Telangana High Court

M/S Badam Balakrishna Hotel Pvt. ... vs Mumtaz Yarud Dowla Wakf And 6 ... on 23 November, 2021

Bench: G Sri Devi

           THE HONOURABLE JUSTICE G. SRI DEVI

                          C.R.P.No.1264 of 2021

ORDER:

The petitioner, who is the Judgment Debtor No.2, filed the

present Civil Revision Petition under Article 227 of the Constitution

of India, aggrieved by the order, dated 10.08.2021, passed in

E.P.No.29 of 2014 in O.S.No.132 of 1999 on the file of the

III-Additional Chief Judge, City Civil Court at Hyderabad.

The facts, which led to filing of the present Civil Revision

Petition, are as under:

The 1st respondent/plaintiff/D.Hr. filed O.S.No.132 of 1999

before the Andhra Pradesh Wakf Tribunal, Hyderabad, against the

petitioner and respondents 2 to 7/defendants/Judgment Debtors

for ejectment from the suit scheduled property and for arrears of

rent and for mesne profits. The Wakf Tribunal by its judgment dated

13.11.2002 decreed the suit for possession as also for recovery of

mesne profits. However, the Tribunal dismissed the suit against

defendant No.7. Challenging the said judgment and decree,

C.R.P.No.5863 of 2002 was filed by the 2nd respondent and the

petitioner herein and the same was disposed of on 30.12.2002

directing them to vacate the suit premises within a period of one

year from the date of judgment and to pay arrears in two

instalments. As the defendants/Judgment Debtors failed to comply

with the decree in O.S.No.132 of 1999, the 1st respondent/D.Hr.

filed E.P.No.29 of 2014 before the III-Additional Chief Judge, City

Civil Court, Hyderabad, seeking to issue warrant for delivery of

possession of the suit 'A' schedule property; to direct the Bailiff to

put him into possession by evicting Judgment Debtor Nos.1 and 2;

to attach and sale of the movable articles of 'B' schedule property

and also to issue warrant of attachment and sale of 'C' schedule

property for realization of the E.P. amount.

A counter affidavit has been filed by the petitioner/

Judgment Debtor No.2 stating that the E.P. is not maintainable as

the Judgment Debtor No.1/B.R. Associates represented by its

Managing Partner, B.Ramaswamy, died and his legal heirs and

successors in interest were not brought on record. It is also stated

that the decree was passed on 13.11.2002, but the D.Hr. has waived

his right to execute the decree and a resolution to that effect has

been passed in the Committee Meeting of the Wakf and as such the

E.P. is not maintainable. It is further stated that there is a dispute

with regard to the management of the Wakf and several litigations

were pending in various Courts and unless it is decided by the

competent Court, the instant E.P. cannot be maintained. On

15.12.2015 the Judgment Debtor No.2 also filed another counter

affidavit stating that one Mahaboob Alam Khan filed the E.P. on

behalf of Mumtaz Yarud Dowla Wakf alleging that he is the

Secretary of Mumtaz Yaruddowla Wakf, without any authentic

proof from the Members of the Majlis-e-Umna of Mumtaz Yarud

Dowla Wakf. It is further stated that the dispute is in between the

tenant and landlord in respect of Wakf property and so it could not

have been adjudicated by Wakf Tribunal. It is stated that the decree

passed in O.S.No.132 of 1999 is nullity as the Wakf Board has not

made as a party. It is further stated that in view of settlement

between the parties by Majlis-e-Umna of Mumtaz Yaruddowla

Wakf, the E.P. is liable to be dismissed. It is further stated that the

present Secretary Mirza Khusru Ali Baig was elected by Majlis-e-

Umna of Mumtaz Yaruddowla Wakf by its resolution dated

04.11.2013 and the same was confirmed by the A.P. State Wakf

Board by issuing proceedings on 27.11.2013 and that there is no

privity of contract between Judgment Debtor No.2 and the said

Mahaboob Alam Khan. The Judgment Debtor No.2 also filed an

additional counter on 17.12.2019 stating that the decree in

O.S.No.132 of 1999 is illegal, nonest and null and void on account of

lack of jurisdiction as per the ratio laid down by the Apex Court in

Faseela M. v. Muneerul Islam Madrasa Committee and another1.

After considering the rival submissions, the Court below held

that the objections in the Counter are not tenable and that the

petition is maintainable for execution of the decree in O.S.No.132 of

1999 passed by the Wakf Tribunal having jurisdiction and that the

Court below posted the matter on 13.08.2021 for hearing of the

(2014) 16 SCC 38 : AIR 2014 SC 2064

Decree Holder. Aggrieved by the same, the present Civil Revision

Petition has been filed by the Judgment Debtor No.2.

Heard the learned Counsel appearing on either side and

perused the record.

Learned Counsel for the petitioner/J.Dr No.2 would submit

that none of the defendants in the suit disputed the factum that the

suit property is Wakf property and thus there is no issue as regards

the suit property not being a wakf property. It is further submitted

that the A.P. Wakf Tribunal, Hyderabad, has decreed the suit on

13.11.2002 and the 1st respondent/Decree Holder filed E.P.No.29 of

2014 before the III-Additional Chief Judge, City Civil Court,

Hyderabad, for execution of the eviction decree passed by the A.P.

Wakf Tribunal, after more than 13 ½ years from the date of passing

of the decree. It is further submitted that before the Court below

that the averments in the plaint in O.S.No.132 of 1999 do not

disclose vesting of jurisdiction for trial of the case before the Wakf

Tribunal under the Wakf Act, 1995 and the suit ought to have been

filed before the Civil Court and as such the decree passed by the

Wakf Tribunal is a nullity and nonest in law and, therefore, not

executable. It is also submitted that only by Amended Act 27 of

2013, which prospectively came into existence with effect from

01.11.2013, the Wakf Tribunal has conferred the jurisdiction for

eviction from wakf properties and prior to that the Wakf Tribunal

had no jurisdiction to try suits relating to eviction from wakf

properties and the only issue that could be decided was whether or

not a particular property was a wakf or not. It is further submitted

that the order passed by this Court dismissing the earlier

C.R.P.No.249 of 2017 filed by the petitioner does not constitute as

res judicata. It is also submitted that under Section 6 of the Wakf

Act, 1995, if any question arises whether a particular property is

specified as wakf property in the list of Auquat is wakf property or

not or whether a waqf specified in such a list is a shiya wakf or

sunni waqf, then the Board or Mutawalli of the Wakf or any person

aggrieved may institute a suit in the Tribunal for the decision of the

said question and the said decision of the Tribunal shall be final. It

is further submitted that Section 7 of the Wakf Act, 1995 sets out

power of the Tribunal to determine disputes regarding Auqaf.

The Wakf Tribunals are constituted under Section 83 of the Wakf

Act, 1995 and Wakf (Amendment) Act, 2013 came into operation

with effect from 01.11.2013. Prior to 01.11.2013, Wakf Tribunal has

no jurisdiction to decide cases relating to eviction from wakf

properties and that a decree passed by a Court without jurisdiction

can be raised any time even in execution proceedings. It is also

submitted that the finding of the Court below in paragraph No.37

of the order that the decree passed by the Wakf Tribunal in

O.S.No.132 of 1999 has become final and is executable before the

Court is erroneous and the further finding of the Court below in

paragraph No.39 of the order that the decree is not a nullity as it

was passed by the competent Tribunal under the Wakf Act and the

objection of the Judgment Debtors regarding lack of jurisdiction of

the Wakf Tribunal on passing decree is not sustainable and that the

Decree Holder is entitled to execute the reliefs prayed as per the

decree, is also unsustainable. In support of the said contentions, he

relied upon the following judgments:-

1. Ramesh Govindram (dead) through L.R.s v. Sugra Humayun Mirza Wakf2

2. Telangana State Wakf Board and another v.

Mohamed Muzafar3

3. Faseela M. V. Muneerul Islam Madrasa Committee and others (1 supra)

4. Isabella Johnson v. M.A.Susai4

5. Sushil Kumar Mehta v. Gobind Ram Bohra (dead) through his L.Rs.5

6. Chiranjilal Shrilal Gineka v. Jasjit Singh and others6

Learned Counsel for the 1st respondent/decree holder while

admitting the fact of filing of the suit before the Wakf Tribunal,

decreeing the said suit and filing of the E.P. before the Court below

in the year 2014, would submit that even though the E.P. was filed

in the year 2014, it has not come to a logical end because of

untenable objections raised by third parties, inter alia contending

that Mahaboob Alam Khan, Secretary of the decree holder, ceased

to be the Secretary of D.H.R. Wakf and, therefore, the E.P. filed by

(2010) 8 SCC 726

2021 SCC Online SC 537

(1991) 1 SCC 494

(1990) 1 SCC 193

(1993) 2 SCC 507

him is not tenable and that several such applications were

dismissed and finally this Court, while dealing with one such order

passed by the lower Court, held that issue relating to cessation of

Mahaboob Alam Khan as Secretary of D.Hr.Wakf is not a matter in

execution in the case of Ghulam Yazdani and another v. Mumtaz

Yarud Dowla Wakf and others7 and affirmed that the view of the

trial Court that such applications filed by third parties raising

disputes pertaining to Managing Committee of D.Hr. Wakf is not a

matter for consideration in execution and, therefore, they are not

maintainable. After dismissal of the petitions filed by the third

parties, J.Dr.No.2 has come up with the present objection that the

decree passed by the Wakf Tribunal is a nullity in the eye of law

and its invalidity can be raised even in the execution proceedings

and the Court below while rejecting the said contention held that

the decree passed is not in nullity and the E.P. is maintainable. It is

further submitted that the judgments relied upon by the learned

Counsel for the petitioner in Ramesh Govindram (dead) through

L.Rs. v. Sugra Humayun Mirza Wakf (2 supra) and Faseela M v.

Muneerul Islam Madrasa Committee and another (1 supra) are not

applicable inasmuch as the present suit is not filed for eviction of a

tenant alone, but it is also filed for eviction of allegedly inducted

sub tenant, whose tenancy has no sanction of law and in other

words the sub-tenant is a trespasser on the property. It is also

submitted that when a suit is for eviction of tenant and the person

(2002) 2 ALD 277

in unauthorised occupation and also for recovery of mesne profits, it

is maintainable before the Wakf Tribunal and this aspect is covered

by the decision of the Apex Court in the case of Punjab Wakf Board

v. Pritpal Singh and another8, wherein the Apex Court held that

when a suit is filed before the Wakf Tribunal for possession and

mesne profits the same would be maintainable and in the said

judgment, the Apex Court clearly distinguished the judgments

relied upon by the learned Counsel for the petitioner in Ramesh

Govindram (dead) through L.Rs. v. Sugra Humayun Mirza Wakf (2

supra) and Faseela M v. Muneerul Islam Madrasa Committee and

another (1 supra). The Apex Court in Punjab Wakf Board v. Sham

Singh Harike and another9 reviewed the law on the subject and

quoted with approval in paragraph No.43 of the earlier judgment of

the Apex Court in Punjab Wakf Board v. Pritpal Singh and another

(8 supra). Thus, it is submitted that on facts, the decree passed for

eviction of a tenant and persons in unauthorised occupation and

recovery of mesne profits is a valid decree and it is not a decree

passed without jurisdiction, as such the Court below observed that

the decree passed by the Wakf Tribunal does not lacks jurisdiction.

It is further submitted that Section 83 (7) of the Wakf Act

specifically provides that the decision of the Tribunal shall be final

and binding upon the parties to the application, which means that a

party to the decision given by Wakf Tribunal is precluded from

(2013) SCC online SC 1345

(2019) 4 SCC 698

raising any objection to the said order including its validity except

by way of a revision under the proviso to Section 83 (9) of the Wakf

Act. In fact, Section 83 (9) of the Wakf Act also bars appeal against

the decision given by the Wakf Tribunal. Therefore, when a

decision passed by the Wakf Tribunal is sent to a civil Court for

execution, civil Court will exercise such power of the executing

Court, for executing a decree, but not to entertain objections

relating to the very validity of the decision raised by a party to the

decision. However, when it comes to Civil Procedure Code, Section

47 of the C.P.C. specifically confers power on the executing Court to

entertain all questions arising between the parties to the decree to

be raised before executing Court but not by a separate suit. Hence,

it is submitted that under the provisions of the Wakf Act, it is not

open to a party to question the validity of the same by virtue of bar

contained in Section 83 (7) of the Wakf Act unlike Section 47 of

C.P.C., which in terms permits such questions to be raised by a

party to the decree. Therefore, it can be said that Section 83 (7) of

the Wakf Act is in conflict with Section 47 of C.P.C. When there is

conflict between a Special Law and General Law, it is Special Law

that would prevail. It is also submitted that in view of the law laid

down by the Apex Court in Suresh Nanda v. Central Bureau of

Investigation10 the petitioner has no right to raise any objection

regarding the decision passed by the Wakf Tribunal. It is further

submitted that the judgments relied upon by the petitioner are not

(2008) 3 SCC 674

applicable to the present case firstly because they are not the

judgments rendered under the Wakf Act and secondly those

judgments are judgments dealt with the decrees passed by civil

Court. In fact, in Sushil Kumar Mehta v. Gobind Ram Bohra (dead)

(5 supra,) the Apex Court in paragraph No.3 pointed out the

provision of law under which it can be contended that the decree

was a nullity. It is also submitted that Section 83 (7) of the Wakf

Act only bars parties to the decision from raising any objection to

such decision but insofar as the third parties are concerned there is

no prohibition on them from raising their objections regarding the

executability of the decree. The third parties can invoke the power

of the Execution Court under Order XXI Rule 58 of C.P.C. as well as

Order XXI Rules 97 to 101 of C.P.C. to ventilate their grievance.

Therefore, the Court below has specifically observed that under

Section 83 (7) of the Wakf Act, the petitioner is precluded from

raising any objections and hence the orders passed by the Court

below is valid and no ground is made out to interfere with it in

exercise of power under the proviso to Section 83 (9) of the Wakf

Act. It is further submitted that in the impleadment petition filed

by the Telangana State Wakf Board, there is no allegation that they

did not receive notice from the Wakf Tribunal in O.S.No.132 of 1999

filed by D.Hr. which resulted in a decree for eviction of defendants

1 and 2 and recovery of mesne profits being passed. It is further

submitted that under Section 90 (3) of the Wakf Act if notice as

required under Section 90 of the Act is not given, then the Wakf

Board within six months on its coming to know of such suit or

proceeding may apply to the Court seeking a declaration that such

suit shall be declared as void. None of the provisions of the Wakf

Act provide that Wakf Board should be impleased as party to a suit

or proceedings before the Wakf Tribunal. It is further submitted

that the Wakf Board is neither a proper nor a necessary party in this

revision and as such it cannot be impleaded as respondent and that

the petition filed by the Wakf Board is highly misconceived and the

same is liable to be dismissed.

The main ground raised by the learned Counsel for the

petitioner/J.Dr No.2 is that the Wakf Tribunal has no jurisdiction to

entertain the suit since the suit is filed for eviction in respect of

wakf property and as such, the decree passed by the Wakf Tribunal

is not enforceable. Admittedly, the 1st respondent/plaintiff/Decree

Holder filed the suit against the petitioner herein and others for

their eviction from the suit schedule Wakf property inter alia stating

that the petitioner and respondents 2 to 7 herein are the tenants and

sub-tenants of the suit schedule wakf property having obtained the

same on rent. In the plaint itself, the 1st respondent/plaintiff stated

that the suit schedule property is registered wakf property. In

Faseela M. v. Muneerul Islam Madrasa Committee and others

(1 supra), the Apex Court held that "the suit for eviction against

the tenant relating to a waqf property is exclusively triable by the

civil Court and as such suit is not covered by the disputes specified

in Sections 6 and 7 of the Act." In Ramesh Gobindram (dead)

through L.Rs. v. Sugra Humayun Mirza Wakf (2 supra), the Apex

Court in paragraph No.35 held as under:-

"In the cases at hand, the Act does not provide for any proceedings before the Tribunal for determination of a dispute concerning the eviction of a tenant in occupation of a wakf property or the rights and obligations of the lessor and the lessees of such property. A suit seeking eviction of the tenants from what is admittedly wakf property could, therefore, be filed only before the civil Court and not before the Tribunal".

Recently in Telangana State Wakf Board and another v.

Mohamed Muzagar (3 supra), the Apex Court held as under:-

"Be that as it may, having noticed the manner of consideration made by the High Court with regard to the merit not being justified, it would also be necessary for us to consider as to whether the proceedings before the Wakf tribunal would be sustainable in the teeth of the observations made by the High Court with reference to the decision in Ramesh Gobindram (supra) which resulted in the High Court setting aside the order passed by the tribunal. We have carefully perused the said decision. The consideration made therein was in the background of the provisions as contained in Sections 6, 7, 83 and 85 of the Wakf Act 1995. No doubt it is a case where the question arose as to whether suit for eviction from the Wakf properties could be instituted before the Wakf tribunal. However, what is necessary to be noted is that, the question for consideration has been delineated in paragraph 2 of the order which clearly indicates that what was required to be

answered therein was as to whether the suit for eviction of tenants in respect of the items of property which are admittedly Wakf properties could be filed before the Wakf tribunal. After having taken into consideration Sections 6 and 7 of the Act, this Court was of the view that the tribunal would have the jurisdiction to decide such of those disputes arising thereunder and in respect of eviction of tenants from what is admittedly a Wakf property should be filed in the Civil Court as jurisdiction under Section 9 of the Civil Procedure Code is expansive. It is accordingly held, since what is to be decided by the tribunal are the disputes which arise under Section 6 and 7, the bar as contemplated under Section 85 to file a suit in the Civil Court does not apply. The said decision was rendered in a circumstance where the property was admittedly Wakf property, whereas in the instant case it is not an admitted case since the respondent had taken a specific contention that the properties in question are not Wakf properties."

In the instant case also it is an admitted fact that the suit

schedule properties are registered wakf property. Therefore, in

view of the principles of law laid down by the Apex Court, I find

force in the contention of the learned Counsel for the

petitioner/judgment debtor No.2 that the decree passed by the

Wakf Tribunal is a nullity and is non-est in law and as such the said

decree is not executable.

The main ground urged by the learned Counsel for the 1st

respondent/decree holder is that the petitioner/J.Dr No.2 has no

right to raise any objection regarding the decree passed by the Wakf

Tribunal since it has become final under Section 83 (7) of the Wakf

Act, 1995.

In Sushil Kumar Mehta v. Govind Ram Bohra (dead) through

his L.R.s (5 supra), the Apex Court held as under:-

"Thus it is settled law that normally a decree passed by a Court of competent jurisdiction, after adjudication on merits of the rights of the parties, operates as res judicata in a subsequent suit or proceedings and binds the parties or the persons claiming right, title or interest from the parties. Its validity should be assailed only in an appeal or revision as the case may be. In subsequent proceedings its validity cannot be questioned. A decree passed by a Court without jurisdiction over the subject matter or on other grounds which goes to the root of its exercise or jurisdiction, lacks inherent jurisdiction. It is a corum non judice. A decree passed by such a Court is a nullity and is non est. Its validity can be set up whenever it is sought to be enforced or is acted upon as a foundation for a right, even at the stage of execution or in collateral proceedings. The defect of jurisdiction strikes at the authority of the Court to pass a decree which cannot be cured by consent or waiver of the party. If the Court has jurisdiction but there is defect in its exercise which does not go to the root of its authority, such a defect like pecuniary or territorial could be waived by the party. They could be corrected by way of appropriate plea at its inception or in appellate or revisional forums, provided law permits. The doctrine of res judicata under Sec. 11 C.P.C. is founded on public policy. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and

was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. Thus the decision of a competent Court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a Court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them."

For the aforesaid reasons and in view of the law laid down by

the Apex Court referred to above, I am of the view that it is the civil

Court that has exclusive jurisdiction to deal with the suit seeking

eviction of the tenants from the wakf property. By Amended Act 27

of 2013, which prospectively came into existence with effect from

01.11.2013, the Wakf Tribunal has conferred the jurisdiction for

eviction from Wakf properties and prior to that the Wakf Tribunal

had no jurisdiction to try suits relating to eviction from wakf

properties. Therefore, the decree passed by the Wakf Tribunal is a

nullity and is non est and its invalidity can be set up whenever it is

sought to be enforced or is acted upon as a foundation for a right,

even at the stage of execution proceedings. Thus, the E.P. filed by