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ORISSA HIGH COURT
M.M. Das, J.
Mian Sahataz Pir represented through its Marfatdars & others —Appellants
versus
Sk. Ahmed and 21 Ors. —Respondents
S.A. Nos. 287 & 288 of 1986
Decided on 26.2.2013
For the Appellant (in both):M/s. S. S. Basu, S. S. Rao, G.S. Das & G.P. Dutta and P. K. Khuntia, Advocates.
For the Respondents (in both) M/s. Md. Irshad, Miss Mira Ghose & D.N. Subudhi, Advocate.
IMPORTANT POINT
Private Wakf is permissible under Mohammedan Law.
Headnote:(i) Wakf Act, 1954—Section 6—Private Wakf—It is lawful for any person professing Mussalman faith to create a Wakf which in all other respects is in accordance with provisions of Mussalman Law for the purpose of maintenance and support wholly or partially of his family, children or descendants—Where person creating a Wakf is a Hanafi Mussalman also for its own maintenance and support during his life time or for payment of his debts out of rents and profits of property dedicated, provided that ultimate benefit in such cases expressly or impliedly is reserved for poor or for any other purpose recognized by Mussalman Law as religious, pious or charitable purpose of a permanent character—No such Wakf shall be deemed to be invalid merely because ultimate benefit reserved therein for poor or other religious, pious or charitable purpose of a permanent nature is postponed until after extinction of family, children or descendants of person creating Wakf—Lower appellate Court has acted contrary to law in holding that there is no concept of private Wakf under Mohammedan Law. (Paras 10 and 11)
(ii) Wakf Act, 1954—Section 25—Wakf property—Ouster of jurisdiction of Civil Court— Jurisdiction of civil Court cannot be presumed to have been taken away if ultimate order passed by a statutory authority exercising quasi judicial power is challenged on the ground that procedure contemplated under statute has been violated while passing impugned order—Plaintiffs alleged that procedure prescribed under Section 25 was not duly followed over and above the fact that signatures of some of marfatdars were forged in application for registering Wakf under Section 25—Trial Court also found that, as a matter of fact, enquiry contemplated under the Act has not been done and objections filed have not been taken into consideration—Lower appellate Court was not right in holding that order passed by defendant cannot be challenged before Civil Court—Impugned findings of lower appellate Court cannot be sustained—Judgment and decree passed by Trial Court in title suit restored. (Paras 12 and 13)
Result: Second appeals allowed.
M. M. Das, J.— Both the aforesaid second appeals arise out of the same judgment passed in Title Suit No. 161 of 1980 by the learned First Munsif, Cuttack on 30.8.1983. As two Title Appeals were filed against the said judgment passed in the suit, being Title Appeal Nos. 89 and 98 of 1983, by two of the defendants in the suit, the learned Second Additional District Judge, Cuttack by his common judgment dated 4.8.1986 passed in both the appeals reversed the judgment and decree of the Trial Court. Hence, these second appeals. These second appeals were heard together and are being disposed of by this common judgment.
2. In order to appreciate and answer the substantial questions of law on which the second appeals have been admitted, it would be necessary to narrate the facts in gist which gives rise to these second appeals, which are as follows:
3. T. S. No. 161 of 1980 was filed by the present appellants, who were plaintiffs and the legal heir of one of the plaintiffs who has expired in the meantime. In the said suit, a decree for declaration was sought for over ‘B’ schedule property as a Private Wakf belonging to the family of the plaintiffs/marfatdars where the general public have no right including the defendants and to declare the order of-the defendant No.1, i.e. Commissioner-cum-Secretary, Board of Wakf dated 6.11.1980 as illegal and invalid which does not create any right in favour of the Muslim public and to restrain the Muslim community in general not to come over the suit property and exercise any right of worship’s by offering Fatiah and Prayer to the Shrine of plaintiff No.1.
4. The plaintiffs’ case was that the plaintiff No.1Mian Sahataz was the ancestor of Mir Ghashi and Chuni Bibi was the wife of Mian Sahataz. After their death, they were buried inside the family compound and whose Shrines were erected to commemorate their memory and in course of time, those Shrines were acclaimed as Pira for which incenses were offered daily and periodical Fatiah was also offered. Thereby the Pirsthan was recorded as Mian Sahataz Pir being represented by the family members of Mir Ghasi in the settlement papers. The said Pirsthan is situated over ‘B’ Scheduled property of the plaint and the same is used as a grave yard of the family members of the said Mian Sahataz Pir and is not a Public Wakf. The defendant No.2 with the help of certain Muslims of the locality and some outsiders forged the signatures of some of the Marfatdars of the said Private Wakf and filed an application before the defendant No.1, i.e. the Commissioner of Wakf under Section 25 of the Wakf Act, 1954 (hereinafter referred to as “the Act”) for registration of plaintiff No. 1 as a Public Wakf. The defendant No.1 without any proper enquiry and without visiting the local spot as well as without calling for any objection from the recorded Marfatdars registered the said plaintiff No.1 as a Public Wakf. When this fact came to the knowledge of the plaintiffs upon a certified copy of the register being maintained by the defendant No.1 under Section 26 of the Act, the plaintiffs/marfatdars filed their objections against the said registration before the Commissioner-cum-Secretary, Orissa Board of Wakf for cancellation of the registration of Plaintiff No.1 from the register. But the said defendant No. 1 Commissioner-cum-Secretary in the said proceeding, which was numbered as Misc. Case No.1 of 1979, passed an order on 6.11.1980 that the plaintiff No. 1 and its place of installation i.e. Schedule ‘B’ property of the plaint, is a Public Wakf and the registration• of the same is in accordance with the Wakf Act, 1954. The plaintiffs challenged the said order in the suit alleging that the same is absolutely illegal as per the provisions of the Wakf Act, 1954 which has not been recorded as a Public Wakf and has not been notified in the Gazette as required under Sections 4 and 5 of the said Act. The defendant No.2 filed an application forging the signatures of the Marfatd
