THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR S.A. NO. 77 OF 1998 Date of Judgment: 1.4.2011 Between: Alkonda Narsiah and others …Appellants and A.P. Wakf Board, Hyderabad and others ...Respondents THE HON’BLE SRI JUSTICE VILAS V. AFZULPURKAR S.A. NO. 77 OF 1998 JUDGMENT: Defendants in OS No. 246 of 1983 on the file of the District Munsif, Jagtial seek to question the concurrent judgments and decrees of both the courts below. First respondent/plaintiff filed the above suit for declaration of title and recovery of possession as well as for mandatory injunction with respect to 0-10 guntas out of total extent of Ac.7-02 guntas in S.No. 643 situated at Dharmapuri village. The said suit was filed on the allegations that the entire lands are conditional service Inam lands and one late Syed Mahaboob Ali was the original Inamdar and Muthawalli of the said lands and the said lands were also registered as wakf property as per Muntaqab dated 23 Bahman 1341 Fasli. It was alleged that one Syed Fareed was the lessee for some time and after him, his son Syed Vazeer took the suit schedule land on lease in the year 1976 and thereafter the defendants 1 to 6 which includes the appellants herein had unauthorisedly occupied the suit land by dispossessing the first respondent/plaintiff. The said unauthorized occupants also challenged the title of first respondent/plaintiff and thereupon the present suit came to be filed by the plaintiff-board. The defendants took a stand that the suit land was a patta land of late Syed Fareed and after him, they had succeeded to the said land and they placed reliance upon a registered sale deed which is binding on all the registered sale deeds among the defendants and thereby they stated that even Tahasildar, Jagtial recognized their possession and issued notices under Land Encroachment Act. The trial court framed several issues and material among them are (1) whether the plaintiff is entitled for declaration and recovery of possession? and (2) whether the defendants 1 to 3 have purchased the suit land from late Vazeer, the husband of defendant No.8 under registered sale deed dated 9.8.1976? After considering the evidence of six witnesses and Exs. A1 to A13 produced by the plaintiff and equal number of witnesses and documents being Exs. B1 to B18 produced on behalf of the defendants, the trial Court came to hold that the suit is clearly maintainable at the instance of first respondent/plaintiff and further held that Exs.A3 to A13 which comprise Munthaqab and Thaktha Virasath and the proceedings appointing Muthawalli clearly established that the suit schedule property belongs to first respondent/plaintiff-board and that even the person through whom the defendants claimed title has accepted that the suit schedule property is Government land as per revenue records and is described as Sarkari. The defendants’ documents Exs. B8 and B9-pahanies for the years 1973-74 and 1977-78 do not show the nature of the suit survey number, but no doubt, the name of pattedar is shown as Syed Vazeer and the nature of occupation is described as Inam Kabja. The trial court did not accept the revenue records on the ground that the column No. 10 in Ex.B9 was found written in different ink and not reliable. Even otherwise, on the basis of revenue records, the trial court found that the suit lands are wakf lands under the management of the first respondent/plaintiff and consequently decreed the plaintiff’s suit. On appeal, the lower appellate court has concurred with the findings of the trial court and dismissed the appeal. Hence this second appeal. Heard learned counsel for the appellants and he has brought to the notice of the court that the substantial question of law that is required to be answered in this second appeal is, whether the suit as framed is maintainable in view of specific provisions and procedure incorporated in Sections 36-B and 36-D of the Wakf Act for cases relating to recovery of possession of wakf property. I have heard learned counsel for the appellants on merits as well as on the question formulated as above. The findings of both the courts below show that the case of first respondent/plaintiff is primarily based upon Ex.A3- Munthaqab, Ex.A4 Thaktha Virasath, Ex.A6 appointing Muthawalli, A7, the proceedings directing the Inspector Auditor to take charge and Ex.A8, auction proceedings, all clearly established that the suit schedule property is a wakf property under the management and control of first respondent/plaintiff and the case of the appellants that they are the purchasers from defendants 1 to 3 under a sale deed was rightly rejected as neither it is the property of the defendants 1 to 3 nor a wakf property could have been sold by Muthwalli or his heir. Even otherwise, the substantial question of law based upon Sections 36-B and 36-D of the Wakf Act is clearly misconceived, as the said provisions were incorporated by an amendment to the Wakf Act, 1954, but the said amendment Act 69/84 was never notified for enforcement. The amended provisions under the said Amendment Act including Sections 36-B and 36-D of the Wakf Act were not, therefore, enforced and the separate machinery supposed to be provided for recovery of possession of wakf properties did not come into being. Even subsequently, instead of enforcing the said amendment Act 69/84, the Parliament has brought into force a new Wakf Act, 1995. In view of that, therefore, the substantial question of law itself is based on a misconception that Section 36-B and 36-D of the Wakf Act provided a separate machinery than the civil court is misconceived. Therefore, the appeal has no merits and it is liable to be dismissed. The second appeal is accordingly dismissed. However, there shall be no order as to costs. _________________________ VILAS V. AFZULPURKAR, J Dt. 1.4.2011 KR