Janardan Sahai - (1.) -Akbar Ali Khan created a waqf-alal-aulad in respect of certain properties by a deed dated 26.7.1934. By the said deed Akbar Ali Khan appointed himself as the first mutawalli. He died on 16.12.1958 leaving behind three sons Qasim Ali Khan, Kazim Ali Khan and Raza Ali. On his death the names of these sons was mutated as their bhumidari. Qasim Ali Khan became the mutawalli after death of Akbar Ali under the terms of the waqf deed. Kazim Ali Khan who was a beneficiary of the waqf executed a sale deed of his 1/3 share on 14.10.1960 in favour of Mohammad Ahmad Ali Khan one of the sons of Raza Ali. Ahmad Ali was also a beneficiary of the waqf. A subsequent sale deed dated 26.9.1974 was executed by the Mutawalli Qasim Ali Khan of his 1/3 share to Ahmad Ali Khan another son of Raza Ali. This sale deed was therefore executed by the mutawalli in favour of a beneficiary. Qasim Ali Khan was replaced by his son Sujat Ali as a mutawalli after he had resigned or was removed some time in 1988 or 1990, not very clear. Sajjad Ali the applicant in these revisions is the son of Qasim Ali Khan. On 20.9.1996 Sajjad Ali filed a complaint to the Waqf Board making allegations of mismanagement against Sujat Ali the mutawalli praying for his removal and seeking his own appointment. He alleged that the waqf property was in unauthorized occupation of Raza Ali, Mohammad Ahmad Ali and Ahmad Ali and prayed for recovery of the waqf properties. A report dated 15.3.1997 was submitted by the Senior Inspector Waqfs that the waqf was registered as Waqf No. 1456 and that the properties were waqf properties, that Raja Ali Khan got the waqf properties partitioned showing that these were ancestral properties and thereafter got them purchased in the names of his sons. It was said that the sale deeds were obtained without permission of the Court or of the Waqf Board and were therefore invalid. Dr. Nasim Zaidi the Controller purporting to exercise powers of the Waqf Board passed two orders dated 16.7.1997 and 12.8.1997 under Section 52 of the Waqf Act, 1995, which had come into force with effect from 1.1.1996 holding the two transfers to be illegal for want of permission and issued a requisition to the Collector to recover the waqf properties. The Collector passed an order dated 31.12.1997 under Section 52 (2) of the Act directing the respondents in possession to deliver possession of the property to the Board. This order of the Collector was challenged by the respondents Ahmad Ali and Mohd. Ali in two separate appeals No. 2 of 2002 and 3 of 2002 under Section 52 (4) of the Act, which were allowed and the order of the Collector under Section 52 (2) of the Waqf Act, 1995 was set aside. Sajjad Ali Khan has challenged the orders passed by the Tribunal in these two revisions.
(2.) I have heard Sri W. H. Khan, learned senior advocate for the applicant and Sri M. A. Qadeer, learned senior advocate for the respondents and Smt. Tulika Prakash for the Waqf Board who adopted the arguments of Sri W. H. Khan. Long after the execution of the waqf deed a sale deed was executed in 1948 by Akbar Ali Khan of a tube-well and some adjoining land, which was part of the waqf property. Qasim Ali Khan son of Akbar Ali Khan filed Original Suit No. 1 of 1950 challenging the sale deed. The trial court decreed the suit. First Appeal No. 139 of 1951 filed by Akbar Ali Khan was dismissed by this Court by judgment and decree dated 11.7.1962. One of the issues framed in the suit was whether the waqif being a Shia had reserved any interest for himself in the waqf property and if so is the waqf void and invalid for this reason. It was held by this Court in the appeal that Raja Akbar Ali Khan had created a valid and effective waqf and that all the legal requirements in respect of the creation of the waqf by a Shia under the Mohammadan Law have been made out. It was also found that after the waqf was created the possession of Akbar Ali Khan was as mutawalli. The Tribunal has held that the judgment of Original Suit No. 421 of'1959 does not operate as res judicata because the respondents Ahmad Ali and Mohd. Ali were not parties in that suit and secondly the property involved in that suit was different from the one, which is the subject-matter of the present dispute. Sri W. H. Khan, learned senior advocate for the applicant submitted that what has to be seen for deciding the issue of res judicata is whether there was identity of title between the parties. The submission has merit. In Lakshmi Devi v. Banamali Sen, AIR 1953 SC 33, the principle was recognized and it was held that test of res judicata is the identity of title in the two litigations and not the identity of the actual property involved in the two cases. Ahmad Ali Khan and Mohd. Ali Khan are sons of Raza Ali son of Raja Akbar Ali Khan. They claim title over the properties on the basis of inheritance from Akbar Ali Khan. The decree in Original Suit No. 1 of 1950 against Akbar Ali Khan is therefore binding upon them. On the other point too that the properties involved in the present dispute are different from that, which was involved in the aforesaid suit also the Tribunal has committed an error. The finding recorded by this Court in the first appeal aforesaid was that the waqf in question is a valid waqf. This finding operates as res judicata. It is not in dispute in the present case that the properties in which Kazim Ali Khan and Qasim Ali Khan had sold their shares are covered by the waqf deed. The view taken by the Tribunal that for the aforesaid two reasons the judgment and decree of Original Suit No. 1 of 1950 does not operate as res judicata is erroneous. The third reason given by the Tribunal for the non-applicability of res judicata which is a reason equally untenable is the decision of the consolidation court to which we shall now advert. It appears that on the death of Akbar Ali Khan in the year 1958 the names of his three sons were mutated. Original Suit No. 421 of 1959 was filed by Qasim Ali Khan for declaration that the property is a waqf. The suit was however abated on account of commencement of consolidation proceedings in the village. An objection was filed by Qasim Ali Khan for expunging the names of the sons of Akbar Ali Khan on the basis that the properties were waqf. The Consolidation Officer by order dated 24.11.1967 allowed the objections and directed that the entry of waqf be made in the revenue record. It was held by the Consolidation Officer that on the creation of the waqf the property stood transferred to God Almighty and the transfer by Kazim Ali Khan in favour of Ahmad Ali Khan was invalid. The appeal against the order was dismissed by the Settlement Officer, Consolidation. The Deputy Director of Consolidation also dismissed the revision filed by Kazim Ali Khan and Raza Ali by orders dated 29.1.1969. It was held that the properties were waqf properties. The case of the applicants is that a restoration application was filed against the order of the Deputy Director of Consolidation, which was dismissed on 2.3.1972 and thereafter another restoration application was filed in which a compromise was entered into collusively amongst Qasim Ali Khan, Kazim Ali Khan and Raza Ali to the effect that the waqf was a paper transaction and was never acted upon and that the bhumidars of the plots in dispute are Qasim Ali Khan, Raja Ali Khan and Mohammad Ahmad Ali Khan vendee each having a 1/3 share. The Deputy Director of Consolidation by order dated 12.9.1974, decided the revision on the basis of the compromise. It was submitted by the applicants' counsel that the order of the Deputy Director of Consolidation dated 29.1.1969 had become final and could not have been affected by the compromise in the second restoration application and that the Deputy Director of Consolidation had no power to review his order. The Tribunal has however recorded a finding that the order dated 29.1.1969 was an ex parte one, and that the restoration application was dismissed in default and thereafter the second restoration application for setting aside the order dismissing in default the previous restoration application as well as for setting aside the order dated 29.1.1969 of the Deputy Director of Consolidation was allowed and the revision had been restored and the compromise was entered into not in the restoration application but in the revision itself. This is a finding of fact and there is nothing to show that the statement of fact contained in the order of the Tribunal is incorrect. The Tribunal has also found that Sujat Ali Khan who was appointed as mutawalli after Qasim Ali Khan, had filed a writ petition against the order passed on compromise by the Deputy Director of Consolidation but the writ petition was dismissed as withdrawn. The Tribunal has therefore held that the order of the Deputy Director of Consolidation in the revision on the basis of the compromise has become final and all challenge to it is barred under Section 49 of the U. P. Consolidation of Holdings Act.
(3.) SRI W. H. Khan, learned senior advocate for the applicants however submitted that the compromise was a collusive one and the sons of Akbar Ali Khan could not defeat the waqf by a fraudulent compromise. There appears to be merit in this contention. In State of Punjab and others v. Amar Singh and others, AIR 1974 SC 994, it was held by the Apex Court that a compromise against public policy or prescription of a statute can be impeached. In Sunni Central Board of Waqfs and another v. Devi Charan and others, 1995 (2) AWC 1147, it was held that once a waqf property always waqf property and the transferee of the waqf property cannot claim benefit of Section 41 of the Transfer of Property Act. In Chhedi Lal Mishra (Dead) through L.Rs. v. Civil Judge, Lucknow and others, 2007 (4) SCC 632 : 2007 (2) AWC 1567 (SC), a waqf was created by one Mirza Mohammad Haider and after its registration the waqif filed a suit against the mutawalli which was decreed in terms of a compromise. Thereafter the waqif and his son the mutawalli executed a transfer deed in respect of waqf property. The Waqf Board requested the Deputy Commissioner to issue notice to the transferer to hand over possession. The transferer appealed. The Civil Judge dismissed the appeal holding the compromise decree was not binding on the Board as it was not a party in the suit. The High Court dismissed the writ petition. The Apex Court observed that the suit was a collusive one decreed on the basis of compromise. The decision of the High Court and that of the Civil Judge that the compromise was not binding was upheld. In A. V. Papayya Sastry and others v. Government of Andhra Pradesh and others, 2007 (4) SCC 221 : 2007 (3) AWC 2538 (SC), it was held that fraud vitiates all the proceedings. In Karbalai Begum v. Mohd. Sayeed, AIR 1981 SC 71, the Apex Court held in a case where cousins of a widowed co-sharer were in possession that the cousins were in possession as constructive trustees and they could not claim the rights by adverse possession, which would be a fraud. The compromise in the present case is also invalid as the consent of the parties to convert the waqf property into secular property would be a fraud played upon the Court and the compromise order of the consolidation court can therefore be ignored. Moreover, the Waqf Board, which is a necessary party in all disputes relating to waqf property was not impleaded as a party before the Deputy Director of Consolidation. Section 69 of the U. P. Muslim Waqf Act, 1960 reads as follows : "69. Bar to compromise of suits by or against mutawallis.-No suit or proceeding pending in any Court by or against mutawalli of a waqf relating to title to waqf property or the rights of the mutawalli shall be compromised without the sanction of the Board." In the absence of the Waqf Board the order passed by the Deputy Director of Consolidation on the basis of the compromise was invalid in view of Section 69 of the U. P. Muslim Waqf Act, 1960.;