TELANGANA STATE WAKF BOARD & ANR. versus MOHAMED MUZAFAR on 3 August 2021

TELANGANA STATE WAKF BOARD & ANR.

v.

MOHAMED MUZAFAR

(Civil Appeal No. 4522 of 2021)

AUGUST 03, 2021

[HEMANT GUPTA AND A. S. BOPANNA, JJ.]

Wakf Act, 1995: ss. 6, 7, 83 and 85 – Disputes regardingwakfs properties – Power of tribunal to determine – On facts, suitby Wakf Board before the Wakf tribunal seeking eviction of tenantfrom property belonging to Wakf Institution – Case of the tenantthat suit property not a wakf property and extent of land alsodisputed – Tribunal held the suit properties to be the propertybelonging to the Wakf institution and directed the tenant to vacatethe suit porperties – High Court set aside the order holding that thesuit was not maintainable before the Wakf tribunal – On appeal,held: Judgment passed by the Wakf tribunal was rendered in a suitwhich was maintainable before the Wakf tribunal and it had thejurisdiction to do so – Tribunal relied upon the evidence availableand had arrived at the conclusion that the property in question isWakf property and had accordingly decreed the suit – Evidenceavailable on record has been analysed in its correct perspectiveand an appropriate conclusion has been reached by the Wakf tribunal– High Court did not adhere to the norm of limited scope availablein a Revision Petition – Further the order by the High Court to holdthat the suit was not maintainable before the tribunal not justifiedand cannot be sustained – Thus, the order passed by the High Courtis 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 notto have been in the nature of reappreciating the evidence whichis permissible in an appeal. In a Revision Petition the scope ofconsideration is limited and the judgment/order under challengecan be interfered only in the event of there being perversity seenon the face of the order and if the conclusion reached cannot beacceptable to any reasonable person. On the factual aspects, thetribunal had referred to the evidence including the manner in

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Awhich the extent of the Wakf property was rectified and indicatedas 998.66 sq. yards and also had taken into consideration thefirst round of litigation between the Wakf Board and the father ofthe respondent wherein the conclusion reached was that theproperty in question is Wakf property. Therefore, such finding offact recorded by the tribunal based on evidence available onBrecord could not have been lightly interfered with by the HighCourt. [Para 14][72-D-F]

1.2 The appellants at the first instance had issued a noticeto the respondent terminating the tenancy relating to the suit ‘A’schedule property. A further notice was issued in respect of theCsuit ‘B’ schedule property requiring the respondent to vacatethe encroached portion. The respondent, by his reply noticedenied that the property in question was a Wakf property. In thesaid circumstance, the instant case cannot be deemed as anadmitted case of the property being Wakf property as in the replyDnotice itself the respondent had disputed the same. It is in thatcircumstance the appellants being of the impression that the firstissue to be established is that the property in question is theWakf property, which could be considered by the tribunal, hadfiled the suit before the Wakf tribunal. [Para 20][75-C-E]

E1.3 The inclusion of the property in the gazette dated29.12.1988 which was disputed by the respondent was taken intoconsideration. In that light, through the discussion and conclusionreached by the High Court while adverting to the submission ofencroachment of 40 sq. yards which was described in Schedule‘B’ to the suit it has indicated that there is no evidence of requiredFstandard as to how the extent of Wakf property had increasedfrom 667.8 sq. yards to 998.66 sq. yards and by mere recital inthe gazette notification and the resurvey report, the Muntakhaband the amended Muntakhab would not be sufficient to decidethe suit since the tenant had denied the case of the plaintiffs thatGthe ‘B’ schedule property is a Wakf property. The High Courtfurther held that the aspect as to whether the ‘B’ scheduleproperty is a Wakf property or not cannot be decided withoutaffording an opportunity to the tenant to question the correctnessof the contents of the gazette notification by following theprocedure established by law. [Para 21][76-C-F]H

1.4 The very observations made by the High Court, wouldindicate that the suit was maintainable before the Wakf tribunalin the facts and circumstances of the instant case. This is so forthe reason that the High Court noticed that the grievance putforth by the respondent to contend that the property is not Wakfproperty is by disputing the extent as shown in the gazettenotification as 998.66 sq. yards since according to the respondentthe actual extent is 667.8 sq. yards and therefore the land inoccupation by the respondent is beyond that extent. Therefore,in fact the submission put forth by the tenant is with reference tothe gazette notification and to submit that the extent of propertyin occupation is not within the extent as shown in the gazettenotification or otherwise. The dispute in effect is to question theextent of land beyond 667.8 sq. yards being included to be theproperty of the Wakf Institution which is included in the list andas such whether that extent in the list is Wakf property. That willbe a question which falls under Section 7 of the Waqf Act. Thevery observation of the High Court indicating that an opportunityis to be afforded to the respondent to question the correctnessof the contents of the gazette notification by following theprocedure established by law is to allow the respondent to invokethe provisions of Section 6 and 7 of the Wakf Act and seekappropriate orders. [Para 22][76-F-H; 77-A-C]

1.5 Though the legal remedy had not been availed by therespondent within the time frame as provided under Section 6 ofthe Act, the issue had fallen for consideration before the Wakftribunal in view of the defence put forth by the respondent andthe Wakf tribunal had rendered its finding on that aspect basedon the evidence placed before it. Since the gazette notificationhad been questioned to indicate that the property which is in theoccupation of the respondent was not a part of the notified Wakfproperty, the same applied both to the suit Schedule ‘A’ as wellas Schedule ‘B’ properties. In such circumstance, the Wakftribunal had the jurisdiction to determine that question whichhad been framed as an issue in this suit. Further , on the factsevolving in the instant case, the tribunal had relied upon theevidence available and had arrived at the conclusion that theproperty in question is Wakf property and had accordingly decreedthe suit. [Para 23][77-C-E]

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66SUPREME COURT REPORTS

A1.6 The judgment passed by the Wakf tribunal was renderedin a suit which was maintainable before the Wakf tribunal and ithad the jurisdiction to do so. Insofar as the nature of theconsideration made, it is noticed that the evidence available onrecord has been analysed in its correct perspective and anappropriate conclusion has been reached by the Wakf tribunal.BOn the other hand, the High Court did not adhere to thewell-established norm of limited scope available in a RevisionPetition. Further the conclusion reached by the High Court tohold that the suit was not maintainable before the tribunal is alsonot justified. The order passed by the High Court, therefore,Ccannot be sustained, and is set aside. The judgment passed bythe State Wakf Tribunal is restored. The respondent is grantedthree months’ time to vacate and handover vacant possession ofthe suit schedule ‘A’ and ‘B’ properties subject to payment ofrent, including arrears. [Para 24, 25][77-F-H; 78-A-C]

DRamesh 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) SCCOnline SC 280; Faseela M. v. Munnerul Islam MadrasaCommittee and Another (2014) 16 SCC 38 : [2014] 4SCR 613; Board of Wakf, West Bengal and Another v.EAnis Fatma Begum and Another (2010) 14 SCC 588 :[2010] 13 SCR 1063; Haryana Wakf Board versusMahesh Kumar (2014) 16 SCC 45 : [2013] 12 SCR596; Punjab Wakf Board v. Sham Singh Harike (2019)4 SCC 698 : [2019] 2 SCR 61 – referred to.F

Case Law Reference

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TELANGANA STATE WAKF BOARD & ANR. v. MOHAMEDMUZAFAR

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4522

of 2021.

From the Judgment and Order dated 02.06.2014 of the High Courtof Judicature at Hyderabad for the State of Telangana and the State ofAndhra Pradesh rendered in Civil Revision Petition No. 1331 of 2013.

Ms. Akriti Chaubey, Ejaz Maqbool, Advs. for the Appellants.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,while the appellant No.2 is the Mutawalli of the registered Wakf institutionwhich is known as Graveyard Mir Rahmat Ali Shah. The said Wakfinstitution is stated to have been registered under Muntakhab bearingNo. 998 dated 24.02.1953 and later entered in the book of endowmentshowing an extent of 666 sq. yards. The Muntakhab was amended bythe Wakf Board in its resolution dated 21.04.1988 to the extent ofcorrecting the land of the Wakf institution as 998.66 sq. yards and thesame was published in the gazette notification dated 29.12.1988. Thewakf institution/graveyard is situated near Tek Masjid, Nampally,Hyderabad.

2. The father of appellant No.2, Late Mir Dawood Ali was theMutawalli appointed by the Wakf Board, whose name is recorded in thegazette referred to above. The appellant averred that during the lifetimeof the father of appellant No.2, the father of the respondent, namely,Late M.A Qayyum had obtained on rent the premises bearing MunicipalNo. 5-7-420/2 measuring 90.16 sq. yards belonging to the Wakf institution.The father of the respondent was running a firewood stall which he laterconverted into a hotel and has been running the hotel business in thename and style “Hotel Najran”.

3. The case of the appellant was that the father of the respondentwas paying rent in respect of the property and was being enhancedfrom time to time. The respondent, after he became a major continuedthe tenancy of his father in respect of the said premises and the monthlyrent at the time of filing the suit was Rs.1,500/- excluding electrical andwater charges. The respondent is stated to have suceeded to the tenancyin the year 1995 and the rent was being paid to the Wakf Board sincethe institution at that point was under direct management of the Board in A

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Aview of the death of the original Mutawalli i.e., the father of appellantNo.2. Subsequent thereto the appellant No.2, as the successor wasappointed as the Mutawalli in place of his father vide the proceedingsdated 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 propertybelonging to the Wakf institution through a letter dated 14.11.2005,Bwhereafter the rent was being paid to him directly. In respect of thepremises in the occupation of respondent the rent was not being paidregularly, which accumulated to Rs.24,500/-. Despite repeated requeststhe respondent had not paid the arrears from the month of November2005 for a period of 7 months which amounted to Rs.10,500/-. TheCrespondent therefore was due to pay the total amount which was dueand unpaid.

4. The appellant further averred that while the Wakf institutionwas under the direct management of the Wakf Board, the respondenthad encroached upon 40 sq. yards site of the graveyard on the westernDside of the tenanted premises, constructed road thereon and startedrunning a firewood stall. The appellant No.2 noticed the same when heassumed charge on 04.07.2005. Though the appellant No.2 requestedthe respondent to pay damages for the use and the illegal occupationand vacate both the properties, namely the tenanted as well as theencroached portion, the respondent did not vacate. In that background,Ethe appellant No.2 got issued the legal notice dated 23.05.2006 terminatingthe tenancy of the tenanted portion with effect from 01.07.2006 anddemanded to remove the encroachment. The respondent on receipt ofthe notice made payment of Rs.4,500/- as part of the arrears of rentthrough a money order and also a sum of Rs.4,500/- was paid directly to Fthe appellant No.2 towards the rent for the months of August, Septemberand October, 2005. The respondent however got issued reply noticedated 12.06.2006 wherein he denied that the tenanted portion and thealleged encroached portion referred to was Wakf property and that hisfather had taken it on rent. Further, all claims made by the appellantswere also denied.G

5. In the above backdrop, the appellants were constrained to filea suit bearing O.S. No.126/2006 before the Andhra Pradesh State WakfTribunal, Hyderabad seeking eviction of the respondent from the propertybelonging to the Wakf institution. The tenanted portion referred to abovewas delineated as Schedule ‘A’ in the plaint while the encroached portionH

was shown as Schedule ‘B’. The respondent who was arrayed asdefendant in the suit had appeared and filed his written statement whereininter alia he had contended that the suit property is not a Wakf propertyand that the exhibit filed by the appellants dated 30.10.1994 pertaining tothe graveyard is of an extent of 667.8 sq. yards. It was further contendedthat the gazette notification clearly established that this graveyard is nothaving any non-agricultural lands such as mulgies and houses etc. Hefurther claimed that the property bearing No. 5-7-420/2 stood in thename of his father. The gazette notification dated 29.12.1988 mentioningthe extent as 998.66 sq.yards was disputed and contended that the samedoes not exist. Further, the case put forth by the appellants herein asplaintiff in the suit was disputed in toto.

6. The Wakf tribunal on taking note of the rival contentions hadframed the following issues for consideration: - “1. Whether the land covered by H. No.5-7-420/2, situated atNampally Hyderabad is part of notified Wakf Graveyard?

2. Whether there is a relationship of land lord and tenant betweenthe parties.

3. Whether the plaintiff is entitled to evict the defendant as prayedfor?

4. Whether the plaintiff is entitled to arrears of rent, mesne profitsas prayed for?

5. To what relief?”

The parties accordingly tendered evidence before the Wakf tribunalso as to discharge the burden cast on them.

7. The appellant No.2 examined himself as PW.1. Though, witnessMr. Mohd. Yousuf Qureshi was examined as PW.2, he was not tenderedfor cross-examination and therefore his chief-examination was eschewed.The appellants also relied upon the documents which were marked asExhibits A1 to A24. The respondent examined himself as DW.1 and alsoexamined a witness Mr. Mohd. Abdul Aziz as DW2 and relied upon thedocuments at Exhibits B-1 to B-40. The Wakf tribunal after taking noteof the rival contentions and the evidence tendered, held the issues infavour of the appellants and decreed the suit holding the suit scheduleproperties to be the property belonging to the Wakf institution and directed A

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Athe respondent to vacate the suit schedule properties. The judgment tothat 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 beforethe High Court of Judicature at Hyderabad in Civil Revision PetitionBNo.1331/2013. The High Court while adverting to the rival contentionshas allowed the Revision Petition and set aside the judgment passed bythe 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 RameshGobindram vs. Sugra Humayun Mirza Wakf (2010) 8 SCC 726; hasaccordingly held that the suit was not maintainable before the WakfCtribunal and has allowed the parties to avail their remedy as per law. Theappellants, therefore, claiming to be aggrieved by the said judgment arebefore this Court in this appeal.

9. We have heard Ms Akriti Chaubey, learned counsel for theappellants and Mr. Raavi Venkata Yogesh, learned counsel for theDrespondent and perused the appeal papers as also the written submissionssubmitted by the respective learned advocates.

10. As noted from the fact situation narrated above, the appellanthad contended that the suit schedule properties are Wakf properties andhad claimed that the respondent is a tenant in respect of Schedule ‘A’Eproperty and that he had encroached the Schedule ‘B’ property whichalso belongs to Wakf institution. The respondent had contended that thesuit properties are not Wakf properties. From the issues framed by theWakf tribunal, it is noticed that the consideration which was required atthe outset was to conclude whether the land covered by H No.5-7-420/F2 situated at Namapally, Hyderabad is a part of the notified WakfGraveyard. Similarly, the status of Schedule ‘B’ property which wasalleged 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 tribunalhaving noted the contentions has analysed the same with reference tothe evidence. What was highlighted by the respondent is that the gazetteGnotification indicated only 668 sq. yards and as such the suit scheduleproperties do not form part of the same. In that regard, though theappellants relied on the notification dated 29.12.1988 to contend that theextent of the land belonging to the Wakf institution is 998.66 sq. yardsthe respondent disputed the existence of such notification.

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11. The Wakf tribunal, apart from referring to the said documentshad also taken note of the fact that an earlier suit in O.S. No. 186 of1982 had been instituted by the appellant No.1 herein against the fatherof the respondent. The judgment passed therein was marked as ExhibitA13 in the present suit. The tribunal having noted the same and thenature of the contentions put forth had in that regard taken intoconsideration 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, theWakf tribunal had noted that when the respondent herein had claimed tohave succeeded to the property of his father and in respect of sameproperty when the father had taken a particular stand in the suit filedagainst him, the respondent would be estopped from putting forth anyother contention, keeping in view, the provision contained in Section 116of the Evidence Act.

12. In addition, the tribunal had also taken into consideration thefact that the brother of the respondent had filed a writ petition bearingNo. W.P. 26338 of 2007 challenging the gazette dated 29.12.1988 whereinthe extent of the property belonging to the Wakf institution is shown as998.66 sq. yards. The contents of the gazette was extracted and notedby the tribunal, wherein it was indicated that the amendment to MuntakhabNo.998 in file No.2195/2/1350 fasli was notified in Andhra Pradesh gazettedated 29.12.1988. Thus, as per the amended Muntakhab the open landmeasuring 998.66 sq. yards and the premises bearing MCH numbers 5-7-429, 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 onother aspects by the tribunal, the tribunal had at the outset arrived at theconclusion that the property in question is Wakf property. In that regardto disbelieve the documents relied on by the respondent at Exhibits B1 toB37 namely the receipts and the claim that the slum certificate is issued,the tribunal has noted the corrections made therein which is visible tothe naked eye and as such did not accept the same.

13. Insofar as the Schedule ‘B’ property, the tribunal had takeninto consideration the notice at Exhibit A7 which was issued by theappellants. In order to arrive at the conclusion that the said property alsoforms a part of the Wakf property which is the Graveyard, the tribunalhad referred to Exhibit A16, i.e., plan which was made in the year 1985by the Wakf Board. From the said plan, the tribunal had noticed that theSchedule ‘A’ and ‘B’ properties form a part of the Wakf properties AB

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Awhich was also depicted in the photographs which was marked as ExhibitA22. It is in that light, the Wakf tribunal had arrived at the conclusionthat the relief prayed for in the suit is liable to be granted and the suitwas decreed in favour of the appellants herein.

14. The High Court on the other hand, before holding that the suitBought not to have been instituted before the Wakf tribunal in view of thejudgment rendered by this Court in the case of Ramesh Gobindram(supra) has in fact attempted reappreciation of the evidence which wastendered before the tribunal. Reference is made to the Entry at SerialNo.1698 and the indication of the Wakf institution known as GraveyardRehmat Ali Sahab, area noted as 667.8 sq. yards at Cross road, MasjidCNampally. It was concluded that the same does not tally. The gazettenotification dated 29.12.1988 was mentioned, wherein the extent isindicated as 998.66 sq. yards but the same was disbelieved. At the outsetit is necessary to indicate that the consideration by the High Court oughtnot to have been in the nature of reappreciating the evidence which isDpermissible in an appeal. In a Revision Petition the scope of considerationis limited and the judgment/order under challenge can be interfered onlyin the event of there being perversity seen on the face of the order andif the conclusion reached cannot be acceptable to any reasonable person.In the instant case, on the factual aspects as noted, the tribunal hadreferred to the evidence including the manner in which the extent of theEWakf property was rectified and indicated as 998.66 sq. yards and alsohad taken into consideration the first round of litigation between theState Wakf Board and the father of the respondent wherein the conclusionreached was that the property in question is Wakf property. Therefore,such finding of fact which had been recorded by the tribunal based on Fevidence available on record could not have been lightly interfered withby the High Court.

15. In that regard it would be appropriate to refer to the decisionof this Court in Kiran Devi versus Bihar State Sunni Wakf Boardand Others 2021 SCC Online SC 280 which was authored by one of usG(Justice Hemant Gupta) wherein the scope of jurisdiction to be exercisedunder Section 83 of Wakf Act is crystallised as follows:- “20. Therefore, when a petition is filed against an order of theWakf Tribunal before the High Court, the High Court exercisesthe jurisdiction under Article 227 of the Constitution of India.HTherefore, it is wholly immaterial that the petition was titled as a writ petition. It may be noticed that in certain High Courts, petitionunder Article 227 is titled as writ petition, in certain other HighCourts as revision petition and in certain others as a miscellaneouspetition. However, keeping in view the nature of the order passed,more particularly in the light of proviso to sub-section (9) of Section83 of the Act, the High Court exercised jurisdiction only under theAct. The jurisdiction of the High Court is restricted to only examinethe correctness, legality or propriety of the findings recorded bythe Wakf Tribunal. The High Court in exercise of the jurisdictionconferred under proviso to sub-section (9) of Section 83 of theAct does not act as the appellate court.”

16. Be that as it may, having noticed the manner of considerationmade by the High Court with regard to the merit not being justified, itwould also be necessary for us to consider as to whether the proceedingsbefore the Wakf tribunal would be sustainable in the teeth of theobservations made by the High Court with reference to the decision inRamesh Gobindram (supra) which resulted in the High Court settingaside the order passed by the tribunal. We have carefully perused thesaid decision. The consideration made therein was in the background ofthe provisions as contained in Sections 6, 7, 83 and 85 of the Wakf Act1995. No doubt it is a case where the question arose as to whether suitfor eviction from the Wakf properties could be instituted before the Wakftribunal. However, what is necessary to be noted is that, the question forconsideration has been delineated in paragraph 2 of the order whichclearly indicates that what was required to be answered therein was asto whether the suit for eviction of tenants in respect of the items ofproperty which are admittedly Wakf properties could be filed before theWakf tribunal. After having taken into consideration Sections 6 and 7 ofthe Act, this Court was of the view that the tribunal would have thejurisdiction to decide such of those disputes arising thereunder and inrespect of eviction of tenants from what is admittedly a Wakf propertyshould be filed in the Civil Court as jurisdiction under Section 9 of theCivil Procedure Code is expansive. It is accordingly held, since what isto be decided by the tribunal are the disputes which arise under Section6 and 7, the bar as contemplated under Section 85 to file a suit in theCivil Court does not apply. The said decision was rendered in acircumstance where the property was admittedly Wakf property, whereasin the instant case it is not an admitted case since the respondent hadtaken a specific contention that the properties in question are not Wakfproperties.

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A17. The learned counsel for the respondent has however, referredto the decision of this Court in the case of Faseela M. vs. MunnerulIslam Madrasa Committee and Another (2014)16 SCC 38 to pointout that in a similar consideration made by another Bench of this Courtrelating to the jurisdiction of Wakf tribunal, this Court has held that evenin a case where it is disputed by the defendant that the property is not aBWakf property and if it is a case seeking eviction of the tenant, the suit isrequired to be filed before the civil court and jurisdiction of the Wakftribunal cannot be invoked.

18. The learned counsel for the appellants has on the other handdrawn our attention to the other decisions of this Court on the sameCissue. In the case of Board of Wakf, West Bengal and Another vsAnis Fatma Begum and Another (2010) 14 SCC 588 and in the caseof Haryana Wakf Board versus Mahesh Kumar (2014) 16 SCC 45this Court has held that the question as to whether a property is Wakfproperty or otherwise is exclusively determinable by the Wakf tribunalDafter enactment of the Wakf Act. The decision in the case of PunjabWakf Board vs Sham Singh Harike (2019) 4 SCC 698 is also referredby the learned counsel for the appellant to contend that in order todetermine as to whether there is a bar on the jurisdiction to the civilcourt in relation to the provision contained in Wakf Act, one is to ask thequestion as to whether the issue raised in the suit or proceeding concernedEis required to be decided under the Wakf Act, 1995 by the tribunal underany provision or not and if the answer to that question is in the affirmativethe bar of jurisdiction of the civil court would operate.

19. Having noted the various decisions rendered by this Courtwhich are all by a coram consisting of two judges it would also be appositeFfor 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 relatedto a suit instituted by the tenant in respect of the suit premises seekingdeclaration to that effect and to continue in the suit premises as tenanton payment of monthly rent. In the said case, the suit in question wasGfiled by the plaintiff before the competent civil court but the defendants,namely the Wakf Board had contended that the issue is to be decided byWakf tribunal. They filed application and sought transfer of the suit tothe Wakf tribunal which was accordingly ordered by the civil court andwas also upheld by the High Court in Revision. Subsequently, havingsucceed on merits before the Wakf tribunal, had failed in the writ petitionH

wherein the claim of plaintiff was upheld. The Wakf Board at that pointraised the contention that the tribunal did not have the jurisdiction in theappeal filed before this Court by placing reliance on Ramesh Gobindram(supra). This Court in the facts arising therein had held that the judgmentpassed by the Wakf tribunal in the circumstance cannot be held as withoutjurisdiction. The said case is one more circumstance to indicate that thefacts and circumstance in each case will have to be taken note in thebackground of the legal frame work contained in the Wakf Act todetermine jurisdiction.

20. In that light, in the present facts it is to be noted that theappellants at the first instance had got issued a notice dated 23.05.2006to the respondent terminating the tenancy relating to the suit ‘A’ scheduleproperty. A further notice was issued in respect of the suit ‘B’ scheduleproperty requiring the respondent to vacate the encroached portion. Therespondent, by his reply notice dated 12.06.2006 denied that the propertyin question was a Wakf property. In the said circumstance, the instantcase cannot be deemed as an admitted case of the property being Wakfproperty as in the reply notice itself the respondent had disputed thesame. It is in that circumstance the appellants being of the impressionthat the first issue to be established is that the property in question is theWakf property, which could be considered by the tribunal, had filed thesuit before the Wakf tribunal. The respondent having appeared, filed thewritten statement and inter alia had contended as follows: - “3. This defendant submits that with regard to the averments madein para 1 of the plaint and the documents annexed clearly showsthat the suit property is not a Wakf Property. The Gazette filed bythe Plaintiffs dated 30.10.1984 pertains to the so called graveyardis of an extent of 667.8 sq. yards. The said Gazette notificationclearly establish that this Graveyard is not having any nonagricultural land such as mulgees and houses etc. on the otherhand as evident from the Municipal records, electricity and waterworks department record, that the premises bearing No.5-7-420/2 stands in the name of the father of this defendant. This defendantfurther submits that there is no such Gazette notification dated21.12.1999 and the extent mentioned 998.66 sq. yards is notsupported by any documentary evidence. The 2 gazettenotifications filed by the Plaintiffs are self-contradictory. The socalled grave yard is endowed with any property more over there A

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Awill not be any attached properties for the burial grounds as therewill be no developmental activities or maintenance like the otherwakf institutions namely the dargah masjid or ashurkhana as muchthe averments made in Para 1 of the plaint is wholly contrary tothe Gazette itself. The plaintiffs are put to strict proof of the same.”

B21. Apart from the contention put forth by the respondent what isalso to be taken note is that the High Court has made detailed referenceto the contention put forth by the respondent regarding the gazettenotification relating to the property as claimed by the appellants and thediscrepancy as pointed out by the respondent by claiming that the extentmentioned is 667.8 sq. yards and not 998.66 sq. yards as contended byCthe appellants. The inclusion of the property in the gazette dated29.12.1988 which was disputed by the respondent was also taken intoconsideration. In that light, through the discussion and conclusion reachedby the High Court in paras 12 and 13 (b) of the order while adverting tothe contention of encroachment of 40 sq. yards which was described inDSchedule ‘B’ to the suit it has indicated that there is no evidence ofrequired standard as to how the extent of Wakf property had increasedfrom 667.8 sq. yards to 998.66 sq. yards and by mere recital in thegazette notification under Exhibit A2 and the resurvey report, theMuntakhab and the amended Muntakhab would not be sufficient to decidethe suit since the tenant had denied the case of the plaintiffs that the ‘B’Eschedule property is a Wakf property. The High Court has further heldthat the aspect as to whether the ‘B’ schedule property is a Wakf propertyor not cannot be decided without affording an opportunity to the tenantto question the correctness of the contents of the gazette notification byfollowing the procedure established by law.F

22. The very observations made by the High Court, in our viewwould indicate that the suit was maintainable before the Wakf tribunal inthe facts and circumstances of the instant case. This is so for the reasonthat the High Court notices that the grievance put forth by the respondentto contend that the property is not Wakf property is by disputing theGextent as shown in the gazette notification as 998.66 sq. yards sinceaccording to the respondent the actual extent is 667.8 sq. yards andtherefore the land in occupation by the respondent is beyond that extent.Therefore, in fact the contention put forth by the tenant is with referenceto the gazette notification and to contend that the extent of property inoccupation is not within the extent as shown in the gazette notification orH

otherwise. The dispute in effect is to question the extent of land beyond667.8 sq. yards being included to be the property of the Wakf Institutionwhich is included in the list and as such whether that extent in the list isWakf property. That will be a question which falls under Section 7 of theWaqf Act. The very observation of the High Court indicating that anopportunity is to be afforded to the respondent to question the correctnessof the contents of the gazette notification by following the procedureestablished by law is to allow the respondent to invoke the provisions ofSection 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 theinstant case, though the legal remedy had not been availed by therespondent within the time frame as provided under Section 6 of theAct, the issue had fallen for consideration before the Wakf tribunal inview of the defence put forth by the respondent and the Wakf tribunalhad rendered its finding on that aspect based on the evidence placedbefore it. Since the gazette notification had been questioned to indicatethat the property which is in the occupation of the respondent was not apart of the notified Wakf property, the same applied both to the suitSchedule ‘A’ as well as Schedule ‘B’ properties. In such circumstance,the Wakf tribunal had the jurisdiction to determine that question whichhad been framed as an issue in this suit. Further as already noted, on thefacts evolving in the instant case, the tribunal had relied upon the evidenceavailable and had arrived at the conclusion that the property in questionis Wakf property and had accordingly decreed the suit.

24. In that view, we are of the opinion that the judgment dated12.10.2012 passed by the Wakf tribunal in O.S. No. 126/2006 wasrendered in a suit which was maintainable before the Wakf tribunal andit had the jurisdiction to do so. Insofar as the nature of the considerationmade, we notice that the evidence available on record has been analysedin its correct perspective and an appropriate conclusion has been reachedby the Wakf tribunal. On the other hand, as already noted the HighCourt has not adhered to the well-established norm of limited scopeavailable in a Revision Petition. Further the conclusion reached by theHigh Court to hold that the suit was not maintainable before the tribunalis also not justified. The order dated 02.06.2014 passed by the HighCourt, therefore, cannot be sustained.

AB

C

D

E

F

G

[2021] 8 S.C.R.

A25. For all the aforesaid reasons, we pass the following order:

i) The order dated 02.06.2014 passed by the High Court ofJudicature at Hyderabad in Civil Revision Petition No.1331/2013 is setaside.

ii) The judgment dated 12.10.2012 passed by the Andhra PradeshBState Wakf Tribunal Hyderabad in O.S. No. 126/2006 is restored.

iii) The respondent is granted three months’ time to vacate andhandover vacant possession of the suit schedule ‘A’ and ‘B’ propertiessubject to payment of rent, including arrears.

Civ) The appeal is accordingly allowed with no order as to costs.

v) Pending application, if any, shall stand disposed of.

D

Nidhi Jain

Appeal allowed.

E

F

G

H