THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY C.R.P.No.1324 of 2010 Dt:04-10-2010 Between : A.P. State Wakf Board, Rep. by its Chief Executive Officer, Haj House, Hyderabad ..Petitioner And Smt. Sabita Joshi and others .. Respondents Counsel for the petitioner: Sri S.R. Mahajir Counsel for respondents : Sri Vedula Srinivas < GIST >HEAD NOTE: ? CASES REFERRED : 1) AIR 1984 SC 1043 2) 2009-MPHT 3-324 3) AIR 2007 SC 113(1) 4) AIR 1979 SC 289 5) 2007 (5) ALD 267 6) AIR 1982 M.P. 17 THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY C.R.P.No.1324 of 2010 JUDGMENT: The respondents herein filed O.S.No.110 of 2006 in the A.P. Wakf Tribunal, Hyderabad (for short ‘the Tribunal’), with a prayer to declare the notification dated 21-03-1985, issued under Section 4(3) of the Wakf Act, 1954 (for short ‘the old Act’), in respect of a deserted Masjid, situated at Ward No.13, Block No.6, Karwan, corresponding to Sy.No.182 of Gudimalkapur Revenue Village, Hyderabad, as unsustainable, contrary to the original Muntakhab, null and void; and to set aside the same. They stated that, one Mr.Muneeruddin was the pattadar of an extent of Ac.6.14 guntas in Sy.No.182/1 and 2 of Gudimalkapur, and he entered into an agreement of sale with one, Mr. Ramdas Maharaj, alias Ramdas Brahmachari, on 30-07-1956, to sell the land for a consideration of Rs.2,500/-. Possession is said to have been delivered on the same day. It was stated that Muneeruddin died on 15-07-1957 and thereafter his legal heirs executed a sale deed on 19-11-1966 in faour of Ramdas Maharaj, duly obtaining permission under the A.P (Telangana Area) Tenancy and Agricultural Lands Act. Ramdas Maharaj is said to have executed a Will dated 20-02-1968 in favour of one Bhaskar Rao Joshi, and on the death of the executant of the Will, Bhaskar Rao Joshi became the absolute owner of the property. The respondents are said to be the legal heirs of Bhaskar Rao Joshi, who died on 18-05-2004. It was mentioned that O.S.No.597 of 1969 was filed by Bhaskar Rao Joshi, in the Court of II Additional Judge, City Civil Court, Hyderabad, for perpetual injunction, when he faced some disturbance from one, B.Narasimha Reddy. The suit was decreed and the same was affirmed by this Court in L.P.A.No.281 of 1999. The respondents contended that a person, by name Mohd.Ali Khan filed O.S.No.50 of 2004 against Bhaskar Rao Joshi, in respect of the land, stating that it belongs to Masjid-e-Gairabad (deserted) and that the land is in illegal possession of the defendant, i.e. the Joshi. After the death of Bhaskar Rao Joshi, the respondents herein, came on record and contested the suit. However, Mohd. Ali Khan has withdrawn it on 21-06-2006. On coming to know from the plaint in that suit, that there existed a notification, dated 21-03-1985, in respect of the land, the respondents herein initially approached this Court by filing W.P.No.16437 of 2006. The writ petition was disposed of by this Court, leaving it open to the respondents herein to approach the Tribunal for necessary relief, and the present suit was filed in that context, challenging the notification. The petitioner opposed the suit by filing written-statement. The claim of the respondents was flatly denied and it was alleged that the property belongs to Wakf. The averment that Muneeruddin was pattadar of the land was denied and the transactions effected by him or his legal heirs are said to be void. The respondents were put to strict proof of all the facts pleaded by them. An objection was raised as to the description of the property as well as the maintainability of the suit. According to them, the notification did not suffer from any illegality and the respondents have no right to challenge the same. Ultimately it was prayed that the suit be dismissed. The Tribunal framed only one issue for its consideration, viz., whether the plaintiff is entitled for declaration of notification as null and void ? On behalf of the respondents, PW-1 was examined and Exs.A-1 to A-16 were filed. On behalf of the petitioner, DW-1 was examined and Exs.B-1 to B-3 were filed. The Tribunal dismissed the suit through its judgment dated 20-01-2010. Hence this revision, under Article 227 of the Constitution of India. Sri S.R. Mahajir, learned counsel for the petitioner submits that the very institution of the suit before the Tribunal by the respondents was untenable. According to him, the judgment of the Tribunal suffers from several infirmities. Learned counsel submits that, a) the suit was untenable, since it was not preceded by a notice contemplated under Section 89 of the Wakf Act, 1995 (for short ‘the new Act’); b) it was barred by limitation; c) the Court fee paid was inadequate; d) the description of the property was defective; e) the relief claimed in the suit does not accord with Section 34 of the Specific Relief Act (for short ‘the S.R. Act’), and e) the respondents failed to prove their case, on merits. He has placed reliance upon quite good number of precedents, in support of his contentions. Sri Vedula Srinivas, learned counsel for the respondents, on the other hand, submits that the requirement to issue notice under Section 89 is obviated, on account of the institution of writ petition before this Court, and the permission accorded, in the order passed therein, to the respondents to file the suit within the time stipulated therein. He further submits that the question of limitation becomes irrelevant, once this Court permitted the respondents to file a suit, and it was not open to the petitioner to raise that objection, having opposed the writ petition, and invited an order, that necessitated the filing of the suit. He contends that proper Court fee was paid; description of the property is correct, and in a suit for declaration to the effect that a notification issued under a statute is defective; the proviso to Section 34 of the S.R. Act does not apply. He further states that the respondents derived title from the original pattadar and it was established beyond any pale of doubt, that the notification challenged in the suit is patently defective. He too relied upon number of decided cases. The suit was filed by the respondents for the relief of declaration, that the notification dated 21-03-1985, marked as Ex.A-10, which is equivalent to Ex.B-2 is contrary to law and the original muntakhab; and thereby null and void. In the plaint, the respondents stated the manner in which, the title has accrued to them. Certain facts were supplemented through amendment of the plaint. A written-statement was filed opposing the suit, in all respects. The Tribunal decreed the suit. Extensive arguments are advanced on behalf of the petitioner herein, touching on various aspects, some of which, do not find any basis or foundation in the written statement. The objection referable to Section 89 of the Act; the plea as to limitation; the one, relating to payment of Court fee; the plea, that the relief claimed in the suit does not accord with Section 34 of the Specific Relief Act; are not at all raised in the written statement. Obviously, for that reason, the Tribunal did not feel the necessity of framing issues on those aspects. At the stage of hearing of the suit, some of those aspects, are raised in the form of written arguments. Since the Act does not provide for any regular appeal, this Court permitted the arguments to be advanced on those aspects also, by treating the revision, almost as an appeal. At the same time, the scope of jurisdiction of the Tribunal, and the nature of proceedings before it; as well as the parameters for this Court, while exercising supervisory jurisdiction under Article 227 of the Constitution of India, have to be kept in mind. The respondents pleaded the necessary facts, touching on devolution of title to them, from the original owner by name, Muneeruddin. They have also filed the original muntakhab as Ex.A-1, to establish that the mosque was located only in an area of 662 sq.yards, whereas in Ex.A-10, a notification was issued for larger extent. The sale deed executed by the legal heirs of Muneeruddin in favour of Ramdas Maharaj was filed as Ex.A-15. Since it was a document executed more than 30 years prior to the institution of the suit, it carried with it, the presumption, provided for under the Indian Evidence Act. No contradictory evidence was adduced to question the validity of Ex.A-15. The respondents have also filed Ex.A-16, the Will executed by Ramdas Maharaj in favour of their ancestor, Bhaskar Rao Joshi. Those documents were sufficient to establish their title, particularly, when no evidence, comparatively superior order in nature, was adduced by the petitioner. Now it needs to be seen, as to whether the respondents made out a case for annulment of the notification, Ex.A-10. It was issued under Section 4(3) of the old Act. The provision enables the Wakf Board to publish a notification in respect of the properties held by any Wakf. Before the notification is published, an obligation is cast on the concerned authorities, to conduct survey. The respondents came to know about the notification only when a reference was made to it, in O.S.No.50 of 2004, filed by Mohd. Ali Khan, before the Tribunal. That suit, however, was withdrawn. Therefore, the respondents felt the necessity of challenging the notification. It was pleaded that the prescribed procedure was not followed, and that it is contrary to the original muntakhab. As mentioned earlier, the original muntakhab as well as the one, that came into existence in respect of the mosque in the subsequent years, were filed. Hardly any evidence to the contrary was adduced by the petitioner. The Tribunal recorded a finding to the effect that the actual wakf was constituted under Ex.A-1, the Muntakhab, and as per Ex.A-3, the plan attached to it, it was in respect of only a plot of 662 sq. yards. Therefore, the very basis for the Government, or for that matter, the petitioner, to issue the notification covering an area of Ac.6.14 guntas did not exist. Even before this Court, the petitioner is not able to demonstrate that the notification accords with the Muntakhab, and that the prescribed procedure was followed. It is no doubt true that the various objections raised by the petitioner are formidable in nature. However, they were not raised in the written-statement, much less any steps were taken to get the issues framed, touching upon them. Even an ordinary Civil Court would not be justified in dealing with the questions, which are not raised in the pleadings. The mandate under Order XIV C.P.C., is that, issues must be based upon the assertion made by one party, and denied by the other. There are also instances, where the Court can address certain aspects, though not reflected in the pleadings. That would be possible only when the parties give their express or implied consent for such a course. The purpose of constituting specialized Tribunals is no doubt, to relieve the proceedings before it from the rigor of technicalities. The object is to enable the Tribunal to address the central issue, than to bind it in the procedural jargon. At the same time, certain basic tenets of adjudication which is adversarial in nature cannot be overlooked. One of it is that no party to the proceedings can be taken by surprise, by the other. Two principal contentions urged on behalf of the petitioner are that the suit is defective, inasmuch as it was not preceded by a notice, contemplated under Section 89 of the new Act, and that it is barred by limitation. Three subsidiary contentions are raised viz., that the description of the property is not accurate, the Court fee paid therefor is not adequate, and that the prayer in the suit does not accord with Section 34 of the S.R. Act. Section 89 of the new Act is akin to Section 80 of C.P.C. It reads, “Sec.89: Notice of suits by parties against Board:-- No suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any rules made thereunder, until the expiration of two months next after notice in writing has been delivered to, or left at, the office of the Board, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left”. In case the matter is such that issuance of notice was necessary, the failure to comply with the same would certainly tell upon the maintainability of the suit. In BIHARI CHOWDHARY v. STATE OF BIHAR[1], the Hon’ble Supreme Court held that failure to issue a notice under Section 80 of the C.P.C., where it is otherwise applicable, would render the suit untenable. This was followed by the Madhya Pradesh High Court in KRISHI UPAJ MANDI SAMITI, BANAPUR v. CHANDRA SHEKHAR RAGHUVANSHI[2] . A provision identical to Section 80 C.P.C was interpreted, and it was held that the failure to issue notice under that provision would fatal to the suit. Authorities can be multiplied on this aspect. However, two reasons persuade this Court, not to accept that contention. The first is that the plea was not raised in the written statement. In STATE OF A.P. v. PIONEER BUILDERS[3], the Supreme Court held that the requirement as to issuance of notice under Section 80 of C.P.C. is capable of being waived by a defendant in a suit, and failure to raise a plea in the written-statement, touching upon it, would constitute waiver. The plea that there was failure to issue notice would not render the suit not maintainable. At the most the plaintiff would be required to comply with the provisions and come back to the Court, thereafter. Once the suit has been adjudicated on merits, without the defendant in it, raising any objection, as to the failure to issue notice, the acceptance of the plea at a later stage would render the entire exercise futile. Even if a plea was not raised, the petitioner could have insisted on framing of an issue touching it. No such effort was made. The second reason is that, instant case, a writ petition filed by the respondents was opposed by the petitioner, on several grounds. Accepting that plea, this Court disposed of the writ petition, leaving it open to the respondents to file a suit within a time stipulated therein. The relevant portion reads, “…Therefore, liberty is given to the petitioners to approach the Wakf Tribunal, Hyderabad by filing an appropriate application within a period of two weeks from the date of receipt of a copy of this order. As and when such an application is made, the Wakf Tribunal may consider the same on the merits of the case”. It is not in dispute that the suit was filed accordingly. In case the petitioner wanted that a suit must be preceded by the service of notice, under Section 89 of the new Act, such a contention ought to have been raised before this Court itself. For all practical purposes, the petitioner waived the objection, even if it is otherwise tenable. Hence, the plea cannot be accepted. The second contention is, as to the limitation. Apart from being an important ground for a defendant to raise; limitation is an aspect, which, the Court or Tribunal are required to take into account, on their own accord, as provided for under Section 3 of the Limitation Act. Limitation for filing suits under Section 6 of the new Act is stipulated under proviso thereto. It mandates that no suit raising any dispute regarding Wakfs shall be entertained by the Tribunal, after expiry of one year from the date of publication of list of Wakfs. If that provision is to be applied to the facts of the case, the suit is obviously barred by limitation. However, the limitation prescribed under proviso to Section 6 was held to be applicable only when the suit is filed by the wakf or anybody claiming rights in the wakf. In THE BOARD OF MUSLIM WAKFS, RAJASTHAN v. RADHA KISHAN[4], the Supreme Court held that the limitation prescribed under that provision would apply to suits filed by the Wakf Board, or a Muthavalli of the Wakf, or any person interested in the Wakf. Conversely, it has no application to the suits filed by a stranger. Similar view was taken by a Division Bench of this Court, recently, i n A.P. STATE WAKF BOARD V. MAVURU SUNDARAMMA[5]. [(See also AIR 1996 Karnataka 55 (D.B), and AIR 1981 Rajasthan 98 (D.B).] In the instant case, the respondents did not claim any rights in the wakf as such. Their concern was only about the property. Another reason that militates against the petitioner is that, while disposing of W.P.No.16437 of 2006, this Court permitted the respondents to file the suit within two weeks from the date of receipt of the order in that writ petition. Two inferences can be drawn from it, viz., that this Court is deemed to have considered the question of limitation and issued directions to the effect that in case the suit is filed within the time mentioned by it, it can be treated as having been filed within limitation. The second is that being a party to the writ petition, the respondents can be said to have acquiesced in the factum that the suit, if filed, within the time, indicated by this Court, would be within limitation. More than all, the petitioner did not raise any plea as to limitation in the suit, much less any issue was framed on it. After a full- fledged trial has taken place and the Tribunal rendered its judgment, the plea is raised for the first time before this Court. Therefore, it cannot be accepted. As to the subsidiary contentions, it is true that the proviso to Section 34 of the S.R. Act mandates that if a plaintiff in a suit, filed for declaration; is capable of seeking other reliefs, but fails to do so, the suit for mere relief of declaration cannot be maintained. In the instant case, the suit is referable, more to Section 6, than to Section 34 of the S.R. Act. It hardly needs any mention that where a set of proceedings is governed by a special enactment, the requirements under general law do not get attracted. Further, in ANJUMAN ISLAMIA V. NAJIM ALI[6], a Division Bench of the Madhya Pradesh High Court held that Section 34 of the S.R. Act has no application to the suits, which are filed under the provisions of the Wakf Act, without claiming the relief of recovery of possession. Learned counsel for both the parties have relied upon several other precedents, touching on this aspect. However, since the principle is settled, it is not felt necessary to refer to all of them. So far as the other two subsidiary issues, viz., description of the property and plea as to Court fee are concerned, it needs to be observed that the very purpose of creating Tribunals is to relieve the adjudicatory forum from the nitty-gritty of procedural shackles. Once the parties are aware as to the nature of dispute between them, such minor aspects should not come in the way. In case the Parliament wanted these aspects to rule the roost, it could have simply directed that one more Civil Court in each of the jurisdictions be created, or one of the existing Civil Courts be entrusted with the adjudication of disputes arising under the Act. The respondents were not put on notice before the impugned notification was issued. They were not conversant with the various details of it including the boundaries of the land or the value thereof. When the notification as such is challenged, any ambiguity on such aspects, cannot adversely affect the suit. The Court fee is a matter between the Court and the plaintiff in a suit and the defendant does not have much to say in this regard. The parties understood the identity of the property clearly. On these aspects, no issues were framed and the petitioner did not raise any objection, when the Tribunal framed only one issue. Viewed from any angle, this Court does not find any basis to interfere with the judgment of the Tribunal in the suit. The C.R.P. is accordingly dismissed. There shall be no order as to costs. _______________________ L. NARASIMHA REDDY, J. Dt.04-10-2010 Note: L.R copy to be marked. (B/O) KO [1] AIR 1984 SC 1043 [2] 2009-MPHT 3-324 [3] AIR 2007 SC 113(1) [4] AIR 1979 SC 289 [5] 2007 (5) ALD 267 [6] AIR 1982 M.P. 17