respondent herein is the Andhra Pradesh Wakf Board (hereinafter referred to as the “Wakf Board”) constituted under the Wakf Act (hereinafter referred to as the “Wakf Act”). The Wakf Board is entrusted with the duty of administering and supervising all wakfs within the State of Andhra Pradesh, whether created before or after the commencement of the Wakf Act. One of such Wakfs is by the name “Syed Ali Ishaq Madina Vali Dargah” having about Ac. 358-53 cts. land in Devada Mokhasa village covered by Title Deed No. 42. It was alleged by the Wakf Board that the aforesaid property was endowed by the Nizam of Hyderabad for support and the services of the Dargah in the port area of district Visakhapatnam. It was further alleged that, from the property the income was being utilized for the maintenance and performance of services of the said Dargah from time immemorial and after constitution of the Wakf Board, the first respondent herein, notified the said property as Wakf property in the Andhra Pradesh Gazette dated 30.11.1961. It was also alleged that the Mutawallis managing said the property without any kind of right, executed long term leases in favour of other defendants, who on their turn, executed long term sub-leases. Since the Mutawallis have no right or authority to execute long term leases, the Wakf Board on 8.8.1967 filed the suit in the Court of Subordinate Judge, Visakhapatnam for cancellation of various leases or sub-leases in respect of the property and for recovering the possession thereof. The case of Wakf Board was that long term leases being illegal, do not bind the Dargah as the property is a Wakf property. The suit was contested by the sub-lessees and the defence taken by them was that the grant was not in favour of Dargah and the property was not a Wakf property and, in fact, the grant was in favour of named individuals burdened with the service. The learned Subordinate Judge by judgment dated 14.2.75 dismissed the suit holding that the inam was in favour of the named individuals and the property did not belong to the Dargah and that the Wakf Board is estopped from contending that the property in dispute is part of Wakf property in view of the judgment of the High Court in Writ Petition No. 1736 of 1968. In this context it may be mentioned here that, before filing the suit, the Tahsildar made a suo motu enquiry under Section 3 of the Andhra Pradesh (A.A.) Inams (Abolition and Conversion into Ryotwari) Act, 1956 (hereinafter referred to as the “Inams Act”) for the purposes of grant of pattas on three points, viz., firstly, whether the property in dispute is an inam land; secondly, whether such inam land is in a ryotwary, Zamindari or inam village and, thirdly, whether such inam land is held by any institution. The Tahsildar by his order dated 17.1.67 held that the land specified below is an inam land; that the land is in the inam village of Devada Mokhasa of Visakhapatnam Taluk in Visakhapatnam District; and that the land is not held by an institution.

T.D.No. S.No. Classification Extent Remarks

42 1 to 211 Devada Mokhasa Ac. Cts. - Wet and Dry 3091....46

It may be mentioned here that the Tahsildar by his subsequent order dated 2.6.77 held the following land is an inam land and is in village Devada Mokhasa of Visakhapatnam Taluk and is not held by any institution.

T.D. No. S.No. Classification Extent Remarks

42 212 to 216 Devada Mokhasa Ac. - 2216.35

4. Against the order of the Tahsildar an appeal was pref

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1998 Supreme(SC) 124

Important PointGrants by way of service inams for the purposes recognized by the muslim law as pious, religious or charitable would clothe the property with character of wakf.

Cases Referred (5)

Important Point
Grants by way of service inams for the purposes recognized by the muslim law as pious, religious or charitable would clothe the property with character of wakf.