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SUPREME COURT OF INDIA
N.V. RAMANA, AJAY RASTOGI, JJ.
Syed Zainul Abedeen – Appellant
Versus
The Rajasthan Board of Muslim Wakf – Respondent
Civil Appeal No. 7130 of 2010
Decided On : 30-08-2019
Wakf Act, 1954 – Section 6 – Limitation Act, 1963 – Article 113 – Suit – Bar of limitation – Subject property in question is a registered Wakf under Act, 1954 – Survey conducted by Commissioner Wakfs under Act, 1954 holding subject property as a Wakf–AlAllah in its report, was not subject matter of challenge in suit filed at instance of appellant/plaintiff – Suit was preferred beyond period of limitation and concurrent finding of fact has been recorded by all three Courts – No manifest error in finding of fact recorded by Courts below which needs interference – Once property after survey has been registered in list of Wakfs as Wakf-AlAllah on the basis of finding recorded by Survey Commissioner in its report, dispute regarding nature of Wakfs registered is open to be examined only within four corners of Section 6 of Act, 1954 – Plea of appellant that Section 6 has been erroneously referred to and limitation has to be guided by Article 113 of Limitation Act, is without substance and deserves rejection – Appeal dismissed. (Paras 5, 19, 20, 22 and 23)
Facts of Case:
Instant appeal is directed against concurrent finding of all three Courts below on the issue that suit filed by appellant/plaintiff under Section 6 of Wakf Act, 1954 was barred by limitation and not maintainable.
Findings of Court:
Indubitably, suit was preferred beyond period of limitation and a concurrent finding of fact has been recorded by all the three Courts and we find no manifest error in the finding of fact recorded by Courts below which needs our interference.
Result : Appeal dismissed.
JUDGMENT :
AJAY RASTOGI, J.
1. The instant appeal is directed against the concurrent finding of all the three Courts below on the issue that the suit filed by the appellant/plaintiff under Section 6 of the Wakf Act, 1954 (hereinafter being referred to as the “Act 1954”) was barred by limitation and not maintainable.
2. The appellant/plaintiff filed a suit under Section 6 of the Act, 1954 seeking the following declarations:
“(i) A declaration may be issued to the effect that the property Mandarja Madnumber 14 as mentioned in the suit is not Wakf Allah and the same is Wakf- Alal-Aulad.
(ii) Hukum Imtanai consequential be issued against the defendant with the direction that the defendant shall not treat the property Mundarja Madnumber as Wakf Allah and the defendant will register the aforesaid property except Mosque and Mazar as Wakf-Alal- Aulad and if it has been registered wrongly the same be corrected.
(iii) The defendant be directed to the cost of the suit.
(iv) Such further or furthers orders as may be in the interest of justice.”
3. It is not disputed that the subject property in question is a registered wakf under the Act, 1954.
4. The Act, 1954 was enacted for better administration and supervision of wakf and Chapter II provides the procedure to be followed for survey of wakfs. Sub-section (4) of Section 4 of the Act, 1954 postulates that the Survey Commissioner while making any inquiry, have the same powers as are vested in the civil Court under the Code of Civil Procedure, 1908 and Survey Commissioner has to submit his report to the State Government under sub-section (3) of Section 4 of the Act. In the instant case, inquiry was conducted by the Survey Commissioner under sub-section (4) of Section 4 of the Act, 1954 regarding Dargah Moulana Ziauddin Sahib with attached lands, properties, shops, buildings and other premises and after holding inquiry in reference to the subject property in question and taking note of the rival claims and the evidence of the respective parties which came on record, in its inquiry dated 2nd January, 1965 (Annexure-R1) held as under:
“On a careful consideration of the entire evidence on record specifically the statement of Shri Faqruddin Shah I am satisfied that Dargah Moulana Ziauddin Sahib with attached lands, properties, shops, buildings and other premises is a Wakf-Al-Allah property and accordingly.
Order
That the above properties be entered as Wakf-Al-Allah in survey record.”
5. To be noticed at this stage, the survey conducted by the Commissioner Wakfs under the Act, 1954 holding the subject property as a Wakf-Al-Allah in its report dated 2nd January, 1965 was not the subject matter of challenge in the suit filed at the instance of the appellant/plaintiff.
6. On the basis of the survey report, the subject property in question was included in the list of wakfs and was published in the Official Gazette as provided under sub-section (2) of Section 5 of the Act, 1954 dated 2nd December, 1965.
7. The appellant/plaintiff, being aggrieved by the declaration of the subject property as published in the Official Gazette in terms of sub-section (2) of Section 5 of the Act, 1954 dated 2nd December, 1965 filed Suit no. 23 of 1967 for declaration before the Munsif, West Jaipur City on 17th January, 1967.
8. After the notice came to be served, the respondent/defendant raised a preliminary objection that the suit filed by the appellant/plaintiff is beyond the period of limitation of one year as provided under 1st proviso to Section 6 of the Act, 1954 and accordingly was not maintainable.
9. The defence of the appellant throughout and also before this Court is that the subject property in question has been erroneously declared as Wakf-Al-Allah. But according to the evidence on record, the subject property in question is a Wakf-Alal-Aulad and according to him, the restriction of period of one year under proviso to Section 6 of Act, 1954 may not apply in the case of a declaration being claimed by the appellant in the suit
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