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Gujarat High Court
Judgename :R.BALIA
KACHCHH WAKF BOARD - Appellant
Versus
KACHCHH MEMON JAMAT - Respondent
C.A. 120 of 1979
Decided On : 12/08/1997
The maintainability of representative suit by two non-muslims to seek protection of their rights as member of public in the said property denying the existence of Wakf is not affected by Sec. 6, subject of course to other provisions of law. Even otherwise assuming the appellants to be governed by Sec. 6 for the sake of argument, the present suit having been filed within one year of commencement of Wakfs (Amendment) Act, 1969 in respect of list published under Sec. 5(2) prior to such commencement, the suit is not barred even by special rule of limitation provided in proviso to Sec. 6(1).
[Para 15]
(b) Civil Procedure Code, 1908 - Sec. 9 - Civil suit - Maintainability - Bombay Public Trusts Act, 1950 - Sec. 79 - Suit alleging disputed property as Dharamshala - Issue can be decided by authorities under Trusts Act - Suit barred under Sec. 79 of the Bombay Public Trusts Act.
Foundation of plaintiffs right is existence of Dharmshala as public Trust to which every member of public, without distinction of caste, colour, creed or object of visit has a right to seek accommodation. It is this right breach of which is alleged by the impugned action under Wakf Act, 1954 by the Board of Wakfs in publishing the list of Wakf vide supplementary list dated 6.5.1965. Thus establishing the existence of Dharmshala as public Trust to which plaintiff or public at large has unobstructed right of access was the prime-essential for the plaintiffs, on which alone their claim to relief can be sustained.
[Para 20]
(c) Bombay Public Trusts Act, 1950 - Sec. 87 - Wakf Act, 1954 - Sec. 6 - Non-applicability of the Act to the wakfs properties - Dispute whether the property in public trust is falling into wakf or not - Jurisdiction of authorities under Bombay Public Trusts Act not barred.
The enquiry whether a Wakf exist and a particular property is Wakf property or not precedes application of Act of 1954 to such property. Until such state is reached, any enquiry which is necessary before the operation of Act of 1954 is attracted, is not envisaged to be excluded from the jurisdiction of such authorities as are competent to hold such enquiry. If for determining the question whether Wakf Act, 1954 operates in respect of property needs an enquiry into question whether the property is a public trust, not falling into Wakf, the exclusive jurisdiction to decide such issue, before provisions of Wakf Act can be attracted vest in authorities under the Bombay Public Trust Act within the State of Maharashtra and Gujarat.
[Para 39]
This enquiry under Sec. 79 of the Act of 1950 is exclusively within the jurisdiction of authorities under the Bombay Public Trust Act, 1950. Such enquiry by civil court can only be in proceeding envisaged to be arising out of findings recorded by authorities under the Act and not otherwise.
[Para 43]
(d) Muslim Law - Wakf Act, 1954 - Sec. 3 (a) - Creation of wakf for beneficiary of humanity at large without reference to religion - Legal position of wakf - Explained.
The class of beneficiary of a particular trust must ordinarily depend upon the nature of object with which dedication has been consecrated by a Muslim to create any Wakf. Therefore, before finding answer to the question as to who are beneficiary of any particular Wakf, it may be necessary to find the object of the Wakf. This is also discernible from the definition of beneficiary of Wakf under the Act of 1954.
[Para 57]
(e) Civil Procedure Code, 1908 - Order 7 Rule 1(e) - Pleadings - Cause of action - Term explained.
In effect cause of action compendiously mean every fact which it would be necessary for plaintiff to prove, if traversed in order to support his right to judgment of the courts. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved.
[Para 22]
( 1 ) THIS Second Appeal is by two of the defendants Nos. 1 and 2 in original Civil Suit No. 237 of 1970, in the Court of Joint Civil Judge, Bhuj-Kutch, against the judgment and decree dated 15-10-1978 passed by Extra Assistant Judge, kutch in Civil Regular Appeal No. 176 of 1974 affirming the judgment and decree passed by Joint Civil Judge, Bhuj-Kutch, on 18-11-1974. The appellants are Kutch wakf Board through its Secretary, Kutch Muslim and Education Welfare Society, a Wakf registered under the Wakf Act, 1954.
( 2 ) THE facts leading to the present appeal are that respondent Nos. 2 and 3 - sadhu Nandram Govindram and Thacker Purshottam Ganesh filed a suit as the representative suit under Order I, Rule 8 for the following reliefs :" (I) That it be declared that above mentioned suit property bearing Survey No. 917 of Bhuj shown as Karimdina alias Kalu Suleman Musafarkhana mentioned in the supplementary list of Wakfs of Kutch at Serial No. 2 in the Gujarat Government Gazette dated 6-5-1965 at page 614, is not a Wakf property and ordered to be deleted from the list of Wakfs as published on 6-5-1965 and further : (ii) To restrain defendant Nos. 1 to 3 or their agents or servants from damaging, demolishing, constructing or altering the structure on the disputed land and also to restrain the defendants or their agents or servants from prohibiting plaintiffs or members of general public of any community, caste or creed from using the said property or land as Dharmashala and to grant a perpetual injunction in legal form for the same and further : (iii) To declare that the said transfer by defendant No. 3 to defendant No. 2 by way of gift deed dated 16-9-1968 is not legal and void. "
( 3 ) ACCORDING to the assertions in the plaint, the original land bearing Survey no. 917 was granted by then Maharao of Kutch, the Ex-Ruler, a Native State of kutch under the Chhapa Lekh of Samvat year 1930 corresponding to March 1874 to one Memon Shaikh Karim Bin S. Nani for the purpose of construction and to use the same as Dharmashala for the use and benefit of public by and large without any reservation of any caste, creed or colour. On some of the portion of this land, some building structure was constructed and was used as Dharmashala by the general public at large without any reservation of caste, creed or colour. From the very beginning the nature of the property is the public trust property and from its inception it was not intended to be Wakf property and the provisions of Wakf Act, 1954 do not apply to this property. Under the provisions of Wakf Act, the Kutch Wakf Board published in the Government Gazette the list of Wakf properties as were existing on the commencement of the Act, 1954 in the district of Kutch on 16-7-1964. In the said list, the aforesaid property was not shown as Wakf property. However, afterwards supplementary list of Wakf properties was published on 6-5-1965 in government Gazette in which it was shown as Haji Karim dina @ Kalu Suleman musafirkhana as the Wakf property belonging to the defendant No. 3 Kachhi Memon jamat. The property since its inception was being used as Dharmashala but subsequently defendants Nos. 1 to 3 in collusion have changed the use of the said property and have illegally and fraudulently got suit property listed in the Wakf property. It was also pleaded that the defendant No. 3 Kachhi Memon Jamat, a registered Wakf has transferred the suit property to defendant No. 2 - Kutch Muslim education and Welfare Society, another registered Wakf by a gift document dated 16-9-1968, which is illegal, void, fraudulent and without any authority. It was also pleaded that defendant No. 2 is trying to demolish the building, structure of dharmashala and wants to construct Muslim hostel for the exclusive use of Muslim students on the suit land, which they have no right to use. In the aforesaid circumstances, plaintiffs averred that if defendants are allowed to change the user, plaintiffs right to have access
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