The Karnataka State Board of Auqaf Vs M/S Charisma Builders Ltd.

M/S. CHARISMA BUILDERS LTD A COMPANY REGISTERED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT KAMAL KUNJ, FIRST FLOOR CENTRAL AVENUE ROAD CHEMBUR, MUMBAI 400071 REPRESENTED BY ITS DIRECTOR MR. MITHUL SUDHIR SHETTY.

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HORTICULTURE PRODUCERS CO-OPERATIVE MARKETING AND PROCESSING SOCIETY LIMITED (HOPCOMS) A REGISTERED SOCIETY HAVING ITS OFFICE AT LALBAGH BENGALURU 560004 REPRESENTED BY ITS MANAGING DIRECTOR.

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THE PRESIDENT HORTICULTURE PRODUCERS CO-OPERATIVE

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MARKETING AND PROCESSING SOCIETY LIMITED (HOPCOMS) HOSUR ROAD, LALBAGH BENGALURU 560 004.

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THE ADMINISTRATOR HORTICULTER PRODUCERS CO-OPERATIVE MARKETING AND PROCESING SOCIETY LIMITED (HOPCOMS) HOSUR ROAD, LALBAGH BENGALURU 560 004.

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THE REGISTRAR OF CO-OPERATIVE SOCIETIES IN KARNATAKA NO.1, ALI ASKER ROAD BENGALURU 560052.

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DARGAH HAZRATH ATAULLA SHAH AND NABI SHAH COMMONLY KNOWN AS BADAMAKHAN H. SIDDAIAH ROAD BENGALURU 560051 REPRESENTED BY ITS ADMINISTRATOR.

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THE STATE OF KARNATAKA REPRESENTED BY ITS CHIEF SECRETARY MINORITIES WELFARE HAJ AND WAKF DEPARTMENT, M.S. BUIDLING DR. B.R. AMBEDKAR VEEDHI BENGALURU 560001.

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THE STATE OF KARNATAKA RERPESENTED BY ITS CHIEF SECRETARY VIDHANA SOUDHA DR. B.R. AMBEDKAR VEEDHI BENGALURU 560001.

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THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY DEPARTMENT OF HORTICULTURE M.S. BUILDING DR. B.R. AMBEDKAR VEEDHI BENGALURU 560001.

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THE STATE OF KARNATAKA REPRESENTED BY ITS PRINCIPAL SECRETARY HOUSING AND URBAN DEVELOPMENT DEPARTMENT, M.S. BUILDING DR. B.R. AMBEDKAR VEEDHI BANGALORE 560001.

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THE DEPUTY COMMISSIONER BANGALORE DISTRICT BENGALURU 560001.

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…RESPONDENTS

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(BY SRI. DHYAN CHINNAPPA, SR. COUNSEL FOR SRI. SANJAY NAIR, ADV., FOR R1 SRI. H.N. SHASHIDHARA, SR. COUNSEL FOR SRI. H.S SUHAS, ADV., FOR R2 & R4

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SRI. JAYALINGAYYA MUDENOOR MATH, AGA FOR R5, R7 TO R11 R3, R6 ARE SERVED AND UNREPRESENTED)

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THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO CALL FOR RECORDS ON THE FILE OF THE XXII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN O.S.NO.1439/2017 IN I.A.NO.3. SET ASIDE THE ORDER DATED 24.06.2019 PASSED BY THE XXII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU IN O.S.NO.1439/2017 IN I.A.NO.3 FILED BY THIS PETITIONER U/S 85 OF THE WAKF ACT, 1995 R/W SEC. 151 OF CPC-1908 AT ANNX-F. ALLOW THE IA NO.3 FILED BY THIS PETITIONER U/S 85 OF THE WAKF ACT, 1995 R/W SEC. 151 OF CPC-1908 IN O.S.NO.1439/2017 ON THE FILE OF XXII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU, CONSEQUENTLY DISMISS THE SUIT AS NOT MAINTAINABLE & ETC.

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THIS PETITION HAVING BEEN HEARD AND RESERVED ON 22.07.2025, COMING ON FOR PRONOUNCEMENT OF ORDER, THIS DAY, THE COURT MADE THE FOLLOWING:

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CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

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CAV ORDER

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This writ petition is filed challenging the order dated 24.06.2019 passed on I.A.No.3/2017 filed by the petitioner under Section 85 of the Wakf Act, 1995 (hereinafter referred to as 'the Act'), in O.S.No.1439/2017 on the file of the XXII Addl. City Civil and Sessions Judge, Bengaluru.

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Heard.

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Sri.P.Usman, learned counsel for the petitioner

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submits that the respondent No.1 filed a suit for declaration, mandatory injunction and delivery of vacant possession against the petitioner and the respondent Nos.2 to 11. In the said suit, the petitioner filed an application under Section 85 of the Act to dismiss the suit on the ground of lack of jurisdiction which came to be rejected. It is submitted that the petitioner is the defendant No.5 in the suit filed for declaration and other reliefs. The subject matter of the suit is Sy. No.18 measuring 2 acres 3 guntas situated at Annipura Village, Hosur Road, presently known as Dr.H.Marigowda Road, Bengaluru and the said property is a Wakf property as is evident from the notification dated 07.06.1965 issued under Section 5(2) of the Wakf Act,

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Hence, the suit filed before the Civil Court with regard to the said property is not maintainable in view of the specific bar under Section 85 of the Act. It is further submitted that the issue as to whether the property is wakf property or not is also required to be adjudicated before the Tribunal. However, the Trial Court, without considering the notification and the material on record, under the impugned order, incorrectly rejected the application.

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It is also submitted that the petitioner issued a show cause notice under the provisions of the Karnataka Public Premises (Eviction of Unauthorised Occupants) Act, 1974, to the respondent No.2 herein. The said notice was challenged by the respondent No.2 before this Court. This Court, vide order dated 19.07.2000 in W.P.No.27111/1995 dismissed the writ petition with liberty to the respondent No.2 to file its objections to the said show cause notice issued by the petitioner and the subject matter in the said proceedings was the same property and this Court categorically held that the respondent No.1 is not the owner of the property. It is contended that there are numerous proceedings between the parties with regard to the suit schedule property and the property being notified under

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the provisions of the Act. The dispute as to whether the property is a Wakf property is required to be gone into by the Tribunal and not by the Civil Court. Hence, he seeks to allow the petition by setting aside the impugned order.

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Per contra , Sri.Dhyan Chinnappa, learned Senior counsel appearing for the respondent No.1 supports the impugned order of the Trial Court and submits that the application filed by the petitioner is nothing but an application under Order VII Rule 11 of the Code of Civil Procedure, 1908, for rejection of the plaint and the Trial Court is required to look into only the plaint averments and consider the application. It is submitted that the plaintiff has narrated the flow of title as per the documents relied, which clearly demonstrates that the suit schedule property is Municipal No.15 i.e. property bearing new Sy.No.18 and old Sy.No.4 of Annipura Village. It is further submitted that the plaintiff issued a legal notice to the petitioner before filing of the suit. The learned counsel for the petitioner replied to the said notice. In the reply, it is categorically admitted that the property claimed by the petitioner is different from the property of the petitioner. It is

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also submitted that the suit being a composite suit filed against the respondent No.2, respondent No.5-Registrar of Cooperative Societies and the State Government, hence, the respondent No.1-plaintiff cannot be compelled to go before the Tribunal to file a suit against the petitioner and a separate suit against the other defendants in the Civil Court with regard to the suit schedule property. It is contended that the final quit rent register of minor inams at Annexure-R2 produced along with the statement of objections indicates that the old field No.24 part is Sy.No.4 and the name of the inamdar is referred as Garudachar and the plaintiff is the successor in interest of the said Garudachar in respect of old Sy.No.4 and new Sy.No.18 and the old Sy.No.18 forms part of old field No.23 of Annipura Village. It is further contended that the petitioner conceded the said position in the judicial proceedings and filed a memo in W.P.No.18272/2005 and connected matter that they are not the owners of new Sy.No.18. Hence, he seeks to dismiss the petition.

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Sri.H.N.Shashidhara, learned Senior counsel for the respondent Nos.2 to 4 submits that the respondent No.2 is the

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defendant No.1 in the suit filed by the respondent No.1 and they have taken their stand in the pending suit with regard to the ownership of the suit schedule property. It is submitted that the Trial Court, after considering the pleadings and materials on record has rightly rejected the application filed by the petitioner which does not call for any interference. It is further submitted that the respondent No.2 filed a writ petition in W.P.No.4065/2016 challenging the order of the Karnataka Appellate Tribunal wherein the petitioner filed an application for impleadment. This Court, in the aforesaid writ petition categorically held that there is a cloud in determining the title over the property in question and the same is pending in O.S.No.1439/2017 before the competent Civil Court and the revenue authorities cannot interfere with, for determining the right of the parties and the petitioner herein is claiming its right based on the notification, shall abide by the judgment and decree of the Civil Court. Hence, he seeks to dismiss the petition.

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I have heard the arguments of the learned counsel for the petitioner, learned Senior counsel for the respondent

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No.1, learned Senior counsel for the respondent Nos.2 to 4 and perused the material available on record. I have given my anxious consideration to the submissions advanced on both the sides.

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The respondent No.1 filed O.S.No.1439/2017 for the relief of declaration that the plaintiff is the absolute lawful owner of the suit schedule property by virtue of the registered sale deed dated 31.07.2010, mandatory injunction against the defendants and sought for delivery of vacant possession of the suit schedule property and permanent injunction. The schedule property referred in the plaint is an immovable property bearing Municipal No.15 (i.e. property bearing new Sy.No.18 and old Sy.No.4 of Annipura Village), BBMP PID No.61-39-15, CTS No.1076 situated at Annipura Village, Hosur Road, local area No.43, Lalbagh Mavalli, Bengaluru City, measuring 2 acres 3 guntas. In the said suit, the petitioner filed I.A.No.3/2017 under Section 85 of the Act read with Section 151 of CPC, seeking prayer to dismiss the suit on the ground of lack of jurisdiction. It is asserted by the petitioner that the suit schedule property is a notified Wakf property of the petitioner

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as per the notification dated 07.06.1965. Sl.No.285 of the said notification indicates that Dargah Hazrath Attaullah Shah and Nabi Shah Sunni, near Lalbagh which is a name of the Wakf and various survey numbers are referred including Sy.No.18. The relief sought in the suit is not only against the petitioner herein but also against the respondent Nos.2, 5 and 7-State Government. The suit is a composite suit for the relief of declaration of ownership, mandatory injunction, delivery of possession and permanent injunction. The plaint averments indicate the flow of title with regard to the suit schedule property as to how the respondent No.1 acquired the ownership over the suit schedule property. The notice issued by the respondent No.1-plaintiff dated 13.06.2016 to the petitioner and the State Government also indicates the flow of title. The petitioner replied to the said notice through its counsel as is evident from Annexure-L of this writ petition. It would be useful to extract the relevant paragraphs of the reply of the petitioner. Paragraph 3(a) to 3(e) reads as under:

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"a) Dargah Hazarath Athaulla Shah and Nabi Shah, is a Wakf Institution. The said Institution is endowed with several immovable properties.

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b) Land bearing Sy.Nos. 1, 3, 14, 16, 17, 18, 19, 20, totally measuring 33 acres 30 guntas situate at of Anipura Village, Bangalore, Land bearing Sy. No.28/3 measuring 3 acres 35 guntas situate at Mavahalli, Bangalore, Land bearing Sy.No.1 measuring 10 acres 36 guntas situate at Siddapura Village and Land Doddabyalakhana measuring 3 acres 4 guntas belong to 2nd of our Client. The said lands were endowed as Devadaya Inam for the support and benefit of the 2nd of our Client and for Urus and other religious services to be conducted therein. The said Inam was confirmed by his Highness of Maharaja of Mysore in the year 1812.

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c) The aforesaid lands were originally referred to as Field Nos. 3, 7, 15, 21, 23 and 24. The extent of these lands was stated in Beejawari measurement, a form of measurement then in existence. The 2nd of our Client was governed under the provisions of Muzrai Act. Consequently the aforesaid properties of 2nd of our Client were dealt with in accordance with the provisions of Muzrai Act.

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d) During the year 1860 some parts of the aforesaid lands were alienated in favour of Honnappa, Sadar Rangappa and Garudachar. Honnappa was the alienee of part of Field No. 7 and Garudachar was the alienee-of-part of Field No.24. Şadar Rangappa was the alienee of part of Field No.23. The said alienation was subject to condition that the said alienees should pay quit -rent of Rs. 7/- to the 2nd of our Client.

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e) The land which was alienated to Sadar Rangappa in Field No. 23 was given Sy. No. 18 of Annipura Village. The measurement of the said land was 1 Kudava and 14 Padees equivalent to 15 Acres 32 Guntas of dry land. The remaining land in the said Sy.No. 18, measuring about 5 acres 6 guntas continued in the name of 2nd of our Client."

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As per the reply of the petitioner, it emerges that Sadar Rangappa was an alienee of part of field No.23 and Garudachar was an alienee of part of field No.24. As per 'B' final quit rent register of minor inams produced by the respondent No.1 at Annexure-2 indicates that Sadar Rangappa is the inamdar of old field No.23 part which is Sy.No.18 and Garudachar is the inamdar of old field No.24 part which is Sy.No.4. The aforesaid reply of the petitioner and the documents produced by the respondent No.1 prima facie indicate that the claim of the respondent No.1 in the suit schedule property is for old Sy.No.4 and new Sy.No.18 and the claim of the petitioner is for old Sy.No.18 of the same village. Be that as it may, the issue relating to ownership is required to be gone into in a pending suit filed by the respondent No.1. In addition, the joint memo filed in W.P.No.18272/2005 c/w W.P.No.24104/2005 also indicate that the claim of the

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petitioner is different from that of the suit schedule property which has been rightly considered by the Trial Court under the impugned order.

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The suit filed by the respondent No.1 being a composite suit, there cannot be any direction to return the plaint partly against the petitioner and partly to continue in the Civil Court. The petitioner's application filed under Section 85 of the Act read with Section 151 of CPC, is to reject the plaint on the ground of lack of jurisdiction. It is trite law that while considering an application under Order VII Rule 11 of the CPC, the Court is required to consider only the averments of the plaint in order to come to the conclusion. In the case on hand, the Trial Court, on judicious application of mind has rightly come to a prima facie conclusion that the property claimed by the petitioner and the respondent No.1 are distinct. I do not find any error or perversity recorded by the Trial Court calling for interference in the present petition. This Court in W.P.No.4065/2016 vide order dated 21.06.2024 has also recorded a finding that the right of the petitioner, if any over the suit schedule property claimed pursuant to the notification

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dated 07.06.1965 shall be subject to the outcome of the pending suit in O.S.No.1439/2017. Considering the aforesaid observation and the material available on record, prima facie , I am of the considered view that the subject matter of the suit is distinct from the property claimed by the petitioner under the notification dated 07.06.1965 and the said issue is required to be gone into by the Civil Court in the pending suit. It is needless to observe that the aforesaid findings are prima facie and only to decide this lis between the parties.

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