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IN THE HIGH COURT OF KARNATAKA AT KALABURAGI BENCH
M. NAGAPRASANNA, J.
The Secretary Karnataka Board of Wakfs – Appellant
Versus
Sayyed Gouspeer S/o Dadapeer Peerzade – Respondent
Regular Second Appeal No. 2076 of 2005
Decided On : 28-02-2020
Karnataka Wakf Board - Suit Darga - Declaration as Wakf Property - Registration Certificate - Challenge - Maintainability of Suit - Notice Under Section 56 of Wakf Act - Substantial Questions of Law - Res-Judicata - Merger of Judgment - Binding Precedent - Additional Substantial Questions of Law - Dismissal of SLP and Review Petition - Effect - Doctrine of Merger - Applicability - First Appellate Court's Reversal of Trial Court's Finding - Interference by Appellate Court - Principles.
Fact of the Case:
Plaintiffs and defendant No. 1 were brothers and residents of Kanakal village. The suit Darga, called 'Dastagirsa Darga,' was situated in VPC No. 215 of Kanakal Village. The plaintiffs and defendant No. 1 claimed to be in actual possession and enjoyment of the suit Darga, which was an ancestral property. The suit Darga was not a Wakf property but a joint property of the plaintiffs and defendant No. 1. Annual festival 'Urus' was observed every year. The great grandfather of the plaintiffs had filed a suit in O.S. No. 223/1894 and obtained a decree of injunction in their favor. During the 'Urus,' people from different villages visited the Darga and offered alms and other offerings, which were divided between the plaintiffs and defendants. Defendant No. 2, in collusion with defendant No. 3, published a handbill inviting people to the annual festival, showing defendant No. 2 as 'Sajjada Nashin' and defendant No. 3 as the Chairman of the Darga Committee. The plaintiffs protested and alleged that they were not entitled to call themselves 'Sajjada Nashin' or Chairman of the Committee of the Darga. The plaintiffs filed a suit in O.S. No. 50/1990 against the defendants for injunction to restrain the defendants from causing interference in the management of the Darga. During the pendency of the suit, there were correspondences between the Wakf Board and the Darga regarding the declaration of the Darga as a Wakf Property. The plaintiffs and defendant No. 1 filed objections to the declaration. In the suit, defendant No. 2 filed a written statement contending that it was a Wakf Property and he was in-charge of the Darga. The Secretary of Karnataka Wakf Board, Bengalore, was impleaded as defendant No. 4. The Board claimed that the Darga situated in Kanakal Village in VPC No. 215 measuring 300 x 300 was declared as Wakf Property. Registration Certificate to that effect was issued on 30.08.1994 and defendant No. 2 was appointed as Mutwalli of the suit Darga. The Board also claimed that it had constituted a Managing Committee of the suit Darga and nominated the Chairman, Vice-Chairman, Secretary, and other Members on 30.03.1995 in terms of the Wakf Act.
Finding of the Court:
1. The order passed in RSA No. 2126/2005 would not operate as res-judicata for the appellant to prosecute the instant appeal. 2. The dismissal of the SLP No. 38334/2012 by the Hon’ble Apex Court would not amount to merger of the judgment in RSA No. 2126/2005. 3. The judgment in RSA No. 2126/2005 does not operate as a binding precedent. 4. The suit property was declared to be a Wakf Property with issuance Registration Certificate in the year 1994. 5. The First Appellate Court was not justified in reversing the judgment of the Trial Court which was based upon clear evidence and judgment of the First Appellate Court does not indicate cogent and coherent reasons more so in the light of the fact that there was no evidence to grant relief to the defendants by the First Appellate Court.
Issues: 1. Whether the First Appellate Court was justified in reversing the judgment of Trial Court? 2. Whether the suit of the plaintiff was bad for non issuing statutory notice under Section 56 of Wakf Act? 3. Whether the certificate of registration in respect of the suit property needs to be revoked or modified to grant relief to the plaintiff? 4. Whether the lower Appellate Court was not justified in granting relief without there being any pleading?
Ratio Decidendi: 1. The order passed in RSA No. 2126/2005 would not operate as res-judicata for the appellant to prosecute the instant appeal as the Wakf Board was not a party to the previous proceedings viz., RSA No. 2126/ 2005. 2. The dismissal of the SLP No. 38334/2012 by the Hon’ble Apex Court would not amount to merger of the judgment in RSA No. 2126/2005 as the SLP was dismissed in limine without it being converted to a Civil Appeal. 3. The judgment in RSA No. 2126/2005 does not operate as a binding precedent as the RSA No. 2126/2005 was filed by the defendant without making Wakf Board a party and it was a fraud played by them on this Court for not making the Wakf Board as a respondent. 4. The suit property was declared to be a Wakf Property with issuance Registration Certificate in the year 1994 and the plaintiffs have not challenged the declaration of the property to be a Wakf property, which was made by the Wakf Board on 30.08.1994, before this Court in W.P. No. 33595/1995 (GM-WAKF) wherein the plaintiffs sought the following prayer: “To quash the order bearing No. KBW/REG/16/BJP, dated 30.08.1994, vide Annexure-A issued by R1, etc.”. 5. The First Appellate Court was not justified in reversing the judgment of the Trial Court which was based upon clear evidence and judgment of the First Appellate Court does not indicate cogent and coherent reasons more so in the light of the fact that there was no evidence to grant relief to the defendants by the First Appellate Court.
Final Decision: The second appeal was allowed with costs throughout. The judgment and decree dated 15.07.2005 on the file of the Civil Judge (Sr. Dn.) Basavan Bagewadi in R.A. No. 154/2003 was set-aside. R.A. No. 154/2003 was dismissed. The judgment and decree dated 21.01.2002 passed in O.S. No. 50/1990 by the Court of Civil Judge (Jr. Dn.) Basavan Bagewadi, was restored.
JUDGMENT :
M. NAGAPRASANNA, J.
1. Aggrieved by the judgment and the decree dated 15.07.2005 passed in R.A. No. 154/2003 by the Civil Judge (Sr. Dn.) Basavan Bagewadi and order dated 21.01.2002 passed in O.S. No. 50/1990 by the Civil Judge (Jr. Dn.) Basavan Bagewadi, the defendant No. 4 Karnataka Wakf Board has filed the instant appeal.
2. The ranking of the parties will be as in the original suit for the sake of convenience.
3. The plaintiffs filed a suit in O.S. No. 50/1990 against the 2nd and 3rd defendants initially for a bare injunction. The plaintiff Nos. 1 to 4 and defendant No. 1 are brothers and all of them are residents of Kanakal village in Basavan Bagewadi Taluk. The defendant No. 2 is the son of Defendant No. 1. It is the claim of the plaintiffs that they and defendant No. 1 are in actual possession and enjoyment of the suit Darga, which is situated in VPC No. 215 of Kanakal Village. The Darga is called ‘Dastagirsa Darga’ (hereinafter referred as ‘suit Darga’). It is further claim of the plaintiffs and defendants that Darga is the ancestral property of the plaintiffs and defendant No. 1 since from the time of the ancestors of plaintiffs and defendant No. 1.
4. The suit Darga according to the plaintiffs is not a Wakf property, but a joint property of plaintiffs and defendant No. 1, where annual festival i.e. ‘Urus’ is observed every year. It transpires that the great grand father of the plaintiffs had filed a suit in O.S. No. 223/1894 in respect of the suit Darga and had obtained a decree of injunction in their favour. The suit schedule property mentioned in O.S. No. 223/1894 was the suit schedule property was the same as the present suit. During the period of observance of ‘Urus’ the villagers and number of people from different villages visited the Darga at Kanakal village and take part in the festival. The ceremonies like “Ganda Urs Jiyarat” was also observed in the Darga on an annual basis.
5. It transpires that the ancestors of the plaintiffs, against defendants have filed another suit in O.S. No. 255/1918 seeking decree of injunction, which is also decreed in favour of the plaintiffs. As stated herein above during annual festival that used to take place in the Darga, the people who visited, used to offer alms and other offerings to the Darga. The alms and offerings so received from the people was being divided between the plaintiffs and defendants. This procedure went on from the time of the ancestors of the plaintiffs and the defendants till the present plaintiffs and defendants.
6. Things standing thus, defendant No. 2 in collusion with defendant No. 3 published a handbill inviting the people to annual festival in which defendant No. 2 was shown as “Sajjada Nashin” and defendant No. 3 was shown as the Chairman of the Darga Committee. In terms of the handbill which contained the invitation, defendant Nos.2 and 3 started calling themselves as “Sajjada Nashin” and Chairman of the Darga Committee respectively. The plaintiffs protested to the said action of defendant Nos. 2 and 3 that they are not entitled to call themselves as “Sajjada Nashin” or Chairman of Committee of the Darga and it was alleged that it was only to gain the illegal benefits of offerings that come from the people during the annual festivals that they had colluded. It is at that point of time, the plaintiffs filed the suit in O.S. No. 50/1990 against the defendants for injunction to the effect that, the plaintiffs and defendant No. 1 are the owners of the suit Darga and also to restrain the defendants from causing interference in the management of the Darga.
7. During the pendency of the suit there were plethora of correspondences between the Wakf Board and the Darga with regard to declaration of the Darga to be a Wakf Property. The plaintiffs and defendant No. 1 had filed their objections that the Darga should not be declared as a Wakf Property. In the suit the defendant No. 2 filed his written statement contending that it was a Wakf Property and he
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