Andhra Pradesh High Court – Amravati
Kalimela Kiran Kumar, vs The State Of Andhra Pradesh on 16 June, 2025
IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
WRIT PETITION No.2618 of 2024
Between:
KALIMELA KIRAN KUMAR,, S/O SOWRI, CHRISTIAN, AGED ABOUT
47 YEARS. FLAT NO. 108, VIJAYA SAI APARTMENT,
CHENCHUPETA, TENALI-522202, GUNTUR DISTRICT.
... PETITIONER
AND
THE STATE OF ANDHRA PRADESH, REP BY ITS PRINCIPAL
SECRETARY, MINORITY WELFARE DEPARTMENT, AP
SECRETARIAT, VELAGAPUDI, AMARAVATI AND 3 OTHERS.
... RESPONDENTS
DATE OF ORDER PRONOUNCED : 16.06.2025
SUBMITTED FOR APPROVAL:
HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
1. Whether Reporters of Local Newspapers
may be allowed to see the order? : Yes/No
2. Whether the copy of order may be
marked to Law Reporters/Journals? : Yes/No
3. Whether His Lordship wish to
see the fair copy of the order? : Yes/No
___________________________
JUSTICE SUBBA REDDY SATTI
Page 2 of 23
* HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
+ WRIT PETITION No.2618 of 2024
% 16.06.2025
WRIT PETITION No.2618 of 2024
Between:
KALIMELA KIRAN KUMAR,, S/O SOWRI, CHRISTIAN, AGED ABOUT
47 YEARS. FLAT NO. 108, VIJAYA SAI APARTMENT,
CHENCHUPETA, TENALI-522202, GUNTUR DISTRICT.
... PETITIONER
AND
THE STATE OF ANDHRA PRADESH, REP BY ITS PRINCIPAL
SECRETARY, MINORITY WELFARE DEPARTMENT, AP
SECRETARIAT, VELAGAPUDI, AMARAVATI AND 3 OTHERS.
... RESPONDENTS
! Counsel for Petitioner : Sri Eluru Sesha Mahesh Babu
^ Counsel for Respondents : Sri Shaik Khaja Basha
Sri S.M.Subhani
< Gist:
> Head Note:
? Cases referred:
1) AIR 2007 SC 1447
2) 2014 (6) ALD 411
3) AIR 1955 SC 233
4) AIR 1967 SC 1274
5) (1994) 3 SCC 357
6) (2003) 8 SCC 134
7) (2008) 9 SCC 306
8) W.P.No.42457 of 2017 dated 06.05.2025
This Court made the following:
Page 3 of 23
APHC010044982024
IN THE HIGH COURT OF ANDHRA PRADESH
AT AMARAVATI [3331]
(Special Original Jurisdiction)
MONDAY, THE SIXTEENTH DAY OF JUNE
TWO THOUSAND AND TWENTY FIVE
PRESENT
THE HONOURABLE SRI JUSTICE SUBBA REDDY SATTI
WRIT PETITION NO: 2618/2024
Between:
Kalimela Kiran Kumar, ...PETITIONER
AND
The State Of Andhra Pradesh and Others ...RESPONDENT(S)
Counsel for the Petitioner:
1. ELURU SESHA MAHESH BABU
Counsel for the Respondent(S):
1. GP FOR SOCIAL WELFARE (AP)
2. MASALEGAR HIDAYATHULLA
3. S ARIFULLAH (SC FOR AP WAQF BOARD)
4. SHAIK KHAJA BASHA
The Court made the following:
ORDER
The 12th defendant in O.S.No.3 of 2024 on the file of Andhra
Pradesh Wakf Tribunal at Kurnool, filed the above writ petition seeking
writ of prohibition.
Page 4 of 23
2. a) Averments in the affidavit, germane, for consideration, are that
the petitioner purchased the agricultural land of an extent of Ac.1.64
cents in S.No.249/1B1B, old S.No.54 of Guntupalli village,
Ibrahimpatnam Mandal, NTR District. The land has been owned by the
vendors since 1938. The revenue authorities updated the name of the
petitioner in the Records of Rights and issued the Pattadar Pass Book.
The petitioner sold an extent of Ac.0.28 cents to Devireddy Anjaneya
Reddy and an extent of Ac.0.20 cents to Koneti Nagarani in the year
2017. The respective vendees also got Pattadar pass books. The
agricultural land was converted into non-agricultural land. The petitioner
is developing the land for commercial purposes.
b) The 4th respondent filed the suit as mentioned above, by
suppressing the material facts and the earlier suit O.S.No.151 of 1975 on
the file of the Subordinate Judge, Vijayawada. The suit filed by the 4 th
respondent is hit by Section 7 of the Wakf Act, 1995. The findings
recorded in O.S.No.151 of 1975 on the file of the Subordinate Judge,
Vijayawada, became final.
3. a) A counter-affidavit was filed on behalf of the 2nd respondent. It
was contended, inter alia, that the writ petition filed by the petitioner is not
maintainable. The 4th respondent, Mazlum Shah Darvesh Takia & Masjid-
Wakf, represented by its Mutavalli, filed suit O.S.No.3 of 2024 against the
writ petitioner and others for a declaration of title in respect of Ac.45.32
cents in R.S.No.249/1B1B of Guntupalli village. The property was
recognised, as per the Survey Commissioner Report, on the survey of
wakf dated 07.12.1955, as wakf property and notified in the Gazette.
The Wakf tribunal directed the parties to maintain the status quo by its
Page 5 of 23
order dated 19.01.2024. The writ petitioner, instead of filing a written
statement, filed the above writ petition.
b) In the counter affidavit, it was further pleaded about the British
Regime; amendment to Andhra Pradesh (Andhra Area) Inams (Abolition
and Conversion into Ryotwari) Act, 1956. However, those averments are
not extracted it being a legal aspect. It was further pleaded that the
Andhra Pradesh Rights in Land and Pattadar Pass Books Act, 1971 does
not apply to the lands belonging to the State and Central Government.
The petitioner suppressed the facts and secured the Pattadar Pass Book.
The suit O.S.No.151 of 1975 was filed for recovery of possession from
the defaulting tenants. The issue of title was not decided in the said suit.
The scope and nature of suit O.S.No.151 of 1975 and O.S.No.3 of 2024
are different, and hence, Section 7 of the Wakf Act, 1955 has no
application. The judgment passed in contravention of the statute is non-
est in the eye of the law. No individual can set up adverse possession to
the Wakf property. Section 108-A of the Wakf Act had an overriding
effect on other Acts. The petitioner has an efficacious and alternative
remedy under Section 83 (2) of the Wakf Act and eventually prayed to
dismiss the writ petition.
4. The 4th respondent filed a separate counter-affidavit, reiterating the
averments made in the counter-affidavit filed on behalf of the 2nd
respondent. Since the averments in the counter affidavit of the 2nd
respondent and the 4th respondent are similar, the averments in the
counter affidavit filed by the 4th respondent are not specifically extracted
herein.
5. Heard Sri K.G.Krishna Murthy, learned senior counsel assisted by
Sri Eluru Sesha Mahesh Babu, learned counsel for the petitioner, Sri
Page 6 of 23
Shaik Khaja Basha, learned standing counsel for the 2nd respondent and
Sri S.M.Subhani, learned counsel for the 4th respondent.
6. Learned senior counsel for the petitioner would contend that the
father of Syed Gulam Gouse, Mutavalli of the 4th respondent, filed the
suit O.S.No.151 of 1975 on the file of Subordinate Judge, Vijayawada,
against the predecessors in title of the petitioner as well as A.P. Wakf
Board, Hyderabad. The said suit was dismissed on merits by judgment
and decree dated 30.09.1978. The findings recorded in the said suit
became final, and hence, the suit O.S.No.3 of 2024 filed by the 4th
respondent in the writ petition is hit by Section 7 of the Wakf Act, 1995.
7. Learned senior counsel relied upon Saradha Khan Vs Syed
Najmul Hassan (Seth)1 and Syed Ammen Vs Andhra Pradesh State
Wakf Board, Rep by its Chief Executive Officer2.
8. Sri Shaik Khaja Basha and Sri S.M.Subhani, learned counsel for
respondents 2 and 4, on the other hand, would submit that the judgment
and decree in O.S.No.151 of 1975 do not take away the jurisdiction of the
tribunal in adjudicating the suit filed by the 4th respondent for the
declaration of title. The petitioner’s vendors are tenants and hence, the
tenants can never claim ownership. Taking advantage of the findings in
O.S.No.151 of 1975, the tenants sold the properties. The petitioner is one
of the vendees, and all other purchasers have been contenting the suit.
The petitioner initially filed I.A. to reject the plaint and later, has
withdrawn the same.
1
AIR 2007 SC 1447
2
2014 (6) ALD 411
Page 7 of 23
9. Now, the point for consideration is:
Whether the Wakf tribunal has jurisdiction to entertain and
proceed with the suit O.S.No.3 of 2024 filed by the 4th
respondent for declaration of the title, for cancellation of
the sale deeds etc. and recovery of possession of the
property, given the judgment and decree in O.S.No.151 of
1975?
10. Before proceeding further, let this Court examine the scope of the
Writ of Prohibition.
11. According to CRAIG R. DUCAT, a Writ of prohibition is an order
issued by a superior Court to an inferior Court directing it to cease
consideration of some matter to prevent it from usurping jurisdiction it did
not have3
12. In the words of Blackstone4, a Prohibition is a writ directed to the
judge and parties to a suit in any inferior court commanding them to
cease from the prosecution thereof, upon a suggestion that either the
cause originally, or some collateral matter arising therein, does not
belong to that jurisdiction, but to the cognizance, of some other court …
Or, if, in handling matters clearly within their cognizance, they transgress
the bounds prescribed to them by the laws of England.
13. The prohibition is an order directed to … an inferior Court, which
forbids that Court to continue proceedings therein in excess of its
jurisdiction or in contravention of the laws of the land. ‖
3
Craig R Ducat, Constitutional Interpretation, 8th Edition, Glossary
4
Durga Das Basu, Commentary on The Constitution of India, 9th edition, Volume 11(1)
at Page: 11677
Page 8 of 23
14. In Corpus Juris Secundum 5 , “Prohibition” is defined as “a
prohibition is that process by which a superior court prevents inferior
courts, tribunals, officers or persons from usurping or exercising
jurisdiction with which they have not been vested”.
15. The Hon’ble Apex Court in Hari Vishnu Kamath Vs. Syed
Ahmad Ishaque & Ors6, held thus:
―15. … When an inferior court takes up for hearing a matter over
which it has no jurisdiction, the person against whom the
proceedings are taken can move the superior court for a writ of
prohibition, and on that, an order will issue forbidding the inferior
court from continuing the proceedings.‖
16. In S.Govinda Menon Vs. Union of India7, the Hon’ble Apex Court
held thus:
―5. The jurisdiction for grant of a writ of prohibition is primarily
supervisory and the object of that writ is to restrain courts or inferior
tribunals from exercising a jurisdiction which they do not possess at
all or else to prevent them from exceeding the limits of their
jurisdiction. In other words, the object is to confine courts or tribunals
of inferior or limited jurisdiction within their bounds. It is well settled
that the writ of prohibition lies not only for excess of jurisdiction or for
absence of jurisdiction but the writ also lies in a case of departure
from the rules of natural justice (See Halsbury’s Laws of England, 3rd
Edn., Vol. 11, p. 114). It was held for instance by the Court of Appeal
in King v. North [1927 (1) KB 491] that as the order of the Judge of5
Durga Das Basu, Commentary on The Constitution of India, 9th edition, Volume 11(1)
at Page: 11678
6
AIR 1955 SC 233
7
AIR 1967 SC 1274
Page 9 of 23the Consistory Court of July 24, 1925 was made without giving the
vicar an opportunity of being heard in his defence, the order was
made in violation of the principles of natural justice and was therefore
an order made without jurisdiction and the writ of prohibition ought to
issue. But the writ does not lie to correct the course, practice or
procedure of an inferior tribunal, or a wrong decision on the merits of
the proceedings. It is also well established that a writ of prohibition
cannot be issued to a court or an inferior tribunal for an error of law
unless the error makes it go outside its jurisdiction
(See Regina v. Comptroller General of Patents and Design [1953 (2)
WLR 760, 765] ) and Parisienne Basket Shoes Proprietary
Ltd. v. Whyte [59 CLR 369] . A clear distinction must therefore be
maintained between want of jurisdiction and the manner in which it is
exercised. If there is want of jurisdiction then the matter is coram non
judice and a writ of prohibition will lie to the court or interior tribunal
forbidding it to continue proceedings therein in excess of its
jurisdiction.‖
17. In Union of India Vs. Upendra Singh8, the Hon’ble Apex Court
held that a writ of prohibition is issued only when a patent lack of
jurisdiction is made out.
18. In Thirumala Tirupati Devasthanams Vs. Thallappaka
Ananthacharyulu9, the Hon’ble Apex Court held thus:
―… A writ of prohibition is normally issued only when the inferior court
or tribunal (a) proceeds to act without or in excess of jurisdiction, (b)
proceeds to act in violation of the rules of natural justice, (c)
proceeds to act under law which is itself ultra vires or8 (1994) 3 SCC 357
9 (2003) 8 SCC 134
Page 10 of 23unconstitutional, or (d) proceeds to act in contravention of
fundamental rights. … A writ of prohibition must be issued only in
rarest of rare cases. Judicial discipline of the highest order has to be
exercised whilst issuing such writs …‖
19. Thus, a conspectus of the above authoritative pronouncements,
the superior Court would issue a writ of prohibition, prohibiting/preventing
from usurping or exercising the jurisdiction that was not vested in it. It is a
negative order intended to preclude future unlawful action or decision.
Keeping in the same mind, let this Court examine the issue.
20. The 4th respondent filed suit O.S.No.3 of 2024 against 17
defendants. The prayer sought in the plaint is for a declaration that the
plaintiff-wakf is the absolute owner of the plaint schedule property; for
cancellation of alleged deeds, 12 in number with consequential relief of
recovery of possession and to direct the defendants 14, 15 & 17 to enter
the plaintiff-wakf’s in the revenue records etc. The extent of the property
mentioned as per the schedule is Ac.1.64 cents, out of Ac.45.32 cents in
old R.S.No.54, R.S.No.249/1B and present R.S.No.249/1B1B of
Guntupalli village and Gram Panchayat, Ibrahimpatnam Mandal, NTR
District. Along with the plaint, 51 documents were filed.
21. A perusal of the entire plaint, neither an averment was made
regarding the judgment and decree in O.S.No.151 of 1975, nor a copy of
the judgment, decree and pleadings in the suit, is made as part of the
suit. Of course, this Court is conscious of the fact that it is adjudicating a
writ of prohibition, not an appeal arising out of any interlocutory orders
passed in the suit.
Page 11 of 23
22. Learned senior counsel for the petitioner emphasised the findings
in the judgment and decree in O.S.No.151 of 1975. Learned counsel for
respondents 2 and 4 would contend that the judgment and decree in
O.S.No.151 of 1975 have no relevance, since the present suit is filed for
a declaration of title.
23. The pleadings and judgment in O.S.No.151 of 1975 are made as
part of the writ petition, vide WPUSR No.68252 of 2024.
24. Section 7 of the Wakf Act 1995, expressly Section 7(5) of the Act,
plays a pivotal role, and hence it is profitable to extract the entire section:
7. Power of Tribunal to determine disputes regarding auqaf.–
(1) If, after the commencement of this Act, any question or
dispute arises, whether a particular property specified as waqf
property in a list of auqaf is waqf property or not, or whether a waqf
specified in such list is a Shia waqf or a Sunni waqf, the Board or the
mutawalli of the waqf, or any person aggrieved by the publication of
the list of auqaf under section 5 therein, may apply to the Tribunal
having jurisdiction in relation to such property, for the decision of the
question and the decision of the Tribunal thereon shall be final:
Provided that–
(a) in the case of the list of auqaf relating to any part of the State
and published after the commencement of this Act no such
application shall be entertained after the expiry of one year from the
date of publication of the list of auqaf; and
(b) in the case of the list of auqaf relating to any part of the State
and published at any time within a period of one year immediately
preceding the commencement of this Act, such an application may
Page 12 of 23be entertained by Tribunal within the period of one year from such
commencement: Provided further that where any such question has
been heard and finally decided by a civil court in a suit instituted
before such commencement, the Tribunal shall not re-open such
question.
(2) Except where the Tribunal has no jurisdiction by reason of
the provisions of sub-section (5), no proceeding under this section in
respect of any waqf shall be stayed by any court, tribunal or other
authority by reason only of the pendency of any suit, application or
appeal or other proceeding arising out of any such suit, application,
appeal or other proceeding.
(3) The Chief Executive Officer shall not be made a party to
any application under sub-section (1).
(4) The list of auqaf and where any such list is modified in
pursuance of a decision of the Tribunal under sub-section (1), the list
as so modified, shall be final.
(5) The Tribunal shall not have jurisdiction to determine any
matter which is the subject-matter of any suit or proceeding instituted
or commenced in a civil court under sub-section (1) of section 6,
before the commencement of the Act or which is the subject-matter
of any appeal from the decree passed before such commencement in
any such suit or proceeding or of any application for revision or
review arising out of such suit, proceeding or appeal, as the case
may be.
(6) The Tribunal shall have the powers of assessment of
damages by unauthorised occupation of waqf property and to
penalise such unauthorised occupants for their illegal occupation of
Page 13 of 23the waqf property and to recover the damages as arrears of land
revenue through the Collector:
Provided that whosoever, being a public servant, fails in his
lawful duty to prevent or remove an encroachment, shall on
conviction be punishable with fine which may extend to fifteen
thousand rupees for each such offence.
25. Thus, section 7 of the Act prescribes the power of the Tribunal in
deciding the disputes regarding auqaf. While sub-section (1) expressly
delineates the jurisdiction, sub-section 5 expressly confines the
jurisdiction of the Tribunal to the suits or other proceedings in the Civil
Court under Section 6 (1) of the Act, before the commencement of the
Act, either instituted or pending, including appeal, revision or review.
26. Section 6 of the Act deals with disputes regarding auqaf. Section
6(1), which is germane, is extracted hereunder:
6. Disputes regarding auqaf.–(1) If any question arises whether a
particular property specified as waqf property in the list of auqaf is waqf
property or not or whether a waqf specified in such list is a Shia waqf or
Sunni waqf, the Board or the mutawalli of the [waqf or any person
aggrieved may institute a suit in a Tribunal for the decision of the
question and the decision of the Tribunal in respect of such matter shall
be final:
Provided that no such suit shall be entertained by the Tribunal
after the expiry of one year from the date of the publication of the list of
auqaf:
Provided further that no suit shall be instituted before the
Tribunal in respect of such properties notified in a second or
Page 14 of 23subsequent survey pursuant to the provisions contained in sub-section
(6) of section 4.
27. Thus, once a civil Court has already adjudicated an issue relating
to the property before the commencement of the Act 43 of 1995, the
same issue cannot be agitated again. As narrated, the pleadings and
judgment in suit O.S.No.151 of 1975 are made available, this Court
perused the same cautiously.
28. Suit O.S.No.151 of 1975 was filed by the Muzlum Shah Darvesh
Takia Masjid, represented by its Mutavalli Syed Masoom Shah Khadri,
against Guntupalli Bhaskara Rao and others. The 6th defendant in the
suit is the Andhra Pradesh Wakf Board. Items No.2 and 3 of the
schedule property were sought to be recovered. Item No.1 of the plaint
schedule property, as per the averments in the plaint, was acquired by
the Government. Item No.2 is Ac.2.00 cents is inam dry in D.No.54.
Item No.3 is Ac.1.28 cents in the same D.No.
29. A perusal of the averments in the plaint in O.S.No.151 of 1975
would disclose that the plaint schedule property belonged to the plaintiff
institution. The Commissioner confirmed the grant in favour of the
plaintiff in 1860 and issued title deed No.899 in respect of Ac.123.19
cents. One Syed Fasululla, the grandfather of Mutavalli, filed suit
O.S.No.560 of 1955 on the file of the District Munsif Court, Vijayawada,
against Guntupalli Hanumantharao, the father of the 1st defendant, for
recovery of possession and mesne profits in respect of item No.1 of the
schedule property. He also filed suit O.S.No.562 of 1955 for recovery of
items No.2 and 3. The above suits and other suits filed by the same
plaintiff institution in respect of Inam lands were decreed on 28.02.1957.
Guntupalli Hanumantharao filed appeals A.S.Nos.63 and 64 of 1957.
Page 15 of 23
Pending the appeals, the named Mutavalli died and Syed Gulam Gouse,
father of Syed Masoom Shah Khadri, Mutavalli of the institution, who
filed suit O.S.No.151 of 1975 was added as successor Mutavalli. The
said Syed Gulam Gouse, a man of weak mind, entered into a
compromise with unsuccessful parties, despite judgment in A.S.Nos.410
and 411 of 1943, arising out of suits O.S.Nos.48 of 1940 and 42 of 1941.
While the land of similar nature could get 10 bags of paddy a lease
amount, fixing two bags of paddy in the compromise is nothing but
putting the interest of the institution in jeopardy. The said compromise
was entered into without the sanction of the Wakf Board, and the
compromise is contrary to the provisions of Section 60 of the Wakf Act.
Thus, the plaintiff prayed for profits and possession of items No.2 and 3
etc.
30. The said suit was contested by the defendants. The 1st defendant
filed a written statement. It was contended that Hanumantha Rao
purchased item No.1 of the schedule property and some property under
a registered sale deed from Zamamunnisa Begum and others. The
vendors’ children, Shamsunnisa Sahiba, who in turn got the same as a
part of the property allotted to her in a suit for partition in O.S.No.407 of
1938 on the file of the District Munsif Court, Vijayawada. Before the sale
of the property, the vendor’s predecessors, including father of vendor,
entered into an agreement, in which Ac.9.60 cents in R.S.No.28 of
Kondapalli village, in which the vendors had a joint right, was
surrendered to one Syed Fasilullah for rendering service to the plaintiff
mosque. Consequently, on an agreement, the Guntupalli lands were
released from the burden of the service. The 1st defendant’s mother
purchased items No.2 and 3 of the schedule property on 30.06.1946
from one P.Sitakantham, who in turn appeared to have purchased the
Page 16 of 23
same from Salar Shariff. In respect of items No.2 and 3, the above
arrangement was in force. The said agreement was taken note of by the
Wakf Board, and the same was evident from the Gazette publication in
the year 1962 at Page No.708, wherein it was mentioned that the
plaintiff’s land in Guntupalli village is only Ac.88.84 cents. The plaint
schedule properties are not included in the said Gazette. The property in
old S.No.28 is shown as property of the mosque.
31. Thus, a plain reading of the pleadings, the plaintiff pleaded title to
the property, sought recovery of possession, and the defendants denied
the title.
32. The Mutavalli of the institution was examined as P.W.1 and
Exs.A1 to A4 were marked. The 1st defendant was examined as D.W.1
and Exs.B1 to B26 were marked.
33. In the suit, 12 issues were framed. The first issue is whether the
plaint schedule land belonged to the plaintiff institution? Issues 1 to 4
were dealt with commonly.
34. As seen from the narration of the facts and discussion, the
schedule properties were purchased by the vendor of the defendants on
05.09.1944 and 30.06.1944 (Exs.B22 and B23). A compromise was
entered into by creating permanent tenancy rights in favour of the
defendants with a condition that the defendants should pay two bags of
paddy for wet land and one bag of paddy for dry land.
35. Since this Court is dealing with a Writ of Prohibition, some
excerpts of the judgment are here extracted:
Page 17 of 23
36. In Paragraph-12 of the judgment, the competent civil Court
recorded the following findings:
―I have stated this fact again because Exs.B24 (28.06.1962 – Entry
at Page 708 and 709 in Andhra Pradesh Part II Gazette for items
733 and 745 for Columns 1 to 11), the list of wakf’s publication, it is
total silence about the schedule property and did not show the
schedule property was surveyed. The fact that the schedule
property was not surveyed and that the same was not included
in the list of wakf’s are circumstances in favour of the
inference that the schedule property is not at all treated as
wakf’s property. It may be due to the fact that it was converted
into private property and substituted by another property covered
by R.S.No.28 at Kondapalli village and that may be the reason for
not including this in the list of wakf’s property. No reason has been
placed for not surveying this property. Though the wakf board has
been added as party as 6th defendant in the suit, the wakf board did
not take any interest either to produce any reliable evidence or
documentary evidence to prove the reason why the same was not
surveyed and included in the said publication. (emphasis is added)
37. Paragraph-13 of the judgment, it was observed as follows:
―13. … So as per procedure it is for the wakf board to declare
that the schedule property is wakf or not and this decision shall be
final unless superseded or modified by a competent civil Court. So
first of all, there should be an order of the Board declaring schedule
property as wakf property. But unfortunately there is no such order
in respect of the schedule property by the Board. When there is no
such order, there is nothing for the civil Court to supersede or
modify. In such circumstances and in view of the procedure which I
have just now mentioned, if the plaintiff is very particular about the
Page 18 of 23plaint schedule properties, it is his duty to apply to the wakf board
to give a finding or decision regarding schedule property as to
whether it is wakf property or not and then come to the civil Court
questioning the said decision, if he is aggrieved. In the said
circumstances, it is not open for the plaintiff to come to the Court
directly and file this suit for possession without obtaining the finding
of the Board that the schedule property is wakf’s property. In the
said circumstances, when the schedule property is not included in
the list of wakf property, the same has not been registered as
wakf’s property i.e. the suit filed by the plaintiff for a decision that he
said property is the wakf, it not at all maintainable. The right of
mutavalli to file a suit for the possession arises only after the
declaration of schedule property is wakf’s property … No evidence
has been placed before the Court as to on what basis the Board is
able to claim that the schedule property is wakf.
A categorical finding was recorded by the civil Court that –
―Moreover I have already said that the service with which the
schedule property was burden was taken over and the schedule
property was substituted by another property. So the schedule
property si not burdened with such service and it is obvious as
already stated by me from Exs.B25 and B26 etc., that even right
from 1938 the schedule property is being treated as private
property free from any service and it was being sold.‖
38. In Paragraph-14 of the judgment it was observed that:
―14. In the said circumstances, I am of the view that the
plaintiff has no right to file this suit without obtaining the decision of
the Board in this regard. So it cannot be said that the schedule
property is the wakf property, simply because the plaintiff claims
that it is wakf’s property. Considering all these aspects and as
Page 19 of 23matters stand at the stage it cannot be said that the schedule
property is wakf property irrespective of the fact that whether the
allegation of the plaintiff that this suit property is the wakf property
or not, is true or not.‖
39. In Paragraphs-21 and 22 of the judgment, the civil Court recorded
the following findings:
―21. … … So I hold on issue No.1 that there is no material
on record to show that the schedule property is the property of the
plaintiff institution. On issue No.2, I hold that the plaintiff is not
entitled to possession of items 2 and 3. In this regard, I have to
necessarily say at this stage that item No.1 was already acquired
and the amount was deposited in the Court and a reference under
Section 31 of the Land Acquisition Act was already made and
disposed of as revealed by Ex.B21 in which it was held that the
defendants should enjoy 3/4th interest on the compensation amount
deposited in the schedule property and that the plaintiff should
enjoy 1/4th of such interest. The parties are bound by that order
regarding item No.2.
22. So far as issue No.3 is concerned, I held that the
compromise decree in A.S.63/57 and 64/57 are legal and binding
on the plaintiff. So far as item No.1 is concerned the said
compromise is not hit by Section 60 of the Muslim Wakf Act.‖
40. The Civil Court also framed an issue regarding limitation. While
considering the said issue, it was held that Sitaratnam purchased the
property in 1944 and 1941 under Exs.B23 and B24. The defendants
have perfected their title, and hence, the suit is barred by time.
Page 20 of 23
41. Thus, after considering both oral and documentary evidence,
including the Gazette, the Civil Court recorded a finding that the suit
schedule property is not wakf property and the suit is also barred by
limitation.
42. The said judgment was pronounced on 30.09.1978, and it became
final, as per the contention of learned counsel on either side. Thus, the
suit filed by the wakf board, represented by its Mutavalli, for recovery of
possession of the plaint schedule property, based on the title, was
dismissed, and the competent Civil Court recorded the finding that the
property doesn’t belong to the wakf institution. In fact, a finding was also
recorded that the property was not published in the Gazette.
43. When a competent Civil Court recorded a finding in an earlier suit
that the property does not belong to the wakf institution, the present suit
filed by the wakf institution after a lapse of 4½ decades for declaration of
title, in the considered opinion of this Court, is not maintainable given
Section 7(5) of the Act. The present Mutavalli, the son of the earlier
Mutavalli who lost the suit on an earlier occasion, woke up from deep
slumber and filed the present suit after 4½ decades.
44. Once Section 7(5) of the Act comes into action, the Tribunal, at no
stretch of imagination, can continue the suit on its file for further
adjudication. The corollary would be that the tribunal lacks jurisdiction,
and hence, a writ of prohibition can be issued in the facts of this case.
45. At the hearing, the learned counsel appearing for the 2nd and 4th
respondents would contend that, given Section 107 of the Act, the suit
filed by the institution is maintainable. The answer to the said question is
no longer res integra.
Page 21 of 23
46. The Hon’ble Apex Court in T.Kaliamurthi Vs Five Gori Thaikkal
Wakf and others10 considered whether Section 107 of the Wakf Act is
retrospective in operation or whether it can have the effect of reviving
barred claims and held that it cannot revive a dead claim. Paragraphs
42, 43 and 58, relevant are extracted:
―42. From the above, it is clear that the right of action, which is
barred by limitation at the time when the new Act comes into force,
cannot be revived by the change in the law subsequently. In Ram
Murti v. Puran Singh [AIR 1963 Pun 393] , it has been held that
Section 107 renders the Limitation Act, 1963 inapplicable to suits for
possession of immovable properties comprised in any wakf or any
interest therein but the right of a person to institute such a suit which
is already barred at the commencement of this Act cannot revive. It
was further held that his title is extinguished and a good title is
acquired by the person in possession and that where the title of the
true owner is extinguished in favour of the wrongdoer, it is not
revived by that person again getting into possession. There is no
remitter to the old title.
43. Let us also see Section 112 of the Wakf Act dealing with
repeal and savings. Sub-section (1) repeals the Wakf Act, 1954 and
the Wakf (Amendment) Act, 1984. Sub-section (2) provides that
notwithstanding such repeal, anything done or any action taken
under the said Acts shall be deemed to have been done or taken
under the corresponding provisions of this Act. In the present case,
there is no specific provision which stipulates that Section 107 has
any retrospective effect. If we look at Section 112, it is clear that sub-
section (2) is the saving clause and provides validity to the actions
taken under the repealed Act. As noted herein earlier, the High Court
10
(2008) 9 SCC 306
Page 22 of 23
has proceeded on the assumption that a reading of Section 112 of
the Act leads to the conclusion that the provisions of the Act are
intended to apply to pending proceedings also.
53. In view of the above authorities, we are of the view that in the
present case, once it is held that the suit for possession of the suit
properties filed at the instance of the Wakf were barred under the
Limitation Act, 1908, the necessary corollary would be to hold that
the right of the Wakf to the suit properties stood extinguished in view
of Section 27 of the Limitation Act, 1963 and, therefore, when
Section 107 came into force, it could not revive the extinguished
rights. The authorities relied upon by the learned counsel for the
respondents in this regard in Sree Bank Ltd. v. Sarkar Dutt Roy &
Co. [AIR 1966 SC 1953 : (1965) 3 SCR 708] , Dhannalal v. D.P.
Vijayvargiya [(1996) 4 SCC 652 : 1996 SCC (Cri) 816] , New India
Assurance Co. Ltd. v. C. Padma [(2003) 7 SCC 713 : 2003 SCC (Cri)
1709] and S. Gopal Reddy v. State of A.P. [(1996) 4 SCC 596 : 1996
SCC (Cri) 792] have no application to the facts of the case because
in these cases, unlike the present case, there was no extinguishment
of the rights.‖
47. This Court, indeed, dealt with a rather analogous issue, in Valluri
Siva Prasad Vs the District Registrar, Registration Stamps, Guntur
and others11, wherein it was held that the judgment in a suit between a
private individual and Wakf Board, which became final, would operate as
res judicata and hence the wakf institution cannot request the revenue
authorities to keep the property in dispute register under Section 22-A of
the Registration Act. This Court also held that the wakf institution, being
11
W.P.No.42457 of 2017 dated 06.05.2025
Page 23 of 23
an instrumentality of the State, cannot overreach the judgment passed
by the Civil Court.
48. Thus, given the discussion supra, the writ petition filed by the
petitioner stands allowed. The Wakf Tribunal, Andhra Pradesh, had no
jurisdiction to adjudicate the suit O.S.No.3 of 2024, given Section 7(5) of
the Wakf Act, 1995.
As a sequel, pending miscellaneous petitions, if any, shall stand
closed.
__________________________
JUSTICE SUBBA REDDY SATTI
PVD