P. S. NARAYANA, J.

( 1 ) THESE Second Appeals are filed by A. S. Abdul Khader Wakf for Deeni Talim, represented by its Managing Mutawalli Masood Abdul Khader, aggrieved by the reversing Judgments and decrees made by the Additional Chief Judge, City Civil Court, Secunderabad.

( 2 ) THE appellant herein, as plaintiff instituted the suits on the file of the I Assistant Judge, City Civil Court, Secunderabad for the relief of eviction, recovery of mesne profits, damages for use and occupation and also for future mesne profits till recovery of possession against different tenants, arrayed as defendants in the respective suits. The Court of first instance had decreed the suits and aggrieved by the same, the respective tenants preferred Appeals and the appellate Court had reversed the judgments and decrees of the Court of first instance on twin grounds that the Wakf Board alone can maintain the suits and a Mutawalli cannot maintain the suits and also a joint Mutawalli or a co-Mutawalli cannot maintain the suits in the absence of the other Mutawalli. In view of the general importance involved, since these questions may have an impact on Wakf properties, their superintendence and management, one of us (P. S. Narayana, J.) by the order dated 20-2-2003 had framed questions specified infra, to be decided by an appropriate Division Bench. Inasmuch as the factual controversy is only incidental to the important questions raised, the Second Appeals were referred to be decided by an appropriate Division Bench in toto. The questions which had been referred to the Division Bench are as hereunder : (A) In view of the provisions of the Wakf Act, 1954 and the Wakf Act, 1995, whether a Mutawalli can institute or defend a suit in relation to the properties of the Wakf? If so, under what circumstances? (b) Whether the position of a Mutawalli is that of a Trustee? And if so, whether one of the Mutawallis can maintain the action when there are more than one Mutawalli?thus, these matters are coming before this Court for final disposal.

( 3 ) THE factual aspects and the legal aspects involved in this Batch of Second Appeals being virtually the same, all these Second Appeals are being disposed of by a Common Judgment.

( 4 ) SRI Vedula Venkataramana, the learned counsel representing the appellant in this Batch of Second Appeals in all fairness had submitted that under Section 15 (2) of the Wakf Act, 1954 and Section 32 (2) of the Wakf Act, 1995, power is conferred on the Wakf Board to institute suits. The learned Counsel would further maintain that a Mutawalli who is expected to manage and supervise the properties of the Wakf is definitely entitled to maintain a suit for eviction and also for recovery of mesne profits. The learned counsel further submitted that the aforesaid provisions conferring such power of the Wakf Board are only enabling provisions and it cannot be said that a Mutawalli had no right to maintain a suit at all. The learned counsel also had placed reliance on Manjula Varsheney v. A. P. State Wakf Board (1999) 6 Andh LT 725, Tamil Nadu Wakf Board v. Hathija Ammal, AIR 2002 SC 402 and also Badagara Jumayath Palli Dharas Committee v. P. Ummerkutty Haji, AIR 2002 Kerala 56.

( 5 ) PER contra Sri Mirza Imamullah Baig, learned Counsel representing the respondents had drawn our attention to Section 15 (2) of the Wakf Act, 1954 and Section 32 (2) of the Wakf Act, 1995 and also Section 112 (2) of the Wakf Act, 1995 and had contended that in view of the specific conferment of power to institute and defend suits on the Wakf Board, especially in the absence of delegation, at any stretch of imagination it cannot be said that a Mutawalli had power to institute such suits. The learned counsel also had drawn our attention to the provisions relating to the duties of a Mutawalli and also the scheme and object of both the Wakf Act, 1954 and the Wakf Act, 1995. The learned Counsel also had maintained that even otherwise when Ex. A-1 shows more than one Mutawal

Click Here to Read the rest of this document