Gokulakrishnan, J. — The second defendant in un-numbered suit of 1978 who was the second respondent in Application No. 2231 of 1978 is the appellant in O.S.A. No. 82 of 1978. The third defendant in the said suit who was the third respondent in the laid application is the appellant in O.S.A. No. 86 of 1978. The first defendant in the said suit who was the first respondent in the said application is the appellant in O.S.A. No. 87 of 1978. These three appeals arise from the order passed by Padmanabhan, J., in Application No. 2231 of 1978 on 26th July, 1978.

2. Application No. 2231 of 1978 was filed by plaintiffs 1 to 5 in un-numbered Civil Suit of 1978 on the file of the High Court (Ordinary Original Civil Jurisdiction) praying for the grant of leave to them for instituting the suit under section 92 of the Code of Civil Procedure. Padmanabhan, J., by his order in the said application, after observing that the question whether the first respondent has been notified to be a wakf by the Wakf Board and whether consequently the suit is not maintainable for want of prior sanction of the Wakf Board is a matter which has to be decided at the time of the trial and not at the stage of considering question whether leave should be granted for the institution of the suit under section 92, Civil Procedure Code and that prima facie respondents 1 and 2 do constitute public trusts, granted lease to the applicants to institute the -suit under section 92, Civil Procedure Code. Aggrieved by the said order, the aforesaid defendants have preferred the respective appeals.

3. Mr. Govind Swaminathan, the learned counsel appearing for the appellant in O.S.A. No. 82 of 1978 also argued for the appellants in O.S.A. Nos. 86 and 87 of 1978. The learned counsel submitted that sections 2, 4, 5 and 6 of Wakf Act, 1954 (XXIX of 1954) deal with the procedure in respect of declaring certain properties as Wakf properties, section 6 (4) of the said Act states that the list of wakfs published under sub-section (2) of Section 5 shall, unless it is modified in pursuance of a decision of the civil Court under sub-section (1) be final and conclusive. Section 55 (1) of the Act states: —

“A suit to obtain any of the reliefs mentioned in section 92 of the Code of Civil Procedure, 1908, relating to any wakf may, notwithstanding anything to the contrary contained in that section, be instituted by the Board without obtaining the consent: referred to therein”.

Section 55 (2) states —

“No suit to obtain any of the reliefs referred) to in section 92 of the Code of Civil Procedure, 1908, relating to any wakf shall be instituted by any person or authority other than the Board without the consent in writing of the Board and for the institution of any such suit, it shall not be necessary to obtain the consent referred to in that section, notwithstanding anything contained: therein.”

“Provided that nothing in this sub-section shall apply in relation to any such suit: against the Board”.

Referring to the abovesaid provisions, Mr. Govind Swaminathan submitted that when the suit itself cannot be filed as per the provisions contained in section 55 (2) without the consent in writing of the Wakf Board, inasmuch as the Muslims Educational Association of Southern India, situate at No. 49, Peters Road, Royapettah, Madras, has been notified as a wakf property as early as 20th May, 1959, the Court has no power to grant the sanction under section 92, Civil Procedure Code. The learned counsel further submitted that in view of section 4 of the Civil Procedure Code the special provisions contained in the Wakf Act only will apply to the present case and hence the grant of sanction under section 92, Civil Procedure Code, cannot be sustained. The learned counsel, after referring to the observations of Padmanabhan, J., to the effect that the conclusion of the learned Judge wag fortified by the fact that the Government have issued G.O. 3408, Revenue, dated 17th November, 1959, under which they have exercised t

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