Bombay High Court
Suresh Premchand Mutha vs Adil Bin Sayeed Bin Hilabi And Ors on 3 September, 2025
2025:BHC-AUG:23674
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO. 100 OF 2021
Suresh s/o Premchand Mutha
Age 63 years, Occ. Business,
R/o. Plot No. 81, Samarth Nagar,
Aurangabad. ... Applicant
(Original Deft.No. 1)
VERSUS
1) Adil Bin Sayeed Bin Hilabi,
Age 42 years, Occ. Business,
R/o. Bukkalguda, Shaha Bazar,
Behind Hindi Vidyalaya, Aurangabad.
2) Vyankateshwar Gangadhar Kakade,
Age 35 years, Occ. Business,
R/o. N-3, CIDCO, Aurangabad.
3) Maheboob Khan s/o Nazir Khan,
Age 52 years, Occ. Rickshaw Driver,
r/o. Peer Bazar, Osmanpura, Aurangabad.
4) Azar Khan s/o Nazir Khan,
Age 48 years, Occ. Rickshaw Driver,
R/o. Peer Bazar, Osmanpura, Aurangabad.
5) Zafar Khan s/o Nazir Khan, ... Deleted.
6) Mazhar Khan s/o Nazir Khan,
Age 43 years, Occ. Rickshaw Driver,
R/o. Peer Bazar, Osmanpura, Aurangabad.
7) Shahanaz Begam w/o Saheb Khan,
Age 65 years, occ. Household,
R/o. Opp. Sagar Hotel,Buddi Lane,
Aurangabad.
8) Mumtaz Begam w/o Mohammad Hanif ... Deleted.
9) Qadeer Khan s/o Sher Khan,
Age 74 years, Occ. Business,
R/o Peer Bazar, Osmanpura, Aurangabad.
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10) Sayyad Azimuddin s/o Syed Habibuddin ... Deleted.
11) Fayyaz Khan s/o Ahmed Khan,
Age 68 years, Occ. Business,
R/o. Opp. Basara Hotel,Raja Bazar,
Shahagunj, Aurangabad.
12) Syed Halimuddin s/o Syed Ishaquddin ... Deleted.
13) Ehtesham Ahmed Shuttari s/o Farooq
Ahmed Shuttari, Age Major, occ.
Business, r/o. Nawabpura, Raza Bazar,
Aurangabad.
14) Rizwan Ahmed Shuttari s/o Farooq Ahmed
Shuttari, Age Major, Occ. Business,
R/o. Nawabpura, Raza Bazar,
Aurangabad.
15) Aqib Ahmed Shuttari s/o Farooq Ahmed
Shuttari, Age Major, occ. Business,
r/o. Nawabpura, Raza Bazar, Aurangabad.
16) Azam Khan s/o Afzal Khan ... Deleted.
17) Mohammad Yusuf s/o Abdul Karim ... Deleted.
18) Maharashtra State Board of Wakfs
Panchakki, Aurangabad ... Respondents
(Resp. No. 1 -original plaintiff and
resp.no. 2 to 18 original defts.
2 to 18).
...
Mr. Anand P. Bhandari Advocate for Applicant
Mr. Afzal Hussain M. Vakil, Advocate for Respondent no. 1.
Mr. V.D. Sapkal, Senior Advocate a/w Mr. Atharva D. Khwedkar, learned
advocate i/by Mr. Shaikh Tarek Mobin H. for Respondent no. 9
Mr. Shrimant Mundhe, Advocate for Respondent nos. 13 to 15
Mr. N.E.Deshmukh, Advocate for Respondent no. 18.
CORAM : SHAILESH P. BRAHME, J.
RESERVED ON : 26.08.2025
PRONOUNCED ON : 03.09.2025
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JUDGMENT :
Heard both sides finally with their consent.
2. The applicant/original defendant no. 1 is questioning common order
dated 07.09.2021 passed by Maharashtra State Waqf Tribunal, Aurangabad,
below Exh, 52 and 53 in Waqf Suit No. 66/2020, rejecting both applications
filed under Order VII Rule 11 of the Code of Civil Procedure. Respondent
no. 1 is the plaintiff and respondent no. 18 is the Maharashtra State Board
of Wakf, who are contesting parties. Application (Exh. 52) was submitted by
defendant no. 1 and application (Exh. 53) was submitted by defendant no.
9. The parties re referred to by their original status in the suit.
3. The controversy pertains to 8648 square meters of Survey Nos. 51 and
52 (Gat No. 292 and 293) of CTS No. 14503/1 situated at Usmanpura, Tq.
& Dist. Chhatrapati Sambhajinagar, which are claimed to be the property of
Waqf Dargah Hajrat Shahanoor Hamvi Reh. The reliefs of declaration,
possession and injunction are solicited by the plaintiff. The plaintiff claims
to be devotee of Dargah and participants of religious rites at Dargah. He is
said to be espousing a cause for protection of the Waqf properties.
4. The plaintiff has filed suit under Section 83 of Waqf Act, 1995
(hereinafter referred as 'Act of 1995') stating that Survey Nos. 51 and 52 are
service Inam lands and Waqf properties within meaning of Section 3(k) of
the Act. In the year 1983, an order is stated to have been obtained by one
Nazirkhan in respect of the suit land showing his name, though it was a
Waqf property. On the basis of record of right, illegal sale transactions are
alleged to have taken place in favour of defendant no. 1, 10, 11, 16 and 17.
It is contended that those transactions are illegal and without permission of
Waqf Board. The occupants of the waqf property, on the basis of void
transactions are encroachers. The cause of action is stated to have arisen on
11.09.2020, when plaintiff came across illegal possession of defendant no. 1
and he further learnt about illegal transactions. Following reliefs are sought
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in the suit:
"A) Suit of the Plaintiff may kindly be decreed with costs.
(B) It be declared that, suit property Old Survey Nos.292
and 293, New Survey Nos.51 and 52, now its parts C.T.S.
No.14503/1, admeasuring 8648.00 square meters Wakf
Property of Dargah Hazrat Shahnoor Hamvi Reh., situated
at Osmanpura, Aurangabad is service-inam-land/property of
the said Dargah.
(C) The Defendant Nos. 1 to 17 be directed to handover
the vacant and peaceful possession of the suit property No.
18/Wakf Board, to the Defendant"
5. The suit is contested by defendants including present applicant by
filing written statements. The common thread of defence is that Survey No.
51 and 52 are not the waqf properties. Those were not included in the list
notified. Those are tried to be brought in the list. The defendants have
purchased the lands by registered sale-deeds and they are lawfully in
possession of the same.
6. The applications, Exh. 52 and 53, were submitted under Order VII
Rule 11 of the Code of Civil Procedure on the count that suit land is not a
waqf property. There is no government gazette disclosing Survey Nos. 51
and 52 as enlisted properties. Suit is barred by limitation prescribed by
Proviso to Section 6 of the Act of 1995. There is no cause of action and
whatever cause shown in the plaint is illusory and camouflaged by cleaver
drafting. The suit is stated to be vexatious and meritless.
7. Plaintiff contested the applications by filing say. It is reiterated that a
letter dated 11.12.1979 is a gazette publication. A corrigendum disclosing
inclusion of Survey Nos. 51 and 52 would indicate them to be waqf
properties. The judgment dated 21.10.2009 rendered by Chief Executive
Officer of respondent no.18-Board unequivocally refers that those are waqf
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property. Further reference is made to the judgment passed in Regular Civil
Suit No. 81/2017. Reliance is also placed on Section 107 of Act of 1995. It
is contended that there is sufficient material on record to corroborate claim
of the plaintiff and full-fledged trial is required to arrive at any conclusion.
8. The learned counsel Mr. Bhandari appearing for the applicant has
canvased following submissions:
(i) No material is on record to indicate that Survey Nos.
51 and 52 are the waqf properties. The letter dated
11.12.1979 and the order of Chief Officer of the Board
cannot be treated to be gazetteed list.
(ii) In the absence of the procedure contemplated by
Section 4 to 6 and merely on the basis of a letter dated
11.12.1979, no corrigendum can translate any property
into a Waqf property.
(iii) No recourse is taken to Section 27 of the Act of 1954
or Section 40 of Act of 1995 to include the suit properties
when those were not included in the Government
notification dated 17.05.1973.
(iv) The suit filed after 48 years claiming relief of
declaration, to treat suit properties as Waqf properties, is
hopelessly barred by time as per Section 6 of the Act.
(v) There is absence of cause of action. Whatever is
posed as a cause is in fact, illusory, articulated by cleaver
drafting.
(vi) The predominant relief in the suit is barred by
Section 107 of that Act.
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(vii) The registered sale-deeds executed in favour of
defendants are sought to be challenged without there being
any prayer to that effect.
(viii) There is inordinate delay and the plaintiff is selective
in choosing the property to the extent of 8684 square
meters only.
(ix) Impugned order is unsustainable due to perverse
findings.
9. The applicant has placed reliance on written submissions filed on
record on 05.08.2025 and cited judgments.
10. Mr. V.D. Sapkal, learned senior counsel for respondent no. 19, who
had filed application (Exh. 53), adopts the above submissions and
additionally makes following submissions :
(a) The suit is mainly filed for declaration, which cannot
be saved by Section 107 of the Act of 1995.
(b) Trial Court's finding that the suit properties are Waqf
property is perverse.
(c) A stale claim has been brought before the Court.
(d) Respondent no. 18-Board did not take recourse to
Section 27 of the Act of 1954 or Section 40 of the Act of
1995, and no prima facie material is placed on record so as
to include the suit properties in the list.
11. Per contra, the learned counsel Mr. Afzal Vakil for plaintiff has
vehemently opposed the above submissions as follows :
(I) Adequate material is placed on record in the form of
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corrigendum dated 11.12.1979, order dated 21.10.2009,
decision in Regular Civil Suit No. 81/2007 and the revenue
record to show that suit properties are Waqf properties.
(II) The suit lands are Service Inam lands and they are
covered by Section 3(k) of the Act. Government gazette of
1979, is not challenged till this date.
(IV) The suit is within limitation as per Section 107 of the
Act.
(V) Meaningful reading of the plaint would indicate
cause of action. The suit is tenable.
(VI) The defendants are the encroachers and have illegally
purchased the parcels of the suit lands. They are liable to
hand over the possession.
(VII) The contentious issues raised by the defendants can
be dealt with after full-fledged trial.
12. Mr. N.E. Deshmukh, learned counsel appearing for the respondent no.
18-Board has supported the plaintiff. He would submit that limitation is the
mixed question of law and facts. Similarly, whether any survey or enquiry
was conducted or not can be gone into after full-fledged trial. It is
submitted that letter dated 11.12.1979 is in fact a notification. It is further
submitted that no ground is made out to invoke power under Order VII Rule
11 of the Code of Civil Procedure.
13. I have considered the rival submissions of the parties. I have gone
through original record and proceedings with the assistance of the counsels
appearing for the parties. At the outset it needs to be made clear that this
being enquiry under Order VII Rule 11 of the Code of Civil Procedure, the
averments of the plaint and documents annexed alongwith it have only been
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taken into consideration. No extraneous material has been taken into
account for deciding present revision.
14. A Government gazette published on 17.05.1973 shows the enlisted
properties of Dargah Hajrat Shahanoor Hamvi Reh. But Survey No. 51 and
52 are not included therein. The total area would come to about 38 acres,
however, the reliefs are restricted to 8648 square meters. A letter dated
11.12.1979 produced along with plaint is addressed by secretary of
respondent no. 18-Board to Manager Printing Press Government Book
Depot, Nagpur. It is accompanied by a corrigendum disclosing Survey No.
51 and 52 as enlisted Sunni Waqf properties in part 'B' published in
Government gazette dated 17.05.1973. Banking on these, it is sought to be
claimed that suit properties are Waqf properties. Neither any Government
gazette is placed on record to show Survey Nos. 51 and 52 are included in
the list nor any material is placed on record to show that a procedure was
followed for including those properties in the list. It is a bold claim of the
plaintiff and respondent no. 18-Board that letter dated 11.12.1979 itself is a
gazette, which cannot be countenanced. Plaintiff's had ample opportunity to
file convincing material on record, which could be a public document to
show that by way of Government gazette, the suit lands are included in the
list but no endeavor has been made to that effect.
15. Plaintiff is relying on order dated 21.10.2009 passed by the Chief
Executive Officer of the respondent no. 18-Board. Those are the proceedings
in respect of Survey No. 37. Incidentally, there is a reference to
corrigendum showing Survey Nos. 51 and 52 as Waqf properties. This order
would not enure to the benefit of the plaintiff because no source is disclosed
for the corrigendum. Similar is the case with the judgment dated 26.09.2019
passed in Regular Civil Suit No. 81/2017. That was a suit for injunction.
The issue, as to whether the suit lands are Waqf properties or not was not
germane in the proceedings. No reliance can be placed on the judgment for
treating the suit properties as Waqf properties. Similarly, various revenue
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entries and record are pressed into service by the plaintiff, but those are not
decisive and helpful to treat that suit properties are the Waqf properties.
Both counsels Mr. A.P. Bhandari and Senior Counsel Mr. V.D. Sapkal are right
in contending that the foundation to maintain a suit is lacking. The plaintiff
has not produced a public document, which could have been made available
to him at any point of time to show that suit lands are Waqf properties.
Hence, suit suffers a fundamental defect and renders it untenable.
16. My attention is adverted to Section 4 and 5 of the Act of 1954, as well
as Act of 1995, which lays down the procedure for appointing Survey
Commissioner or the competent Officers for conducting survey and
submitting report. After receiving the report, the State Government would
forward the same to the Board, then the Board under Section 5 sub Section
(2) is empowered to publish it in the official gazette, a list of Waqf. It
reveals from record that as per Section 5 of the Act of 1954 the list is
published in the Government gazette on 17.05.1973, which does not include
Survey Nos. 51 and 52. Plaint does not spell out any procedure undertaken
to include the suit lands. No documents are placed on record to suggest as
to when and how the statutory procedure was followed to include the suit
lands in the list after 17.05.1973.
17. Another recourse available was procedure under Section 27 of Act of
1954 or Section 40 of Act of 1995. It is neither case of plaintiff nor that of
defendant no. 18-Board that after conducting enquiry and undertaking a
procedure under Section 27 or 40, the suit lands were subsequently included
in the list. If such is the scenario, then the so-called corrigendum pressed
into service by the plaintiff is lacking any legal sanctity. In the absence of
any pleadings or prima facie material on record, there is a reason to infer
that suit lands are not the Waqf properties. The finding of the Tribunal that
the suit properties are published in the Government gazette in view of letter
of the Board by way of corrigendum and there are documents to support
the contention that those are Waqf properties is perverse.
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18. Plaintiff is repetitively referring to letter dated 11.12.1979 and the
corrigendum referred in the order dated 21.10.2009 as the documents
indicating Waqf properties. In absence of any procedure undertaken by the
competent authorities, these documents do not translate Survey No. 51 and
52 into Government gazette and culminate them into enlisted Waqf
properties. In this regard, I find substance in the submission of learned
counsel for the applicant and the learned Senior Counsel Mr. Sapkal. I am
of the considered view that suit properties are not trust properties and suit
under Section 83 of the Act is not tenable.
19. Plaintiff has filed present suit on 23.09.2020. He is claiming
declaration that the suit properties be declared as Waqf property. Had the
suit property been included either in notification dated 17.05.1973 or any
other subsequent gazetted notification, such a relief would not have been
claimed or required to be claimed. If a particular property is left out of the
notified list prepared under Section 5 of the Act, then suit before the
Tribunal under Act of 1954 before Civil Court or before Tribunal under Act
of 1995 is permissible to be filed under Section 6. However, the Proviso
prescribes a limitation of one year from the date of publication of the list of
the Waqf under Section 5 (2) of the Act. Admittedly, the list under Section
5(2) was published on 17.05.1973 and the suit is filed after 47 years. Such
a suit is manifestly barred by time. No further enquiry on facts is required to
hold that suit is barred by time.
20. I have carefully gone through averments of the plaint. The alienations
made by one Nazir Khan in favour of defendant nos. 1 and inter se to
defendant nos. 10, 11, 16 and 17 are stated to be illegal and without
permission of the Board. The interest created in those defendants are sought
to be challenged without there being any relief of declaration, challenging
the sale-deeds. If the declaration sought by the plaintiff is granted, that will
nullify the right or interest created in the defendants by registered sale-
deeds. The property extract produced on record shows that sale-deeds were
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executed way back in the year 1985 and 1988. Couple of lease deeds were
also executed in 1985 and 2004. The registered sale transactions came to be
challenged impliedly by filing suit on 23.09.2020. It is relevant to notice the
pleadings from plaint as follows:
"3) The plaintiff submits that, in the year 1983, one Nazir
Khan s/o Sher Khan obtained one so-called Order from the
Tahsildar, Aurangabad and mutated his name in the
property record [P.R. Card] of CTS No.14503/1 to the
extent of 8648.00 square meters, but he has concealed the
above said facts and documents that, the said properties are
belonging to Dargah Hazrat Shahnoor Hamvi and he has
mutated his name as per the said so-called order of
Tahsildar and after mutating his name in the P.R. Card, he
executed some illegal documents about the suit property in
favour of defendant no.1, defendant no.10, defendant no.11
and another defendant namely Shuttari and defendant
nos.16 and 17 without permission of the Wakf Board. The
defendant nos.16 and 17 i.e. Azam Khan and Mohammad
Yusuf illegally transferred the wakf property in favour of
defendant no.2 for the period of 999 years. Without prior
permission and sanction of the Wakf Board and by
contravention of Wakf Act, therefore, all the above
transactions of the defendants are illegal, null void and ab-
initio and it is liable to be cancelled, as all the defendants
are the encroachers over the suit wakf property."
21. The above referred pleadings are absurd. In order to overcome the bar
of limitation instead of challenging independent sale-deeds a declaration has
been solicited claiming that the suit properties be declared as Waqf
properties. I find substance in the submissions of the applicant that it is a
case of cleaver drafting. The interest created in the defendants long back is
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sought to be reopened by the manner which is impermissible in law. The
cause of action shown in para No. 4 to 6 is fall out of cleaver drafting. The
bar of limitation is camouflaged by devious drafting of the plaint. A useful
reference can be made to K. Akbar Ali Vs. K. Umar Khan; (2021) 14 SCC 51.
22. The plaintiff relied on Section 107 of the Act of 1995 to contend that
the Limitation Act 1963 is not applicable. The section reads as follows :
" 107. Act 36 of 1963 not to apply for recovery of
wakf properties- Nothing contained in the Limitation Act,
1963 shall apply to any suit for possession of immovable
property comprised in any wakf or for possession of any
interest in such property."
23. Present suit is filed for declaration, possession and injunction. I have
already recorded that the predominant relief is the declaration. Other reliefs
are consequential. The reliefs of declaration and injunction do not fall
within the purview of Section 107. At the most, it can be said that suit land
will be barred by limitation to the extent of relief of possession. But the
substantive relief in the suit appears to be not barred by time.
24. In this regard, submissions are made by the applicant that the stale
claim cannot be reopened by implication of Section 107. To buttress the
submission, reliance is placed on the judgment of the Supreme Court in the
matter of T. Kaliamurthi and anr Vs. Five Gori Thaikal Wakf and Ors; 2008
AIR SCW 8142. Following are the relevant paragraphs :
"22. Section 107 lays down that nothing contained in the
Limitation Act, 1963 shall apply to any suit for possession
of immovable property comprised in any Wakf or for
possession of any interest in such property. Thus it can be
said that this section virtually repeals the Limitation Act,
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1963 so far as the Wakf properties are concerned.
Therefore, it can be concluded without any hesitation in
mind that there is now no bar of limitation for recovery of
possession of any immovable property comprised in a Wakf
or any interest therein. In this background, let us now see
whether this section has any retrospective effect. It is well
settled that no statute shall be construed to have a
retrospective operation until its language is such that
would require such conclusion. The exception to this rule is
enactments dealing with procedure. This would mean that
the law of limitation, being a procedural law, is
retrospective in operation in the sense that it will also apply
to proceedings pending at the time of the enactment as also
to proceedings commenced thereafter, notwithstanding that
the cause of action may have arisen before the new
provisions came into force. However, it must be noted that
there is an important exception to this rule also. Where the
right of suit is barred under the law of limitation in force
before the new provision came into operation and a vested
right has accrued to another, the new provision cannot
revive the barred right or take away the accrued vested
right. At this juncture, we may again note Section 6 of the
General Clauses Act, as reproduced herein earlier. Section 6
of the General Clauses Act clearly provides that unless a
different intention appears, the repeal shall not revive
anything not in force or existing at the time at which the
repeal takes effect, or affects the previous operation of any
enactment so repealed or anything duly done or suffered
thereunder, or affect any right, privilege, obligation or
liability acquired, accrued, or incurred under any
enactment so repealed.
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23. From the above, it is clear that the right of action,
which is barred by limitation at the time when the new Act
comes into force, cannot be revived by the change in the
law subsequently. In Ram Murthi and Ors, vs. Puran Singh
s/o Attra Singh and Ann [AIR 1963 Punjab 393], it has
been held that Section 107 renders the Limitation Act,
1963 inapplicable to suits for possession of immovable
properties comprised in any Wakf or any interest therein
but the right of a person to institute such a suit which is
already barred at the commencement of this Act cannot
revive. It was further held that his title is extinguished and
a good title is acquired by the person in possession and that
where the title of the true owner is extinguished in favour
of the wrongdoer, it is not revived by that person again
getting into possession. There is no remitter to the old title.
33. After considering this submission of the learned
counsel for the respondents, it may appear that the
controversy has narrowed down to the point whether
Section 6 of the General Clauses Act would apply in this
case or not. That is to say, it may appear that if we answer
this question in the negative thereby holding that Section
112 is self-contained, the appeal would fail because then
the question of reviving a barred claim would not arise at
all because Section 112 does not contemplate or provide
for any such provision. However, if we answer this question
in the affirmative, the inevitable result would be that the
appeal would have to be allowed because on all other
points, discussed herein-earlier, the arguments of the
learned counsel for the appellants have been accepted.
However, in our view, the authorities relied upon by the
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respondents deal only with the question of repeal and
savings but do not answer the question raised by the
learned counsel for the appellants, i.e., whether Section
107 can revive an extinguished right. We may note that the
authority relied upon by the learned counsel for the
appellant reported in Yeshwantrao Laxmanrao Ghatge and
another (supra) cannot be ignored. That decision was not a
case of repeal and accordingly, there was no reference to
Section 6 at all in that Act. Nevertheless, it was held in that
case that a right extinguished under Section 28 of the
Limitation Act, 1963 cannot be revived by Section 52-A.
Similarly, in the present case, we are of the opinion that
applicability of Section 6 is inconsequential because
admittedly, there was an extinguishment of rights under
Section 28 and Section 107 cannot revive those
extinguished rights.
34. In view of the above discussions, we are, therefore, of
the view that Section 107 cannot revive a barred claim or
extinguished rights."
25. I am bound to follow the ratio laid down by the Supreme Court that
Section 107 can have no retrospective effect. The relief of declaration in the
present case should have been sought within one year from 17.05.1973. All
the reliefs in the plaint can be said to be barred by limitation at the time
when Act of 1995 came into effect. I have also observed that relief of
possession and injunction are consequential in nature. The time barred
relief cannot be reopened by implication of Section 107. In that view of the
matter, I find that the applicant is bound to succeed in the revision.
26. It is vehemently contended that the objection raised by the
defendants are disputed questions of facts, which require objective scrutiny
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during trial. I have not considered the submissions pertaining to disputed
facts namely; as to why suit is restricted to 8648 square meters when total
area is about 38 acres, as to the locus standi of the plaintiff, as to the copies
of certain orders were obtained in 1982 and suit is filed in 2020 and as to
the possession is directed to be handed over to the Board etc. Considering
the averments of the plaint and the documents produced along with it, I
have tested the submissions of the parties in coming to the conclusion that
the impugned order is liable to be quashed.
27. The plaintiff has articulated the pleadings and prayers so as to
overcome legal impediments of limitation, bar of Section 6 or 107 of the Act.
In very absurd manner, sale transactions executed in favour of the
defendants are sought to be avoided. This is a case of not only illusory
cause of action by cleaver drafting but an abuse of process of law. There is
no point in dragging the parties to the full-fledged trial where the pleadings
are trickarious and the intentions are oblique. This is a fit case to invoke
power under Order VII Rule 11 of the Code of Civil Procedure. The Tribunal
has committed patent error of jurisdiction in rejecting the application.
28. Reliance is placed on the judgment of the Supreme Court in the
matter of Madanuri Sri Rama Chandra Murthy Vs. Syed Jalal; (2017) 13
SCC 174 by the applicant. The appellant before the Supreme Court was
defendant No. 1, who had filed application under Order VII Rule 11 of the
Code of Civil Procedure before the Waqf Tribunal in a suit filed by the
respondent-plaintiff. It was a suit for cancellation of sale-deed on the
pleadings that it was a Waqf Property. The application under Order VII Rule
11 was allowed by the Tribunal. In revision, High Court reversed the order
of the Tribunal. Hence, defendant was before the Supreme Court. Appeal
was allowed by the Supreme Court and the Tribunal's order was maintained.
In that case also it was contended that the property in question was not a
Waqf property as it was not notified in the Gazette of 1962. The Supreme
Court considered sections 4 to 6 of Act of 1954 as well as Act of 1995.
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Following are the relevant extracts :
"17. Thus it is amply clear that the conducting of survey
by the Survey Commissioner and preparing a report and
forwarding the same to the State or the Wakf Board
precedes the final act of notifying such list in the official
gazette by the State under 1995 Act, (it was by the Board
under 1954 Act). As mentioned supra, the list would be
prepared by the Survey Commissioner after making due
enquiry and after valid survey as well as after due
application of mind. The enquiry contemplated under sub-
section (3) of Section 4 is not merely an informal enquiry
but a formal enquiry to find out at the grass root level, as to
whether the property is a Wakf Property or not. Thereafter
the Wakf Board will once again examine the list sent to it
with due application of it's mind and only thereafter the
same will be sent to Government for notifying the same in
the Gazette. Since the list is prepared and published in the
official Gazette by following aforementioned procedure,
there is no scope for the plaintiff to get the matter
reopened by generating some sort of doubt about Survey
Commissioner's report. Since the surveyor's report was
required to be considered by the State Government as well
as Wakf Board (as the case may be), prior to finalisation of
the list of properties to be published in the Official Gazette,
it was not open for the High Court to conclude that the
Surveyor's report will have to be reconsidered. On the
contrary Surveyor's report merges with the Gazette
Notification published under Section 5 of the Wakf Act.
18. As held by the Tribunal as well as the High Court, the
property in question does not find place in the Gazette
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notification published under Section 5 of the Wakf Act. In
other words, the property in question is not notified in the
official Gazette as Wakf property. If anybody including the
Wakf Board or the plaintiff was aggrieved by such non-
inclusion of the property in the list notified, the aggrieved
person should have raised the dispute under Section 6
within a period of one year from the date of publication of
the Gazette notification in the matter. The plaintiff has
practically questioned the non-inclusion of the property in
the list and the validity of the list notified in the official
gazette dated 28.06.1962 after the lapse of about 50 years,
i.e. in the year 2013 by filing the present suit.
19. As per Section 27 of 1954 Act ( Section 40 of 1995
Act), the Board may itself collect information regarding any
property which it has reason to believe to be wakf property
and if any question arises whether a particular property is
wakf property or not the Board after making such enquiry
as it deems fit, decide the question. The decision of the
Board on any question under sub-section (1) of Section 27
of 1954 Act (or under Section 40(1) of 1995 Act) shall,
unless revoked or modified by the Civil Court, be final. The
effect of Section 27 of 1954 Act or Section 40 of 1995 Act is
that, if any property had been omitted to be included in the
list of auqaf by inadvertence or otherwise, then it was/is for
the Wakf Board to take action, as per said provision. In this
context, it is relevant to note the observations by this Court
in the case of T.N. Wakf Board vs Hathija Ammal [1] which
read thus:
"In the event, any property has been omitted by
inadvertence or otherwise, then it is for the Wakf
CRA 100 21.odt
Board to take action as provided under Section 27
of the Act. If the Wakf Board has reason to believe
that a particular property is a wakf property then it
can itself collect information and if any question
arises whether a particular property is a wakf
property or not, it may, after making such enquiry
as it may deem fit decide the question and such
decision of the Wakf Board shall be final unless
revoked or modified by a civil court. Such action
has not been taken by the Wakf Board in this case."
29. In the case at hand plaintiff has not expressly questioned the non-
inclusion of the property in the list dated 17.05.1973, but the relief of
declaration is on the similar line. In the present case also the Board did not
undertake procedure under Section 27 of the Act of 1954 and Section 40 of
the Act of 1995. Then it is not open for the Tribunal to treat the suit land as
a Trust property. The things, which are prohibited to be done directly
cannot be done undirectly. Following the ratio laid down in above case I
am of the considered view that applicant is entitled to succeed in the matter.
30. Further reliance is placed on latest judgment of the Supreme Court in
the matter of Uma Devi Vs. Anand Kumar; AIR Online 2025 SC 196. It is
submitted that if the entire and meaningful reading of the plaint it is found
that the suit is vexatious and meritless in the sense of not disclosing cause of
action then Court should exercise power under Order VII Rule 11 of the
Code of Civil Procedure. The ratio is applicable to the present case.
31. The learned counsel Mr. Afzal Vakil for the plaintiff relied on following
judgment:
(1) P. Kumarakurubaran Vs. P. Narayanan; AIRONLINE 2025 SC
641. I have gone through paragraph Nos. 12, 13, 14 and 15 of
CRA 100 21.odt
the judgment. In that case the appellant before the Supreme
Court was plaintiff whose plaint was sought to be rejected on
ground of limitation. The Trial Court had rejected application of
respondent/defendant under Order VII Rule 11 of the Code of
Civil Procedure. But High Court in Revision, allowed it.
Supreme Court allowed appeal because it was held that
knowledge to gain essential facts was crucial. The judgment is
distinguishable on facts. The averments of the plaint taken at
their face value and assumed to be true would not bring the suit
in case at hand within limitation. The judgment is not helpful
to the plaintiff.
(2) Shakti Bhog Food Industries Limited Vs. Central Bank of
India and Another; 2020(5) Mh.L.J. 1. The facts of cited case
are different. In the present case limitation prescribed by
Section 6 or 107 of the Act of 1995 is under consideration. This
judgment will not help the respondent.
(3) Sayyed Ali and others Vs. A.P. Wakf Board, Hyderabad and
others; AIR 1998 Supreme Court 972. My attention is adverted
to paragraph Nos. 8, 9 and of this judgment. The facts are
distinguishable. That was not a case of enquiry under Order VII
Rule 11 of the Code of Civil Procedure. The ratio cannot be
made applicable to the present case.
32. The analysis of above discussion is that, the paint is liable to be
rejected. I therefore, pass following order:
Order
(a)The Civil Revision Application is allowed.
(b)The impugned common order dated 07.09.2021 below Exh. 52
CRA 100 21.odt
and 53 passed by the learned Chairman, Waqf Tribunal in Waqf
Suit No. 66/2020 is quashed and set aside and plaint in Waqf Suit
No. 66/2020 stands rejected.
(c) There shall be no order as to costs.
( SHAILESH P. BRAHME, J.)
33 After pronouncement of judgment, learned counsel for the respondent
No. 1 prays for grant of stay to the operation and implementation of the
judgment pronounced.
34 Learned counsel Mr. Bhandari for the petitioner opposes the prayer on
the ground that the same is not executable one.
35 Plaint in Wakf Suit No. 66 of 2020 is rejected. Plaintiff is anxious to
approach Hon'ble Apex Court.
36 Operation and execution of the judgment shall stand stayed for a
period of four (04) weeks from today. It is clarified that after expiry of four
weeks, stay granted today shall stand vacated without reference to the
Court.
( SHAILESH P. BRAHME, J.)
mkd/-
