Woke Up From Deep Slumber & Filed Suit After Four And A Half Decades: Andhra Pradesh High Court Allows Petition Against Waqf Tribunal’s Order

The High Court also explained that once Section 7(5) of the Wakf Act, 1995 comes into action, the Tribunal can’t continue the suit on its file for further adjudication.

The Single Bench of Justice Subba Reddy Satti said, “When a competent Civil Court recorded a finding in an earlier suit that the property does not belong to the wakf institution, the present suit filed by the wakf institution after a lapse of 4½ decades for declaration of title, in the considered opinion of this Court, is not maintainable given Section 7(5) of the Act. The present Mutavalli, the son of the earlier Mutavalli who lost the suit on an earlier occasion, woke up from deep slumber and filed the present suit after 4½ decades.”

Advocate Eluru Sesha Mahesh Babu represented the Petitioner while Advocate Shaik Khaja Basha represented the Respondent.

Factual Background

The petitioner purchased the agricultural land, which had been owned by the vendors since 1938. The revenue authorities updated the name of the petitioner in the Records of Rights and issued the Pattadar Pass Book. The petitioner sold some part of the land to Koneti Nagarani in the year 2017. The respective vendees also got Pattadar pass books. The agricultural land was converted into non-agricultural land. The petitioner was developing the land for commercial purposes. The fourth respondent, Mazlum Shah Darvesh Takia & Masjid Wakf, represented by its Mutavalli, filed the suit by suppressing the material facts and the earlier suit on the file of the Subordinate Judge, Vijayawada.

A counter-affidavit was filed on behalf of the second respondent contending that the writ petition filed by the petitioner was not maintainable. The fourth respondent filed a suit against the writ petitioner and others for a declaration of title. The property was recognized as wakf property and was notified in the Gazette. The Wakf tribunal directed the parties to maintain the status quo. The writ petitioner, instead of filing a written statement, filed the writ petition. In the counter affidavit, it was further pleaded that the petitioner suppressed the facts and secured the Pattadar Pass Book. The suit O.S.No.151 of 1975 was filed for recovery of possession from the defaulting tenants. The issue of title was not decided in the said suit. It was also pleaded that the scope and nature of suit O.S.No.151 of 1975 and O.S.No.3 of 2024 were different, and hence, Section 7 of the Wakf Act, 1955 had no application.

Reasoning

Examining the scope of writ of prohibition, the Bench observed that the superior Court would issue a writ of prohibition, prohibiting/preventing from usurpation or exercising the jurisdiction that was not vested in it. It is a negative order intended to preclude future unlawful action or decision.

The Bench explained that section 7 of the Act prescribes the power of the Tribunal in deciding the disputes regarding auqaf. While sub-section (1) expressly delineates the jurisdiction, sub-section 5 expressly confines the jurisdiction of the Tribunal to the suits or other proceedings in the Civil Court under Section 6 (1) of the Act, before the commencement of the Act, either instituted or pending, including appeal, revision or review. “Thus, once a civil Court has already adjudicated an issue relating to the property before the commencement of the Act 43 of 1995, the same issue cannot be agitated again. As narrated, the pleadings and judgment in suit O.S.No.151 of 1975 are made available, this Court perused the same cautiously. 28. Suit O.S.No.151 of 1975”, it said.

Referring to a catena of judgments, the Bench said, “...the superior Court would issue a writ of prohibition, prohibiting/preventing from usurping or exercising the jurisdiction that was not vested in it. It is a negative order intended to preclude future unlawful action or decision.”

Coning to the facts of the case, the Bench noted that the schedule properties were purchased by the vendor of the defendants in 1944 and a compromise was entered into by creating permanent tenancy rights in favor of the defendants with a condition that the defendants should pay two bags of paddy for wet land and one bag of paddy for dry land. The Civil Court had recorded a finding that the suit schedule property is not wakf property and the suit is also barred by limitation. It was further noted by the Bench that the suit filed by the wakf board, represented by its Mutavalli, for recovery of possession of the plaint schedule property, based on the title, was dismissed, and the competent Civil Court recorded the finding that the property didn’t belong to the wakf institution. A finding was also recorded that the property was not published in the Gazette.

“Once Section 7(5) of the Act comes into action, the Tribunal, at no stretch of imagination, can continue the suit on its file for further adjudication. The corollary would be that the tribunal lacks jurisdiction, and hence, a writ of prohibition can be issued in the facts of this case”, it added.

Thus, allowing the writ petition filed by the petitioner, the Bench held that the Wakf Tribunal had no jurisdiction to adjudicate the suit given Section 7(5) of the Wakf Act, 1995.

Cause Title: Kalimela Kiran Kumar v. The State Of Andhra Pradesh (Cause Title: Writ Petition No.2618 of 2024)

Appearance

Petitioner: Advocate Eluru Sesha Mahesh Babu

Respondent: Advocate Shaik Khaja Basha, S.M.Subhani

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