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2022 Supreme(Kar) 1428
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
N.S. SANJAY GOWDA, J.
Sayed Idrus Darga Trust and Ors. - Petitioners
Versus
Dattatraya Hanamant Bidikar, Since Deceased By His Lrs: Aparna and Ors. – Respondents
Writ Petition No. 68084 Of 2011 (GM-WAKF)
Decided On : 21-11-2022
Sri. Ramesh N. Misale, Sri. B. Muhammed Ali, Sri. I.A. Mulla, Sri. S.S. Kulkarni for V.P. Kulkarni.
The main legal point established in the judgment is the significance of prior permission for alienation of Wakf properties and the necessity of specific and categorical pleading in the plaint.
Headnote:
Wakf Property - Sale Deed - Bombay Public Trust Act, Wakf Act - 1952, 1953, 1958, 1980 - The court examined the sale deed executed in 1980 and the prior transactions in 1952, 1953, and 1958. The key legal provisions discussed were the Bombay Public Trust Act and the Wakf Act. The court emphasized the importance of prior permission for alienation of Wakf properties and the significance of Gazette Notifications in determining Wakf properties. The court found that the property in question was not a Wakf property and upheld the validity of the sale deed.
Fact of the Case:
The first petitioner, Sayed Idrus Dargah Trust, along with the Administrator and the Secretary-cum-Auditor of the District Wakf Advisory Committee, filed a suit seeking a declaration that a sale deed executed in 1980 was illegal and did not bind the plaintiffs. They also sought an injunction to restrain the defendants from collecting rents from other parties. The defendants contested the suit, arguing that the property was not a Wakf property and the suit was not maintainable before the Civil Court.
Finding of the Court:
The court found that the property in question was not a Wakf property and upheld the validity of the sale deed. It dismissed the writ petition and held that the Tribunal's finding was just and proper, not justifying interference under Articles 226 & 227 of the Constitution of India.
Issues: The key issues included the status of the property as a Wakf property, the validity of the sale deed, and the maintainability of the suit before the Civil Court.
Ratio Decidendi: The court emphasized the importance of prior permission for alienation of Wakf properties, the significance of Gazette Notifications in determining Wakf properties, and the necessity of specific and categorical pleading in the plaint.
Final Decision: The Writ Petition was dismissed, and pending applications, if any, did not survive for consideration.
ORDER :
1. The first petitioner, Sayed Idrus Dargah Trust along with the Administrator and the Secretary-cum-Auditor of the District Wakf Advisory Committee instituted a suit in O.S. No.919/1999 in which a declaration was sought that the sale deed dated 29.07.1980 executed in favour of the defendant Nos.1 to 3 were illegal, null and void and did not bind the plaintiffs. An injunction was also sought for to restrain the defendant Nos.1 to 3 from collecting the rents from defendant Nos.4 to 6.
2. The plaintiffs (hereinafter referred to as “the Trust”) contended that the suit property bearing CTS No.1039, originally stood in the name of the Trust and was also registered under the Bombay Public Trust Act (for Short “the BPT Act”). It was stated that the name of the Trust was recorded in the Property Card maintained in the City Survey Office, Belagavi and by virtue of the enactment of the Wakf Act, the property which had been registered under the BPT Act, were deemed to be registered under the Wakf Act.
3. It was contended that defendant Nos.1 to 3 had illegally purchased a property from one Shri Mohammadkhan Gouskhan Desai and for this purchase the prior permission of the Wakf Board had not been obtained.
4. It was contended that defendants were never in possession of the property. It was stated that originally the father of defendant Nos.4 to 6 was running a sawmill and they were now posing as a lessee in respect of a portion, which had been occupied by the deceased-father.
5. It was contended that the lease transaction of the father of defendant Nos.4 to 6 was itself illegal as no permission had been sought for from the Assistant Charity Commissioner.
6. It was stated that the possession of the defendant Nos.4 to 6 was illegal and they had no right to pay the rents to the defendants and if any decree had been obtained between defendant Nos.1 to 3 and 4 to 6, the same was not binding on the Trust.
7. It was contended that the defendant Nos.4 to 6 were trying to construct a pakka building in the suit open space and defendant Nos.1 to 3 were trying to take possession of the suit open space and construct a pakka building and therefore, they were constrained to approach the Court.
8. This suit was contested by the defendants. Defendant Nos.2 and 3 contended that in the year 1952, Smt. Shahajadbi wife of Sayed Karimsab Sampgaonkar, had leased the property permanently and Mohammad Issaq Abdul Rehman Angolkar had sold the property to one Vinayak Gajananrao Deshpande in the year 1953 and the said Vinayak Gajananrao Deshpande had sold his rights to Shri Amirabi Gouskhan Desai in the year 1958 and the said Shri Mohammadkhan Gouskhan Desai had sold the property in favour of defendant Nos.1 to 3 in 1980 and their deceased-brother and ever since they were in actual possession.
9. They also contended that the suit would not be maintainable before the Civil Court and the matter ought to be determined only by the Wakf Tribunal.
10. The suit was subsequently transferred to the Wakf Tribunal and the Wakf Tribunal by the impugned order has proceeded to conduct a trial and has ultimately dismissed the suit and hence, the Trust is before this Court by way of this writ petition.
11. The principal contention advanced by Sri. Ramesh N.Misale and Sri. I.A. Mulla, learned counsel appearing for the petitioners, is that the lands in question were undoubtedly Wakfs properties and this was clear from the entries recorded in the name of the Trust in the Registrar of Properties maintained under the BPT Act and therefore, the sale deed obtained by the defendants was of no consequence.
12. It is also contended that CTS No.1039 formed a part of R.S. No.914 and since there was a Gazette Notification, as provided under the Wakf Act, indicating that Sy.No.914 was a Wakf property, the Trial Court could not have dismissed the suit.
13. Shri S.S. Kulkarni, learned counsel appearing fo
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