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2003 Supreme(SC) 532
2003(3) Supreme 706
SUPREME COURT OF INDIA
(From Karnataka High Court)
S. Rajendra Babu, K.G. Balakrishnan & G.P. Mathur, JJ.
Karnataka Wakf Board -Appellant
versus
State of Karnataka & Anr. -Respondents
Civil Appeal No. 16897 of 1996
With
Civil Appeal No. 16898 of 1996
Decided on 30-4-2003
Counsel for the Parties :
For the Appellant : Salman Khurshid, Sr. Advocate, Javed A. Warsi, Zaki Ahmed and Irshad Ahmad, Advocates.
For the Respondents : Sanjay R. Hegde, Satya Mitra, G.V. Chandrasekhar, Advocate for P.P. Singh, S. Wasim Qadri, Anil Katiyar and Ms. Sushma Suri, Advocates.
IMPORTANT POINT
Prior to insertion of Explanation, to Section 6 of Wakf Act, a third party claiming independent title over a property which is illegally included as wakf property was entitled to file a suit within period provided under Law of Limitation.
Headnote:(i) Wakf Act, 1954-Section 5-Property comprising CTS No. 34B in Ward No. VI of Bijapur City and property No. CTS 34/A2 in Ward No. VI in Bijapur City published in Official Gazette by Notification as wakf property-Civil suit to declare inclusion of property as wakf as illegal and void and to declare notification as illegal and void-Satisfactory and convincing documentary evidence to show that plaintiffs were the owner and in possession of property-No document to show that suit property was ever in possession of Wakf Board-Trial Court rightly held plaintiffs had got title to suit property. (Paras 5, 6 & 9)
(ii) Wakf Act, 1954-Section 6-Explanation as added by Act 69 of 1984-Civil suit to be filed within one year where any question arises whether a particular property specified as wakf property was wakf property or not-Expression any person interested therein -At the time when plaintiffs filed suits, they were strangers and were not interested in wakf as such-Prior to insertion of Explanation, a third party claiming independent title over property which was illegally included as wakf property was entitled to file suit within limitation under law of limitation. (Paras 11 & 12)
JUDGMENT
K.G. Balakrishnan, J.-Both these appeals raise common questions of law; hence they were heard jointly and are being disposed of by a common judgment. Under Section 4 of the Wakf Act, 1954, the Survey Commissioner of the State of Karnataka conducted a survey of Wakf properties existing in the State of Karnataka. After the survey was over, a list of properties of Wakf was prepared under Section (5) of the Act and the same was published in Official Gazette by Notification on 8.7.1976. In the said notification, property comprising CTS No. 34B in Ward No. VI of Bijapur city was included as an item of Wakf property. So also, property bearing Survey No. CTS 34/A2 situated in Ward No. VI in Bijapur city with a building thereon was included as an item of Wakf property. After this notification, the Department of Education, represented through Deputy Director of Public instructions of the State of Karnataka, filed Original Suit No. 1/1981 on the file of the Additional Civil Judge, Bijapur, against the present appellant Karnataka Wakf board and four others, for declaration that the inclusion of the property bearing CTS No. 34B in Ward No. VI of Bijapur city as Wakf is illegal and void and also for consequential injunction to restrain the defendants from obstructing the plaintiff s possession over this property. Plaintiff had prayed that the notification of the said property as a Wakf property be declared illegal and void. As an alternative relief, the plaintiff sought for declaration of title by adverse possession.
2. As regards property and the building comprising CTS No. 34/A2 in Ward No.VI of Bijapur city, the Department of Agriculture, represented through Director of Agriculture of the State of Karnataka filed Original Suit No. 4 of 1981 on the file of the Principal Civil Judge, Bijapur praying for a declaration of the title of the plaintiff over this property and sought for further declaration that the notification published on 8.7.1976 was illegal and void. The plaintiff also sought for injunction restraining the defendants from obstructing the plaintiff s possession over the suit property.
3. In both these suits, the Karnataka State Wakf Board was the first defendant. The other defendants in both the suits are also common. At first, we shall take up the case relating to property comprised in Survey No. CTS No. 34B situated in Ward No. VI of Bijapur city, which is claimed by the Education Department of the Karnataka State. We shall refer to the parties as arrayed in the original suit. The plaintiff contended that this property originally belonged to the then Government of Bombay. Then the District Local Board, Bijapur purchased this property and the value was fixed at Rs.16,325/. Later on, the District Local Board handed over this property to the District School Board. In the year 1961, District School Board constructed an office building on that property. After the re-organisation of the States and coming into existence of the State of Karnataka, the District School Board merged into the Department of Education and thus, the property came to belong to the Department of Education. Government of Karnataka and the plaintiff came to know of the notification showing this property as a Wakf property and the plaintiff alleged that it was done at the instance of defendant Nos. 2A and 2B and no notice was served on the plaintiff before the publication of such notification.
4. The first defendant, the Karnataka Wakf Board denied the allegations of the plaintiff. It was contended that the suit property was declared as Wakf property by the State Government and, therefore, the plaintiff is estopped from challenging the validity of that notification and that the plaintiff was given sufficient opportunity to dispute any claim, when the Assistant Commissioner conducted the survey of Wakf properties. Defendants 2A and 2B in their first written statement contended that one Arab preacher Peer Mahabare Khandayat came as a missionar
