Karnataka High Court
Chand Mahboob Mujawar And Ors vs Mahaboob Ali And Ors on 3 June, 2025
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CRP No. 200054 of 2024
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
DATED THIS THE 03RD DAY OF JUNE, 2025
BEFORE
THE HON'BLE MS.JUSTICE J.M.KHAZI
CRP NO.200054 OF 2024
BETWEEN:
1. CHAND MAHBOOB MUJAWAR
S/O IBRAHIM SAB, MUJAWAR
AGE: 50 YEARS, OCC: AGRICULTURE
2. HUSSAIN BASHA
S/O IBRAHIM SAB MUJAWAR
AGE: 40 YEARS, OCC: AGRICULTURE
3. AKBAR
S/O IBRAHIM SAB MUJAWAR
AGE: 28 YEARS, OCC: AGRICULTURE
4. MOOSA
S/O IBRAHIM SAB MUJAWAR
AGE: 32 YEARS, OCC: AGRICULTURE
5. AHMED SAB
S/O IBRAHIM SAB MUJAWAR
AGE: 30 YEARS, OCC: AGRICULTURE
6. IBRAHIM SAB
S/O CHAND MAHBOOB
AGE: 21 YEARS, OCC: AGRICULTURE
ALL ARE R/O VILLAGE MASARKAL
TQ: DEODURGA, DIST: RAICHUR.
...PETITIONERS
(BY SRI.SYED JAVEED ULHAQ &
SRI.GOPAL KRISHNA YADAV, ADVOCATES)
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CRP No. 200054 of 2024
AND:
1. MAHABOOB ALI
S/O LATE AHMED SAB,
AGE: 30 YEARS, OCC: AGRICULTURE
AND MUTHAWALLI OF DARGAH HAZRATH
SHA HAJI IBRAHIM QUADRI (SUNNI) OF
VILLAGE MASARKAL
R/O VILLAGE MASARKAL, TQ: DEVADSURGA
DIST: RAICHUR.
2. MOHD. SAB
S/O MAKHDUM SAB
AGE: 60 YEARS, OCC: AGRICULTURE
3. MAHBOOB @ MAKHDOOM SAB
S/O MOHD. SAB
AGE: 30 YEARS, OCC: AGRICULTURE
4. ZAHEER SAB
S/O MOHD. SAB
AGE: 25 YEARS, OCC: AGRICULTURE
5. GHAREEB SAB
S/O MOHD. SAB
AGE: 23 YEARS, OCC: AGRICULTURE
6. GHOUSE SAB
S/O MOIN SAB
AGE: 21 YEARS, OCC: AGRICULTURE
7. KHAJA SAB
S/O MAKHADUM SAB
AGE: 45 YEARS, OCC: AGRICULTURE
8. SHABNAWAZ
S/O KHAJA SAB
AGE: 23 YEARS, OCC: AGRICULTURE
9. GHAREEB SAB
S/O KHAJA SAB
AGE: 20 YEARS, OCC: AGRICULTURE
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CRP No. 200054 of 2024
10. SADIK
S/O KHAJA SAB
AGE: 18 YEARS, OCC: AGRICULTURE
11. IQBAL
S/O MAHBOOB ALI
AGE: 40 YEARS, OCC: AGRICULTURE
12. KANMIL
S/O AKBAR SAB
AGE: 40 YEARS, OCC: AGRICULTURE
13. BADU
S/O IBRAHIM SAB
AGE: 30 YEARS, OCC: AGRICULTURE
14. BASHA
S/O HUSSAIN SAB GANDAGURTI
AGE: 30 YEARS, OCC: AGRICULTURE
15. BADU
S/O HUSSAIN SAB GANDAGURTI
AGE: 32 YEARS, OCC: AGRICULTURE
16. MAHBOOB
S/O WAHID SAB GANDAGURTI
AGE: 26 YEARS, OCC: AGRICULTURE
DEFENDANTS NO.2 TO 16 ARE
R/O VILLAGE MASARKAL, TQ: DEODURGA
DIST: RAICHUR.
17. THE CHIEF EXECUTIVE OFFICER,
KARNATAKA STATE BOARD OF AUQAF,
CUNNINGHAM HON'BLE HIGH ROAD,
BANGALORE - 560052.
(AMENDED AND IMPLEAD THE PARTY
AS PER THE ORDER OF THIS HON'BLE COURT)
...RESPONDENTS
(BY SRI.M.F.KHAN, ADVOCATE FOR R1;
SRI.P.S.MALIPATIL, ADVOCATE FOR R17;
R2 TO R5 ARE SERVED;
V/O DATED: 08.01.2025 PETITION IS DISMISSED
AGAINST R6 TO R16)
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CRP No. 200054 of 2024
THIS CRP IS FILED U/S. 83(9) OF THE WAKF ACT 1995
R/W SEC. 115 OF THE CPC, BY THE ADVOCATE FOR REVISION
PETITIONER PRAYING TO SET ASIDE THE JUDGMENT AND
DECREE DATED 20TH DAY OF AUGUST 2024 PASSED BY THE
KARNATAKA WAKF TRIBUNAL, KALABURGI DIVISION, AT
KALABURGI, IN O.S NO.4/2019 BY DECREEING THE SUIT OF
THE PLAINTIFF AND ETC.,
THIS CRP HAVING BEEN HEARD AND RESERVED FOR
ORDERS ON 10.01.2025 AND COMING ON FOR
PRONOUNCEMENT OF ORDERS THIS DAY, THE COURT,
PRONOUNCED THE FOLLOWING:
CORAM: HON'BLE MS JUSTICE J.M.KHAZI
CAV ORDERS
(PER: HON'BLE MS JUSTICE J.M.KHAZI)
In this petition filed under Section 83(9) of Wakf Act,
1995 r/w Section 115 of the Code of Civil Procedure,
defendant Nos.1 to 6 have challenged the judgment and
decree dated 20.08.2024 passed by the Waqf Tribunal,
Kalaburagi Division Kalaburagi, in O.S.No.4/2019, granting
decree of permanent injunction restraining defendant Nos.1
to 17 from interfering with plaintiff discharging the day-to-
day affairs of the Dargah Hazrath Shah Haji Ibrahim Qadri
(Sunni) of village Masarkal, Deodurga Taluk, Raichur
District ('Dargah' for short).
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2. For the sake of convenience, parties are
referred to by their ranks before the trial Court.
3. Plaintiff filed the suit in question seeking relief
of permanent injunction contending that the Dargah in
question is a notified Waqf institution. It is in existence
since time immemorial. Thousands of devotees, irrespective
of their caste and creed visit the Dargah and pay their
obeisance, Nazrana and Fathekhowani and also attend
Annual 'Urs-E-Shareef' and Chiraghan of the holy saint. It is
notified at Sl.No.51 in the Official Gazette published by the
Karnataka Board of Awkaf vide the Notification dated
18.02.1974 relating to the Deodurga Taluk.
4. At the time of survey, the great grandfather of
plaintiff by name, Bahauddinsab S/o Ibrahimsab was
rendering the services to the Dargah as Muthawalli and
accordingly, his name is published in the official Gazette as
notified Muthawalli. After his death, his only son Mehboob
Ali stepped into his shoes and looked after all the affairs of
the Dargah and performing the Annual Urs. After his death,
his eldest son Ahmed Pasha, who is no other than the
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CRP No. 200054 of 2024
father of the plaintiff stepped into his shoes as per "Law of
Primogeniture" and family custom and became the
Muthawalli and performed the duties of hereditary
Muthawalli, including conducting Annual Urs. Vide the order
dated 17.06.1998, the Board appointed him as a
Muthawalli. After the death of his father, plaintiff is
performing the duties of Muthawalli and Sajjadanasheen,
including Annual Urs under the supervision of Karnataka
Board of Awkaf.
5. In fact, he applied to the Board for appointment
as hereditary Muthawalli. After holding a full fledged
enquiry, recording the statements of the villagers and
conducting mahazar, vide order dated 18.06.2018, plaintiff
was appointed as Muthawalli for one year. After the expiry
of the said period vide order dated 27.09.2019, the plaintiff
is appointed as Muthawalli for a period of three years. He is
carrying on the duties of Muthawalli without any
complaints. However, defendants who are inimical towards
the plaintiff are trying to interfere in celebration of Annual
Urs of the said Dargah. They filed a suit in O.S.No.14/2018
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CRP No. 200054 of 2024
for declaration and injunction. However, the Wakf Tribunal
rejected the application filed by them for temporary
injunction. Defendants have not challenged the said order
and as such, it has become final. Before filing of this suit,
from 23rd to 25th of March 2019, defendant supported by
antisocial elements came near the suit property. They
warned and gave threat/ultimatum to the plaintiff as to how
he is going to perform the Annual Urs, forcing him to file
the suit.
6. Defendant No.4 has filed written statement and
it is adopted by defendant Nos.1 to 3, 5 and 6. Similarly,
defendant No.7 has filed written statement and it is
adopted by defendant Nos.8 to 12.
7. In their written statements, these defendants
admit that suit Dargah is a notified Waqf Institution,
notified at Sl.No.51 of Gazette Notification dated
18.02.1974 of the Deodurga Taluk. However, they have
denied that at that time Bahuddin Sab-the great
grandfather of plaintiff was performing the duties of
Muthawalli and after his death, his only son Mehboob Ali
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CRP No. 200054 of 2024
performed the duties of Muthawalli. They have also denied
that after the death of Mehboob Ali, his eldest son Ahmed
Pasha, who is no other than the father of plaintiff became
the Muthawalli and Vide order dated 17.06.1998, the
Tribunal appointed him as Muthawalli and after his death,
plaintiff stepped into his shoes and performing the duties of
Muthawalli. Defendants have also denied that vide order
dated 18.06.2018, plaintiff was appointed as Muthawalli for
a period of one year and after expiry of the same, vide
order dated 27.09.2019, he is appointed as Muthawalli for a
period of three years. Defendants have denied that all the
above named persons have performed the duties of
Muthawalli and conducted the daily, monthly, annual rituals
and also sandal of the Dargah in question.
8. Inter alia, defendant Nos.1 to 5 who are siblings
and defendant No.6, who is their nephew have claimed that
they are performing the duties of Muthawalli and Mujawar
of the plaintiff Dargah and they are conducting the Annual
Urs and Sandal. They allege that plaintiff is encroacher of
the Wakf land in Sy.No.374./*/B, 374/*/K, 376/*/Ya,
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CRP No. 200054 of 2024
376/*/P and 376/*/Aa and enquiry has been conducted
against the plaintiff and it is pending. Encroacher of the
properties is not entitled to be appointed as Muthawalli.
9. Similarly, defendant Nos.7 to 12 have claimed
that they are performing the duties of Muthawalli and
Mujawar. Defendant No.7 is the hereditary Muthawalli and
Mujawar of the plaintiff Dargah. Prior to him his father
Bahuddinsab was the Muthawalli and Mujawar. After his
death, defendant No.7 is performing the duties of
Muthawalli. Suppressing the true facts, plaintiff filed the
suit and sought for dismissal of the same.
10. Based on the pleadings, the Tribunal has
framed necessary issues.
11. In support of his suit, plaintiff examined himself
as PW-1 and relied upon Exs.P1 to 49.
12. On the other hand, defendant No.4 is examined
as DW-1 and one witness is examined as DW-2. Ex.D1 to
36 are marked on behalf of defendants.
13. The trial Court decreed the suit, granting relief
of permanent injunction against the defendants.
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14. Defendant Nos.1 to 6 challenged the impugned
judgment and decree contending that it is illegal, perverse,
erroneous, and unsustainable both in law and on facts and
as such liable to be set aside. The Tribunal has not
answered additional issue No.1 and as such, the entire
judgment is vitiated. No issue is framed regarding
possession of suit property by the plaintiff, which is
necessary in a suit for permanent injunction. Suit is liable
to be dismissed as Wakf Board is not made a party despite
defendants raising objections. The description of the suit
property is very vague and for this reason, also suit is not
maintainable. Plaintiff failed to prove his case. Viewed from
any angle, the impugned judgment and decree is not
sustainable and hence the petition.
15. In support of his arguments learned counsel for
petitioners has relied upon the following decisions:
(i) Premji Ratansey Vs. Union of India (Premji
Ratansey)1
(ii) A.Shanmugam Vs. Ariya Kshatriya Rajakula
Vamsathu Madalayanandhavana Paripalanai
Sangam, Rep. by its President, etc.
(Shanmugam)2
1
1994 SCC (5) 547, dated: 22.07.1994:
2
(2012) SCCR 565
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CRP No. 200054 of 2024
(iii) Poojappa (since dead) by L.Rs Vs.Smt.
Annapoornamma and Ors. (Poojappa)3
(iv) Vathsala Manickavasagam and Ors. Vs.
N.Ganesan and Anr. (Vathsala)4
(v) Samarpan Varishtha Jan Parisar and Ors. Vs.
Rajendra Prasad Agarwal and Ors.(
Samarpan Varishtha Jan Parisar )5
(vi) The Tahsildar, Urban Improvement Trust and
Anr. Vs. Ganga Bai Menariya (Dead) Through
LRs. and Ors. (Ganga Bai Menariya)6
16. On the other hand, learned counsel for plaintiff
supported the impugned judgment and decree and sought
for dismissal of the petition.
17. Heard arguments of both sides and perused
the record.
18. The plaintiff sought injunctive relief against
defendants to restrain them from interfering with his
discharge of services as Muthawalli of the suit schedule
Dargah. Defendants not only dispute that plaintiff is the
Muthawalli of suit schedule Dargah, but also claimed that
they are the Muthawalli and Mujawar of the said Dargah.
Therefore, there is no dispute that plaintiff is claiming
3
2013 (2) Kar.LJ.356
4
2013 AIAR (Civil) 749
5
Civil Appeal No.3520/2022 date: 06.05.2022
6
Civil Appeal No.722/2012, dated: 20.02.2024
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CRP No. 200054 of 2024
relief in respect of his right to discharge the duties of
Dargah in question. Defendants also claiming the same
right. Consequently, it is not open to the defendants to
claim that the description of suit property is vague and on
that ground suit is not maintainable.
19. It is also not in dispute that the Dargah in
question is notified at Sl.No.51 of Karnataka Gazette
Notification dated 18.02.1974 of Deodurga Taluk. Ex.P5 is
the certified copy of the Gazette Notification in question.
According to the plaintiff at the relevant point of time when
the Gazette Notification was issued, his great grandfather
Bahuddin Sab was the Muthawalli. Column No.6 of the said
Notification which deals with name and address of the
Muthawalli state Bahuddin Sab, S/o Ibrahim Sab as the
Muthawalli. Thus, the great grandfather of plaintiff was the
notified Muthawalli of the suit schedule Dargah. Ex.P31 is
the proceedings of the Karnataka Wakf Board dated
17.06.1998, appointing father of the plaintiff as the
Muthawalli.
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20. Ex.P4 is the order dated 18.06.2018 under
which the plaintiff was appointed as Muthawalli for a period
of one year. Ex.P8 is the enquiry report regarding the
proposal for appointment of plaintiff as the Muthawalli,
wherein the defendant Nos.1, 4 and 7 have participated
and raised objections. After the enquiry, the Chief
Executive Officer has recommended appointment of
plaintiff as the Muthawalli. Based on the said enquiry
report, as per Ex.P9, the Board has appointed plaintiff as
the Muthawalli for a period of three years. The documents
produced by the plaintiff also establish that his
predecessors were and during his period plaintiff is
discharging the duties of Muthawalli and in that capacity,
they have held Annual Urs and Sandal of the Dargah in
question.
21. The documents produced by defendants
indicate that they have raised objections for appointment
of plaintiff as the Muthawalli. However, the objections are
not sustained and the plaintiff is appointed as the
Muthawalli of the Dargah in question. Of course, if as a
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result of the enquiry is found that the plaintiff is guilty of
any misconduct, the Board would certainly take action
against him. However, as of now plaintiff has proved that
he is the Muthawalli of the Dargah in question and
therefore the defendant are not at liberty to cause any
interference.
22. Issue No.1 is whether plaintiff proves that he
is the hereditary Muthawalli of the Wakf Institution in
question. As defendant No.7 also claim to be the
hereditary Muthawalli, issue No.3 is framed to that effect.
Since the defendant Nos.1 to 6 also claimed that they are
the hereditary Muthawalli of the said Dargah, the trial
Court has framed additional issue as to whether defendant
Nos.1 to 6 prove that they are the Muthawalli of Dargah. It
appears by oversight the trial Court has not given any
separate findings on additional issue No.1. Since these
three issues involve common discussion and while
discussing issue Nos.1 and 3, the trial Court has also
discussed the claim of defendant Nos.1 to 6 over the
Muthawalliship. Therefore, no prejudice is caused to the
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defendant Nos.1 to 6 by the trial Court in not specifically
giving a finding on additional issue No.1. It would not go to
the root of the case of defendants.
23. So far as Wakf Board not being made a party
is concerned, the plaintiff has not sought any relief against
the Wakf Board and therefore there was no necessary for
impleading it as defendant. Having regard to the nature of
the right exercised by the plaintiff over the administration
of the Dargah, it is not a case of having possession over
suit property and therefore question of framing issue
regarding the lawful possession and enjoyment of suit
property as in case of other injunction suits would not
arise. Therefore, there was no need for framing of issue
regarding possession and enjoyment of suit property by
the plaintiff.
24. The trial Court on appreciation of the oral and
documentary evidence on record has rightly decreed the
suit. The conclusions arrived at and the findings given by
the trial Court is consistent with the evidence placed on
record and this Court finds no perversity calling for
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interference. In the result, the petition fails and
accordingly the following:
ORDER
(i) Petition filed by the defendant Nos.1 to
6 under Section 83(9) of Wakf Act, 1995
r/w Section 115 of C.P.C is dismissed.
(ii) The impugned judgment and decree
dated 20.08.2024 in O.S.No.4/2019 on
the file of Karnataka Wakf Tribunal,
Kalaburagi Division at Kalaburagi is
confirmed.
(iii) The Registry is directed to send back the
trial Court records along with copy of
this order forthwith.
In view of disposal of the petition, pending
application/s, if any, stands disposed off, as no separate
order is required.
Sd/-
(J.M.KHAZI)
JUDGE
RR
