# SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND OTHERS

- **Citation:** [2023] 6 S.C.R. 930
- **Court:** Supreme Court of India
- **Decided:** 2023-04-13
- **Case number:** Civil Appeal Nos. 7086-7087 of 2009
- **Bench:** K. M. Joseph, Hrishikesh Roy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/sabir-ali-khan-v-syed-mohd-ahmad-ali-khan-and-others-37223
- **Pages:** 62

## Headnote

Waqf Act, 1995:
Wakf properties, of parties who are Shia Muslims -
Beneficiaries and their rights - Beneficiaries perfecting title by
adverse possession - Permissibility of - Held: A beneficiary of a
waqf, being neither a trustee nor a co-owner of waqf property, can
acquire title through adverse possession even if it is the property of
the waqf - There cannot be any embargo against a beneficiary of a
waqf claiming acquisition of title by adverse possession - Beneficiary
of a waqf cannot be described as a stranger to the waqf - No doubt,
a beneficiary is not to be conflated in his position with a Mutawalli,
who is a manager of the waqf - Property of the waqf, in law vests
in the almighty - For the purposes of s. 10 of the Limitation Act, he
is treated as a trustee - Beneficiary would be entitled to receive
benefits in terms of the waqf deed - In the case of adverse possession,
since a requirement is that the possession must be hostile to the real
owner and since the real owner is the almighty, the requirement
would be that such a person must have the necessary animus to
hold contrary to the title of God - In the case of a co-owner while
mere assertion of title in himself may hardly suffice as the possession
of a co- owner is taken to be possession on behalf of all co-owners
a case of ouster being successfully established would entitle the
co-owner to succeed - Beneficiary of a waqf is endowed with rights
in terms of the waqf deed - No duty is culled out, as such, to protect
the interest of another.
ss. 52(2) and 107 - Recovery of wakf property transferred in
contravention of s. 51 - Waqf created by one shia muslim, by a
deed in the year 1934 - Original Waqif had three sons - Eldest sonQA became mutawalli on death of his father - However, his younger
brothers got their names mutated as bhumidars in revenue records
[2023] 6 S.C.R. 930
930
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for the said property - Suit filed by the eldest son seeking declaration
that it was a waqf property and sought relief of expunging the names
of his two brothers - During the pendency of suit, one of the brother
of QA, sold his one- third share to one of his nephew, referred as
first sale - Though said suit decreed in favour of the plaintiff, it
abated in view of the consolidation proceedings - First sale was
held to be infirm - Thereafter, in 1974, compromise entered between
the three brothers and they purported to disown the waqf - Based
on the compromise, second sale made by QA in favour of his other
nephew - Challenged to, by QA's son in a writ petition - In 1988,
QA resigned as mutawali - Case of the appellant-son of the
transferor that QA's son became the mutawali - Writ petition
withdrawn - Complaint filed before the U.P. Shia Waqf Board by
QA's other son challenging the transfer of waqf property by his
father and uncle, as also the compromise - Controller of waqf Board
by invoking s. 52(1) directed the Collector to recover and deliver
possession of the disputed land from the unauthorized occupants,
nephew of QA-first respondents - Collector directed the respondents
to deliver possession of the property to the Board within 30 days -
First respondents challenged the same and the appeals were allowed
by the ADJ - However, the High Court set aside the writ petition
holding that the ADJ did not possess jurisdiction - In appeal, the
waqf tribunal held that the respondents had acquired title by adverse
possession and set aside the order of the Collector - Said order
upheld by the High Court - However, the revision petitions dismissed
- On appeal, held: Beneficiary of a waqf, being neither a trustee
nor a co-owner of waqf property, acquired title through adverse
possession even if it was the property of the waqf - High Court
rightly held that the father created a valid and effective waqf as
required of a Shia Muslim and after his death, his eldest son took
over as Mutawali - ss. 49A and 49B came to be inserted by Act 28
of 1971 and the second sale took place in 1974, which i

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SUPREME COURT REPORTS
[2023] 6 S.C.R.
SABIR ALI KHAN
v.
SYED MOHD. AHMAD ALI KHAN AND OTHERS
(Civil Appeal Nos. 7086-7087 of 2009)
APRIL 13, 2023
[K. M. JOSEPH AND HRISHIKESH ROY, JJ.]
Waqf Act, 1995:
Wakf properties, of parties who are Shia Muslims -
Beneficiaries and their rights - Beneficiaries perfecting title by
adverse possession - Permissibility of - Held: A beneficiary of a
waqf, being neither a trustee nor a co-owner of waqf property, can
acquire title through adverse possession even if it is the property of
the waqf - There cannot be any embargo against a beneficiary of a
waqf claiming acquisition of title by adverse possession - Beneficiary
of a waqf cannot be described as a stranger to the waqf - No doubt,
a beneficiary is not to be conflated in his position with a Mutawalli,
who is a manager of the waqf - Property of the waqf, in law vests
in the almighty - For the purposes of s. 10 of the Limitation Act, he
is treated as a trustee - Beneficiary would be entitled to receive
benefits in terms of the waqf deed - In the case of adverse possession,
since a requirement is that the possession must be hostile to the real
owner and since the real owner is the almighty, the requirement
would be that such a person must have the necessary animus to
hold contrary to the title of God - In the case of a co-owner while
mere assertion of title in himself may hardly suffice as the possession
of a co- owner is taken to be possession on behalf of all co-owners
a case of ouster being successfully established would entitle the
co-owner to succeed - Beneficiary of a waqf is endowed with rights
in terms of the waqf deed - No duty is culled out, as such, to protect
the interest of another.
ss. 52(2) and 107 - Recovery of wakf property transferred in
contravention of s. 51 - Waqf created by one shia muslim, by a
deed in the year 1934 - Original Waqif had three sons - Eldest sonQA became mutawalli on death of his father - However, his younger
brothers got their names mutated as bhumidars in revenue records
[2023] 6 S.C.R. 930
930
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for the said property - Suit filed by the eldest son seeking declaration
that it was a waqf property and sought relief of expunging the names
of his two brothers - During the pendency of suit, one of the brother
of QA, sold his one- third share to one of his nephew, referred as
first sale - Though said suit decreed in favour of the plaintiff, it
abated in view of the consolidation proceedings - First sale was
held to be infirm - Thereafter, in 1974, compromise entered between
the three brothers and they purported to disown the waqf - Based
on the compromise, second sale made by QA in favour of his other
nephew - Challenged to, by QA's son in a writ petition - In 1988,
QA resigned as mutawali - Case of the appellant-son of the
transferor that QA's son became the mutawali - Writ petition
withdrawn - Complaint filed before the U.P. Shia Waqf Board by
QA's other son challenging the transfer of waqf property by his
father and uncle, as also the compromise - Controller of waqf Board
by invoking s. 52(1) directed the Collector to recover and deliver
possession of the disputed land from the unauthorized occupants,
nephew of QA-first respondents - Collector directed the respondents
to deliver possession of the property to the Board within 30 days -
First respondents challenged the same and the appeals were allowed
by the ADJ - However, the High Court set aside the writ petition
holding that the ADJ did not possess jurisdiction - In appeal, the
waqf tribunal held that the respondents had acquired title by adverse
possession and set aside the order of the Collector - Said order
upheld by the High Court - However, the revision petitions dismissed
- On appeal, held: Beneficiary of a waqf, being neither a trustee
nor a co-owner of waqf property, acquired title through adverse
possession even if it was the property of the waqf - High Court
rightly held that the father created a valid and effective waqf as
required of a Shia Muslim and after his death, his eldest son took
over as Mutawali - ss. 49A and 49B came to be inserted by Act 28
of 1971 and the second sale took place in 1974, which is after the
insertion of ss. 49A and 49B in the 1960 Act, thus, the power, vested
with the Board to take action for recovery of possession u/s. 49B -
Thus, the sale deed of the year 1974 by eldest son in favour of his
nephew, being in the teeth of the prohibition against a sale without
the previous sanction of the Board, was illegal - In order that a suit
may fall u/Art. 96, there must be a transfer by a Manager which
would include a Mutawalli of a waqf - Art. 96 would not apply as
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SUPREME COURT REPORTS
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it is a case of a void sale and not voidable sale - Uttar Pradesh
Muslim Waqf Act, 1960 - s. 49 A, B.
s. 107 - Recovery of Wakf properties - Applicability of the
Art.96 and 65, as regards the first sale effected in the year 1960
and second sale in the year 1974, when the Waqf Act came into
force on 01.01.1996 - Stated - Limitation Act, 1963 - Arts. 96 and
65.
Dismissing the appeals, the Court
HELD: 1.1 The High Court in the impugned order has
confirmed the findings of the tribunal that respondent no.1 in
both the cases have acquired title by adverse possession. This is
on the basis that the first sale was effected in the year 1960 and
the second sale was effected in the year 1974. The Act came into
force with effect from 1.1.1996. The period began to run from the
dates of the two sale deeds as the sales were void. The further
finding is that Article 96 of the Limitation Act, 1963 did not apply
to the first sale of the year 1960. The said sale was effected at a
time when QA the eldest brother was the Mutawalli. The sale
was effected by a person who in other words was not the
Mutawalli. Therefore, Article 96 did not apply. As far as the second
sale is concerned, it was effected by QA on 26.09.1974 purporting
to convey his one-third right to his nephew who is the first
respondent in the other appeal. The further reasoning of the High
Court is that the second sale deed was executed by the Mutawalli.
The court thereafter demarcated the field covered by Articles 65
and 96. The court then also took into consideration Section 27 of
the Limitation Act, 1963. The Court found the proper
interpretation was that Article 96 was to be confined to suits to
recover possession where the right to recover possession had
already not been lost under Section 27 of the Limitation Act, 1963.
Article 96, in other words, it was found, applied to voidable
transfers. On the said basis, finding that the second sale
represented a case of void transfer, it was found that Article 96
did not assist the appellant. It was also found that there is no
obstacle in a beneficiary of a Wakf perfecting title by adverse
possession. Such an obstacle, undoubtedly, existed in the case of
a Mutawalli, a trustee or a co-owner. A beneficiary was none of
the above. Thus, proceeding on the basis that the first respondent
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in both the appeals were beneficiaries of the Wakf and as the
sales under which they claimed were found to be void, the period
of limitation contemplated under Article 65 of the Limitation Act
began to run from the date of the sale. This meant that when the
Act was born on 01.01.1996, the title stood vested with the first
respondent by adverse possession. It is further found that Section
107 of the Act under which the Limitation Act was not applicable
to the Act could not rescue the case of the appellant. [Para 16][958G-H; 959-A-E]
1.2. As far as the first sale is concerned, the sale was not
effected by the Mutawalli or the Manager of the Waqf. The sale
was effected by the brother of the Mutawalli. Thus, the High Court
is correct in finding that Article 96 will not come to the aid of the
appellant. [Para 20][961-C-D]
1.3. As far as the second sale is concerned, it was no doubt,
executed by the Mutawalli by sale deed 26.09.1974. This is a
sale executed by him on the strength of the compromise which
was entered into between the three brothers on 13.02.1974. The
compromise led to order dated 12.09.1974 being passed by the
Deputy Director (Consolidation) setting aside the dismissal of
the revision by order dated 20.09.1969 as also the dismissal of
the first restoration application dated 02.03.1972. If the said sale
is found to be valid, then obviously, the appellant would fail. If on
the other hand, the sale is void, the question would be whether
the proceeding initiated beyond 12 years from the date of the
sale would be within time. [Para 21][961-D-F]
1.4. There cannot be any doubt that Waqf property can be
the subject matter of acquisition of title by adverse possession.
That a Mutawalli however cannot acquire rights over waqf
property by adverse possession is not open to question. The High
Court finds that Article 96 will not apply as it is a case of a void
sale and not voidable sale. [Paras 22, 23][961-H; 961-A]
1.5. Sections 49A and 49B were inserted in the 1960 Act
by way of U.P. Act 28 of 1971. Therefore, the sale deed dated
26.09.1974 by QA in favour of his nephew, being in the teeth of
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the prohibition against a sale without the previous sanction of
the Board, was illegal. It is this narrative which gives rise to the
question as to whether the sale is void as it was in transgression
of a statutory mandate, and other related issues. [Para 35][973F]
1.6. Section 52 of the Act, which is the fountain head of the
action by the Controller of the Waqf Board and the Collector, is a
sequel to Section 51. Section 51(1)(a) as substituted by Act 27 of
2013, subject to the provisos declares a sale, gift, exchange or
mortgage or transfer of waqf property to be ab initio void. Section
52 of the Act provides that if the Board is satisfied, after making
any inquiry, as may be prescribed, that any immovable property
of a waqf entered as such in the Register of Waqfs maintained
under Section 36, has been transferred without previous sanction
of the Board in contravention of Sections 51 or 56 of the Act, it
may send a requisition to the Collector of the place within which
the property is situated to obtain and deliver possession. The
Collector is bound to pass an order directing the person in
possession to deliver the property to the Board within 30 days
from the receipt of the Order. It is under this provision that the
impugned Orders came to be passed. [Paras 36, 37][974-B; 974D-F]
1.7. The Act came into effect on 01.01.1996. Section 52
empowers the Board to send a requisition to the Collector, if
property has been transferred without the previous sanction of
the Board in contravention of Section 51, inter alia. Section 51
has provided that any sale of property, which is waqf property,
without the previous sanction of the Board, would be void. The
two sales in this case took place prior to 01.01.1996. The first
sale is dated 14.10.1960 whereas the second sale is dated
13.09.1974. [Para 38][974-F-H]
1.8. Section 49B of the 1960 Act is pari materia with Section
52 of the Act. In other words, it provided that the Board may, if a
transfer is made contravening Section 49A of the 1960 Act, send
requisition to the Collector for recovery of possession. Section
49A of the 1960 Act also provided on similar terms as provided
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in Section 51(1) of the Act that for a sale of property comprised in
a waqf, previous sanction of the Board was necessary. As far as
Sections 49A and 49B came to be inserted by Act 28 of 1971 and
the second sale took place in 1974, which is after the insertion of
Sections 49A and 49B in the 1960 Act, therefore, the power,
indeed, vested with the Board to take action for recovery of
possession under Section 49B. Under Section 112(3) of the Act,
it is proceeded on the basis that the 1960 Act would stand
repealed. However, the proviso declares that the repeal would
not affect the previous operation of the corresponding law. The
corresponding law, in this case is Section 49A read with Section
49B. Action taken in the exercise of the power thereunder, is to
be deemed as taken in the exercise of powers under the Act.
The powers under the Act must be treated as flowing from Section
52 of the Act. The proviso to Section 112(3) provides that the
provisions in the Act, which in this case would be Section 52,
must be treated as being on the Statute Book. [Para 40][975-DH]
1.9. The waqf in question is created by the father by deed
dated 26.07.1934. It is, no doubt, a waqf-alalaulad. A waqf-alalaulad is a waqf under Mohammaden Law. [Para 43][976-D]
1.10. Section 3 of the Mussalman Wakf Act, 1923 obliged
the Mutawalli to furnish statement containing certain particulars
to the competent Court. Notice of the Statement was to be
published under Section 4. The 1923 Act provided for audit of
accounts and the provision for expense which could be incurred
by the Mutawalli came to be inserted. Section 10 provided for
penalty. Certain waqfs were excluded from its purview under
Section 12. In the United Provinces, which meant the United
Provinces of Agra and Awadh, the 1936 Act, came to be enacted.
[Para 45][977-E-F]
1.11. No doubt, the Court was dealing with a case of a waqfalal-aulad. The Judgment must essentially be viewed in the
context of the definition of 'religious and charitable purpose'
provided in the Act in question. [Para 49][980-A]
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1.12. The Wakf in question is dated 26.07.1934. The 1936
Act applied to Wakfs created before or after the commencement
of the Act. However, Section 2(2) declares that the Act shall not
apply to certain waqfs. They included a waqf whereunder not less
than 75 per cent of the total income, after deduction of certain
sums, was for the time being payable for the benefit of the waqif
or his descendants. However, Section 38(1) of the 1936 Act made
it clear that every waqf, whether subject to the Act or not and
whether created or after the commencement of the 1936 Act,
shall be registered. Proceeding on the basis that the waqf dated
16.07.1934 was waqf-alal-aulad and which, in terms of Section
2(2)(i), was not subject to the provisions of the 1936 Act, it was
compulsorily registerable in view of Section 38(1). Any waqf which
is registered under the 1936 Act would also be deemed to be
registered under the 1960 Act. That is, though the 1936 Act did
not apply to certain wakfs, but when it comes to registration under
Section 38, it was mandatory for every wakf to be registered (i)
whether subject to the Act and ii) whether created before the Act
or not. Thus, the registration of the Wakf dated 16.07.1934, was
in fact compulsory under Section 38 of the 1936 Act. [Para 50][980B-E]
1.13. It was found that there was a valid waqf from the
standpoint of the Shia law and the Consolidation Authorities also
found that there was a waqf till the Deputy Director, Consolidation
revisited the matter only on the basis of the compromise between
the brothers, the terms of the waqf did contemplate a certain
sum being set apart for charitable purposes. In this regard, the
stipulation in the deed that a sum of Rs. 500/- will be spent on
charitable purpose such as Muazzin and lighting in the mosque
and emambara, majlallse ashra of the sacred month of Moharram
is noticed. No doubt, there is the residuary clause, which reveals
that the wakif has provided that if descendants cease to exist,
the income from the endowed property will be managed by a
Committee to be spent for charitable purposes. [Para 51][980-EH; 981-A]
1.14. The extent of the income, which is set apart for the
purpose, be it religious, pious or charitable, in the facts, cannot
detract from the dedication of the whole property. [Para 53]
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1.15. The fact that the property of the waqf has been dealt
with in a manner, which is illegal, or that it was not questioned,
cannot deflect this Court from either finding that there was a
valid waqf or that the property which remained of the waqf, must
be dealt with in accordance with law. The compromise before the
Deputy Director (Consolidation) and the order based on the same
are in the teeth of Section 69 of the 1960 Act, therefore, the
orders passed by the Consolidated Officer and Settlement Officer
about the Waqf would revive. [Para 54][982-G-H; 983-A]
1.16. The High Court proceeded on the basis that a
Mutawalli may not be able to acquire title by adverse possession.
Equally, a trustee and a co-owner stand precluded in this regard.
A beneficiary of a waqf, however, being neither a trustee nor a
co-owner of waqf property, can acquire title through adverse
possession even if it is the property of the waqf it is found. [Para
55][983-B-C]
1.17. A beneficiary of a waqf cannot be described as a
stranger to the waqf. No doubt, a beneficiary is not to be conflated
in his position with a Mutawalli. The Mutawalli is a manager of
the waqf. The property of the waqf, in law vests in the almighty.
The Mutawalli acts merely as the manager. For the purposes of
Section 10 of the Limitation Act, no doubt, he is treated as a
trustee. A plea of adverse possession undoubtedly requires the
requisite intention, viz., animus possidendi. This is besides actual
possession for the required period. A beneficiary would be entitled
to receive benefits in terms of the waqf deed. In the case of
adverse possession, since a requirement is that the possession
must be hostile to the real owner and since the real owner is the
almighty, the requirement would be that such a person must have
the necessary animus to hold contrary to the title of God. In the
case of a co- owner while mere assertion of title in himself may
hardly suffice as the possession of a co- owner is taken to be
possession on behalf of all co-owners a case of ouster being
successfully established would entitle the co-owner to succeed.
[Para 56][983-C-H]
1.18. In order that a suit may fall under Article 96, there
must be a transfer by a Manager which would include a Mutawalli
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of a waqf. It must be for valuable consideration. In order that
there is a transfer, it must not be still born. It should not be a void
transaction. This is for the reason that a void transaction would
not amount to a transfer. An unauthorized alienation, a transfer,
which was made by a Mutawalli, for which, there was no authority
in the waqf deed, would constitute a transfer to which Article
134B and Article 96 would have applied. With the advent of the
laws relating to Waqfs which included the 1960 Act in Uttar
Pradesh, the Mutawalli was obliged to obtain the previous
sanction of the concerned Board. In cases where a transfer is
made under the 1960 Act without previous sanction of the Board,
the transfer would be void. This is for the reason that the
requirement of previous sanction is a statutory command
conceived with a definite and sublime purpose and the
transgression of which can only result in a void transaction. There
is no provision which enables the validating of such a sale. In
fact, the stand of respondents 2 and 4 is that, the transfers were
void. Therefore, the authorities have also proceeded on the basis
that the transaction was void and therefore can proceed on the
said foundation. [Para 61][985-G-H; 986-A-D]
1.19. Proceeding on the basis that the sale executed in 1974
was a void transaction. Article 96 of the Limitation Act, 1963
cannot be invoked in the case of a void transaction. The impugned
Order, proceeding on the said premise, cannot be said to be
flawed. There cannot be any embargo against a beneficiary of a
waqf claiming acquisition of title by adverse possession. While
he may be a person who can be treated as "interested" in a waqf
within the meaning of Section 2(k) both by reason of the fact that
he is a recipient of pecuniary or other benefit and also he may be
a descendant of the wakif, it is a far cry from describing him as a
Trustee. The beneficiary may have benefits coming his way in
terms of the waqf deed. He may be clothed with rights in this
regard. [Para 62-64][986-D-F; 987-A-B]
1.20. The term 'fiduciary', as such, has not been defined,
so is the case with the 'fiduciary relationship'. In fact, Section 88
of the Trusts Act, 1882, inter alia, provides that a person standing
in a fiduciary character and bound to protect the interest of
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another, cannot by using such character, obtain an advantage and
resist making over the benefit to the person, whose interest he
was bound to protect. A fiduciary can, therefore, be taken to be a
person who becomes charged with the duty to protect the interest
of another. Fiduciary relationship is founded upon the reposing
of confidence by one in another. The beneficiary of a waqf is
endowed with rights in terms of the waqf deed. No duty is culled
out, as such, to protect the interest of another. No doubt, it could
be said that as the property in a waqf, vests in the Almighty, there
must be a concern and, undoubtedly, a moral duty to act in a
manner that the object of the wakf is fostered. But a beneficiary
is not like a trustee, who assumes possession in his character as
a trustee, coming under the restraint of discarding his character
as trustee and donning the robes of an encroacher or a person
asserting hostile title. It is not, as if, the beneficiary was in
possession of the property in any capacity prior to the sale. [Paras
65 - 67][987-C-D; 988-H; 989-A-B; 989-C]
1.21. In the second sale, the former Mutawalli, viz., QA,
entered into the sale deed on the strength of a compromise and
the order of the Deputy Director, Consolidation, under which, he
purported to act as one possessed of one-third right in his own
right. No doubt it would have mattered little to the applicability
of Article 96 that the transferor purported to transfer waqf property
professing it to be his property. But this is a case where the
voidness arises on account of the fact that what is found to be
waqf property has been purported to be alienated contrary to the
peremptory statutory mandate. [Para 68][989-D-F]
1.22. The argument that Section 107 of the Act would assist
the appellant in tiding over the bar of limitation does not appeal.
Section 107 of the Act, no doubt, proclaims that nothing in the
Limitation Act,1963 shall apply to any suit for possession of the
immovable property comprised in any waqf or for possession of
any interest in such property. [Para 69][989-F-G]
1.23. The Act came into force on 01.01.1996. The first sale
was effected on 14.10.1960. The second sale was effected on
26.09.1974. As far as the first sale is concerned, Article 96 cannot
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be pressed into service as the transfer was not purported to be
made by the Mutawalli. The doors stood open for the application
of Article 65. As far as the second sale is concerned which was
effected in the year 1974, the Article 96 was not applicable, the
only other competing Article vying for acceptance, appears to be
Article 65. Applying Article 65 and as the adverse possession
would kick in from the date of the transfer, on the expiry of twelve
years, i.e., in 1986 applying Section 27 of the Limitation Act
whatever title remained within the meaning of Section 65 would
stand extinguished. The Act was brought into force only with effect
from 01.01.1996. The purport of Section 107 cannot be understood
to be that it would revive an extinguished title as nothing stood
in the way of running of time from the date of the second sale
under the law as it stood. [Para 70][989-G-H; 990-A-C]
1.24. No doubt, the law of limitation is what prevails as on
the date of the suit. Taking 1997 as the date, on which a suit is
filed, and applying the Act, which enables the plaintiff to disregard
the bar of law of limitation, it cannot mean that what stood
extinguished under the earlier law would revive. [Para 71][990C-D]
1.25. The issue in the High Court essentially centered
around the question whether Article 96 would apply and applying
the same, the appellant could get around the impact of Article 65
read with Section 27 of the Act. Article 96 has no application.
Even in regard to a proceeding under the Act be it Section 52 if
as on the date the action is taken, the title in the property stood
vested with the person in possession by virtue of Section 27 of
the Limitation Act then it may not be permissible to ignore the
right which had been acquired. [Para 72][991-A-B]
T. Kaliamurthi and Another v. Five Gori Thaikkal Wakf
and Others (2008) 9 SCC 306 : [2008] 11 SCR 758;
C.
Beepathumma
and
Others
v.
Velasari
Shankaranarayana Kadambolithaya and Others AIR
1965 SC 241 : [1964] SCR 836 - relied on.
Chintamani Sahoo (deceased by LR.) and Others v.
Commissioner of Orissa Hindu Religious Endowments,
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C
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941
Orissa and Others AIR 1983 Orissa 205; Anisur
Rahman and Others v. Sheikh Abul Hayat AIR 1965
Patna 390 - approved.
Shri Mohammad Ismail Faruqui v. Union of India and
Others AIR 1995 SC 605 : [1994] 5 Suppl. SCR 1; The
Mosque Known as Masjid Shahid Ganj, and Others v.
Shiromani Gurdwaba Prabandhak Committee, Amritsar,
and Another AIR 1940 PC 116; Faqir Mohd. Shah v.
Qazi Fasihuddin Ansari and Others AIR 1956 SC 713;
Moattar Raza and Others v. Joint Director of
Consolidation, U.P. Camp at Bareilly and Others AIR
1970 Allahabad 509; Khilli Ram v. State of Rajasthan
(1985) 1 SCC 28 : [1985] 1 SCR 1136; (Smt.) Amina
Khatoon v. Third Addl. D.J. Farukhabad and Others
1987 All LJ 1282; Chhedi Lal Misra (Dead) Through
Lrs. v. Civil Judge, Lucknow and Others (2007) 4 SCC
632 : [2007] 2 SCR 568; K. S. Viswam Iyer (Dead)
Through Lrs. v. State Wakf Board, Madras (1994) Suppl.
2 SCC 109; Wali Mohammed (Dead) by Lrs. v. Rahmat
Bee (Smt) and Others AIR 1999 SC 1136 : [1999] 1
SCR 852; Fazlul Rabbi Pradhan v. State of West Bengal
and Others [1965] 3 SCR 307 : AIR 1965 SC 1722;
Dr. M. Ismail Faruqui and others v. Union of India
(1994) 6 SCC 360 : [1994] 5 Suppl. SCR 1; Syed Yousuf
YarKhan and Others v. Syed Mohammed Yar Khan and
Others [1967] 2 SCR 318; M. Siddiq (Dead)Through
Legal Representatives (Ram JanmabhumiTemple Case)
v. Mahant Suresh Das and Others (2020) 1 SCC 1 :
[2019] 18 SCR 1; Karnataka Board of Wakf v. Govt.
of India and Others (2004) 10 SCC 779 : [2004] 1
Suppl. SCR 255; Thakur Mohd. Ismail v. Thakur Sabir
Ali AIR 1962 SC 1722 : [1963] SCR 20; Ahmed G.H.
Ariff and Others v. Commissioner of Wealth Tax,
Calcutta AIR 1971 SC 1691 : [1970] SCR 19; Chinna
Jeeyangar Mutt, Tirupath v. C. V. Purushotham and
Others AIR 1974 AP 175; The Special Officer for Wakfs
Madras v. Subramanyam and Others AIR 1977 Madras
79; Abdul Fatah Mohammad Ishak v. Russomy Dhar
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND
OTHERS
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Chaoudhary 22 Indian Appeals 76; U.P. Sunni Central
Board of Waqf and Another v. Hasan Jehan Begum and
Another AIR 1977 All 18; Central Board of Secondary
Education and Another v. Aditya Bandopadhyay and
Others (2011) 8 SCC 497 : [2011] 11 SCR 1028 -
referred to.
Mulla on "Principles of Mohammadan Law" (22nd
Edition) - referred to.
Case Law Reference
[1994] 5 Suppl. SCR 1
referred to
Para 8 (v)
AIR 1956 SC 713
referred to
Para 8 (vi)
[1985] 1 SCR 1136
referred to
Para 8 (xvi)
[2007] 2 SCR 568
referred to
Para 9 (vi), 14
(1994) 2 Suppl. SCC 109
referred to
Para 9 (vi)
[1999] 1 SCR 852
referred to
Para 9 (vi)
1965 3 SCR 307
referred to
Para 11
[1994] 5 Suppl. SCR 1
referred to
Para 11
(1967) 2 SCR 318
referred to
Para 13
[2019] 18 SCR 1
referred to
Para 13
[2004] 1 Suppl. SCR 255
referred to
Para 13
[1963] SCR 20
referred to
Para 14
[1970] SCR 19
referred to
Para 14
[2008] 11 SCR 758
relied on
Para 72
[2011] 11 SCR 1028
referred to
Para 65
[1964] SCR 836
relied on
Para 71
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 70867087 of 2009.
From the Judgment and Order dated 02.05.2008 of the High Court
of Judicature at Allahabad in CR Nos. 595 and 596 of 2003.
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Salman Khushid, Sr. Adv., Irshad Ahmad, Ms Lubna N,
Ms. Kamna Singh, Anurag Rawat, Shaik Mohd Haneef, Aman Khullar,
Ms. Sommya Chaturvedi, Khan, Advs. for the Appellant.
P.S. Patwalia, S.R. Singh, Sr Advs., Gaurav Agrawal, Ejaz
Maqbool, Ms. Akriti Chaubey, Ms. Tanya Shree, Ms. Harshika Verma,
Saif Zia, Syed Mohd. Muztaba, Pradeep Misra, Mangal Prasad, Prateek
Yadav, Prithavi Yadav, Mitr Rao, Gaurav, Advs. for the Respondents.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. The Appeals are lodged against the Order passed by the High
Court of Allahabad in Civil Revision Nos. 595 and 596 of 2003. The
Revisions, in turn, were directed against the Order passed by the Waqf
Tribunal on an Appeal filed by the first respondent before us. The first
respondent again, in turn, put in issue the Order passed by the Collector,
Bulandshahar. The Order passed by the Collector was passed under
Section 52(2) of the Waqf Act, 1995 (hereinafter referred to as the
'Act'). Finally, we must point out at this stage that the Collector was
acting on the basis of a requisition given by the Controller of Waqf Board
to obtain and deliver possession of the land in dispute to the Waqf Board.
The requisition was made under Section 52(1) of the Act.
2. By the Order passed by the Tribunal, it had set aside the Order
passed by the Collector on various grounds. By the impugned Order
passed by the High Court in the Revisions filed against the aforesaid
Order by the appellants, the High Court has affirmed the Order passed
by the Tribunal, however, on the ground that the first respondent, in the
Appeals, had perfected title by adverse possession.
3. We have heard Shri Salman Khurshid, learned Senior Counsel
on behalf of the Appellant and Shri P.S. Patwalia, learned Senior Advocate
on behalf of the first respondent and Shri S.R. Singh, learned Senior
Advocate on behalf of the second respondent-the Assistant Survey
Commissioner, Waqk, Bulandshehar and the fourth respondent-the
Collector, Wakf, Bulandshehar.
FACTS
4. We begin by setting out the following genealogical chart:
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND
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5. Parties are Shia Muslims. Mohd. Akbar Ali khan purported to
create a waqf-alal-aulad by a deed dated 26.07.1934. He appointed
himself as a first Mutawalli. However, he purported to execute a sale
deed in the year 1948 in respect of a tube well and some adjoining land.
Qasim Ali Khan, one of the sons of Akbar Ali Khan, filed OS No. 1 of
1950 impugning the sale deed. The trial court decreed the said suit and
the decree was affirmed by the High Court by its judgment rendered on
11.07.1962. The High Court in the course of its Judgement did hold that,
Akbar Ali Khan had created a valid and effective waqf as required of a
Shia Muslim which he was. On 16.12.1958, Akbar Ali Khan passed
away. He left behind him three sons, Qasim Ali khan, Kazim Ali Khan
and Raza Ali Khan. It appears that Qasim Ali Khan took over as the
Mutawalli. His name was entered in the register of waqf. However, his
younger brothers, i.e., Kazim Ali Khan and Raza Ali Khan got their
names mutated in the Revenue Records as Bhumidhar in regard to the
property. This led to the second suit again by Qasim Ali Khan, i.e., OS
No. 421 of 1959. He sought a declaration that the plaint schedule property
was a waqf property. He further sought the relief of expunging the names
of his two brothers. The said suit was decreed in favour of the plaintiff
on 21.05.1962. Mohd. Kazim Ali Khan on 14.10.1960 during the pendency
of the suit transferred his alleged one-third share to Mohd. Ahmad Ali
Khan who was his nephew being the son of Raza Ali Khan. This shall
be referred to as the first sale.
6. After a remand in an Appeal, when the Suit was pending,
consolidation proceedings began in the village. Under the law, the Suit
was to stand abated. The Suit stood abated. Shri Qasim Ali Khan filed
objection seeking expunging of the names of the other sons, viz., his
brothers. This was done on the basis that the properties were waqf
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properties. The Consolidation Officer accepted the objection. He directed
that the entry of waqf be made in the Revenue record. It was his reasoning
that upon the creation of the waqf, properties stood vested in the Almighty
and the first sale was infirm. The Appeal filed by Shri Kasim Ali Khan
and Shri Raza Ali Khan came to be dismissed by the Settlement Officer.
The Revision filed by them also came to be dismissed by Order dated
29.01.1969. However, it would appear that an application, seeking
restoration, was filed in regard to the Order of the Deputy Director,
Consolidation. The same stood dismissed on 02.03.1972. Another
Application for Restoration, however, came to be filed. It is in the said
Restoration Application, a compromise was entered into on 13.02.1974
between the three brothers, viz., Qasim Ali Khan, Kasim Ali Khan and
Raza Ali Khan. The compromise proceeded on the footing that the waqf
was a paper transaction. It was the further basis that the waqf was
never acted upon and further that the Bhumidars of the plots were
Qasim Ali Khan, Raza Ali Khan and Mohammad Ahmad Ali Khan (the
last being the alienee), who were entitled to one-third share each. The
Deputy Collector, Consolidation accepted the compromise, set aside the
Order dated 29.01.1969, an Order passed on merit, and, disposed of the
Revision on the basis of the compromise. No sanction was obtained
from the Waqf Board within the meaning of Section 49A of the Uttar
Pradesh Muslim Waqf Act, 1960 (hereinafter referred to as, 'the 1960
Act', for short). The Shia Waqf Board was not a party. We also notice
that the Order dated 02.03.1972 was set aside. A sale deed came to be
executed based on the compromise on 26.09.1974 by Shri Qasim Ali
Khan, purporting to convey his one-third share in favour of his nephew,
viz., Shri Syed Mohammad Ali Khan, who was another son of Shri Raza
Ali Khan hereinafter referred to as the second sale. Shri Syed Shujat Ali
Khan, who was the son of Qasim Ali Khan, filed Writ Petition (C) No.
5874 of 1974 challenging Order dated 12.09.1974 passed by the Deputy
Director, Consolidation. On 01.05.1988, it would appear that Shri Qasim
Ali Khan resigned as Mutawalli. It is the case of the appellant that Shri
Sujat Ali Khan became the Mutawalli. The Writ Petition filed by Shri
Sujat Ali Khan came to be withdrawn. Thereafter, Shri Sajjad Ali Khan,
who was another son of Shri Qasim Ali Khan and who claimed as a
beneficiary of the Wakf, filed a complaint before the U.P. Shia Waqf
Board. He called in question the transfer made of waqf property, both
by Shri Qasim Ali Khan, his father, and his uncle, viz., Shri Kasim Ali
Khan. He also sought to bring under a cloud the compromise entered
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND
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into by them before the Deputy Director, Consolidation besides the
withdrawal of Writ Petition (C) No. 5874 of 1974. The Controller of the
Waqf Board passed Order dated 16.07.1997. By the said Order, he
invoked Section 52(1) of the Act and directed the Collector to recover
and deliver possession of the disputed land from the unauthorised
occupants, viz., Shri Syed Mohamad Ahmad Ali Khan and Shri Mohamad
Ali Khan, who were the sons of Shri Raza Ali Khan. They are the first
respondents in the Appeals and referred to as such. It is thereupon that
the Collector passed Order dated 31.12.1997, directing the respondents
to deliver possession of the property to the Board within thirty days.
This Order came to be challenged by the first respondents in the Appeals,
viz., the alleged unauthorised occupants before the Additional District
Judge, Bulandshahar. The said Appeals were allowed by the Additional
District Judge. The appellant filed Writ Petition (C) No. 23414 of 1998,
contending that it was the Waqf Tribunal which had the jurisdiction and
not the Additional District Judge. This contention found favour with the
High Court and it was found that the Additional District Judge did not
possess jurisdiction. The Order of the Additional District Judge came to
be set aside. Thereafter, the first respondent filed Appeal No. 2 of 2002
and Appeal No. 3 of 2002 before the Waqf Tribunal. By Order dated
28.03.2003, the Waqf Tribunal allowed the Appeals and the Order of the
Collector was set aside. It is the said Order, which has been confirmed
by the High Court by passing the impugned Order, by which, the Revision
Petitions filed by the appellant, came to be dismissed.
FINDINGS OF THE WAQF TRIBUNAL
7.
i.
Under Section 52(1) of the Act, the Board was to first satisfy
in such manner as was prescribed, after making inquiry
that the property is recorded in the Waqf Register and
further that the property was alienated without any prior
permission of the Board. Thereafter, the matter is to be
sent to the Collector for recovering possession.
ii.
After perusing the record and a true copy filed by the
appellant (the papers Nos. 42C and 53C2), it was found
that it was not mentioned in the Order that the Board had
done any inquiry.
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iii.
The Board had not satisfied itself, after making inquiry. This
finding was entered on the basis of there being no evidence
in the record requisitioned from the Board.
iv.
A Report of a Senior Waqf Inspector found included in the
record, was considered and it was found that Senior Waqf
Inspector had not actually seen whether the property was
recorded in the Waqf Register. The Controller had not
satisfied itself as per the prescribed procedure laid down in
Section 52(1) of the Act.
v.
The procedure adopted was illegal. There was no Officer
known as Controller under the Act. The power under Section
52(1) could be exercised by the Board. No Notification was
produced to establish that the Board transferred its power
to any Officer known as Controller. The Order passed by
the Controller was without jurisdiction.
vi.
A period of seven days alone was given, which is illegal.
vii.
The possession of the respondents was clearly admitted in
the petition filed by the appellant before the Waqf Board. It
was further admitted that the respondents were using the
property for their own interest and as their own personal
property. The respondents were found to have become
owners by way of adverse possession. There were
exceptions to Section 49A of the U.P. Act and Section 51
of the Act. Both Acts were special Acts on the subject of
Waqf. There was no absolute Rule that a property could
not be transferred as new rights could accrue to any person
on the basis of adverse possession.
FINDINGS OF THE HIGH COURT
8.
i.
There is merit in the contention of the appellant that the
compromise entered into before the Deputy Director,
Consolidation, being a collusive one, could not defeat the
Waqf. Once a Waqf, always a Waqf.
ii.
In the absence of the Waqf Board, the Order passed by the
Deputy Director, Consolidation acting on the compromise
was invalid in view of Section 69 of the 1960 U.P. Act.
SABIR ALI KHAN v. SYED MOHD. AHMAD ALI KHAN AND
OTHERS [K. M. JOSEPH, J.]
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iii.
The sale executed by Shri Qasim Ali Khan on 29.06.1974
(the second sale) was invalid for the reason also that no
permission of the Waqf Board was obtained under Section
49A of the 1960 U.P. Act.