HON’BLE SRI JUSTICE B.CHANDRA KUMAR SECOND APPEAL No. 157 of 1999 O R D E R: This appeal is directed against the Judgment and Decree in A.S. No. 333 of 1994 passed by the II Addl. Chief Judge, City Civil Court, Hyderabad, dated 28-8-1998 whereby and whereunder the appellate court confirmed the Judgment and decree in OS No. 2198 of 1987 passed by the X Assistant Judge, City Civil Court, Hyderabad, dated 20.10.1994. 2. For the sake of convenience, the parties will be referred to as they are arrayed before the trial court for the sake of convenience. 3. The Wakf Board represented by its Secretary filed the suit. Originally, the suit was filed for injunction restraining the defendants and their servants from dismantling and interfering in peaceful possession in respect of Sama Khana of Dargah bearing No. 5-5-173 to 5-5-176, Ghousepura, Hyderabad. The plaintiff also sought a declaration that the suit schedule mentioned property is a wakf property and vests with the plaintiff and that the sale deed dated 25.08.1982 is not binding on the plaintiff. The specific case of the plaintiff is that the suit schedule property bearing Municipal No. 5-5-173 to 5- 5-176 has been registered as Wakf by User under File No. 36/2 of 1955 and the same has been published at S.No. 1678 on Page No.8 in the Government Gazette dated 16-08-1984. It is also the case of the plaintiff that the defendants have no concern with the suit schedule property and that they are trying to damage the same and interfering in performing religious ceremonies in the suit premises. It is also their case that the suit premises Has been preserved as Samakhana of Darga Hazrath Ibadullah Shah Sahib. It is also the case of the plaintiff that it is the absolute owner of the suit schedule property by virtue of Mutakhao Succession Tamili 2577 dated 22nd Khurdad 1290 Fasli in Survey No. 55 situated at Ghousepura, Hyderabad. It appears that the plaintiff has amended the suit as per the orders passed by this court in CRP No. 4030 of 1993 dated 08-07-1994. According to the plaintiff, the cause of action arose on 22-2-1987 when the defendants tried to dismantle the suit property. 4. The defendants 1 and 3 to 5 filed written statement denying the averments made by the plaintiff contending inter alia that the averment of the plaintiff that the suit property is a Wakf property is not true and correct and that they are not parties to the alleged proceedings in File No. 36/2 of 1955 and that the Gazette publication dated 16-08-1984 is not binding and effective against them. Their further case is that the 1st defendant has been in possession and enjoyment as absolute owner of the suit property known as Koka Manzil, having purchased the same under a Registered Sale deed dated 25-02-1982. It is also their case that one Dawood Baig claiming himself to be the Mutawali of Dargah instituted a suit OS No. 35 of 1965 and subsequently, the same was numbered as O.S. No. 727 of 1974 on the file of the III Assistant Judge, City Civil Court, Hyderabad, against the Vendor’s Vendor of the defendants, namely, Hasan Ali for possession and perpetual injunction claiming that the suit property as a waif property and that after regular trial and contest the suit has been dismissed with costs. The matter was carried on appeal in AS No. 450 of 1979 on the file of the Additional Chief Judge-Cum-Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad and that the learned Judge dismissed the appeal on 27-03-1981 holding that the suit property is not a Wakf property. Thus the specific case of the defendants is that Mr.Hasan Ali, who was in possession and enjoyment of the suit schedule property as absolute owner, sold the same to one Syed Nadeemuddin under a registered sale deed and that the 1st defendant is in possession and enjoyment of the suit property as absolute owner since the date of its purchase. . It is also contended that the son of Dawood with a malafide intention to harass the defendants filed the present suit through A.P Wakf Board. All other allegations made by the plaintiff have been denied. The defendants filed Additional Written Statement contending inter alia that a dispute arose regarding the possession of the suit schedule property between the Muthavali and Sajjada Mirza Dawood Baig and Mr. Hasan Ali and the police initiated criminal proceedings in Crl. Case No. 25/5 of 1955 U/Sec. 145 Cr.P.C. before the Additional City Magistrate, Hyderabad who after enquiry found that the said Hasan Ali was in possession of the suit schedule property. It is also contended that the Judgment passed in OS 727 of 1974 and the Judgment in appeal in AS No. 450 of 1979 operate as resjudicata. Alternatively, it is also contended that the defendants perfected their title by way of adverse possession. It is also averred that the alleged Muthavali Succession Tamili 2577 dated 22nd Khurdad 1290 Fasli is false and baseless and publishing the Muuntakao in Government Gazette on 16-8- 1984 as Sama Khana is illegal. 5. The trial Court framed the following issues: 1. Whether the suit property bearing No. 5-5-173 to 176 situated at Ghousepura is in possession of the plaintiff ? 2. Whether the suit property is a wakf property ? 3. Whether the SD-1 is owner and in possession of suit property ? 4. Whether the plaintiff is entitled for the injunction against the defendants ? 5. Whether the suit for injunction is maintainable ? 6. Whether the suit is hit by the principle of res judicata ? 7. To what relief ? 6. On behalf of the plaintiff PWs. 1 to 3 were examined and Ex.A1 to A7 marked and on behalf defendants DW-1 was examined and Exs.B1 to B36 were marked. The learned Judge having appreciated the oral and documentary evidence adduced by both the parties observed that Ex.A5 sketch and that report of the Commissioner is not final and it does not show the houses. It is further observed that except the report of the Commissioner, the plaintiff has not placed any document to show that the suit schedule property is a wakf property. Thus the learned Judge came to the conclusion that the plaintiff miserably failed to establish that the suit property is a wakf property and that the plaintiff has been in possession of the suit schedule property. It is also observed that the Judgments in OS No. 724 of 1974 operate as res judicata in the present case. Challenging the same, the plaintiff filed appeal in AS No. 333 of 1994 before the II Addl. Chief Judge, City Civil Court, Hyderabad. 7. The learned appellate Judge having considered the rival contentions in detail came to the conclusion that PW1, who was examined on behalf of the plaintiff could not account to how the property in question was dedicated to the plaintiff and who dedicated to the plaintiff. It is also observed that the plaintiff failed to produce any Mutakhao Succession Tamili 2577 dated 22nd Khurdad 1290 Fasli in Survey No. 55 situated at Ghousepura, Hyderabad, as claimed by it and that no proof of such vital document is filed in support of the case of the plaintiff. It is also observed that merely because the suit schedule property is shown under Ex.A1, it does not mean that the plaintiff became the absolute owner of the property in question and the finding of the trial court on other ends, are also confirmed by the leaned appellate Judge. Challenging the same the present appeal has been filed. 8. The substantial questions of law arose for consideration are as follows: 1. Whether the courts below are right in holding the suit property as not the Wakf Property in spite of Commissioner’s Survey Report and gazette notification which has not been set aside by any competent authority and anybody has questioned the same in any appropriate forum ? 2. Whether the Courts below are right in holding that due to claim of the third party alters the nature of wakf property ? 3. Whether the courts below are right in coming to the conclusion that principles of res judicata will apply against the appellant even though the appellant was not a party in the earliest between the respondent and Muthawalli even though the appellant is not a party to the suit ? 9. It is not in dispute that the Mr. Hasan Ali was the Muthavali even as per the recitals of Ex.A1 and that the wakf property was under his management. It is also not in dispute that Ex.A5 is the plan survey of Darga drawn in Ex.A2 and suit property is separately shown as Ex.A4. As seen from the averments made in O.S. No. 727 of 1974, the said suit was filed against the vendor’s of the Vendor of the defendants mainly claiming that the suit schedule property is the wakf property and it was also alleged that the defendants therein were interfering with the possession of the plaintiff over the suit schedule property. 10. As seen from the issues framed in both the suits, it is clear that the same issues have been raised in the present case. Though the wakf Board is not a party to the proceedings but admittedly, Mirza Hasan Ali the Muthawali filed the said suit and it was contested. On appreciation of entire evidence adduced by the parties, it was categorically held that the entries in Exs.B3, B10 to B14 show that the father the defendant (Hasan Ali) was in possession of the suit property even in 1343 fasli. It was also held that the plaintiff failed to adduce any evidence to show that the suit property is in S.No. 55 and that the finding of the O.S No. 727 of 1974 was confirmed by the learned Judge in AS No. 450 of 1979 by a detailed Judgment. The Muthavalli had not instituted the suit in his individual capacity. He was representing Darga. Thus it is clear that the findings in O.S No. 727of 1974 operates as res judicata. 11. Coming to the issue whether the courts below are right in holding that the suit property is not wakf property in spite of Commissioner’s survey report and gazette notification, the learned counsel appearing for the respondent has relied upon the Judgment of the Supreme Court in The Board of Muslim Wakfs, Rajasthan V. Radha Kishan and others[1] wherein it is observed as follows: “37. In this context, the scope of Section 6 was examined by the High Court and it observed: “The purpose of S.6 is confined the dispute between the Wakf Board, the mutawalli and a person interested in the wakf. In other words, if there is a dispute whether a particular property is a wakf property or not, or whether a wakf is a Shia wakf or a Sunni wakf, then the Board or the mutawalli of the wakf or a person interested in the wakf as defined in S.3 may institute suit in a civil court of competent jurisdiction for the decision of the question. They can file such a suit within one year of the date of the publication of the list of wakfs and if no such suit is filed, the list would be final and conclusive between them. The very object of the Wakf Act is to provide for better administration and supervision of wakfs and the Board has been given powers of superintending over all wakfs which vest in the Board. This provision seems to have been made in order to avoid prolongation of triangular disputes between the wakf Board, the mutawalli and a person interested in the wakf who would be a person of the same community. It could never have been the intention of the legislature to cast a cloud on the right, title or interest of persons who are not Muslims. That is, if a person who is non-Muslims whether he be a Christian, a Hindu, a Sikh, a Parsi or of any other religious denomination and if he is in possession of a certain property his right, title and interest cannot be put in ;jeopardy simply because that property is included in the list published under sub-s.(2) of S.5. The legislature could not have meant that he should be driven to file a suit in a civil court for declaration of his title simply because the property in his possession is included in the list. Similarly, the legislature could not have meant to curtail the period of limitation available to him under the Limitation Act and to provide that he must file a suit within a year or the list would be final and conclusive against him. In our opinion, sub-sec. (4) makes the list final and conclusive only between the Wakf Board, the mutawalli and the person interested in the wakf as defined in section 3 and to no other person.” 38. We are in agreement with this reasoning of the High Court. 39. It follows that where a stranger who is a non-Muslim and is in possession of a certain property his right, title and interest therein cannot be put in jeopardy merely because the property is included in the list. Such a person is not required to file a suit for a declaration of his title within a period of one year. The special rule of limitation laid down in proviso to sub-s.(1) of Sec. 6 is not applicable to him. In other words, the list published by the Board of wakfs under sub-S.(2) of S.5 can be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises.” 12. It appears that the plaintiff has not filed any record to show that proper survey was conducted prior to the publication of the gazette and notices were issued to the persons, who were actually in possession of the property. The finding recorded in the Judgments and the document filed by the defendants in this suit and in the earlier suit clinchingly establish that the vendor’s vendor of the defendants were in possession of the property on the date of survey. Non-issuance of notice to the persons, who are in possession of the property and non-mentioning of their names in the survey report shows that proper survey was not conducted before publication of the gazette. Thus it appears that the persons who are going to be effected by the survey were not issued any proper notice. 13. In the light of the above discussion, it has to be held that there is no illegality or irregularity in the findings given by both the courts below and consequently, the appeal has to be dismissed. 14. Accordingly, the second appeal is dismissed. However, in the circumstances, no costs. _____________ 05-08-2010 Mjl/* [1] AIR 1979 SUPREME COURT 289