THE HON’BLE SRI JUSTICE N.R.L.NAGESWARA RAO C.R.P.NO.6275 OF 2004 ORDER:- The revision is filed against the judgment in O.S.No.59 of 2002 on the file of the A.P. Wakf Tribunal at Hyderabad. The subject matter of the revision concerns a commercial building complex in an area of 535 square yards situated at Rikabgunj, pathergatti, Hyderabad. The claim of the plaintiffs, who are revision petitioners, is that the schedule property originally belonged to one Chandini Begum, Mohammed Yakoob, Mohammed Vilayat Quadri having obtained title to the said premises from the heirs of one Nawab Galib Gunj. They said to have executed three gift deeds on 30-05-1998 in favour of the 4th plaintiff- trust created on 22-05-1998. The plaintiffs 1 to 3 and defendant No.6 are the trustees. The object of the trust was to upkeep the welfare and to prove maintenance to widows, orphans and medical aid etc., By virtue of the said gift deeds and having claimed title to the property, the 4th plaintiff obtained permission from the Municipality on 29.01.1999 and 05.02.1999 to make constructions on the basis of the “No-Objection Certificate” (N.O.C.) said to have been issued by the Wakf Board-1st defendant. Originally, the permission was not granted by the M.R.O on the ground that it was a wakf property but only on the basis of the “N.O.C” said to have been issued by the first defendant, the permission was granted. But, subsequently, the said permission was sought to be cancelled and suit O.S.No.664 of 1999 was filed and an interim injunction was obtained. Subsequently, O.P.No.252 of 2000 was filed on the file of the Chief Judge, City Civil Court, Hyderabad for removal of the 6th defendant from the trust-ship. The Wakf-board issued a notice on 20-05-1999 calling upon the petitioners to vacate the premises contending inter alia that it was a wakf property belonging to the 4th defendant and it has been notified as such. It was further alleged that the plaintiffs are encroachers. The plaintiffs gave explanation to the said notice and claimed that the property does not belong to the 4th defendant nor was it a wakf property and claimed ownership. Thereupon, the plaintiffs were called upon to submit the documents of title and after considering the documents of title submitted by the plaintiffs, the Chief Executive Officer of the Wakf Board after conducting an enquiry and after hearing the parties by order dated 15-05-2000 found that the petitioners are only encroachers and that an extent of 9126.06 square yards which includes the property said to be covered under the three gift deeds in favour of the 4th plaintiff belongs to the 5th defendant notified as a wakf in the A.P. Gazette No.6-A, dated 09- 02-1989 and initiated action for eviction and the second defendant initiated proceedings on 24-05-2000. The 5th defendant also filed W.P.No.10158 of 1999 for cancellation of the permission for construction and the said writ petition was dismissed finding that there was a dispute with regard to title. Thereafter, the Municipal Corporation in exercise of power conferred under Section.450 of the Hyderabad Municipal Corporation Act, 1955 intended to cancel the permission and the plaintiffs filed O.S.No.2140 of 1999 for declaration that the cancellation is illegal and an ex parte orders of junction were obtained. In this suit and also in the earlier suit, the 5th defendant wanted to be impleaded as a party to the suit but the application was dismissed and it has become final. The plaintiffs also filed W.P.No.4578 of 1999 as the police are trying to interfere with the construction and necessary directions were given by this court directing the police not to interfere. The 5th defendant along with 1st defendant also filed O.S.No.40 of 1999 for an injunction before the Tribunal against the plaintiffs. Even without the service of the order of the Chief Executive Officer dated 15-05-2000 the plaintiffs were dispossessed from the suit schedule property. Thereafter, the plaintiffs filed W.P.No.9434 of 2000 for a declaration that the order passed on 15-05-2000 and the consequential actions purported to have been taken under Sections. 54(3) and 55 of the Wakf Act are liable to be quashed. The Court directed the maintenance of the status quo and ultimately the writ was allowed on 13-06-2011 by a single judge finding that the first defendant has no jurisdiction to initiate the action under Section.54 of the Act since premises is not a wakf property. As against that judgment, the first defendant and 5th defendant preferred Writ Appeal Nos.983 and 1109 of 2001 and the learned Division Bench of this court has allowed the Writ Appeals on 18-10-2001 holding that since there is a statutory remedy provided under the Act for determination of the rights exercising power under Section 83 of the Act, the exercise of the writ jurisdiction is not warranted. The matter has been carried to the Supreme Court and the S.L.P was also dismissed. Consequently, the present suit was filed for declaration that the order passed by the first defendant on 15-05-2000 and the consequential orders of the second defendant dated 24-05-2000 are without jurisdiction and against the provisions of Section 54 of the Act and also for declaration that the suit property belongs to the 4th plaintiff and for recovery of possession of the property and for profits. All the defendants have filed separate written statements. The substance of the defence is not inconsistent and they have disputed the right of alleged donors to gift the property in favour of the 4th plaintiff and it was also further pleaded that the trust is not a real one and the donors have no title to the property. The permission from the Municipality was obtained by misrepresentation and “N.O.C” said to have been issued by the 1st defendant is not a genuine one as it was said to have been managed by the first plaintiff who earlier worked with the 5th defendant and having knowledge of the affairs of the 5th defendant. The Municipal numbers are created one for obtaining the permission. The 4th defendant is the owner of the property and it was declared so as a wakf in the gazette notification which has become final and it was not challenged and consequentially the plaintiffs are not entitled to any of the reliefs. The order passed by the Chief Executive Officer after conducting an enquiry is valid and the eviction proceedings are also valid. Therefore, the suit of the plaintiffs is not maintainable and it has to be dismissed. The learned Tribunal has framed several issues. On behalf of the plaintiffs PWs.1 was examined and marked Exs.A-1 to A-41. On behalf of the defendants, Dws.1 to 3 were examined and marked Exs.B-1 to B-57. After considering the material evidence on record, the Tribunal has dismissed the suit of the plaintiffs and aggrieved by the said judgment, the present revision is filed, which is a statutory revision, provided to the petitioners since there is no appeal. Now the points that arise for consideration are:- 1. Whether the 4th plaintiff is the owner of the suit schedule property and consequently entitled for declaration of title and possession? 2. Whether the schedule property is a Wakf property? 3. Whether the orders passed by the Chief Executive Officer and consequential orders of eviction are not valid? 4. Whether the Wakf Tribunal has got jurisdiction to decide the issue between the parties and as to whether the matter has to be adjudicated by the Civil Court alone? POINTS:- The learned counsel appearing for the revision petitioners, at the outset, tried to contend that if the order of the Chief Executive Officer is found to be an erroneous one without jurisdiction and being against the principles of natural justice, the plaintiffs will be consequently entitled for restoration of possession and the determination of title may not be relevant. But, however, at the final stage of arguments, it was conceded that the relief that is being pursued by the petitioners is only second relief of declaration of title to the property as belonging to the 4th plaintiff and relying on the decision reported in Ramesh Gobindram (dead) through LRs. Vs. Sugra Humayun Mirza Wakf([1]) it was sought to be contended that Wakf Tribunal has no jurisdiction to entertain the suit since there is a dispute with regard to title and the title of the defendants was also not clear and as such the judgment is liable to be set aside. Evidently, the nature of the suit is one touching on the title to the property and it is for the plaintiffs to establish the title and if that title is not established, however, erroneous may be the order of the C.E.O by determining the issues still no relief can be granted about those proceedings. In fact, that was precisely the conclusion arrived at by the Division Bench in the earlier writ appeal and it was confirmed by the Supreme Court also in the S.L.P. The very purpose of the directions in the Writ Appeal to the plaintiffs is to establish title as there is a forum provided under the Act. Therefore, in view of the above circumstances, unless and until the title of both the parties is decided, the question of determination of the validity of the order of the Chief Executive Officer challenged as a relief No.1 cannot be considered. There are mutual allegations and according to the plaintiffs it is the 6th defendant that is instrumental in causing this litigation being a trustee of the 4th plaintiff and whereas according to the defendant Nos.4 and 5, it is the first plaintiff who has worked with the 5th defendant being responsible for all the creation of this litigation. The lower Tribunal has found that there is no evidence as to how the donors under Exs.A-2 to A-4 have got right or interest in conveying the property to the 4th plaintiff. Whether the 4th plaintiff is a reality or not, the question is whether the suit schedule property belongs to the donors and whether there was a valid gift under Exs.A-2 to A-4. It is not in dispute that under the provisions of the Mohammedan Law any gift shall be by declaration of delivery of possession which is capable of and acceptance by the donee. The execution of a registered deed is not very much necessary, but, however in this case no document is filed as to how the donors became entitled to the suit schedule property. The property is said to be originally belonged to Nawab Galib Gunj. The persons who are said to have given the gifts and the persons who are present at the time of gifts were not examined. It is sought to be contended that these considerations are irrelevant in view of the fact that if the property does not belong to the 5th defendant, then naturally the title claimed by the 4th plaintiff has to be accepted and in this case the original notice that was issued was showing the property as belonging to the 4th defendant whereas in the final notice after an enquiry it was held to be the property of 5th defendant and consequently there is an inconsistency in the rights claimed by the defendants. The question is whether the property is a wakf property or a private property? If once it is held to be a wakf property, then naturally whether it is in the name of the 4th defendant or 5th defendant it may not have any bearing since the plaintiffs cannot claim title to the property. The contention of the counsel for the revision petitioners is that when the identity of the property as wakf is in dispute and there is inconsistency as to the rights of 4th defendant or 5th defendant, naturally the Tribunal has no jurisdiction. This argument would not have been advanced but for the judgment of the Supreme Court in Ramesh (first cited). The learned counsel for the revision petitioners contended that in para.32 of the said judgment, the scope of Section.83 was considered and found that the dispute to be decided by a civil court is excluded only the matters covering Sections.6(5), 7 and 85 of the Act. In para.28 it has been specifically found that exclusion of the jurisdiction under Section.85 of the Act only covers to the dispute or a question which does not fall within the four corners of the powers vested in the Tribunal. In the above case, the Apex Court was considering the suits for eviction against the tenants of the wakf property in the wakf Tribunal and it was found that it is only civil court that has got jurisdiction. Basing on this, the contention of the counsel for the petitioners is that when even dispute between the tenant and the wakf are to be decided by a civil court, then there is no reason as to why the jurisdiction of the civil court should be excluded when the title itself is in dispute and the power of determination of the issues by the Wakf Tribunal are of limited nature. The learned counsel for the respondents, on the other hand, contends that the above judgment of the Supreme Court clearly deals the finality of the orders under Sections.6 and 7 and it clearly deals with the determination as to whether the property is wakf or not. In this connection, it is useful to extract the Sections.6 and 7 of the Wakf Act as under:- Section.6. Disputes regarding wakfs (1) If any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final: Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of wakfs. (2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any wakf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit. (3) The Survey Commissioner shall not be made a party to any suit under sub- section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder. (4) The list of wakfs shall, unless it is modified in pursuance of a decision or the Tribunal under sub-section (1), be final and conclusive. (5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a court in that State in relation to any question referred to in sub-section (1). Section.7: Power of Tribunal to determine disputes regarding wakfs (1) If, after the commencement of this Act, any question arises, whether a particular property specified as wakf property in a list of wakfs is wakf property or not, or whether a wakf specified in such list is a Shia wakf or a Sunni wakf, the Board or the mutawalli of the wakf, or any person interested therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final; Provided that - (a) in the case of the list of wakfs relating to any part of the State and published after the commencement of this Act no such application shall be entertained after the expiry of one year from the date of publication of the list of wakfs; and (b) in the case of the list of wakfs relating to any part of the State and published at any time within a period of one year immediately preceding the commencement of this Act, such an application may be entertained by Tribunal within the period of one year from such commencement: Provided further that where any such question has been heard and finally decided by a civil court in a suit instituted before such commencement, the Tribunal shall not re-open such question. (2) Except where the Tribunal has no jurisdiction by reason of the provisions of sub-section (5), no proceeding under this section in respect of any wakf shall be stayed by any court, tribunal or other authority by reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application, appeal or other proceeding. (3) The Chief Executive Officer shall not be made a party to any application under sub-section (1). (4) The list of wakfs and where any such list is modified in pursuance of a decision of the Tribunal under sub-section (1), the list as so modified, shall be final. (5) The Tribunal shall not have jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a civil court under sub-section (1) of (section 6), before the commencement of this Act or which is the subject-matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be.” According to the counsel for the respondents, under Section.36, a wakf has to be registered and when once it has been notified under the Act as a wakf, it is final and it cannot be challenged by filing of a civil suit. Reliance is placed of the notification under Section.6-A of the Act in the gazette under Ex.B-1 where under in Serial No.2373 an extent of 9126.60 square yards located at Pathergatti, which is a four (4) storied building with shops and flats said to be containing 134 mulgies with specific municipal numbers were declared as wakf in the name of the 4th defendant within the specified boundaries. It is not in dispute that the above notification refers to the Municipal No.21-1-1089. It is the specific contention of the defendants that so-called No.21-1-1098/9 to 11 as claimed by the petitioners does not exist. So far as the identity of the property which is in dispute is being within this area and within the boundaries is not in dispute. The question was as to whether abutting the notified wakf whether the donors of the plaintiffs have got any other property? It is true as rightly contended by the counsel for the petitioners that this notification does not show that Defendant No.5 is the owner of the property. In fact, the objects of the wakf of defendant Nos.4 and 5 are quite distinct and different as can be seen from Ex.B-1 and also the wakf deed dated 23.09.1976 relied on by the 5th defendant. Even in the written statement filed by the first defendant and also the defendant Nos.4 and 5, the source of title as to how 5th defendant has got rights in the suit schedule property are not clear but what was pleaded was only that there are three trusts, which are defendant Nos.4, 5 and Allauddin Charity Wakf. Dw.3 claims to be the managing trustee of all these trusts but in order to show that defendant No.5 is treated as wakf for the suit schedule property, reliance is placed on Ex.B-54, which is evidently subsequent to the filing of the suit. But, what-ever may be the lacunae in the claim of the 5th defendant, the fact remains that the original notice discloses that defendant No.4 is the owner of the property and Ex.B-1 clearly discloses that wakf was notified that being so when the identity of the property as notified under Ex.B-1 seems on fact includes also the suit schedule property and when once the revision petitioners have failed to prove their right and title and when once it is a wakf, it is the Tribunal alone that has got jurisdiction. The only question is whether the jurisdiction of the civil court is ousted or not and it is not a question as to whether the wakf Tribunal is excluded of the jurisdiction to determine the rights in the properties in cases of this nature. In this case, evidently, there is no ouster of the jurisdiction of the wakf Tribunal and when once under Sec.5 the wakf has been notified be it in the name of defendant No.4, under Sec.6(4) it is final and conclusive unless it is modified. The learned counsel for the respondents relied on the Judgment of the Supreme Court in Board of Wakf, West Bengal Vs. Anis Fatma Begum and another([2]) wherein it was held in paras.10 and 14 of the judgment as under:- (10.) In our opinion, all matters pertaining to Wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the Civil Court or by the High Court straightaway under Article 226 of the Constitution of India. (14.) Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf property. The words "any dispute, question or other matters relating to a Wakf or Wakf property" are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal. The word 'Wakf' has been defined in Section 3 (r) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in Section 3 (r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal. Though in the suit the plaintiffs have claimed that municipal authorities have granted permission and the municipal numbers exist and though the permission was cancelled the Municipal Corporation is not a party to the suit. No evidence has also been adduced by examining any employees of the Corporation to show that the property with No.21-1- 1098/9 to 11 really exists and if it exists under whose name it was recorded in the Municipality. Such evidence is material evidence and it is wanting apart from the fact that the Corporation is also not made as a party when its action of cancellation of permission was questioned though a separate suit is said to have been filed. Therefore, for all the above reasons, I find no merits in the Civil Revision Petition and the same is liable to be dismissed. Accordingly, the Civil Revision Petition is dismissed. No costs. _______________________ N.R.L. NĀGESWARA RĀO,J 22-11-2011 TSNR [1] (2010) 8 SC C 726 [2] 2011(1) ALD 61 (SC)