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Andhra Pradesh High Court
Judges : ALLADI KUPPUSWAMI, PUNNAIAH
Cheedella Kotaiah - Appellant
Versus
Wakf Board, A.P., Hyderabad - Respondent
Decided On : 03-22-77
WAKF ACT - S. 6 - NOTIFICATION OF WAKF PROPERTIES - FINALITY - STRANGER TO WAKF - NOT BOUND BY NOTIFICATION - CAN QUESTION VALIDITY OF WAKF - MERITS OF THE CASE - PROPERTY PURCHASED BY APPELLANT WAS PART OF INAM GRANTED TO MOSQUE - SUIT FOR RECOVERY OF POSSESSION BY WAKF BOARD - DECREED.
Fact of the Case:
The appellant purchased land from four Muslim gentlemen under a sale deed in 1958. The Wakf Board filed a suit for recovery of possession of the land, claiming that it belonged to a mosque and was wakf property. The appellant denied that the land was wakf property.
Finding of the Court:
The court held that the appellant was not bound by the notification of wakf properties published under S. 5 of the Wakf Act, as he was a stranger to the wakf and had purchased the land before the enquiry and publication of the list of wakfs. The court also found that the land purchased by the appellant was part of the property granted to the mosque and mentioned in the Inam Fair Register, which was evidence of the wakf status of the property.
Issues: 1. Whether the appellant was bound by the notification of wakf properties published under S. 5 of the Wakf Act? 2. Whether the land purchased by the appellant was wakf property?
Ratio Decidendi: 1. S. 6 of the Wakf Act confers the right to file a suit to challenge the wakf status of a property only on the Board, the mutawalli, or persons interested in the wakf. The appellant, as a stranger to the wakf, did not fall within any of these categories and was therefore not bound by the notification. 2. The sale deed under which the appellant purchased the land described the property as being part of the inam in favor of the mosque, and the Inam Fair Register confirmed that the property was granted to the mosque. This evidence established the wakf status of the property.
Final Decision: The appeal was dismissed, and the suit for recovery of possession by the Wakf Board was upheld.
( 1 ) THE 7th defendant in O. S. 72 of 1971 on the file of the Subordinate Judges Court, Kandukur, is the appellant herein. He purchased an extent of Ac. 4. 50 Cents in Survey No. 1655 in Anandapuram Village under a sale deed Ex B-1 dated 16-8-1958 from four Muslim gentlemen. The suit O. S. 72 of 1971 was filed by the Wakf Board, Andhra Pradesh, for recovery of possession of several items of land from a number of defendants including the 7th defendant. The case of the plaintiff was that all these properties belonged to a mosque called Macca Maszid Mosque at Kandukur. The alienation of several items belonging to the Mosque in favour of the defendant was not valid and that the Wakf Board is entitled to recover possession of the said properties.
( 2 ) THE appellant denied that the suit properties were endowed in favour of the Mosque.
( 3 ) IN the Court below it was contended on behalf of the plaintiff that a notification had been made under S. 5 of the Wakf Act to the effect that the suit properties are properties granted to the Macca Maszid Mosque and as no suit has been filed questioning the notification, the notification became final and cannot be questioned by the defendants in the suit. It was further contended that even on the merits the property was wakf property having been granted to the Mosque.
( 4 ) THE Court below framed several issues, but we do not find an issue relating to the finality of the notification made under the Wakf Act. However, this question was considered while considering issues 1 to 3 viz. , whether the suit properties were endowed for the up-keep and performance of Muthavalli service in Macca Maszid. The learned Subordinate Judge appears to have been of the view that the defendants were bound by that notification as they had not filed a suit under S. 6 of the Wakf Act. Sri Eswara Prasad, the learned Counsel for the appellant, submitted that S. 6 had no application to the facts of the case as the 7th defendant was a stranger to the wakf and he was not bound by any enquiry conducted or any notification made under that Act. To appreciate this contention it is necessary to set out the relevant section of Wakf Act. Section 4 provides for the appointment of a Commissioner of Wakfs. Under Section 4 (3) the Commissioner shall after making such enquiry as he may consider necessary submit his report to the State Government containing particulars viz. , : (a) the number of wakfs in the State, showing the Shia Wakfs and Sunni Wakfs seperately; (b) the nature and objects of each wakf; (c) the gross income of the property comprised in each wakf; (d) the amount of land revenue, cesses, rates and taxes payable in respect of such property; (e) the expenses incurred in the realisation of the income and the pay or other remuneration of the mutawalli of each wakf; and (f) such other particulars relating to each wakf as may be prescribed. Section 4 (5) provides that if, during any such inquiry, any dispute arises as to whether a particular wakf is a Shia Wakf or Sunni Wakf and there are clear indications in the deed of Wakf as to its nature, the dispute shall be decided on the basis of such deed. Section 5 provides for publishing in the Official Gazette a list of Wakfs existing in the State containing particulars of the Wakfs after receipt of a report of the Commissioner under Section 4 (3 ). Section 6 is in the following terms :" 6 (1) If any question arises whether a particular property is wakf property or not or whether a wakf is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a civil court of competent jurisdiction for the decision of the question and the decision of the civil court in respect of such matter shall be final ; Provided that no such suit shall be entertained by the civil court after the expiry of one year from the date of publication of the lists of wakfs under sub-section (2) of Section 5. xx xx xx (4) The
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