9. It was stated when plaintiff contends as per Gazette
owner under law. He was manager or caretaker of Jamia Masjid
and its properties. As such, he had no power to alienate them
without prior permission. It was stated, publication of Gazette
implied notice to entire public. It was submitted, when suit
Waqf Act. It was stated, after enactment of Waqf Act, survey of
Revenue of State Government. Based on said independent
report, Board had published Official Gazette. Even said list had
attained finality under Section 6 (1) of Act. On above grounds,
10. Based on pleadings, tribunal framed following
2) Whether the Plaintiff proves that the
Gazette Notification
No.KTW/11/ASR/75/14248 dated 18/
23-8-1975 published on 27.1.1977 is null
and void and not binding on him?
NC: 2025:KHC-D:38
3) Whether the Plaintiff proves alleged
interference by the Defendants in respect
of the suit schedule properties?
4) Whether the Deft. No.1 proves that the
suit filed by the Plaintiff is barred by Law
of Limitation as per Sections 6 and 7 of
Waqf Act 1995?
5) Whether the Plaintiff is entitled for the
reliefs as prayed for?
6) What order or decree?
11. To substantiate his case, plaintiff examined himself
and another as PW1 and PW2 and got marked Exhibits P.1 to
P.36. In rebuttal, official of Board was examined as DW.1 and
Exs.D.1 to D.5 got marked.
12. On consideration, Tribunal answered issues no.1, 2
and 5 in negative, issue no.3 as not arising for consideration,
issue no.4 in affirmative and issue no.6 by dismissing suit.
Aggrieved thereby, this Revision Petition is filed.
13. Sri Jaykumar S. Patil, learned Senior Counsel
appearing for Sri FV Patil, Advocate for plaintiff submitted
impugned order was passed by tribunal without appreciating
material on record. Observation that merely on basis of
revenue records, title of immovable property cannot be proved,
was erroneous. It was submitted, tribunal relied on principle of
NC: 2025:KHC-D:38
law that title follows possession, whereas plaintiff's claim was
based on RTC extracts and tax receipts which were not title
documents. It also observed deposition of PWs.1 and 2, would
not establish plaintiff's possession. It was submitted, while
answering issue no.4, tribunal observed, aggrieved person had
to file suit within one year from date of publication of Gazette.
And since Gazette was published on 27.01.1977, which in view
of presumption under Section 81 of Indian Evidence Act was
final under Sections 6 and 7 of Act, suit was to be filed within
one year from notification, to hold suit was barred by limitation.
It was submitted, said observations/findings were contrary to
law.
14. It was submitted, to establish flow of title from
propositus Syed Gouse alias Nawab Pasha Kazi to plaintiff,
Exs.P.1 to P.23 - mutation records from 1942 to 1976 were
produced. Further, as per Ex.P.24 - DC approved conversion of
land use on 13.04.2013 and as per Ex.P.25 - on 18.07.2013,
Town Municipality, Navalgund, approved layout plan. Above
records would establish plaintiff being in settled possession of
suit properties. Despite same, only with ulterior motive
defendants addressed letter dated 07.08.2014 to DC claiming
suit properties as Waqf properties. It was submitted, as per
NC: 2025:KHC-D:38
direction of DC, Tahsildar held spot inspection in June, 2015
and submitted Ex.P.27 - Report along with Gazette, stating that
plaintiff was in possession of suit properties. Apart from above,
plaintiff had filed I.A.no.2/2020 under Order XLI Rule 27 of CPC
for production of additional documents, namely mutation
extracts dated 15.01.1934, 15.09.1942, 13.10.1954,
29.04.1958, 17.10.1976 and 19.10.1981.
15. It was submitted, document no.1 - mutation extract
no.8986 would indicate durasti in respect of Pot Hissa no.12 on
19.10.1981 and assignment of new survey numbers and entry
of name of Syed Gouse Babajan Kazi in respect of
Sy.no.151/1+2+3/1 measuring 6 Acres 28 guntas; Document
no.2 - MR no.8445 dated 17.10.1976 for mutation of name of
Syed Gouse urf Nawab Pasha son of Syed Gouse, as per
statement; Document no.3 - MR no.1582 referring to order
dated 06.07.1968 for preparation of fresh diatri;
Document no.4 - MR no.6536 for entry of name of legal
representatives of Sha Abdul Azeez Khadir Sha Kazi; Document
no.5 - MR no.6110 order dated 13.10.1954 for deletion of all
entries in view of abolition of Inams and for entry of name of
Government ; Document no.6 - MR no.4178 recording death of
Syed Gouse Sha Khadir Sha dated 15.09.1942 and order dated
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29.07.1942 for entry of name of Babajan Syed Gouse Sha Kazi
as per possession and MR no.8294 Pot Hissa order dated
15.01.1934 showing name of Syed Gouse Sab Kazi at sl.no.7.
It was submitted, documents produced along with application
were certified extracts of official records. Relying on ratio in Sri
Raghavendra Swamy Mutt v. Uttaradi Mutt reported in
2017 SCC OnLine Kar. 3553, prayed for allowing
IA.no.1/2020. Thus, suit properties were absolute properties
inherited by plaintiff and he was in possession and enjoyment
of same and there could be no divesting of title or possession
except in accordance with law.
16. It was submitted, Hon'ble Supreme Court in case of
Karnataka Waqf Board v. State of Karnataka and Others
reported in AIR 2003 SC 2467 had held unless procedure
contemplated under Sections 4 and 5 of WAQF Act was followed
i.e. due notice to owners of lands, no property would become
Waqf property. Relying on decisions in The Board of Muslim
Waqfs, Rajasthan Vs Radha Kishan and Others reported in
AIR 1979 SC 289 and The Karnataka Wakf Board Vs State
of Karnataka reported in AIR 1996 Karnataka 55, it was
submitted period of limitation prescribed in Section 6 (1) of
WAQF Act 1954, would apply only to disputes between Board,
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Mutavalli and any person interested in Waqf and would not
cover third party claiming independent right over property. On
above grounds, learned counsel sought for allowing Revision
petition.
17. On other hand, Sri DL Ladkhan learned counsel for
defendant no.1 opposed petition. It was submitted on
18/23.08.1975, Ex.D2 - Gazette was issued under Section 5 of
Waqf Act, 1954. In case of dispute, proviso to Section 6 (1)
provides for filing of suit within one year from date of gazette.
It was submitted since, Gazette was published on 27.01.1977,
suit filed on 24.07.2017 was barred by time.
18. It was submitted, even Section 6 (1) of Act, which
came into force from 01.01.1996 also provided same period of
limitation. Even under above provision, suit was barred by
time.
19. It was further submitted, plaintiff's father himself
had submitted particulars of Waqf, to competent authority
under Waqf Act. Hence, plaintiff was estopped from contending
lack of knowledge of Gazette and suit was hit by principle of
estoppel under Section 115 of Indian Evidence Act, 1872. It
was submitted, plaintiff had not sought 'declaration of
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particulars of Waqf' - Ex.D3 as illegal. Such declaration attracts
statutory presumption. It was submitted when plaintiff's father
claimed Mutawalliship of Waqf Institution, his son cannot claim
its properties as own property.
20. It was submitted, lands notified in Gazette i.e.
Sy.no. 251 was assigned new Sy.no.150/1+2+3/1. Similarly,
Sy.no.252 was assigned Sy.no.151/1+2+3/1, which can be
noted from MR no.8986, produced along with memo dated 27-
06-2024. It was submitted, in Ex.D-5 list of properties of Waqf
Institutions, lands at Sl.nos.18 to 23 were suit properties and
mentioned in Ex.D2 - Gazette.
21. It was submitted, in cross-examination, plaintiff
admitted he was unaware when and how suit properties were
granted to his grandfather and there were no documents other
than RTCs. It was submitted, even additional evidence was
mutation entries and not documents of title. Hence, plaintiff
failed to substantiate his case. It was submitted while
dismissing suit as barred by limitation, tribunal relied on recital
in Ex.P28 i.e. "As per Waqf Act, they will submit name of
Mutawalli within 7 days", to impute knowledge, apart from
Ex.D4 -panchayadast signed by more than 23 panchas. Thus
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inclusion of suit properties as Waqf properties was within
knowledge of plaintiff's father, who did not challenge during his
life time.
22. It was submitted, cause of action also accrued when
Waqf Board addressed letter dated 07.08.2014 to DC for
securing properties of Jamia Masjid, Navalgund. Further, when
Tahsildar, held inspection in 2015, plaintiff had not even
whispered about ownership of suit properties. It was submitted,
order no.LNA/CR/10/2013-14 dated 13.08.2013 for conversion
of land use was obtained by suppression and hence illegal.
Therefore, there were no good grounds to allow application for
additional evidence or for interfering with impugned judgment.
On said grounds sought dismissal.
23. Heard learned counsel, perused impugned order
and record. Defendant no.2 has remained ex-parte.
24. From above, it is seen plaintiff is questioning
dismissal of his suit filed under Section 6 of Act, for declaration
of plaintiff as absolute owner of suit properties; Gazette as null
and void / not binding and for permanent injunction etc.
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25. It is seen suit is dismissed mainly on following
grounds, plaintiff failing to establish his title and possession
over suit properties, illegality of Gazette and suit being barred
by limitation. Main grounds on challenge are reasoning of
tribunal that revenue records would not be sufficient to
establish title was erroneous, presumption about knowledge
was also erroneous, finding about legality of Gazette even when
defendants failed to establish due compliance with Sections 4
and 5 of Act was illegal. While, defendants support findings of
tribunal. Hence, point that arises for consideration is:
"Whether impugned order passed by Tribunal
calls for interference?"
26. Admittedly, revision petition is filed under poviso to
Section 83 (9) of Act. In Kiran Devi v. Bihar State Sunni
Wakf Board, reported in (2021) 15 SCC 15, Hon'ble Supreme
Court clarified about limits of jurisdiction of High Court under
said provision as follows:
"22. Therefore, when a petition is filed against an
order of the Wakf Tribunal before the High Court,
the High Court exercises the jurisdiction under
Article 227 of the Constitution of India. Therefore,
it is wholly immaterial that the petition was titled
as a writ petition. It may be noticed that in certain
High Courts, petition under Article 227 is titled as
writ petition, in certain other High Courts as
revision petition and in certain others as a
miscellaneous petition. However, keeping in view
the nature of the order passed, more particularly
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NC: 2025:KHC-D:38
in the light of proviso to sub-section (9) of Section
83 of the Act, the High Court exercised jurisdiction
only under the Act. The jurisdiction of the High
Court is restricted to only examine the
correctness, legality or propriety of the
findings recorded by the Wakf Tribunal. The
High Court in exercise of the jurisdiction
conferred under proviso to sub-section (9) of
Section 83 of the Act does not act as the
appellate court."
(emphasis supplied)
27. Therefore, this Court cannot act as appellate Court,
and only examine correctness, legality or propriety of findings
of tribunal.
28. While passing impugned order, Tribunal took up
issues no.1 to 3 together. It took note of pleading, prayer,
oral/documentary evidence and argument addressed by parties
in suit. After noting contents of exhibits marked by plaintiff, it
proceeded to test claim of plaintiff as donee of suit properties
under oral gift. It also referred to admission by PW.1 that he
does not know when and how his grandfather got suit
properties and there were no documents other than RoRs.
Thereafter, referring to decisions in State of H.P. v. Keshav
Ram, reported in 1996 (11) SCC 257; Union of India v.
Vasavi Coop. Housing Society Ltd., reported in 2014 (2)
SCC 269; decisions of this Court in Boramma v. Srinivasa,
reported in 2009 SCC OnLine Kar 10 and Mohd. Yunus v.
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NC: 2025:KHC-D:38
Mahboob Bi, reported in 2009 SCC OnLine Kar 11, it held
revenue records cannot form basis for declaration of title. On
said reasoning, it concluded plaintiff failed to establish how his
grandfather became owner of suit properties.
29. On careful perusal, it is seen, law laid down in
above decisions is that there cannot be a declaration of title
based only on entries in revenue records. In Keshav Ram's
case (supra) sole document on which plaintiff was relying to
establish title was an order of Assistant Settlement Officer,
(which was not found in record). In Vasavi Coop. Housing
Society Ltd.'s case (supra), it was held :
"24. We are of the view that even if the
entries in the record-of-rights carry
evidentiary value, that itself would not confer
any title on the plaintiff of the suit land in
question. Ext. X-1 is Classer Register of 1347
Fasli which according to the trial court, speaks of
the ownership of the plaintiff's vendor's property.
We are of the view that these entries, as such,
would not confer any title. The plaintiffs have to
show, independent of those entries, that the
plaintiff's predecessors had title over the
property in question and it is that property
which they have purchased. The only document
that has been produced before the court was the
registered family settlement and partition deed
dated 11-12-1939 of their predecessor-in-interest,
wherein, admittedly, the suit land in question has
not been mentioned."
30. In instant case, basis for plaintiff's claim of title is
that suit properties were granted as Inam lands to his
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NC: 2025:KHC-D:38
grandfather in year 1929. Plaintiff claimed to be in settled
possession of suit properties. Plaintiff asserted about revenue
entries consistently reflecting name of his grandfather, father
and plaintiff from year 1929 to 2017 i.e. nearly 90 years.
Documentary evidence i.e. Exs.P1 to P23 - RoRs from year
1929-30 to 2016-17, supported said claim. In cross-
examination of plaintiff as PW-1, however, it elicited admission
that Jumma Masjid in Navalgund was very old, that his father
was its Mutawalli and his name was shown in Gazette. PW-1
also admitted, he was unaware when and how his grandfather
got suit properties and except RoRs, he had no other
documents.
31. But, it is seen, defendant no.1 merely denied
plaintiff's assertion about entries in revenue records and did not
allege same to be illegal. On other hand, it failed to plead or
offer explanation, why its name was not got entered in revenue
records after issuance of Gazette.
32. It is also seen that, plaintiff seconded his deposition
by examining an independent witness as PW.2, who deposed
that plaintiff was owner in possession of suit properties and
that he had supervised cultivation of suit properties in absence
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NC: 2025:KHC-D:38
of plaintiff and also that he had helped plaintiff in obtaining
order of conversion from DC and in obtaining permissions for
formation of layout. During cross-examination of PW-2, it was
only elicited that he did not produce any document to show
that he held lands in Yamanur. It is seen, there was no cross-
examination to discredit assertion about plaintiff being in
possession and exercising ownership rights by obtaining
conversion and approval of layout plan.
33. To corroborate claim about exercise of ownership
rights over suit properties, plaintiff produced Ex.P24 - order
passed by DC for conversion of land use to residential purpose
followed by Exs.P25 and P26 - approval of layout plan by
Navalgund Town Municipality. Plaintiff also produced tax paid
receipts - Ex.P32 for year 2015-16. Only cross-examination in
this regard is suggestion that same were illegal in view of
Gazette, which was denied.
34. It is seen merely on ground that order of grant was
not produced and PW-1 was unable to provide particulars of
grant, consistent entries in revenue records for nearly 90 years
cannot be negated in absence of explanation by defendant no.1
about non-entry of its name even after lapse of more than 40
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NC: 2025:KHC-D:38
years. Insofar as oral gift to plaintiff from his father also, there
is mere denial, without establishing failure to prove gift would
be fatal to plaintiff maintaining suit. Especially when plaintiff
being in line of succession is not in dispute. Therefore,
reasoning of Tribunal that failure to establish grant in favour of
his grandfather would non-suit plaintiff would be contrary to
law.
35. While examining challenge against Gazette, despite
referring to decisions relied by plaintiff i.e. Radhakishan and
Anr. v. State of Rajasthan, reported in AIR 1967 Raj. 1 and
Madanuri Sri Rama Chandra Murthy v. Syed Jalal, reported
in 2017 (13) SCC 174, Tribunal relied on decision of this
Court in Usman Beig and Anr. v. Secretary, Karnataka
Board of Wakfs and Ors., (RSA.no.474/1999 disposed of on
17.10.2006); Gulisthan Shadi Mahal Trust v. Karnataka
Board of Wakfs and Ors., reported in ILR 2002 Kar. 2592
and Karnataka Board of Wakf, Bangalore v. State of
Karnataka and Ors., reported in 2000 (3) KLJ 602, to
conclude Gazette Notification was conclusive proof that
properties were Waqf properties. But, in Gulisthan's case
(supra), it is held:
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NC: 2025:KHC-D:38
"15. ......The failure of such a person to institute a
suit in a Civil Court of a competent jurisdiction for
decision of such question, within a period of one
year as provided for under sub-section (1) of
Section 6 of the Act does not make this inclusion
of such property in the list of wakfs published by
the Board under sub-section (2) of Section 5 of
the Act final and conclusive under sub-section (4)
of Section 6 of the Act. ......"
36. Therefore, it would be incumbent on defendant no.1
- Board to establish that notification under Section 5 was
issued in compliance with Section 4 of Act. Strangely, no
evidence was led by defendants in this regard. Therefore,
finding of Tribunal that issuance of Gazette was conclusive
proof about existence of Waqf would also be contrary to law.
37. It is seen plaintiff also sought relief of permanent
injunction. Therefore, plaintiff would be required to establish
interference even if issue no.1 is held in his favour. In this
regard, plaintiff has clearly averred plaintiff being in settled
possession and defendants seeking to interfere with possession
when they addressed correspondence to DC. In written
statement, defendant no.1 admitted to addressing
correspondence to DC to safeguard Jamia (Jumma) Masjid
(Sunni) of Navalgund and to prevent plaintiff from forming
layout and selling plots. However, Tribunal has held issue no.3
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NC: 2025:KHC-D:38
as not arising for consideration, which would be contrary to
material on record.
38. Insofar as point no.4, Tribunal observed Sections 6
and 7 of Act, require any aggrieved person to file suit within
one year from date of publication. It observed Section 81 of
Indian Evidence Act, availed presumption about genuineness of
publication. It also held publication in Official Gazette was
notice to general public and plaintiff could not deny knowledge.
Based on above, it held suit filed beyond one year of
publication of Gazette on 27.01.1977 as barred by limitation.
While arriving at said finding it relied on decisions in Gulisthan
and Karnataka Board of Wakf cases (supra). It is seen
decision in Gulisthan's case (supra) was rendered on
16.01.2002 by referring to ratio in Karnataka Board of
Wakfs v. Hazrath Attulla Shah Dhargah, reported in 1992
SCC OnLine Kar 20, wherein interpreting words any person
interested therein, occurring in proviso to Section 6 (1) of Act
as it then was, held:
"8. The Supreme Court held that the word 'therein'
refers to the Wakf and not to Wakf property (see
paragraph 33 quoted above). What we may
consider, therefore, is whether the second and
third respondents are persons interested in the
Wakf. By reason of Section 3(h) a person is
interested in a Wakf if he has a right to worship or
to perform any religious rite in a mosque, idgah,
imambara, dargah, khangah, maqhara, graveyard
- 22 -
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or in any religious or charitable institution under
the Wakf. Every person who professes Islam has a
right to worship or to perform any religious rite in
a mosque, idgah, imambara, dargah, khangah,
maqbara, graveyard or any other religious
institution connected with the Wakf or to
participate in any religious or charitable institution
under the Wakf. It is not the case of the
second or third respondent that they are not
Muslims or are not so entitled. It must,
therefore, be held that, upon a plain reading
of the relevant provisions of the Wakf Act,
that the second and third respondents are
persons interested in the Wakf and to them
the special period of limitation prescribed by
the first proviso to Section 6(1) is
applicable."
(emphasis supplied)
39. Distinction sought to be made between persons
interested in Waqf and persons interested in Waqf property was
in fact turned down. Therefore, in case of Muslims, by virtue of
Section 3(k) of Act, period of limitation prescribed for filing suit
would be one prescribed in Section 6(1) of Act. At this stage, it
would be appropriate to refer to yet another aspect. After
matter was heard and reserved for judgment, learned Senior
Counsel for petitioner filed a memo producing decision in case
of S.M. Kotraiah v. Karnataka State Board of Wakf and
Ors., (W.P.no.103351/2022 and connected case disposed of on
26.07.2024), stating that same would be relevant and clinch
controversy in favour of plaintiff.
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40. Said decision relies on ratio laid down by Division
Bench in Karnataka State Board of Wakfs and Anr. v.
State of Karnataka and Ors., in W.A.no.5591/2011 and
connected matter disposed of on 05.11.2012. It was
contended, ratio laid down by Division Bench that provisions of
Act would not apply in case of inam lands. However, it is seen,
provisions of Act were amended by Act no.27 of 2013 on
20.09.2013, inserting Section 108A as follows:
"108A. Act to have overriding effect:-
The provisions of this Act shall have overriding
effect notwithstanding anything inconsistent
therewith contained in any other law for the time
being imposed or in any instrument having effect
by virtue of any law other than this Act."
41. Said amendment also substituted words "any
person interested therein" in Section 6 (1) of Act with following
words namely "any person aggrieved". Indeed while there
would be no dispute about laying of said proposition by Division
Bench, it is seen, absence of any provision in Act providing
overriding effect to provisions of Act over other laws. With
insertion of Section 108A into Act, said ratio would stand water
down. Since decision in S.M. Kotraiah's case (supra), rendered
on 26.07.2024 is without taking note of relevant statutory
provision, same would be per in curiam and would not lend any
assistance to plaintiff.
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42. With insertion of words any aggrieved persons in
Section 6 (1) of Act, different period of limitation for filing suit
in case of non-Muslims and persons not interested in
Waqf/Waqf property would cease. After amendment by Act
no.27 of 2013, period of limitation stipulated in Section 6 (1) of
Act would apply to all aggrieved persons. Admittedly, suit is
filed beyond period of one year from date of publication of
Gazette and would therefore be barred by limitation.
43. It is seen, plaintiff has filed I.A.no.2/2020 for
permission to lead additional evidence by way of production of
documents namely mutation extracts dated 15.01.1934,
15.09.1942, 13.10.1954, 29.04.1958, 17.10.1976 and
19.10.1981. Document no.1 is MR no.8986 mentioning durasti
of Pot Hissa no.12 on 19.10.1981 and assignment of new
survey numbers and entry of name of Syed Gouse Babajan Kazi
in respect of Sy.no.151/1+2+3/1 measuring 6 Acres 28 guntas.
Document no.2 is MR no.8445 dated 17.10.1976 for mutation
of name of Syed Gouse urf Nawab Pasha son of Syed Gouse, as
per statement; Document no.3 is MR no.1582 for preparation
of fresh diatri; Document no.4 is MR no.6536 for entering
names of LRs of Sha Abdul Azeez Khadir Sha Kazi; Document
no.5 is MR no.6110 mentions order dated 13.10.1954 showing
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vesting of land with State in view of abolition of Inams and for
deletion of all other entries; Document no.6 is MR no.4178
recording death of Syed Gouse Sha Khadir Sha dated
15.09.1942 and order dated 29.07.1942 for entering name of
Babajan Syed Gouse Sha Kazi as per possession and MR
no.8294 Pot Hissa order dated 15.01.1934 showing name of
Syed Gouse Sab Kazi at Sl.no.7.
44. Insofar as consideration of an application for
additional evidence filed under Order XLI Rule 27 of CPC,
Hon'ble Supreme Court in case of Sanjay Kumar Singh v.
State of Jharkhand, reported in 2022 (7) SCC 247, held:
"7. It is true that the general principle is that the
appellate court should not travel outside the
record of the lower court and cannot take any
evidence in appeal. However, as an exception,
Order 41 Rule 27CPC enables the appellate court
to take additional evidence in exceptional
circumstances. It may also be true that the
appellate court may permit additional evidence if
the conditions laid down in this Rule are found to
exist and the parties are not entitled, as of right,
to the admission of such evidence. However, at
the same time, where the additional evidence
sought to be adduced removes the cloud of doubt
over the case and the evidence has a direct and
important bearing on the main issue in the suit
and interest of justice clearly renders it imperative
that it may be allowed to be permitted on record,
such application may be allowed. Even, one of the
circumstances in which the production of
additional evidence under Order 41 Rule 27CPC by
the appellate court is to be considered is, whether
or not the appellate court requires the additional
evidence so as to enable it to pronounce judgment
or for any other substantial cause of like nature."
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45. As one of main reason assigned by Tribunal for
dismissing suit was claim for declaration of title could not be
based on entries in revenue records, plaintiff has sought to
contend that he is unable to secure copy of order of grant as it
is of substantial antiquity. However, he seeks to
reinforce/corroborate his claim by producing mutation entries
made by revenue authorities at relevant and undisputed point
of time to establish his claim. But, in view of conclusions on
other issues, as above, need for additional evidence would pale
into insignificance.
46. In view of above, though finding of Tribunal on
issues no.1 to 3 is contrary to law, but, by virtue of finding on
issue no.4 being held correct and proper, order passed by
Tribunal would not call for interference. Point for consideration
is answered accordingly.
Revision petition is dismissed.
SD/-
(RAVI V.HOSMANI)
JUDGE
GRD,PSG
