Karnataka High Court
Syed Mohammed Ghouse Pasha Quadri vs Syed Yaseen Pasha Khadri Since Dead By … on 16 December, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 16TH DAY OF DECEMBER, 2024
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
R.S.A.NO.1004 OF 2023 (DEC/INJ)
C/W
R.S.A.NO.1064 OF 2023 (DEC/INJ)
R.S.A.NO.1069 OF 2023 (DEC/INJ)
R.S.A.NO.1141 OF 2023 (DEC/INJ)
IN R.S.A.NO.1004/2023
SRI. SYED ADIL BASHA QUADRI
SINCE DEAD BY HIS LRs,
1. SYED HASNAL MUSSANNA SHA KHADRI,
AGED ABOUT 53 YEARS,
2. SYED ISRAR SHA KHADRI
AGED ABOUT 51 YEARS,
3. SYED VAZEER PASHA
AGED ABOUT 45 YEARS,
4. SYED AKHIL SHA
AGED ABOUT 40 YEARS,
5. SYED AZEEZ PASHA
AGED ABOUT 35 YEARS,
APPELLANT NOS.1 TO 5
CHILDREN OF LATE SYED ADIL BASHA KHADRI,
R/AT AKHIL SHA MOHALLA,
BADA MAKKAN, CHANNAPATNA DISTRICT
2
RAMANAGARA DISTRICT - 562 160.
... APPELLANTS
(BY SRI. SYED AKMAL HASAN, ADVOCATE)
AND:
SYED AZADULLAH SINCE DEAD BY HIS LRs
SYED YASEEN PASHA KHADRI
S/O LATE SYED AZADULLAH,
SINCE DEAD BY HIS LRs,
1. SYED SALMAN,
AGED ABOUT 23 YEARS,
2. SYED USMAN
S/O LATE SYED YASEEN PASHA KHADRI,
AGED ABOUT 13 YEARS,
RESPONDENT NOS.1 & 2 ARE
CHILDREN OF
LATE SYED YASEEN PASHA KHADRI,
REPRESENTED BY GUARDIAN HIS BROTHER
SYED SALMAN, RESPONDENT NO.2,
BOTH ARE RESIDING AT
AKIL SHA BADA MAKKAN,
CHANNAPATNA,
RAMANAGARA - 562 160.
3. SYED TAJ PASHA
S/O LATE YASEEN PASHA KHADRI
4. SYED SHAHAULLAH
S/O LATE SYED AZADULLAH,
RESPONDENT NOS.3 & 4 ARE
RESIDING AT M G ROAD,
BADA MAKAN, CHANNAPATNA,
RAMANAGARA - 562 160.
3
SYED YADULLAH SINCE DEAD BY HIS LRs
5. VALI PASHA
AGED ABOUT 69 YEARS,
6. SALEEM PASHA
AGED ABOUT 67 YEARS,
7. JAMEEL PASHA
AGED ABOUT 65 YEARS,
8. WASEEM PASHA
AGED ABOUT 61 YEARS,
SYED AHMED PASHA
AGED ABOUT 69 YEARS,
SINCE DEAD BY HIS LRs,
9. SYED AKMAL PASHA,
S/O LATE SYED ASLAM PASHA KHADRI,
AGED ABOUT 54 YEARS,
10. SYED TAJAMMUL PASHA
S/O LATE SYED AHMED PASHA,
AGED ABOUT 48 YEARS,
11. SYED JOHAR PASHA
S/O SYED AHMED PASHA,
AGED ABOUT 45 YEARS,
12. SYED MUJAMMIL PASHA
S/O LATE SYED AHMED PASHA,
AGED ABOUT 35 YEARS,
SYED ASLAM PASHA KHADRI
S/O LATE SYED AHMED PASHA
SINCE DECEASED BY HIS LRs,
4
13. MASTER SYED TANVEER PASHA,
S/O LATE SYED ASLAM PASHA KHADRI
14. SYED MUKRAM PASHA
S/O LATE SYED ASLAM PASHA KHADRI,
REP BY NATURAL GUARDIAN
SMT. SYED JABEEN TAJ,
ALL ARE RESIDING AT
AKIL SHA BADA MAKKAN,
CHANNAPATNA,
RAMANAGARA - 562 106.
SYED AMEER
AGED ABOUT 68 YEARS,
SINCE DEAD BY HIS LRs,
15. SYED SHARFUDDIN,
S/O LATE SYED AMEER,
AGED ABOUT 47 YEARS,
RESIDING AT AKIL SHA BADA MAKKAN,
CHANNAPATNA,
RAMANAGARA DISTRICT - 562 106.
SHARIFF KHAN
AGED ABOUT 70 YEARS,
SINCE DEAD BY HIS LRs,
16. MUDASIR ALI KHAN,
S/O SHARIEF KHAN,
AGED ABOUT 41 YEARS,
17. MAQSID ALIK KHAN
S/O SHARIEF KHAN,
AGED ABOUT 35 YEARS,
18. NIZAM ALI KHAN
S/O SHARIEF KHAN,
AGED ABOUT 33 YEARS.
5
19. KARNATAKA STATE BOARD OF WAQFS,
NO.6, CUNNINGHAM ROAD,
BENGALURU,
BY ITS SECRETARY.
20. SYED MOHAMMED ADIL PASHA QUADRI
ALIAS SYED BUDAN SHA QUADRI,
SHOWN AS 75 YEARS IN APPEAL MEMO,
S/O LATE AQUIL BASHA QUADRI,
R/AT DARGAH-E-HAZARAH SHARDEN GAUIB,
SHIVANNA-SAMUDRAM,
MYSORE DISTRICT.
SYED USMAN PASHA QUADRI
SINCE DEAD BY HIS LRs
21. SYED ASLAM PASHA KHADRI
S/O LATE SYED USMAN PASHA QUADRI
AGED ABOUT 68 YEARS,
22. SYED AKRAM PASHA
S/O LATE SYED USMAN PASHA QUADRI,
AGED ABOUT 65 YEARS,
23. SYED AYUB PASHA
S/O LATE SYED USMAN PASHA QUADRI,
AGED ABOUT 63 YEARS,
24. SYED FIYAZ PASHA
S/O LATE SYED USMAN PASHA QUADRI,
AGED ABOUT 61 YEARS,
25. SYED YASEEN PASHA
S/O SYED USMAN PASHA QUADRI,
AGED ABOUT 57 YEARS,
RESPONDENT NOS.21 TO 25 ARE
R/AT C/O AKHIL SHA DURGA MOHALLA,
BADA MAKAN, CHANNAPATNA,
RAMANAGARA DISTRICT.
6
26. SYED MOHAMMED GHOUSE PASHA QUADRI
S/O LATE SYED MOHAMMED PEER PASHA QUADRI,
AGED ABOUT 63 YEARS,
DARGAH-E-HAZRATH SYED AKHIL SHA
QUADRI BIG MAKKAN,
CHANNAPATNA.
.......RESPONDENTS
(BY SRI. SUBHASH SRINIVASA RANGACHAR, ADVOCATE FOR
C/R20;
SMT. SWATHI ASHOK, ADVOCATE FOR R19)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
PRAYING TO ALLOW THIS APPEAL AND SET ASIDE THE
JUDGMENT AND DECREE PASSED BY THE LOWER APPELLATE
COURT PRL. CIVIL JUDGE AND JMFC, CHANNAPATNA IN
R.A.NO.19/2020 DATED 27.02.2023 CONFIRMING THE
JUDGMENT AND DECREE PASSED BY THE CIVIL JUDGE AND
JMFC AT CHANNAPATNA IN O.S.NO.92/1988 DATED
20.12.2019 AND ETC.
IN R.S.A.NO.1064/2023
SYED MOHAMMED GHOUSE
PASHA QUADRI
S/O LATE SYED MOHAMMED PEER
PASHA QUADRI
AGED ABOUT 78 YEARS,
SAJJADA NASHINE, DARGAH E
HAZARTHA SYED AKHKIL SHA
QUADRI BIG MAKAN,
CHANNAPATNA - 562 160
... APPELLANT
(BY SRI. RAGHU PRASAD B.S., ADVOCATE)
AND:
SYED YASEEN PASHA KHADRI
SINCE DEAD BY HIS LRs,
1. SYED SALMAN,
7
AGED ABOUT 23 YEARS,
2. SYED USMAN
AGED ABOUT 14 YEARS,
REPRESENTED BY
NATURAL GUARDIAN BY FULL
BROTHER SYED SALMAAN
AGED ABOUT 20 YEARS
R/AT BADA MAKAN,
CHANNAPATNA - 562 160
3. SYED TAJ PASHA
AGED ABOUT 51 YEARS
4. SYED AZADULLAH
AGED ABOUT 49 YEARS
5. SYED SHAHAULLAH
AGED ABOUT 47 YEARS
1 TO 4 ARE SONS OF
LATE SYED AZADULLAH,
RESIDING AT M.G. ROAD,
BADA MAKAN, CHANNAPATNA,
RAMANAGARA - 562 160.
6. VALI PASHA
AGED ABOUT 53 YEARS,
7. SALEEM PASHA
AGED ABOUT 51 YEARS,
8. JAMEEL PASHA
AGED ABOUT 49 YEARS,
9. ZAFARULLAH PASHA
AGED ABOUT 47 YEARS
DEAD AND NO LR'S
10. WASEEM PASHA
AGED ABOUT 45 YEARS,
8
ALL 5 TO 8 ARE SONS OF
LATE SYED YADULLAH
ALL ARE R/AT M G ROAD,
BADA MAKAN, CHANNAPATNA,
RAMANAGARA DISTRICT - 562 160.
11. SYED HASNAL MUSSANNA
SHA KHADRI,
AGED ABOUT 37 YEARS
12. SYED ISRAR SHA KHADRI
AGED ABOUT 33 YEARS
13. SYED VAZEER PASHA
AGED ABOUT 27 YEARS
14. SYED AKHIL SHA
AGED ABOUT 21 YEARS
SYED ADIL BASHA QUADRI
R/AT AKIL SHAI MOHALLA,
BADA MAKAN, NAGARCHI ROAD,
CHANNAPATNA,
RAMANAGARA DISTRICT - 562 160.
SYED AHAMED PASHA
MAJOR SINCE DEAD BY LRS
SYED ASLAM PASHA
AGED ABOUT 48 YEARS
SINCE DEAD BY LR'S
15. SYED TANVEER PASHA
AGED ABOUT 12 YEARS
16. SYED MUKRAM PASHA
AGED ABOUT 15 YEARS
REP. BY NATURAL MOTHER/
GUARDIAN JABEEN KHANUM
W/O LATE SYED ASLAM PASHA
MAJOR
9
ALL ARE R/AT BADA MAKAN,
CHANNAPATNA,
RAMANAGARA DISTRICT - 562 160
17. SYED AKMAL PASHA
AGED ABOUT 54 YEARS
18. SYED TAJAMMUL PASHA
AGED ABOUT 48 YEARS
19. SYED JOHAR PASHA
AGED ABOUT 45 YEARS
20. SYED MUJAMMIL PASHA
AGED ABOUT 35 YEARS
ALL ARE R/AT BADA MAKAN
CHANNAPATNA TOWN
RAMANAGARA DISTRICT - 562 160
SYED AMEER
SINCE DEAD BY LRS
21. SYED SHAFRUDDIN
AGED ABOUT 43 YEARS
R/AT BADA MAKAN,
CHANNAPATNA - 562 160
SHARIEF KHAN
SINCE DEAD BY LR'S
22. MUDASSIR ALI KHAN
AGED ABOUT 47 YEARS
23. MUDASSID ALI KHAN
AGED ABOUT 39 YEARS
24. NIZAM ALI KHAN
AGED ABOUT 33 YEARS
ALL ARE R/AT BADA MAKAN
10
CHANNAPATNA - 562 160
25. KARNATAKA STATE BOARD OF
WAQF REP. BY ITS SECRETARY,
NO.6, CUNNINGHAM ROAD,
BENGALURU.
26. SYED ASLAM PASHA KHADRI
AGED ABOUT 55 YEARS
SYED AKRAM PASHA
AGED ABOUT 52 YEARS
SINCE DEAD BY LR'S
27. SYED SALMAN
AGED ABOUT 23 YEARS
C/O AKHIL SHA DARGA MOHALLA,
BADA MAKAN
28. SYED AYUB PASHA
AGED ABOUT 50 YEARS
SYED FIYAZ PASHA
SINCE DEAD BY LR'S
29. SYED IRSHAD PASHA
AGED ABOUT 18 YEARS
REP. BY GUARDIAN / MOTHER
SMT. RASHEEDA BEGUM
AGED ABOUT 50 YEARS
R/AT MIG 35, 2ND STAGE,
K.H.B.COLONY,
V.T.C MANDYA CITY,
P.O. MANDYA - 571 401
30. SYED YASEEN PASHA
AGED ABOUT 43 YEARS
ALL ARE CHILDREN OF
LATE SYED USMAN PASHA QUADRI
11
ALL ARE AT C/O AKHIL SHA DARGA
MOHALLA, BADA MAKAN
CHANNAPATNA,
RAMANAGARA DISTRICT - 562 160
31. SYED MOHAMMED ADIL PASHA
QUADRI TAREEQUI
SYED BUDAN SHA QUADRI
S/O LATE AQUIL BASHA QUADRI
DARGAH E HAZARATH, MARDANE
GAYAB SHIVANASAMUDRAM,
KOLLEGAL TALUK, MYSORE DISTRICT
WORKING 'SYED AADIL PASHA AND
BROS OLD MOTOR PARTS DEALERS
K.G.ROAD, MOTHINAGAR,
BENGALURU - 02
32. SYED MOHUSEEN PASHA
S/O LATE SYED ASADULLA
AGED ABOUT 47 YEARS
R/AT BADA MAKAN, M.G.ROAD,
CHANNAPATNA,
RAMANAGARA DISTRICT - 562 160
33. SYED ZAKHIR PASHA
S/O LATE SYED USMAN PASHA QUADRI,
AGED ABOUT 53 YEARS
R/AT BADAMAKAN,
CHANNAPATNA, RAMANAGARA DISTRICT,
RAMANAGARA - 562 160
...RESPONDENTS
(BY SRI. SUBHASH SRINIVASA RANGACHAR,
ADVOCATE FOR C/R31)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
20.12.2019 PASSED BY THE ADDL. CIVIL JUDGE & JMFC,
CHANNAPATNA IN O.S.NO.92/1988 DECREEING THE
COUNTER CLAIM AND ALSO THE JUDGMENT AND DECREE
12
DATED 27.02.2023 PASSED BY THE SENIOR CIVIL JUDGE
AND JMFC, CHANNAPATNA PASSED IN R.A.NO.08/2020
DISMISSING THE APPEAL AND DECREE THE SUIT IN THE
INTEREST OF JUSTICE AND EQUITY.
IN R.S.A.NO.1069/2023
SYED MOHAMMED GHOUSE
PASHA QUADRI
S/O LATE SYED MOHAMMED PEER
PASHA QUADRI
AGED ABOUT 78 YEARS,
SAJJADA NASHINE, DARGAH E
HAZARTHA SYED AKHKIL SHA
QUADRI BIG MAKAN,
CHANNAPATNA - 562 160.
... APPELLANT
(BY SRI. RAGHU PRASAD B S, ADVOCATE)
AND:
SYED YASEEN PASHA KHADRI
SINCE DEAD BY LRs,
1. SYED SALMAN,
AGED ABOUT 23 YEARS,
2. SYED USMAN
AGED ABOUT 14 YEARS,
REPRESENTED BY
NATURAL GUARDIAN BY FULL
BROTHER SYED SALMAAN
AGED ABOUT 20 YEARS
R/AT BADA MAKAN,
CHANNAPATNA - 562 160
3. SYED TAJ PASHA
AGED ABOUT 51 YEARS
4. SYED AZADULLAH
AGED ABOUT 49 YEARS
13
5. SYED SHAHAULLAH
AGED ABOUT 47 YEARS
1 TO 4 ARE SONS OF
LATE SYED AZADULLAH,
R/AT M G ROAD,
BADA MAKAN, CHANNAPATNA,
RAMANAGARA - 562 160.
6. VALI PASHA
AGED ABOUT 53 YEARS,
7. SALEEM PASHA
AGED ABOUT 51 YEARS,
8. JAMEEL PASHA
AGED ABOUT 49 YEARS,
9. ZAFARULLAH PASHA
AGED ABOUT 47 YEARS
DEAD AND NO LR'S
10. WASEEM PASHA
AGED ABOUT 45 YEARS,
ALL 5 TO 8 ARE SONS OF
LATE SYED YADULLAH
ALL ARE R/AT M G ROAD,
BADA MAKAN, CHANNAPATNA,
RAMANAGARA DISTRICT - 562 160.
11. SYED HASNAL MUSSANNA
SHA KHADRI,
AGED ABOUT 37 YEARS
12. SYED ISRAR SHA KHADRI
AGED ABOUT 33 YEARS
13. SYED VAZEER PASHA
14
AGED ABOUT 27 YEARS
14. SYED AKHIL SHA
AGED ABOUT 21 YEARS
SYED ADIL BASHA QUADRI
R/AT AKHIL SHAI MOHALLA,
BADA MAKAN, NAGARCHI ROAD,
CHANNAPATNA,
RAMANAGARA DISTRICT - 562 160.
SYED AHAMED PASHA
MAJOR SINCE DEAD BY LRS
SYED ASLAM PASHA
AGED ABOUT 48 YEARS
SINCE DEAD BY LR'S
15. SYED TANVEER PASHA
AGED ABOUT 12 YEARS
16. SYED MUKARAM PASHA
AGED ABOUT 15 YEARS
REP. BY NATURAL MOTHER /
GUARDIAN JABEENA KHANUM
W/O LATE SYED ASLAM PASHA
MAJOR
ALL ARE R/AT BADA MAKAN,
CHANNAPATNA,
RAMANAGARA DISTRICT - 562 160.
17. SYED AKMAL PASHA
AGED ABOUT 54 YEARS
18. SYED TAJAMMUL PASHA
AGED ABOUT 48 YEARS
19. SYED JOHAR PASHA
AGED ABOUT 45 YEARS
20. SYED MUJAMMIL PASHA
15
AGED ABOUT 35 YEARS
ALL ARE R/AT BADA MAKAN
CHANNAPATNA TOWN
RAMANAGARA DISTRICT - 562 160.
SYED AMEER
SINCE DEAD BY LR'S
21. SYED SHAFRUDDIN
AGED ABOUT 43 YEARS
R/AT BADA MAKAN,
CHANNAPATNA - 562 160.
SHARIEF KHAN
SINCE DEAD BY LR'S
22. MUDASSIR ALI KHAN
AGED ABOUT 47 YEARS
23. MUDASSID ALI KHAN
AGED ABOUT 39 YEARS
24. NIZAM ALI KHAN
AGED ABOUT 33 YEARS
ALL ARE R/AT BADA MAKAN
CHANNAPATNA - 562 160.
25. KARNATAKA STATE BOARD OF
WAKF REP BY ITS SECRETARY,
NO.6, CUNNINGHAM ROAD,
BENGALURU.
26. SYED ASLAM PASHA KHADRI
AGED ABOUT 55 YEARS
SYED AKRAM PASHA
AGED ABOUT 52 YEARS
SINCE DEAD BY LR'S
16
27. SYED SALMAN
AGED ABOUT 23 YEARS
C/O AKHIL SHA DARGA MOHALLA,
BADA MAKAN
28. SYED AYUB PASHA
AGED ABOUT 50 YEARS
SYED FIYAZ PASHA
SINCE DEAD BY LR'S
29. SYED IRSHAD PASHA
AGED ABOUT 18 YEARS
REP. BY GUARDIAN / MOTHER
SMT. RASHEEDA BEGUM
AGED ABOUT 50 YEARS
R/AT MIG 35, 2ND STAGE,
K.H.B.COLONY, V.T.C MANDYA CITY,
P.O. MANDYA - 571 401.
30. SYED YASEEN PASHA
AGED ABOUT 43 YEARS
ALL ARE CHILDREN OF
LATE SYED USMAN PASHA QUADRI
ALL ARE AT C/O AKHIL SHA DARGA
MOHALLA, BADA MAKAN
CHANNAPATNA,
RAMANAGARA DISTRICT - 562 160.
31. SYED MOHAMMED ADIL PASHA
QUADRI TAREEQUI
SYED BUDAN SHA QUADRI
S/O LATE AQUIL BASHA QUADRI
DARGAH E HAZARATH, MARDANE
GAYAB SHIVANASAMUDRAM,
KOLLEGAL TALUK, MYSORE DISTRICT
WORKING 'SYED AADIL PASHA AND
BROS OLD MOTOR PARTS DEALERS
K.G.ROAD, MOTHINAGAR,
17
BENGALURU - 560 002.
32. SYED MOHUSEEN PASHA
S/O LATE SYED ASADULLA
AGED ABOUT 47 YEARS
R/AT BADA MAKAN, M.G.ROAD,
CHANNAPATNA,
RAMANAGARA DISTRICT - 562 160.
33. SYED ZAKHIR PASHA
S/O LATE SYED USMAN PASHA QUADRI,
AGED ABOUT 53 YEARS
R/AT BADAMAKAN,
CHANNAPATNA, RAMANAGARA DISTRICT,
RAMANAGARA - 562 160.
...RESPONDENTS
(BY SRI. SUBHASH SRINIVASA RANGACHAR, ADVOCATE
FOR C/R-31)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
20.12.2019 PASSED BY THE ADDL. CIVIL JUDGE & JMFC,
CHANNAPATNA IN O.S.NO.92/1988 DECREEING THE
COUNTER CLAIM AND ALSO THE JUDGMENT AND DECREE
DATED 27.02.2023 PASSED BY THE SENIOR CIVIL JUDGE
AND JMFC, CHANNAPATNA PASSED IN R.A.NO.07/2020
DISMISSING THE APPEAL AND DECREE THE SUIT IN THE
INTEREST OF JUSTICE AND EQUITY.
IN R.S.A.NO.1141/2023
1. SRI. SYED ASLAM PASHA KHADRI
S/O LATE SYED USMAN PASHA
AGED ABOUT 73 YEARS
2. SRI. SYED AYUB PASHA
S/O LATE SYED USMAN PASHA
AGED ABOUT 58 YEARS
18
3. SRI. SYED FIYAZ PASHA
S/O LATE SYED USMAN PASHA
DEAD BY HIS LR'S
3(a) SMT. RASHEEDA BEGUM
W/O LATE SYED FIYAZ,
AGED ABOUT 44 YEARS
3(b) KUM. RIDA TASKEEN
D/O LATE SYED FIYAZ
AGED ABOUT 20 YEARS
3(c) MASTER. SYED IRSHAD PASHA
D/O LATE SYED FIYAZ
AGED ABOUT 18 YEARS
ALL ARE RESIDING AT
C/O AKHIL SHA, DARGA MOHALLA,
BADA MAKAN, CHANNAPATNA
RAMANAGARA DISTRICT
4. SRI SYED YAASEEN PASHA
S/O LATE SYED USMAN PASHA
AGED ABOUT 51 YEARS
ALL ARE RESIDING AT
PASHA MOHALLA,
C/O AKHIL SHA, DARGA MOHALLA,
BADA MAKAN, CHANNAPATNA,
RAMANAGARA DISTIRCT.
...APPELLANTS
(BY SRI. SYED ROOHULLA.M, ADVOCATE)
AND:
1. SRI. SYED MOHAMMED GHOUSE
PASHA QUADRI
S/O LATE SYED MOHAMMED
PEER PASHA QUADRI
2. SRI SYED TAJ PASHA
19
S/O LATE SYED AZADULLAH
AGED ABOUT 43 YEARS
3. SRI SYED SHAHAULLAH
S/O LATE SYED AZADULLAH
AGED ABOUT 38 YEARS
BOTH ARE RESIDING AT
M.G.ROAD, BADAMAKAN
CHANNAPATNA
RAMANAGARA DISTRICT
4. SRI VALI PASHA
S/O LATE SYED YADULLAH
AGED ABOUT 51 YEARS
5. SRI SALEEM PASHA
S/O LATE SYED YADULLAH
AGED ABOUT 49 YEARS
6. SRI JAMEEL PASHA
S/O LATE SYED YADULLAH
AGED ABOUT 47 YEARS
7. SRI WASEEM PASHA
S/O LATE SYED YADULLAH
AGED ABOUT 43 YEARS
ALL ARE RESIDING AT
M.G.ROAD, BADA MAKAN
CHANNAPATNA
RAMANAGARA DISTRICT
8. SRI SYED HASNAL MUSSANNA SHA KHADRI
S/O LATE SYED ALI BASHAKHADRI
AGED ABOUT 35 YEARS
9. SRI SYED ISTRAR SHA KHADRI
S/O LATE SYED ALI BASHAKHADRI
AGED ABOUT 33 YEARS
20
10. SRI SYED VAZEER PASHA
S/O LATE SYED ALI BASHAKHADRI
AGED ABOUT 27 YEARS
11. SRI SYED AKHIL SHA
S/O LATE SYED ALI BASHAKHADRI
AGED ABOUT 22 YEARS
12. KARNATAKA STATE BOARD OF WAQFS
NO.6, CUNNNGHAM ROAD
BENGALURU
REP BY ITS SECRETARY.
13. SRI SYED MOHAMMED ADIL PASHA QUADRI
AGED ABOUT 63 YEARS
TAREEQU NAME SYED
BUDAN SHANN QUADRI
S/O LATE AQUIL BASHA QUADRI
DARGAH EHAZARATH, MYSORE DISTRICT
KOLLEGAL TALUK, MYSORE DISTRIT
WORKING AT OLD MOTOR PARTS
DEALER, K.R. ROAD, MOTHINAGARA
BENGALURU-560 002.
14 . SRI SYED MOHUSEEN PASHA
S/O LATE SYED AZADULLA
AGED ABOUT 47 YEARS
R/AT BADA MAKKAN
CHANNAPATNA TOWN.
15 . SRI SYED SALMAN
S/O LATE SYED YASEEN PASHA KHADRI
AGED ABOUT 23 YEARS
16 . SRI SYED USMAN
S/O LATE SYED YASEEN PASHA KHADRI
AGED ABOUT 13 YEARS
SINCE MINOR REPRESENTED BY
HIS ELDER BROTHER SYED SALAM
AS A NATURAL GUARDIAN
21
BOTH ARE R/AT AKIL SHA BADA MAKAN
CHANNAPATNA TOWN
RAMANAGARA DISTRICT.
17 . SRI. SYED AKMAL PASHA
S/O. LATE SYED ASLAM PASHA KHADRI,
AGED ABOUT 54 YEARS,
18 . SRI. SYED TAJMMUL PASHA
S/O. LATE SYED AHMED PASHA,
AGED ABOUT 48 YEARS,
19 . SRI. SYED JOHAR PASHA
S/O. LATE SYED AHMED PASHA,
AGED ABOUT 45 YEARS,
20 . SRI. SYED MUJAMMIL PASHA
S/O. LATE SYED AHMED PASHA,
AGED ABOUT 35 YEARS,
21. SRI. SYED ASLAM PASHA KHADRI
S/O. LATE SYED AHMED PASHA KHADRI,
SINCE DEAD BY HIS LRS.,
21(a) SRI. SYED TANVEER PASHA,
S/O. LATE SYED ASLAM PASHA KHADRI,
AGED ABOUT 18 YEARS,
21(b) MASTER. SYED MUKARAM PASHA
S/O. LATE SYED ASLAM PASHA KHADRI,
AGED ABOUT 13 YEARS,
BOTH ARE RESIDING AT
AKIL SHA BADA, MAKKAN,
CHANNAPATNA TOWN,
RAMANAGARA DISTRICT.
22 . SRI. SYED SHARFUDDIN
22
S/O. LATE SYED AMEER,
AGED ABOUT 50 YEARS,
23 . SRI. MUDASSIR ALI KHAN
S/O. LATE SHARIF KHAN,
AGED ABOUT 44 YEARS,
24 . SRI. MAQSID ALI KHAN
S/O. LATE SHARIF KHAN,
AGED ABOUT 38 YEARS,
25 . SRI. NIZAM ALI KHAN
S/O. LATE SHARIF KHAN,
AGED ABOUT 36 YEARS,
BOTH ARE RESPONDENT NOS.22 TO 25
RESIDING AT SYEDWADI,
CHANNAPATNA TOWN,
RAMANAGARA DISTRICT.
...RESPONDENTS
(BY SRI. SUBHASH SRINIVASA RANGACHAR, ADVOCATE FOR
C/R-13)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED
20.12.2019 PASSED BY THE ADDL. CIVIL JUDGE & JMFC,
CHANNAPATNA IN O.S.NO.92/1988 DECREEING THE
COUNTER CLAIM AND ALSO THE JUDGMENT AND DECREE
DATED 27.02.2023 PASSED BY THE SENIOR CIVIL JUDGE
AND JMFC, CHANNAPATNA PASSED IN R.A.NO.16/2020
DISMISSING THE APPEAL AND DECREE THE SUIT IN THE
INTEREST OF JUSTICE AND EQUITY.
THESE APPEALS HAVING BEEN RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY,
DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE M.G.S. KAMAL
23
CAV JUDGMENT
A suit in O.S.No.92/1988 on the file of Additional Civil
Judge and JMFC, Channapatna (hereinafter referred to as trial
Court’) is filed by one Syed Mohammed Ghouse Pasha Quadri
– the plaintiff seeking relief of declaration declaring him to be
the Sajjadanashin of Hazarat Akhil Shah Quadri Dargah,
Channapattana (hereinafter referred to as ‘suit dargah’) and
for consequential relief of permanent injunction against
defendants 1 to 6 and the Karnataka State Board of Waqf -the
defendant No.7, in which nephew of the plaintiff namely Syed
Mohammed Adil Pasha Quadri, got himself impleaded as
defendant No.8 and while denying the case of the plaintiff he
made a counter claim to declare him as Sajjadanashin of the
suit Dargah. Thereafter one Syed Usman Pasha Quadri got
himself impleaded as defendant No.9 also claiming to have
been appointed as Sajjadanashin of the suit Dargah. By the
impugned Judgment and decree dated 20.12.2019 the trial
Court while dismissing the suit of the plaintiff decreed the
counter claim made by defendant No.8 with cost.
24
2. As against the dismissal of his suit plaintiff preferred
a regular appeal in R.A.No.7/2020 and as against grant of
counter claim in favour of defendant No.8, he filed another
appeal in R.A.No.8/2020. Similarly defendant No.3 filed
R.A.No.19/2020 and the legal representatives of defendant
No.9 filed R.A.No.16/2020 on the file of Senior Civil Judge and
JMFC, Channapatna (hereinafter referred to as `First
Appellate Court’). The First Appellate Court by its common
Judgment and decree dated 27.02.2023 dismissed the
aforesaid regular appeals and consequently confirmed the
aforesaid Judgment and decree passed by the trial Court.
3. Aggrieved by the aforesaid Judgment and decree
passed by the trial Court and confirmed by the First Appellate
Court, plaintiff is before this Court in RSA Nos.1064/2023 and
1069/2023 while defendant No.3 is in RSA No.1004/2023 and
legal representatives of defendant No.9 are in RSA
No.1141/2023.
4. Case of the plaintiff:
a) That one Janab Syed Mohammed Akhil Shah Quadri
was the teacher and mentor of Nawab Hyder Ali Khan Bhadur
25of Mysore State. His tomb is situated in the outskirts of town
of Channapatna (suit dargah). That the father of the plaintiff
Janab Syed Mohammed Peer Pasha Quadri was the
Sajjadanashin of the suit Dargah. This was recognized by the
Karnataka State Board of Waqf by its endorsement dated
12.01.1981. Father of plaintiff passed away on 06.10.1988.
During his life time he had appointed plaintiff to succeed as
Sajjadanashin of the suit Dargah. That defendants 1 to 6 who
are also the Haqdars have been interfering with the plaintiff’s
rights in performance of his duties as Sajjadanashin and
conducting of Sandal and Urs ceremony of said saint.
b) That the father of defendants 1 to 3, late Syed
Mohammed Peer Pasha Quadri had caused hindrance and
interference even during the life time of father of the plaintiff
which had caused intervention of local Tahsildar resulting in a
Resolution dated 18.08.1964 being passed reconstituting a
Committee. Even after the death of father of the plaintiff,
defendant No.3 published pamphlets describing himself as
Sajjada though plaintiff had already been nominated by his
father. Said act of the defendant No.3 in active support of
26
defendant Nos.1, 2, 4, 5 and 6 had caused unrest, law and
order situation in the vicinity of suit Dargah. Hence, the suit.
5. The case of the defendant Nos.2 and 3.
(a) Defendant Nos.2 and 3 in their written statement
denying the claim of the plaintiff contended that father of the
plaintiff had been appointed as a Manager of suit Dargah and
he was unable to conduct the Sandal and Urs in a proper
manner and for the said reason Tahsildar had intervened
during which period father of defendants 1 to 3 who was the
Muzawar (Sajjada) was conducting the Sandal and Urs.
(b) It is further asserted that father of the plaintiff was
never the Sajjada of suit Dargah and he had no right to
appoint anyone much less the plaintiff as his successor.
Plaintiff who had nothing to do with the suit Dargah was
taking undue advantage of the similarity between the names
of his father and the father of defendants 1 to 3 and with the
instigation of persons who were inimically disposed to these
defendants had filed a suit in O.S.No.405/1987 creating
trouble and tension in the smooth functioning of Sandal and
27
Urs. Neither the plaintiff nor his father lived at Channapatna
and at no point of time they were the Sajjada of suit Dargah.
(c) That previously in the year 1944 one Syed Sha
Mohammed Ali Basha Quadri was the Sajjada of suit Dargah
enjoying the income of Dargah as its Makandar. He was also
authorized to conduct Sandal and Urs by the Muzarrai
Commissioner, Mysore, thus he was the actual Sajjada of the
Dargah. Said Syed Sha Mohammed Ali Basha Quadri is none
other than the uncle of Syed Mohammed Peer Pasha Quadri,
the father of defendants 1 to 3. He bequeathed his rights in
favour the father of the defendants 1 to 3 under a Will of
1944. After the death of Syed Sha Mohammed Ali Basha
Quadri, the father of the defendants 1 to 3 became the
Sajjada. As such, he continued to perform and celebrate
Sandal and Urs as Sajjadanashin of the suit Dargah.
Accordingly, the Office of Sajjadanashin devolved upon his 4th
son who is defendant No.3 in the suit. Thus, the defendant
No.3 became the Sajjadanashin both as a son and also by
selection by Fakirs and Murids. This is evidenced by the letter
dated 10.12.1987 issued by one Alhaj Syed Yousufulla Sha,
28
Sadar Sar Khalifa Rafai Ahmad Khadri who is the head of all
Fakirs and Kalifas.
Contending so, sought for dismissal of the suit.
6. The case of defendant No.7-State Board of
Waqf;
DefendantNo.7- Karnataka State Board of Waqf in its
written statement denying the claim of the plaintiff,
contended that Sajjadanashin is a hereditary Mutawalli who
can be appointed only by duly constituted authority
empowered by law. No such authority has at any time
appointed Syed Mohammed Peer Pasha Khadari or anyone
else as Sajjadanashin of suit Dargah. A mere communication
addressed as Sajjadanashin could not make him
Sajjadanashin which might have been got written collusively
with the concerned clerk of the Board. It is further contended
that neither father of the plaintiff nor defendant No.3 was the
Sajjadanashin of the suit Dargah. As such neither the plaintiff
nor the defendants 1 to 3 have any right or entitlement of
being the Sajjadas. Hence sought for dismissal of the suit.
29
7. The case of defendant No.8;
Defendant No.8 initially filed his written statement on
16.01.1990 denying the case of the plaintiff, which was
subsequently amended seeking counter claim, contending
inter alia;
a) That grand-father of the defendant No.8
Syed Mohammed Peer Pasha Kadari who was also father of
the plaintiff was the Sajjadanashin of two Dargahs situated at
Shivanasamudra, Sathegala Post, Kollegala Taluk, Mysore
District as well as of the suit Dargah. That as per the custom
and usage in these two Dargahs upon the death of
Sajjadanashin, the Office of Sajjadanashin would be
succeeded by his eldest son. The preceding Sajjadanashin was
having authority and power to nominate his successor to
succeed him and the successor was called the “Jan Nasheen
Sajjada” (the Sajjadanashin designate). That his grandfather
said Syed Mohammed Peer Pasha Khadari nominated his
eldest son Syed Mohammed Akhil Pasha Khadari who was the
father of defendant No.8 as his successor who died on
27.10.1980. Immediately thereafter in order to sustain the
custom said Syed Mohammed Peer Pasha Khadari on
30
26.02.1981 in the presence of Sajjadanashins, Mujawars,
Mutawallis of various Dargahs, devotees, Community heads
nominated defendant No.8 to be the “Jan Nasheen Sajjada” of
the suit Dargah and conferred upon him Khilafat which is an
act of spiritual preceptor, the said proceedings were reduced
in writing signed and witnessed by said Syed Mohammed Peer
Pasha Khadari and those who had assembled including the
plaintiff. Defendant No.8 thus became the Sajjadanashin of
the suit Dargah after the demise of his grand father on
06.10.1988 according to the customs and legal principles.
(b) That knowing the dispute between the plaintiff and
the defendant No.8, the defendant Nos.1 to 6 are conducting
Dargah festival without Sajjadanashin unlawfully for a gain
after the death of earlier Sajjadanashin. That neither the
plaintiff nor the defendants 1 to 6 have acquired any right or
title to occupy the post after 06.10.1988, it is only the
defendant No.8 who is entitled to occupy the post of
Sajjadanashin of the suit Dargah. Hence, sought for relief of
declaration declaring him to be the Sajjadanashin of the suit
Dargah and for consequential relief of permanent injunction.
31
8. Plaintiff filed written statement to the counter claim
denying the claim made by the defendant No.8.
9. The case of defendant No.9;
Defendant No.9 in his written statement denying the
claim of the plaintiff contended that one Hazarath Mohammed
Akhil Shah Khadri had two sons namely, Syed Budhan Shah
Khadri and Syed Usman Sha Khadri. Syed Budhan Shah
Khadri died unmarried. Syed Usman Sha Khadri had three
sons. Syed Manjle Shah Khadri first son from his first wife,
Syed Peer Pasha Khadri second son through his second wife
and Syed Jamal Shah Khadri third son from his third wife.
Upon the demise of Syed Usman Shah Khadri his eldest son
from his first wife Syed Manjle Shah Khadri was appointed as
Sajjadanashin. After his life time his eldest son Syed
Mohiuddin Shah Khadri was appointed as Sajjadanashin. Said
Syed Mohiuddin Shah Khadri was the grandfather of the
Defendant No.9. Thus the Defendant No.9 being the direct
descendent of the Hazarath Mohammed Akhil Shah Khadri
himself is the only rightful claimant to post of the
32
Sajjadanashin and upon his demise his legal representatives
are entitled for the said post.
Hence, sought for dismissal of the suit.
10. Based on the above pleadings the trial Court
framed the following issues and additional issues.
Issued framed on 30.05.1989
“1. Does plaintiff prove that his father was legally
appointed as Sajjadanashin of the Suit Dargah
recognized by the defendant No.7?
2. Does the plaintiff prove that during the life time of
his father he was nominated as Sajjadanashin of suit
Dargah?
3. Does plaintiff prove that he is Sajjadanashin of suit
dargah under hereditary right?
4. Do defendant Nos.2 and 3 prove that one Syed Sha
Md. Ali Basha Kadari was previous sajjada of suit
dargah in 1994?
5. Do defendant 2 and 3 further prove that the Syed
Md. Basha Kadari bequeathed his rights in favour of
their father?
6. Do defendant 2 and 3 further prove that after death
of their father they became sajjada of suit dargah.
7. Does defendant No.3 prove that office of
Sajjadanashin of suit dargah devolved upon him ?
8. Does defendant No.3 prove that the pamphlets
printed in 1987 describing him as sajjadanashin of suit
dargah was with the permission of Waqf Board.
9. Does the plaintiff was entitled to declaration as
prayed for?
33
10. Does he entitled for injunction as prayed?
11. To What order or decree?
Additional Issues framed on 12.11.1992
1. Whether defendant No.8 proves the allegations
made in para 12 and 13 of the written statement?
2. Whether defendant No.8 further proves the
allegations made in para 15 and 16 of the written
statement?
3. Whether he entitled decree as prayed for?
Additional Issues framed on 13.10.1998
1. Whether defendant No.8 proves that his father
was nominated as successor by presiding Sajjada
Nashin?
2. Whether defendant No.8 proves that later he was
nominated as SajjadaNashin of suit dargah.
Additional Issues framed on 09.04.2012
1. Whether the LRs of defendant No.3 prove that
defendant No.3 appointed/nominated his first son
Sri.Syed Hasnal Mussan Sha Khadri as Sajjada
Nashin on 16.07.2011 as alleged?
11. Plaintiff examined himself as PW1 and exhibited
26 documents as Ex.P1 to Ex.P26 and additional witnesses
have been examined as PW2 and PW4 and got exhibited
Ex.P.27. By a memo dated 04.09.2012, plaintiff sought for
discarding the evidence of PW.3. Defendant No.8 examined
himself as DW1 and got exhibited Ex.D1 (during the cross-
34
examination of PW.1) and closed his side. Defendant Nos.1 to
6 examined defendant No.2 as DW2 and exhibited documents
marked as Ex.D2 to Ex.D36 and also examined defendant
No.3 as DW3 and three additional witnesses as DW.4 to
DW.6. General Power of attorney holder of Defendant No.9
was examined and the legal reprenstative of defendant No.9
examined as DW7 and DW8 and got marked Ex.D30 to
Ex.D.59.
12. The Trial Court on appreciation of the evidence
answered issue Nos.1 to 10 in the negative, additional issue
Nos.1 to 3 framed on 12.11.1992 in the affirmative, additional
issue Nos.1 and 2 framed on 13.10.1998 in the affirmative
and the additional issue No.1 framed on 09.04.2012 in the
negative and consequently, dismissed the suit of the plaintiff
and decreed the counter claim of the defendant No.8 by its
judgment and decree dated 20.12.2019. Aggrieved by the
dismissal of the suit and grant of counter claim, plaintiff filed
a regular appeal in R.A.No.7/2020 and R.A.No.8/2020
respectively. Aggrieved by grant of counter claim, legal
representatives of defendant No.9 filed a regular appeal in
35
R.A.No.16/2020 and defendant No.3 filed a regular appeal in
R.A.No.19/2020.
13. The First Appellate Court on considering the
grounds urged in the memorandum of the appeal framed
following points for its consideration:
(i) Whether the plaintiff Mohammed Syed Ghouse Pasha
Khadri had proved before the Trial Court that his father
was the Sajjadanashin of the suit dargah?
(ii) Whether the plaintiff had proved that he had
acquired the right to the office of the SajjadaNashin
under a hereditary right and during the life time of his
father he was nominated as Sajjadanashin of suit
Dargah?
(iii) Whether the defendant No.2 and 3/Appellants in
R.A.19/2020 have proved that one Syed Sha-Md Ali
Basha Khadri was the Sajjadanashin of suit Dargah in
the year 1944?
(iv) Whether the defendant No.2 and 3 have proved that
the said Syed Sha-Md Ali Basha Khadri had bequeathed
his right in favour of their father by name Syed Md. Peer
Pasha Khadri as per the Will Deed of April 1944 as
alleged in written statement?
(v) Whether the defendant No.2 and 3 have proved that
the defendant No.3 Late Syed Adil Basha Khadri
appointed/nominated his first son Syed Hasnal Mussnna
Sha Khadri as Sajjadanashin of suit Dargah on
16.07.2011 as alleged by them in their additional
written statement?
(vi) Whether the defendant No.8 Syed Mohammed Adil
Pasha Khadri had proved before the trial court that his
father Syed Mohammed Akhil Pasha Khadri was being
nominated as successor to the post of Sajjadanashin in
the year 1964?
36
(vii) Whether the defendant No.8 proved before the trial
court that his grand father who was the presiding
Sajjadanashin of the suit dargah had nominated him as
Jan Nasheen Sajjada of the two Dargahs namely
Hazarath Akhil Sha Khadri (Bada Makhan, Channapatna)
and Hazarath Mardane Ghaiab situated at Shivana
Samudram by conferring Khilafathnama in the presence
of religious heads and elders of the community in a
public function held on 26.02.1981?
(viii) Whether the legal heirs of defendant No.9 have
proved that their father Syed Usman Pasha Khadri was
the Sajjadanashin of the suit Dargah?
(ix) Whether the legal heirs of defendant No.3 proved
that inspite of exercise of due diligence they were
unable to produce documents which now they have
produced along with I.A.No.20 under Order 41 Rule 27
r/w/s 151 of C.P.C.?
(x) Whether the legal heirs of defendant No.3 proves
that the documents furnished along with I.A.20 are
material documents to prove and adjudicate dispute
between themselves and respondents?
(xi) Whether the legal representatives of the defendant
No.3 proves that the trial court had refused to receive
the documents now furnished by them along with
I.A.No.24 U/O 41 Rule 27(a) r/w/s 151 of C.P.C.?
(xii) Whether the legal representatives of defendant
No.3 proves that inspite of due diligence they were
unable to produce documents which now they have
produced before this court along with I.A.No.24?
(xiii) Whether the legal representatives of defendant
No.3 proves that the documents furnished by them
along with I.A.No.24 are material documents for the
proper adjudication of this matter?
(xiv) Whether there are any grounds to interfere with
the findings given by the trial court?
(xv) What order?
37
14. The First Appellate Court on re-appreciation of the
evidence answered point Nos.1, 6 and 7 in the affirmative and
point Nos.2 to 5 and 8 to 14 in the negative and consequently
dismissed all the regular appeals by its common judgment
and order dated 27.02.2023. Being aggrieved by the same,
the defendant No.3 is before this Court in
R.S.A.No.1004/2023, the plaintiff is before this Court in
R.S.A.Nos.1064/2023 and 1069/2023 and legal
representatives of defendant No.9 are before this Court in
R.S.A.No.1141/2023.
SUBSTANTIAL QUESTIONS OF LAW:
15. Since common facts and grounds are urged in all
these appeals this Court by order dated 18.04.2024, admitted
the appeals to consider the following substantial questions of
law:
“(1) Whether the Trial Court and the First Appellate
Court are justified in assuming the jurisdiction in deciding
the matter pertaining to the Office of Sajjadanashin of
DARGAH of HAZRATH AKHIL SHAH QUADRI a notified
WAQF institution, which in terms of provisions of WAQF
Act, 1995 is required to be dealt with and adjudicated by
the Karnataka State Board of WAQF-Defendant No.7 and
any decision thereof to be decided by the WAQF Tribunal
constituted under Section 83 of the WAQF Act, 1995?
38
(2) Whether the Trial Court and the First Appellate
Court are justified in granting relief of counter claim made
by defendant No.8 in the absence of specific pleading and
proof with regard to hereditary and customary rights
based on which the said counter claim was made and also
ignoring the provisions of Personal Law of the parties
governing right of inheritance?”
16. Again by order dated 20.09.2024, this Court
framed following additional substantial question of law:
(3) Whether in the facts and circumstances of the case,
trial Court and first appellate Court are justified in
decreeing the counter claim of defendant No.8 by
granting mere relief of declaration in the absence of any
prayer for consequential relief?”
17. Submission of Sri. Raghu Prasad B.S.,
learned counsel appearing for the plaintiff:
Reiterating the grounds urged in the memorandum
of appeal and taking this Court through the oral and
documentary evidence extensively learned counsel submitted
that;
(a) That the Trial Court and the First Appellate Court
failed to appreciate the oral and documentary evidence
produced by the plaintiff in their proper perspective in
that while they relied upon the only document – Ex.D1
produced by the defendant No.8, declined similar
documents produced by the plaintiff. Thus, the
39impugned judgment and decree of the Trial Court
confirmed by the First Appellate Court suffers from
perversity.
(b) That the office of Sajjadanashin could only be
inherited by a person nominated by earlier
Sajjadanashin, who was qualified to the post and
defendant No.8 to whom the Trial Court and the First
Appellate Court declared to have been nominated as
Sajjadanashin neither stayed at Channapatna nor has
conducted any ceremonies as he was residing and doing
business at Bengaluru.
(c) The trial Court and the First Appellate Court rejected
the suit of the plaintiff on the premise of plaintiff failing
to plead and prove the customs whereas decreed the
counter claim of defendant No.8 even in the absence of
he pleading and proving the customs clearly
demonstrating the impugned judgments and decree
suffering from illegalities and perversity.
40
(d) That the counter claim of the defendant No.8 ought
to have been tried as a separate suit and since the
defendant No.8 had merely sought for declaration of his
right without seeking consequential reliefs, in view of
provisions of Section 34 of Specific Relief Act, the trial
Court and the First Appellate Court ought to have
rejected the counter claim.
(e) Relying upon the judgments of the Apex Court in
the case of (i) Executive Officer Arulmigu
Chokkanatha Swamy Koil Trust, Virudhunagar Vs
Chandran and others reported in AIR 2017 SCC
1034, (ii) Anathula Sudhakar Vs P Buchi Reddy
(dead) by Lrs and others reported in (2008) 4 SCC
594 (iii) Venkataraja and others Vs Vidyane
Doureradjaperumal dead by Lrs and others
reported in of (2014) 14 SCC 502, he submitted that
admittedly defendant No.8 was not in possession of the
office of sajjadanashin of suit Dargah and the counter
claim made seeking declaratory relief along with relief
41of permanent injunction was not maintainable and the
same ought to have been dismissed.
(f) Referring to the Judgment in the case of Joseph
John Peter Sandy Vs Veronica Thomas Rajkumar
and anr reported in 2013 AIR SCW 2604 submitted
that since the plaintiff had specifically denied his
signature on Ex.D1 onus of proof of the document was
on the defendant No.8 who propounded the said
document. He further submitted neither the witnesses
nor the scribe of the document-Ex.D1 was examined to
prove its execution. The document could not therefore
have been relied upon by the trial Court and first
appellate Court.
(h) He also relied upon the Judgment in the case of
Santosh Hazari Vs Purushottam Tiwari (dead) by
Lrs. reported in AIR 2001 SC 965 to contend that High
Court has jurisdiction to hear appeal on any other
substantial question of law not proposed by the
appellants if the case involves such a question upon the
reasons to be recorded.
42
Hence, sought for allowing of the appeal.
18. Sri. S.A.H Razvi, learned counsel for the
defendant No.3 submitted that;
(a) Referring to the Judgment of the Apex Court in the
case of S.V.Cheriyakoa Thangal Vs S.V.P.Pookoya
and others passed in SLP.No.3182/2019 submitted
that appointment of Mutawalli which includes
Sajjadanashin is wholly within the jurisdiction of Waqf
Board under Section 32(2)(g) and Civil Court have no
jurisdiction to appoint the Mutawalli.
(b) Referring to the Judgments of the Apex Court in the
case of Balvant N Viswamitra and others Vs Yadav
Sadashiv Mule (dead) through Lrs and others
reported in (2004) 8 SCC 706 and in the case of Kiran
Singh and others Vs Chaman Paswan and others
reported in (1995) 1 SCR 117 he submitted that a
void decree can be challenged at any stage even in the
execution or collateral proceedings.
43
(c) That with the Waqf Act, 1995 constituting Tribunal
and all matters pertaining to any Waqf were to be
decided by the Tribunal under Sections 83 to 85 of the
Waqf Act, 1995. As such, the suit and the appeal were
not maintainable.
(d) That though defendant No.8 claimed that he was
holding the post of Sajjadanashin from the year 1988
after the death of his grand father by virtue of custom,
at paragraph No.15 of his written statement/counter
claim has admitted that the defendant Nos.1 to 6 were
conducting the dargah festivals.
(e) That the Trial Court and the First Appellate Court
failed to appreciate that though defendant No.8 claimed
that he was appointed as Sajjadanashin on 26.02.1981,
by his grand father and father of the plaintiff who was
Sajjadanashin of Shivanasamudra as well as
Channapatna, has however made the counter claim only
when he got himself impleaded into the suit of the
44
plaintiff and filed the counter claim on 16.01.1990 which
is bared by limitation.
(f) That the trial Court and the First Appellate Court
erred in relying upon the document at Ex.D1 produced
and marked by defendant No.8 during the cross-
examination of PW.1 and both defendant No.8 and
plaintiff have denied their signatures on Ex.D1. Thus,
without proof of the said document, the trial Court and
the First Appellate Court could not have granted the
counter claim.
(g) Referring to Judgment in the case of Faqruddin Vs
Tajuddin (Supra) (2008) 8 SCC 12 at paragraph 32
he submitted that the holder of office of Sajjadanashin
must have a special qualification which the defendant
No.8 himself admitted to be an illiterate. That the trial
Court and the First Appellate Court had failed to
appreciate the admission made by the defendant No.8
that during the time of death of his grand father he was
residing at Shivanasumadra, while his grand father was
residing at Channapatna and that defendant No.8 was
45
an illiterate and did not know reading and writing and
he did not know conducting of Urs at Channapatna and
that he was not even aware of names of fakirs and
muridhs etc.
(h) That the trial Court and the First Appellate Court
erred in holding that Ex.D2 to Ex.D4 reveal that Syed
Mohammed Adil Shah Khadri was a makandar of dargah
and not Sajjadanashin. That there is no discussion of
the documents produced by the defendant Nos.1 to 3.
(i) That admittedly defendant Nos.1 to 3 are in
possession of dargah and also its keys. That neither the
plaintiff nor the defendants have sought for keys or
possession of the dargah. As such, the counter claim
without consequential reliefs was not maintainable.
(j) Since, defendant No.8 claimed his appointment was
based on customs, was required to specifically plead the
customs and to lead cogent evidence in proof of the
same and in the absence of the same could not have
decreed the counter claim. He relied upon the judgment
46
of the Apex Court in the case of ALIYA THAMMUDA
BEETHATHEBIYYAPPURA POOKOYA AND ANOTHER
VS. PATTAKAL CHERIYAKOYA AND OTHERS
reported in AIR 2020 SCC 2892 and referring to
paragraph 24 of the said Judgment submitted that
defendant No.8 could not have been appointed merely
because by virtue of he being the eldest grand son of
the father of the plaintiff without pleading and proving
the customs.
Hence sought for allowing of the appeals.
19. Submission of Sri M Syed Roohulla learned
counsel for the legal representatives of defendant No.9
reiterating the contents of written statement submitted
that;
(a) That the trial Court and first appellate court have
neither framed issue nor have appreciated the pleading
and evidence of defendant No.9.
(b) Referring paragraph 98 of the judgment of the trial
Court learned counsel pointed out that even according
to the findings of the trial Court Defendant No.8 has not
47
been functioning as Sajjadanashin and has been
residing in Bangalore and that there has been dispute
ever since his appointment as per alleged Exhibit D1. As
such a counter claim without consequential relief could
not have been granted in favour of Defendant No.8.
(c) Referring to paragraph No.105 of the judgment of
the trial Court learned counsel submitted that when
there is serious dispute with regard to signatures found
on the exhibit D1 there has been no signature
verification done in the manner known to law. Thus, the
said document has not been proved and as such the
same could not have been relied upon by the courts
below. Ex.D1 refers to Makandar and not Sajjadanashin.
No claim could have been laid based thereon.
(e) That reasons and findings given by the Trial Court
on Issue No. 11 with regard to issuance of notice under
Section 56 of Waqf Act, 1954 are contrary to the facts
and law.
48
(d) That the Trial Court and the First appellate court
had no jurisdiction to try the suit as it is the defendant
No.7-Karnataka State Board of Waqf which is competent
to appoint the Sajjadanashin to the suit dargah.
(e) He relied upon the judgment in the case Abdus
Subhan Vs. Karnataka State Board of Waqf,
Bangalore reported in 2006 SCC Online Kar. 609:
(2007) 2 Kant LJ 71: (2007) 1 AIR Kant R 425:
2007 AIHC 1329, where it is held that “in a case
involving jurisdiction of Tribunal under Waqf Act, 1995′,
a plaint can be returned at any stage of the proceedings
under Order 7 Rule 10 (1) of Code of Civil Procedure if
by virtue of a new legislation, a situation may arise
requiring the party to present the case before the Court,
which has jurisdiction over the matter”
Hence, sought for allowing of his appeal.
20. Submission of Sri Subhash Srinivas
Rangachar, learned Counsel for the defendant No.8
49
justifying the impugned Judgment and decree;
(a) Referring the judgment of the Apex Court in the
case of Sardar Khan and others Vs Syed Najmul
Hassan (Seth) and others reported in (2007) SCC
727 wherein it is held that the Waqf Act 1995 will not
be applicable to the pending suits or proceedings
commenced prior to 01.01.1996, he submitted that
present suit was filed on 28.11.1988 and written
statement and counter claim was filed by the defendant
No.8 on 15.01.1990 after impleading himself, which is,
much prior to coming into force of the Waqf Act 1995,
which is having prospective effect. That the parties were
governed by the Waqf Act 1954 and any dispute that
arose was to be resolved or adjudicated before the Civil
Court only under the provisions of the Waqf Act 1954.
(b) that since no pleading or objection with regard to
the jurisdictional issue was raised either before the Trial
Court or before the First Appellate Court, a belated plea
on jurisdiction cannot be allowed to be taken at this
50
stage of the proceedings. As such, the first substantial
question of law would not arise.
(c) He further referred to the order sheet of the Trial
Court dated 22.08.2002 and 19.12.2002 (page 57, 58
and 59 of the order sheet in OS No.92/88) to point out
the matter had indeed been transferred to the Waqf
Tribunal, Bangalore Division and thereafter sent back to
the trial Court for adjudication. That even if the trial
Court did not have jurisdiction no prejudice is caused to
the plaintiff and other defendants. In support of the
above submissions he relied upon the judgment in the
case of KONDIBA DAGADU KADAM VS. SAVITRI
BAI SOPAN GUJAR AND OTHERS reported in (1999)
3 SCC 722 wherein at paragraph No.6, it is held that;
“If the question of law termed as a substantial
question stands already decided by a larger
Bench of the High Court concerned or by the
Privy Council or by the Federal Court or by the
Supreme Court, its merely wrong application on
the facts of the case would not be termed to be a
substantial question of law. Where a point of law
has not been pleaded or is found to be arising
between the parties in the absence of any factual
format, a litigant should not be allowed to raise
that question as a substantial question of law in
second appeal. The mere appreciation of the
facts, the documentary evidence or the meaning
of entries and the contents of the document
51cannot be held to be raising a substantial
question of law. But where it is found that the
first appellate court has assumed jurisdiction
which did not vest in it, the same can be
adjudicated in the second appeal, treating it as a
substantial question of law. Where the first
appellate court is shown to have exercised its
discretion in a judicial manner, it cannot be
termed to be an error either of law or of
procedure requiring interference in second
appeal. This Court in Reserve Bank of India v.
Ramkrishna Govind Morey held that whether the
trial court should not have exercised its
jurisdiction differently is not a question of law
justifying interference”.
and the judgment in the case of RAMESH CHAND
ARDAWATIYA VS. ANIL PANJWANI reported in
(2003) 7 SCC 350 wherein at paragraph No.19 it has
been held as under:
19. …..An exclusion of jurisdiction of Civil Court is
not to be readily inferred. (See Dhulabhai etc. v.
State of Madhya Pradesh and Anr. – (1963) 3
SCR 662). An objection as to the exclusion of
Civil Court’s jurisdiction for availability of
alternative forum should be taken before the Trial
Court and at the earliest failing which the higher
Court may refuse to entertain the plea in the
absence of proof of prejudice.
(d) Referring to Section 112 of the Waqf Act 1995 he
further submitted that any action taken prior to coming
into force of the Waqf Act, 1995 is saved by virtue of
Section 6 of General Clauses Act. In this regard, he
52
relies upon the judgment in the case of Mohd. Idris
and others Vs. Sat Narain and others reported in
(1966) 3 SCR 15. wherein at paragraph No.7 of its
judgment it has been held as under;
This suit was filed on May 27, 1952 when the Abolition
Act was not on the statute book. When the Abolition
Act was passed it did not repeal the U.P. Agriculturist
Relief Act. Both the Acts, therefore, continued on the
statute book till July 12, 1953. On that date Act XVI of
1953 was passed. Section 67 of that Act repealed the
U.P. Agriculturist Relief Act. While repealing the Act it
was not stated whether the repeal was to operate
retrospectively or not but by S. 1 (2) the amending Act
itself was deemed to have come into force from the
first day of July, 1952, that is to say, simultaneously
with the Abolition Act. It may, therefore, be assumed
that the U.P. Agriculturist Relief Act was also repealed
retrospectively from July 1, 1952. The question is :
whether the right of the plaintiff to continue the suit
under the old law was in any way impaired. Section 6
of the U.P. General Clauses Act lays down the effect of
repeal and it is stated there as follows :-
6. Effect of repeal.
Where any Uttar Pradesh Act repeals any enactment
hitherto made or hereafter to be made, then, unless a
different intention appears, the repeal shall not-
(c) affect any right, privilege, obligation or liability
acquired, accrued or incurred under any enactment so
repealed; or
(e) affect any remedy, or any investigation or legal
proceeding commenced before the repealing Act shall
have come into operation in respect of any such right,
privilege, obligation, liability, penalty, forfeiture or
punishment as aforesaid; and any such remedy may
be enforced and any such investigation or legal
proceedings may be continued and concluded; and any
such penalty, forfeiture or punishment imposed as if
the repealing Act had not been passed.,’ The question
is whether a different intention appears in either the
Abolition Act or the amending Act XVI of 1953, for
otherwise the old proceeding could continue before the
Munsif. There is nothing in the Abolition Act which
takes away the right of suit in respect of a pending
action. If there be any doubt, it is removed when we
consider that the U.P. Agriculturist Relief Act was
repealed retrospectively from July 1, 1952 only and it
53
is not, therefore, possible to give the repeal further
retrospectively so as to affect a suit pending from
before that date. The jurisdiction of the Assistant
Collector was itself created from July 1, 1952 and
there is no provision in the Abolition Act that pending
cases were to stand transferred to the Assistant
Collector for disposal. Such provisions are commonly
found in a statute which takes away the jurisdiction of
one court and confers it on another. From these two
circumstances it is to be inferred that if there is at all
any expression of intention, it is to keep s. 6 of the
General Clauses Act applicable to pending litigation.
The doubt, if any be left, is further removed if we
consider a later amending Act, namely, Amending Act
XVIII of 1956. By that Act Schedule 11, which created
the jurisdiction of the Assistant Collector in suits for
ejectment of asamis was replaced by another
Schedule. The entry relating to suits for ejectment of
asamis, however, remained the same. But S. 23 of the
amending Act of 1956 created a special saving which
reads as follows “23. Saving.-
(i) Any amendment made by this Act shall not affect
the validity, invalidity, effect or consequence of
anything already done or suffered, or any right, title,
obligation or liability already acquired, accrued or
incurred or any jurisdiction already exercised, and any
proceeding instituted or commenced before any court
or authority prior to the commencement of this Act
shall, notwithstanding any amendment herein made,
continue to be heard and decided by such court or
authority.
(ii) An appeal, review or revision from any suit or
proceeding instituted or commenced before any court
or authority prior to the commencement of this Act
shall, notwithstanding any amendment herein made,
lie to the Court or authority to which it would have laid
if instituted or commenced before the said
commencement.”
(e) That the term ‘Mutawalli’ is different from the
term ‘Sajjadanashin’. That though the definition of the
term Mutawalli under the Waqf Act, 1995 includes both
the terms, Sajjadanashin is purely a spiritual office and
Waqf Board has no power to appoint Sajjadanashin.
54
(f) That there is no provision under the Waqf Act,
1995 either prescribing the qualification or the mode
and method of appointment of Sajjadanashin. It is
because, Islam does not recognize Dargah and idol
worship and that the concept of Dargah does not fall
under the five pillar of Islam.
(g) Referring the paragraph 9 of the plaint and
paragraph 9 of the written statement of the defendants
2 and 3 he submitted that there is clear admission to
the effect that office of Sajjadanashin is hereditary and
is filled only by nomination. In the instant case customs
and traditions provide only nomination to the post of the
Sajjadanashin. There is no question of application of
rule of inheritance. That the Defendant No.8 has been
appointed as Sajjadanashin by his grand father as per
Ex.D1. Sajjadanashin is required to conduct only Sandal
and Urs requiring no special qualification.
(h) That both the Trial Court and the First Appellate
Court have on appreciation of pleadings and evidence
55
have came to concurrent findings and conclusion, which
cannot be interfered with by this Court in exercise of its
jurisdiction under Section 100 of Code of Civil
Procedure. In this regard, he relied upon the judgment
in the case of KARNATAKA BOARD OF WAQF VS.
ANJUMAN-E-ISMAIL MADRIS-UN-NISWAN reported in
(1999) 6 Supreme Court Cases 343, wherein at
paragraph Nos.12, 13, 14 it has been held as under:
12. This Court had repeatedly held that the
power of the High Court to interfere in second
appeal under Section 100 CPC is limited solely to
decide a substantial question of law, if at all the
same arises in the case. It has deprecated the
practice of the High Court routinely interfering in
pure findings of fact reached by the courts below
without coming to the conclusion that the said
finding of fact is either perverse or not based on
material on record.
13. In Ramanuja Naidu v. V. Kanniah Naidu’ this
Court held: (SCC Head note)“It is now well settled that concurrent findings of
fact of trial court and first appellate court cannot
be interfered with by the High Court in exercise
of its jurisdiction under Section 100 of Civil
Procedure Code. The Single Judge of the High
Court totally misconceived his jurisdiction in
deciding the second appeal under Section 100 of
the Code in the way he did.”
14. In Navaneethammal v. Arjuna Chetty this
Court held: (SCC Head note)
“Interference with the concurrent
findings of the courts below by the High Court
under Section 100 CPC must be avoided unless
warranted by compelling reasons. In any case,
the High Court is not expected to reappreciate
56the evidence just to replace the findings of the
lower courts.
…Even assuming that another view is possible on
a re-appreciation of the same evidence, that
should not have been done by the High Court as
it cannot be said that the view taken by the first
appellate court was based no material.”
(i) That neither the plaintiff nor the other defendants had
raised the contention of defendant No.8 not pleading and
proving the customs and traditions, which is raised for
the first time in these appeals which is impermissible. He
relied upon the judgment of the Apex Court in the case
of SMT. CHANDER KALI VAI AND OTHERS VS. SHRI
JAGDISH SANGH THAKUR AND ANOTHER reported in
(1977) 4 SCC 402
(j) He further relied upon the judgment of the Hon’ble
Apex Court in the case of Govindaraju vs Mariamman
reported in (2005) SCC 500 wherein at paragraph
Nos.16 and 18;
16. As per settled law, the scope of exercise of
the jurisdiction by the High Court in Second
Appeal under Section 100 is limited to the
substantial questions of law framed at the time of
admission of the appeal or additional substantial
questions of law framed at a later date after
recording reasons for the same. It was observed
in Santosh Hazari’s case (supra) that a point of
law which admits of no two opinions may be a
proposition of law but cannot be a substantial
question of law. To be a ‘substantial’ question of
57
law must be debatable, not previously settled by
law of the land or a binding precedent and
answer to the same will have a material bearing
as to the rights of the parties before the Court.
As to what would be the question of law
“involving in the case”, it was observed that to be
a question of law ‘involving in the case’ there
must be first a foundation for it laid in the
pleadings and the question should emerge from
the sustainable findings of fact arrived at by the
court of facts and it must be necessary to decide
that question of law for a just and proper
decision between the parties.
(k) On the issue of maintainability of the counter claim in
view of proviso to Section 34 of Code of Civil Procedure,
he submitted that there is no prohibition in law to seek
only a relief of declaration. That in any case the second
prayer in the counter claim is sufficient to construe it as a
relief for injunction. He further submitted a relief sought
by the defendant No.8 does not involve any possessory
rights of the property. It is a relief in respect of legal
character/status and nothing more. In this regard he
relied upon judgment of the hon’ble Apex Court in the
case of Vemareddi Ramaraghava Reddy and others
Vs. Kondooru Seshu Reddy and others reported in
(1966) Supp SCR 270 and M/s.Supreme General
Films Exchange Ltd., Vs. His Highness Maharaja
Sri.Sir Brijnath Singhji Deo of Mahir and others
58
reported in (1975) 2 SCC 350, K.Mahadeva Shastry
Vs. Director Post Graduate Ananthpur reported in AP
LJ 1980 (2) HC DB.
Contending as above sought for dismissal of the appeals.
DISCUSSION AND ANALYSIS:
21. Heard and perused the records.
Regarding substantial question of law No.1:
Whether the Trial Court and the First Appellate Court are
justified in assuming the jurisdiction in deciding the
matter pertaining to the Office of Sajjadanashin of
DARGAH of HAZRATH AKHIL SHAH QUADRI a notified
WAQF institution, which in terms of provisions of WAQF
Act, 1995 is required to be dealt with and adjudicated by
the Karnataka State Board of WAQF-Defendant No.7 and
any decision thereof to be decided by the WAQF Tribunal
constituted under Section 83 of the WAQF Act, 1995?
22. Learned counsel for the appellants contended that
the Trial Court and the First Appellate Court had no
jurisdiction to try and adjudicate the dispute as it is the
defendant No.7-Karnataka State Board of Waqf which is
empowered under the statute to appoint or remove Mutawalli.
That since definition of Mutawalli includes the term
“Sajjadanashin”, the power of appointment and removal even
to the post of “Sajjadanashin” shall be exercised by defendant
59
No.7-Waqf Board. As such it is contended that Judgment and
decree passed by the trial Court and First Appellate Court is a
nullity.
23. Learned counsel for defendant No.8 on the contrary
submitted that since the issue of jurisdiction was neither
pleaded nor raised either before the Trial Court or before the
First Appellate Court, the same cannot be raised by the
appellants at this belated stage. That Waqf Act, 1995 neither
defines the term Sajjadanashin nor prescribes any
qualification, mode or method of appointment. In any case
the Waqf Act 1995 which is prospective in nature cannot be
made applicable to the pending proceedings. Hence, it is
vehemently submitted the substantial question of law on
jurisdiction does not arise.
24. Substantial question of law No.1 involving above
controversy is dealt with in five segments as under for the
sake of convenience;
I Whether objections with regard to jurisdiction can be
raised in a Second Appeal?
60
(a) The Apex Court in the case of Hasham Abbas
Sayyed Vs Usman Abbas Sayyed and others-
(2007) 2 SCC 355 dealing with the question of lack of
inherent jurisdiction, at paragraphs 22 and 23 has held
as under:
“22. The core question is as to whether an order
passed by a person lacking inherent jurisdiction
would be a nullity. It will be so. The principles of
estoppel, waiver and acquiescence or even res
judicata which are procedural in nature would
have no application in a case where an order has
been passed by the Tribunal/Court which has no
authority in that behalf. Any order passed by a
court without jurisdiction would be coram non
judice being a nullity, the same ordinarily should
not be given effect to. [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].
23. This aspect of the matter has recently been
considered by this Court in Harshad Chiman Lal
Modi v. DLF Universal Ltd. and Another [(2005) 7
SCC 791], in the following terms :
“30. We are unable to uphold the contention.
The jurisdiction of a court may be classified
into several categories. The important
categories are (i) Territorial or local
jurisdiction; (ii) Pecuniary jurisdiction; and
(iii) Jurisdiction over the subject matter. So
far as territorial and pecuniary jurisdictions
are concerned, objection to such jurisdiction
has to be taken at the earliest possible
opportunity and in any case at or before
settlement of issues. The law is well settled
on the point that if such objection is not
taken at the earliest, it cannot be allowed to
be taken at a subsequent stage. Jurisdiction
as to subject matter, however, is totally
distinct and stands on a different footing.
Where a court has no jurisdiction over the
subject matter of the suit by reason of any
limitation imposed by statute, charter or
commission, it cannot take up the cause or
61
matter. An order passed by a court having
no jurisdiction is nullity.”
We may, however hasten to add that a
distinction must be made between a decree
passed by a court which has no territorial or
pecuniary jurisdiction in the light of section
21 of the Code of Civil Procedure; and a
decree passed by a court having no
jurisdiction in regard to the subject matter
of the suit. Where as in the former case, the
appellate court may not interfere with the
decree unless prejudice is shown, ordinarily
the second category of the cases would be
interfered with.
(Emphasis supplied)
(b) In the case of Faqruddin (supra) relying
upon the aforesaid Judgment the Apex Court, at
paragraph 51 has held that
“A jurisdictional fact would not attract principle of
estoppel as there can be no estoppel against the
statute.”
(c) Reliance placed on by the learned counsel for the
Defendant No.8 on the Judgment of the Apex Court in
the case of Kondiba Dagadu Kadam (supra) to
contend that
“Where a point of law has not been pleaded or is found to be
arising between the parties in the absence of any factual
format a litigant should not be allowed to raise that question
as substantial question of law in the second appeal.”
(d) However the Apex Court in the very same
Judgment and in the very same paragraph No.6 has
held as under:
“But where it is found that first appellate Court has assumed
the jurisdiction which it did not vest in it, same can be
62adjudicated in the second appeal treating it as substantial
question of law.”
(e) Thus, objections that are required to be raised at
the earliest opportunity are with respect to ‘territorial’
or ‘local jurisdiction’ and ‘pecuniary jurisdiction’ and
not with regard to ‘jurisdiction over the subject
matter’. In the instant case what needs to be seen is
whether the objection to the jurisdiction raised by the
appellants is with regard to ‘jurisdiction of the trial
Court over the subject matter of the dispute’ or with
respect to ‘territorial or pecuniary jurisdiction’ if it is
with regard to the jurisdiction over the substantial
matter same can be raised in the second appeal.
II Whether the Waqf Board is exclusively authorised
under the provisions of the Waqf Act 1954 and the
Waqf Act 1995 to appoint and remove the Mutawalli?
And whether the jurisdiction of the Civil Court in this
regard is ousted?
(a) Necessary to advert to provisions of the Waqf Act,
1954 (hereinafter referred to as the ‘Act, 1954’) which was
repealed by the Waqf Act, 1995 (hereinafter referred to as the
‘Act, 1995’). The term “Sajjadanashin” has not been defined
either under Act, 1954 or under the Act, 1995. However the
said term is included in the definition of the term “Mutawalli”
as found in Section 3 (i) of both the Acts which is as under:
63
3(i)”mutawalli” means any person appointed, either
verbally or under any deed or instrument by which a waqf
has been created, or by a competent authority, to be the
mutawalli of a waqf and includes any person who is a
mutawalli of a waqf by virtue of any custom or who is a
naib-mutawalli, khandim, mujawar, sajjadanashin, amin or
other person appointed by a mutawalli to perform the
duties of a mutawalli and save as otherwise provided in
this Act, any person, committee or corporation for the time
being, managing or administering any waqf or waqf
property:
PROVIDED THAT no member of a committee or corporation
shall be deemed to be a mutawalli unless such member is
an office-bearer of such committee or corporation:
[PROVIDED FURTHER THAT the mutawalli shall be a citizen
of India and shall fulfill such other qualifications as may be
prescribed:
PROVIDED ALSO THAT in case a waqf has specified any
qualifications, such qualifications may be provided in the
rules as may be made by the State Government;]
(b) Power to appoint a Mutawalli is vested with the Waqf
Board which is incorporated as per Section 13
of the Act, 1995 (which is pari materia with Section 9 of the
Act, 1954) with the composition of members as contemplated
under Section 14 of the Act, 1994 (which is pari materia with
Section 10 of the Act, 1954).
(c) Section 32 of the Act, 1995 (which is pari materia
with Section 15 of the Act, 1954) provides for powers and
functions of the Board. Section 32(2)(g) (which is pari materia
with Section 15(2)(g) of the Act, 1954), specifically provides
64for power of the Board to appoint Mutawalli which reads as
under:
Section 32(2)
(g) to appoint and remove mutawalli in accordance
with provisions of this Act;
(d) Section 63 of the Act, 1995 (which is pari materia
with Section 42 of the Act, 1954) provides for power to
appoint Mutawallis.
“63. Power to appoint mutawallis in certain cases.-
When there is a vacancy in the office of the mutawalli of
a ¹[waqf] and there is no one to be appointed under the
terms of the deed of the [waqf], or where the right of
any person to act as mutawalli is disputed, the Board
may appoint any person to act as mutawalli for such
period and on such conditions as it may think fit”.
(e) Section 64 of the Act, 1995 (which is pari materia
with Section 43 of the Act, 1954) sets out elaborate powers
and procedure to be followed by the Board for the purpose of
removal of the Mutawalli which is as under:
64. Removal of Mutawalli – (1) Notwithstanding anything
contained in any other law or the deed of waqf, the Board
may remove a mutawalli from his office if such mutawalli–
(a) has been convicted more than once of an offence
punishable under section 61; or
(b) has been convicted of any offence of criminal
breach of trust or any other offence involving moral
turpitude, and such conviction has not been reversed
and he has not been granted full pardon with respect to
such offence; or
(c) is of unsound mind or is suffering from other mental
or physical defect or infirmity which would render him
65unfit to perform the functions and discharge the duties
of a mutawalli; or
(d) is an undischarged insolvent; or
(e) is proved to be addicted to drinking liquor or other
spirituous preparations, or is addicted to the taking of
any narcotic drugs; or
(f) is employed as paid legal practitioner on behalf of,
or against, the waqf; or
(g) has failed, without reasonable excuse, to maintain
regular accounts for two consecutive years or has failed
to submit, in two consecutive years, the yearly
statement of accounts, as required by sub-section (2)
of section 46; or (h) is interested, directly or indirectly,
in a subsisting lease in respect of any waqf property,
or in any contract made with, or any work being done
for, the waqf or is in arrears in respect of any sum due
by him to such waqf; or
(i) continuously neglects his duties or commits any
misfeasance, malfeasance, misapplication of funds or
breach of trust in relation to the waqf or in respect of
any money or other waqf property; or
(j) willfully and persistently disobeys the lawful orders
made by the Central Government, State Government,
Board under any provision of this Act or rule or order
made thereunder;
(k) misappropriates or fraudulently deals with the
property of the waqf.
(2) The removal of a person from the office of the mutawalli
shall not affect his personal rights, if any, in respect of the
waqf property either as a beneficiary or in any other
capacity or his right, if any, as a sajjadanashin.
(3) No action shall be taken by the Board under sub-section
(1), unless it has held an inquiry into the matter in a
prescribed manner and the decision has been taken by a
majority of not less than two-thirds of the members of the
Board.
(4) A mutawalli who is aggrieved by an order passed under
any of the clauses (c) to (i) of sub-section (1), may, within
one month from the date of the receipt by him of the order,
appeal against the order to the Tribunal and the decision of
the Tribunal on such appeal shall be final.
(5) Where any inquiry under sub-section (3) is proposed, or
commenced, against any mutawalli, the Board may, if it is
of opinion that it is necessary so to do in the interest of the
waqf, by an order suspend such mutawalli until the
conclusion of the inquiry: Provided that no suspension for a
66period exceeding ten days shall be made except after giving
the mutawalli a reasonable opportunity of being heard
against the proposed action.
(6) Where any appeal is filed by the mutawalli to the
Tribunal under sub-section (4), the Board may make an
application to the Tribunal for the appointment of a receiver
to manage the waqf pending the decision of the appeal, and
where such an application is made, the Tribunal shall,
notwithstanding anything contained in the Code of Civil
Procedure, 1908 (5 of 1908), appoint a suitable person as
receiver to manage the waqf and direct the receiver so
appointed to ensure that the customary or religious rights of
the mutawalli and of the waqf are safeguarded.
(7) Where a mutawalli has been removed from his office
under sub-section (1), the Board may, by order, direct the
mutawalli to deliver possession of the waqf property to the
Board or any officer duly authorised in this behalf or to any
person or committee appointed to act as the mutawalli of
the waqf property.
(8) A mutawalli of a waqf removed from his office under this
section shall not be eligible for re-appointment as a
mutawalli of that waqf for a period of five years from the
date of such removal.
(f) Section 65 of the Act, 1995 (which is pari materia
with Section 43A of the Act, 1954) provides for assumption of
direct management of certain waqf by the Board where no
suitable person is available for appointment as mutawalli of
the waqf or where the Board is satisfied that for the reasons
to be recorded by it in writing that the filling up of the
vacancy in the office of a mutawalli is prejudicial to the
interest of the waqf etc.
67
(g) Under Sections 70 and 71 of the Act, 1995 (which
is pari materia Sections 44 and 45 of the Act, 1954), the
Board is empowered to conduct inquiry into the administration
of the wakf with the power of a Civil Court as provided under
Code of Civil Procedure 1908 which are as under:
70. Inquiry relating to administration of waqf.–Any
person interested in a waqf may make an application to the
Board supported by an affidavit to institute an inquiry
relating to the administration of the waqf and if the Board is
satisfied that there are reasonable grounds for believing that
the affairs of the waqf are being mismanaged, it shall take
such action thereon as it thinks fit.
71. Manner of holding inquiry.–(1) The Board may,
either on an application received under section 2[70] or on
its own motion,– (a) hold an inquiry in such manner as may
be prescribed; or (b) authorise any person in this behalf to
hold an inquiry into any matter relating to a waqf and take
such action as it thinks fit.
(2) For the purposes of an inquiry under this section, the
Board or any person authorised by it in this behalf, shall
have the same powers as are vested in a civil court under
the Code of Civil Procedure, 1908 (5 of 1908) for enforcing
the attendance of witnesses and production of documents.
(h) It is relevant also to refer Rules 54, 55 and 56 of
the WAQF Rules, 2017 providing procedure for appointment of
Mutawallis which read as under;
54. Appointment of Muthawallies or Managing
Committees.- (1) The Board shall appoint Mutawallies or
constitute managing committees under clause (g) of sub-
section (2) of Section 32 on receipt of proposals forwarded
Management in accordance with the respective Scheme of
Management.
(2) Such committees shall initiate process of constitution
of succeeding committee as per the approved Scheme of
68
Management three months prior to the expiry of the term
of the committee and shall complete the entire process of
constitution of succeeding committee within two months
prior to expiry of the term of the committee.
(3) The District Waqf Officer of the respective district shall
supervise the process of appointment/constitution of
succeeding committee.
(4) If in the event of the existing committee fails to
initiate and complete the process for constitution of
succeeding committee within the time prescribed under
sub-rule (2) of Rule 52 of the District Waqf Officer shall
Initiate such process within two months prior to the expiry
of the term of the existing committee and complete the
process prior to the expiry of the term of the existing
committee.
(5) If for any reasons succeeding committee is not
constituted or appointed, the management and
supervision of such Waqf Institution shall automatically
vest with the concerned District Waqf Officer and the
District Waqf Officer or any other Officer authorized by the
Board shall carry out duties and functions as delegated by
the Karnataka State Board of Auqaf. He shall take action
to get the succeeding committee constituted within a
period of three months.
(6) Such committees shall cease to have any power or
authority for management of such Waqf Institution
including operation of bank accounts after expiry of the
term.
55. Appointment of Mutawalli.-
(1) While appointing the Mutawalli the Board shall have
due regard to the contents of Deeds of Waqf (waqifnama),
providing for appointment of Mutawalli custom, usage
pertaining to appointment of Hereditary Mutawallies.
(2) _____
(3) If any person appointed as Mutawalli dies, or refuses
to act in terms of the Waqfnama or is removed under this
Act, or if the office of Mutawalli otherwise becomes vacant
and there is no provision in the deed of Waqf regarding
succession to the office, the Mutawalli may be appointed
as per Rule 53.
69
(4) While appointing the Hereditary Mutawalli, the Board
shall have regard to the following; namely.-
(a) The Board shall not disregard the directions of the
waqif;
(b) The Board should not appoint a stranger so long as
there is any member of the waqif’s family in existence
qualified to hold the office; and
(c) Where there is a contest between lineal
descendants of the waqif and one who is not a lineal
descendant the Board is not bound to appoint the
lineal descendant if he is otherwise not qualified to be
appointed as Mutawalli and in such cases the Board
may in exercise of its discretion, appoint others
claimant to the Mutawalli.
56. Appointment of Mutawalli under Section 63. –
Notice regarding filling up of vacancy of Mutawalli.-
(1) Whenever there is a vacancy in the office of the
Mutawalli of a Waqf and there is no one to be appointed
under the terms of the Deed of Waqf, the Chief Executive
Officer or an Authorised Officer on his behalf shall issue a
Public Notice in Form 47 in respect of appointment of
Mutawalli.
(2) Whenever there is a vacancy in the office of the
Mutawalli of Waqf and the right of any person to act as
Mutawalli is disputed, such Notice shall be in Form 48.”
(i) Thus, from the aforesaid broad provisions of the
Act 1954 and the Act 1995 and the Rules, 2017 it is clear that
the power to appoint “Mutawallis” which includes
‘Sajjadanashin’ is vested with the defendant No.7-Karnataka
State Board of Waqf and the rules framed thereunder lays
down elaborate procedure for said purpose.
70
(j) It is a trite law that a statute may expressly exclude
the Jurisdiction of Civil Court in respect of certain matters
which otherwise are within its jurisdiction. An implied ouster
may have to be inferred from the scheme of the statute where
even without any express provision the jurisdiction of the civil
court has been excluded. Intention of legislature to vest
exclusive powers of appointment as well as removal of
mutawalli with Waqf Board is discernible. In that, it is the
Waqf Board which is vested with the statutory powers to
manage, supervise, control and administrate all affairs of
Waqf institutions and their properties coming within its
jurisdiction. The term “Waqf” as defined under section 3(r) of
the Act 1995 means the permanent dedication by any person,
of any movable or immovable property for any purpose
recognised by Muslim Law as pious, religious, or charitable
and includes waqfs, grants and properties mentioned
thereunder. Invariably it includes Dargah and its properties as
well. Status of Mutawalli qua the Waqf is akin to a Trustee.
The Mutawalli is made directly answerable and accountable to
the Waqf Board.
71
(k) The entire Chapter VI of the Act 1995 consisting of
Sections 44 to 71 which includes Sections 63 and 64 as seen
above, providing powers to Board to appoint and remove the
Mutawallis under the circumstances envisaged thereunder,
(which is pari materia to Chapter V of the Waqf Act, 1954
consisting of Sections 31 to 45 )deals with various duties and
responsibilities of the Mutawalli of a Waqf institution and
being made accountable to the Board also provide for
penalties and consequences for his failures in discharging his
duties. Further as noted above Sections 70 and 71 falling
under the same chapter cloth the Board with quasi judicial
powers of holding inquiry into the administration of the Waqf
with powers of a Civil Court under the Code of Civil Procedure
1908 for the purposes contemplated thereunder. In that sense
it is a complete code in itself. This is an ongoing process. No
Mutawalli or even Sajjadanashin can claim right to hold the
office eternally, even if he is found to be unfit or incapable or
his continuance as such is found to be detriment to the
interest of Waqf institution concerned. This power is therefore
exclusively vested with the Waqf Board which under the
statute requires to keep vigil on the affairs of the Waqf
72
institutions. Considering the diverse issues envisaged under
chapter VI of the Act 1995 that may arise periodically in
respect of affairs of a given Waqf and its nature it is the Waqf
Board under the statute with its composition as provided
under section 14 is Competent Authority to deal with the
subject. Order if any that may be passed by the Waqf Board
on this subject is made amenable for challenge before Waqf
Tribunal by filing application as provided thereunder.
(l) Another aspect of the matter is that even if a person
obtains as declaration with regard to his claim to the Office of
Mutawalli or Sajjadanashin as the case may be from a Civil
Court as an alternate forum, such declaration of his status
cannot eternally bind either the Waqf institution in respect of
which such declaration is obtained or the Waqf Board which is
vested with powers and duties of supervision, control,
management and administration of waqf institutions,
inasmuch as the office of the Mutawalli or the Sajjadanashin is
susceptible of periodical changes and alterations depending
upon various factors as envisaged under Chapter VI of the
Waqf Act 1995.
73
(m) Thus the jurisdiction of the Civil Court and for that
matter even the jurisdiction of the Waqf tribunal constituted
under section 83 the Act 1995 is impliedly ousted by the
statute as far as the `subject matter’ pertaining to the
appointment and removal of Mutawalli, which includes
Sajjadanashin, is concerned. Consequently reliance placed on
by the learned counsel for defendant No.8 on the judgment in
the case of Ramesh Chand (Supra) is of no avail.
III Whether Judgment and Decree passed by the
Trial Court and the First Appellate Court is without
jurisdiction and hence a nullity?
(a) Apex Court in the case of S.V.CHERIYAKOYA
THAGAL VS. S.V.P. POOKOYA AND OTHERS in Civil
Appeal No.4629/2024 (SLP. (civil) No.3182/2019) has
held that appointment of Mutawallis which includes
Sajjadanashin is wholly within the jurisdiction of the WAQF
Board. The said order is extracted hereunder for immediate
perusal.
“Leave granted.
This case has got a chequered history. The lis which started in
the year 1987 in the form of a Civil Suit O.S. No.5/1987 on the
file of Munsif Court, Androth, still continues in one form or
74another. After the completion of the earlier round of litigation,
the present lis was started at the instance of the appellant,
duly followed by the respondents. Before the Waqf Board, both
the parties claimed their respective rights to Mutawalliship and
Sheikhship. By an elaborate order the Waqf Board held in
favour of the appellant declaring him as a Mutawalli. Being
aggrieved, respondents filed an application by invoking Section
83 of the Waqf Act, 1995 before the Waqf Tribunal. The waqf
Tribunal, after affording opportunities to both the sides, inter
alia, held that there is no perversity in the decision rendered
by the Waqf Board.
A plea was also taken both before the Waqf Board and the
Waqf Tribunal, on the question of jurisdiction. It was
contended by the respondents that it is the Waqf Tribunal
which has got the original jurisdiction to decide the issue
pertaining to Mutawalliship and, therefore, the Waqf Board did
not have the jurisdiction. On a revision being filed, the High
Court was pleased to set aside the judgment and decree of the
Waqf Tribunal inter alia holding that the Waqf Board did not
have the jurisdiction and, therefore, the matter has to be
decided afresh only by the Waqf Tribunal. Challenging the said
decision, the present appeal is filed before us.
Though arguments have been made at length, we are
inclined to hold that the impugned order cannot be
sustained in the eyes of law as the Waqf Board has
rightly exercised the jurisdiction in exercise of power
conferred under Section 32(2)(g) read with the
definition under Section 3(i) which defines a ‘Mutawalli’.
We have also perused Section 83 sub-Sections (5) and
(7) of the Act which deals with the powers of the
Tribunal. The Waqf Tribunal is deemed to be a civil court
having the same powers that can be exercised by the
civil court under the Code of Civil Procedure, 1908. In
other words, a dispute can be tried like a suit by the
Waqf Tribunal. Under sub-section (7) of Section 83 of
the Waqf Act, the decision of the Tribunal shall be final
and binding upon the parties and it shall have force of a
decree made by a civil court. The word ‘competent
authority’ as mentioned in the definition clause
contained in Section 3(i) makes the position further
clear that it is the Waqf Board which has got the
jurisdiction and not the Waqf Tribunal. After all, the
Waqf Tribunal is only an adjudicating authority over a
dispute while the Waqf Board is expected to deal with
any issue pertaining to administration.
The power of superintendence cannot be confined to
routine affairs of a Waqf but it includes a situation where a
75
dispute arises while managing the property and that would
certainly include a right of a person to be a Mutawalli after all,
it is the Mutawalli who does the job of administering and
managing the Waqf. In such view of the matter, we are of the
view that the impugned order cannot be sustained in
relegating the matter to an adjudicating authority by treating
it as a competent authority, which is none other than the Waqf
Board. However, in the case on hand, the High Court did not
go into the merits of the case. In such view of the matter,
while setting aside the impugned order, we are remitting the
matter to the High Court to decide the revision on merits, in
accordance with law except the issue of jurisdiction as decided
by us in this appeal. We request the High Court to expedite
the hearing and make an endeavour to dispose it of as early as
possible in view of the fact that the revision is of the year 2015
and the dispute is pending from the year 1987 onwards. The
appeal accordingly stands allowed. All issues are left open to
be decided by the High Court. Pending application(s), if any,
stand disposed of. ”
(Emphasis supplied)
(b) One other submission made by the learned counsel
for defendant No.8 that upon the constitution of Waqf
Tribunal, matter was transferred from the Trial Court to the
Tribunal and the matter was thereafter again sent back to the
Trial Court. Reference in this regard is made to the order
sheet of the Trial Court dated 22.08.2002 and 19.12.2002. It
is necessary note, except the noting in the order sheet, there
is no order with regard to any adjudication/determination on
the question of jurisdiction. The learned counsel for the
defendant No.8 has not placed any material in this regard
except pointing out to the order sheet. As such, the notings in
76the said order sheet would not be an impediment in raising
the issue of jurisdiction in this appeal.
(c) Useful in this regard to refer to the judgement of the
Apex Court in the case of Kiran Singh and others V.
Chaman Paswan and others reported in AIR 1954 SC 340
wherein dealing with decree passed without jurisdiction is
nullity at Paragraph 6 has held as under;
“6. The answer to these contentions must depend on
what the position in law is when a Court entertain a suit
or an appeal over which it has no jurisdiction, and what
the effect of Section 11 of the Suit Valuation Act is on
that position. It is a fundamental principle well-
established that a decree passed by a Court without
jurisdiction is a nullity, and that its invalidity could be
set up whenever and wherever it is sought to be
enforced or relied upon, even at the stage of execution
and even in collateral proceedings. A defect of
jurisdiction, whether it is pecuniary or territorial, or
whether it is in respect of the subject-matter of the
action, strikes at the very authority of the Court to pose
any decree, and such a defect cannot be cured even by
consent of parties. If the question now under
consideration fell to be determined only on the
application of general principles governing the matter,
there can be no doubt that the District Court of Monghyr
was coram non judice, and that its judgment and decree
would be nullities. The question is what is the effect of
Section 11 of the Suits Valuation Act on this position.”
(d) Following the aforesaid judgment the Apex Court in
the case of Sushil Kumar Mehta V. Gobind Ram Bohra
(dead) through his Lrs. reported in (1990)1 SCC 193
77
dealing with the defect of jurisdiction paragraphs 8, 9 and 10
has held as under ;
8. This statement of law was approved not only by the
House of Lords in several cases, but also by this Court
in Premier Automobiles Ltd., v. K.S. Wadke, where this
Court was called upon to consider whether the Civil Court
can decide a dispute squarely coming within the
provisions of the Industrial Disputes Act. While
considering that question, this Court laid down four
propositions and third of them is relevant for
consideration here. It is as follows: (SCC pp.513-14,
para 23)
“(3) If the industrial dispute relates to the
enforcement of a right or an obligation
created under the Act, then the only remedy
available to the suitor is to get an
adjudication under the Act.”
9. Thus on construction of relevant provisions of the Act
and in the light of the position in law it must be held that
the provisions of Section 13 of the Act applies to the
building leased out to the appellant by the landlord and
the Controller was the competent authority to pass a
decree of ejectment against the appellant and the Civil
Court lacked inherent jurisdiction to take cognizance of
the cause and to pass a decree of ejectment therein. The
next question is whether the impugned decree is a nullity
and whether the plea can be raised in execution and
further whether the decree in the suit does not operate
as res judicata.
10. In Kiran Singh & Ors. v. Chaman Paswan, the facts
were that the appellant had undervalued the suit at
Rs.2,950 and laid it in the Court of the Subordinate
Judge, Monghyr for recovery of possession of the suit
lands and mesne profits. The suit was dismissed and on
appeal it was confirmed. In the second appeal in the
High Court the Registry raised the objection as to
valuation under Section 11. The value of the appeal was
fixed at Rs.9,980. A contention then was raised by the
plaintiff in the High Court that on account of the
valuation fixed by the High Court the appeal against the
decree of the court of the Subordinate Judge did not lie
78
to the District Court, but to the High Court and on that
account the decree of the District Court was a nullity.
Alternatively, it was contended that it caused prejudice
to the appellant. In considering that contention at page
121, a four Judge Bench of this Court speaking through
Venkatarama Ayyar, J. held that: (SCR p.121)
“It is a fundamental principle well-established that a
decree passed by a Court without jurisdiction is a nullity,
and that its invalidity could be set up whenever and
wherever it is sought to be enforced or relied upon, even
at the stage of execution and even in collateral
proceedings. A defect of jurisdiction, whether it is
pecuniary or territorial, or whether it is in respect of the
subject matter of the action, strikes at the every
authority of the Court to pass any decree, and such a
defect cannot be cured even by consent of parties. If the
question now under consideration fell to be determined
only on the application of general principles governing
the matter, there can be no doubt that the District Court
of Monghyr was coram non judice, and that its judgment
and decree would be nullities.”
IV Whether the office of Mutawalli and Sajjadanashin
are one and the same? Whether the Act prescribes any
qualification for their appointment?
(a) The learned Counsel for the Defendant No.8
contended that office of Sajjadanashin is different from the
office of Mutawalli and that merely because there is a
reference to the term to the Sajjadanashin in the definition of
the term Mutawalli, same cannot be equated to the office of
Mutawalli and that the Act, 1995 does not prescribe any
qualification, mode or method of appointment of the person
who claims his right to the Office of Sajjadanashin because
79
Islam does not recognize Dargah and idol worship and that
the concept of Dargah does not fall under five pillars of Islam.
The said submissions are adverted to hereunder with
reference to the Act, Rules and commentaries on the subject.
(b) “Sajjadanashin” is a terminology in Sufism which
means one who sits on the “Sajjada” or “Musalla” a prayer
carpet or prayer mat. He is the Spiritual Head and Spiritual
Preceptor who conducts and carries forward the mission of his
Spiritual Master called Pir or Shaykh at his Shrine or Khanqah
discharging religious, spiritual and customary ceremonies
besides presiding over religious and spiritual congregations.
Though the term “Sajjadanashin” has not been specifically
defined either under the Act 1954 or under the Act 1995,
same finds mention under the Karnataka Waqf Rules, 2017
which reads as under;
“Sajjada Nasheen” means a spiritual superior of a
Dargah and in charge of spiritual affairs of such
Dargah.
(c) Appropriate to refer to the terms “Khanqah”,
“Sajjadanashin” and “Dargah” as explained by Asaf A A Fyzee
80in his “Outlines of Mahomedan Law” IV Edn., at page 325,
which is as under:
A “Khanqah” (Persian, Carvanserai) is a Muslim
Monastery or a religious institution where Dervishes and
other seekers of truth congregate for religious
instructions and devotional exercise. It is a muslim
institution analgous in many respects to a math where
religious instructions given according to Hindu faith. A
“Khanqah” is founded by a Holy man in the place where
his esoteric teaching acquires a certain fame and
sanctity. After his death if he is buried there, as often
happens the place may be also called his “takia” abode
or resting place.
The religious head of a khanqah is called a
Sajjadanashin (literally, one who sits at the head of
prayer-carpet). He is essentially a spiritual preceptor;
he may – and generally is – the mutawalli of Waqf
property, thus, the secular office of a mutawalli must be
distinguished from the spiritual status of Sajjadanashin.
The special feature of the office of a
Sajjadanashin is that the original founder has the right
to nominate his successor, who, in turn, enjoys the
same right. Thus a chain of preceptors (called a silsila)
comes into being, and the followers, known as murids
pay homage not only to the founder but also to the
whole line, including the present link, called Pir murshid.
Theoretically the most illustrious disciple is to be
installed as heir-apparent, but, according to custom, in
the majority of cases the office becomes hereditary. In
one case the Sajjadanashin was found to be so
worthless that he was removed from the mutawalliship,
but was allowed to retain the spiritual office
(Sajjadanashin) which was considered to be hereditary.”
(See Syed Shah Muhammad Kazim v. Syed Abi Saghir
I.L.R.(1931) Pat. 288 ; Ghulam Mohammad v. Abdul
Rashid I.L.R.(1933) Lah. 558 and Mohamed Oosman v.
Essaq Salemahomed ILR (1938) Bom. 184).
The word Dargah, in Persian and Urdu, means a
threshold. In India it is a term applied to a Shrine or
the Tomb of a Muslim Saint and is therefore a place of
resort and prayer.
81
(d) Syed Ameer Ali in his “Mahommedan Law,” Vol. 1,
pages 443, 444, states:
`Sajjada’ is the carpet on which prayers are offered.
The Sajjadanashin is not only a Mutawalli but also a
spiritual preceptor. He is the curator of the Dharga
where his ancestor lies buried, and in him is
supposed to continue the spiritual line Silsila. These
Dhargas are the tombs of celebrated dervishes,
who, in their lifetime, were regarded as saints.
Some of these men had established Khankahs
where they lived, and their disciples congregated.
Many of them never rose to the importance of a
Khankah, and when they died their mausoleum
become shrines or Dhargas. These dervishes
professed esoteric doctrines and distinct systems of
initiation. They were either Sufis or the disciples of
Mian Roushan Bayezid, who flourished about the
time of Akbar and who had founded an ‘
independent esoteric brotherhood,’ in which the
chief occupied a peculiarly distinctive position. They
called themselves Fakirs on the hypothesis that they
had abjured the world, and were humble servitors,
of God; but their followers were honoured with the
title of Shah or king.
Herklot gives a detailed account of the
different brotherhoods and the rules of initiation in
force among them. The preceptor is called the Pir-
the disciple, the Murid. On the death of the Pir his
successor assumes the privilege of initiating the
disciples into the mysteries of Dervishism or Sufism.
The relationship which exists between a Pir and his
Murids, as I understand the theory and practice of
Dervishim, was a spiritual and personal one.
82
(e) Mulla in his Principles of “Mohomedan Law” (13th
Edition) at page 204, has given the following description of
the term “Sajjadanashin”:
The status of Sajjadanashin is higher than that of a
mutawalli. He is the head of the institution and has
a right to exercise supervision over the mutawalli’s
management. But the Sajjadanashin may also be a
mutawalli and in that case, with reference to the
Waqf property he is in no better position than a
mutawalli. He has no power to borrow money for
the purpose of carrying out the objects of the trust
but he may like a mutawalli borrow money and
incur debt, with the sanction of the Court, for the
preservation of the Waqf property. The Court may
remove a Sajjadanashin for misconduct and when
framing a scheme may separate the offices of
Sajjadanashin and mutawalli.
(f) Saksena in his “Muslim Law as Administered in India
and Pakistan” (Third Edition) defines the rights and powers of
a Sajjadanashin, at page 545, as follows:
A person may hold both the offices of a
mutawalli and a Sajjadanashin, but the Court in
framing the scheme u/s 92 of the CPC may separate
the two offices. He should give all facilities to the
devotees to perform their spiritual rites at the shrine
at all reasonable hours. An new Sajjadanashin
cannot be appointed by the Court, nor can he be
ordered to furnish accounts. An injunction cannot be
issued restraining him from alienating the property.
He has full power of disposition over the income of
the waqf property, unless he spends money in
Wicked living or on objects alien to his office. But it
does not mean that the whole usufruct of a khankah
is at his disposal. The costs of religious ceremonies,
etc., must be defrayed first. At some shrines, the
83members of the founder’s family also, other than
the Sajjadanashin, can share the surplus offerings
which remain after payment of expenses. It is the
duty of a Sajjadanashin to maintain accounts to
show that he was rightly and properly spending
money of the way/property upon expenses in
connection with the object of the waqf. It is the duty
of the Sajjadanashin to apply the income of the
waqf properties for the purposes of endowment. He
has ordinarily full powers of disposition over any
surplus income. In the exercise of that power he
may, and no doubt it is very desirable that he
should, provide for the needs of indigent members
of the family. It may even be said that he is under
amoral obligation to do so. But legally the
disposition of the money is in his hands, subject to
the terms of grants under which the property is held
and to any proved custom of the institution.
Mohammed Noor, J., of the Patna High Court has
held that provision for a Sajjadanashin is not a
provision for the man but for the institution. A
khankah cannot exist and continue without a
Sajjadanashin. In other systems, the personal
expenditure of the head of such an institution has
been curtailed to almost nothing by enjoining
celibacy, as for instance, in the case of Christian
monasteries or Hindu mutts or sangats. But Islam
prohibits celibacy, and a saint with family is the rule
rather than an exception. In these circumstances,
devotees and adherents of khankahs have always
made provisions for maintenance of the
Sajjadanashin and his family, so that he may devote
all his time to imparting religious and spiritual
instructions to his disciples and be free from secular
cares. A Sajjadanashin is an integral part of the
institution and the central figure so to speak
therein. Its existence depends on his personality..
In him is supposed to continue the spiritual line.
Therefore, provision for his maintenance and that of
his descendants is a provision for him as the head of
the institution. It is a trust and not a personal grant.
84
“Khawja Muhammad v. Hamid AIR 1928 Lah. 778;
Vidya Varuthi v. Baluswam (1922) 41 M.L.J. 346 :
ILR Mad. 831 : 48 I.A. 302 : AIR 1922 P.C. 123 ;
AIR 1922 384 (Privy Council) ; Zooleka Bibi v.
Abdein 6 Bom. L.R. 1058 ; Saiyad Jaffar El Edroos
Vs. Saiyad Mahomed El Edroos.
(g) Since the office of Sajjadanashin as seen above is to
be held and occupied by person considered to be spiritually
superior and would be in charge of spiritual affairs, which falls
within the realm of Islamic spirituality, it is appropriate to
have a glimpse on the concept of Islamic spirituality to the
extent relevant for the purpose of this case as under:
(i) Origin of this concept is traceable to verse No.13 of
Sura Hujarat, Chapter 49 – of Holy Quran which states:
”O mankind, We have created you from a
male and a female, and made you into
races and tribes, so that you may identify
one and another. Surely the noblest of
you, in the Allah’s sight, is the one who is
most pious of you. Surely Allah is All-
Knowing, All-Aware.”
(ii) Useful to refer to the preface to ‘The Book of
Wisdoms (Kitab Al-Hikam)’, A collection of Sufi
Aphorisms by Shaykh Ibn `Ata’illah al-Iskandari,
Translated by Victor Danner with the
commentary Ikmail al-Shiyam by Shaykh
`Abdullah Gangohi’ published by White Thread
Press, White Thread Limited, London, UK, few
excerpts of which are as under;
85
The discipline of Islamic spirituality has – as
pointed by Mufti Taqi Usmani (b.1362/1943) – a
variety of titles in Arabic, such as ihsan
(performing good deeds), tariqa (the Path), suluk
(Good Manners) and tasawwuf (often translated
as sufism). The most popular English title for
Islamic spirituality is sufism, with the practitioner
of sufism being called a sufi – the later
corresponding to its Arabic equivalent. …..
Tasawwuf, strictly speaking, is now method of
the Orders (turuq, sing. tariqa) and their Masters
(simply called shyukh, sing. shaykh). Some of
the most famous Orders are the Naqhsbandi,
Chishti, Qadiri, and Shadhili. Although tasawwuf
is, in addition, used more generally by some non-
Order scholars to simply denote the spiritual
teaching of Qur’an and Sunna, or “way” of the
Prophet Muhammad (PBUH).
Ibn Khaldun who linked tasawwuf to the
Companions of the Prophet (PBUH), and he
provided a very basic definition of tasawwuf:
“The basis of the spiritual path is
dedication to worship, devotion to Allah
Most High, turning away from the
adornment and ornamentations of this
worldly life, renunciation of what most
people crave of pleasure, wealth and
prestige, limiting one’s interaction with the
creation and being free for worship”.
Imam Ahamed Sirhindi,(d.1624) a Master of
Naqhsbandi Order wrote;
“After one has acquired right beliefs
(which refers to orthodox Islamic theology,
or tenets of faith, known in Arabic as
`Aqida Ahl Al – Sunna Wa’l-Jama’a’) and
subject oneself to the rules of Shari’a, one
should if God so wills, enter the path of
Sufis”.
86
More over, Junayd-al-Baghdadi(d.297/910) one
of the foremost sufis of all time and a jurist of
Imam Abu Thawr’s school of jurisprudence said;
“Whoever has not memorized the Noble
Qur’an or recorded the Hadith is not to be
taken as a guide in this affair because this
knowledge of ours is tied (muqayyad) to
the Book [of God] and Sunna.”
If tasawwuf is thus connected to the Sacred Law
and theology of Islam – as both Sirhindi and
Junayd al -Baghdadi have mentioned then it
naturally follows that the discipline, in essence, is
part of Prophetic inheritance; hence it has always
been the part of message of Islam.
(h) The aforesaid commentaries and exegesis on the
subject of Sajjadanashin makes it clear that the both the
office of Mutawalli and of the Sajjadanashin can be held by a
single person. Office of Sajjadanashin however carries with it
higher and greater status in Islamic spirituality. There is no
idol worship. That unless a person claiming to be appointed to
the said office acquires and possesses such qualification and
status in Islamic Spirituality, his appointment to the said post
is not justified merely because he happens to be the eldest
member in the male lineal descendancy. This is not a claim
for personal rights of an individual in respect of any estate or
propitiatory assets of the deceased restricted to personal use
and benefit of the claimant. This is an office requiring
87
qualification, experience, recognition, following and adherence
by many of those believe in the concept of Islamic spirituality
of a particular Order and discipline at large and requires
further teaching, preaching and propagating the same. It is
in the interest of the institution that person claiming to the
office of Sajjadanashin should be the one deserving for and
qualified in all parameters as broadly noted above, needs to
be appointed.
(j) In the case of Faqruddin (dead) through Lrs Vs
Tajuddin (dead) through Lrs (supra) the Apex Court while
dealing with the mode of succession to the office of Mutawalli
also examined the office of Mutawalli vis-à-vis Sajjadanashin
at paragraphs 29, 34, 36 and 46 has held as under:
29. Sajjadanashin is a spiritual office. Mutawalli is
a manager of secular properties. Both of them are
connected with a dargah or a Waqf. Matmi, however, is a
process of mutation carried out in the revenue register in
terms of the Matmi Rules.
34. The law of inheritance amongst the
Mohammedans is governed by their personal laws.
If the properties are Waqf properties, the offices of
sajjadanashin and mutawalli are to be filled up in
accordance with the law or the custom. If the
properties are heritable, those who are the
“Quranic Heirs” would be entitled to hold the said
posts. Indisputably, the law of primogeniture has
no application amongst the Mohammedans vis-à-
vis their law of inheritance.
88
36. It is beyond any doubt or dispute that a
mutawalli is the temporal head. He is the manager
of the property. Office of sajjadanashin, however,
is a spiritual office. It has to be held by a wise
person. He must be fit for holding the office.
46. Inheritance or succession to a property is
governed by statutory law. Inheritance of an office
may not be governed by law of inheritance; but,
the office of sajjadanashin is not an ordinary
office. A person must possess the requisite
qualifications to hold the said office.
(Emphasis supplied)
(l) Thus from the above, it is clear that claim to the
office of Sajjadanashin can neither be made as a matter of
right, nor on the rule primogeniture. It is purely on the basis
of merit, qualification, experience, recognition, adherence and
followings. The Qualifications are implicit under the scheme
of the Act 1954 as well as Act 1995. Necessary also to note
neither the Act, 1954 nor the Act, 1995 make any distinction
between the term ‘Mutawalli’ and ‘Sajjadanashin’. This is
because a person may hold both the Offices. Therefore the
contentions of the learned counsel for defendant No.8 that the
Act, 1994 does not provide for the appointment of
Sajjadanashin and that therefore the same requires to be
adjudicated by the civil court cannot be accepted.
89
V Whether the Waqf Act 1995 is applicable to the
pending proceedings of this nature which were
initiated under the repealed Act 1954?
(a) Relying upon the Judgment of the Apex Court in the
case of Sardar Khan and others (supra) as well as
Mohammed Idris and others (supra) the learned counsel
for defendant No.8 submitted that since the suit was
instituted in the year 1988 much prior to coming into force of
the Act 1995 the provisions of the new Act cannot be made
applicable to the pending proceeding and that actions taken
under the repealed Act, 1954 are saved by virtue of Section
112 of the Act, 1995.
(b) Necessary to note that in the case of Sardar Khan
and others the issue that was dealt with was with regard to
exclusivity of jurisdiction of the Waqf Tribunal in respect of
dispute relating to ‘Waqf property’ and inapplicability of the
provisions of the Act, 1995 to the pending proceedings that
were initiated prior to its coming into force and in respect of
appeal filed against such decree that was passed after its
coming into force. It was pertaining to interse jurisdiction of
the Waqf Tribunal and the Civil Court and reference to the
90
provisions of Sections 6 and 7 of the Act, 1995 and there was
no issue either with regard to claim to the ‘office of
Sajjadanashin’ or with regard to exclusive ‘power of the Waqf
Board’ in dealing with the same.
(c) The Judgment in the case of Mohammed Idris and
others (supra) deals with the effect of Section 6 of the
General Clauses Act which has no application to the instant
case. Submission of learned counsel for the defendant No.8
referring to Section 6 of the General Clauses Act, that the
suit in the instant case having been instituted prior to coming
into force of the Waqf Act, 1995 before the Civil Court is
saved as the said Act is given prospective effect, is of no avail
inasmuch as even under the Act, 1954 as noted above power
to appoint Mutawalli was granted/vested exclusively with the
Waqf Board, which power continued to vest with the Waqf
Board even under the Act 1995 as well. Also necessary to
note that even when the suit was filed in the year 1988, it
could not have been entertained, in view of provision
contained under Sections 15(2)(g) and 42 of the Act, 1954
which continued in terms of Sections 32(2)(g) and 63 of the
91
Act, 1995. Thus there was no any change due to repeal of
the Act, 1954.
(d) Applicability and intent of Section 6 of General
Clauses Act is succinctly expressed by the Apex Court in the
case of Kolhapur Canesugar Works Ltd., and anr Vs
Union of India and others reported in AIR 2000 SC 811
wherein at paragraph 38 the Apex Court has held as under:
“38. The position is well-known that at common law,
the normal effect of repealing a statute or deleting a
provision is to obliterate it from the statute book as
completely as if it had never been passed, and the
statue must be considered as a law that never existed.
To this Rule, an exception is engrafted by the
provisions of Section 6(1). If a provision of a statute is
unconditionally omitted without a saving clause in
favour of pending proceedings, all actions must stop
where the omission finds them, and if final relief has
not been granted before the omission goes into effect,
it cannot be granted afterwards. Savings of the nature
contained in Section 6 or in special Acts may modify
the position. Thus the operation of repeal or deletion
as to the future and past largely depends on the
savings applicable. In a case where a particular
provision in a statue is omitted and in its place another
provision dealing with the same contingency is
introduced without a saving clause in favour of pending
proceedings then it can be reasonably inferred that the
intention of the Legislature is that the pending
proceeding shall not continue but a fresh proceeding
for the same purpose may be initiated under the new
provision.”
92
(e) Thus, there exists no circumstances or the
requirement to have recourse to the provisions of Section 6 of
the General Clauses Act to the facts and circumstances of the
case involved in the case at hand. Thus, the repeal of the Act
1954 did not alter the position. It is not the case of taking
away any vested right or creating any new right by the
repealing Act to be made applicable prospectively. Therefore,
arguments advanced by learned counsel for defendant No.8 to
contend that the Act 1995 has no retrospective application
cannot be countenanced.
25. Conclusion: From the above discussion and analysis the
substantial question of law No.1 is answered as under:
(a) Exclusion of jurisdiction of a Court as to the
`Subject Matter’ of the dispute by reason of limitation
imposed by a statute can be raised at any stage of the
proceedings and the principles of estoppel, waiver and
acquiescence have no application;
(b) In light of the scheme of the Act, 1954 as well as
the Act 1995 and provisions contained under section
32(2)(g) and under chapter VI of the Act 1995 (which
are pari materia with Section 15(2)(g) and Chapter V
of the Act, 1954) jurisdiction of the Civil Court and
93even the jurisdiction of the Waqf Tribunal is impliedly
ousted and is vested with the Waqf Board so far as
the subject matter pertaining to the appointment and
removal of mutawalli, which includes Sajjadanashin, is
concerned.
(c) The office of Mutawalli is temporal in nature and
office of Sajjadanashin is spiritual in nature. Both the
offices can be held by a single person. Office of
Sajjadanashin however carries with it higher and
greater spiritual status and the qualification to hold
and occupy the said office is implicit to nature of the
office, as such Waqf Board being the Competent
Authority is empowered to deal with the same;
(d) Provisions of the Act 1995 are applicable even to
the pending proceedings concerning the dispute with
regard to the appointment and removal of the
Mutawalli and Sajjadanashin which were initiated
under the repealed Act 1954. The Trial Court and the
First Appellate Court were therefore not justified in
assuming the jurisdiction and deciding the matter
pertaining to the Office of Sajjadanashin of Suit
Dargah and same is required to be dealt with and
adjudicated by the Karnataka State Board of Waqf-
Defendant No.7.
(e) That the trial Court and First Appellate Court
had no jurisdiction to entertain the suit and
94
adjudicate the dispute, the decree passed therefore
is held as one without jurisdiction and a nullity.
(f) Resultant, parties are at liberty to approach the
respondent No.7 -The Karnataka State Board for
Waqf staking their claim for appointment to the post
of Sajjadanashin of the suit dargah. In that view of
the matter, there is no necessity of adverting to other
substantial questions of law formulated above.
Consequently, the following:
ORDER
Appeals are allowed.
I. Judgment and decree dated 20.12.2019 passed in
O.S.No.92/1988 on the file of Additional Civil Judge
and JMFC, Channapatna and Judgment and order
dated 27.02.2023 passed in R.A.No.7/2020,
R.A.No.8/2020, R.A.No.16/2020 and R.A.No.19/2020
on the file of Senior Civil Judge and JMFC,
Channapatna are set aside as the same suffer from
lack of jurisdiction and consequently all findings are
also set aside without going into the merits of claims
made by the parties.
II. It is open for the parties to approach respondent
No.7- The Karnataka State Board for Waqf to seek
95such relief/remedy as may be available under the
provisions of law referred to hereinabove.
III. The respondent No.7- The Karnataka State
Board of Waqf shall in such an event provide
sufficient opportunity to the parties to justify and
establish their claim to the office of Sajjadanashin of
the suit Dargah and shall pass appropriate orders
keeping in view the observations with regard to the
office of Sajjadanashin as made hereinabove.
Sd/-
(M.G.S. KAMAL)
JUDGESBN/RU