KARNATAKA WAKF BOARDversusSTATE OF KARNATAKA AND ANR.

                       KARNATAKA WAKF BOARD                                      A
                                      V.

                   STATE OF KARNATAKA AND ANR.

                              APRIL 30, 2003

           [S. RAJENDRA BABU, K.G. BALAKRISHNAN AND                              B
                        G.P. MATHUR, JJ.]


        Wakf Act, 1954-Section 6 and Explanation to Section 6(/)-Dispute
 regarding Wakf property-Suit by third party claiming independent title over C
 property after period of limitation-Maintainability of-Plea by Wakf Board
 that suit not maintainable bf'ing time barred-Subsequent addition of
 Explanation to Section 6(/)-lncluding third party as person interested in the
 Wakf-Held, as explanation to section 6(1) operates against third party only
 after its insertion, inhibition under proviso to Section 6 regarding the period
 of limitation not applicable to them when they filed suits since they cannot be D
 construed as person inlerested in the Wakf-Hence suits maintainable.

       By notification certain properties were included as an item in Wakf
 property. Respondents-third party to the Wakf property filed suits in 1981
 claiming title over the property and challenged the notification. Trial court
 uphel~ their claim. Aggril!\'ed appellant-Wakf Board filed an appeal. They      E
 contended that suit being time barred was not maintainable. High Court
 dismissed the same. Hence the present appeal..

       Appellant contended that the suits having been filed after a period
 of one year were not maintainable and they were barred by time.                 F
      Dismissing the appeal, the Court

        HELD: I.I. Under Section 6 of the Wakf Act, 1954 it is stated that if
  any question arises as to whether a particular property specified as Wakf
  property in the list of Wakfs published under sub-section (2) of Section 5 G
  is Wakf property or not, or whether the Wakf specified therein is 'Shia'
  Wakf or 'Sunni' Wakf, the Board, or the Muttawalli, or any person
  interested therein may institute a suit in a civil court within a period of
· one year and the decision of the civil court shall be final. (1025-G, HI

                                     1019                                        H
    1020                    SUPREME COURT REPORTS                  [2003] 3 S.C.R.

A         1.2. It is pertinent to note that by Act 69 of 1984, Explanation to
    Section 6(1) was added. The Explanation is to the effect that the expression
    'any person interested therein', occurring in sub-section (1) of Section 6
    and in sub-section (1) of Section 6-A, shall, in relation to a property
    specified as Wakf property in the list of Wakfs published, include every
B   person who, though not interested in the Wakf concerned, is interested in
    such property and to whom a reasonable opportunity had been afforded
    to represent his case by notice served on him in that behalf during the
    course of the rekvant inquiry. At the time when respondents filed the suits,
    they were strangers and they were not interested in the Wakf as such. The
    Explanation added to Section 6(1) can operate against them only after the
C   insertion of the same in Section 6 of the Act. Prior to the insertion of the
    Explanation, a third party claiming independent title over a property,
    which is illegally included as Wakf property was entitled to file a suit within
    the period provided for under the Law of Limitation'. Therefore, the
    inhibition provided under proviso to Section 6 regarding the period of
    limitation was not applicable to the respondents at the time when they filed
D   the suits. (1026-B-Df

          1.3. The plea that the suits having been filed after a period of one
    year were not maintainable and they were barred by time was rightly not
    accepted by the High Court, as respondents in both these suits cannot be
E   construed as 'persons interested in the Wakr.

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 16897 of
    1996.

            From the Judgment and Order dated I 0.3.1995 of the Karanataka High
F Court in R.F.A. No. 541 of 1986.
                                        WITH

            (C.A. No. 16898 of 1996)

G        Salman Khurshid, Javed A. Warsi, Zaki Ahmed and lrshad Ahmad for
    the Appellant.

         Sanjay R. Hegde, Satya Mitra, G.V. Chandrasekhar for P.P. Singh, S.
    Wasim Qadri, Anil Katiyar, and Ms. Sushma Suri, for the Respondents.

            The Judgment of the Cburt was delivered by
H
    KARNATAKA WAKF BOARD v. STATE [ K.G. BALAKRISHNAN. J.]               I 021
       K.G. BALAKRISHNAN, J. Both these appeals raise common A
questionsof law; hence they were heard jointly and are being disposed of by
a common judgment. Under Section 4 of the Wakf Act, 1954, the Survey
Commissioner of the State ofKarnataka conducted a survey ofWakfproperties
existing in the State of Kamataka. After the survey was over, a list of properties
ofWakfwas prepared under Section (5) of the Act and the same was published
in Official Gazette by Notification on 8. 7. I976. In the said notification, B
property comprising CTS No. 34B in Ward No. VI of Bijapur city was
included as an item of Wakf property. So also, property bearing Survey No.
CTS 34/A2 situated in Ward No. VI in Bijapur ciVith a building thereon
was included as an item of Wakf property. After this notification, the
Department of Education, represented through Deputy Director of Public C
Instructions of the State of Karnataka, filed Original Suit No. III 98 I on the
file of the Additional Civil Judge, Bijapur, against the present appellant
Karnataka Wakf board and four others, for declaration that the inclusion of
the prope11y bearing CTS No. 34B in Ward No. VI of Bijapur city as Wakf
is illegal and void and also for consequential injunction to restrain the
defendants from obstructing the plaintiff's possession over this property. D
Plaintiff had prayed that the notification of the said property as a Wakf
property be declared illegal and void. As an alternative relief, the plaintiff
sought for declaration of title by adverse possession.

      As regards property and the building comprising CTS No. 34/A2 in E
Ward No. VI of Bijapur city, the Department of Agriculture, represented
through Director of Agriculture of the State of Karnataka filed Original Suit
No. 4 of 1981 on the file of the Principal Civil Judge, Bijapur praying for a
declaration of the title of the plaintiff over this property and sought for·
further declaration that the notification published on 8. 7. I976 was illegal and
void. The plaintiff also sought for injunction restraining the defendants from F
obstructing the plaintiff's possession over the suit property.

      In both these suits, the Karnataka State Wakf Board was the first
defendant. The other defendants in both the suits are also common. At first,
we shall take up the case relating to property comprised in Survey No. CTS
No. 34B situated in Ward No. VI of Bijapur city, which is claimed by the G
Education Depa11ment of the Karnataka State. We shall refer to the parties as
arrayed in the original suit. The plaintiff contended that this property originally
belonged to the then Government of Bombay. Then the District Local Board,
Bijapur purchased this prope11y and the value was fixed at Rs. 16,325. Later
on, the District Local Board handed over this property to the District School H
    1022                    SUPREME COURT REPORTS                  (2003) 3 S_.C.R.

A Board. In the year 1961, District School Board constructed an office building
    on- that property. After the re-organisation of the States and coming into
    existence of the State of Karnataka, the District School Board merged into
    the Department of Education and thus, the property came to belong to the
    Department of Education, Government of Karnataka and the plaintiff came
    to know of the notification showing this property as a 'Wakf property' and
B   the plaintiff alleged that it was done at the instance of defendant nos. 2A and
    2B and no notice was served on the plaintiff before the publication of such
    notification.

           The first defendant, the Karnataka Wakf Board denied the allegations
C of the plaintiff. It was contended that the suit property was declared as 'Wakf
    property' by the State Government and, therefore, the plaintiff is estoppeq
    from challenging the validity of that notification and that the plaintiff was
    given sufficient opportunity to dispute any claim, when the Assistant
    Commissioner conducted the survey of Wakf properties. Defendants 2A and
    2B in their first written statement contended that one Arab preacher 'Peer'
D   Mahabare Khandayat came as a missionary to Deccan area in A.O. 1304 and
    erected Mecca Masjid at Bijapur. It is alleged that the whole area is known
    as 'Arkilla area' and the suit property has been treated as 'Wakf property'
    and is being managed and maintained by 'Sajjadanashin' and defendant nos.
    2A and 2B are the 'Sajjadanashins' and managing 'Mutawalli' in respect of
E   the suit property.

          We heard learned senior counsel, Shri Salman Khursheed who appeared
    for the appellant Karnataka Wakf Board and also Mr. Sanjay R. Hegde who
    appeared for the respondents. As regards Original Suit No. I of 1981 filed
    by the Department of Education, there is satisfactory and convincing
p   documentary evidence to show that this property belongs to the Education
    Department. Exh. I is the certified copy of the order passed by the Government
    of Bombay dated 29.5.1941 which shows that two acres of land in Bijapur
    was sanctioned by the Government of Bombay to the District Local Board,
    Bijapur. The occ:upancy price was fixed at Rs. 16,325/- and this occupancy
    price was exempted by the Government. Certain conditions were imposed on
G   the District Local Board for the user of the said property. Exh. P2 is a letter
    addressed by the Collector of Bijapur to the President of the District Local
    Board. In both these documents, the property has been described as CTS No.
    34B. Exh. P-3 is also an important document, which shows that the property
    was resumed from the District Local Board by the Government and the same
H   was given to District School Board. Exh. P-4, the property register of 1941
    KARNATAKA WAKF BOARD v. STATE[K.G. BALAKRISHNAN.J.]                  1023
also shows that it was described as the p1 operty belonging to the 'District A
School Board. These documents are clinching evidence to prove the title of
the plaintiff. The defendants could not bring any counter evidence to question
the credibility of these documents. Though the defendants had contended that
the Arab religious preacher by name 'Peer' Mahabare Khandayat came to
India in A.O. 1304 and occupied the entire Arkilla area, there are no documents
to show that the suit property was ever in possession of Wakf Board and B
under the control and management of defendant nos. 2A and 2B.

      It is true that the suit property was very close to the Arkilla area, but
the defendants 2A and 2f3. could not produce any documents at least to prove
the possession and enjoyment of this property. The second defendant produced C
Exh. 04 to show that in CTS records of the years I980, the name of the
second defendant was mentioned in respect of the suit property. Except this
document, defendants 2A and 2B could not produce any other document. But
that by itself is not sufficient to establish the possession of the defendants.
The plaintiff by the various documents successfully proved its title and the
trial Court rightly held that the plaintiff has got title to this property.     D
       In respect of the property comprising CTS No. 34/4A-2 situated in
 Ward No. VI of Bijapur city, the State of Karnataka is represented by Deputy
 Director of Agriculture, who was the plaintiff. The Plaintiff No. I was initially
 designated as Deputy Director of Agriculture, Bijapur city. The Government
 of Karnataka changed the designation of Plaintiff No. I as Principal E
 Agricultural Officer. It was contended on behalf of the plaintiff that out of
the property comprising CTS 34/A-1, an area admeasuring 1600 square yards
had been granted by Deputy Commissioner Bijapur by Order No. RD-LBP-
SR.167-63 dt. 12.4.1965 on the occupancy price of Rs. 25/- to the District
Agricultural Officer. The Plaintiff No. I is the Executive Officer/Convenor F
of the Farmer's forum of Bijapur district. Plaintiff Nos. 2 and 3 are respectively
the President and Secretary of the Farmer's forum. The office building was
constructed on the suit property in 1964-65 by spending a huge amount. At
the instance of defendants 2A and 2B, this property was included in the
notification dated 21.4.19.76 as 'Wakf property. No notice was served on the
plaintiff before the said notification. Defendants were never the owners in G
possession or'this property and the inquiry under Section 67 of the Karnataka
Land Revenue Act was not done properly. Plaintiff was given notice on
27 .1.1979 and plaintiff no. I appeared and prayed for adjournment to produce
the documents, but the Deputy Commissioner rejected his prayer and passed
an order holding that the suit property was 'Wakf property. Plaintiff had 1-1
    1024                    SUPREME COURT REPORTS                  [2003] 3 S.C.R.

A issued notice under Section 80 CPC read with Section 56 of the Wakf Act
    to the defendants before filing the suit.

           In this case also, the Defendant No. I contended that the suit property
    was 'Wakf property' and it never belonged to the Department of Agriculture
    of the State of Karnataka. It was also contended that the plaintiff was not
B   entitled to challenge the notification published by the State Government.
    Defendants 2A and 28 raised similar contention that religious preacher 'Peer'
    Mahabare Khandayat came to India in A.D. 1304 and occupied the whole
    'Arkilla' area and erected Mecca Masjid and the entire area, including the
    suit property thus, became 'Wakf property' and for the past 7 centuries, it is
C   being treated as 'Wakf property'.

         In Original Suit No. 4 of 1981 the plaintiff relied on P3 document. The
  Hon. Secretary of the District Farmer's Forum was examined as PW I. He
  deposed that an extent of land measuring 1680 square yards was granted to
  District Fanner's Forum and in the year 1965, the forum constructed a building
D spending about two and a half lakhs rupees. Exh. P4 is an important document
  which shows that a grant was made in favour of the Farmer's forum for
  constructing a training-cum-meeting hall. Exh. P5 is the property register
  card relating to the suit property issued by the City Surveyor, Bijapur. This
  shows that the property was in the name of the first plaintiff in the year 1965.
  The defendants could not produce any satisfactory evidence to prove their
E title or possession of this property. The defendants sought to place reliance
  on a book written by T.W. Arnold which states about saint 'Peer' Mahabare
  Khandayat but the statements made in such books cannot be relied on unless
  supported by any contemporaneous records and the trial Court as well as the
  High Court rightly declined to take cognizance of the statements made in the
F said book. As regards suit property in O.S. No. 4 of 81 also, the plaintiff
  succeeded in proving the title and possession.

          In both the appeals, the appellant has raised a common question that
    these suits were not maintainable in view of Section 6 of the Wakf Act, 1954
    and it was contended that suits of this nature should have been filed within
G   the period of one year from the date of publication of the list of Wakf's
    properties under sub-section (2) of Section 5. The relevant Section 6 of the
    Wakf Act 1954 reads as follows:-

            "6. Dispute regarding Wakft : (I) If any question arises [whether a
            paiticular property specified as Wakf property in a list of Wakfs
H           published under sub-section (2) of Section 5 is Wakf property or not
         KARNATAKA WAKF BOARD v. STATE [ K.G. BALAKRISHNAN. J.] 1025

             whether a Wakf specified in such list is a Shi a Wakf or Sunni Wakf] A
             the Board or the mutawalli of the. Wakf or any person interested
             therein may institute a suit in a civil court of competent jurisdiction
             for the decision ·of the question and the decision of the civil court in
             respect of such matter shall be final :

                  Provided that no such suit shall be entertained by the civil court      B
             after the expiry of orie year from the date of the publication of the list
             of Wakfs under sub-section (2) of Section 5 :

                [Provided further that in the case of the list of Wakfs relating to
            any pai1 of the State and published or purporting to have been
            published before the commencement of the Wakf (Amendment) Act,                C
            1969 (38 of 1969), such suit may be entertained by the civil court
            within the period of one year from such commencement.]

                 [Explanation.- For the purposes of this section and Section 6-A,
            the expression 'any person interested therein', occurring in sub-section
            (1) of this section and in sub-section (1) of Section 6-A, shall, in D
            relation to any property specified as Wakf property in a list of Wakfs
            published, under sub-section (2) of Section 5, after the commencement
            of the Wakf (Amendment) Act, 1984, shall include also every person
            who, though not interested in the Wakf concerned, is interested in
            such property and to whom a reasonable opportunity had been afforded E
            to represent his case by notice served on him in that behalf during the
            course of the relevant inquiry under Section 4.]
,.          (2) x      x       x      x        x

            (3) x      x       x      x         x
                                                                                          F
            (4) x      x       x      x        x

            (5) x      x       x      x         x"

            Under Section 6 of the Wakf Act, 1954, it is stated that if any question
     arises as to whether a particular property specified as Wakf property in the G
     list of Wakfs published under sub-section (2) of Section 5 is Wakf prope11y
     or not, or whetherthe Wakfspecified therein is 'Shia' Wakfor 'Sunni' Wakf,
     the Board, or the Muttawalli, or any person interested therein may institute
     a suit in a civil court within a period of one year and the decision of the civil
     court shall be final.
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    1026                     SUPREME COURT REPORTS                     (2003] 3 S.C.R.

A         According to the appellant's counsel, these suits, having been filed
    after a period of one year were not maintainable and they were barred by
    time. This plea was not accepted by the High Court, in our view, rightly, as
    the plaintiff in both these suits cannot be construed as 'persons interested in
    the Wakf.' It is pertinent to note that the Explanation to Section 6( I) was
    added by Act 69 of 1984. The Explanation is to the effect that the expression
B   'any person interested therein', occurring in sub-section (I) of Section 6 and
    in sub-section (I) of Section 6-A, shall, in relation to a property specified as
    Wakf property in the list of Wakfs published, include every person who,
    though not interested in the Wakf concerned, is interested in such property
    and to whom a reasonable opportunity had been afforded to represent his
C   case by notice served on him in that behalf during the course of the relevant
    inquiry. At the time when these plaintiffs filed the suits, they were strangers
    and they were not interested in the Wakf as such. The Explanation added to
    Section 6( I) can operate against these plaintiffs only after· the insertion of the
    same in Section 6 of the Act. Prior to the insertion of the Explanation, a third
    party claiming independent title over a property, which is illegally included
D   as Wakf property was entitled to file a suit within the period provided for
    under the Law of Limitation. Therefore, the inhibition provided under Proviso
    to Section 6 regarding the period of limitation was not applicable to the
    plaintiffs at the time when they filed the suits.

E         Both the appeals are without any merit and therefore, these are dismissed
    with costs.

    N.J.                                                          Appeals dismissed.