Karnataka High Court
Syed Gouse Alias Nawab Pasha Kazi vs Karnataka State Board Of Wakfs on 6 January, 2025
Author: Ravi V.Hosmani
Bench: Ravi V.Hosmani
-1-
NC: 2025:KHC-D:38
CRP No. 100027 of 2020
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6TH DAY OF JANUARY, 2025
BEFORE
THE HON'BLE MR. JUSTICE RAVI V.HOSMANI
CIVIL REVISION PETITION NO. 100027 OF 2020
BETWEEN:
SYED GOUSE ALIAS NAWAB PASHA KAZI
AGED ABOUT 65 YEARS, SON OF LATE BABAJAN KAZI,
RESIDING AT DYAMAVVANA GUDI ONI,
NAVALGUND TOWN AND TALUK, DHARAWD DISTRICT,
PRESENTLY RESIDING AT FLAT NO.305, 'G' BLOCK, BRIGADE
GATEWAY APARTMENTS, 26/1, DR. RAJKUMAR ROAD,
MALLESWARAM WEST, BANGALORE-560055.
... PETITIONER
(BY SRI F. V. PATIL, ADVOCATE)
AND:
1. KARNATAKA STATE BOARD OF WAKFS
NO.6, CUNNINGHAM ROAD, BANGALORE-560052,
REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER.
2. THE MUTAVALLI JAMMA MASJID (SUNNI)
NAVALGUND, DHARWAD DISTRICT-582208.
Digitally
signed by
BHARATHI
HM
BHARATHI
HM
Date:
... RESPONDENTS
2025.01.08 15:45:59 +0530 (BY SRI D. L. LADKHAN, ADVOCATE FOR R1;
NOTICE TO R2 IS SERVED) THIS CRP IS FILED UNDER SEC.83(9) OF THE WAKF ACT, 1995 R/W SEC.115 OF THE CPC, AGAINST THE ORDER DATED 04.11.2019 PASSED IN KWT/DHD/SR/OS NO.9/2017 ON THE FILE OF THE KARNATAKA WAKF TRIBUNAL, BELAGAVI AND V ADDITIONAL DISTRICT AND SESSIONS JUDGE, BELAGAVI, DISMISSING THE PETITION FILED FOR DECLARATION AND PERMANENT INJUNCTION.
THIS CIVIL REVISION PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 18.12.2024, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY THE COURT, MADE THE FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE RAVI V.HOSMANI -2- NC: 2025:KHC-D:38 CRP No. 100027 of 2020 CAV ORDER Challenging judgment and decree dated 04.11.2019, passed by Waqf Tribunal, Belagavi and V Addl. District & Sessions Judge ('Tribunal' for short), in case no.KWT/DHD/SR/OS No.9/2017, this petition is filed.
2. Petitioner was plaintiff in suit filed under Section 6 of Waqf Act, 1995, (for short referred to as 'Act') against defendants for declaring him as absolute owner in possession of Old Sy.no.251, New Sy.no.150/1+2+3/1 measuring 10 Acres 27 Guntas and Old Sy.no.252, New Sy.no.151/1+2+3/1 measuring 06 Acres 28 Guntas out of which 05 Acres was converted land, situated at Navalgund village, Navalgund Taluk ('Suit Properties' for short); to declare Gazette Notification dated 18/23-08-1975 published on 27.01.1977 ('Gazette' for short) as null and void and not binding on plaintiff and for permanent injunction restraining defendants from interfering with and disturbing plaintiff's lawful possession and enjoyment of suit properties etc.
3. In plaint, it was stated, plaintiff was son of late Babajan Kazi, who was owner in possession of suit properties. It was stated, originally they belonged to his grandfather late -3- NC: 2025:KHC-D:38 CRP No. 100027 of 2020 Syed Gouse Khadar Shah Khazi. After his death, his father inherited them and in 1976, gifted them to plaintiff, who accepted gift and took possession. Thereafter he was exclusive owner in possession of suit properties.
4. During 2013, plaintiff got order from Deputy Commissioner, Dharwad ('DC' for short) for diversion of agricultural lands to residential purpose in respect of 5 Acres out of 6 Acres 28 guntas in R.S.no.151/1+2+3/1. And after approval, plaintiff formed layout by obtaining necessary permission from concerned authorities.
5. It was stated without justification, WAQF Board sent letter dated 07.08.2014 to D.C. claiming Sy.no.150 and 151 of Navalgund village, measuring 12 Acres 17 guntas was Waqf property, belonged to Jumma Maszid, Navalgund, requesting to safeguard said properties from forming layout and sale of plots. After receipt of said letter Deputy Commissioner, directed Tahsildar to submit report about factual position as on that day. In response, on 15.06.2015, Tahsildar submitted report to DC stating that lands were in possession and cultivation by plaintiff. Thereafter, on 27.01.2016, DC advised plaintiff to approach proper Court for necessary relief. It was stated suit -4- NC: 2025:KHC-D:38 CRP No. 100027 of 2020 properties were wrongly notified as Waqf properties. Therefore, plaintiff approached Karnataka Waqf Tribunal, Belagavi, by filing Application no.4/2016. By oversight, it was registered as appeal. After appearance of Waqf Board, noting error, plaintiff filed application for withdrawal with liberty to file declaratory suit. On 22.04.2017, same was allowed.
6. Hence present suit was filed. It was stated, father of plaintiff was managing affairs of Jamia Masjid, Sunni, Navalgund, and contributed for upliftment of institution. In year 1960, his father sought registration of Masjid as Waqf, as he was its Mutavalli. It was stated Masjid was maintained by his forefathers and expenses borne by them, but no application was filed in respect of suit properties and they were never used as Waqf properties. And during registration, statement of his father and others were recorded by Revenue Inspector. As suit properties were ancestral properties, after demise of father and grandfather, name of plaintiff was rightly mutated in Record of Rights ('RoR' for short).
7. It was stated, if suit properties were dedicated as Waqf by deceased Baba Jaan, then they would not have been gifted to plaintiff and his name mutated in revenue records. -5-
NC: 2025:KHC-D:38 CRP No. 100027 of 2020 Moreover, he was paying tax from 1976 till date. Though defendants claimed suit properties as Waqf as per Gazette, they were never in possession. Defendants had kept silent for more than forty years. Therefore staking claim over suit properties was with ulterior motive. It was stated, after conversion, plaintiff had invested Lakhs of rupees for development and only to harass and extract money, suit properties were claimed as Waqf properties. It was stated suit was within period of limitation i.e. from date of knowledge, as plaintiff was unaware of Gazette till receipt of letter by DC dated 27.01.2016.
8. On issuance of summons, defendants appeared and filed written statement denying plaint averments. They stated suit properties were Waqf properties belonging to Jamia (Jumma) Masjid (Sunni) since time immemorial and incorporated in register of Waqfs after issuing Gazette. And Gazette having remained unchallenged despite knowledge, was conclusive about suit properties belonging to Waqf and alienation would be illegal and not confer any right or title. It was stated once Waqf was created, it retained such character and property could not be subject to human ownership. It will forever remain as 'Waqf'.
-6-
NC: 2025:KHC-D:38 CRP No. 100027 of 2020
9. It was stated when plaintiff contends as per Gazette Notification, his father was Mutavalli, he cannot be construed as owner under law. He was manager or caretaker of Jamia Masjid and its properties. As such, he had no power to alienate them without prior permission. It was stated, publication of Gazette implied notice to entire public. It was submitted, when suit properties were notified in Gazette, present suit filed in 2017 would be barred by law of limitation under Sections 6 and 7 of Waqf Act. It was stated, after enactment of Waqf Act, survey of Waqfs was conducted and report prepared by Department of Revenue of State Government. Based on said independent report, Board had published Official Gazette. Even said list had attained finality under Section 6 (1) of Act. On above grounds, sought dismissal of suit.
10. Based on pleadings, tribunal framed following issues:
1) Whether the Plaintiff proves that he is the absolute owner in possession of the suit schedule properties inclusive of converted land of five Acres?
2) Whether the Plaintiff proves that the Gazette Notification No.KTW/11/ASR/75/14248 dated 18/ 23-8-1975 published on 27.1.1977 is null and void and not binding on him?-7-
NC: 2025:KHC-D:38 CRP No. 100027 of 2020
3) Whether the Plaintiff proves alleged interference by the Defendants in respect of the suit schedule properties?
4) Whether the Deft. No.1 proves that the suit filed by the Plaintiff is barred by Law of Limitation as per Sections 6 and 7 of Waqf Act 1995?
5) Whether the Plaintiff is entitled for the reliefs as prayed for?
6) What order or decree?
11. To substantiate his case, plaintiff examined himself and another as PW1 and PW2 and got marked Exhibits P.1 to P.36. In rebuttal, official of Board was examined as DW.1 and Exs.D.1 to D.5 got marked.
12. On consideration, Tribunal answered issues no.1, 2 and 5 in negative, issue no.3 as not arising for consideration, issue no.4 in affirmative and issue no.6 by dismissing suit. Aggrieved thereby, this Revision Petition is filed.
13. Sri Jaykumar S. Patil, learned Senior Counsel appearing for Sri FV Patil, Advocate for plaintiff submitted impugned order was passed by tribunal without appreciating material on record. Observation that merely on basis of revenue records, title of immovable property cannot be proved, was erroneous. It was submitted, tribunal relied on principle of -8- NC: 2025:KHC-D:38 CRP No. 100027 of 2020 law that title follows possession, whereas plaintiff's claim was based on RTC extracts and tax receipts which were not title documents. It also observed deposition of PWs.1 and 2, would not establish plaintiff's possession. It was submitted, while answering issue no.4, tribunal observed, aggrieved person had to file suit within one year from date of publication of Gazette. And since Gazette was published on 27.01.1977, which in view of presumption under Section 81 of Indian Evidence Act was final under Sections 6 and 7 of Act, suit was to be filed within one year from notification, to hold suit was barred by limitation. It was submitted, said observations/findings were contrary to law.
14. It was submitted, to establish flow of title from propositus Syed Gouse alias Nawab Pasha Kazi to plaintiff, Exs.P.1 to P.23 - mutation records from 1942 to 1976 were produced. Further, as per Ex.P.24 - DC approved conversion of land use on 13.04.2013 and as per Ex.P.25 - on 18.07.2013, Town Municipality, Navalgund, approved layout plan. Above records would establish plaintiff being in settled possession of suit properties. Despite same, only with ulterior motive defendants addressed letter dated 07.08.2014 to DC claiming suit properties as Waqf properties. It was submitted, as per -9- NC: 2025:KHC-D:38 CRP No. 100027 of 2020 direction of DC, Tahsildar held spot inspection in June, 2015 and submitted Ex.P.27 - Report along with Gazette, stating that plaintiff was in possession of suit properties. Apart from above, plaintiff had filed I.A.no.2/2020 under Order XLI Rule 27 of CPC for production of additional documents, namely mutation extracts dated 15.01.1934, 15.09.1942, 13.10.1954, 29.04.1958, 17.10.1976 and 19.10.1981.
15. It was submitted, document no.1 - mutation extract no.8986 would indicate durasti in respect of Pot Hissa no.12 on 19.10.1981 and assignment of new survey numbers and entry of name of Syed Gouse Babajan Kazi in respect of Sy.no.151/1+2+3/1 measuring 6 Acres 28 guntas; Document no.2 - MR no.8445 dated 17.10.1976 for mutation of name of Syed Gouse urf Nawab Pasha son of Syed Gouse, as per statement; Document no.3 - MR no.1582 referring to order dated 06.07.1968 for preparation of fresh diatri; Document no.4 - MR no.6536 for entry of name of legal representatives of Sha Abdul Azeez Khadir Sha Kazi; Document no.5 - MR no.6110 order dated 13.10.1954 for deletion of all entries in view of abolition of Inams and for entry of name of Government ; Document no.6 - MR no.4178 recording death of Syed Gouse Sha Khadir Sha dated 15.09.1942 and order dated
- 10 -
NC: 2025:KHC-D:38 CRP No. 100027 of 2020 29.07.1942 for entry of name of Babajan Syed Gouse Sha Kazi as per possession and MR no.8294 Pot Hissa order dated 15.01.1934 showing name of Syed Gouse Sab Kazi at sl.no.7. It was submitted, documents produced along with application were certified extracts of official records. Relying on ratio in Sri Raghavendra Swamy Mutt v. Uttaradi Mutt reported in 2017 SCC OnLine Kar. 3553, prayed for allowing IA.no.1/2020. Thus, suit properties were absolute properties inherited by plaintiff and he was in possession and enjoyment of same and there could be no divesting of title or possession except in accordance with law.
16. It was submitted, Hon'ble Supreme Court in case of Karnataka Waqf Board v. State of Karnataka and Others reported in AIR 2003 SC 2467 had held unless procedure contemplated under Sections 4 and 5 of WAQF Act was followed i.e. due notice to owners of lands, no property would become Waqf property. Relying on decisions in The Board of Muslim Waqfs, Rajasthan Vs Radha Kishan and Others reported in AIR 1979 SC 289 and The Karnataka Wakf Board Vs State of Karnataka reported in AIR 1996 Karnataka 55, it was submitted period of limitation prescribed in Section 6 (1) of WAQF Act 1954, would apply only to disputes between Board,
- 11 -
NC: 2025:KHC-D:38 CRP No. 100027 of 2020 Mutavalli and any person interested in Waqf and would not cover third party claiming independent right over property. On above grounds, learned counsel sought for allowing Revision petition.
17. On other hand, Sri DL Ladkhan learned counsel for defendant no.1 opposed petition. It was submitted on 18/23.08.1975, Ex.D2 - Gazette was issued under Section 5 of Waqf Act, 1954. In case of dispute, proviso to Section 6 (1) provides for filing of suit within one year from date of gazette. It was submitted since, Gazette was published on 27.01.1977, suit filed on 24.07.2017 was barred by time.
18. It was submitted, even Section 6 (1) of Act, which came into force from 01.01.1996 also provided same period of limitation. Even under above provision, suit was barred by time.
19. It was further submitted, plaintiff's father himself had submitted particulars of Waqf, to competent authority under Waqf Act. Hence, plaintiff was estopped from contending lack of knowledge of Gazette and suit was hit by principle of estoppel under Section 115 of Indian Evidence Act, 1872. It was submitted, plaintiff had not sought 'declaration of
- 12 -
NC: 2025:KHC-D:38 CRP No. 100027 of 2020 particulars of Waqf' - Ex.D3 as illegal. Such declaration attracts statutory presumption. It was submitted when plaintiff's father claimed Mutawalliship of Waqf Institution, his son cannot claim its properties as own property.
20. It was submitted, lands notified in Gazette i.e. Sy.no. 251 was assigned new Sy.no.150/1+2+3/1. Similarly, Sy.no.252 was assigned Sy.no.151/1+2+3/1, which can be noted from MR no.8986, produced along with memo dated 27- 06-2024. It was submitted, in Ex.D-5 list of properties of Waqf Institutions, lands at Sl.nos.18 to 23 were suit properties and mentioned in Ex.D2 - Gazette.
21. It was submitted, in cross-examination, plaintiff admitted he was unaware when and how suit properties were granted to his grandfather and there were no documents other than RTCs. It was submitted, even additional evidence was mutation entries and not documents of title. Hence, plaintiff failed to substantiate his case. It was submitted while dismissing suit as barred by limitation, tribunal relied on recital in Ex.P28 i.e. "As per Waqf Act, they will submit name of Mutawalli within 7 days", to impute knowledge, apart from Ex.D4 -panchayadast signed by more than 23 panchas. Thus
- 13 -
NC: 2025:KHC-D:38 CRP No. 100027 of 2020 inclusion of suit properties as Waqf properties was within knowledge of plaintiff's father, who did not challenge during his life time.
22. It was submitted, cause of action also accrued when Waqf Board addressed letter dated 07.08.2014 to DC for securing properties of Jamia Masjid, Navalgund. Further, when Tahsildar, held inspection in 2015, plaintiff had not even whispered about ownership of suit properties. It was submitted, order no.LNA/CR/10/2013-14 dated 13.08.2013 for conversion of land use was obtained by suppression and hence illegal. Therefore, there were no good grounds to allow application for additional evidence or for interfering with impugned judgment. On said grounds sought dismissal.
23. Heard learned counsel, perused impugned order and record. Defendant no.2 has remained ex-parte.
24. From above, it is seen plaintiff is questioning dismissal of his suit filed under Section 6 of Act, for declaration of plaintiff as absolute owner of suit properties; Gazette as null and void / not binding and for permanent injunction etc.
- 14 -
NC: 2025:KHC-D:38 CRP No. 100027 of 2020
25. It is seen suit is dismissed mainly on following grounds, plaintiff failing to establish his title and possession over suit properties, illegality of Gazette and suit being barred by limitation. Main grounds on challenge are reasoning of tribunal that revenue records would not be sufficient to establish title was erroneous, presumption about knowledge was also erroneous, finding about legality of Gazette even when defendants failed to establish due compliance with Sections 4 and 5 of Act was illegal. While, defendants support findings of tribunal. Hence, point that arises for consideration is:
"Whether impugned order passed by Tribunal calls for interference?"
26. Admittedly, revision petition is filed under poviso to Section 83 (9) of Act. In Kiran Devi v. Bihar State Sunni Wakf Board, reported in (2021) 15 SCC 15, Hon'ble Supreme Court clarified about limits of jurisdiction of High Court under said provision as follows:
"22. Therefore, when a petition is filed against an order of the Wakf Tribunal before the High Court, the High Court exercises the jurisdiction under Article 227 of the Constitution of India. Therefore, it is wholly immaterial that the petition was titled as a writ petition. It may be noticed that in certain High Courts, petition under Article 227 is titled as writ petition, in certain other High Courts as revision petition and in certain others as a miscellaneous petition. However, keeping in view the nature of the order passed, more particularly
- 15 -
NC: 2025:KHC-D:38 CRP No. 100027 of 2020 in the light of proviso to sub-section (9) of Section 83 of the Act, the High Court exercised jurisdiction only under the Act. The jurisdiction of the High Court is restricted to only examine the correctness, legality or propriety of the findings recorded by the Wakf Tribunal. The High Court in exercise of the jurisdiction conferred under proviso to sub-section (9) of Section 83 of the Act does not act as the appellate court."
(emphasis supplied)
27. Therefore, this Court cannot act as appellate Court, and only examine correctness, legality or propriety of findings of tribunal.
28. While passing impugned order, Tribunal took up issues no.1 to 3 together. It took note of pleading, prayer, oral/documentary evidence and argument addressed by parties in suit. After noting contents of exhibits marked by plaintiff, it proceeded to test claim of plaintiff as donee of suit properties under oral gift. It also referred to admission by PW.1 that he does not know when and how his grandfather got suit properties and there were no documents other than RoRs. Thereafter, referring to decisions in State of H.P. v. Keshav Ram, reported in 1996 (11) SCC 257; Union of India v. Vasavi Coop. Housing Society Ltd., reported in 2014 (2) SCC 269; decisions of this Court in Boramma v. Srinivasa, reported in 2009 SCC OnLine Kar 10 and Mohd. Yunus v.
- 16 -
NC: 2025:KHC-D:38 CRP No. 100027 of 2020 Mahboob Bi, reported in 2009 SCC OnLine Kar 11, it held revenue records cannot form basis for declaration of title. On said reasoning, it concluded plaintiff failed to establish how his grandfather became owner of suit properties.
29. On careful perusal, it is seen, law laid down in above decisions is that there cannot be a declaration of title based only on entries in revenue records. In Keshav Ram's case (supra) sole document on which plaintiff was relying to establish title was an order of Assistant Settlement Officer, (which was not found in record). In Vasavi Coop. Housing Society Ltd.'s case (supra), it was held :
"24. We are of the view that even if the entries in the record-of-rights carry evidentiary value, that itself would not confer any title on the plaintiff of the suit land in question. Ext. X-1 is Classer Register of 1347 Fasli which according to the trial court, speaks of the ownership of the plaintiff's vendor's property. We are of the view that these entries, as such, would not confer any title. The plaintiffs have to show, independent of those entries, that the plaintiff's predecessors had title over the property in question and it is that property which they have purchased. The only document that has been produced before the court was the registered family settlement and partition deed dated 11-12-1939 of their predecessor-in-interest, wherein, admittedly, the suit land in question has not been mentioned."
30. In instant case, basis for plaintiff's claim of title is that suit properties were granted as Inam lands to his
- 17 -
NC: 2025:KHC-D:38 CRP No. 100027 of 2020 grandfather in year 1929. Plaintiff claimed to be in settled possession of suit properties. Plaintiff asserted about revenue entries consistently reflecting name of his grandfather, father and plaintiff from year 1929 to 2017 i.e. nearly 90 years. Documentary evidence i.e. Exs.P1 to P23 - RoRs from year 1929-30 to 2016-17, supported said claim. In cross- examination of plaintiff as PW-1, however, it elicited admission that Jumma Masjid in Navalgund was very old, that his father was its Mutawalli and his name was shown in Gazette. PW-1 also admitted, he was unaware when and how his grandfather got suit properties and except RoRs, he had no other documents.
31. But, it is seen, defendant no.1 merely denied plaintiff's assertion about entries in revenue records and did not allege same to be illegal. On other hand, it failed to plead or offer explanation, why its name was not got entered in revenue records after issuance of Gazette.
32. It is also seen that, plaintiff seconded his deposition by examining an independent witness as PW.2, who deposed that plaintiff was owner in possession of suit properties and that he had supervised cultivation of suit properties in absence
- 18 -
NC: 2025:KHC-D:38 CRP No. 100027 of 2020 of plaintiff and also that he had helped plaintiff in obtaining order of conversion from DC and in obtaining permissions for formation of layout. During cross-examination of PW-2, it was only elicited that he did not produce any document to show that he held lands in Yamanur. It is seen, there was no cross- examination to discredit assertion about plaintiff being in possession and exercising ownership rights by obtaining conversion and approval of layout plan.
33. To corroborate claim about exercise of ownership rights over suit properties, plaintiff produced Ex.P24 - order passed by DC for conversion of land use to residential purpose followed by Exs.P25 and P26 - approval of layout plan by Navalgund Town Municipality. Plaintiff also produced tax paid receipts - Ex.P32 for year 2015-16. Only cross-examination in this regard is suggestion that same were illegal in view of Gazette, which was denied.
34. It is seen merely on ground that order of grant was not produced and PW-1 was unable to provide particulars of grant, consistent entries in revenue records for nearly 90 years cannot be negated in absence of explanation by defendant no.1 about non-entry of its name even after lapse of more than 40
- 19 -
NC: 2025:KHC-D:38 CRP No. 100027 of 2020 years. Insofar as oral gift to plaintiff from his father also, there is mere denial, without establishing failure to prove gift would be fatal to plaintiff maintaining suit. Especially when plaintiff being in line of succession is not in dispute. Therefore, reasoning of Tribunal that failure to establish grant in favour of his grandfather would non-suit plaintiff would be contrary to law.
35. While examining challenge against Gazette, despite referring to decisions relied by plaintiff i.e. Radhakishan and Anr. v. State of Rajasthan, reported in AIR 1967 Raj. 1 and Madanuri Sri Rama Chandra Murthy v. Syed Jalal, reported in 2017 (13) SCC 174, Tribunal relied on decision of this Court in Usman Beig and Anr. v. Secretary, Karnataka Board of Wakfs and Ors., (RSA.no.474/1999 disposed of on 17.10.2006); Gulisthan Shadi Mahal Trust v. Karnataka Board of Wakfs and Ors., reported in ILR 2002 Kar. 2592 and Karnataka Board of Wakf, Bangalore v. State of Karnataka and Ors., reported in 2000 (3) KLJ 602, to conclude Gazette Notification was conclusive proof that properties were Waqf properties. But, in Gulisthan's case (supra), it is held:
- 20 -
NC: 2025:KHC-D:38 CRP No. 100027 of 2020 "15. ......The failure of such a person to institute a suit in a Civil Court of a competent jurisdiction for decision of such question, within a period of one year as provided for under sub-section (1) of Section 6 of the Act does not make this inclusion of such property in the list of wakfs published by the Board under sub-section (2) of Section 5 of the Act final and conclusive under sub-section (4) of Section 6 of the Act. ......"
36. Therefore, it would be incumbent on defendant no.1
- Board to establish that notification under Section 5 was issued in compliance with Section 4 of Act. Strangely, no evidence was led by defendants in this regard. Therefore, finding of Tribunal that issuance of Gazette was conclusive proof about existence of Waqf would also be contrary to law.
37. It is seen plaintiff also sought relief of permanent injunction. Therefore, plaintiff would be required to establish interference even if issue no.1 is held in his favour. In this regard, plaintiff has clearly averred plaintiff being in settled possession and defendants seeking to interfere with possession when they addressed correspondence to DC. In written statement, defendant no.1 admitted to addressing correspondence to DC to safeguard Jamia (Jumma) Masjid (Sunni) of Navalgund and to prevent plaintiff from forming layout and selling plots. However, Tribunal has held issue no.3
- 21 -
NC: 2025:KHC-D:38 CRP No. 100027 of 2020 as not arising for consideration, which would be contrary to material on record.
38. Insofar as point no.4, Tribunal observed Sections 6 and 7 of Act, require any aggrieved person to file suit within one year from date of publication. It observed Section 81 of Indian Evidence Act, availed presumption about genuineness of publication. It also held publication in Official Gazette was notice to general public and plaintiff could not deny knowledge. Based on above, it held suit filed beyond one year of publication of Gazette on 27.01.1977 as barred by limitation. While arriving at said finding it relied on decisions in Gulisthan and Karnataka Board of Wakf cases (supra). It is seen decision in Gulisthan's case (supra) was rendered on 16.01.2002 by referring to ratio in Karnataka Board of Wakfs v. Hazrath Attulla Shah Dhargah, reported in 1992 SCC OnLine Kar 20, wherein interpreting words any person interested therein, occurring in proviso to Section 6 (1) of Act as it then was, held:
"8. The Supreme Court held that the word 'therein' refers to the Wakf and not to Wakf property (see paragraph 33 quoted above). What we may consider, therefore, is whether the second and third respondents are persons interested in the Wakf. By reason of Section 3(h) a person is interested in a Wakf if he has a right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, khangah, maqhara, graveyard
- 22 -
NC: 2025:KHC-D:38 CRP No. 100027 of 2020 or in any religious or charitable institution under the Wakf. Every person who professes Islam has a right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, khangah, maqbara, graveyard or any other religious institution connected with the Wakf or to participate in any religious or charitable institution under the Wakf. It is not the case of the second or third respondent that they are not Muslims or are not so entitled. It must, therefore, be held that, upon a plain reading of the relevant provisions of the Wakf Act, that the second and third respondents are persons interested in the Wakf and to them the special period of limitation prescribed by the first proviso to Section 6(1) is applicable."
(emphasis supplied)
39. Distinction sought to be made between persons interested in Waqf and persons interested in Waqf property was in fact turned down. Therefore, in case of Muslims, by virtue of Section 3(k) of Act, period of limitation prescribed for filing suit would be one prescribed in Section 6(1) of Act. At this stage, it would be appropriate to refer to yet another aspect. After matter was heard and reserved for judgment, learned Senior Counsel for petitioner filed a memo producing decision in case of S.M. Kotraiah v. Karnataka State Board of Wakf and Ors., (W.P.no.103351/2022 and connected case disposed of on 26.07.2024), stating that same would be relevant and clinch controversy in favour of plaintiff.
- 23 -
NC: 2025:KHC-D:38 CRP No. 100027 of 2020
40. Said decision relies on ratio laid down by Division Bench in Karnataka State Board of Wakfs and Anr. v. State of Karnataka and Ors., in W.A.no.5591/2011 and connected matter disposed of on 05.11.2012. It was contended, ratio laid down by Division Bench that provisions of Act would not apply in case of inam lands. However, it is seen, provisions of Act were amended by Act no.27 of 2013 on 20.09.2013, inserting Section 108A as follows:
"108A. Act to have overriding effect:-
The provisions of this Act shall have overriding effect notwithstanding anything inconsistent therewith contained in any other law for the time being imposed or in any instrument having effect by virtue of any law other than this Act."
41. Said amendment also substituted words "any person interested therein" in Section 6 (1) of Act with following words namely "any person aggrieved". Indeed while there would be no dispute about laying of said proposition by Division Bench, it is seen, absence of any provision in Act providing overriding effect to provisions of Act over other laws. With insertion of Section 108A into Act, said ratio would stand water down. Since decision in S.M. Kotraiah's case (supra), rendered on 26.07.2024 is without taking note of relevant statutory provision, same would be per in curiam and would not lend any assistance to plaintiff.
- 24 -
NC: 2025:KHC-D:38 CRP No. 100027 of 2020
42. With insertion of words any aggrieved persons in Section 6 (1) of Act, different period of limitation for filing suit in case of non-Muslims and persons not interested in Waqf/Waqf property would cease. After amendment by Act no.27 of 2013, period of limitation stipulated in Section 6 (1) of Act would apply to all aggrieved persons. Admittedly, suit is filed beyond period of one year from date of publication of Gazette and would therefore be barred by limitation.
43. It is seen, plaintiff has filed I.A.no.2/2020 for permission to lead additional evidence by way of production of documents namely mutation extracts dated 15.01.1934, 15.09.1942, 13.10.1954, 29.04.1958, 17.10.1976 and 19.10.1981. Document no.1 is MR no.8986 mentioning durasti of Pot Hissa no.12 on 19.10.1981 and assignment of new survey numbers and entry of name of Syed Gouse Babajan Kazi in respect of Sy.no.151/1+2+3/1 measuring 6 Acres 28 guntas. Document no.2 is MR no.8445 dated 17.10.1976 for mutation of name of Syed Gouse urf Nawab Pasha son of Syed Gouse, as per statement; Document no.3 is MR no.1582 for preparation of fresh diatri; Document no.4 is MR no.6536 for entering names of LRs of Sha Abdul Azeez Khadir Sha Kazi; Document no.5 is MR no.6110 mentions order dated 13.10.1954 showing
- 25 -
NC: 2025:KHC-D:38 CRP No. 100027 of 2020 vesting of land with State in view of abolition of Inams and for deletion of all other entries; Document no.6 is MR no.4178 recording death of Syed Gouse Sha Khadir Sha dated 15.09.1942 and order dated 29.07.1942 for entering name of Babajan Syed Gouse Sha Kazi as per possession and MR no.8294 Pot Hissa order dated 15.01.1934 showing name of Syed Gouse Sab Kazi at Sl.no.7.
44. Insofar as consideration of an application for additional evidence filed under Order XLI Rule 27 of CPC, Hon'ble Supreme Court in case of Sanjay Kumar Singh v. State of Jharkhand, reported in 2022 (7) SCC 247, held:
"7. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature."
- 26 -
NC: 2025:KHC-D:38 CRP No. 100027 of 2020
45. As one of main reason assigned by Tribunal for dismissing suit was claim for declaration of title could not be based on entries in revenue records, plaintiff has sought to contend that he is unable to secure copy of order of grant as it is of substantial antiquity. However, he seeks to reinforce/corroborate his claim by producing mutation entries made by revenue authorities at relevant and undisputed point of time to establish his claim. But, in view of conclusions on other issues, as above, need for additional evidence would pale into insignificance.
46. In view of above, though finding of Tribunal on issues no.1 to 3 is contrary to law, but, by virtue of finding on issue no.4 being held correct and proper, order passed by Tribunal would not call for interference. Point for consideration is answered accordingly.
Revision petition is dismissed.
SD/-
(RAVI V.HOSMANI) JUDGE GRD,PSG CT:PA List No.: 1 Sl No.: 50