REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7130 OF 2010

SYED ZAINUL ABEDEEN … APPELLANT(S)

VERSUS

THE RAJASTHAN BOARD OF  MUSLIM WAKF       …RESPONDENT(S)

J U D G M E N T  

Rastogi, J.

The instant appeal is directed against the concurrent

finding of all the three Courts below on the issue that the suit

filed by the appellant/plaintiff under Section 6 of the Wakf Act,

1954(hereinafter being referred to as the “Act, 1954”) was barred

by limitation and not maintainable.

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2. The appellant/plaintiff filed a suit under Section 6 of  the

Act, 1954 seeking the following declarations:­

“(i)A declaration may be issued to the effect that the property Mandarja Madnumber 14 as mentioned in the suit is not Wakf Allah and the same is Wakf Alal Aulad.

(ii)Hukum Imtanai consequential be issued against the defendant with the direction that the defendant shall not treat the property Mundarja Madnumber as Wakf Allah and the defendant will register the aforesaid property except Mosque and Mazar as Wakf Alal Aulad and if it has been registered  wrongly the same be corrected.

(iii)The defendant be directed to the cost of the suit.

(iv)Such further or further(s) orders as may be in the interest of justice.”

3. It is not disputed that the subject property in question is a

registered wakf under the Act, 1954.

4. The Act,  1954 was enacted  for  better  administration and

supervision of wakf and Chapter II provides the procedure to be

followed for survey of wakfs.   Sub­section(4) of Section 4 of the

Act, 1954 postulates that the Survey Commissioner while making

any inquiry,  have the  same powers  as  are  vested in the  civil

Court under the Code of Civil Procedure, 1908 and Survey

Commissioner has to submit his report to the State Government

under sub­Section(3) of Section 4 of the Act.  In the instant case,

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inquiry was conducted by the Survey Commissioner under sub­

section (4) of Section 4 of the Act, 1954 regarding Dargah

Moulana Ziauddin Sahib with attached lands, properties, shops,

buildings and other premises and after holding inquiry in

reference to the subject property in question and taking note of

the rival claims and the evidence of the respective parties which

came on record, in its inquiry dated 2nd January, 1965 (Annexure

– R1) held as under:­

 “On a careful consideration of the entire evidence on record specifically the statement of Shri Faqruddin Shah I am satisfied that  Dargah  Moulana  Ziauddin Sahib with attached lands, properties, shops, buildings and other premises is a wakf – Al­ Allah property and accordingly  

Order

that the above properties  be  entered as wakf  Al­ Allah in survey record.”

5. To be noticed at  this  stage, the survey conducted by the

Commissioner  Wakfs  under the  Act,  1954 holding the  subject

property as a Wakf–Al­Allah in its report dated 2nd January, 1965

was not the subject matter of challenge in the suit filed at the

instance of the appellant/plaintiff.

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6. On the basis of the survey report, the subject property in

question was included in the list of wakfs and was published in

the Official Gazette as provided under sub­section (2) of Section 5

of the Act, 1954 dated 2nd December, 1965.

7. The appellant/plaintiff, being aggrieved by the declaration of

the subject property as published in the Official Gazette in terms

of sub­section (2) of Section 5 of the Act, 1954 dated 2nd

December, 1965 filed Suit no. 23 of 1967 for declaration before

the Munsif, West Jaipur City on 17th January, 1967.

8. After the notice came to be served, the

respondent/defendant raised a preliminary objection that the

suit filed by the appellant/plaintiff is beyond the period of

limitation of one year as provided under 1st proviso to Section 6 of

the Act, 1954 and accordingly was not maintainable.

9. The defence of the appellant throughout and also before this

Court is that the subject property in question has been

erroneously declared as  Wakf­Al­Allah.  But according to the

evidence on record, the subject property in question is a “Wakf–

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Alal­Aulad” and according to him, the restriction of period of one

year under proviso to Section 6 of Act, 1954 may not apply in the

case of a declaration being claimed by the appellant in the suit

preferred under the Act, 1954 and the period of limitation has to

be determined in terms of Article 113 of the Limitation Act to be

preferred within a period of three years.  

10. In alternative, further submission made is that there is a

restriction that suit shall be instituted against the Wakf Board

after expiry of two  months’ prior notice as envisaged under

Section 56 of the Act, 1954 and in the instant case, notice was

served on 4th November, 1966 and taking note of two months of

the statutory period of notice, the suit preferred by the appellant

on 17th January, 1967 would be within a period of limitation of

one year and this, according to him, is an apparent error being

committed by all the Courts below and High Court has also failed

to examine the submission made in the right earnest.

Accordingly, it has been prayed that the judgments of the Courts

below be quashed and set aside and the suit preferred by the

appellant be treated to be within a period of limitation and the

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civil  Court be directed to examine the grievance raised by  the

appellant on merits.

11. Per contra, learned counsel for the respondent, on the other

hand, while supporting the finding of all the three Courts

submits that the suit was filed by the appellant under Section 6

of the Act, 1954 after the expiry of the statutory period of

limitation and Article 113 of the Limitation Act has no application

in the instant case.  All the three Courts have recorded a finding

of fact that the suit was not filed within the statutory period of

one  year  as envisaged  under  proviso to  Section  6  of the  Act,

1954, at least at this stage, the appellant cannot be permitted to

raise a plea which was never raised at any stage and this being a

concurrent finding of fact unless being held to be perverse or not

sustainable in law ordinarily is not open to be interfered by this

Court.

12. Learned counsel further submits that Section 56 of the Act,

1954 has no application, and after the properties are registered

as wakf   properties and publication of the  list of  wakfs  in the

official  gazette, in terms of sub­section (2) of  Section 5 of  Act,

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1954, an inbuilt mechanism has been provided under Section 6

of the Act, 1954 to institute a suit in a civil Court of competent

jurisdiction within a statutory period of one year from the date of

publication of list  of  wakfs in the  Official  Gazette  under  sub­

section (2) of Section 5 of the Act, 1954 and no other remedy is

permissible under the law.

13. We  have  heard learned  counsel for the  parties  and  with

their assistance perused the material available on record.

14. It is not disputed that after affording opportunity of hearing

to the respective parties including the appellant/plaintiff, a

finding has been recorded by the Survey Commissioner of Wakfs

in its report dated 2nd January, 1965 holding the subject property

with attached lands, shops, buildings and other premises as

“Wakf­Al­Allah” and according to the report, the subject property

was included in the list of  wakfs and published in the Official

Gazette in terms of sub­section (2) of Section 5 of the Act, 1954

dated 2nd  December, 1965 and the suit for declaration  was

instituted before the Court of competent jurisdiction under

Section 6 of Act, 1954 on 17th January, 1967.

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15. Indisputedly, from  the  date  of publication  of the subject

property in the Gazette under sub­section (2) of Section 5 of the

Act,  1954, the suit was preferred beyond a statutory period of

limitation of one year and this statement of  fact has not been

disputed by the appellant also in his pleadings.

16. The extract of the relevant provisions of the Act,  1954  is

reproduced hereunder:­

“4. Preliminary survey of wakfs.

(3) The [Survey Commissioner] shall, after making such inquiry as he may consider necessary, submit his report [in respect of wakfs existing at the date of the commencement  of this  Act in the  State  or  any  part thereof,] to the State Government containing the following particulars, namely: —

(a) the number of wakfs [in the State,  or as the case may be, any part thereof], showing the Shia wakfs and Sunni wakfs separately;

(b) the nature and objects of each wakf;

(c) the gross income of the property comprised in each wakf;

(d) the amount of land revenue, cesses, rates and taxes payable in respect of such property;

(e) the expenses incurred in the realisation of the income and the pay or other remuneration of the mutawalli of each wakf; and

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17. The conjoint reading of the provisions of which a reference

has been made clearly envisage that the survey is to be made of

wakfs by the State Government through its authorised Officer,

i.e., Survey Commissioner under sub­section (4) of Section 4 of

the Act who could make an inquiry with the same powers as are

vested in a civil Court under the Code of Civil Procedure, 1908,

and may submit its report under sub­section (3) of Section 4 of

Act,  1954  to the  State  Government.  On receipt  of the report

under  sub­section  (3)  of  Section 4, the  State  Government  will

forward a copy of the same to the Board who may examine the

report and publish it in the Official Gazette in the list of wakfs

under sub­section (2) of  Section  5  of the  Act, 1954  and  any

disputes regarding wakfs, to be  more specific, regarding the

properties which are specified as wakf properties  in the list of

wakfs published in the Official Gazette under sub­section (2) of

Section 5 by any person aggrieved may be challenged by way of a

suit in a Court of competent jurisdiction under Section 6 of the

Act and the Parliament, in its wisdom, consider it appropriate to

attach finality to the list of wakfs published in the Gazette added

a proviso to Section 6 which has been couched in the negative

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words that no suit shall  be entertained after the expiry of one

year from the date of publication of the list of wakfs under sub­

section (2) of Section 5 of Act, 1954.

18. In the instant case, list of wakfs property was published in

the  Gazette  on  2nd  December,  1965 and  on its  publication,  a

presumption has  to  be drawn that it is  known to the general

public  and  the  suit for  declaration was filed  by the  appellant

under Section 6 of the Act, 1954 which is evident from para 19 of

the amended plaint on 17th January, 1967:­

“That the suit is fit under the provision of Section 6 of Wakf Act and within the period of limitation under the provisions of 113 Limitation Act.”

19. Indubitably, the suit  was  preferred  beyond the  period of

limitation and a concurrent finding of fact has been recorded by

all the three Courts and we find no manifest error in the finding

of fact recorded by the Courts below which needs our

interference.

20. So far as the submission made by the appellant regarding

the subject property in question that it was Wakf­Alal­Aulad and

not Wakf­Al­Allah, and for seeking such a declaration, period of

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one year of limitation may not apply, is without substance for the

reason that once the property after the survey has been

registered in the list of wakfs as Wakf­Al­Allah on the basis of the

finding recorded by the Survey Commissioner in its report dated

2nd  January,  1965, the  dispute regarding the  nature  of  wakfs

registered is open to be examined only within the four corners of

Section 6 of Act, 1954 and the plea of the appellant that Section

6 has been erroneously referred to and the limitation has to be

guided by Section 113 of the Limitation Act, in our considered

view, is without substance and deserves rejection.

21. The further  submission made  by learned  counsel for the

appellant taking assistance of Section 56 of the Act, 1954, in our

considered view, is of no substance for the reason that Chapter II

deals with the survey of wakf and its resolution after the list of

wakfs  has been  published in the  Official  Gazette  under sub­

section (2) of Section 5 of the Act 1954 in accordance  with

Section 6 of the Act, 1954 to be instituted within the period of

limitation prescribed therein, to be examined by the civil Court.

At the same time, so far as Section 56 of the Act, 1954 is

concerned, it is dealing with the judicial proceedings under

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Chapter VII and if any person is aggrieved by any action/inaction

of the Board, other than the one which has been specified under

Chapter II, it  has to serve a  legal  notice and on expiry of two

months, suit could be instituted against the Board and it is not

open for the appellant to invoke Section 56 of the Act, 1954 in

support of his defence which, in the instant case, has no

application.

22. We find no error in the orders passed by the Courts below

which calls for our interference.

23. Consequently, the appeal is without substance and

accordingly dismissed.

24. Pending application(s), if any, stand disposed of.

.…………………………J. (N.V. RAMANA)

………………………….J. (AJAY RASTOGI)

NEW DELHI August 30, 2019

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