Quashed

Mstt. Noor Fateh and 2 Ors. v. Assam Board of Wakf, Guwahati and 2 Ors.

Gauhati HC7 May 2025CRP/5/2021

Case brief

AI extract

What is this about?

Petitioners challenged a Wakf Tribunal decree declaring suit land to be Wakf property and ordering their eviction. The High Court held the land was shown as Government land and no valid registration or survey-list publication proved its Wakf character, set aside and quashed the Tribunal's judgment and decree, and awarded costs to petitioners.

What the court decided

AI extract

Mstt. Noor Fateh and 2 Ors. Vs Assam Board of Wakf… — Property and Title | Gauhati HC (2025)

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GAHC010019682021

2025:GAU-AS:5858

THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : CRP/5/2021

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MSTT. NOOR FATEH and 2 ORS D/O LT. NURUDDIN R/O CHANDARIA PATHAR GOALPARA TOWN, P.O. BALADMARI P.S. and DIST. GOALPAR

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2: MD. SALIM @ MD. NOOR SALIM S/O MD. LUTFUR RAHMAN R/O CHANDARIA PATHAR GOLPARA TOWN P.O. BLADMARI P.S. and DIST. GOALPARA ASSAM.

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3: MS. RUKSANA @ RUPSHINA RAHMAM D/O MD. LUTFUR RAHMAN RESIDENT OF CHANDARIA PATHAR GOALPAR TOWN P.O. BALADMARI P.S. and DIST. GOALPAR

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VERSUS

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ASSAM BOARD OF WAKF, GUWAHATI and 2 ORS. THROUGH ITS SECRETARY, SILPUKHURI, GUWAHATI- 781003.

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2:ISMAIL HUSSAIN S/O LATE ABDUR RAHMAN

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PRESIDENT CUM MUTAWALI ANJUMAN-E-KHADIMUL ISLAM GOALPARA NAYAPARA GOALPARA- 783101

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3:MOKIDUL ISLAM S/O LATE ANOWAR ALI

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GENERAL SECRETARY ANJUMAN-E-KHADIMUL ISLAM GOALPARA

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NAYAPARA

GOALPARA- 78310

Advocate for the Petitioner : MR. S K DEKA, MR. J DEKA,MR. T K BHUYAN,MR. A SARMA

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Advocate for the Respondent : MD. M U AHMED, MR. A GANGULY (SC, Assam Board of WAKF) (R-1),MS. E YASMIN (R-2 & 3),MR. H R A CHOUDHURY(R-2 & 3),MS. R CHOUDHURY(R-2 & 3)

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BEFORE HONOURABLE MR. JUSTICE DEVASHIS BARUAH

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JUDGMENT & ORDER (ORAL)

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Date : 08-05-2025

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Heard Mr. J Deka, learned counsel appearing on behalf of the petitioners. Also heard Ms. R Choudhury, learned counsel for respondent Nos.2 & 3. None appears for the respondent No.1, WAKF Board.

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The jurisdiction under proviso to Sub-Section (9) of Section 83 of the WAKF Act, 1985 (for short, “the Act of 1985”) have been invoked to challenge the correctness, legality and validity of the judgment and decree dated 17.05.2008, passed by the learned Presiding Officer, WAKF Tribunal, Guwahati, (for short the learned Tribunal), in WT Case No.1/2007 (Title Suit No.59/1996).

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The brief facts which lead to the filing of the instant proceeding is narrated herein. For the purpose of convenience the parties herein are referred to in the same status as they stood before the learned Tribunal.

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The respondent Nos.1, 2 & 3 herein joint together as

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plaintiffs to file the suit being Title Suit No.59/1996 before the learned Court of the Munsiff No.1, Goalpara against the petitioners herein, seeking declaration that the suit land is a part of the Wakf Property, for recovery of possession of the suit land by evicting the defendants (the petitioners herein) by demolishing and removing the houses and structures standing thereon; for permanent injunction restraining the defendants from possessing the suit land after the defendants are evicted from the suit land in due course of law; for mesne profit at the rate of Rs.50/- per month from the date of institution of the suit till the defendants are evicted and possession is delivered to the plaintiffs and for cost of the suit.

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The case of the plaintiffs in the suit is that the suit land is of Wakf property covered by Dag No.19 situated at Chandaria under Balijana Circle in the district of Goalpara. The said property as per the plaintiffs was registered by the Assam Board of Wakf under provisions of the Wakf Act and the plaintiff No.2 was the Mutawalli of the said Wakf property as well as was also the President of Anjumane Khadimul Islam, Goalpara and the plaintiff No.2 is the Secretary of the said Anjumane Khadimul Islam, Goalpara.

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It is the case of the plaintiffs that the defendants have their residence contiguous to the west of the Wakf property and taking advantage of the position, in the month of September, 1995 trespassed into the suit land which is a Wakf property and constructed two thatched houses therein and since then the defendants have been possessing the suit land as trespassers. On the basis thereof, the said suit was filed seeking the reliefs as above

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mentioned.

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The defendants joint together and filed their written statement raising various preliminary objections as regards the maintainability of the suit and more particularly, that the Secretary of the Assam Wakf Board had no authority to institute the suit and there has been no resolution passed by the plaintiff No.1 to institute the suit. On merits, the defendants stated that the suit land is not a Wakf property and that they have been possessing the suit land on the basis of a registered gift deed executed by one Javed Ali in favour of the defendant No.1. It was further mentioned that after the execution of the said registered gift deed, the defendant No.1 constructed four houses on the said land in the month of December, 1979 and thereupon have been living peacefully, continuously with the knowledge of Anjumane Khadimul Islam and its office bearers.

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The learned Civil Judge (Junior Division No.1), Goalpara which was the learned Trial Court decreed the suit in favour of the plaintiffs by the judgment and decree dated 23.08.1999.

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Being aggrieved, the defendants preferred an appeal before the Court of the learned Civil Judge, (Senior. Division), Goalpara which was registered and numbered as Title Appeal No.3/2000. The said appeal was allowed by setting aside the judgment and decree passed by the learned Trial Court vide a judgment and decree dated 28.06.2000. Being aggrieved, the plaintiffs preferred an appeal before this court, which was registered and numbered as RSA No.154/2000.

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The Coordinate Bench of this Court vide an order dated

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08.12.2006 interfered with the judgment and decree dated 28.06.2000 passed in Title Appeal No.3/2000 and remanded the suit for a fresh decision. It is relevant to take note of that when the order dated 08.12.2006 was passed in RSA No.154/2000, the Wakf Tribunal was constituted and accordingly by virtue of Section 85 of the Wakf Act, 1995 (for short, Act of 1995), the suit was remanded back to the Tribunal for a decision afresh.

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In the backdrop of the above, it is relevant now to take note of that based upon pleadings, the learned Trial Court i.e., the Court of the Junior Division No.1 at Goalpara had framed nine issues. Additionally on 15.03.2008, another issue was framed being issue no.3(b). The said issues collectively are reproduced herein under:

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ISSUES

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Whether the plaintiffs have got cause of action

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to the suit?

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Whether the suit is maintainable in its present form?

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Whether the Secretary Assam Board of Wakf has been authorized by Wakf Board with a resolution to institute this suit along with other plaintiffs?

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3(a). Whether the plaintiffs have got locus-standi to sue against the defendants?

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3(b). Whether Hazi Md. Musarraf Hussain or Anjumane Khadimul Islam, Goalpara have been appointed as Mutawalli of the suit property (alleged Wakf property)?

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Whether the suit is bad for misjoinder of

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parties?

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Whether the suit is barred by limitation?

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Whether the suit land is a Wakf property and the defendants trespassed into the suit land in September, 1995?

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Whether two houses were constructed in the year 1995?

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Whether the plaintiff is entitled to relief claimed 12. The learned Tribunal by the judgment and decree dated 17.05.2008 decreed the suit in favour of the plaintiffs by declaring that the suit property was a part of the Wakf property covered by Dag no.19 of Chandaria Pathar, Balijana Circle, Goalpara. The learned Tribunal passed the decree for recovery of Khas possession of the suit land thereby evicting the defendants, their man and agents from the suit land and by demolishing the houses constructed thereupon. Additionally, the learned Tribunal granted mesne profit at the rate of Rs.50/- per month from the date of institution of the suit till full satisfaction of the decree as well as for permanent injunction, thereby restraining the defendants their men, agents from entering into the suit land after delivery of khas possession to the plaintiff.

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Before proceeding further, this court finds it relevant to observe that the issue No.6 is of vital importance for the purpose of deciding the instant dispute inasmuch as the said issue pertains to as to whether the suit land is a Wakf property and the defendants trespassed into the suit land in September, 1995. It is seen from the discussion so made by the learned Tribunal that the suit land has

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been held to be Wakf property merely on two documents i.e., Exhibit-1 which is a copy of the Chitha pertaining to Dag no.19 and Exhibit -2 being an order dated 20.09.1988 of the Secretary of the Assam Board of Wakf. It is on that premises, the other issues have been decided.

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In the backdrop of the above, let this court therefore take note of the submissions so made by the learned counsels appearing on behalf of the parties.

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Mr. J Deka, learned counsel appearing on behalf of the petitioners/defendants submitted that taking into account the definition of Wakf, as defined in section 3(r) of the Act of 1995, it is not conceivable that a Government land can be a Wakf property or that matter a Wakf can be created on a Government land.” Referring to Exhibit-1, the learned counsel submitted that it would be seen from the Chitha that Dag No.19 belongs to the Government and as such, it does not fulfill the requirement to be a Wakf within the meaning of Section 3(r) of the Act 1995. He further submitted that the other document on which the learned Tribunal had arrived at a conclusion that the land in question was a Wakf land is on the basis of a photocopy of an order dated 20.09.1988. He submitted that in terms with Section 36(8) of the Act of 1995, the property was required to be registered as a Wakf property within three months from the date of commencement of the said Act of 1995. Further referring to Section 37(3) of the Act, 1995, the learned counsel submitted that after the Wakf property was registered the land records office is required to make entries in the land record which

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has also not been done in the present case. He therefore submitted that as there was no registration done in terms with section 36(8) of the Act of 1995, the learned Tribunal committed gross error of law in arriving at the finding that the land in question was a Wakf property. 16. The learned counsel for the petitioner further submitted that though the Assam Board of Wakf is the plaintiff No.1 but except signing on the first page of the plaint as Secretary of the Wakf, they have never participated in the said proceeding till date. He further submitted that this aspect would be further clear from a very perusal of the name of the parties in RSA No.154/2000, wherein the plaintiff No.1 have been arrayed as a proforma respondent in the said appeal filed by the plaintiff Nos.2 & 3. He therefore submitted that the suit cannot be said to have been filed for or on behalf of the Assam Board of Wakf.

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Per contra, Ms. R Choudhury, learned counsel appearing on behalf of respondent Nos.2 & 3 submitted that the land having already been registered at the Wakf in terms of the Wakf Act, 1954, there was no requirement of a fresh registration in terms with the Wakf Act, 1995, more particularly, in view of Section 112 of the Act, 1995 which saves all things done under the Act of 1954. The learned counsel further submitted that from a perusal of Exhibit-2, it would be seen that the suit land in question is a part of the Wakf property. The learned counsel submitted that though the counsel appearing on behalf of the petitioner had submitted that the said Exhibit-2 was a photocopy and not the original placed but there was no objection so raised at the time when the Exhibit-2 was tendered in evidence and

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therefore, there was no bar on the part of the learned Tribunal to accept Exhibit-2 as a valid evidence for the purpose of deciding the title of the plaintiffs and to declare that the property in question is a Wakf property.

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I have heard the learned counsel appearing on behalf of the parties and have given my anxious consideration to their respective submissions. Further to that, the records of the learned Tribunal have been perused.

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Taking into account that the claim of the plaintiff is based upon a Wakf being created prior to the commencement of the Act of 1995, this court finds it relevant to take note of some of the provisions of the Wakf Act of 1954, (for short ‘Act of 1954’) which was holding the field when Exhibit-2 was issued.

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Chapter II of the Act of 1954 is with the Heading “survey of Wakf”. Section 4 of the Act of 1954 relates to preliminary survey of the Wakf’s and how it is required to be carried out. It would be seen from a perusal of Sub-Section (1) of Section 4 of the Act of 1954, that the State Government by a notification in the Official Gazette would appoint for the State, a Survey Commissioner of the Wakf and as many Additional or Assistant Survey Commissioner(s) of Wakf as may be necessary for the purpose of making a survey of Wakf properties existing in the State at the date of commencement of the Act of 1954.

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Sub-Section (3) of Section 4 of the Act of 1954 stipulates that, the Survey Commissioner shall after making an enquiry submit its report in respect of the Wakf existing at the date of

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commencement of the Act in the State or any part thereof to the State Government containing various particulars. In terms with SubSection (6) of Section 4, the State Government may by notification in the Official Gazette direct Survey Commissioner to make second or subsequent survey of the Wakf properties in the State and the same shall be done as per the mandate of Sub-Sections (2), (3), (4) & (5) of Section 4 of the Act of 1954. A proviso had been added to SubSection (6) of Section 4 of the Act of 1954 that second or subsequent survey would be made in the interval of 20 years from the date the immediately previous survey was submitted as per Sub-Section (3) of Section 4 of the Act of 1954.

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Therefore from a reading of Section 4 of the Act of 1954, it would be seen that the State Government shall appoint a Survey Commissioner as such other Additional or Assistant Survey Commissioners for making a survey of the Wakf properties existing on the date of commencement of the Act of 1954. The proviso to Sub-Section (6) of Section 4 further makes it clear that further survey’s can be carried out but only after an interval of 20 years from the date of the report in terms with Sub-Section (3) of Section 4 is submitted by the Survey Commissioner to the State Government.

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Section 5 of the Act of 1954 is of importance taking into account the dispute involved. It stipulates that the Survey Commissioners report shall be forwarded to the Board by the State Government and the Board shall examine the report and publish in the Official Gazette a list of Wakfs in the State or as the case may be the part of the State whether in existence at the commencement of

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the Act or coming into existence thereafter to which the report relates and containing such particulars as may be prescribed. In the opinion of this court, the publication in the Official Gazette of the list of Wakfs in existence would be a conclusive evidence as regards the property being enlisted as a Wakf, however, subject to the provisions of Section 6 and 6A of the Act of 1954.

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A perusal of Sub-Section (1) of Section 6 of the Act of 1954 stipulates that if any dispute arises as to whether a particular property is a Wakf property or not, which is specified as a Wakf property in a list of Wakf published under Sub-Section (2) of Section 5, the Board or the Mutawalli or the Wakf or any person interested therein may institute a suit in the Civil Court of competent jurisdiction for decision on the question and the decision of the Civil Court in respect of such matters shall be final. It is further seen that vide the Wakf (Amendment) Act, the power of the Civil Court under section 6 was conferred upon the Wakf Tribunal in terms with Section 6A. The proviso to Section 6(1) of the Act of 1954 further stipulates that a suit contemplated under Section 6(1) of the Act of 1954 is required to be filed within one year from the date of publication of the list of Wakf in terms with Sub-Section (2) of Section 5 of the Act of 1954. 25. This Court further finds it relevant to take note of the Act of 1995 wherein, the power has been conferred by Section 40 upon the Board to make enquiry and to pass a decision as to whether a property is a Wakf property or not or whether the property is a Sia Wakf or a Sunni Wakf and such decision is final unless revoked or modified by the Tribunal.

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In the backdrop of the above, it would be seen that there is nothing brought by the plaintiff in their evidence that registration was done in terms with Section 36(8) of the Act of 1995 or a decision in terms with Section 40 of the said Act of 1995 holding that the suit land in question falls within the Wakf property post the commencement of the Act of 1995.

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Now, let this court take note of Exhibit-2 i.e., the order of the plaintiff No.1 dated 20.09.1988. In the foregoing paragraphs of the instant judgment, this Court had dealt with Sections 4, 5, 6 & 6A of the Act of 1954. This Court held that the list of Wakf published in the Official Gazette shall be conclusive evidence that the property included in the list of Wakf would be Wakf duly recognized, however, subject to Section 6 and Section 6A of the Act of 1954. The order dated 20.09.1988 under no circumstances fall within the ambit of Section 5(2) of the Act of 1954 and under such circumstances the said order i.e., Exhibit-2 could not have been made the basis by the learned Tribunal to arrive at the conclusion that such land was a Wakf property.

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This Court further finds it very relevant to take note of another very vital aspect of the matter that there is also no materials showed in the evidence, as to how there was a creation of Wakf in terms with Section 3(r) of the Act of 1954 in respect to a property belonging to the Government inasmuch as a perusal of Exhibit-1 would show that the land is a Government land; Ms. R Choudhury, learned counsel for the respondents though submitted that there can be a Wakf by user as defined in sub-clause (i) of Section 3(r) of the

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Act of 1995 but there is no pleading or evidence led to that effect as to how a Government land was made a Wakf property. At the cost of repetition, this Court finds it apt to observe that merely on an order of the plaintiff No.1 a property cannot be said to be a Wakf property in terms with the Act of 1954.

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The present case in the opinion of this Court is a glaring example whereby the learned Tribunal had declared the land to be a Wakf property on the weakness of the case of the defendants which was a fundamental mistake as per the settled position of law.

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This Court finds it relevant to observe that as the plaintiffs had failed to prove that the land is a Wakf property or for that matter the plaintiff No.2 or 3 has any right over the land. Therefore, the question of granting the reliefs as has been sought for in the plaint do not arise. Considering the above, this Court is of the opinion that the impugned judgment and decree dated 17.05.2008 passed by the learned Wakf Tribunal, Guwahati in W.T. Case No.1/2007 (Title Suit No.59/1996) cannot be sustained in law for which the same is set aside and quashed.

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The Petitioners herein shall be entitled to costs throughout.

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Return the LCR.

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Comparing Assistant

Mstt. Noor Fateh and 2 Ors. v. Assam Board of Wakf, Guwahati and 2 Ors.

Case brief

What is this about?

What the court decided

Mstt. Noor Fateh and 2 Ors. v. Assam Board of Wakf, Guwahati and 2 Ors.

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