TELANGANA STATE WAKF BOARD & ANR.versusMOHAMED MUZAFAR

                         [2021] 8 S.C.R. 63                              63


         TELANGANA STATE WAKF BOARD & ANR.                               A
                                  v.
                     MOHAMED MUZAFAR
                   (Civil Appeal No. 4522 of 2021)
                         AUGUST 03, 2021                                 B
        [HEMANT GUPTA AND A. S. BOPANNA, JJ.]
       Wakf Act, 1995: ss. 6, 7, 83 and 85 – Disputes regarding
wakfs properties – Power of tribunal to determine – On facts, suit
by Wakf Board before the Wakf tribunal seeking eviction of tenant
                                                                         C
from property belonging to Wakf Institution – Case of the tenant
that suit property not a wakf property and extent of land also
disputed – Tribunal held the suit properties to be the property
belonging to the Wakf institution and directed the tenant to vacate
the suit porperties – High Court set aside the order holding that the
suit was not maintainable before the Wakf tribunal – On appeal,          D
held: Judgment passed by the Wakf tribunal was rendered in a suit
which was maintainable before the Wakf tribunal and it had the
jurisdiction to do so – Tribunal relied upon the evidence available
and had arrived at the conclusion that the property in question is
Wakf property and had accordingly decreed the suit – Evidence
                                                                         E
available on record has been analysed in its correct perspective
and an appropriate conclusion has been reached by the Wakf tribunal
– High Court did not adhere to the norm of limited scope available
in a Revision Petition – Further the order by the High Court to hold
that the suit was not maintainable before the tribunal not justified
and cannot be sustained – Thus, the order passed by the High Court       F
is set aside and the judgment passed by the Wakf Tribunal is restored.
      Allowing the appeal, the Court
      HELD: 1.1 The consideration by the High Court ought not
to have been in the nature of reappreciating the evidence which
is permissible in an appeal. In a Revision Petition the scope of         G
consideration is limited and the judgment/order under challenge
can be interfered only in the event of there being perversity seen
on the face of the order and if the conclusion reached cannot be
acceptable to any reasonable person. On the factual aspects, the
tribunal had referred to the evidence including the manner in            H
                                63
64            SUPREME COURT REPORTS                       [2021] 8 S.C.R.


A    which the extent of the Wakf property was rectified and indicated
     as 998.66 sq. yards and also had taken into consideration the
     first round of litigation between the Wakf Board and the father of
     the respondent wherein the conclusion reached was that the
     property in question is Wakf property. Therefore, such finding of
     fact recorded by the tribunal based on evidence available on
B
     record could not have been lightly interfered with by the High
     Court. [Para 14][72-D-F]
            1.2 The appellants at the first instance had issued a notice
     to the respondent terminating the tenancy relating to the suit ‘A’
     schedule property. A further notice was issued in respect of the
C    suit ‘B’ schedule property requiring the respondent to vacate
     the encroached portion. The respondent, by his reply notice
     denied that the property in question was a Wakf property. In the
     said circumstance, the instant case cannot be deemed as an
     admitted case of the property being Wakf property as in the reply
D    notice itself the respondent had disputed the same. It is in that
     circumstance the appellants being of the impression that the first
     issue to be established is that the property in question is the
     Wakf property, which could be considered by the tribunal, had
     filed the suit before the Wakf tribunal. [Para 20][75-C-E]
E           1.3 The inclusion of the property in the gazette dated
     29.12.1988 which was disputed by the respondent was taken into
     consideration. In that light, through the discussion and conclusion
     reached by the High Court while adverting to the submission of
     encroachment of 40 sq. yards which was described in Schedule
     ‘B’ to the suit it has indicated that there is no evidence of required
F    standard as to how the extent of Wakf property had increased
     from 667.8 sq. yards to 998.66 sq. yards and by mere recital in
     the gazette notification and the resurvey report, the Muntakhab
     and the amended Muntakhab would not be sufficient to decide
     the suit since the tenant had denied the case of the plaintiffs that
G    the ‘B’ schedule property is a Wakf property. The High Court
     further held that the aspect as to whether the ‘B’ schedule
     property is a Wakf property or not cannot be decided without
     affording an opportunity to the tenant to question the correctness
     of the contents of the gazette notification by following the
     procedure established by law. [Para 21][76-C-F]
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 TELANGANA STATE WAKF BOARD & ANR. v. MOHAMED                         65
                   MUZAFAR

       1.4 The very observations made by the High Court, would        A
indicate that the suit was maintainable before the Wakf tribunal
in the facts and circumstances of the instant case. This is so for
the reason that the High Court noticed that the grievance put
forth by the respondent to contend that the property is not Wakf
property is by disputing the extent as shown in the gazette
                                                                      B
notification as 998.66 sq. yards since according to the respondent
the actual extent is 667.8 sq. yards and therefore the land in
occupation by the respondent is beyond that extent. Therefore,
in fact the submission put forth by the tenant is with reference to
the gazette notification and to submit that the extent of property
in occupation is not within the extent as shown in the gazette        C
notification or otherwise. The dispute in effect is to question the
extent of land beyond 667.8 sq. yards being included to be the
property of the Wakf Institution which is included in the list and
as such whether that extent in the list is Wakf property. That will
be a question which falls under Section 7 of the Waqf Act. The
                                                                      D
very observation of the High Court indicating that an opportunity
is to be afforded to the respondent to question the correctness
of the contents of the gazette notification by following the
procedure established by law is to allow the respondent to invoke
the provisions of Section 6 and 7 of the Wakf Act and seek
appropriate orders. [Para 22][76-F-H; 77-A-C]                         E
      1.5 Though the legal remedy had not been availed by the
respondent within the time frame as provided under Section 6 of
the Act, the issue had fallen for consideration before the Wakf
tribunal in view of the defence put forth by the respondent and
the Wakf tribunal had rendered its finding on that aspect based       F
on the evidence placed before it. Since the gazette notification
had been questioned to indicate that the property which is in the
occupation of the respondent was not a part of the notified Wakf
property, the same applied both to the suit Schedule ‘A’ as well
as Schedule ‘B’ properties. In such circumstance, the Wakf
tribunal had the jurisdiction to determine that question which        G
had been framed as an issue in this suit. Further , on the facts
evolving in the instant case, the tribunal had relied upon the
evidence available and had arrived at the conclusion that the
property in question is Wakf property and had accordingly decreed
the suit. [Para 23][77-C-E]                                           H
66           SUPREME COURT REPORTS                      [2021] 8 S.C.R.


A           1.6 The judgment passed by the Wakf tribunal was rendered
     in a suit which was maintainable before the Wakf tribunal and it
     had the jurisdiction to do so. Insofar as the nature of the
     consideration made, it is noticed that the evidence available on
     record has been analysed in its correct perspective and an
     appropriate conclusion has been reached by the Wakf tribunal.
B
     On the other hand, the High Court did not adhere to the
     well-established norm of limited scope available in a Revision
     Petition. Further the conclusion reached by the High Court to
     hold that the suit was not maintainable before the tribunal is also
     not justified. The order passed by the High Court, therefore,
C    cannot be sustained, and is set aside. The judgment passed by
     the State Wakf Tribunal is restored. The respondent is granted
     three months’ time to vacate and handover vacant possession of
     the suit schedule ‘A’ and ‘B’ properties subject to payment of
     rent, including arrears. [Para 24, 25][77-F-H; 78-A-C]
D          Ramesh Gobindram v. Sugra Humayun Mirza Wakf
           (2010) 8 SCC 726 : [2010] 10 SCR 945; Kiran Devi v.
           Bihar State Sunni Wakf Board and Others (2021) SCC
           Online SC 280; Faseela M. v. Munnerul Islam Madrasa
           Committee and Another (2014) 16 SCC 38 : [2014] 4
           SCR 613; Board of Wakf, West Bengal and Another v.
E          Anis Fatma Begum and Another (2010) 14 SCC 588 :
           [2010] 13 SCR 1063; Haryana Wakf Board versus
           Mahesh Kumar (2014) 16 SCC 45 : [2013] 12 SCR
           596; Punjab Wakf Board v. Sham Singh Harike (2019)
           4 SCC 698 : [2019] 2 SCR 61 – referred to.
F                             Case Law Reference
     [2010] 10 SCR 945              referred to           Para 8
     [2014] 4 SCR 613               referred to           Para 17
     [2010] 13 SCR 1063             referred to           Para 18
G
     [2013] 12 SCR 596              referred to           Para 18
     [2019] 2 SCR 61                referred to           Para 18



H
 TELANGANA STATE WAKF BOARD & ANR. v. MOHAMED                                  67
                   MUZAFAR

       CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4522                     A
of 2021.
       From the Judgment and Order dated 02.06.2014 of the High Court
of Judicature at Hyderabad for the State of Telangana and the State of
Andhra Pradesh rendered in Civil Revision Petition No. 1331 of 2013.
       Ms. Akriti Chaubey, Ejaz Maqbool, Advs. for the Appellants.             B
       Raavi Venkata Yogesh, Ms. Snigdha Singh, Ms. Tatini Basu, Advs.
for the Respondent.
       The Judgment of the Court was delivered by
       A. S. BOPANNA, J.
       1. The appellant No.1 is the Andhra Pradesh State Wakf Board,           C
while the appellant No.2 is the Mutawalli of the registered Wakf institution
which is known as Graveyard Mir Rahmat Ali Shah. The said Wakf
institution is stated to have been registered under Muntakhab bearing
No. 998 dated 24.02.1953 and later entered in the book of endowment
showing an extent of 666 sq. yards. The Muntakhab was amended by               D
the Wakf Board in its resolution dated 21.04.1988 to the extent of
correcting the land of the Wakf institution as 998.66 sq. yards and the
same was published in the gazette notification dated 29.12.1988. The
wakf institution/graveyard is situated near Tek Masjid, Nampally,
Hyderabad.
                                                                               E
       2. The father of appellant No.2, Late Mir Dawood Ali was the
Mutawalli appointed by the Wakf Board, whose name is recorded in the
gazette referred to above. The appellant averred that during the lifetime
of the father of appellant No.2, the father of the respondent, namely,
Late M.A Qayyum had obtained on rent the premises bearing Municipal
No. 5-7-420/2 measuring 90.16 sq. yards belonging to the Wakf institution.     F
The father of the respondent was running a firewood stall which he later
converted into a hotel and has been running the hotel business in the
name and style “Hotel Najran”.
       3. The case of the appellant was that the father of the respondent
was paying rent in respect of the property and was being enhanced              G
from time to time. The respondent, after he became a major continued
the tenancy of his father in respect of the said premises and the monthly
rent at the time of filing the suit was Rs.1,500/- excluding electrical and
water charges. The respondent is stated to have suceeded to the tenancy
in the year 1995 and the rent was being paid to the Wakf Board since
the institution at that point was under direct management of the Board in      H
68            SUPREME COURT REPORTS                           [2021] 8 S.C.R.


A    view of the death of the original Mutawalli i.e., the father of appellant
     No.2. Subsequent thereto the appellant No.2, as the successor was
     appointed as the Mutawalli in place of his father vide the proceedings
     dated 04.07.2005 which was published in the gazette on 04.08.2005.
     The appellant No.2 intimated this fact to all the tenants of the property
     belonging to the Wakf institution through a letter dated 14.11.2005,
B
     whereafter the rent was being paid to him directly. In respect of the
     premises in the occupation of respondent the rent was not being paid
     regularly, which accumulated to Rs.24,500/-. Despite repeated requests
     the respondent had not paid the arrears from the month of November
     2005 for a period of 7 months which amounted to Rs.10,500/-. The
C    respondent therefore was due to pay the total amount which was due
     and unpaid.
            4. The appellant further averred that while the Wakf institution
     was under the direct management of the Wakf Board, the respondent
     had encroached upon 40 sq. yards site of the graveyard on the western
D    side of the tenanted premises, constructed road thereon and started
     running a firewood stall. The appellant No.2 noticed the same when he
     assumed charge on 04.07.2005. Though the appellant No.2 requested
     the respondent to pay damages for the use and the illegal occupation
     and vacate both the properties, namely the tenanted as well as the
     encroached portion, the respondent did not vacate. In that background,
E    the appellant No.2 got issued the legal notice dated 23.05.2006 terminating
     the tenancy of the tenanted portion with effect from 01.07.2006 and
     demanded to remove the encroachment. The respondent on receipt of
     the notice made payment of Rs.4,500/- as part of the arrears of rent
     through a money order and also a sum of Rs.4,500/- was paid directly to
F    the appellant No.2 towards the rent for the months of August, September
     and October, 2005. The respondent however got issued reply notice
     dated 12.06.2006 wherein he denied that the tenanted portion and the
     alleged encroached portion referred to was Wakf property and that his
     father had taken it on rent. Further, all claims made by the appellants
     were also denied.
G
            5. In the above backdrop, the appellants were constrained to file
     a suit bearing O.S. No.126/2006 before the Andhra Pradesh State Wakf
     Tribunal, Hyderabad seeking eviction of the respondent from the property
     belonging to the Wakf institution. The tenanted portion referred to above
     was delineated as Schedule ‘A’ in the plaint while the encroached portion
H
 TELANGANA STATE WAKF BOARD & ANR. v. MOHAMED                                  69
          MUZAFAR [A. S. BOPANNA, J.]

was shown as Schedule ‘B’. The respondent who was arrayed as                   A
defendant in the suit had appeared and filed his written statement wherein
inter alia he had contended that the suit property is not a Wakf property
and that the exhibit filed by the appellants dated 30.10.1994 pertaining to
the graveyard is of an extent of 667.8 sq. yards. It was further contended
that the gazette notification clearly established that this graveyard is not
                                                                               B
having any non-agricultural lands such as mulgies and houses etc. He
further claimed that the property bearing No. 5-7-420/2 stood in the
name of his father. The gazette notification dated 29.12.1988 mentioning
the extent as 998.66 sq.yards was disputed and contended that the same
does not exist. Further, the case put forth by the appellants herein as
plaintiff in the suit was disputed in toto.                                    C
     6. The Wakf tribunal on taking note of the rival contentions had
framed the following issues for consideration: -
      “1. Whether the land covered by H. No.5-7-420/2, situated at
      Nampally Hyderabad is part of notified Wakf Graveyard?
                                                                               D
      2. Whether there is a relationship of land lord and tenant between
      the parties.
      3. Whether the plaintiff is entitled to evict the defendant as prayed
      for?
      4. Whether the plaintiff is entitled to arrears of rent, mesne profits   E
      as prayed for?
      5. To what relief?”
       The parties accordingly tendered evidence before the Wakf tribunal
so as to discharge the burden cast on them.
                                                                               F
       7. The appellant No.2 examined himself as PW.1. Though, witness
Mr. Mohd. Yousuf Qureshi was examined as PW.2, he was not tendered
for cross-examination and therefore his chief-examination was eschewed.
The appellants also relied upon the documents which were marked as
Exhibits A1 to A24. The respondent examined himself as DW.1 and also
examined a witness Mr. Mohd. Abdul Aziz as DW2 and relied upon the             G
documents at Exhibits B-1 to B-40. The Wakf tribunal after taking note
of the rival contentions and the evidence tendered, held the issues in
favour of the appellants and decreed the suit holding the suit schedule
properties to be the property belonging to the Wakf institution and directed
                                                                               H
70            SUPREME COURT REPORTS                          [2021] 8 S.C.R.


A    the respondent to vacate the suit schedule properties. The judgment to
     that effect was rendered by the Wakf tribunal on 12.10.2012.
            8. The respondent claiming to be aggrieved by the said judgment,
     preferred a Revision Petition under Section 83 of the Wakf Act before
     the High Court of Judicature at Hyderabad in Civil Revision Petition
B    No.1331/2013. The High Court while adverting to the rival contentions
     has allowed the Revision Petition and set aside the judgment passed by
     the Wakf tribunal. The High Court passed the said order on 02.06.2014.
     It has referred to the decision of this Court in the case of Ramesh
     Gobindram vs. Sugra Humayun Mirza Wakf (2010) 8 SCC 726; has
     accordingly held that the suit was not maintainable before the Wakf
C    tribunal and has allowed the parties to avail their remedy as per law. The
     appellants, therefore, claiming to be aggrieved by the said judgment are
     before this Court in this appeal.
           9. We have heard Ms Akriti Chaubey, learned counsel for the
     appellants and Mr. Raavi Venkata Yogesh, learned counsel for the
D    respondent and perused the appeal papers as also the written submissions
     submitted by the respective learned advocates.
            10. As noted from the fact situation narrated above, the appellant
     had contended that the suit schedule properties are Wakf properties and
     had claimed that the respondent is a tenant in respect of Schedule ‘A’
E    property and that he had encroached the Schedule ‘B’ property which
     also belongs to Wakf institution. The respondent had contended that the
     suit properties are not Wakf properties. From the issues framed by the
     Wakf tribunal, it is noticed that the consideration which was required at
     the outset was to conclude whether the land covered by H No.5-7-420/
F    2 situated at Namapally, Hyderabad is a part of the notified Wakf
     Graveyard. Similarly, the status of Schedule ‘B’ property which was
     alleged to be encroached by the respondent was also to be determined,
     if it was also part of Wakf property. It is in that regard, the tribunal
     having noted the contentions has analysed the same with reference to
     the evidence. What was highlighted by the respondent is that the gazette
G    notification indicated only 668 sq. yards and as such the suit schedule
     properties do not form part of the same. In that regard, though the
     appellants relied on the notification dated 29.12.1988 to contend that the
     extent of the land belonging to the Wakf institution is 998.66 sq. yards
     the respondent disputed the existence of such notification.
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 TELANGANA STATE WAKF BOARD & ANR. v. MOHAMED                                  71
          MUZAFAR [A. S. BOPANNA, J.]

       11. The Wakf tribunal, apart from referring to the said documents       A
had also taken note of the fact that an earlier suit in O.S. No. 186 of
1982 had been instituted by the appellant No.1 herein against the father
of the respondent. The judgment passed therein was marked as Exhibit
A13 in the present suit. The tribunal having noted the same and the
nature of the contentions put forth had in that regard taken into
                                                                               B
consideration the written statement filed by the father as at Exhibit A15,
as also the panchnama dated 1.09.2005 at Exhibit A17. In that light, the
Wakf tribunal had noted that when the respondent herein had claimed to
have succeeded to the property of his father and in respect of same
property when the father had taken a particular stand in the suit filed
against him, the respondent would be estopped from putting forth any           C
other contention, keeping in view, the provision contained in Section 116
of the Evidence Act.
       12. In addition, the tribunal had also taken into consideration the
fact that the brother of the respondent had filed a writ petition bearing
No. W.P. 26338 of 2007 challenging the gazette dated 29.12.1988 wherein        D
the extent of the property belonging to the Wakf institution is shown as
998.66 sq. yards. The contents of the gazette was extracted and noted
by the tribunal, wherein it was indicated that the amendment to Muntakhab
No.998 in file No.2195/2/1350 fasli was notified in Andhra Pradesh gazette
dated 29.12.1988. Thus, as per the amended Muntakhab the open land
measuring 998.66 sq. yards and the premises bearing MCH numbers 5-             E
7-429, 5-7-420/1, 5-7-420/2 and 5-7-420/3 are Wakf properties.
Therefore, based on the said conclusion and the finding rendered on
other aspects by the tribunal, the tribunal had at the outset arrived at the
conclusion that the property in question is Wakf property. In that regard
to disbelieve the documents relied on by the respondent at Exhibits B1 to      F
B37 namely the receipts and the claim that the slum certificate is issued,
the tribunal has noted the corrections made therein which is visible to
the naked eye and as such did not accept the same.
       13. Insofar as the Schedule ‘B’ property, the tribunal had taken
into consideration the notice at Exhibit A7 which was issued by the            G
appellants. In order to arrive at the conclusion that the said property also
forms a part of the Wakf property which is the Graveyard, the tribunal
had referred to Exhibit A16, i.e., plan which was made in the year 1985
by the Wakf Board. From the said plan, the tribunal had noticed that the
Schedule ‘A’ and ‘B’ properties form a part of the Wakf properties
                                                                               H
72            SUPREME COURT REPORTS                           [2021] 8 S.C.R.


A    which was also depicted in the photographs which was marked as Exhibit
     A22. It is in that light, the Wakf tribunal had arrived at the conclusion
     that the relief prayed for in the suit is liable to be granted and the suit
     was decreed in favour of the appellants herein.
             14. The High Court on the other hand, before holding that the suit
B    ought not to have been instituted before the Wakf tribunal in view of the
     judgment rendered by this Court in the case of Ramesh Gobindram
     (supra) has in fact attempted reappreciation of the evidence which was
     tendered before the tribunal. Reference is made to the Entry at Serial
     No.1698 and the indication of the Wakf institution known as Graveyard
     Rehmat Ali Sahab, area noted as 667.8 sq. yards at Cross road, Masjid
C    Nampally. It was concluded that the same does not tally. The gazette
     notification dated 29.12.1988 was mentioned, wherein the extent is
     indicated as 998.66 sq. yards but the same was disbelieved. At the outset
     it is necessary to indicate that the consideration by the High Court ought
     not to have been in the nature of reappreciating the evidence which is
D    permissible in an appeal. In a Revision Petition the scope of consideration
     is limited and the judgment/order under challenge can be interfered only
     in the event of there being perversity seen on the face of the order and
     if the conclusion reached cannot be acceptable to any reasonable person.
     In the instant case, on the factual aspects as noted, the tribunal had
     referred to the evidence including the manner in which the extent of the
E    Wakf property was rectified and indicated as 998.66 sq. yards and also
     had taken into consideration the first round of litigation between the
     State Wakf Board and the father of the respondent wherein the conclusion
     reached was that the property in question is Wakf property. Therefore,
     such finding of fact which had been recorded by the tribunal based on
F    evidence available on record could not have been lightly interfered with
     by the High Court.
            15. In that regard it would be appropriate to refer to the decision
     of this Court in Kiran Devi versus Bihar State Sunni Wakf Board
     and Others 2021 SCC Online SC 280 which was authored by one of us
G    (Justice Hemant Gupta) wherein the scope of jurisdiction to be exercised
     under Section 83 of Wakf Act is crystallised as follows:-
           “20. 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.
H          Therefore, it is wholly immaterial that the petition was titled as a
 TELANGANA STATE WAKF BOARD & ANR. v. MOHAMED                                   73
          MUZAFAR [A. S. BOPANNA, J.]

      writ petition. It may be noticed that in certain High Courts, petition    A
      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 in the light of proviso to sub-section (9) of Section
      83 of the Act, the High Court exercised jurisdiction only under the
                                                                                B
      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.”
       16. Be that as it may, having noticed the manner of consideration        C
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               D
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      E
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        F
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        G
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        H
properties.
74             SUPREME COURT REPORTS                            [2021] 8 S.C.R.


A           17. The learned counsel for the respondent has however, referred
     to the decision of this Court in the case of Faseela M. vs. Munnerul
     Islam Madrasa Committee and Another (2014)16 SCC 38 to point
     out that in a similar consideration made by another Bench of this Court
     relating to the jurisdiction of Wakf tribunal, this Court has held that even
     in a case where it is disputed by the defendant that the property is not a
B
     Wakf property and if it is a case seeking eviction of the tenant, the suit is
     required to be filed before the civil court and jurisdiction of the Wakf
     tribunal cannot be invoked.
            18. The learned counsel for the appellants has on the other hand
     drawn our attention to the other decisions of this Court on the same
C    issue. In the case of Board of Wakf, West Bengal and Another vs
     Anis Fatma Begum and Another (2010) 14 SCC 588 and in the case
     of Haryana Wakf Board versus Mahesh Kumar (2014) 16 SCC 45
     this Court has held that the question as to whether a property is Wakf
     property or otherwise is exclusively determinable by the Wakf tribunal
D    after enactment of the Wakf Act. The decision in the case of Punjab
     Wakf Board vs Sham Singh Harike (2019) 4 SCC 698 is also referred
     by the learned counsel for the appellant to contend that in order to
     determine as to whether there is a bar on the jurisdiction to the civil
     court in relation to the provision contained in Wakf Act, one is to ask the
     question as to whether the issue raised in the suit or proceeding concerned
E    is required to be decided under the Wakf Act, 1995 by the tribunal under
     any provision or not and if the answer to that question is in the affirmative
     the bar of jurisdiction of the civil court would operate.
            19. Having noted the various decisions rendered by this Court
     which are all by a coram consisting of two judges it would also be apposite
F    for us to take note of the decision in the case of Kiran Devi (supra)
     rendered by a coram of three Hon’ble Judges. The said case also related
     to a suit instituted by the tenant in respect of the suit premises seeking
     declaration to that effect and to continue in the suit premises as tenant
     on payment of monthly rent. In the said case, the suit in question was
G    filed by the plaintiff before the competent civil court but the defendants,
     namely the Wakf Board had contended that the issue is to be decided by
     Wakf tribunal. They filed application and sought transfer of the suit to
     the Wakf tribunal which was accordingly ordered by the civil court and
     was also upheld by the High Court in Revision. Subsequently, having
     succeed on merits before the Wakf tribunal, had failed in the writ petition
H
 TELANGANA STATE WAKF BOARD & ANR. v. MOHAMED                                    75
          MUZAFAR [A. S. BOPANNA, J.]

wherein the claim of plaintiff was upheld. The Wakf Board at that point          A
raised the contention that the tribunal did not have the jurisdiction in the
appeal filed before this Court by placing reliance on Ramesh Gobindram
(supra). This Court in the facts arising therein had held that the judgment
passed by the Wakf tribunal in the circumstance cannot be held as without
jurisdiction. The said case is one more circumstance to indicate that the
                                                                                 B
facts and circumstance in each case will have to be taken note in the
background of the legal frame work contained in the Wakf Act to
determine jurisdiction.
        20. In that light, in the present facts it is to be noted that the
appellants at the first instance had got issued a notice dated 23.05.2006
to the respondent terminating the tenancy relating to the suit ‘A’ schedule      C
property. A further notice was issued in respect of the suit ‘B’ schedule
property requiring the respondent to vacate the encroached portion. The
respondent, by his reply notice dated 12.06.2006 denied that the property
in question was a Wakf property. In the said circumstance, the instant
case cannot be deemed as an admitted case of the property being Wakf             D
property as in the reply notice itself the respondent had disputed the
same. It is in that circumstance the appellants being of the impression
that the first issue to be established is that the property in question is the
Wakf property, which could be considered by the tribunal, had filed the
suit before the Wakf tribunal. The respondent having appeared, filed the
written statement and inter alia had contended as follows: -                     E

       “3. This defendant submits that with regard to the averments made
       in para 1 of the plaint and the documents annexed clearly shows
       that the suit property is not a Wakf Property. The Gazette filed by
       the Plaintiffs dated 30.10.1984 pertains to the so called graveyard
       is of an extent of 667.8 sq. yards. The said Gazette notification         F
       clearly establish that this Graveyard is not having any non
       agricultural land such as mulgees and houses etc. on the other
       hand as evident from the Municipal records, electricity and water
       works department record, that the premises bearing No.5-7-420/
       2 stands in the name of the father of this defendant. This defendant      G
       further submits that there is no such Gazette notification dated
       21.12.1999 and the extent mentioned 998.66 sq. yards is not
       supported by any documentary evidence. The 2 gazette
       notifications filed by the Plaintiffs are self-contradictory. The so
       called grave yard is endowed with any property more over there
                                                                                 H
76             SUPREME COURT REPORTS                            [2021] 8 S.C.R.


A          will not be any attached properties for the burial grounds as there
           will be no developmental activities or maintenance like the other
           wakf institutions namely the dargah masjid or ashurkhana as much
           the averments made in Para 1 of the plaint is wholly contrary to
           the Gazette itself. The plaintiffs are put to strict proof of the same.”
B           21. Apart from the contention put forth by the respondent what is
     also to be taken note is that the High Court has made detailed reference
     to the contention put forth by the respondent regarding the gazette
     notification relating to the property as claimed by the appellants and the
     discrepancy as pointed out by the respondent by claiming that the extent
     mentioned is 667.8 sq. yards and not 998.66 sq. yards as contended by
C    the appellants. The inclusion of the property in the gazette dated
     29.12.1988 which was disputed by the respondent was also taken into
     consideration. In that light, through the discussion and conclusion reached
     by the High Court in paras 12 and 13 (b) of the order while adverting to
     the contention of encroachment of 40 sq. yards which was described in
D    Schedule ‘B’ to the suit it has indicated that there is no evidence of
     required standard as to how the extent of Wakf property had increased
     from 667.8 sq. yards to 998.66 sq. yards and by mere recital in the
     gazette notification under Exhibit A2 and the resurvey report, the
     Muntakhab and the amended Muntakhab would not be sufficient to decide
     the suit since the tenant had denied the case of the plaintiffs that the ‘B’
E    schedule property is a Wakf property. The High Court has further held
     that the aspect as to whether the ‘B’ schedule property is a Wakf property
     or not cannot be decided without affording an opportunity to the tenant
     to question the correctness of the contents of the gazette notification by
     following the procedure established by law.
F           22. The very observations made by the High Court, in our view
     would indicate that the suit was maintainable before the Wakf tribunal in
     the facts and circumstances of the instant case. This is so for the reason
     that the High Court notices that the grievance put forth by the respondent
     to contend that the property is not Wakf property is by disputing the
G    extent as shown in the gazette notification as 998.66 sq. yards since
     according to the respondent the actual extent is 667.8 sq. yards and
     therefore the land in occupation by the respondent is beyond that extent.
     Therefore, in fact the contention put forth by the tenant is with reference
     to the gazette notification and to contend that the extent of property in
     occupation is not within the extent as shown in the gazette notification or
H
 TELANGANA STATE WAKF BOARD & ANR. v. MOHAMED                                   77
          MUZAFAR [A. S. BOPANNA, J.]

otherwise. The dispute in effect is to question the extent of land beyond       A
667.8 sq. yards being included to be the property of the Wakf Institution
which is included in the list and as such whether that extent in the list is
Wakf property. That will be a question which falls under Section 7 of the
Waqf Act. The very observation of the High Court indicating that an
opportunity is to be afforded to the respondent to question the correctness
                                                                                B
of the contents of the gazette notification by following the procedure
established by law is to allow the respondent to invoke the provisions of
Section 6 and 7 of the Wakf Act and seek appropriate orders.
       23. When that is the position, it will have to be noted that in the
instant case, though the legal remedy had not been availed by the
respondent within the time frame as provided under Section 6 of the             C
Act, the issue had fallen for consideration before the Wakf tribunal in
view of the defence put forth by the respondent and the Wakf tribunal
had rendered its finding on that aspect based on the evidence placed
before it. Since the gazette notification had been questioned to indicate
that the property which is in the occupation of the respondent was not a        D
part of the notified Wakf property, the same applied both to the suit
Schedule ‘A’ as well as Schedule ‘B’ properties. In such circumstance,
the Wakf tribunal had the jurisdiction to determine that question which
had been framed as an issue in this suit. Further as already noted, on the
facts evolving in the instant case, the tribunal had relied upon the evidence
available and had arrived at the conclusion that the property in question       E
is Wakf property and had accordingly decreed the suit.
        24. In that view, we are of the opinion that the judgment dated
12.10.2012 passed by the Wakf tribunal in O.S. No. 126/2006 was
rendered in a suit which was maintainable before the Wakf tribunal and
it had the jurisdiction to do so. Insofar as the nature of the consideration    F
made, we notice that the evidence available on record has been analysed
in its correct perspective and an appropriate conclusion has been reached
by the Wakf tribunal. On the other hand, as already noted the High
Court has not adhered to the well-established norm of limited scope
available in a Revision Petition. Further the conclusion reached by the         G
High Court to hold that the suit was not maintainable before the tribunal
is also not justified. The order dated 02.06.2014 passed by the High
Court, therefore, cannot be sustained.


                                                                                H
78                SUPREME COURT REPORTS                        [2021] 8 S.C.R.


A            25. For all the aforesaid reasons, we pass the following order:
            i) The order dated 02.06.2014 passed by the High Court of
     Judicature at Hyderabad in Civil Revision Petition No.1331/2013 is set
     aside.
           ii) The judgment dated 12.10.2012 passed by the Andhra Pradesh
B    State Wakf Tribunal Hyderabad in O.S. No. 126/2006 is restored.
           iii) The respondent is granted three months’ time to vacate and
     handover vacant possession of the suit schedule ‘A’ and ‘B’ properties
     subject to payment of rent, including arrears.

C            iv) The appeal is accordingly allowed with no order as to costs.
             v) Pending application, if any, shall stand disposed of.


     Nidhi Jain                                                    Appeal allowed.

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