DAVE, C.J.—The petitioners Radhakishan and Badrinarain, in this case, are Khandelwal Mahajans and residents of Jaipur. They are partners in a firm which is known as Shivjiram Ramkumar. They have filed this writ application under Art.226 of the Constitution of India. It relates to a two-storeyed-building situated near Mirza Ismail Road at Jaipur.

2. The petitioners case is that the said building belonged to one Ashan Ali Khan who mortgaged it with possession with Seth Bijaylalji, father of petitioner Badrinarain, and Bhuramalji, father of petitioner Radhakishan, for Rs. 7,999/- and executed a mortgage-deed on 30.7.44. At the time of the mortgage, the building was in physical possession of Ashan Ali Khans tenants. When the mortgage-deed was presented for registration, the Sub-Registrar invited objections, but since no objection was received, that document was registered by him. Ashan Ali Khan had purchased an open land in front of the said building from the Municipal Council in 1943-44. He constructed verandahs on the ground-floor and the first floor thereafter. For making this construction, he raised another loan by effecting a second mortgage of the same property on 7.7.45 for an additional amount of question whether a particular property is a wakf property or whether a wakf is a Shia wakf or a Sunni wakf, it is open to any one of them to institute a suit in a civil court of competent jurisdiction. If a suit is instituted, the decision of the civil court will be final If no such suit is filed by any one of them within a year from the date of the publication of the list of wakfs, the Court would not entertain the suit thereafter and the list of the wakfs shall be final and conclusive between them. The object of sec. 6 is to narrow down the dispute between the Board of Wakfs, the Mutawalli and the person interested in the wakf as defined in sec. 3. It does not concern to a dispute if it is raised by a person who is an utter stranger to the wakf. The list cannot be final and conclusive as against a non-muslim who is not covered by sec 6(1) of the Act. Again, if a dispute whether a particular property is a wakf property or not, is raised by a non-muslim and a stranger to the wakf, the Board of Wakfs has no jurisdiction to decide the matter in its own favour under sec. 27 and enter in the register. The Boards decision under sec. 27 would not be binding against such persons. For the same reason, the Board would not be able to recover possession of the property from such persons under sec. 36-B of the Act. (Para 25). s. 9,999/- in favour of the same mortgagees. The petitioners purchased the ground floor of the said building from Ashanali Khan for Rs. 19,999/- by means of a registered sale-deed dated 23.11.54. Both the previous mortgages were paid off out of this amount obtained by the mortgagor. The petitioners then purchased the first floor of the said building for Rs. 13,999/- by means of another registered sale-deed dated 31.7.56. After purchasing the entire building, they spent about Rs. 12,000/- in making certain additions and alterations.

3. On 30.8.63 respondent No. 4 Hakim Mohd. Shaukat Ali Khan presented an application to the Wakf Commissioner, Rajasthan, respondent No.2, saying that the said building was wakf property that its sale was invalid, that it was fit to be cancelled and that its possession should be recovered and entrusted to the Wakf committee Dharamshala. The Wakf Commissioner issued a notice to the petitioners to appear before him in the enquiry which he wanted to make into the matter, The Petitioners accordingly appeared before him and raised a preliminary objection to the effect that the Wakf Commissioner had no jurisdiction to make an enquiry as they did not admit that it was a wakf property and that if anybody wanted to dispute the petitioners right, title or interest in the property, the proper course for him was to file a suit in a civil court under sed.6 of the Muslim Wakf if the Muslim Wakfs Act, 1954, he

Click Here to Read the rest of this document