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2013 DIGILAW 674 (AP)

A. P State Wakf Board v. G. Prakasha Reddy

2013-08-21

A.RAJASHEKER REDDY

body2013
JUDGMENT : 1. This Civil Revision Petition is filed against the Order and Decree dated 31-08-2007 passed in A.S.No.2 of 2005 on the file of the Andhra Pradesh Wakf Tribunal, Hyderabad, wherein the Tribunal set aside the order passed by the Collector and District Magistrate, Kurnool vide Rc.E8/1471/1999, dated 16-02-2004. 2. Brief facts, which are necessary for disposal of this revision petition, are as follows: The revision petitioner-A.P State Wakf Board issued notices dated 22-08-2002 to the respondents under Section 51 of the Wakf Act, 1995 calling for explanation stating that the land in question i.e., Acs.58-76 cents in Sy.Nos.125 & 127, situated at Sirugupuram Village, Halaharvi Mandal of Kurnool District as Wakf land. The respondents submitted a detailed reply dated 02-09-2002 to the notices by enclosing relevant copies of documents, including the photo copies of Judgment and Decree in O.S.No.11 of 1969. The Collector and District Magistrate, Kurnool issued proceedings vide Rc.E8/1471/99, dated 16-02-2004, calling upon the respondents to deliver the possession of the said land. Aggrieved by the said proceedings, the respondents filed A.S.No.2 of 2005 before the A.P. State Wakf Tribunal stating that respondent No.1 and ancestors of respondent Nos.2 to 9 were purchased the subject land, admeasuring Acs.58-76 cents in Sy.Nos.125 and 127, situated at Sirugupuram Village, Halaharvi Mandal of Kurnool District, under a registered sale deed No.912/53, dated 27-04-1953, which was registered in the Office of Sub-Registrar Ballari of Karnataka State. Prior to purchase, the 1st respondent and ancestors of other respondents are the tenants. From the date of purchase, they have become absolute owners and possessors of the land. It is also stated by the respondents that the said land is also mutated in the name of the respondents under the provisions of A.P. Rights in Land and Pattadar Pass Books Act, 1971 and the Pattedar Pass books are also in their favour. The revision petitioner herein filed O.S.No.11 of 1969 on the file of the Subordinate Judge, Adoni for declaration of title and recovery of possession against the respondents. The 1st respondent and the ancestral respondents contested the suit and the suit was dismissed holding that the said land is not Wakf land by way of Judgment and Decree dated 25-08-1970. Basing on the same, A.S.No.2 of 2005 was allowed by order dated 31-08-2007 by setting aside the proceedings dated 16-02-2004 issued by the Collector & District Magistrate. The 1st respondent and the ancestral respondents contested the suit and the suit was dismissed holding that the said land is not Wakf land by way of Judgment and Decree dated 25-08-1970. Basing on the same, A.S.No.2 of 2005 was allowed by order dated 31-08-2007 by setting aside the proceedings dated 16-02-2004 issued by the Collector & District Magistrate. Aggrieved by the same, the present Civil Revision Petition is filed by the A.P.State Wakf Board. 3. Heard learned Standing Counsel for the petitioner-A.P. State Wakf Board and learned counsel for the respondents. 4. Sri M.A. Mukeedh, learned counsel for the petitioner-Board submits that just because, the petitioner has lost O.S.No.11 of 1969 filed by it for declaration of title and recovery of possession, the same cannot curtail the statutory power of the revision petitioner available to him under Section 52 (2) of the Wakf Act, 1995. It is also contended that as per Section 54 of the Act, a survey was conducted and as per Section 55 of the Act, Gazette Notification, dated 02-05-1969 was issued stating that the subject land is the Wakf land. He also contends that any person aggrieved by the Gazette Notification can challenge the same under Section 7 (1) of the Act and till now the said notification is not challenged by anyone. He also contends that adverse possession cannot be claimed against Wakf Board. He also contends that the plea of res judicata has no application to this case. He placed reliance on the Judgment of the Supreme Curt reported in Sayyed Ali and others v. A.P. Wakf Board, Hyderabad and others (AIR 1998 SUPREME COURT 972) and Allauddin Charities and Zakath Wakf v. Hameed Ali and others ( 2002 (1) ALD 67 (DB)). 5. On the other hand, Sri L. Prabhakar Reddy, learned counsel for the respondents contends that the Wakf Board filed O.S.No.11 of 1969 for declaration of title and recovery of possession and in the said suit, following seven issues are framed: “(1) Whether the suit property is Wakf property? (2) Whether the gazette notification dated 2-5-1969 is binding on the defendants? (3) Whether the suit is within time? (4) Whether the defendants have perfected their title by adverse possession? (5) Whether the plaintiff is entitled to recovery of possession of the plaint schedule properties as prayed for? (2) Whether the gazette notification dated 2-5-1969 is binding on the defendants? (3) Whether the suit is within time? (4) Whether the defendants have perfected their title by adverse possession? (5) Whether the plaintiff is entitled to recovery of possession of the plaint schedule properties as prayed for? (6) Whether the 5th defendant is not a necessary party to the suit, if not whether the 5th defendant is entitled to costs? (7) Whether the plaintiff has been in possession of the suit properties within 12 years prior to the suit?” He contends that Issue No.1 relates to whether the suit property is Wakf property and Issue No.2 relates to whether the Gazette Notification, dated 2-5-1963 is binding on the respondents? These two issues have been held in favour of the respondents and also held that the subject matter of the property and the notification is not binding on the respondents. 6. In view of the clear and categorical findings in the civil suit filed by the revision petitioner, the respondents cannot invoke Section 52 of the Act for the same relief. Having lost the suit, the revision petitioner cannot once again resort to Section 52 of the Act. He submits that the same is hit by principles of res judicata. He contends that the suit is filed after Gazette Notification on 02-5-1963 and there is a clear finding in respect of Issue No.1 in the said suit. He also contends that in respect of Issue No.5 in the earlier suit, the Court gave a clear finding that the revision petitioner-plaintiff has utterly failed to prove that it is the Wakf property. He also contends that the respondents traced their title from the year 1941 by way of registered sale deeds and the said sale deeds are also marked as exhibits in the earlier suit. Since the finding of the Wakf Tribunal is based on the Judgment in O.S.No.11 of 1969, the same cannot be interfered with under the revisional jurisdiction of this Court. Under Section 83 (9) of the Wakf Act, the power of this Court is limited. He also contends that O.S.No.11 of 1969 was dismissed after evidence is adduced by both sides and the questions of fact decided in O.S.No.11 of 1969 cannot be gone in once again in this revision. Under Section 83 (9) of the Wakf Act, the power of this Court is limited. He also contends that O.S.No.11 of 1969 was dismissed after evidence is adduced by both sides and the questions of fact decided in O.S.No.11 of 1969 cannot be gone in once again in this revision. He placed reliance on the Judgment of the Supreme Court reported in M. Nagabhushana v. State of Karnataka and others ((2011) 3 Supreme Court Cases 408) and also the Judgment of Bombay High Court reported in Vithal Yeshwant Jatha v. Shikandarkhan Makhtumkhan (AIR 1963 Supreme Court 385). 7. In the present case, it is to be seen that the revision petitioner filed O.S.No.11 of 1969 on the file of the Subordinate Judge, Adoni in respect of the subject matter of this revision for declaration of title and possession against the respondents herein. After full fledged trial, basing on the evidence adduced by the revision petitioner and respondents herein, dismissed the said suit by Judgment and Decree, dated 25-08-1970. Altogether seven issues were framed. Issue No.1 is whether the suit property is Wakf property and Issue No.2 whether the Gazette Notification is binding on the defendants/respondents herein. Both the issues were held against the revision petitioner. It is also stated that the said Judgment and Decree have become final and the revision petitioner has not questioned the same. After waiting for a long period, the revision petitioner has issued notice, dated 16-6-2003, under Section 52 (1) of the Act and an order passed by the District Collector, dated 16-2-2004 under Section 52 (2) of the Act for eviction of the respondents for the self same property, which is the subject matter of O.S.No.11 of 1969. 8. The appellate Court, while considering the eviction order dated 16-02-2004 passed by the District Collector under Section 52 (2) of the Act, relied upon the Judgment and Decree in O.S.No.11 of 2009 and after referring to the findings in the civil suit, came to the conclusion that the Civil Court having competent jurisdiction had held that the revision petitioner-Wakf Board failed to prove that the land in question as Wakf property and thereby declined the relief for recovery of possession in its favour. Basing on the same, held that it is not open for the revision petitioner to proceed under Section 52 of the Act and accordingly set aside the eviction notice issued by the revision petitioner dated 16-06-2003 and the eviction order dated 16-02-2004 passed by the District Collector by allowing the appeal. It is to be seen that the Issue Nos.1 & 2 are clearly held against the revision petitioner and it has become final and after so many years, the revision petitioner cannot issue notice under Section 52 of the Act. 9. In the decision relied on by the revision petitioner’s counsel reported in Sayyed Ali’s Case (1 Supra), it is held in Para Nos.8 & 13 reads as follows: “8. The Second argument of learned counsel for the appellant is that the findings recorded by the High Court as regards the character of the property in its judgment dated 22.4.70 rendered in writ petition No. 1726 of 1968, arising out of the order passed by the Revenue Divisional Officer, Visakhapatnam, constituted res judicata. The parliament has enacted Wakf Act to provide for better administration and supervision of Wakfs. Under Sub-section(2) of Section 5 of the Act the Board is required to publish in the official Gazette the list of Wakf properties whether in existence at the commencement of the Act of coming into existence thereafter. Section 6 of the Wakf Act further provides that if any question arises whether a particular property specified as Wakf property in the list of Wakf published under the Act, is a Wakf property or not, the Board or Mutuwallis of the Wakf or any person interested therein, may institute a suit in a Civil Court of competent jurisdiction for decision of the question and the decision of the Civil Court in respect of such matter shall be final. It is also provided therein that no such suit shall be entertained by the civil court after the expiry of one year from the date of the publication of the list of Wakf under Sub-section(8) of Section 5 of the Act. Sub-section(4) of Section 6 further provides that the list of Wakfs published under Sub-section(2) of Section 5 shall, unless it is modified in pursuance of a decision of the civil court under Sub-section(1), be final and conclusive. Sub-section(4) of Section 6 further provides that the list of Wakfs published under Sub-section(2) of Section 5 shall, unless it is modified in pursuance of a decision of the civil court under Sub-section(1), be final and conclusive. Therefore, any dispute relating to the character of Wakf property is to be decided in the manner provided under the Wakf Act. Subject to the result of a civil suit, if filed, the list of Wakfs published in the official gazette is final and conclusive. In the present case, the disputed property was shown as Wakf property in the A.P. Official Gazette on 30.11.1961 and no suit having been filed challenging the Wakf property, the entries in the official gazette describing the property as Wakf became final and conclusive. Under Section 3 of the Inams Act, Tahsildar may suo motu make an enquiry for the purpose of grant of patta on three points, one of them being, whether inam land is held by any institution. While making an enquiry in the present case as to find out whether the inam land was held by the Dargah, the Tahsildar was not required to enquire into and adjudicate upon the character of the Wakf property mentioned in the list of Wakfs published in the official gazette under Sub-section(2) of Section 5 of the Wakf Act, as the dispute in that regard as to its character could only be decided in the manner provided in Section 6 of the Wakf Act. Assuming that the Wakf property was not found to be held by the Dargah under Section 3 of the Inam Act, it was not open to the Tahsildar to adjudicate upon the character of the Wakf property as the same was a grant by way of service inam for purposes recognized by the Muslim law as pious, religious or charitable which constituted the property as Wakf. Thus, we find that finding of the Tahsildar that the property was not Wakf, was wholly erroneous and beyond his jurisdiction. Consequently, the finding of the Tahsildar that the property is not a Wakf property would not constitute res judicata in the subsequent suit filed by the Wakf Board. It is well settled that if a decision of a court or a tribunal is without jurisdiction, such a decision or finding cannot operate as res judicata in any subsequent proceedings. Consequently, the finding of the Tahsildar that the property is not a Wakf property would not constitute res judicata in the subsequent suit filed by the Wakf Board. It is well settled that if a decision of a court or a tribunal is without jurisdiction, such a decision or finding cannot operate as res judicata in any subsequent proceedings. The plea of res judicata presupposes that there is inexistence a decree or judgment which is legal but when the judgment is non est in law, no plea of res judicata can be founded on such a judgment. It would be appropriate here to quote the following passage from "Resjudicata" Spencer Bower and Turner, 2nd Edition, page 92:- "Competent jurisdiction is an essential condition of every valid res judicata, which means that, in order that a judicial decision relied upon, whether as a bar, or as the foundation of an action, may conclusively bind the Article, or (in the case of in rem decisions) the world, it must appear that the judicial tribunal pronouncing the decision had jurisdiction over the cause or matter and over the parties, sufficient to warrant it in so doing."” “13. It was then contended by the learned counsel for the appellant that the suit filed by the wakf Board was not maintainable in view of Section 14 of the Inams Act. We having found that the property was a service inam granted to individuals burdened with service, which answered the description of all the ingredients of wakf, the Tahsildar under Section 3 of the Inams Act, was not required to adjudicate as to whether it is a wakf property or not. His decision holding that the property is not a Wakf property was not within his domain and the decision could not be said to have been passed under the Inams Act. Decision or order contemplated under Section 14 of the Inams Act presupposes an order passed within jurisdiction. Since order passed by the Tahsildar has been found to be without jurisdiction, Section 14 of the Act which bars the jurisdiction of the Civil Court would not be attracted in the subsequent suit. In the present case, since it was not within the domain of the Tahsildar to embark upon an enquiry in respect Wakf property, Section 14 of the Inams Act cannot affect the maintainability of the suit filed by the Wakf Board. In the present case, since it was not within the domain of the Tahsildar to embark upon an enquiry in respect Wakf property, Section 14 of the Inams Act cannot affect the maintainability of the suit filed by the Wakf Board. Learned counsel for the appellant relied upon a decision of this Court in Vatticherukuru Village Panchayat & Ors V. Nori Venkatarama Deekshithulu & Ors, [1991] S.C.R. p. 531, in support of his argument that by virtue of Section 14 of the Inams Act, the decisions of the Tahsildar cannot be challenged in a subsequent suit. No doubt, in this case, it was held that the Inams Act gives finality to the orders and decision given by the authorities, but it is not the case here. We have already held that the Tahsildar under Section 3 of the Inams Act was not competent to enquire into or give decision in respect of the character of the Wakf property, therefore the said decision is of no assistance to the argument of the learned counsel.” In the above decision, it is held that when the notification was issued treating the disputed property as Wakf property and no suit having been filed challenging the Wakf property, the entries in the official gazette describing the property as Wakf became final and conclusive and held that under Section 3 of the Inams Act, the Tahsildar has no power to declare the property as Inams property and as the Tahsildar has no jurisdiction, the order passed by Tahsildar under Inams Abolition Act or the finding of the Tahsildar that the property is not the Wakf property would not constitute res judicata in the subsequent suit filed by the Wakf Board. It is also held that if a decision of a Court or a Tribunal is without jurisdiction, such a decision or finding cannot operate as res judicata in any subsequent proceedings. The plea of res judicata presupposes that there is inexistence a decree or judgment which is legal but when the judgment is non est in law, no plea of res judicata can be founded on such a judgment. 10. The plea of res judicata presupposes that there is inexistence a decree or judgment which is legal but when the judgment is non est in law, no plea of res judicata can be founded on such a judgment. 10. In that case, since the order of the Tahsildar is without jurisdiction and held that Tahsildar has no power to enquire into, the order passed by the Mandal Revenue Officer under the Inams Act cannot operate res judicata in the subsequent suit filed by the Wakf Board. 11. But in the present case, the revision petitioner-Wakf Board itself filed O.S.No.11 of 1969 comprehensive suit for declaration of title and for recovery possession, which was dismissed after full fledged trial and the same was not questioned by the Wakf Board. In this case, the Judgment and Decree are rendered in O.S.No.11 of 1969 by the competent Court and it is not the case of the revision petitioner-Wakf Board that the said Court has no jurisdiction and the Wakf Board cannot also contend that the Court is without jurisdiction since the Wakf Board itself filed the suit. But having invited a decision against the Wakf Board, it cannot again issue a notification under Section 52 of the Act. The finding in the suit certainly operates res judiciata and the facts in cited case are different than that of the present case, as such, the decision has no application to the present case. 12. In Allauddin Charities and Zakath Wakf’s Case (2 Supra), wherein it is held that just because the Wakf Board filed suit for temporary injunction, it cannot be said that by virtue of doctrine of election, the Wakf Board could not have invoked the power under Section 54 (3) of the Wakf Act. The doctrine of election has no role to play when the authority under the Act is empowered to take action in accordance with the provisions of sub-section (1) of Section 54 of the Act, whenever an encroachment is complained of. Independent of such power, the Wakf Board, may, under the relevant provisions of the Act, institute a suit before the Tribunal for decision of the Tribunal. 13. Independent of such power, the Wakf Board, may, under the relevant provisions of the Act, institute a suit before the Tribunal for decision of the Tribunal. 13. The facts in that case are also different, because, in the present case, the Wakf Board itself filed the suit and invited the Judgment and Decree, which is against it and it has become final and as such it cannot again resort to Section 52 of the Act for recovery of the possession, which was negatived by the Civil Court. In this case, the suit for declaration of tile and for recovery of possession and the finding is that it is not the Wakf property and so the notification is not binding on the respondents, as such, the above decision has no application to the facts of the present case. 14. In M. NAGABHUSHANA’s Case (3 Supra), wherein it is held in Para Nos.12 & 13 reads as follows: “The principles of Res Judicata are of universal application as it is based on two age old principles, namely, `interest reipublicae ut sit finis litium' which means that it is in the interest of the State that there should be an end to litigation and the other principle is `nemo debet his ve ari, si constet curiae quod sit pro un aet eademn cause' meaning thereby that no one ought to be vexed twice in a litigation if it appears to the Court that it is for one and the same cause. This doctrine of Res Judicata is common to all civilized system of jurisprudence to the extent that a judgment after a proper trial by a Court of competent jurisdiction should be regarded as final and conclusive determination of the questions litigated and should for ever set the controversy at rest. That principle of finality of litigation is based on high principle of public policy. In the absence of such a principle great oppression might result under the colour and pretence of law in as much as there will be no end of litigation and a rich and malicious litigant will succeed in infinitely vexing his opponent by repetitive suits and actions. This may compel the weaker party to relinquish his right. The doctrine of Res Judicata has been evolved to prevent such an anarchy. This may compel the weaker party to relinquish his right. The doctrine of Res Judicata has been evolved to prevent such an anarchy. That is why it is perceived that the plea of Res Judicata is not a technical doctrine but a fundamental principle which sustains the Rule of Law in ensuring finality in litigation. This principle seeks to promote honesty and a fair administration of justice and to prevent abuse in the matter of accessing Court for agitating on issues which have become final between the parties.” 15. In Vithal Yeshwant Jatha’s Case (4 Supra), wherein it is held “that it is well settled that if the final decision in an, matter at issue between the parties is based by a Court on its decisions on more than one point each of which by itself would be sufficient for the ultimate decision, the decision on each of these points operates as res judicata between the parties”. 16. The above two Judgments squarely apply to the facts of the case and the principles of res judicata apply in the present case in view of findings of the competent Civil Court. The Wakf Tribunal relied on judgments and came to correct conclusion and as such I do not find any error or infirmity in the order of the Wakf Tribunal. 17. In view of the above discussion, I am of the view that the Civil Revision Petition is liable to be dismissed. 18. Accordingly, the Civil Revision Petition is dismissed confirming the order dated 31-08-2007 passed in A.S.No.2 of 2005 on the file of the Andhra Pradesh Wakf Tribunal, Hyderabad. No costs.