HON’BLE SRI JUSTICE B. PRAKASH RAO C.R.P.No.2004 of 2008 Date: 25-03-2011 Between: Karanam Mariadas ……… Petitioner and The Chief Executive Officer and others ……… Respondents HON’BLE SRI JUSTICE B. PRAKASH RAO C.R.P.No.2004 of 2008 ORDER: The petitioner herein is the unsuccessful plaintiff who seeks to invoke the revisional jurisdiction of this Court, as vested under Section 83 of the Wakf Act, 1995 (for short ‘Wakf Act’), by assailing the correctness of the judgment and decree, dated 12-02-2008 in O.S.No.40 of 2004 on the file of the Andhra Pradesh Wakf Tribunal, Hyderabad in dismissing the suit filed by him. Heard Sri P. Srinivasa Rao, learned counsel appearing on behalf of Sri P. Sri Raghuram for the petitioner, and Ms. Padmaja Tarigoppula, Sri M.A. Ahmed and Sri S.M. Subhani, learned counsel who appeared on behalf of the contesting respondents herein. The petitioner, who is hereinafter called as plaintiff, filed the suit by invoking the provision under Section 54(4) of the Wakf Act seeking to declare the proceedings of the first defendant in F.No.32/Prot/VZM/97, dated 07-02-2004 as illegal, without jurisdiction and consequently to set aside the same. The case of the plaintiff, in short, in the plaint is that he purchased the suit property which is a tiled house and vacant site with specific boundaries in T.S.No.557/1, Municipal Assessment No.30-9/1, Door No.1-2-2/3 in pursuance of the registered sale deed, dated 23- 02-1972 from its previous owners vendors viz., Ch. Rajendra Rao and legal representatives and successors Smt. Ch. Papayyamma for a valuable consideration. It is his case that Ch. Papayyamma in turn purchased the same for consideration from one Kyanam Somasundra Rao through an agreement of sale, dated 06-11-1942 which has been given effect to and resulted into the final transaction of sale under registered sale deed, dated 04-01-1943. According to the plaintiff, the schedule property forms part of Sy.No.557-A, Patta No.7 of an extent of Ac.0-34 cents, which was purchased by Kyanam Subba Rao Naidu from Government in public auction prior to 1932. Therefore, the plaintiff is the absolute owner and he is in possession of the suit property. However, certain disputes arose from the year 1977 and certain persons were trying to interfere with the possession and enjoyment. Hence, the plaintiff filed the suit in O.S.No.54 of 1977 on the file of the Principal District Munsiff, Vizianagaram, which was ultimately, after contest by the said person, was decreed on 21-02- 1995 and no appeal has been filed and the said decree has become final. Meanwhile, even the proceedings initiated by the A.P. Wakf Board under the Land Grabbing (Prohibition) Act in O.P.No.298 of 1990 before the Special Tribunal-cum-Principal District Judge, Vizianagaram seeking eviction of the plaintiff was negatived and the said O.P. was dismissed as per the judgment, dated 02-03- 1993. However, a notice, dated 02-11-1998 was issued purportedly under Section 54(1) of the Wakf Act to the plaintiff asking him to evict, to which the plaintiff submitted a reply on 04-12-1998 reiterating his right, title and interest as aforesaid. However, without considering the said reply and the facts and circumstances of the case as mentioned therein in regard to the plaintiff’s title, orders were passed on 07-01- 1999 though the said order was not communicated to the plaintiff. These proceedings were challenged by the plaintiff in writ in W.P.No.1033 of 1999, but the same was dismissed on the ground that the same relates to the land in T.S.No.600 but not to the land in Sy.No.557/1. On further appeal, a Division Bench of this Court allowed the same as per the orders in W.A.No.241 of 2003, dated 26- 06-2003 setting aside the orders, dated 07-01-1999 with liberty to the plaintiff to file objections to the said notice and then directed the CEO to proceed in accordance with law. Accordingly the plaintiff submitted a detailed reply on 07-07-2003 and again without properly considering the same, the orders for eviction were passed on 07-02-2004 which was served on the plaintiff on 01- 03-2004. Hence, challenging these proceedings and claiming his right, title and interest exclusively, the plaintiff filed the suit seeking declaration and denying about any right as such in respect of the said land in the wakf. The suit was contested by the defendants 1 and 2 denying about the plaintiff’s claim in pursuance of the aforesaid sale deed, dated 23-02-1972. Further it was their case that the property belongs to a mosque, which is known as Palton Mosque situated at Cantonment Ward, Vizianagaram, and the suit land is an attached portion to the said mosque in T.S.Nos.600 and 605. That apart, the said institution is a notified wakf. Whereas the plaintiff had encroached the said land in T.S.No.600 along with others. Though the other persons have delivered back the possession after receipt of the notices, however, the plaintiff did not do so. The defendants pleaded ignorance about the proceedings in O.S.No.54 of 1975. However, they admitted about the proceedings of this Court in the writ petition and writ appeal. In pursuance of the orders of this Court, the defendants have appointed an enquiry officer and the enquiry was conducted and a report was submitted pointing out the encroachments of the plaintiff in the land in T.S.No.600 and further stating that he is not in possession of the land in Sy.No.557/1 as contended by him. Therefore, it was pleaded that the plaintiff has absolutely no right and title whatsoever in nature apart from the fact that the suit property is a notified wakf property and it belongs to Palton mosque and hence, no relief can be granted. On these and other allegations as contained from the respective pleadings, the Tribunal has framed the following issues: 1. Whether the plaintiff is entitled for getting the proceedings impugned as null and void? 2. To what relief?? Later on, during the course of enquiry, the plaintiff examined PWs.1 and 2 and marked Exs.A-1 to A-6. Whereas on behalf of the defendants, DW-1 was examined and Exs.B-1 to B-7 were marked. On consideration thereof, the Tribunal did not accept the version of the plaintiff and dismissed the suit mainly on the ground that having regard to the subsequent enquiry and the findings given by the authorities of the Wakf Board and the orders passed, the impugned proceedings, dated 07-02-2004 cannot be declared as null and void and thus the plaintiff is not entitled for the relief as prayed for. Hence, the Revision Petition. On consideration of the entire submissions made from both sides, the point, which arises for consideration is whether on the facts and circumstances of the case, the plaintiff is entitled to the relief as claimed? As already stated above, the case turns around the very few facts which are in dispute with each other as set forth by both parties. The plaintiff claims his exclusive proprietary rights unconnected with any wakf institution including Palton mosque in respect of the suit property having purchased the same for a valuable consideration in pursuance of the agreement, dated 06-11-1942 and subsequent registered sale deed, dated 04-01-1943. These and other aspects have been spoken to by the plaintiff who has been examined as PW-1. The said sale deed, dated 04-01-1943 was marked as Ex.A-3. Subsequently it is also his case that one Kyanam Subba Rao Naidu purchased the suit property from the Government in public auction prior to 1932 and it is not a wakf property. In support, the plaintiff marked Ex.A-4, sale deed, dated 23- 02-1972, which is a subsequent purchase made by him from Ch. Rajendra Rao and the successors of Smt. Ch. Payayyamma for a valuable consideration. Therefore, according to the plaintiff, he is not an encroacher and he is in possession and enjoyment in his own right, title and interest totally unconnected with any wakf or the Palton mosque. In support, the plaintiff also examined PW-2. On behalf of the defendants, DW-1 was examined reiterating the fact that the institution is a wakf institution and that too it is a notified one, and therefore, the plaintiff cannot make any claim. That apart having regard to the proceedings, which have been subsequently conducted by the CEO, and the report which has been marked as Ex.B-2 apart from the impugned proceedings, which is marked by the plaintiff himself as Ex.A-2, the plaintiff cannot set up any claim. Curiously the Tribunal straightaway sought to refer to these proceedings which are much subsequent to the actual claim as sought to be made for the first time against the plaintiff. No doubt an enquiry was conducted and also the fact remains that the wakf institution is a notified one. As far as the proceedings in respect of the notifications issued under the provisions of the Wakf Act are concerned, they are no longer res integra and that the same would not, in any way, be binding on the third parties on their independent proprietary rights. Necessarily when a question arises on any disputed title between a third party and any wakf institution, both have to establish and substantiate the claim in their own way independently and these proceedings of issuance of notification under Section 4 of the Wakf Act or even any further proceedings taken would not in any way bind any such third party or the plaintiff. De horse any such proceedings, either the notification under Section 4 of the Wakf Act or any other proceedings as done in this case resulting into the proceedings in Ex.A-2, which is challenged, necessarily the defendants have to establish that it is a wakf property. Whereas in the present case it amply shows that the property is being claimed by the plaintiff from his predecessors through the registered document, dated 04-01-1943 under Ex.A-3 and the subsequent reiteration of the title and right under Ex.A-4, dated 23-02-1972. Prima facie this itself would show that the plaintiff established his case far beyond any doubt. However, the defendants have utterly failed to rebut the same by any proper evidence or material. It is not explained as to how these documents submitted on behalf of the plaintiff or the claim as set forth from the plaintiff’s predecessors in title, can be found to be wrong or totally unconnected with the wakf. Except merely placing reliance on the notifications issued under Section 4 of the wakf Act, which are marked as Exs.B-6 and B-7, no other documents have been filed by the defendants to show that it is a wakf property. I n A.P. STATE WAKF BOARD, HYDERABAD v. MAVURU SUNDARAMMA [1], this Court, while considering similar such question, held that such notification issued under Section 4(1) of the Wakf Act would not come in the way or go against a third party who are absolutely no way connected with the wakf or institution in any capacity. In the above decision, this Court sought to refer to the judgments of the Apex Court reported in ABDUL RAIS v. M.P. WAKF BOARD [2], BOARD OF MUSLIM WAKFS, RAJASTHAN v. RADH KISHAN AND OTHERS [3], KARNATAKA WAKF BOARD v. STATE OF KARNATAKA [4], LINCAI GAMANGO v. DAYANIDHI JENA [5], PUNJAB WAKF BOARD v. GRAM PANCHAYAT ALIAS GRAM SABHA [6], SAYYED ALI v. ANDHRA PRADESH WAKF BOARD, HYDERABAD [7], and SIRAJULU HAQ KHAN v. SUNNI CENTRAL BOARD OF WAKF [8]. Having regard to such proposition of law, which is established, it cannot be said that the defendants have rebutted the case of the plaintiff in any manner as normally expected to by any cogent evidence. Accordingly, the Tribunal has totally erred in merely placing reliance on the impugned proceedings, which is Ex.A-2, and rejecting the claim of the plaintiff and non-suiting. The entire approach of the Tribunal is erroneous and does not find place either in law or on facts. Even otherwise the respondents-defendants are not able to substantiate their case independently by any evidence and material that the suit property is a wakf property, in contradiction to the title as established by the plaintiff through the documents filed by him apart from his own evidence. In the circumstances, the judgment and decree of the Tribunal in dismissing the suit is liable to be set aside. For the reasons stated above, the Civil Revision Petition is allowed and the judgment, dated 12-02-2008 in O.S.No.40 of 2004 is set aside. Consequently, the suit as has been filed and framed in O.S.No.40 of 2004 on the file of the Andhra Pradesh Wakf Tribunal, Hyderabad, is decreed with costs. ________________ B. PRAKASH RAO, J Date:25-03-2011 YCR [1] 2007 (5) ALD 267 (DB) [2] (2005) 1 SCC 741 [3] 2003 (4) ALD 50 (SC) [4] AIR 2003 SC 2467 [5] (2004) 7 SCC 437 [6] AIR 2000 SC 3488 [7] AIR 1998 SC 972 [8] AIR 1959 SC 198