HON’BLE SRI JUSTICE B. PRAKASH RAO C.R.P.No.3786 of 2009 Date: 18-01-2011 Between: Janaki Busappa and others ………… Petitioners and Andhra Pradesh State Wakf Board and another ……… Respondents HON’BLE SRI JUSTICE B. PRAKASH RAO C.R.P.No.3786 of 2009 ORDER: The present revision is filed against the Judgment in O.S.No.68 of 2000 dated 04-08-2009 on the file of the A.P. Wakf Tribunal, Hyderabad. The plaintiffs are the petitioners herein. The parties in this revision will be referred as in the Lower Tribunal. 2. The plaintiffs have filed the suit in O.S.No.68 of 2000 for the grant of permanent injunction restraining the defendants from interfering with the possession of the plaintiffs over the land in Sy.No.914/B to an extent of Ac.3.00 in Kalluru Village and Mandal, Kurnool District. Originally the suit was filed for the above said relief and later plaint was amended seeking relief of setting aside the letter No.3/2/28/KLN/99 dated 21-08-1999 issued by the Defendant No.1 allotting the suit land to Defendant No.2. 3. The plaintiffs have alleged that they are the owners and possessors of the plaint schedule property having purchased the Item No.1 to 4 from Boya Pedda Sanjanna and others through Registered Sale Deed dated 20-11-1996 and the said vendors have purchased the said land from M.A. Rahiman and others through Registered Sale Deed dated 28-05-1987. It is further stated that one Rasool Bee was the original owner of suit land and the said property was given to Fathima Bee and Haleem Bee through Registered Partition Deed dated 1-6-1945. M.A. Raheem is the son of Fathima Bee and other vendors under Sale Deed dated 28-05-1987 are legal heirs of Haleem Bee. It is stated that the erstwhile Kurnool Navab have granted the suit lands as personal al inam to Syed Yusuf Shah Ali and after his death his son Syed Shahi has succeeded to the said lands. Syed Shah Ali died leaving behind his three daughters namely Macco Bee, Dada Bee and Saheeb Bee and the said three daughters have succeeded to the suit lands. Macca Bee has got three sons namely Hayath Sahib, Karim Sahib and Razak Sahib. Hayat Sahib and Karim Sahib died issueless and Razak Sahib has succeeded to Mecca Bee. Rashool Bee is the successor of Razak Sahib. The other averments in the plaint may not be relevant as the issue in the revision is whether the suit land is Wakf Land or not. 4. The defendant No.1 has filed written statement stating that the suit land along with other properties admeasuring Ac.200.05 cents are service inam lands attached to Budd Buddi Mosque as per Title Deed No.3826. The suit properties are registered as Wakf properties and the Wakf Commissioner has conducted survey and identified the lands attached to Budda Buddi Mosque and the suit land is shown in his report as Wakf property. The Government has issued notification on 2-5-1963 notifying the said properties as Wakf properties. It is stated that the defendant No.1 through proceedings No.P2/28/KNL/99 dated 21-8-1999 allotted Ac.3.00 of land in Sy.No.914/B of Kalluru Village, which is the suit land, to defendant No.2 for the construction of Idga. As per the said permission, the defendant No.2 has constructed Idga over the suit property, which consists of four walls but due to rains two side walls were collapsed and Muslim People are performing prayers in that area. It is further alleged that the sale transactions and the partition dated 1-6-1945 are void and the lands are service inam lands, which are nothing but Wakf properties. The defendants have claimed that they are in possession of the suit land. The defendants have taken plea that the notice under Section 89 of the A.P. Wakf Act, 1995 (for short ‘Wakf Act’) was not issued and suit has to be dismissed in limini. The defendant No.2 has filed memo adopting the written statement filed by the defendant No.1. 5. On the above pleadings, the Wakf Tribunal has framed three issues viz., 1) Whether the Plaintiffs are entitled for permanent injunction against the Defendants restraining them from interfering with the peaceful possession and enjoyment of the plaint schedule property? 2) Whether the plaintiffs are entitled for the relief of declaration to declare the proceedings of the Defendant No.1 as null and void? 3) Whether the suit is bad and maintainable for want of mandatory notice under Sec.89 of Wakf Act, 1995? 6. The plaintiffs have examined PWs.1 to 8 and marked Exs.A1 to A31 and the defendants have examined DWs.1 and 2 and marked EXs.B1 to B12 on their behalf. 7. The Wakf Tribunal on issue No.2 held that the suit land is Wakf land and the possession of plaintiffs cannot be held to be lawful and further held that the plaintiffs are not entitled for declaration to set aside the letter of defendant No.1. In view of the finding on issue No.2, issue No.1 was held against the plaintiffs. The Lower Tribunal held that suit notice was not given and held the issue No.3 in favour of defendants. 8. It is the case of the plaintiffs that the lands are personal inam lands of predecessors in interest of vendors of plaintiffs. The suit lands have been allotted to Fathima Bee and Haleem Bee through Registered Partition Deed dated 01-06-1945, Ex.A1, by Rasool Bee. Since the date of partition Fathima Bee and Haleem Bee were in possession and their heirs have sold the lands to plaintiffs’ vendors through Ex.A3, Sale Deed dated 28-5-1987 and the said vendors in turn have sold the suit land to plaintiffs through Sale Deed Ex.A2 dated 20- 11-1996 and they have claimed to be in possession of the suit lands. The plaintiffs contended that though the defendants have claimed the suit lands are Wakf lands, but there is no entry in the Gazette to the extent the suit land has been declared as Wakf land. The alleged T.D.No.3826 has not been produced in the suit and it is not known what it contains. The claim that the lands are Wakf lands is on the basis of Ex.B3 i.e. Survey Commissioner’s Report. It is contended that the Survey Commissioner’s report consists some other lands viz., Sy.No.699/2, 704 and 707 of Kalluru Village and the said lands were acquired by the Government. There was dispute for apportionment of compensation between the defendant No.1 herein and the claimants. The Sy.No.699/2 was subject matter of O.P.No.364 of 1990 and the Additional Subordinate Judge, Kurnool in O.P.No.364 of 1990, dated 13-12-1996 vide Ex.A17 held that the land is Wakf land. On appeal, the II Additional District Judge, Kurnool in A.S.No.110 of 1997 dated 8-2-1999 vide Ex.A18, set aside the Judgment in Ex.A17 and held that the land is not Wakf land and the said Judgment has been affirmed by this Court in S.A.No.664 of 1999 dated 23-7-1999 (Ex.A19). The land in Sy.Nos.704 and 707 was the subject matter of O.P.No.452 of 1989, and the Additional Subordinate Judge at Kurnool by Judgment dated 20-11-1992 (Ex.A20) held that the said lands are not wakf lands and the said Judgment has become final as A.S.No.1777 of 1998 filed against the Judgment in O.P.No.454 of 1989 has been dismissed by the Division Bench of this Court on 14-11-1998. The plaintiffs have contended that the suit lands and the lands mentioned above are included in the Ex.B3 report, which is the basis for defendants claiming as Wakf land. The plaintiffs have further contended that they have applied to M.R.O. as well as the Collector whether the suit lands are service inam lands, and the M.R.O., Kurnool through Ex.A15 and the District Collector, Kurnool through Ex.A16 have replied that the suit lands are not service inam lands. It is further contended that even as per the enquiry report Ex.B12 there is standing crop over the suit land which indicates that the plaintiffs are in possession. 9. On the contrary, the defendants have submitted that the lands are service inam lands, which amounts those lands are Wakf lands and as per Ex.B2 Gazette notification 2-5-1963 and the survey Commissioner has submitted the report through Ex.B3 stating that the Sy.No.914/2 is Wakf land attached to Budda Buddi Mosque as per T.D.No.3826. It is further contended that T.D.No.3826 is in torn condition and they have applied for certified copy of the said T.D. and the District Collector, Kurnool, through Ex.B4 has intimated that the copy of T.D. cannot be given as the same is in brittle condition. It is further contended one G. Eshwar Reddy has filed suit in O.S.No.1197 of 1999 on the file of Principal Junior Civil Judge at Kurnool and the learned Principal Junior Civil Judge through the Judgment in Ex.B10 held that the plaintiffs therein failed to prove that Sy.No.914/2 is not Wakf property. The defendants contended on the basis of Ex.B12 enquiry report that the existence of certain walls on Northern and Western sides of the property shows that there is an Idga and they are in possession of the suit land. 10. Now the points arise for consideration are viz., 1) Whether the suit lands are not Wakf lands and plaintiffs are in possession of the suit land? and 2) Whether the suit is liable to be dismissed for want of notice under Section 89 of the Act? POINT No.1: 11. It is the case of the plaintiffs that the suit land is the personal inam land and it has been succeeded by Rasool Bee, Fathima Bee and Haleem Bee and they have got the property through Registered Partition Deed vide Ex.A1 dated 01-06-1945 and they were in possession as absolute owners from the said date. The legal heirs of Fathima Bee and Haleem Bee have sold the said land in favour of plaintiffs vendors through Ex.A3 and the plaintiffs have purchased the same through Ex.A2. The defendants have claimed some other properties as Wakf properties basing on the notification declaring that the lands are Wakf lands and the civil court as well as this Court have held that those lands are not Wakf lands. 12. On the other hand, the defendants have claimed that the land is service inam land attached to Budda Buddi Masjid and by virtue of the notification in Ex.B2 dated 2-5-1963 and Ex.B3 Survey Commissioner’s Report, the land is Wakf Land and any transactions of Wakf land are invalid and once the lands are notified as Wakf lands, they are deemed to be Wakf lands. 13. It is well settled proposition that by mere issuing notification declaring that the properties are Wakf properties does not confer valid title in favour of the institution and it is not binding on third parties. The notification is conclusive to the extent of persons claiming under the Wakf and does not bind on the persons who are claiming independent right over the Wakf properties. In view of the above said legal position, the parties have to establish title over the property notwithstanding the entry in the notification. 14. It is the case of the defendants that the land being the service Inam land the same has to be treated as the Wakf land. The defendants mainly depend upon the report given by the Survey Commissioner, which is marked as Ex.B3 and the Gazette notification dated 2-5-1963, which is marked as Ex.B2. The defendant No.1 relies upon TD No.3826 wherein the lands to an extent of Ac.200.05 cents were shown as the Wakf lands. The above document TD No.3826, through which the defendants are claiming the land as the Wakf land, was not placed before the court nor the same was marked. The defendants submit that on the basis of endorsement made by the District Collector under Ex.B4, dated 21-1- 2003 the copy of TD No.3826 was not placed before the court. A perusal of the record of the lower Court shows that the plaintiffs also filed an application for summoning TD No.3826 and the same was not produced before the Court. The Survey Commissioner’s Report, Ex.B3, was on the basis of an ex parte enquiry where notices were not issued to the affected parties. The Survey Commissioner mainly relied upon the above title deed No.3826 which is not seen light of the day. The Gazette publication Ex.B2 is silent with regard to the survey numbers or their details. The evidence of DW-1 clearly shows that the survey numbers are not mentioned in the Gazette or any particulars of the same were mentioned. It is mandatory upon the Survey Commissioner to conduct enquiry after giving notice to the persons affected. If there is no such enquiry, the entries in the Gazette and the very publication of the list of Wakf under Section 5 of the Wakf Act is held to be illegal and not binding. This Court i n A.P. STATE WAKF BOARD, HYDERABAD v. M. SUDARAMMA AND ANOTHER [1] and unreported judgment in C.R.P.No.1268 of 2006 dated 22-08-2007 held that the notification issued under Section 5 of the Wakf Act, in the absence of notice an enquiry under Section 4(1) of the Wakf Act, is to be ignored and on the basis of the above document, the Wakf Board cannot claim title. It is further held that the bar imposed under Section 6 of the Wakf Act does not apply to the third parties. The Notification would be binding upon the persons claiming title. Hence, the parties have to prove the title independently. The claim that the suit property belongs to Defendant No.1 also cannot be considered as the lands in Sy.Nos.704, 707, 699/2 and 701 of Kalluru Village are service inam/wakf lands attached to Budda Buddi Masjid along with the suit land. The lands in Survey Nos.704 and 707 have been acquired by the Government for the purpose of providing house sites to the weaker sections and as there was dispute between the Wakf Board i.e. Defendant No.1 herein and claimants regarding apportionment of compensation, the matter was referred to Civil Court under Sections 30 and 31 of L.A. Act and numbered as O.P.No.452 of 1989. It is clear from the Judgment in O.P.No.452 of 1989 (Ex.A20) that the Commissioner’s Report (Ex.B3) has been marked as Ex.B7 in the said O.P. and the Wakf Board has claimed the compensation basing on the Gazette Notification and Wakf Commissioner’s Report, dated 30-04-1956. The Additional Subordinate Judge, Kurnool by Judgment dated 20-11-1992 in O.P.No.452 of 1989 (Ex.A20) held that the lands are not Wakf lands. The said Judgment has been confirmed by Division Bench of this Court in A.S.No.1777 of 1998 dated 14-11-2008. The lands in Sy.Nos.6999/2 and 701 were also acquired and the matter was referred to Civil Court for apportionment of compensation between the Wakf Board and claimants and numbered as O.P.No364 of 1990. The Learned Additional Subordinate Judge by Judgment dated 13-12-1996 in Ex.A17 held that the lands are Wakf lands and on appeal the Learned II Additional District Judge by Judgment dated 08-02-1999 in A.S.No.110 of 1997 (Ex.A18) reversed the Judgment in Ex.A17. It is clear from the Judgment that the Survey Commissioner’s Report Ex.B3 has been filed and marked as Ex.B5. The Wakf Board has claimed the said lands as Wakf lands basing on T.D.No.3826, which is the same as in this case. The Judgment in Ex.A18 has been confirmed by this court in S.A.No.664 of 1999 dated 23-7-1999. Thus the claim of Wakf Board basing on Wakf Commissioner’s Report dated 30-04-1956 and Gazette Notification, have been negatived by the courts on earlier occasions though for different survey numbers. No doubt the said judgments are not between the plaintiffs and the defendants herein and technically it cannot operate as res judicata. However, the findings basing on the same evidence against the defendants herein certainly were taken into consideration for determining the issues. The District Collector, Kurnool and the Mandal Revenue Officer, Kalluru have granted the certificates through Exs.A-14 and A-15 to the effect that the suit land is not service inam land, as the service inam land register does not contain Sy.No.914/B. The defendants have not adduced any independent evidence to show that the lands are service inam lands. On the other hand, the certificates in Exs.A-14 and A-15 go to show that the Service Inam Register of Kurnool District do not contain the suit land, which goes to show that the suit land is not service inam. The sole basis for the claim of the defendants is the entry in T.D.No.3826 and they failed to file the said copy and they have taken shelter on the letter of District Collector (Ex.B4) to the effect the said T.D. is in brittle condition. If really T.D.No.3826 is in existence and contains the particulars of lands, the defendants, who were parties to O.P.No.364 of 1996, could have filed the same in the court in the above O.P. There was no pleading in the said O.P. that the T.D.No.3826 was in brittle condition at that time also. There was no attempt on the part of Defendant No.1 to produce T.D.No.3826 on earlier occasions. The lower Court has put the burden on the plaintiffs to prove that the land is not included in T.D.No.3826, which may not be correct for the simple reason that it is the duty of the party, who claims on the above document, to produce the documents which they are relying. In the instant case, the defendants are relying on the entry made in T.D.No.3826 and it is for the defendants to prove that the suit land is included in T.D.No.3826. As per the Ex.A1, dated 01-06-1945 the land fell to the share of Fathima Bee and Haleem Bee and the entries in the said partition deed goes to show that the said Fathima bee and Haleem Bee are claiming independent right over the suit land at least from the year 1945. The entries in a registered document, which is more than 30 years, are presumed to be correct. The subsequent documents came into the existence basing on the said Ex.B1. The lower Court mainly relying on the certain admissions of PW-1 to the effect that the lands are service inam lands held against the plaintiffs. The oral evidence has to be seen in the context of registered documents and in this case the partition deed Ex.B1 was executed in the year 1945 and no person has got any personal knowledge about the nature of land and in what circumstances the land was given. As per Ex.A1, the property has been partitioned amongst the sisters as the land was their personal property and PW-1 was not even born by the time and in those circumstances, PW-1 is not the proper witness to speak about the nature of the land and the admission of PW-1 is not having any significance. Since the defendants have not produced the title deed and the finding of the Civil court as well as High Court in Exs.A17 to A20 holding that the lands covered in those O.Ps are not Wakf lands and the certificates issued by the Collector and M.R.O. in Exs.A14 and A15 to the effect the suit lands are not service inam lands, it can solely be concluded that the suit land is not the Wakf land. There is no evidence to show that the suit land is service inam land and consequently they are held to be not Wakf properties. 15. The plaintiffs have claimed that they are in possession by virtue of sale deed Ex.A3 and their predecessors were in possession from 1945 from the date of execution of Ex.A1. The plaintiffs have filed Exs.A29 and A30 to the effect that the plaintiffs are in possession of the suit land. On the other hand, the defendants have claimed that they are in possession of the property and the defendant No.1 has allotted the land to the defendant No.2 for the construction of Idga through Letter dated 21- 8-1989 and the defendant No.2 has constructed Idga but walls have been collapsed. The defendants have strongly relied on the report submitted by the District Jude, Kurnool dated 6-10-2007 through Ex.B12. As seen from the report, Ex.B12, there are walls on North and West sides in L shape and there is standing paddy crop in the suit land. It is the case of the plaintiffs that they have raised the crop and Exs.A29 and A30 shows that paddy crop was raised and plaintiffs are in possession. The claim of the defendants is that in view of the existence of walls, they are in possession of the suit land. The walls are on two sides and it could be dividing line between the suit land and other lands and could have been constructed as boundary for other lands also. Mere existence of wall on two sides cannot be presumed to be the defendants are in possession of the suit land. It is not the case of the defendants that either they have raised the paddy or they have given the land for lease and the tenants have raised the paddy crop. The existence of paddy crop itself shows that the plaintiffs are in possession of the land. Even as the Ex.A1 the plaintiffs’ predecessors have partitioned the land and they have asserted their right, title and possession over suit land right from 1945 and the documents have been executed at regular intervals. The execution of sale deeds in the years 1987 and 1996 goes to show that the properties are changing the hands. On the other hand, the defendants have not produced any evidence to show that they are exercising the right and possession over the suit in any manner. In view of the above facts, the plaintiffs have proved their lawful possession over the suit land as on the date of filing of the suit. Since the suit land is not proved to be Wakf property and plaintiffs are in possession, the defendant No.1 has no right to allot the suit land in favour of the defendant No.2 through Ex.B6. POINT NO.2: 16. The defendants in their written statement stated that the suit notice as required under Section 89 of the Wakf Act was not given and the plaintiffs are to be non suited on the above ground. It is seen from the record that the plaint was presented on 28-1-2000 and the same was returned with an office objection regarding the suit notice. After the plaint was returned, the plaintiffs got issued the suit notice in compliance of Section 89 of the Wakf Act and after service of notice on the defendant No.1 and after complying with the statutory requirement, the suit was presented and the same was numbered as O.S.No.68/2000. The provisions of Section 89 of the A.P. Wakf Act are similar to that of Section 80 of the C.P.C. The counsel for the plaintiffs submitted that the notice has to be issued before the suit is instituted and his further submission is that the suit gets instituted only when it is numbered after the compliance of all the statutory requirements and objections. He also further submitted that the suit on presentation was returned for the purpose of compliance of suit notice. The suit notice was issued as required under Section 89 of the Wakf Act and the same was presented. The suit on presentation was numbered as O.S.No.68 of 2000 on the file of the A.P. Wakf Tribunal, Hyderabad and the counsel argued that the suit was properly instituted as required under Section 89 of the Wakf Act. The learned counsel for the defendants, on the other hand, submitted that the suit notice has to be issued before the presentation of the plaint and any subsequent notice will not cure the defect. It is pertinent to notice here that the suit was returned for want of notice and merely because the suit was returned for compliance of certain statutory requirement, it cannot present the suit for adjudication. There cannot be a total prohibition of adjudicating the issues. For that purpose, Section 89 of the Wakf Act and Section 80 of C.P.C. were brought into statute