IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH: HYDERABAD FRIDAY, THE TWENTY SECOND (22nd) DAY OF OCTOBER, TWO THOUSAND AND TEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.C.C.A.No.150 of 1994 Between: A.P. Wakf Board, Hyderabad, rep. by its Secretary … Appellant And: Gulab Bai & 9 others … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY CCCA No.150 of 1994 JUDGMENT: This appeal is directed against the judgment and decree dated 01.10.1993 in OS No.357 of 1983 on the file of the IV Additional Judge, City Civil Court, Hyderabad, wherein the suit filed by the first respondent herein, for declaration of title in respect of the plaint schedule house property and that the decree dated 28.02.1977 in OS No.66 of 1971 is null and void and for permanent injunction, was decreed. 2. Heard the learned counsel for the appellant. None appeared for the respondents. Perused the record. 3. The first respondent herein filed a suit with the following averments, in brief: The plaintiff is the absolute owner and possessor of Mulgies bearing Nos.13-5-64/1, 64/2 and 64/3. The defendants 3 to 5 are the tenants of the plaintiff in respect of those Mulgies. The plaintiff purchased the entire building including Mulgies from the first defendant for a consideration of Rs.6,000/- under a registered sale deed dated 23.04.1962 and ever since she has been in possession and enjoyment of the same as absolute owner. The plaintiff sold away the entire backside portion of the house, except three Mulgies under a registered sale deed in the year 1967 and put the purchaser in possession. The plaint schedule property is a private property and the 2nd defendant i.e., Wakf Board has no concern with the same. The 2nd defendant filed suit OS No.66 of 1971 on the file of VI Additional Judge, City Civil Court, Hyderabad against the plaintiff and defendants 3 to 5 for recovery of possession and also for mesne profits at the rate of Rs.100/- per month from the plaintiff and Rs.20/- per month from each of the defendants 3 to 5, alleging that the Mulgies are part of the property endowed to Masjid Kulsumpura, endowed by late Kulsum Bee @ Azeeunnissa Begum. The 2nd defendant never been in possession of the suit Mulgies or the rest of the building nor Kulsum Bee was in possession thereof. The plaintiff was not aware of the suit OS No.66 of 1971, as her husband was looking after the same. The plaintiff’s husband filed a written statement in that suit and subsequently died on 13.05.1971. The suit was decreed exparte on 28.02.1977 due to mis-representation and fraud played on the Court. The plaintiff came to know of the exparte decree only when she received the notices on 14.04.1978 in EP No.9 of 1978. The plaintiff filed a petition on 28.02.1979 for setting aside the exparte decree along with petition in IA No.577 of 1978 for condonation of the delay. The said petition and E.P. are pending. As the limitation of three years is expiring, the plaintiff had no alterative but to file suit. 4. The first defendant filed written statement, admitting the ownership, possession and enjoyment of the plaintiff by virtue of the purchase from him and pleading that he had no knowledge of the earlier suit OS No.66 of 1971. According to the first defendant, he purchased the suit property from Khazi Saheb under a registered sale deed and he let out the Mulgies to 3rd defendant and others and neither Kulsumbee nor the A.P. Wakf Board made any claim at any time. The alleged endowment of the suit Mulgies by Kulsum Bee to Kulsumpura Masjid is absolutely false. The first defendant stated that he has no objection if the plaintiff’s suit is decreed. 5. The 2nd defendant-Wakf Board filed written statement, denying the plaintiff’s ownership and possession and the tenancy in favour of defendants 3 to 5. According to the 2nd defendant, the suit property is the Wakf property, attached to the Mosque Kulsumpura, Karwansahu. The 2nd defendant filed OS No.66 of 1971 and the said suit was decreed. 6. The 3rd defendant filed a written statement, denying the title of the plaintiff or purchase from the first defendant and contending that the suit property belonged to the 2nd defendant- Wakf Board and contending that the 3rd defendant is a tenant of 2nd defendant for the last 25 years by running watch repair shop. 7. The defendants 4 and 5 did not file any written statement and remained exparte. The defendants 6 to 10, who were impleaded as legal representatives of the deceased first defendant, did not file any separate written statement. 8. On the strength of the pleadings, the trial Court framed the following issues: (1) Whether the plaintiff is entitled for declaration of title in respect of Mulgi Nos.13-5-64/1, 64/2 and 64/3, situated at Karwansahu, as shown in the site plan attached to the plaint? (2) Whether the plaintiff purchased the entire house, including the said Mulgi Nos.13-5-64/1 to 66 from the first defendant for Rs.6,000/- through sale deed dated 23.04.1962 and is in possession and enjoyment of the said property as absolute owner as alleged in the plaint? (3) Whether the suit property is not an Endowment property of Masjid Kulsumpura as alleged in the plaint? (4) Whether the plaintiff is entitled for cancellation of decree dated 28.02.1977 passed by the II Additional Judge, City Civil court, Hyderabad, in OS No.66 of 1971 on his file, and whether the same is not binding on the plaintiff? (5) Whether the plaintiff is entitle for perpetual injunction against the 2nd defendant in respect of the suit mulgies as prayed for? (6) Whether the defendant No.2 is owner and possessor of the suit mulgies as alleged by defendant No.3 in his written statement? (7) Whether the 3rd defendant is a tenant of the 2nd defendant since last 25 years in respect of the suit Mulgi No.13-5- 64/1? (8) To what relief? 9. On behalf of the plaintiff, PWs.1 to 3 were examined and Exs.A.1 and A.2 were marked. On behalf of the defendants, DWs.1 to 3 were examined and Exs.B.1 to B.6 were marked. 10. On a consideration of the evidence available on record, the trial Court held that the suit property is not endowed in favour of Mosque and the 2nd defendant is not the owner of the property and the exparte decree dated 28.02.1977 in OS No.66 of 1971 is not binding on the plaintiff and is not liable to be cancelled and 3rd defendant is not a tenant of 2nd defendant and the plaintiff is the owner and possessor of the suit property and is therefore entitled for the declaration and injunction prayed for and accordingly, the suit was decreed. Aggrieved by the same, the 2nd defendant-Wakf Board filed the present appeal. 11. According to the plaintiff, she purchased the suit Mulgies and other property from the first defendant under a registered sale deed Ex.A.1 dated 23.04.1962 for a consideration of Rs.6,000/-. The first defendant-vendor supported the claim of the plaintiff in respect of the suit property. PW.1 testified to the purchase of the suit property from the first defendant under Ex.A.1 and about her possession and enjoyment thereof. The defendants 3 and 4, who are tenants of first defendant, attorned to the plaintiff under Ex.A.1. PW.2, purchased part of the property, other than the suit Mulgies from PW.1, and he too supported the claim of PW.1. According to PW.2, first defendant was the original owner of the entire property, including the suit mulgies, having purchased the same from Khaji Saheb. PW.3 is a tenant of PW.1 on a monthly rent of Rs.150/- for running watch repair shop, adjacent to the shop tenanted by 3rd defendant. 12. As against the above evidence of PW.1, the 2nd defendant-Wakf Board examined DW.1-Inspector cum Auditor, who deposed that the suit property is known as Mosque Kulsumpura and is Wakf property. He produced Ex.B.1 proceedings of the Wakf Board issued to 3rd defendant-tenant, demanding enhancement of rent from Rs.3/- to Rs.5/-. He also filed Ex.B.6 certified copy of the judgment in OS No.66 of 1977. DW.1 admitted in the cross-examination that the accounts of the Wakf Board are duly inspected and audited. But however, he states that there are no accounts in respect of the suit mulgies. He also admitted that since 1983 the 2nd defendant Wakf Board never inspected the suit property. According to DW.1, Wakf Board is having title deed in respect of the suit property, but no such title deeds were filed. He claims that the title deeds were filed in the earlier suit OS No.66 of 1971. 13. A perusal of Ex.B.6 certified copy of the judgment in OS No.66 of 1971 would show that two documents were marked as Exs.A.1 and A.2, but the description of the said documents is not mentioned in Ex.B.6. From Ex.B.6, it is not discernible that the title deeds in respect of the schedule property were filed by the Wakf Board to show that the said property was constituted as Wakf property. DW.1 further admitted that no receipts were filed to show that the Wakf Board collected the rents from the tenants. Though he claimed that the 2nd defendant-Wakf Board has been paying monthly taxes for the property, no such receipts were also filed. Even list of the Wakf properties, which is admittedly maintained by the 2nd defendant-Wakf Board, is not filed to show that the suit property is also included therein. The 2nd defendant-Wakf Board has not filed any documentary evidence to show that the suit property was endowed in favour of the Wakf Board by Kulsumbee or that the suit property was endowed in the list of Wakf properties or that the Wakf Board has let out the mulgies to the tenants or collected any rents from them at any time or that the 2nd defendant paid any taxes. The only document relied upon by the 2nd defendant is Ex.B.6 certified copy of the judgment in OS No.66 of 1971, which suit was decreed exparte. Even Ex.B.6 does not show that any title deeds were field by the Wakf Board in the said suit. Even assuming for a moment that any such title deeds were filed in OS No.66 of 1971, there is absolutely no reason as to why the 2nd defendant has not chosen to send for those documents to the present suit or filed any certified copy thereof in support of their claim over the suit property. 14. DW.2, who is the 3rd defendant, is a tenant in one of the three mulgies and according to him, he took the mulgi on rent from the Wakf Board about 30 years back on a rent of Rs.3/- per month and he received a notice Ex.B.1 from 2nd defendant enhancing the rent from Rs.3/- to Rs.5/-. He admits that even in the year 1965, the plaintiff filed a petition against him for eviction in RCC No.192 of 1965 and that it was dismissed. He claimed to have executed rental deed in favour of the Wakf Board, represented by its mutawalli, but no such rent deed is forthcoming. He admits that the 2nd defendant-Wakf Board has not been receiving rents from him and he is not paying rent to any one. He is not aware of the sale of the property in favour of first defendant by the plaintiff. DW.3 is the son of 5th defendant, another tenant and he is running a watch repairing shop in mulgi No.3. According to him, his father took the mulgi on a rent of Rs.20/- from the plaintiff in the year 1964 and his father was paying the rent only to the plaintiff. He further deposed that the other two tenants i.e., Lokman Singh and 3rd defendant have also taken the mulgies from the plaintiff only. It is also in his evidence that the plaintiff has enhanced the rent gradually and by the date of his evidence, his father was paying the rent of Rs.200/- per month. He also deposed that the plaintiff evicted Lokman Singh, as he was not paying the rents and inducted one Pandu as a tenant and after Pandu vacated, one Gyansingh was inducted as a tenant and he also vacated and the present tenant was Dwaraka Prasad, who was paying rent of Rs.300/- per month to the plaintiff. It is also in his evidence that the plaintiff demanded 3rd defendant also to enhance the rent, but he did not agree for the same and 3rd defendant stopped paying the rents. It is suggested to DW.2 in the cross-examination that he is responsible for the litigation. Though he denied the suggestion, it is evident from the testimony of DW.3, who is the adjacent tenant that while the other two tenants agreed for enhancement of rent, it was 3rd defendant alone, who resisted the same and even stopped paying to anyone. Thus the evidence of DW.3 as also of DW.1 fully supports the claim of the plaintiff in respect of the suit property. 15. So as to constitute the wakf, Section 5 of the Wakf Act mandates that the property endowed shall be published in the Official Gazette. The Wakf Board shall maintain a record of the wakfs under Section 32 of the said Act. Every wakf shall be registered at the office of the Wakf Board under Section 36 of the Wakfs Act. The Board shall maintain a register of wakfs containing the particulars of each wakf under Section 37 of the Act. The 2nd defendant has not established that the mandatory provisions of the Wakf Act have been complied with in the matter of publication and registration of the suit property as wakf property. No document is produced to show that the suit property is published as a wakf property or it is included in the list of the wakf properties maintained under the provisions of the Wakf Act or that it was registered as wakf property. In fact, there is nothing on record to show that the suit property originally belonged to Kulsumbee or that she created any wakf in respect of the same. 16. On the other hand, the oral and documentary evidence adduced by the plaintiff would clearly establish that the suit property originally belonged to the first defendant, he having purchased the same from Khaji Saheb and first defendant sold the same in favour of the plaintiff under Ex.A.1, and attorned the tenants to the plaintiff and the plaintiff has been in possession and enjoyment of the same by collecting rents from the tenants and that the 3rd defendant, one of the tenants, refused to enhance the rent, whereas the other two tenants, agreed for the same and having been paying the rents to the plaintiff. As against the evidence adduced by the plaintiff in support of her title and also possession and enjoyment, there is absolutely no iota of evidence on behalf of the defendants 2 and 3 in support of the claim of the 3rd defendant that the suit property constituted as wakf property. Even the testimony of DW.1 and DW.3 supported the claim of the plaintiff. 18. Under those circumstances, the impugned judgment and decree of the trial Court, granting reliefs of declaration and injunction in favour of the plaintiff, do not call for any interference by this Court. There are no merits in the appeal and the appeal is liable to be dismissed. 19. In the result, the appeal suit is dismissed. No order as to costs. ____________________ G.V.SEETHAPATHY, J Date: 22.10.2010 bss