Case: SYED ZAINUL ABEDEEN Vs. RAJASTHAN BOARD OF MUSLIM WAQF

2. The appellant/plaintiff filed a suit under Section 6 of the Act, 1954 seeking the followingdeclaration may be issued to the effect that the property Mandarja Madnumber 14 as mentioned in the suit is not Wakf Allah and the same is Wakf AlalImtanai consequential be issued against the defendant with the direction that the defendant shall not treat the property Mundarja Madnumber as Wakf Allah and the defendant will register the aforesaid property except Mosque and Mazar as Wakf Alal Aulad and if it has been registered wrongly the same bedefendant be directed to the cost of thefurther or further(s) orders as may be in the interest of justice.It is not disputed that the subject property in question is a registered wakf under the Act, 1954.The Act, 1954 was enacted for better administration and supervision of wakf and Chapter II provides the procedure to be followed for survey of wakfs. Sub-section(4) of Section 4 of the Act, 1954 postulates that the Survey Commissioner while making any inquiry, have the same powers as are vested in the civil Court under the Code of Civil Procedure, 1908 and Survey Commissioner has to submit his report to the State Government under sub-Section(3) of Section 4 of the Act. In the instant case, inquiry was conducted by the Survey Commissioner under sub- section (4) of Section 4 of the Act, 1954 regarding Dargah Moulana Ziauddin Sahib with attached lands, properties, shops, buildings and other premises and after holding inquiry in reference to the subject property in question and taking note of the rival claims and the evidence of the respective parties which came on record, in its inquiry dated 2 nd January, 1965 (Annexure – R1) held asa careful consideration of the entire evidence on record specifically the statement of Shri Faqruddin Shah I am satisfied that Dargah Moulana Ziauddin Sahib with attached lands, properties, shops, buildings and other premises is a wakf – Al- Allah property andthe above properties be entered as wakf Al- Allah in survey record.To be noticed at this stage, the survey conducted by the Commissioner Wakfs under the Act, 1954 holding the subject property as a Wakf–Al-Allah in its report dated 2 nd January, 1965 was not the subject matter of challenge in the suit filed at the instance of the appellant/plaintiff.On the basis of the survey report, the subject property in question was included in the list of wakfs and was published in the Official Gazette as provided under sub-section (2) of Section 5 of the Act, 1954 dated 2 nd December, 1965.The appellant/plaintiff, being aggrieved by the declaration of the subject property as published in the Official Gazette in terms of sub-section (2) of Section 5 of the Act, 1954 dated 2 nd December, 1965 filed Suit no. 23 of 1967 for declaration before the Munsif, West Jaipur City on 17 th January, 1967.After the notice came to be served, the respondent/defendant raised a preliminary objection that the suit filed by the appellant/plaintiff is beyond the period of limitation of one year as provided under 1 st proviso to Section 6 of the Act, 1954 and accordingly was not maintainable.

Court's reasoning:
17. The conjoint reading of the provisions of which a reference has been made clearly envisage that the survey is to be made of wakfs by the State Government through its authorised Officer, i.e., Survey Commissioner under sub-section (4) of Section 4 of the Act who could make an inquiry with the same powers as are vested in a civil Court under the Code of Civil Procedure, 1908, and may submit its report under sub-section (3) of Section 4 of Act, 1954 to the State Government. On receipt of the report under sub-section (3) of Section 4, the State Government will forward a copy of the same to the Board who may examine the report and publish it in the Official Gazette in the list of wakfs under sub-section (2) of Section 5 of the Act, 1954 and any disputes regarding wakfs, to be more specific, regarding the properties which are specified as wakf properties in the list of wakfs published in the Official Gazette under sub-section (2) of Section 5 by any person aggrieved may be challenged by way of a suit in a Court of competent jurisdiction under Section 6 of the Act and the Parliament, in its wisdom, consider it appropriate to attach finality to the list of wakfs published in the Gazette added a proviso to Section 6 which has been couched in the negative words that no suit shall be entertained after the expiry of one year from the date of publication of the list of wakfs under sub- section (2) of Section 5 of Act, 1954.In the instant case, list of wakfs property was published in the Gazette on 2 nd December, 1965 and on its publication, a presumption has to be drawn that it is known to the general public and the suit for declaration was filed by the appellant under Section 6 of the Act, 1954 which is evident from para 19 of the amended plaint on 17 th January,the suit is fit under the provision of Section 6 of Wakf Act and within the period of limitation under the provisions of 113 Limitation Act.Indubitably, the suit was preferred beyond the period of limitation and a concurrent finding of fact has been recorded by all the three Courts and we find no manifest error in the finding of fact recorded by the Courts below which needs our interference.So far as the submission made by the appellant regarding the subject property in question that it was Wakf-Alal-Aulad and not Wakf-Al-Allah, and for seeking such a declaration, period of one year of limitation may not apply, is without substance for the reason that once the property after the survey has been registered in the list of wakfs as Wakf-Al-Allah on the basis of the finding recorded by the Survey Commissioner in its report dated 2 nd January, 1965, the dispute regarding the nature of wakfs registered is open to be examined only within the four corners of Section 6 of Act, 1954 and the plea of the appellant that Section 6 has been erroneously referred to and the limitation has to be guided by Section 113 of the Limitation Act, in our considered view, is without substance and deserves rejection.The further submission made by learned counsel for the appellant taking assistance of Section 56 of the Act, 1954, in our considered view, is of no substance for the reason that Chapter II deals with the survey of wakf and its resolution after the list of wakfs has been published in the Official Gazette under sub- section (2) of Section 5 of the Act 1954 in accordance with Section 6 of the Act, 1954 to be instituted within the period of limitation prescribed therein, to be examined by the civil Court. At the same time, so far as Section 56 of the Act, 1954 is concerned, it is dealing with the judicial proceedings under Chapter VII and if any person is aggrieved by any action/inaction of the Board, other than the one which has been specified under Chapter II, it has to serve a legal notice and on expiry of two months, suit could be instituted against the Board and it is not open for the appellant to invoke Section 56 of the Act, 1954 in support of his defence which, in the instant case, has no application.We find no error in the orders passed by the Courts below which calls for our interference.Indisputedly, from the date of publication of the subject property in the Gazette under sub-section (2) of Section 5 of the Act, 1954, the suit was preferred beyond a statutory period of limitation of one year and this statement of fact has not been disputed by the appellant also in his pleadings.