Back
2008 Supreme(All) 1084
[2008(6) ADJ 501]
ALLAHABAD HIGH COURT
BEFORE : JANARDAN SAHAI, J.
SYED MOHAMMAD SAJJAD ALI KHAN .........Appellant
Versus
ASSISTANT SURVEY COMMISSIONER, WAQF BOARD AND OTHERS .............Respondents
(Civil Revision Nos. 595 and 596 of 2003, decided on 2nd May, 2008)
Counsel :
W.H. Khan, J.H. Khan and Bhupeshwar Dayal for the Appellant; M.A. Qadeer, Shashi Nandan, M.L. Srivastava, Nitin Gupta, S. Ahmad and Smt. Tulika Prakash for the Respondents.
Headnote:Waqf Act, 1995—Sections 52, 32, 107, 83, 112, 54 and 66-G—U.P. Muslim Waqf Act, 1960—Sections 69, 49-A, 49-B, 19, 14 and 57-A—Transfer of Property Act, 1882—Section 41—Limitation Act, 1963—Sections 10, 27 and Articles 65, 96—Code of Civil Procedure, 1908—Section 151—Creation of waqf-alal-aulad, in respect of certain properties by a deed of waqif—He became first Mutawalli—And thereafter his sons, on his death, as their Bhumidhari—Complaint to Waqf Board making allegations of mismanagement against Mutawalli, praying for his removal, and seeking his own appointment—Order passed by Collector under Section 52(2) of Act of 1995 directing respondents in possession to deliver possession of property to Board—Appeals against—Allowed, and order of Collector was set aside—Hence, two revisions—In absence of Waqf Board, order passed by Dy. Director of Consolidation on basis of compromise was invalid under Section 69 of U.P. Muslim Waqf—A beneficiary is not a co-owner—And principle that a co-owner cannot acquire right by adverse possession over share of another co-owner is not applicable to a beneficiary—Nor does a beneficiary hold property in trust—Proceedings commenced on a complaint filed after commencement of Waqf Act of 1995—And proceedings would be referable to new provisions, irrespective of provisions that may have been referred to—Held, no prejudice caused to respondents, especially when it has not been contended that waqf was not registered, or that property was not waqf property, or that permission was taken before transfer—Thus, respondents had acquired title by adverse possession. [Paras 6, 9, 21, 27 and 28]
Hon’ble Janardan Sahai, J.—Akbar Ali Khan created a waqf-alal-aulad in respect of certain properties by a deed dated 26.7.1934. By the said deed Akbar Ali Khan appointed himself as the first Mutawalli. He died on 16.12.1958 leaving behind three sons Qasim Ali Khan, Kazim Ali Khan and Raza Ali. On his death the names of these sons was mutated as their bhumidari. Qasim Ali Khan became the Mutawalli after death of Akbar Ali under the terms of the waqf deed. Kazim Ali Khan who was a beneficiary of the waqf executed a sale deed of his 1/3 share on 14.10.1960 in favour of Mohammad Ahmad Ali Khan one of the sons of Raza Ali. Ahmad Ali was also a beneficiary of the waqf. A subsequent sale deed dated 26.9.1974 was executed by the Mutawalli Qasim Ali Khan of his 1/3 share to Ahmad Ali Khan another son of Raza Ali. This sale deed was therefore executed by the Mutawalli in favour of a beneficiary. Qasim Ali Khan was replaced by his son Sujat Ali as a Mutawalli after he had resigned or was removed some time in 1988 or 1990, not very clear. Sajjad Ali the applicant in these revisions is the son of Qasim Ali Khan. On 20.9.1996 Sajjad Ali filed a complaint to the Waqf Board making allegations of mismanagement against Sujat Ali the Mutawalli praying for his removal and seeking his own appointment. He alleged that the waqf property was in unauthorized occupation of Raza Ali, Mohammad Ahmad Ali and Ahmad Ali and prayed for recovery of the waqf properties. A report dated 15.3.1997 was submitted by the Senior Inspector Waqfs that the Waqf was registered as Waqf No. 1456 and that the properties were waqf properties, that Raja Ali Khan got the waqf properties partitioned showing that these were ancestral properties and thereafter got them purchased in the names of his sons. It was said that the sale deeds were obtained without permission of the Court or of the waqf Board and were therefore invalid. Dr. Nasim Zaidi the Controller purporting to exercise powers of the Waqf Board passed two orders dated 16.7.1997 and 12.8.1997 under Section 52 of the Waqf Act, 1995, which had come into force with effect from 1.1.1996 holding the two transfers to be illegal for want of permission and issued a requisition to the Collector to recover the waqf properties. The Collector passed an order dated 31.12.1997 under Section 52 (2) of the Act directing the respondents in possession to deliver possession of the property to the Board. This order of the Collector was challenged by the respondents Ahmad Ali and Mohd. Ali in two separate appeals No. 2 of 2002 and 3 of 2002 under Section 52 (4) of the Act, which were allowed and the order of the Collector under Section 52 (2) of the Waqf Act, 1995 was set aside. Sajjad Ali Khan has challenged the orders passed by the tribunal in these two revisions.
2. I have heard Sri W.H. Khan, learned Senior Advocate for the applicant and Sri M.A. Qadeer, learned senior Advocate for the respondents and Smt. Tulika Prakash for the Waqf Board who adopted the arguments of Sri W.H. Khan.
3. Long after the execution of the waqf deed a sale deed was executed in 1948 by Akbar Ali Khan of a tube-well and some adjoining land, which was part of the waqf property. Qasim Ali Khan son of Akbar Ali Khan filed Original Suit No. 1 of 1950 challenging the sale deed. The trial Court decreed the suit. First Appeal No.139 of 1951 filed by Akbar Ali Khan was dismissed by this Court by judgment and decree dated 11.7.1962. One of the issues framed in the suit was whether the waqif being a Shia had reserved any interest for himself in the waqf property and if so is the waqf void and invalid for this reason. It was held by this Court in the appeal that Raja Akbar Ali Khan had created a valid and effective waqf and that all the legal requirements in respect of the creation of the waqf by a Shia under the Mohammadan Law have been made out. It was also found that after the waqf was created the possession of Akbar Ali Khan was as Mutawalli. The tribunal has
