DR.DHANANJAYA Y.CHANDRACHUD, J. - (1.) A Single Judge of the High Court of Karnataka dismissed a second appeal filed under Section 100 of the Code of Civil Procedure 1908 ("CPC"), affirming the decision of the Trial Court and the First Appellate Court that the suit instituted by the appellant-plaintiff is barred by the principle of res judicata. The appellant moved this court in a Special Leave Petition to challenge the decision of the Single judge. Leave has been granted on 8 December 2014. A. The Facts
(2.) Described as the Jamia Masjid Gubbi in the cause title, the appellant instituted the suit (O.S 149/1998) through its President for seeking the following reliefs: (i) A declaration that the State Wakf Board is the owner in possession of the suit schedule property, being survey No. 2 of Gubbi village admeasuring 2 acres and 4 guntas of non-agricultural land with a cinema building; (ii) A decree for possession against the defendants; (iii) An injunction to restrain the defendants from interfering with the possession and enjoyment of the plaintiff; and (iv) A decree for mesne profits.
(3.) The case of the plaintiff-appellant is as follows: (i) The suit property is a 'Khazi Service Inam'. Abdul Khuddus, the spouse of the fifth defendant and father of the sixth to ninth defendants was the mutawalli who was managing the property for and on behalf of the Wakf Board. Abdul Khuddus, was entitled to the usufruct of the property subject to the condition precedent that he would perform his service as a Khazi or Mutawalli. During his lifetime he had given up his service as a Khazi upon being appointed by the Gubbi Muslim Jamath as the Pesh Inam on a monthly salary of Rs 30 for performing the Namaz (daily prayers); (ii) Upon the enactment of the Wakf Act 1954, which was adopted by the then Mysore State in 1955, the Assistant Commissioner conducted a survey of Wakf Properties in 1963. Abdul Khuddus gave a declaration to the Wakf Board for the registration of the suit schedule property as a wakf. A notice inviting objections for registration of the suit schedule property as a wakf property was issued. No objection to the registration of the suit schedule property was raised and eventually the property was notified as a wakf property at serial No 136 of the Mysore Gazette notification No. MWB 19(11) dated 6 July 1965; (iii) Under section 6 of the Wakf Act 1954, if any dispute arises on a property declared as a wakf property, a claim can be raised within one year of the publication of the notification. There is a prohibition on alienation under rule 5 of the Wakf Rules framed under the Wakf Act, 1965 unless approved by a two-thirds majority of the Wakf Board; (iv) A person by the name of H.S. Gururajarao and his brothers were granted a lease over the schedule suit property on 8 December 1944 by the Muzrai officer to run a 'cinema talkies'. A suit, OS 748/1968, was instituted by the Wakf Board against the Abdul Khuddus and H.S. Gururajarao seeking possession of the suit property and a declaration that the property constitutes a wakf. The suit was compromised with Abdul Khuddus being permitted to collect the rent from the lessee (H S Gururajarao) on behalf of the Board; (v) After the death of Abdul Khuddus, defendants 6 to 9 took possession of the suit property. Allegations of mismanagement of the suit property were made against them. The Chairman, D.W.C Tumkur recommended that the suit property be directly managed by the Board under section 43(A) of the Wakf Act 1954. Pursuant to the recommendation, the State Wakf Board passed an order dated 6 April 1983 taking over the management; (vi) H.S. Gururajarao who was in possession of the suit schedule property as a lessee, handed over possession of the cinema building to the Wakf Board on 29 June 1983. Defendants 5 to 9 however executed sale deeds in respect of the property in favour of Defendants 1 to 4. Any alienation by Defendants 5 to 9 is void since the Board did not approve the transaction with a two-thirds majority; and (vii) The cause of action arose on 16 April 1983 when Defendants 1 to 4 together with other defendants interfered with the possession of the plaintiff on the strength of the sale in their favour executed by Defendants 5 to 9.;