V.N.KHARE - (1.) THIS appeal is directed against the judgment of the High Court of Andhra Pradesh dated 6-8-84 passed in Appeal No. 89 of 1976 (reported in AIR 1985 Andh Pra 127) whereby the High Court allowed the appeal and decreed the original suit filed by the first respondent herein.
(2.) THE facts leading to the filing of the Civil Appeal are these : The first respondent herein is the Andhra Pradesh Wakf Board (hereinafter referred to as the "Wakf Board") constituted under the Wakf Act (hereinafter referred to as the "Wakf Act"). The Wakf Board is entrusted with the duty of administering and supervising all wakfs, within the State of Andhra Pradesh, whether created before or after the commencement of the Wakf Act. One of such Wakfs is by the name "Syed Ali Ishaq Madina Vali Dargah" having about Ac. 358-53 cts. land in Devada Mokhasa village covered by title Deed No. 42. It was alleged by the Wakf Board that the aforesaid property was endowed by the Nizam or Hyderabad for support and the services of the Dargah in the port area of district Visakhapatnam. It was further alleged that, from the property the income was being utilized for the maintenance and performance of services of the said Dargah from time immemorial and after constitution of the Wakf Board, the first respondent herein, notified the said property as Wakf property in the Andhra Pradesh Gazette dated 30-11-1961. It was also alleged that the Mutawallis managing said the property without any kind of right, executed long term leases in favour of other defendants, who on their turn, executed long term sub-leases. Since the Mutawallis have no right or authority to execute long term leases, the Wakf Board on 8-8-1967 filed the suit in the Court of Subordinate Judge, Visakhapatnam for cancellation of various leases or sub-leases in respect of the property and for recovering the possession thereof. The case of Wakf Board was that long term leases being illegal, do not bind the Dargah as the property is a Wakf property. The suit was contested by the sub-lessees and the defence taken by them was that the grant was not in favour of Dargah and the property was not a Wakf property and, in fact, the grant was in favour of named individuals burdened with the service. The learned Subordinate Judge by judgment dated 14-2-75 dismissed the suit holding that the inam was in favour of the named individuals and the property did not belong in the Dargah and that the Wakf Board is estopped from contending that the property in dispute is part of Wakf property in view of the judgment of the High Court in Writ Petition No. 1726 of 1968. In this contest it may be mentioned here that, before filing the suit, the Tahsildar made a suo motu enquiry under Section 3 of the Andhra Pradesh (A.A.) Inams (Abolition and Conversion into Ryotwari) Act, 1956 (hereinafter referred to as the "inams Act") for the purposes of grant of pattas on three points, viz., firstly, whether the property in dispute is an inam land; secondly, whether such inam land is in a ryotwari, zamindari or inam village and, thirdly, whether such inam land is held by any institution. The Tahsildar by his order dated 17-1-67 held that the land specified below is an inam land; that the land is in the inam village of Devada Mokhasa of Visakhapatnam Taluk in Visakhapatnam District; and that the land is not held by an institution. JUDGEMENT_642_2_1998Html1.htm It may be mentioned here that the Tahsildar by his subsequent order dated 2-6-77 held the following land is an inam land and is in village Devada Mokhasa of Visakhapatnam Taluk and is not held by an institution. JUDGEMENT_642_2_1998Html2.htm Against the order of the Tahsildar an appeal was preferred before the Revenue Divisional Officer Visakhapatnam which was dismissed on 21-8-67. Subsequently, the orders of Tahsildar and the Revenue Divisional Officer were challenged before the High Court of Andhra Pradesh by means of a petition under Article 226 of the Constitution but the same was dismissed by order and judgment dated 22-4-1970. To complete the chain of events the Wakf Board after dismissal of its suit preferred first appeal before the High Court of Andhra Pradesh which was allowed and the Wakf Board's suit was decreed.
(3.) LEARNED counsel appearing for the appellant advanced number of submission in support of appellants' case. He contended that the view taken by the High Court that the property is a Wakf is erroneous. LEARNED counsel took us to various documents which are on record of the case and argued that the property was in fact a grant made to individuals and not a Wakf property. The document relied upon by the High Court for coming to the conclusion that the property is a Wakf, are Ex. B 3 dated 1-12-63 which is an extract from the Inam Fair Register, Ex. B-4 is a certified copy of the decree dated 17-12-1903, Ex. A-30 is a certified copy of compromise decree dated 7-2-1910 and Ex. A-1 is a survey report dated 2-4-1956. It is true that the grant or sanad dedicating the property is not on record. Further, there is no evidence on record to show as to who granted inam, in whose favour and in what year. In the absence of such documents what is to be considered is, whether taking an overall view of the evidence on record, the Wakf Board has succeeded in establishing that there is a permanent dedication of the property as Wakf. Ex. B-3 and Ex. A-20 throw sufficient light on the character of the disputed property. Ex. A-20 shows that the grant was made of land in Devada Mokhasa and the Mokhasa village was resumed and the title deed earlier issued by the Inam Commissioner was cancelled in July, 1902, as the grantees were not rendering service at the Dargah. The Mokhasadar challenged the resumption of land by means of a suit filed before the District Judge, Visakhapatnam being Suit No. 16/1902 and the District Judge decreed the suit by the judgment dated 17-12-1903 (Ex. B-4). The Government preferred an appeal against the said judgment before the Madras High Court where the dispute between the Government and the Mokhasadar was compromised, vide Ex. A-30, the relevant clauses of which are extracted below : "(1) . . . . (2) That the Mokhasadars and their heirs do permanently enjoy the suit properties performing the duties connected with the Dargah subject to the following conditions viz. (3) Out of the annual net income of the Mokhasa of Devada for the Dargah not less than Rs. 120.00 a year shall be spent by the Mokhasadars on the distribution of Khyrat among travelling Fakirs or of the whole amount cannot be so appropriated, the remainder shall be spent on any suitable charity among the Mohammedans of Visakhapatnam with the approval of the Collector. (b) Out of the annual net income not less than Rs. 1125.00 shall be spent for the Moharram, monthly festivals and general upkeep of the Dargah and Rs. 75.00 on annual repairs and lighting. The repairs are to be done to the satisfaction of the Collector of Visakhapatnam. (c) . . . . . . . (3) (a) That out of the mesne profits up to the end of Fasli 1317 of the Mokhasa of Devada in the hands of Government, 2/9 be constituted into a charitable fund for Mohammedan education or their charity to be determined and administered by the Municipal Council of Vizagapatem and that the said sum be invested in Government Promissory notes or other Trust Securities in the name of the Municipal Council; (b) That a sum equal to 1/9 of the accumulated mesne profits be spent by the Mokhasadars on restoring the Dargah to the satisfaction of the Collector of Visakhapatnam; and (c) . . . . (4) That the costs incurred by the Government amounting to Rs. 1024.11.0 be paid in equal shares from the mesne profits to be paid to the plaintiffs and from the amount to be set apart for a charitable fund for Mohammedan education, and that the plaintiffs do bear their own costs. (5) That an account be rendered every year by the Mokhasadars to the Collector on the 15th of April every year, of the expenditure on charity, Dargah and ceremonies under separate heads. (6) That the grant be resumable, if the terms of the compromise are not fulfilled." A glance of the terms of the compromise would show that the compromise decree obligated the Mokhasadars to spend a portion of income not less than Rs. 1125.00 for performing Muharrum, monthly festivals and general upkeep of Dargah and Rs. 75.00 on annual repair and lighting in Dargah which were to be done to the satisfaction of the Collector of Visakhapatnam. Further, a sum of Rs. 120.00 was required to be spent by Mokhasadars on distribution of (khyrat) charity amongst the travelling Fakirs and if the whole amount is not spent, the remainder was to be spent on suitable charity among Mohammedans of Visakhapatnam with the approval of the Collector. Clause 3(a) of the compromise decree also stipulated that out of mesne profit up to the end of fasli 1317 of Mokhasa in the hand of Govt., 2/9th of which be constituted into a charitable fund for Mokhsadars' education fund or their charity to be determined and administered by Municipal Council of Visakhapatnam and the said sum be invested in Govt. promissory notes or other trust securities in the name of Municipal Council. Further a sum equal to 1/9th of the accumulated mesne profits be spent by Mokhasadars on restoring the Dargah. It was also stipulated that if the terms of compromise are not fulfilled, the grant would be resumable. These terms of compromise do indicate that the nature of the property a service Inam. The grant in favour of the Mokhasadars was subject to the condition that they render service at the Dargah and perform the various obligations imposed on them. It was not left to the Mokhasadar to neglect the Dargah and not to incur any expenditure for the upkeep of Dargah or performing Muharrum and other festivals. The purpose for which the Mokhasadars were obligated was for purposes under the Muslim law as pious, religious or charitable. It is true that the compromise decree constituted inam as a service inam, but under the Wakf Act such a grant answers to the description of Wakf even if the Mokhasadars were allowed to enjoy the property, subject to this restriction that they would render service as stipulated in the compromise decree. The Andhra Pradesh High Court in R. Doraswamy Reddy v. Board of Wakf, (1978) 2 APLJ 399, relied upon by the High Court, has correctly summed up the legal position of a service inam as under : "it is true that the land was granted to an individual to perform service. But it does not mean that he acquires title to that property. Similarly, if the land can be resumed for non-performance of service and can be regranted to another person for rendering service, it does not mean that the original grantor continues to be the owner of the property. When once the Wakf was created it continues to be a Wakf. When the inam is resumed and regranted it does not mean that there is revocation of the service. It only means that the Wakf property is entrusted to another individual to perform the service." ;