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Judgment
Anand Byrareddy, J.—The present petition is filed by the Karnataka State Board of Wakfs (Hereinafter referred to as the ''Board'', for brevity), seeking to question the dismissal of the suit filed by respondent No. 7. It transpires that the suit had been instituted only by respondent No. 7, being authorized by the petitioner. Since the decree has not been challenged by respondent No. 7, the Board has taken upon the responsibility of doing so. Respondent No. 7 has been transposed as petitioner No. 2.
It is the case of the petitioners that the suit property which is described in the schedule to the suit belonged to one Janab Mohammed Hayath Saheb. Respondent No. 7, who was said to be the president of the said wakf property, was his grand son. Hayath Saheb is said to have died in the year 1916 and he had left behind a will permanently dedicating the suit property as a wakf for the use as a musafir khana. The said dedication was a permanent dedication by a person professing islam, as per the definition of ''wakf'' under section 3(r) of the Wakf Act, 1995 corresponding to section 3(1) of the Wakf Act, 1954.
It is stated that there was a partition suit in OS 465/1922-23 between the second wife of Janab Mohammed Hayath Saheb and the children of the first wife which was compromised and in terms of the settlement, it was acknowledged by both the parties that the property was dedicated to religious purposes for use as a choultry. The said decree and settlement deed is an express acknowledgement of permanent dedication by Janab Mohammed Hayath Saheb for a purpose recognized by the Muslim Law as pious, religious or charitable. Therefore, dedication of a wakf as contemplated under Section 3(r) of the Wakf Act, 1995 is satisfied.
The khata entries in respect of the suit schedule property was in the name of Hayath Saheb till the year 1991. He was possessed of various items of property, some of which adjoined the suit property at land bearing Survey No. 259 measuring 6 acres 38 guntas, which also belonged to him and the said properties were inherited by his descendants. The son and brother of Mohammed Hayath Saheb had mortgaged the adjacent properties to one Siddalingappa and Ranganamajappa and subsequently it was sold by way of a registered sale deed dated 24.11.1927. The sale deed had a clause to indicate that the adjunct property was dedicated for charitable use as musafir khana and the said user was to be maintained. This is an undertaking from the vendees in the sale deed not to obstruct the use and enjoyment of the said adjunct wakf property, which was dedicated for charitable purposes permanently and did not form part of the sale transaction. In any case, the vendors did not have even the right to alienate the said dedicated property in favour of the purchaser. As such, by the sale deed dated 24.11.1927 the purchasers did not acquire any right or interest in the wakf property, but had merely undertaken not to interfere with its use. Therefore, the wakf property had continued to be maintained as such and was being used for the said purpose. In the year 1958, the son of Hayath Saheb had even attempted to alienate the wakf property to Gulam Hussain, Basavaraju and one Neeli Siddalingappa. But, the same was objected to by the widow of Hayath Saheb and the khata entry restored in his name and an endorsement was provided to this effect by respondent No. 2. Subsequently, in the years 1963, 1989 and 1990, the descendants of Hayath Sab had received an endorsement from respondent No. 2 that khata stood in the name of Hayath Saheb.
In the year 1990, Gulam Hussain''s family again attempted to sell the wakf property to one Shyalamala Devi, which was again resisted and the khata stood restored in the Hayath Saheb. Therefore, the descendants of Hayath Saheb have continued to assert the rights of ownership on behalf of the wakf. In the year 1994, respondent No. 7 is said to have approached the petitioner for registration of the subject property under Sections 25 and 26 of the Wakfs Act, 1954 and following the procedure laid under the act and on the basis of the information supplied by the applicant, it was registered as wakf property in the Register of wakfs and a Certificate of registration was issued. No person had come forward objecting to the registration. Further, the petitioner had also approved the Scheme of management of the wakf.
In the meanwhile, without the knowledge of the descendants of Mohammed Hayath Saheb, Siddalingappa and Ranganamajappa purported to transfer by way of gift deed dated 3.1.1966 the wakf property which was adjunct to their own to respondent No. 4 for use as a school or otherwise for the benefit of the public. The said gift deed and transaction were said to be illegal and void ab initio, as no right was possessed by Siddalingappa and Ranganamajappa to alienate the property by way of gift deed. Respondent No. 7 having come to know about the change of khata entries pursuant to such alienation in respect of the said wakf property, had issued notices bringing to the attention of the second respondent, that the property was a wakf property and the khata entries must be reverted in the name of the said wakf.
However, it transpires that in the year 1998, respondent No. 6 formed respondent No. 7 Committee and they had constructed a school building on the wakf property, which again was opposed by the petitioner. Respondent No. 7 had also filed a criminal complaint on the footing that the construction of the school building was unauthorised and there was not even license to operate the school in the said premises. It is in this background that respondent No. 7 had preferred a civil suit in OS 18/2000 before the court below, which was then transferred to the Karnataka Wakf Tribunal, Bengaluru and renumbered as OS 38/2000. It is that suit which has been dismissed after contest.
The primary contention of the learned Counsel for the petitioner is that several documents have been annexed to this petition which were never filed before the Tribunal for the reason that the petitioners could not lay their hands on the same and it is after sustained effort that they could even salvage these documents and if the controversy is viewed in the light of the contents of these documents, the dimension of the case completely changes and added to this, there are some more documents which could be addressed by the petitioner and hence, an application seeking to produce additional documents is also filed.
There is much resistance by the State on behalf of the Assistant Educational Officer, as well as the Counsel appearing for respondents 5 and 6. Though other respondents are served, there is no representation.
The primary contention being as above and since the object of any adjudication would be to arrive at the truth of the matter and in view of the fact that the property appears to have been under the management of the several successive candidates and the documents being correlated only after the disposal of the suit would require reconsideration of the matter. Applying the principles on which Order XLI Rule 27 of the Code of Civil Procedure, 1908 is framed and having regard to the fact that several documents now produced were not in the hands of the petitioners and could not be produced with due diligence even after exercising due diligence and since the documents are, in any event, now available for examination, it would be in the interest of the wakf that the matter be heard on a consideration of the additional material, which the petitioners are enabled to produce before the tribunal in evidence and thereafter the matter could be considered on merits in accordance with law. Therefore, the suit shall revert to the stage of evidence. The petitioners shall be afforded an opportunity of placing original documents on record and canvass their arguments on the merits of the case. The respondents shall also be heard and thereafter the Tribunal shall decide in accordance with law. Since the petitioners have chosen to produce only copies of the documents annexed to the petition as well as the accompanying application seeking to produce additional documents, the office is directed to return the originals, to enable them to produce before the Tribunal.
The petition is accordingly allowed. The judgment and decree of the Tribunal is set aside. The matter is remitted to the Tribunal in terms as above. Having regard to the fact that the matter is of some vintage, the Tribunal shall expedite the consideration of the suit.
Insofar as the subject property being utilized for a school, is concerned, even if the petitioners should succeed in the suit, the school ought not to be disturbed as it is being used for a public purpose and it continues to be used as such.