Faqruddin (D) Th.Lrs vs Tajuddin (D) Th.Lrs

5. Syed Mohiuddin Sahib was convicted by a criminal court. The `Sajjadagi' was tied on the head of Kamaluddin, the younger brother of Mohiuddin as he was considered fit for holding the said post.

7. Moinuddin son of Mohiuddin (the convicted Sajjadanashin) filed a suit against Kamaluddin claiming inheritance in the year 1939. He also filed a suit against Aminuddin claiming election to the post of Sajjadanashin by Muslim public. Both the suits were dismissed by judgments dated 11.05.1920 and 5.09.1939 respectively. Appeals preferred thereagainst were also dismissed. During pendency of the said proceedings, Aminuddin died on 12.07.1944. In his place, Tajuddin was 4 substituted. In the said suit, Wakf in question was held to be Wakf Al Aulad.

9. It was found that the purported election which had been held did not meet the requirements of law. It was furthermore held that the plaintiff was not entitled to be a `Sajjadanashin' as it was a private land. The appeal preferred thereagainst, which was marked as Civil Appeal Case No. 23 of 1954, was dismissed on 20.11.1958. The said proceeding attained finality.

10. Allegedly, on the death of Syed Saidduddin Sahib, who became Sajjadanashin on the demise of Aminuddin, Faqruddin became Sajjadanashin according to custom. He continued to hold the office of Mutawalli also. A notification was issued under Section 5 of the Wakf Act, 1954 on 9.12.1965 declaring the properties to be Wakf Properties.

11. Another suit was filed by Tajuddin on 3.12.1966 against the State Government claiming himself to be the Sajjadanashin. He also claimed some amount on account of expenses for `Chirag Bati' and also the value of 42 Gold Mohars. Faqruddin was impleaded as a party. The said suit was withdrawn by Tajuddin.

13. Relying on or on the basis of the said entry, the respondent filed a fresh suit. According to him, he, having been declared to be the Matmidar became the holder of land. As a holder of land, he became the 7 Mutawalli and Sajjadanashin and, thus, entitled to possess the same exclusively.

16. A First Appeal was preferred thereagainst. Faqruddin died on 25.03.1981. Appellants herein were substituted in his place. According to the appellants, Syed Zainul Abdeen was declared as Mutawalli. Tajuddin died in the year 1987. Whether the date of his death is 26.03.1987 or 26.04.1987 is not clear, but the same is not very material for our purpose. Admittedly, he died issueless. Respondent Abdul Rashid was substituted as legal representative in place of Tajuddin claiming his right on the basis of an alleged Will. The other respondents were also added as parties by an order dated 1.02.1994 as they claimed the right under another Will. It is, however, of some interest to note that in the said order dated 1.02.1994, it was stated:

37. Submission of Mr. Mathur that the respondents are estopped and precluded from questioning the jurisdiction of the Board of Revenue is equally without any merit. If the Board of Revenue had no jurisdiction to decide the question of title, its decision being without jurisdiction would be a nullity. [See Chief Justice of Andhra Pradesh and Another v. L.V.A. Dikshitulu and Others - AIR 1979 SC 193, MD Army Welfare Housing Organisation v. Sumangal Services (P) Ltd. (2004) 8 SCC 619 and Hasham Abbas Sayyad v. Usman Abbas Sayyad and Ors. (2007) 2 SCC 355] 28

38. A jurisdictional fact would not attract the principles of estoppel as there can be no estoppel against statute.

44. For the aforementioned reasons, the impugned judgment cannot be sustained. It is set aside accordingly. The appeal is allowed. However, in the facts and circumstances of the case, there shall be no order as to costs.

May 16, 2008