THE HIGH COURT OF ORISSA AT CUTTACK RVWPET No.160 of 2023 In the matter of an application under Section 114 read with Order XLVII, Rule 1 of the Code of Civil Procedure, 1908 read with Chapter-

XII of Orissa High Court Rules, 1948.

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Tahetul Masjid & Others ……. Review Petitioners -Versus-

SK. Golam Maqusud & Others ……. Opposite Parties For the Review Petitioners: Mr. Ramakanta Mohanty, Senior Advocate along with M/s. Imran Khan, A.K. Mohanty & S. Parija, Advocates For the Opposite Parties : None CORAM:

THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 05.02.2025 : Date of Judgment: 13.02.2025 S.S. Mishra, J. The present Review Petition arises out of S.A. No.169 of 1994 which was disposed of by this Court vide Judgement dated 10^th of March

2023.

2. Heard Mr. Ramakanta Mohanty, learned Senior Counsel for the Review Petitioners.

3. Mr. Mohanty, learned Senior Counsel submitted that while adjudicating the Second Appeal, this Court overlooked Ext.2 and 2A, the Wakf Deed, which clearly establishes that the plaintiff Mosque is a private Wakf. The deed explicitly conveys the intention of conferring its management upon a private entity, aligning with Chapter-19, Synopsis 12 of Mulla Mohammedan Law. He further asserts that since the plaintiff Mosque is a private Wakf, its Mutawalli is not accountable to any external authority regarding its management, as upheld by the Allahabad High Court in the judgment of Mohammad Qamar Shah Khan v.

Mohammad Salamat Ali Khan, [AIR 1933 Allahabad 407]

Additionally, he contends that the Court, while deciding the Second Appeal, failed to consider the true purport of the Wakf Deed executed in favour of Orfan Bibi by all co-sharers. The recitals within the deed unmistakably establish that the Mosque is a private Mosque founded by an individual who is entirely a private person. The petitioner emphasizes that the dismissal of the plaintiff’s suit in the Second Appeal was based on the ground that the Mutawalli lacked the authority to institute the suit, as such, power rests with the Wakf Board. However, the settled legal position is that the Wakf Board holds no authority to constitute any committee concerning a private Mosque.

Furthermore, it is argued that, as per the Wakfnama, Niazuddin Khan was a descendant of the Mutawalli, and the plaintiff is a direct descendant of the original founder, Sahebzama Khan, whose sister, Halima Bibi, was the mother of Niazuddin Khan. Thus, the plaintiff traces lineage directly from the original founder. It is also pointed out that the decision in the Second Appeal failed to consider Article 219 of Mohammedan Law by M. Hidayatullah, which allows a stranger to file a suit, even if the Mosque is not recognized as a juristic person. This is particularly relevant as the office of Mutawalli is hereditary, as prescribed under Chapter-19, Synopsis 36 of Mulla Mohammedan Law. On these grounds, it is argued that the decision in the Second Appeal is manifestly erroneous on the face of the record.

All the grounds highlighted by learned Senior Counsel to question the impugned Judgement are essentially on the merits of the case. In a review jurisdiction this Court can’t venture into the merits of the case, in the absence of any apparent error being pointed. The jurisdiction of the review court is forbidden under law to traverse through the merits of the case beyond the grounds contemplated under Order XLVII, Rule 1 of the Code of Civil Procedure, 1908.

4. It is a well-established law that the review cannot be treated as an appeal in disguise. It will be apposite to refer to the precedent set by the Hon’ble Apex Court in the Judgement of Lily Thomas and Ors. Vs.

Union of India (UOI) and Ors., [(2000) 6 SCC 224], in which the Hon’ble Court held thus:

“56. It follows, therefore, that the power of review can be exercised for correction of a mistake and not to substitute a view. Such powers can be exercised within the limits of the statute dealing with the exercise of power. The revi