1. Aggrieved by the judgment and decree of the Wakf Tribunal in decreeing the suit of the plaintiffs by declaring that the property to an extent of 2 acres 35 guntas of Sy.No.26/A as illegal and void and granting an order of permanent injunction against the defendants in interfering with the plaintiffs’ peaceful possession and enjoyment of the said land, the defendant No.3 has filed this writ petition.

2. The parties would be referred to as per their rankings before the Tribunal.

3. The case of the plaintiffs is that plaintiff Nos.1 to 8 are the only surviving legal heirs of their deceased father Tuljaprasad S/o Ramprasad Pande who was an exclusive owner and in possession of agricultural land bearing RS No.26A measuring 9 acres 10 guntas situated at Mahal Bhagayat Bijapur. He died intestate on 16.08.1971. The plaintiffs have inherited the suit land. Since then they are in exclusive possession and enjoyment of the same as absolute owners. During the lifetime of their father, one gunta was acquired by the Government in the year 1934 for the purpose of building a compound wall around Mulla Masjid which was situated towards the east of the suit land. It was given a separate survey number as 26B. During his life time he converted certain portions of the land into residential plots and sold to various persons. That there is a Well in the suit land which was owned by the plaintiffs and it is fitted with electric pump-set and was used by them. Towards the western side of the land, there are some monuments consisting of tombs and arches etc. which are being treated as monuments and are preserved by the Archeological Survey of India since 1951.

4. The defendants 1 and 2 namely the Chairman, Karnataka Board of Wakfs and the Chairman Bijapur District Wakf Committee published a notification in the gazette dated 13.10.1988 including a part of the suit land measuring 2 acres 35 guntas as an additional Wakf property of Mulla Masjid. Aggrieved by the same, the plaintiffs filed Writ Petition No. 8979/1991 which was disposed off on 24.10.1994 granting an opportunity to the plaintiffs to urge their defence before the mutation proceedings. The Tahsildar did not resume the mutation proceedings. That during December, 1996 the defendants with the help of certain elements tried to disturb their possession. Hence the instant suit was filed seeking for a declaration that the additional property to an extent of 2 acres 35 gutnas as declared in the notification is null and void and for a permanent injunction against the defendants.

5. Initially the suit was filed before the Principal Civil Judge (Senior Divsion), Bijapur in O.S. No. 163/1997. On constitution of the Wakf Tribunal, the same came to be transferred to the present Court and is renumbered as such.

6. On service of notice, defendant Nos.1 and 2 have filed their written statement. They have denied the plaint averments. That neither the plaintiffs nor their ancestors are the absolute owners in possession of the suit land. That the area mentioned as taken over by the State Government is incorrect. That there is no sub division of RS No.26 as claimed by the plaintiffs. That only after following the due procedure in law, the impugned gazette notification has been issued. That the additional property as declared by the defendants is being used by the Muslim Community and Jamat. That the suit is barred by limitation. Hence, they sought for dismissal of the suit.

7. Defendant No.3 has filed a separate written statement. The defendant No.3 claims to be the Mutavalli of the Mulla Masjid. He too denies the plaint averments. It is his case that its only 9 acres of land was in the possession of the plaintiffs as the remaining area formed the part of the Wakf Property. That the notification is in accordance with law. That the suit is barred by limitation.

8. Based on the pleadings, the Tribunal framed the following issues:

“1. Whether plaintiffs prove that notification under No.KTW/RBC/MSC/8/BJP/8889 da