Karnataka High Court

Abdul Rehman S/O Mohmad Saheb Farida vs Ismail S/O Hassan Damndi on 28 October, 2025

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                                                                 NC: 2025:KHC-D:14515
                                                                 RSA No. 5615 of 2010


                         HC-KAR




                        IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
                             DATED THIS THE 28TH DAY OF OCTOBER, 2025
                                               BEFORE
                                THE HON'BLE MR. JUSTICE C M JOSHI
                        REGULAR SECOND APPEAL NO.5615 OF 2010 (DEC)
                        BETWEEN:
                        1.     ABDUL REHMAN S/O. MOHMAD SAHEB FARIDA,
                               AGE: 87 YEARS, R/O. D.NO-50,
                               MOHMADALI ROAD, BHATKAL.
                               REP. BY HIS G.P.A HOLDER MOHAMEAD ZUBAIR
                               SINCE DECEASED BY HIS LRS.
                               (AMENDEMENT CARRIED OUT AS PER ORDER
                               DATED 18.06.2018.)

                        1A.    MOHAMMAD ZUBAIR S/O. ABDUL REHMAN FARIDA.
                               AGE: 62 YEARS, R/O. HOUSE NO.50/1,
                               MOHAMMAD ALI ROAD, BHATKAL.

                        1B.    NAFEESA BEGUM MOHAMMED JAFAR
                               AGE: 59 YEARS, OCC. HOUSE WIFE,
                               R/O. HOUSE NO.50/1,
                               MOHAMMAD ALI ROAD, BHATKAL.

                        1C.    MOHAMMED IBRAHIM S/O. ABDUL REHMAN FARIDA.
           Digitally
           signed by
                               AGE: 53 YEARS, R/O. HOUSE NO.50/1,
YASHAVANT
           YASHAVANT
           NARAYANKAR          MOHAMMAD ALI ROAD, BHATKAL.
NARAYANKAR Date:
           2025.10.30
           11:11:02
           +0530
                        1D. BIBI KHATIJA S/O. ABDUL REHMAN FARIDA.
                            AGE: 47 YEARS, R/O. HOUSE NO.50/1,
                            MOHAMMAD ALI ROAD, BHATKAL.

                        1E.    BAVAMEER S/O. ABDUL REHMAN FARIDA.
                               AGE: 38 YEARS, R/O. HOUSE NO.50/1,
                               MOHAMMAD ALI ROAD, BHATKAL.
                                                                            ...APPELLANT
                        (BY SRI. SANGRAM S. KULKARNI, ADVOCATE)
                        AND:

                        1.     ISMAIL S/O. HASSAN DAMUDI,
                               AGE: 79 YEARS, OCC: NOT KNOWN,
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                                         NC: 2025:KHC-D:14515
                                         RSA No. 5615 of 2010


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     R/O. "AL RIZWAN", MAIN ROAD,
     BHATKAL, NORTH KANARA DISTRICT-581320.

2.   MOULANA ABDUL ALIM KASIMI,
     AGE: 63 YEARS, OCC. NOT KNOWN,
     R/O "AL-MOVLI", MUSHMA STREET,
     BHATKAL, NORTH KANARA DISTRICT-581320.

3.   MOHMAD JUFRI MOTHESAM,
     AGE: 69 YEARS, OCC. NOT KNOWN,
     R/O NEAR GIRLS HIGH SCHOOL,
     BASTI ROAD, BHATKAL,
     NORTH KANARA DISTRICT-581320.

4.   RUKNODDIN ABDUL REHMN
     S/O ABU MOHMAD,
     AGE: 69 YEARS, R/O CHOWK BAZAR,
     BHATKAL, NORTH KANARA DISTRICT-581320.

     (SINCE DECEASED LRS ARE NOT PROPER PARTIES)
     NAMES DELETED V.O.D. AMENDMENT CARRIED OUT
     ON 09.02.2024.

5.   BADRUL HASSAN MUALLIM
     S/O. ABDUL KHADIR MUALLIM,
     AGE: 75 YEARS, R/O. SIDDIQUE STREET,
     BHATKAL, NORTH KANARA DISTRICT-581320.

6.   ABDUL RUKKNODDIN,
     AGE: 79 YEARS ,OCC. NOT KNOWN,
     R/O. ALWA STREET, BHATKAL,
     NORTH KANARA DISTRICT-581320.
                                                 ...RESPONDENTS
(BY SRI. AFAQUE KOLA, ADVOCATE FOR R2;
    R6-NOTICE SERVED; R1-DECEASED;
    R3-R4-DISMISSED AS ABATED)

     THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE CIVIL
JUDGE(SR.DN.) HONNAVAR, IN RA NO.384/2001 DATED 24.04.2010
AND THE JUDGMENT AND DECREE PASSED BY CIVIL JUDGE (JR.DN.)
HONNAVAR, IN O.S.NO.42/1998 DATED 08.06.2001 AND ALLOW THE
APPEAL THROUGHOUT IN THE INTEREST OF JUSTICE AND EQUITY
AND ETC.
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                                              NC: 2025:KHC-D:14515
                                              RSA No. 5615 of 2010


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     THIS APPEAL, COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:

                          ORAL JUDGMENT

(PER: THE HON'BLE MR. JUSTICE C M JOSHI)

Heard the learned counsel appearing for the appellant,

none appeared for the respondent.

2. This Court while admitting this appeal on 04.04.2014

has framed the following substantial question of law:

"Whether the trial Court as well as the First Appellate Court have committed a serious error in holding that the suit is barred under Section 85 of the Wakf Act, 1995, even though the Tribunal had not been constituted as per the Act, as on the date of filing of the suit, and thereby the judgments have become perverse and illegal?"

3. This appeal is filed by the plaintiff, who was non-

suited by the Trial Court in O.S.No.42/1998 and in

R.A.No.384/2001 by the learned Civil Judge (Jr.Dn) Bhatkal and

learned Senior Civil Judge, Honnavar, respectively.

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4. The appellant/plaintiff approached the Trial Court

contending that the suit schedule property contains a Dargah

called 'Peer Saheb Hazrath Shah Khadri Dargah' at Bhatkal. The

said property has been notified as a Wakf property under the

Wakf Act, 1995, in a gazette notification and the maternal uncle

of the plaintiff has been shown as the person managing the said

Dargah. It is contented that the plaintiff has inherited the

management of the said Dargah and he is in possession of the

same. He contends that the suit property was not Wakf property

at any point of time, since it was not dedicated as Wakf property.

It was alleged that the defendants have allegedly formed a Trust

with a view to usurp the management of the Dargah and deprive

the plaintiff from managing it. Therefore, the plaintiff filed a suit

before the Trial Court contending that there is no such Trust

represented by the defendants and therefore, it may be declared

that there is no Trust in the name and style of 'Peer Saheb

Hazrath Shah Khadri Dargah Trust' as contented by the

defendants and the defendants be restrained from interfering in

the management of the Dargah by the plaintiff.

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5. The said suit was resisted by the defendants

contending that since the said Dargah has been notified under

the gazette notification of the Wakf Board under the provisions of

Wakf Act, the suit is not maintainable and the plaintiff has to

approach the Wakf Tribunal for the relief.

6. The plaintiff was examined as PW1 and Ex.P.1 to

Ex.P3 were marked. The defendant No.1 was examined as DW1

and Ex.D.1 was marked on their behalf. After hearing both the

sides, the suit came to be dismissed. When the appellant

approached the First Appellate Court, it also heard the matter

and dismissed the appeal.

7. The learned counsel appearing for the appellant

would submit that the notification of the suit schedule property in

the gazette shows that the said property was not taken as a

Wakf property since there are disputes. He points out that the

gazette notification clearly mentioned that it is not taken as the

Wakf property at the time of publication, despite that the Trial

Court and the First Appellant Court have held that the provisions

of Section 85 of the Wakf Act are applicable, and therefore

dismissal of the suit is not sustainable.

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8. On a query posed by this Court, the learned counsel

for the appellant fairly submits that except Ex.P.2 and Ex.P.3

there are no other documents to show that the plaintiff had

inherited the management of the Dargah from his maternal uncle

or ancestors. A perusal of Ex.P2 and Ex.P.3 shows that the name

of 'Peer Saheb Hazrath Shah Khadri Dargah' is mentioned as the

holder of the suit schedule property. There is no mention of the

name of the plaintiff as the person in charge of the management

of the Dargah. No other documents are available to show that

the plaintiff had inherited the management of the said Dargah

from his ancestors. There is absolutely no other material to show

that the plaintiff has any sort of right, title or interest in the

same. Therefore, even if it is held that the suit schedule property

is not the Wakf property, the plaintiff would not succeed in

establishing his rights. What is sought by the plaintiff is a

negative relief. On this count itself, the suit was not

maintainable. It is pertinent to note that in the notification issued

by the Wakf Board, it is mentioned as below:

"Remarks: The total expenditure of Rs.1675-95 is borne by the mutwalli himself, and no contribution etc., is taken from the public nor are there any grants etc. No accounts have

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been maintained. It is said there is some property belonging to the Dargah but there is dispute and the matter is pending in the Civil Court. As the name of Dargah or the mutwalli is not mentioned in the R/Rs. these properties have not been taken as Dargah properties at present.

The R/Rs of the properties said to be in dispute are among the case papers, which will show the properties in the name of the some other persons and not the Dargah."

9. This would make it clear that the suit schedule

property was never declared to be the Wakf property by the

Wakf Board under the notification. In that view of the matter,

the question whether the provisions of Section 85 of the Act

would apply or not recedes to the oblivion. It is not necessary for

this Court to enter into the question whether the property is

Wakf property or not. Obviously, there is no such declaration,

which makes the suit schedule property to be a Wakf property.

But on the other hand, the plaintiff has utterly failed to establish

his right in the suit schedule property since there is absolutely no

other evidence except his oral self-interested testimony. Under

these circumstances, even though this Court comes to the