Karnataka High Court
Mohamed Osman vs The Karnataka Board Of Wakfs on 15 July, 2021
Author: Hanchate Sanjeevkumar
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 15TH DAY OF JULY, 2021
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO.640 OF 2002
C/W
REGULAR SECOND APPEAL NO.639 OF 2002
IN R.S.A. No.640 OF 2002
BETWEEN :
1. MOHAMAD USMAN
S/O FAIZUDDIN
AGED ABOUT 77 YEARS
OCC: BUSINESS, RESIDING
OF GHODWADI, TQ. HAMNABAD
BIDAR DIST. (DEAD)
2. ISMAIL SAB
S/O SHIK BABAR
AGED ABOUT 92 YEARS
OCC.BUSINESS, RESIDING OF
GHODWADI, TQ. HAMNABAD
BIDAR DIST. (DEAD)
3. MOHD. MASTHAN
S/O ABDULLA
AGED ABOUT 72 YEARS
OCC. BUSINESS, RESIDING
OF GHODWADI, TQ. HAMNABAD
BIDAR DIST. (DEAD)
APPELLANT NOs.1 TO 3 SINCE DECEASED
SUBSTITUTED BY APPELLANTS 1 TO 16 AS PER
2
ORDER DATED 19.06.2004.
1. MOHAMMAD KHAJA MIYAM
S/O FAIZUDDIN
AGED ABOUT 58 YEARS
2. KHALLELUDDIN
S/O ISMAILSAB BABBAR
AGED ABOUT 62 YEARS
3. KHAJAMOUNUDDIN
S/O ABUDL RAHIM
AGED ABOUT 50 YEARS
4. QIYAMUDDIN
S/O MOHAMMAD FARRED MOHIDDIN
AGED ABOUT 45 YEARS
5. SHAFIUDDIN
S/O BASHRUDDIN
AGED ABOUT 49 YEARS
6. MOHAMMAD GOUSE
MOULANA HYDERSAB
AGED ABOUT 56 YEARS
7. ABDUL RASHEED
S/O SHAIK MOHAMMAD DANKE
AGED ABOUT 56 YEARS
8. MOHAMMAD CHUNU MIYAN
S/O ABDUL SHUKUR
AGED ABOUT 56 YEARS
9. MOHAMMAD ISMAIL
S/O MOHAMMAD HAROON KALANDER
AGED ABOUT 35 YEARS
10. MOHAMMAD ARIF
S/O AL HAJEE MOINUDDIN NANHU
AGED ABOUT 51 YEARS
3
11. MOHAMMAD GOUSE
S/O ALLABAX
AGED ABOUT 42 YEARS
12. MOHAMMAD NAYAJUDDIN
S/O MASLAM SAB
AGED ABOUT 44 YEARS
13. MOHAMMAD SAYEED
S/O MOHAMMAD FAREED
AGED ABOUT 46 YEARS
14. BALE SAB
S/O MOULANA
AGED ABOUT 60 YEARS
15. AZAM SAB
S/O MOHAMMAD HUSSAIN KANDGORE
AGED ABOUT 60 YEARS
16. DASTAGIR
S/O BABUMIYAN USTAD
AGED ABOUT 40 YEARS
ALL ARE RESIDENT MUTAWALLI OF
GHODWADI, TALUK: HUMNABAD
DISTRICT: BIDAR
ADDITIONAL APPELLANTS 17 TO 31
WERE IMPLEDED AS PER ORDER
DATED 14.7.04.
17. MOHD. MAHTAB
S/O ABDULLA SAB MUKKE
AGE: MAJOR, OCCUPATION : MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH
R/O GODWADI SHAREEF
TQ. HUMNABAD, DIST. BIDAR
18. MOHD. ISMAIL
S/O ABDULLA KHADER SAB PAPU
4
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH
R/O GODWADI SHAREEF
TQ. HUMNABAD, DIST. BIDAR
19. MOHD. MASTAN
S/O SHAMSHODDIN NANNU
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH
R/O GODWADI SHAREEF
TQ. HUMNABAD, DIST. BIDAR
20. ALEEMODDIN
S/O FAKEER SAB LASKARI
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH
R/O GODWADI SHAREEF
TQ.HUMNABAD, DIST. BIDAR
21. ALLABAKASH
S/O FAKEER SAB LASKARI
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH
R/O GODWADI SHAREEF TQ.HUMNABAD
DIST. BIDAR
22. KHALEQ MIYAN
S/O ABDUL KAREEM RAMZANI
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH
R/O GODWADI SHAREEF TQ.HUMNABAD
DIST. BIDAR
23. MOHD. KURSHID
S/O ABDULLA SAB MUKKE
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH
R/O GODWADI SHAREEF
TQ.HUMNABAD
DIST. BIDAR
5
24. MOHD. ISMAIL
S/O MOHD. ISHAQ
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH
R/O GODWADI SHAREEF TQ.HUMNABAD
DIST. BIDAR
25. MOINUDDIN
S/O PASHA MIYAN MULLAN
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH
R/O GODWADI SHAREEF TQ.HUMNABAD
DIST. BIDAR
26. BHIKKU MIYAN
S/O SULEMAN SAB LANGADE
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH
R/O GODWADI SHAREEF TQ.HUMNABAD
DIST. BIDAR
27. MAHTAB SAB
S/O ABDUL GANI LANGADE
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH
R/O GODWADI SHAREEF TQ.HUMNABAD
DIST. BIDAR
28. MOHD. ISMAIL
S/O IBRAHIM MOTI
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH
R/O GODWADI SHAREEF TQ.HUMNABAD
DIST. BIDAR
29. IMAMODDIN
D/O SHAMSHODDIN RAMZANI
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH
R/O GODWADI SHAREEF TQ.HUMNABAD
DIST. BIDAR
6
30. MD. OSMAN AHMED
S/O VIKBAR AHMED MARGASI
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH
R/O GODWADI SHAREEF TQ.HUMNABAD
DIST. BIDAR
31. MODDIN
S/O ABDULLA MULLA
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH
R/O GODWADI SHAREEF TQ.HUMNABAD
DIST. BIDAR
RESPONDENTS NO.6 TO 11 WERE
TRANSPOSED AS SUPPLEMENTAL
APPELLANTS NO.32 TO 37 AS PER
ORDER DATED 3.8.2004.
32. MOHAMMED MASEERUDDIN
S/O MOHAMMED KHALEEL
AGED 60 YEARS
33. MOHAMMED MAZEER AHMED
S/O HUSSAINSAHEB
AGED 68 YEARS
34. MOHINUDDIN
S/O MOHINUDDIN
AGE 60 YEARS
35. KHADER ALI
S/O MAGADOOM AIL
AGE 55 YEARS
36. CHANDPASHA
S/O AHMED SHAH
AGE 47 YEARS
7
37. HAFEEZALISHAH
S/O BAHARALISHAH
AGE 70 YEARS
ALL KHADIMS, ALL RESIDENTS
OF GHODAWADI, TALUK HUMNABAD
DISTRICT: BIDAR.
APPELLANTS NO.38 TO 55 WERE
IMPLEDED AS SUPPLEMENTAL AS PER ORDER
DATED 29.7.2004.
38. MD. MASTAN S/O TAHARMIYAN
AGED ABOUT 42 YEARS
OCC: MUTAWALLI/MUJWAR/KHIDMAT
OF DARGAH
R/O GHODWADI SHAREEF
TALUK : HUMNABAD
DISTRICT : BIDAR
39. MD. FAIZUDDIN
S/O LATE MOHAMMAD USMAN
AGED ABOUT 49 YEARS
OCC: MUTAWALLI/MUJWAR/KHIDMAT
OF DARGAH
R/O VILLAGE : GHODWADI
TALUK : HUMNABAD
DISTRICT : BIDAR
40. MD. ISMAIL
S/O NASEERUDDIN NAHNU
AGED ABOUT 50 YEARS
41. MOHD. GHOUSODDIN
S/O SHAMSUDDIN NAHNU
AGED ABOUT 50 YEARS
42. MOHD. MOINUDDIN AKHTER
S/O LATE MOHD. ABDULLA
AGED ABOUT 60 YEARS
OCC: ADVOCASY.
8
43. MOHD. ISMAIL SAAB MUTAVALLI
S/O LATE AHMED SAAB MOINUDDIN
MUTAVALLI, AGED ABOUT 55 YEARS
44. MOHD. AYUBMIYAN
S/O ABDUL KAREEM SAB
AGED ABOUT 40 YEARS
45. MOHD. TAJODDIN
S/O ISAQUDDIN MUKKE
AGED ABOUT 36 YEARS
46. BABU MIYAN
S/O ALLABAKH HAJARE
AGED ABOUT 35 YEARS
47. MOHAD. ISMAIL
S/O AZIMUDDIN SAB
AGED ABOUT 60 YEARS
48. AHMED HUSSAIN
S/O MOINUDDIN
AGED ABOUT 45 YEARS
49. MOOSAMIYAM
S/O MOHAMADASAB
AGED ABOUT 45 YEARS
50. MAZBOOL MIYAN
S/O MOHAMADSAB
AGED ABOUT 45 YEARS
51. BABU MIYAN
S/O MOHAMADSAB
AGED ABOUT 48 YEARS
52. WAHABMIYAN
S/O SHUKUR MIYAN
AGED ABOUT 60 YEARS
9
53. SIRAJUDDIN
S/O FAIZUDDIN
AGED ABOUT 55 YEARS
54. SAIFUDDIN
S/O NASEERUDDIN
AGED ABOUT 40 YEARS
55. ISAQUDDIN
S/O ISMAIL SAB
AGED ABOUT 48 YEARS
ALL OCC: MUTAWALLI/MUJWAR/KHIDMAT
OF DARGAH & ALL RESIDENT OF:
VILLAGE : GHODWADI SHAREEF
TALUK : HUMNABAD
DISTRICT : BIDAR.
... APPELLANTS
(BY SMT.NEEVA.M.CHIMKOD ADV.,FOR A6, A7,A18 & A40;
SRI. RAVI.B.PATIL ADV.,FOR A9, A10 & A38;
COURT NOTICE TO A12 SERVED)
AND :
1. THE KARNATAKA BOARD
WAKFAS, NO.6
CUNNINGHAM ROAD
BANGALORE-560 052.
BY ITS CHIEF
EXECUTIVE OFFICER
2. METAB SAB
S/O ABDULLA MALANG
AGED ABOUT 92 YEARS
OCC. BUSINESS
RESIDING OF GHODWADI
TQ. HAMNABAD
10
3. RAFIUDDIN
S/O CHAND PATEL
AGED ABOUT 42 YEARS
OCC: AGRICULTURE
RESIDENT OF RAJUALA
VILLAGE, TQ. HAMNABAD
BIDAR DISTRICT
4. SHAIK MAHMOOD
S/O WALI MOHAMED
RESIDENT OF GHODWADI
TQ. HAMNABAD,
BIDAR DISTRICT.
SINCE DECEASED BY LRs.
a) MOHAMAD SAYEED MIYAN
W/O SHAIK MAHMOOD
AGED ABOUT 57 YEARS
OCC. CONTRACTOR
RESIDENT OF BHALKI
BIDAR DISTRICT.
b) MOHAMED WAHEED MIYAN
S/O SHAIK MAHMOOD
AGED ABOUT 54 YEARS
OCC. BUSINESS
RESIDENT OF BHALKI
BIDAR DISTRICT.
c) BAGUM BEE
W/O BABU MIYAN
D/O SHAIK MAHMOOD
AGED 37 YEARS
OCC. HOUSEHOLD
RESIDENT OF MOHALLA
MOGALPURA
HYDERBAD, ANDRA PRADESH
11
d) AMEENA BI
W/O HAMEED MIYAN
D/O SHAIK MAHMOOD
AGED ABOUT 34 YEARS
OCC. HOUSEHOLD
RESIDENT OF BHALKI
BIDAR DISTRICT.
e) MOHD. MASTHAN
AGED ABOUT 32 YEARS
S/O SHAIK MAHMOOD
RESIDENT OF BIDAR
f) KASEEM BI
W/O ABDUL SATTAR
D/O SHAIK MAHMOOD
AGED ABOUT 30 YEARS
RESIDENT OF BIDAR
g) MOHD. GESU
S/O SHAIK MAHMOOD
AGED ABOUT 27 YEARS
OCC. DRIVER
RESIDENT OF BIDAR
5. MOHAMED WAZIR
S/O SHAIK HAJI
ALIAS ISMAIL GUNDA
RESIDENT OF GHODWADI
TA. HAMNABAD
DECEASED BY LRs.
L.RAFIUDDIN
S/O MOHD. WAZIR
MAJOR, DECEASED BY LRs.
A MOIZUDDIN
S/O MD. WAZIR
AGED ABOUT 22 YEARS
12
B MOHD. HAJI
S/O MOHD WAZIR
AGED: MAJOR
C MOHD. ISMAIL
S/O MOHAD WAZIR
AGED: MAJOR
D MOHD. ISMAIL
S/O MOHD WAZIR
AGED: MAJOR
E ZAHIRA BEE
ALIAS HANIMA
W/O MOHD. WAZIR
AGE: MAJOR
ALL RESIDENT OF BIDAR.
... RESPONDENTS
(BY SRI. P.S.MALIPATIL ADV., FOR R1 (THROUGH V/C)
V/O DATED 03/10/02 R2 DELETED;
NOTICE TO R3 SERVED)
THIS RSA FILED UNDER SECTION 100 CPC AGAINST
THE JUDGMENT AND DECREE DATED 16.4.2002 PASSED
IN R.A.NO.15/2000 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.), BASAVAKALYAN, CAMP AT HUMNABAD,
ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 25.5.2000 PASSED IN
O.S.NO.221/1970 ON THE FILE OF THE ADDL. CIVIL
JUDGE (JR.DN.), HUMNABAD AND ETC.,
13
IN R.S.A. No.639 OF 2002 :
BETWEEN :
1. MOHAMAD USMAN
S/O FAIZUDDIN
AGED ABOUT 77 YEARS
OCC: BUSINESS
RESIDING OF GHODWADI
TQ. HAMNABAD
BIDAR DIST. (DEAD)
2. ISMAIL SAB
S/O SHAIK BABAR
AGED ABOUT 92 YEARS
OCC. BUSINESS
RESIDING OF GHODWADI
TQ. HAMNABAD
BIDAR DIST. (DEAD)
3. MOHD. MASTHAN
S/O ABDULLA
AGED ABOUT 72 YEARS
OCC. BUSINESS
RESIDING OF GHODWADI
TQ. HAMNABAD
BIDAR DIST. (DEAD)
APPELLANT NO.1 TO 3 SINCE DECEASED
SUBSTITUTED BY APPELLANTS 1 TO 16 AS PER
ORDER DATED 19.06.2004.
1. MOHAMMAD KHAJA MIYAN
S/O FAIZUDDIN
AGED ABOUT 58 YEARS
2. KHALEELUDDIN
S/O ISMAILSAB BABBAR
AGED ABOUT 62 YEARS
14
3. KHAJAMOUNUDDIN
S/O ABUDL RAHIM
AGED ABOUT 50 YEARS
4. QIYAMUDDIN
S/O MOHAMMAD FARRED MOHIDDIN
AGED ABOUT 45 YEARS
5. SHAFIUDDIN
S/O BASHRUDDIN
AGED ABOUT 49 YEARS
6. MOHAMMAD GOUSE MOULANA HYDERSAB
AGED ABOUT 56 YEARS
7. ABDUL RASHEED
S/O SHAIK MOHAMMAD DANKE
AGED ABOUT 56 YEARS
8. MOHAMMAD CHUNU MIYAN
S/O ABDUL SHUKUR
AGED ABOUT 56 YEARS
9. MOHAMMAD ISMAIL
S/O MOHAMMAD HAROON KALANDER
AGED ABOUT 35 YEARS
10. MOHAMMAD ARIF
S/O AL HAJEE MOINUDDIN NANHU
AGED ABOUT 51 YEARS
11. MOHAMMAD GOUSE
S/O ALLABAX
AGED ABOUT 42 YEARS
12. MOHAMMAD NAYAJUDDIN
S/O MASLAM SAB
AGED ABOUT 44 YEARS
13. MOHAMMAD SAYEED
S/O MOHAMMAD FAREED
15
AGED ABOUT 46 YEARS
14. BALE SAB
S/O MOULANA
AGED ABOUT 60 YEARS
15. AZAM SAB
S/O MOHAMMAD HUSSAIN KANDGORE
AGED ABOUT 60 YEARS
16. DASTAGIR
S/O BABUMIYAN USTAD
AGED ABOUT 40 YEARS
ALL ARE RESIDENT MUTHAVALLI OF
GHODWADI, TALUK: HUMNABAD
DISTRICT: BIDAR.
ADDITIONAL APPELLANTS 17 TO 31
WERE IMPLEDED AS PER ORDER
DATED 14.7.04.
17. MOHD. MAHTAB
S/O ABDULLA SAB MUKKE
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH,
R/O GODWADI SHAREEF
TQ. HUMNABAD, DIST. BIDAR
18. MOHD. ISMAIL
S/O ABDULLA KHADER SAB PAPU
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH,
R/O GODWADI SHAREEF
TQ. HUMNABAD, DIST. BIDAR
19. MOHD. MASTAN
S/O SHAMSHODDIN NANNU
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH,
R/O GODWADI SHAREEF
16
TQ. HUMNABAD, DIST. BIDAR
20. ALEEMODDIN
S/O FAKEER SAB LASKARI
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH,
R/O GODWADI SHAREEF
TQ. HUMNABAD, DIST. BIDAR
21. ALLABAKASH
S/O FAKEER SAB LASKARI
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH,
R/O GODWADI SHAREEF
TQ. HUMNABAD, DIST. BIDAR
22. KHALEQ MIYAN
S/O ABDUL KAREEM RAMZANI
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH,
R/O GODWADI SHAREEF
TQ. HUMNABAD, DIST. BIDAR
23. MOHD. KURSHID
S/O ABDULLA SAB MUKKE
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH,
R/O GODWADI SHAREEF
TQ. HUMNABAD, DIST. BIDAR
24. MOHD. ISMAIL
S/O MOHD ISHAQ
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH,
R/O GODWADI SHAREEF
TQ. HUMNABAD, DIST. BIDAR
25. MOINUDDIN
S/O PASHA MIYAN MULLAN
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH,
17
R/O GODWADI SHAREEF
TQ. HUMNABAD, DIST. BIDAR
26. BHIKKU MIYAN
S/O SULEMAN SAB LANGDE
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH,
R/O GODWADI SHAREEF
TQ. HUMNABAD, DIST. BIDAR
27. MAHTAB SAB
S/O ABDUL GANI LANGDE
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH,
R/O GODWADI SHAREEF
TQ. HUMNABAD, DIST. BIDAR
28. MOHD. ISMAIL
S/O IBRAHIM MOTI
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH,
R/O GODWADI SHAREEF
TQ. HUMNABAD, DIST. BIDAR
29. IMAMODDIN
D/O SHAMSHODDIN RAMZANI
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH,
R/O GODWADI SHAREEF
TQ. HUMNABAD, DIST. BIDAR
30. MD. OSMAN AHMED
S/O VIKBAR AHMED MARGASI
AGE: MAJOR, OCCUPATION: MUTWALLI/
MUJAWAR/KHIDMAT OF DARGAH,
R/O GODWADI SHAREEF
TQ. HUMNABAD, DIST. BIDAR
31. MODDIN
S/O ABDULLA MULLA
AGE: MAJOR, OCCUPATION: MUTWALLI/
18
MUJAWAR/KHIDMAT OF DARGAH,
R/O GODWADI SHAREEF
TQ. HUMNABAD, DIST. BIDAR
RESPONDENTS NO.5 TO 10 WERE
TRANSPOSED AS SUPPLEMENTAL
APPELLANTS NO.32 TO 37 AS PER
ORDER DATED 29.7.2004.
32. MOHAMMED MASEERUDDIN
S/O MOHAMMED KHALEEL
AGE 60 YEARS
33. MOHAMMED MAZEER AHMED
S/O HUSSAINSAHEB
AGE 68 YEARS
34. MOHINUDDIN
S/O MOHINUDDIN
AGE 60 YEARS
35. KHADER ALI
S/O MAGADOOM AIL
AGE 55 YEARS
36. CHANDPASHA
S/O AHMED SHAH
AGE 47 YEARS
37. HAFEEZALISHAH
S/O BAHARALISHAH
AGE 70 YEARS
ALL KHADIMS, ALL RESIDENTS
OF GHODAWADI, TALUK HUMNABAD
DISTRICT : BIDAR
APPELLANTS NO. 38 TO 55 WERE
IMPLEDED AS SUPPLEMENTAL AS PER
ORDER DATED 3.8.2004.
19
38. MD. MASTAN
S/O TAHARMIYAN
AGED ABOUT 42 YEARS
OCC: MUTAWALLI/MUJWAR/KHIDMAT
OF DARGAH, R/O GHODWADI SHAREEF
TALUK : HUMNABAD, DISTRICT:BIDAR
39. MD. FAIZUDDIN
S/O LATE MOHAMMAD USMAN
AGED ABOUT 49 YEARS
OCC:MUTAWALLI/MUJWAR/KHIDMAT
OF DARGAH, R/O VILLAGE: GHODWADI
TALUK : HUMNABAD
DISTRICT : BIDAR
40. MD. ISMAIL
S/O NASEERUDDIN NAHNU
AGED ABOUT 50 YEARS
41. MOHD. GHOUSODDIN
S/O SHAMSUDDIN NAHNU
AGED ABOUT 50 YEARS
42. MOHD. MOINUDDIN AKHTER
S/O LATE MOHD. ABDULLA
AGED ABOUT 60 YEARS
OCC: ADVOCASY.
43. MOHD. ISMAIL SAAB MUTAVALLI
S/O LATE AHMED SAAB MOINUDDIN MUTAVALLI
AGED ABOUT 55 YEARS
44. MOHD. AYUBMIYAN
S/O ABDUL KAREEM SAB
AGED ABOUT 40 YEARS
45. MOHD. TAJODDIN
S/O ISAQUDDIN MUKKE
AGED ABOUT 36 YEARS
20
46. BABU MIYAN
S/O ALLABAKH HAJARE
AGED ABOUT 35 YEARS
47. MOHD. ISMAIL
S/O AZIMUDDIN SAB
AGED ABOUT 60 YEARS
48. AHMED HUSSAIN
S/O MOINUDDIN
AGED ABOUT 45 YEARS
49. MOOSAMIYAM
S/O MOHAMADASAB
AGED ABOUT 45 YEARS
50. MAZBOOL MIYAN
S/O MOHAMADSAB
AGED ABOUT 45 YEARS
51. BABU MIYAN
S/O MOHAMADSAB
AGED ABOUT 48 YEARS
52. WAHABMIYAN
S/O SHUKUR MIYAN
AGED ABOUT 60 YEARS
53. SIRAJUDDIN
S/O FAIZUDDIN
AGED ABOUT 55 YEARS
54. SAIFUDDIN
S/O NASEERUDDIN
AGED ABOUT 40 YEARS
55. ISAQUDDIN
S/O ISMAIL SAB
AGED ABOUT 48 YEARS
21
ALL OCC: MUTAWALLI/MUJWAR/KHIDMAT
OF DARGAH & ALL RESIDENT OF:
VILLAGE: GHODWADI SHAREEF
TALUK: HUMNABAD
DISTRICT: BIDAR
... APPELLANTS
(BY SMT.NEEVA.M.CHIMKOD ADV.,FOR A6, A7,A18 & A40;
SRI. RAVI.B.PATIL ADV.,FOR A9, A10 & A38;
COURT NOTICE TO A12 IS SERVED)
AND :
1. SYED RAFIUDDIN
S/O SYED CHAND PATEL
AGED ABOUT 87 YEARS
OCC. AGRICULTURE
RESIDENT OF RAJOLA
TQ. BASAVAKALYAN
BIDAR DISTRICT.
2. SHAIK MAHMOOD
S/O WALI MOHMAD
SINCE DECEASED BY LRs.
a) MOHD. SAYEED MIYAN
S/O SHAIK MAHMOOD
AGED ABOUT 67 YEARS
OCC. BUSINESS
RESIDENT OF GHODWADI
TQ. HAMNABAD
BIDAR DISTRICT.
b) MOHD WAHID MIYAN
S/O SHAIK MAHMOOD
AGED ABOUT 64 YEARS
OCC. BUSINESS
RESIDENT OF GHODWADI
TQ. HAMNABAD
BIDAR DISTRICT.
22
c) BEGUM BEE
W/O BABU MIYAN
D/O SHAIK MAHMOOD
AGED ABOUT 52 YEARS
OCC. HOUSEHOLD
RESIDENT OF GHODWADI
TQ. HAMNABAD, BIDAR DIST.
d) AMEENA BEE
W/O HAMEED MIYAN
D/O SHAIK MAHMOOD
AGED ABOUT 47 YEARS
OCC. HOUSEHOLD
RESIDENT OF GHODWADI
TQ. HAMNABAD, BIDAR DIST.
e) MOHD. MASTAN
S/O SHAIK MAHMOOD
AGED ABOUT 46 YEARS
OCC. BUSINESS
RESIDENT OF GHODWADI
TQ. HAMNABAD
BIDAR DISTRICT.
f) KHASMI BEE
W/O ABDUL SATTAR
D/O SHAIK MAHMOOD
AGED ABOUT 45 YEARS
OCC. HOUSEHOLD
RESIDENT OF GHODWADI
TQ. HAMNABAD, BIDAR DISTRICT
g) MOHAMED GHOSU
D/O SHAIK MAHMOOD
AGED ABOUT 37 YEARS
OCC. BUSINESS
RESIDENT OF GHODWADI
TQ. HAMNABAD, BIDAR DISTRICT
23
3. MOHD. WAZIR
S/O SHAIK HAJI
SINCE DESEASED BY LRs.
A) MOHIUDDIN
S/O MOHD. WAZIR
AGED ABOUT 57 YEARS
OCC. SERVICE
RESIDENT OF GHODWADI
TQ. HAMNABAD
BIDAR DISTRICT.
B) MOHD. HAJI
S/O MOHD. WAZIR
MAJOR, OCC. BUSINESS
RESIDENT OF GHODWADI
TQ. HAMNABAD
BIDAR DISTRICT.
C) MOHD. ISMAIL
S/O MOHD. WAZIR
MAJOR, OCC. BUSINESS
RESIDENT OF GHODWADI
TQ. HAMNABAD
BIDAR DISTRICT.
D) MHOD. MUKRAM MIYAN
S/O MOHD. WAZIR
MAJOR
OCC. BUSINESS
RESIDENT OF GHODWADI
TQ. HAMNABAD
BIDAR DISTRICT
E) ZOHARA BEE
ALIAS HANIMA
W/O MOHD, WAZIR
MAJOR, OCC. HOUSEHOLD
RESIDENT OF GHODWADI
TQ. HAMNABAD
BIDAR DISTRICT
24
4. THE KARNATAKA BOARD OF
WAKFs, BY ITS
CHIEF EXECUTIVE OFFICER
NO.6, CUNNINGHM ROAD
BANGALORE-560 052.
... RESPONDENTS
(BY V/O DATED 01.02.2019 APPEAL ABATED AGAINST
R2 (A), R2 (C), & R2 (D)
(V/O DATED 18.03.2019 NOTICE AGAINST R2(B), R(E) TO
R2(G) & R3 (A) TO R3 (E) HELD SUFFICIENT)
THIS RSA FILED UNDER SECTION 100 CPC AGAINST
THE JUDGMENT AND DECREE DATED 16.4.2002 PASSED
IN R.A.NO.13/2000 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.), BASAVAKALYAN, CAMP AT HUMNABAD,
ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 25.5.2000 PASSED IN
O.S.NO.221/1970 ON THE FILE OF THE ADDL. CIVIL
JUDGE (JR.DN.), HUMNABAD AND ETC.,
THESE REGULAR SECOND APPEALS HAVING BEEN
HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR
"PRONOUNCEMENT OF JUDGMENT" THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
RSA No.639/2002 is filed by the plaintiffs challenging
the judgment and decree passed in R.A. No.13/2000,
dated 16.04.2002, passed by the Civil Judge (Senior
Division) Basavakalyan, Camp at : Humnabad (First
Appellate Court), which set-aside the judgment and decree
passed in O.S.No.221/1970, dated 25.05.2000, passed by
the Additional Civil Judge (Junior Division), Humnabad,
Bidar District (Trial Court), for declaration of right to
Tawaliath Dargah-E-Hazarath Syed Shaha Ismail Khadari
Ghodwadi Shareef, with perpetual injunction order.
2. RSA 640/2002 is filed by the plaintiffs
challenging the judgment and decree passed in
R.A.No.15/2000, by the court of Civil Judge (Senior
Division) Basavakalyan Camp, Humnabad (First Appellant
Court), which set-aside the judgment and decree passed in
O.S.No.221/1970, by the court of Additional Civil Judge
(Junior Division), Humnabad, Bidar District (Trial court),
for declaration of right to Tawaliath Dargah-E-Hazarath
Syed Shaha Ismail Khadari Ghodwadi Shareef, with
perpetual injunction order.
3. The said suit in O.S.221/1970 was decreed in
favour of the plaintiffs. Being aggrieved by the judgment
and decree passed by the Trial Court, the defendant Nos.1
to 3 have preferred R.A.No.13/2000. Defendant No.5-
Wakf Board has filed R.A.No.15/2000. The First Appellate
Court has delivered common judgment in both the first
appeals, reversing the judgment and decree passed by the
Trial Court. Therefore, the plaintiffs have preferred these
two appeals.
Brief facts of the case :
Case of Plaintiffs
4. The appellants herein are the plaintiffs before
the Trial Court and they have filed O.S.No.178/1960 in the
Court of Munsiff at Bhalki, seeking declaration that they
were the Mutawallis of the Dargah Hazarath Ismail Shaha
Khadri situated at Godwadi Shareef, Humnabad Ismail,
Bidar District (hereinafter called as 'Dargah' for the sake of
brevity). The said suit was transferred to the Court of
Principal Civil Judge and JMFC (Junior Division), Humnabad
and was numbered as O.S.No.221/1970.
5. There is a shrine of Hazarat Ismail Shaha
Khadri at Ghodwadi Shareef, to which thousands of
devotees crossing all caste and creed lines covered to pay
homage and offering prayers. There are more than five
hundred 'Khudamins' (Mutawallis) and this practice has
continued for over five centuries. It is stated that five
hundred 'Khudamins' are the Mutawallis of the Dargah and
are in possession of the Dargah and its properties and are
managing the same. It is stated that the appellants and
ancestral grantees have been performing services in
dargah like 'Urus', 'sanda' and other religious rites
pertaining to dargah as the Mutawallis of the dargah.
6. Further, the case of the plaintiffs (appellants)
is that previously the Government had taken the property
of the Dargah from the Khudamins-E-Dargah and later
released in 1347 (Fasli i.e. 1937 A.D.) which relates to +
589 i.e., 1936 A.D., through a panchanama drawn up by
the then Manager of Dargah ( appointment by the
Government) by order of the Tahasil and 'majalis-e-
paigan', dated 27th Behman 1937. After coming into
enforcement of The Wakf Act, 1954 (hereinafter referred
to as 'Act 1954' for brevity), the Khudamins, through their
representatives, applied to the Wakf Board, Hyderabad for
registration of the said dargah under Section 25 of the Act
1954, and their properties as Wakf properties of
Hyderabad under Section 25 of the Act 1954, for
registration of Dhargah and their properties as wakf
properties and also requested that Khudamins of Darga be
recognized be as Mutawallis.
were not Mutawallis or in possession or management or
services of the dargah. They have filed objections before
the State Wakf Board stating that they be declared as
Mutawallis of the Dargah. During the pendency of
proceedings before the Wakf Department, defendants
Nos.1 to 3 filed an application on 02.05.1958 stating that
during the last many centuries, they had not possessed
dargah property or performed any services and withdrew
their claim of Mutawalliship. The Regional Committee,
Muslim Awakf, Gulbarga, passed an order on 15.11.1960
stating that the objections of the Defendants did not have
any substance and accordingly rejected.
8. It is also further stated that the name of
Khudamins were not entered in the column of the
Tawaliath in the Muntakam, in view of Government
documents produced by the plaintiffs and in terms of
Section 3(f) of Act 1954. Further, it is stated that the
Chairman of the Regional Committee Muslim Aukaf,
Gulbarga even though could have entered the name of the
appellants in Muntakam of Mutawallis, but without doing
so, directed the parties to work out their remedies before
the competent Civil Court. Therefore, the appellants have
filed a suit on their representative capacity for seeking
declaration of right to Tawaliath Dargah along with the
relief of perpetual injunction.
Written Statement of Defendants:
9. Respondent Nos.1 to 3 filed written statement
on 15.01.1962 by contending that the appellants admitted
the existence of dargah and the Mashaikins and
Khudamins, but contended that the plaintiffs were only
Khudamins; means employees of respondents nos.1 to 3,
who were Mashaikins, Sajjadanasheen and Mutawallis of
the dargah and that the plaintiffs had no actual interest in
the service or property. Further, it is contended that the
appellants - plaintiffs are not Mutawallis, but they are
employees and their forefathers were employees of
respondent Nos.1 to 3 and were performing their duties as
per the instructions given by their forefathers of
respondents Nos.1 to 3 and thus appellants were not in
possession of Dargah and the properties and services are
not sanctioned in the name of the appellants.
10. Further, it is contended that the Dhargah and
its properties were taken over by the Government and
income was auctioned due to dispute between the parties
and properties were not restored in favour of the plaintiffs
absolutely till decision of the Civil Court. But the appellants
were permitted to perform the duties as employees who
cannot be termed as Mutawallis. Both the appellants and
respondents made an application for Mutawalliship and the
Chairman of Regional Committee Muslim Aukaf, Gulbarga
directed parties to take the decree of Tawaliath from the
Civil Court and that the defendants did not withdraw any
application. Therefore, it is contended that the plaintiffs
were Khudamins and are not Mutawallis and were not in
possession of the Dargah at any point of time and are
employees who were doing daily duties like offering pooja
and flowers to the deity. Therefore, submitted there is no
cause of action to file the suit and thus prays to dismiss
the suit.
11. In reply to the written statement filed by the
defendant Nos.1 to 3, the appellants have filed a rejoinder
explaining in detail how they are performing the work as
Mutawallis being Khudamins. It is stated that the
appellants are the Mutawallis and the Tawaliath of the
Dargah has been sanctioned in the name of father of
plaintiff No.9 reserving the rights of all Khudamins by the
Nizam-E-Court of Wards and the order of the inam may be
released in the name of the Dargah and the Tawaliath be
entered in the name of Shaik Bale. It is stated that the
Wakf Board recorded the appellants possession as
Khudamins over the Dargah and its properties through its
judgment passed by its Secretary, Muslim Wakf Board,
Hyderbad in Misc.No.191/2 of 1960 and the Regional
Committee has also accepted this by its order dated
15.11.1990. Further the Muslim Wakf Area Committee
issued a certificate dated 04.11.1960 that the plaintiff No.8
is rendering services to the Dargah.
12. The other defendants have also filed the
written statements contending the same version as that of
respondent Nos.1 and 3. Wakf Board is defendant No.5 in
the suit. Initially, the Wakf Board was defendant No.14
and later on deletion of defendant Nos.5 to 13 the rank of
the Wakf Board became as defendant No.5. Defendant
No.5 filed a written statement reiterating the contentions
of the defendants Nos.1 to 3. Further, the defendant No.5
- Wakf board contended that the appellants were only
Khudamins and employees of respondent Nos.1 to 3.
Further, stated that the appellants have no interest or
share. Further, contended that the appellants did not issue
notice under Section 56 of the Act 1954, and under Section
80 of CPC. Thus, prays to dismiss the suit.
13. The Trial Court on 07.04.1962 has framed as
many as fifteen issues and further on 07.02.1991 has
framed six additional issues, which reads as follows:
"(1) Whether the plaintiffs suit has been
properly valued and sufficient Court fee
paid and consequently is this court
competent to try this suit?
(2) Whether the date of cause of action is
correct and the plaintiffs Suit is within
time ?
(3) Whether the plaintiffs are entitled to sue
in the representative capacity as
khudamins and mutawallies ?
(4) Whether the plaintiffs alongwith others in
all five hundred are khudamins and
mutawallies of darga Hazarat Syed
Shaha Ismail Quadri, Ghodwadi Shareef,
and shall perform the services of the said
'darga' continuously being in possession
of the darga and its property alongwith
its management since the time of their
fore-fathers ?
(5) Whether the darga in dispute and its
property were released in favour of the
plaintiffs in the capacity of mutawallies of
the said darga in 1347 Fasli, through a
panchanama, drawn-up by the then
manager of the darga, appointed by the
government, by the order of the tahasil
and mazalis-e-paiga, dated 27th
Bahaman, 1347 Fasli ?
(6) Whether the defendants no.1 to 3
submitted a withdrawal application with
regard to muttwalliship on 2nd may, 1958
in the presence of the Muslim Awakf
department Gulbarga, admitting
themselves to be not in possession of the
darga property performing the services
of the darga in question in any capacity ?
If proved, what will be its effect on the
suit ?
(7) Whether the defendants no.1 to 3 are
mutawallies of darga in question and the
plaintiffs are their servants performing
the services of darga under their
supervision and the management ?
(8) Whether the fore-fathers of the plaintiffs
executed an agreement dated 10th
Saffar, 1121, Hizari, in fovour of the
fore-fathers of the defendants no.1 to 3,
and that according to the orders of the
Deshmukh and Deshpande of the
Paragana Bhalki, dated 5th Safar, 1136,
Hizari, whether the fore-fathers of the
plaintiffs were the employees of the fore-
fathers of the defendants no.1 to 3 ? If
proved, what will be its effect on the
suit?
(9) Whether as per the decision of
competent authority, the defendants
no.1 to 3 are entitled to ten annas share
in the whole income of darga and the
plaintiffs are entitled to get only six
annas share in the income ? If proved,
what will be its effect on the suit ?
(10) Whether in view of the Muslim Wakf Act,
1954, are the khudamins entitled to be
made mutawallies ?
(11) Whether the tawaliyat of the darga in
question has granted in the name of the
fore-fathers of the plaintiff no.6,
preserving the rights of all the
khudamins by nazim-e-court of wards of
the then governments? If proved, what
will be its effect on the suit ?
(12) Whether the Muslim Wakf Board
admitted the possession of the
khudamins over the darga in question
and its property through its judgment
which has been passed by the Secretary,
Muslim Wakf Board, Hyderabad, and also
whether the Regional Committee of the
Muslim Awakf, Gulbarga, admitted the
ancient possession of the plaintiffs over
the darga in question and their
continuous performance of services of
darga in its judgment dated 15.11.1960?
If proved, what will be its effect on the
suit ?
(13) Whether the Muslim Awakf committee,
Gulbarga, issued a certificate dated
04.11.1960, admitting the plaintiffs no.8
to be performing the services of the said
darga? If proved, what will be its effect
on the suit ?
(14) Whether the orders passed by the
regional committee, Muslim Awakf
Gulbarga, for taking the management of
the darga under the supervisions of the
District Awakf Committee. Bidar, dated
15.11.1960 is ultra vires, against the
provisions laid-down in the Muslim wakf
etc, 1954 ?
(15) To what relief are the plaintiffs entitled ?
Additional Issues:
(1) Whether the suit of the plaintiffs is
abated ?
(2) Whether the suit is bad for non-joinder of
parties ?
(3) Whether there operates an estopel
against the plaintiffs ?
(4) Whether Syed Aminoddin - defendeant
no.1 in O.S.No. 32 of 1345 Fasli with
other mashakins had received the
income of darga Hazarat Sayyed Ismail
Shaha Quadri, in the capacity of
'mashakins' as contended in para no.20
of additional written statement ?
(5) Whether the suit of the plaintiff is
maintainable in the present form ?
(6) What is the affect of dismissal of the suit
in O.S.No.32/1/1345 Fasli of Civil Judge
Court Moinabad Paiga, in the present
suit?"
The appellants have examined 7 witnesses as PW-1
- 7 and got marked documents Exhibit-P1 to P53. On
behalf of the respondent-defendants' witnesses were
examined as DW-1 to DW-5 and got marked documents at
Exhibit-D1 to D52.
14. The Trial Court after considering the evidence
has passed decree and declared that the plaintiffs have
right of Tawaliaths of Khudamins-E-Dargah, are the
employees of Dargah and restrained the respondents
herein from interfering with the plaintiff's possession and
management of the Dargah. Being aggrieved by the
judgment and decree passed by the Trial Court, defendant
Nos.1 to 3 have preferred R.A.No.13/2000 before the First
Appellate Court. The defendant No.5 wakf board has filed
R.A.No.15/2000.
15. The First Appellate Court has allowed both the
regular appeals and set-aside the judgment and decree
passed by the Trial Court. Being aggrieved by allowing of
the appeals and setting-aside of the judgment and decree,
the plaintiffs have filed the present Regular Second Appeal
inter-alia contending as described above by raising various
grounds that the First Appellate Court has erred in holding
that the suit against the Wakf Board and the members of
the area committee were not maintainable as noticed
under Section 57 of the Wakf Board Act, 1954 was not
issued prior to filing of the suit.
16. It is further ground urged that the suit was not
filed challenging any of the wakf property, but it was filed
seeking declaration of the status pursuance to the area
committee. Therefore, issuance of Notice under Section 56
of the Act 1954 was not at all warranted. Further, urged
the ground that the suit is filed by virtue of direction by
the Area Committee Wakf Board for working out the
remedy for seeking declaration of Mutawalliship through
competent Civil Court. Hence, this suit filed by the
appellant is very well maintainable. Further, urged the
ground that the Wakf Board is the State statutory body
and is expected to be neutral between the two parties who
are claiming Mutawalliship between the parties and
regarding seeking declaration of the Mutawalliship, the
Wakf Board does not have jurisdiction. Hence, prays to
allow the appeal by setting aside the judgment and decree
by the First Appellate Court.
17. In the present appeals, while admitting the
appeals on 03.09.2002, the following substantial questions
of law were framed:
"i) Whether, the lower appellate court is
justified in reversing the judgment and decree
passed by the Trial Court by holding that the
defendants are entitled for 10 anna share on
the offerings made to the Darga on the
contention of the defendants that they are
"MASHAKIN" & "SAJJADANASHEEN"?
ii) Whether the "Khadims" could be
considered to be Mutawallis as defined under
the Wakf Act?
18. Further, on 23.03.2021 during course of
arguments following substantial question of law was
framed:
"Whether, under the facts and circumstances
involved into the case, the judgment and
decree passed in earlier suit in
O.S.No.32/1/1345 fasly delivered by the
Munsif Court, Chitaguppa operates as
resjudicate over the issues involved in the
present case, thereby dibarring the plaintiff to
file the present suit for seeking declaratory
relief as prayed by them in the suit?"
19. Further, in continuation of arguments of appeal
on 30.03.2021, the learned counsel appearing for the
respondent-Wakf board had submitted that the Civil Court
without having jurisdiction has delivered the judgment and
decree. The competent authority for resolving the dispute
of Mutawallis of Dargah is Wakf Board. Therefore,
submitted that the judgment and decree passed by the
Trial Court is without having jurisdiction. Accordingly,
when the question arose of jurisdiction of the Civil Court to
pass judgment and decree and its very jurisdiction is
questioned, therefore on rival contention on jurisdiction,
the following substantial question of law is framed on
30.03.2021:
"Whether, under the facts and circumstances
of the case, the Civil Court has jurisdiction to
adjudicate the dispute regarding appointment
of Mutawalliship to a Dargah / Wakf Property,
where two groups / two persons are claiming
their right over appointment as Mutawallis in
the said Dargah / Wakf, and if the Civil Court
does not have jurisdiction in this regard, then
who is the competent authority to adjudicate
the dispute regarding appointment of
Mutawalliship?"
20. Heard arguments from both sides. Perused the
records along with relevant provisions of law enshrined
under the Wakf Act, 1954 and under the Waqf Act, 1995.
Answering to Substantial Question of Law framed on
30.03.2021:
Arguments on Jurisdiction of Civil Court:
21. The learned counsel appearing for respondent-
Wakf Board submitted that the suit filed by the appellant is
not at all maintainable as per Section 15(2)(g) and
Section 42 of the Act, 1954 and also as per Section 85 of
the Act, 1995. He submitted that resolving the dispute of
Mutawalliship is also pertaining to the Wakf Property and
the Tribunal constituted under Section 55(1) of the Act,
1954, is having jurisdiction and power to adjudicate the
dispute involved in the present case. Therefore, submitted
that the Civil Court does not have jurisdiction to deal with
case and therefore the judgment and decree passed by the
Trial Court is one without having jurisdiction. Hence, the
error committed by the Trial Court is of "error of
jurisdiction and hence in nullity and therefore even though
the First Appellate Court has not discussed on this point
but setting aside the judgment and decree passed by the
Trial Court is correct.
22. Further, submitted that the Tribunal is
constituted under Section (1) of Section 55 of the Act,
1954 (the dispute arose before enacting Waqf Act, 1995)
or before enacting Act, 1995 under sub-section (1), of
Section 83 having jurisdiction in relation to that area.
Therefore, submitted that the judgment and decree passed
by the Trial Court is nullity in the eye of law as having lack
of jurisdiction over the dispute. Therefore, submitted that
the suit filed by the appellant is not maintainable.
23. On the other hand, the learned counsel
appearing for the appellants submitted that the Civil Court
has jurisdiction to decide the dispute involved in the case
and accordingly the Trial Court has after considering all the
evidences, contentions urged before the Court has decreed
the suit, which is perfectly justifiable and correct one.
Further, submitted that where the dispute arose between
the plaintiff and the defendant, then upon the application
filed by the appellant, the Wakf Board Hyderabad has
directed the parties to work out their remedies before the
competent Civil Court and accordingly the appellants have
filed the suit before the Trial Court. Therefore, submitted
that the civil courts are having jurisdiction over the issue
of deciding Mutawalliship of the Dargah.
24. Further, submitted that the issue involved is
not relating to Wakf Property, but the issue involved is a
Mutawalliship of Dargah. Therefore, submitted that the
properties i.e., the dargah is a wakf property is not
disputed. But the only disputed thing is to act as
Mutawalliship in the Darga. This is a question before the
Civil Court and thus the civil court has jurisdiction to
decide the lis of Mutawalliship, which is rightly considered
by the Trial Court.
25. Further, submitted that regarding the dispute
of appointment of Mutawalliship of Dargah, the Tribunal
does not have jurisdiction and only the civil court has
jurisdiction. Therefore, submitted that the judgment and
decree of the Trial Court is perfectly justifiable and it is
wrongly set-aside by the First Appellate Court. Therefore,
prays to set-aside the judgment and decree passed by the
First Appellate Court by allowing the appeal.
26. Further, the learned counsel for the appellant
submitted as per Section 4 of the Act, 1954, there would
be primary survey of wakfs. As per Section 5 of the Act,
1954, there would be a publication of list of wakfs and as
per Section 6 of the Act, 1954 if dispute arises regarding
wakf, then what would be adjudication process.
27. Further, the learned counsel for the appellant
submitted that as per sub-section (5) of Section 7 of the
Waqf Act, 1995, the Tribunal does not have jurisdiction to
determine any matter which is the subject matter of any
suit or proceeding instituted or commenced in the Civil
Court before the commencement of the Act 1995.
Therefore, submitted in the present appeal, the suit is
instituted in the year 1960. Therefore, as per Sub-section
(5) of Section 7, the Tribunal constituted under the Act,
1995, does not have jurisdiction. But the suit proceeding
instituted before the Civil Court are saved. Hence,
submitted that the adjudication done by the civil court is
correct.
28. Further, the learned counsel for the appellant
submitted that even though as per Section 85 of the Waqf
Act, 1995, it ousts jurisdiction of the Civil Court but in
exclusion of the subject matter to any wakf property or
other matters which is covered under this Act to be
determined by the Tribunal. Therefore, submitted that in
the present case there is no dispute regarding wakf or
wakf property, but the dispute is regarding appointment to
Mutawallis to the dargah in question and as per Sub-
section (5) of Section 85 of the Waqf Act, 1995, the
proceedings initiated before the Civil Court along with the
appeal is saved. Therefore, submitted that the Civil Court
has jurisdiction and has rightly decreed the suit of the
plaintiff. Hence, submitted that the judgment and decree
passed by the Trial Court is perfectly justified and correct
one.
29. Further, the learned counsel appearing for the
appellant/plaintiff submitted on merits involved in the case
and submitted that the appellants being Khudamins and
also recognized as Mutawallis as per definition enshrined
under Section 3(f) of the Act, 1954, also recognized the
same as per Section 3(i) of the Act, 1995. Therefore,
submitted that the appellants being Khudamins are
entitled for Tawalist to Dargah-E-Hazarath Syed Shaha
Ismail Khadari Ghodwadi Shareef, and declare the
appellants are Mutawallis to the said Dargah by confirming
the judgment and decree passed by the Trial Court.
30. The suit is filed on 14.10.1960. Initially, the
suit is registered as O.S.No.178/1960, later it was re-
numbered as O.S.No.221/1970. The Wakf Act, 1954 (for
short the "Act, 1954") came into force on 15th January,
1955 in Hyderabad and Mysore and in other States.
Therefore, much prior to the institution of the suit in the
present case, the Act, 1954 came into force. The Act, 1954
is to provide for better administration and supervision of
wakfs. The Dharga in question is situated in Hyderabad
region at that time. Therefore, the Act, 1954, prevails over
the area, in which, the Dharga is situated and is governed
with effect from January, 1955. Therefore, I do not find
any merit in the contention of the learned counsel for the
appellant that the Act, 1954 was not in force when the suit
was instituted. Therefore, in Hyderabad and Mysore areas,
the Act, 1954, is applicable with effect from 15.01.1955.
Therefore, whatever the dispute regarding better
administration and supervision of Wakfs is governed by the
Act, 1954, which in the present case, there is no dispute
with the properties of Dharga are Wakfs property. The only
dispute is the parties in the present case is Mutawalliship.
For this, for the appointment of Mutawalli and recognition
of the right to perform worship to Dharga is governed by
the Act, 1954. Also the Waqf Act, 1995, was enacted by
Central Act No.43 of 1995 with effect from 22.11.1995.
The Act, 1954 is repealed as per Section 112 of the Act,
1995 with savings.
31. The provisions that are governed in the
present case are stated as below for the purpose of
interpretation on the question of jurisdiction:
Section 3(f) of Act, 1954 defines as follows:
(f) "mutawalli" means any person appointed
either verbally or under any deed or
instrument by which a wakf has been created
or by a competent authority to be the
mutawalli of a wakf and includes any [person
who is mutawalli of a wakf by virtue of any
custom or who is/Naib-mutuwalli, khadim,
mujawar, sajjadanashin, amin, or other person
appointed by a mutawalli to perform the duties
of a mutawalli and, save as otherwise provided
in this Act, [any person or Committee or
Corporation for the time being managing or
ad-ministering any wakf or wakf property:
Provided that no member of a Committee or
Corporation shall be deemed to be a mutawalli
unless such member is an office bearer of such
Committee or Corporation]."
Section 42 of Act, 1954 stipulates as follows:
42. Power to appoint mutawallis in certain
cases:-"
"When there is a vacancy in the office of the
mutawalli of wakf and there is no one to be
appointed under the terms of the deed of the
wakf, or where the right of any person to act
as mutawalli is disputed, the Board may
appoint any person to act as mutawalli for such
period and on such conditions as it may think
fit."
Section 9 of Act, 1954 stipulates as follows:
"9. Incorporation-(1) With effect from such
date as the State Government may, by
notification in the Official Gazette, appoint in
this behalf, there shall be established a Board
of Wakfs under such name as may be specified
in the notification."
Sub-Section 1 of Section 15 and clause (g) of Sub-section
2 of Section 15 of Act, 1954 stipulates as follows:
"15. Functions of the Board - (1) Subject to
any rules that may be made under this Act, the
[general superintendence of all wakfs in a
State in relation to all matters, except those
which are expressely required by this Act to be
dealt with by wakf commissioner shall vest] in
the Board established for the State; and it shall
be the duty of the Board so to exercise its
powers under this Act, as to ensure that the
wakfs under its superintendence are properly
maintained, controlled and administered and
the income thereof is duly applied to the
objects and for the purposes for which such
wakfs were created or intended:
Provided that in exercising its powers under
this Act in respect of any wakf the Board shall
act in conformity with the directions of the
wakf, the purposes of the wakf, and any usage
or custom of the wakf sanctioned by the
Muslim law.
[Explanation - For the removal of doubts it is
hereby declared that in this sub-section, wakf
includes a wakf in relation to which any
scheme has been made by any Court of law,
whether before or after the commencement of
the Wakf (Amendment) Act, 1984].
(2) Without prejudice to the generality of the
foregoing power, the functions of the Board
shall be -
(a) xxx
(b) xxx
(c) xxx
(d) xxx
(e) xxx
(f) xxx
(g) to appoint and remove mutawallis in
accordance with the provisions of this
Act;"
Section 43-A of the Act, 1954 stipulates as follows:
[43-A. Assumption of direct management
of certain wakfs by the Board - (1) Where no
suitable person is available for appointment as
a mutawalli of a wakf, or where the Board is
satisfied, for reasons to be recorded by it in
writing that the filling up of the vacancy in the
office of a mutawalli is prejudicial to the
interest of the wakf, the Board may, by
notification in the Official Gazette, assume
direct management of the wakf for such period
or periods, not exceeding five years in the
aggregate, as may be specified in the
notification.
(2) The State Government may, on its own
motion or on the application of any person
interested in the wakf, call for the records of
any case for the purpose of satisfying itself as
to the correctness, legality or propriety of the
notification issued by the Board under sub-
section (1) and pass such orders as it may
think fit and the orders so made by the State
Government shall be final and shall be
published in the manner specified in sub-
section (1).
(3) As soon as possible after the close of
every financial year, the Board shall send to
the State Government, a detailed report in
regard to every wakf under its direct
management, giving therein-
(a) the details of the income of the wakf for
the year immediately preceding the year
under report:
(b) the steps taken to improve the
management and income of the wakf,
(c) the period during which the wakf has
been under the direct management of
the Board and explaining the reasons as
to why it has not been possible to entrust
the management of the wakf to the
mutawalli or any committee of
management during the year: and
(d) such other matter as may be prescribed.
(4) The State Government shall examine the
report submitted to it under sub-section (3)
and, after such examination, issue such
directions or instructions to the Board as it
may think fit and the Board shall comply with
such instructions on receipt thereof]"
Sub-section 5 of Section 7 of Act, 1995 stipulates as
follows:
"(5) The Tribunal shall not have jurisdiction to
determine any matter which is the subject-
matter of any suit or proceeding instituted or
commenced in a Civil Court under sub-section
(1) of Section 6, before the commencement of
this Act or which is the subject-matter of any
appeal from the decree passed before such
commencement in any such suit or proceeding
or of any application for revision or review
arising out of such suit, proceeding or appeal,
as the case may be."
Section 85 of Act, 1995 stipulates as follows:
"Bar of jurisdiction of Civil Courts - Not suit
or other legal proceeding shall lie in any [Civil
Court, Revenue Court and any other authority]
in respect of any dispute, question or other
matter relating to any [waqf], [waqf] property
or other matter which is required by or under
this Act to be determined by a Tribunal."
32. The learned counsel for the respondent - wakf
board submitted that the Civil Court does not have
jurisdiction to decide the issue regarding appointment of
Tawaliath i.e., appointment of Mutawalli. The jurisdiction
for appointment of Mutawalli-Tawaliath in other words
appointment of Mutawalliship is vested with the Wakf
Board as per the provisions of the Act, 1954. The present
suit is filed for appointment of Tawaliathship to the
Dargah. Therefore, the Civil Court does not have
jurisdiction. Hence, submitted the present case is one
which is an 'error of jurisdiction' but not 'error in
jurisdiction'.
33. On the other hand, it is the rival contention of
the appellant that the Civil Court has jurisdiction to decide
the issue of appointment of Tawaliath and accordingly
decided. Hence, there is no either 'error of jurisdiction' but
'error in jurisdiction'.
34. The substantial question of law framed on
30.03.2021 is taken up for answering first, because it
touches upon the jurisdiction of the Civil Court as involved
in the present case regarding deciding the issue in case.
35. The appellants have filed suit for declaration
of right of Tawalist Dargah-E-Hazarath Syed Shaha Ismail
Khadari Ghodwadi Shareef means 'Mutawalliship' and for
perpetual injunction. The Tawaliath is of two types, one is,
by way of succession and another one is, by way of
appointment. Therefore, the present 'lis' is regarding
appointment of 'Mutawalli'. There is no dispute regarding
the Dargah is a wakf property, but the dispute involved in
the present case is only appointment of 'Mutawalliship' to
the said Dargah.
36. As discussed above Section 3(f) defines
'Mutawalli'. As the suit is filed on 14.12.1960, therefore,
the Act applicable as on the date of the institution of the
suit is 'Act 1954'. By the time of institution of suit 'Act
1954' came into force. The Act, 1954 in Hyderabad Region
and also in part of Mysuru came into force on 15.01.1955.
In the present appeal it is undisputed fact that the Dargah
is situated in the erst-while Hyderabad Province.
37. Section 55 of the Act 1954 deals with
appointment, powers and jurisdiction of the Tribunals. The
Tribunal is constituted for determination of any dispute,
the question or other matters relating to wakf or wakf
property, which such Tribunal is required to determine
under the Act, 1954 or any Rule or order made
thereunder. Therefore, the words 'dispute' 'enshrined
under Section 55 of the Act', is not only meant that the
Tribunal shall determine on the question of wakf or wakf
property but also in regard to any dispute. In the present
case, the lis is regarding appointment of 'Mutawalli' to the
dargah.
38. But regarding the appointment of 'Mutawalli', a
more specific provision is made in Section 42 of Act 1954.
As per Section 42 of the Act, 1954 when there is a vacancy
in the office of the 'Mutawalli' of wakf and there is no one
to be appointed under the deed of wakf and where there is
right of person to act as 'Mutawalli' is disputed, it is the
Board that may appoint any person to act as 'Mutawalli'.
The 'Board' is defined in section 3(c) of the Act 1954. That
'Board' means Board of Wakfs established under sub-
section (1-A) of Section 9 of 1954 Act. Therefore, the
Board has power to appoint Mutawalli under the
circumstances enumerated under Section 42 of Act, 1954.
Herein in the present case as per Section 42 the third limb
of the Section is applicable in the present case as there is
dispute between the appellants and the respondents
regarding the appointment of Mutawalli to the Dargah. This
appointment of Mutawalli to the Dargah is disputed.
Therefore as per Section 42 of the Act, 1954 it is the Board
which is having power of appointment of Mutawalli to
Dargah.
39. As per Section 15 of the Act 1954, there are
various functions which are conferred on the Board. As per
clause (g) of sub section (2) of Section 15 the function of
the board is to appoint Mutawalli or remove Mutawalli in
accordance with the provision of the Act, 1954. Therefore,
where the Board is constituted as per Section 9 of the Act,
then the functions of the Board are defined under Section
15 of the Act, 1954; when Section 42 and Section 15(2)(g)
of Act 1954 read conjointly then it is the Board to appoint
Mutawalli to darga. Therefore, it creates an implied bar on
the Civil Court to decide the issue regarding Mutawalli.
40. As per Section 9 of the Code of Civil Procedure,
1908 (for short 'CPC' for brevity') the institution of suit is
barred in civil court of filing suit where there is an express
or implied bar. Therefore, under the provisions of the Act,
1954 when power is conferred on Board to appoint
Mutawalli and considering its functions it creates implied
bar to institute a suit in civil court for deciding the
appointment of issue of Mutawalli. Therefore, the Civil
Court does not have jurisdiction to decide the issue of
appointment of Mutawalli to Dargah.
41. Also as per Section 43 of Act 1954 creates
power on the Board for assumption of direct management
of certain wakfs by the Board. As per this provisions if a
suitable person is not available for appointment of
Mutawalli of Wakf then, the Board upon its specification
assume direct management of the wakf for such period as
enumerated therein until suitable person is made available
for appointment of Mutawalli to the wakf. Therefore upon
conjointly reading of the provisions as discussed above, it
is the Board having power to decide the issue regarding
appointment of Mutawalli. Therefore, in the present case
the institution of suit for 'Tawaliath' to dargah and decision
delivered by the Civil Court is amounting to 'error of
jurisdiction' and more specifically judgment and decree of
civil court is in nullity.
42. Since the suit is instituted in the year 1960 as
discussed above, the provisions of the Act 1954 are
applicable in the present case. The Act, 1954 is repealed
and new Act namely, Waqf Act, 1995 came into force.
Section 112 of the Act, 1995 defines as follows:
"Repeal and savings - (1) The Wakf Act, 1954 (29 of
1954) and the Wakf (Amendment) Act, 1984 (69 of
1984) are hereby repealed.
(2) Notwithstanding such repeal, anything done or
any action taken under the said Acts shall be
deemed to have been done or taken under the
corresponding provisions of this Act.
(3) If, immediately before the commencement of
this Act, in any State, there is in force in that
State, any law which corresponds to this Act
that corresponding law shall stand repealed:
Provided that such repeal shall not affect the
previous operation of that corresponding law, and
subject thereto, anything done or any action taken in
the exercise of any power conferred by or under the
corresponding law shall be deemed to have been
done or taken in the exercise of the powers
conferred by or under this Act as if this Act was in
force on the day on which such things were done or
action was taken."
43. As per this repeal notwithstanding such repeal,
anything done or any action taken under the said Acts
(Act, 1954) shall be deemed to have been done or taken
under the corresponding provisions of this Act (Act, 1995)
Therefore, Section 85 of the Act, 1995 expressly bars
jurisdiction of civil court in respect of any dispute, question
or other matter relating to any wakf, wakf property or
other matters relating to any wakf, wakf property or other
matters which is required to be considered by the Tribunal.
44. The submissions of the learned counsel for the
appellant that as per Section 85 of the Act 1995, the
proceedings are saved, cannot be accepted for the reason
that the judgment and decree passed by the civil court in
the present case are in nullity for the reason that the civil
court does not have jurisdiction to decide the dispute of
Mutawalliship, as the power and function is expressly
conferred on the Wakf Board as stated supra and under
the provisions of the 1954 Act, 'Board' is constituted and
Board has authority to appoint or remove Mutawallis.
Therefore, when the judgment and decree passed by the
Civil Court itself are in nullity, for want of jurisdiction,
therefore, just because the appeal proceedings are
pending during enactment of Waqf Act, 1995 cannot be
saved. Therefore, the saving clause is not applicable in the
present case.
45. Even though there is no such express bar in
the Act 1954 but for the aforesaid discussion there was
implied bar on the civil court for entertaining any dispute
regarding wakf property or any other dispute. As discussed
supra upon conjoint reading of Section 42 and Section
15(2)(g) of Act 1954, there was implied bar under the Act,
1954 on the civil court to try the dispute.
46. Therefore there is merit found in the
arguments canvassed by the learned counsel for the
respondent - Wakf Board. Therefore, the present case is
one that the jurisdiction exercised by the civil court is an
'error of jurisdiction' but not merely an 'error in
jurisdiction' to consider the case on its merits. Therefore
where there is an error of jurisdiction, it means, the civil
court ought not to have entertained the suit but went on
deciding the suit without having jurisdiction. Therefore, the
substantial question of law framed on 30.03.2021 is
answered that the civil court had no jurisdiction to
adjudicate the dispute regarding appointment of
Mutawalliship of Dargah under the Act 1954, for the reason
of implied bar as stated supra.
47. Further, the said substantial question of law is
answered that the Wakf Board is competent authority to
adjudicate the dispute regarding appointment of
Mutawalliship as per Act 1954. Since the Act 1954 is
repealed and in its place Act 1995 has came into force
then, the Tribunal constituted under Section 85 of the
1995 Act are the competent authority to determine the
issue of appointment of Mutawalli to dargah. Accordingly,
the substantial question of law framed on 30.03.2021 is
answered.
48. Since for the aforesaid discussion it is held that
determining the suit by the civil court is itself an error of
jurisdiction, it means without having any jurisdiction,
therefore, considering the other substantial question of law
on merits does not arise since those touches upon the
considering the case on merits. Therefore the parties are
directed to work out their remedy before the competent
authority / forum / board for determination of their right
as involved in the present case. It is expressly made clear
that while discussing above and answering the above
substantial question of law, this court is constrained not to
express any opinion on merits involved in the case. Simply
while answering the above substantial question of law, it is
stated that the civil court does not have jurisdiction to
determine the issue regarding Mutawalliship.
49. Therefore, for the aforesaid discussion it is held
that the appeal filed by the appellants are liable to be
dismissed. However, liberty is reserved to work out their
remedy regarding the issue involved in the present case
before the competent authority/forum/board/committee as
per law. Therefore, consideration of the other substantial
question of law which touches the merits of the case
accordingly they are not taken up for consideration as the
said aspect is to be considered by the other competent
authority / forum/board/committee.
50. Further, it is made clear that whatever
observations are made by the Trial Court and by the first
appellate court on merits shall not be influenced upon the
issue to be determined by the Tribunal
/committee/board/forum authority and the merits involved
in this case are left open for consideration. Accordingly, I
proceed to pass the following order:
ORDER
i. The appeals in R.S.A.No.640 OF 2002 and
R.S.A.No.639 OF 2002 are hereby dismissed.
ii. The impugned judgment and decree passed by
both the courts below are hereby declared as
nullity, as the Civil Courts do not have
jurisdiction.
iii. It is held that the Civil Court does not have
jurisdiction to determine the issue of appointment
of Mutawalliship.
iv. The parties are given liberty to work out their
remedy as per the issue involved in the present
case before the appropriate committee/forum/
board/Tribunal as discussed above.
No order as to costs.
Sd/-
JUDGE
JJ/PB
