Supreme Court of India
Telangana State Waqf Board vs Mohamed Muzafar on 3 August, 2021Author: A.S. Bopanna

Bench: Hemant Gupta, A.S. Bopanna




(Arising out of SLP (CIVIL) No.28786 of 2015)

Telangana State Wakf Board & Anr. .…Appellant(s)


Mohamed Muzafar …. Respondent(s)


A.S. Bopanna,J.

1. The appellant No.1 is the Andhra Pradesh State

Wakf Board, while the appellant No.2 is the Mutawalli of

the registered Wakf institution which is known as

Graveyard Mir Rahmat Ali Shah. The said Wakf

institution is stated to have been registered under
Signature Not Verified

Muntakhab bearing No. 998 dated 24.02.1953 and later
Digitally signed by
Neelam Gulati
Date: 2021.08.03
16:34:12 IST

Page 1 of 28
entered in the book of endowment showing an extent of

666 sq. yards. The Muntakhab was amended by the

Wakf Board in its resolution dated 21.04.1988 to the

extent of correcting the land of the Wakf institution as

998.66 sq. yards and the same was published in the

gazette notification dated 29.12.1988. The wakf

institution/graveyard is situated near Tek Masjid,

Nampally, Hyderabad.

2. The father of appellant No.2, Late Mir Dawood Ali

was the Mutawalli appointed by the Wakf Board, whose

name is recorded in the gazette referred to above. The

appellant averred that during the lifetime of the father of

appellant No.2, the father of the respondent, namely,

Late M.A Qayyum had obtained on rent the premises

bearing Municipal No. 5­7­420/2 measuring 90.16 sq.

yards belonging to the Wakf institution. The father of the

respondent was running a firewood stall which he later

converted into a hotel and has been running the hotel

business in the name and style “Hotel Najran”.

Page 2 of 28
3. The case of the appellant was that the father of the

respondent was paying rent in respect of the property

and was being enhanced from time to time. The

respondent, after he became a major continued the

tenancy of his father in respect of the said premises and

the monthly rent at the time of filing the suit was

Rs.1,500/­ excluding electrical and water charges. The

respondent is stated to have suceeded to the tenancy in

the year 1995 and the rent was being paid to the Wakf

Board since the institution at that point was under

direct management of the Board in view of the death of

the original Mutawalli i.e., the father of appellant No.2.

Subsequent thereto the appellant No.2, as the successor

was appointed as the Mutawalli in place of his father

vide the proceedings dated 04.07.2005 which was

published in the gazette on 04.08.2005. The appellant

No.2 intimated this fact to all the tenants of the property

belonging to the Wakf institution through a letter dated

14.11.2005, whereafter the rent was being paid to him

directly. In respect of the premises in the occupation of

Page 3 of 28
respondent the rent was not being paid regularly, which

accumulated to Rs.24,500/­. Despite repeated requests

the respondent had not paid the arrears from the month

of November 2005 for a period of 7 months which

amounted to Rs.10,500/­. The respondent therefore was

due to pay the total amount which was due and unpaid.

4. The appellant further averred that while the Wakf

institution was under the direct management of the

Wakf Board, the respondent had encroached upon 40

sq. yards site of the graveyard on the western side of the

tenanted premises, constructed road thereon and

started running a firewood stall. The appellant No.2

noticed the same when he assumed charge on

04.07.2005. Though the appellant No.2 requested the

respondent to pay damages for the use and the illegal

occupation and vacate both the properties, namely the

tenanted as well as the encroached portion, the

respondent did not vacate. In that background, the

appellant No.2 got issued the legal notice dated

23.05.2006 terminating the tenancy of the tenanted

Page 4 of 28
portion with effect from 01.07.2006 and demanded to

remove the encroachment. The respondent on receipt of

the notice made payment of Rs.4,500/­ as part of the

arrears of rent through a money order and also a sum of

Rs.4,500/­ was paid directly to the appellant No.2

towards the rent for the months of August, September

and October, 2005. The respondent however got issued

reply notice dated 12.06.2006 wherein he denied that

the tenanted portion and the alleged encroached portion

referred to was Wakf property and that his father had

taken it on rent. Further, all claims made by the

appellants were also denied.

5. In the above backdrop, the appellants were

constrained to file a suit bearing O.S. No.126/2006

before the Andhra Pradesh State Wakf Tribunal,

Hyderabad seeking eviction of the respondent from the

property belonging to the Wakf institution. The tenanted

portion referred to above was delineated as Schedule ‘A’

in the plaint while the encroached portion was shown as

Schedule ‘B’. The respondent who was arrayed as

Page 5 of 28
defendant in the suit had appeared and filed his written

statement wherein inter alia he had contended that the

suit property is not a Wakf property and that the exhibit

filed by the appellants dated 30.10.1994 pertaining to

the graveyard is of an extent of 667.8 sq.yards. It was

further contended that the gazette notification clearly

established that this graveyard is not having any non­

agricultural lands such as mulgies and houses etc. He

further claimed that the property bearing No. 5­7­420/2

stood in the name of his father. The gazette notification

dated 29.12.1988 mentioning the extent as 998.66

sq.yards was disputed and contended that the same

does not exist. Further, the case put forth by the

appellants herein as plaintiff in the suit was disputed in


6. The Wakf tribunal on taking note of the rival

contentions had framed the following issues for

consideration: ­

“1. Whether the land covered by H.
No.5­7­420/2, situated at Nampally

Page 6 of 28
Hyderabad is part of notified Wakf

2. Whether there is a relationship of
land lord and tenant between the

3. Whether the plaintiff is entitled to
evict the defendant as prayed for?

4. Whether the plaintiff is entitled to
arrears of rent, mesne profits as prayed

5. To what relief?”

The parties accordingly tendered evidence before

the Wakf tribunal so as to discharge the burden cast on


7. The appellant No.2 examined himself as PW.1.

Though, witness Mr. Mohd. Yousuf Qureshi was

examined as PW.2, he was not tendered for cross­

examination and therefore his chief­examination was

eschewed. The appellants also relied upon the

documents which were marked as Exhibits A1 to A24.

The respondent examined himself as DW.1 and also

examined a witness Mr. Mohd. Abdul Aziz as DW2 and

relied upon the documents at Exhibits B­1 to B­40. The

Page 7 of 28
Wakf tribunal after taking note of the rival contentions

and the evidence tendered, held the issues in favour of

the appellants and decreed the suit holding the suit

schedule properties to be the property belonging to the

Wakf institution and directed the respondent to vacate

the suit schedule properties. The judgment to that effect

was rendered by the Wakf tribunal on 12.10.2012.

8. The respondent claiming to be aggrieved by the

said judgment, preferred a Revision Petition under

Section 83 of the Wakf Act before the High Court of

Judicature at Hyderabad in Civil Revision Petition

No.1331/2013. The High Court while adverting to the

rival contentions has allowed the Revision Petition and

set aside the judgment passed by the Wakf tribunal. The

High Court passed the said order on 02.06.2014. It has

referred to the decision of this Court in the case of

Ramesh Gobindram vs. Sugra Humayun Mirza

Wakf (2010) 8 SCC 726; has accordingly held that the

suit was not maintainable before the Wakf tribunal and

has allowed the parties to avail their remedy as per law.

Page 8 of 28
The appellants, therefore, claiming to be aggrieved by

the said judgment are before this Court in this appeal.

9. We have heard Ms Akriti Chaubey, learned

counsel for the appellants and Mr. Raavi Venkata

Yogesh, learned counsel for the respondent and perused

the appeal papers as also the written submissions

submitted by the respective learned advocates.

10. As noted from the fact situation narrated above,

the appellant had contended that the suit schedule

properties are Wakf properties and had claimed that the

respondent is a tenant in respect of Schedule ‘A’

property and that he had encroached the Schedule ‘B’

property which also belongs to Wakf institution. The

respondent had contended that the suit properties are

not Wakf properties. From the issues framed by the

Wakf tribunal, it is noticed that the consideration which

was required at the outset was to conclude whether the

land covered by H No.5­7­420/2 situated at Namapally,

Hyderabad is a part of the notified Wakf Graveyard.

Similarly, the status of Schedule ‘B’ property which was

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alleged to be encroached by the respondent was also to

be determined, if it was also part of Wakf property. It is

in that regard, the tribunal having noted the contentions

has analysed the same with reference to the evidence.

What was highlighted by the respondent is that the

gazette notification indicated only 668 sq. yards and as

such the suit schedule properties do not form part of the

same. In that regard, though the appellants relied on the

notification dated 29.12.1988 to contend that the extent

of the land belonging to the Wakf institution is 998.66

sq. yards the respondent disputed the existence of such


11. The Wakf tribunal, apart from referring to the said

documents had also taken note of the fact that an earlier

suit in O.S. No. 186 of 1982 had been instituted by the

appellant No.1 herein against the father of the

respondent. The judgment passed therein was marked

as Exhibit A13 in the present suit. The tribunal having

noted the same and the nature of the contentions put

forth had in that regard taken into consideration the

Page 10 of 28
written statement filed by the father as at Exhibit A15,

as also the panchnama dated 1.09.2005 at Exhibit A17.

In that light, the Wakf tribunal had noted that when the

respondent herein had claimed to have succeeded to the

property of his father and in respect of same property

when the father had taken a particular stand in the suit

filed against him, the respondent would be estopped

from putting forth any other contention, keeping in view,

the provision contained in Section 116 of the Evidence


12. In addition, the tribunal had also taken into

consideration the fact that the brother of the respondent

had filed a writ petition bearing No. W.P. 26338 of 2007

challenging the gazette dated 29.12.1988 wherein the

extent of the property belonging to the Wakf institution

is shown as 998.66 sq. yards. The contents of the

gazette was extracted and noted by the tribunal, wherein

it was indicated that the amendment to Muntakhab

No.998 in file No.2195/2/1350 fasli was notified in

Andhra Pradesh gazette dated 29.12.1988. Thus, as per

Page 11 of 28
the amended Muntakhab the open land measuring

998.66 sq. yards and the premises bearing MCH

numbers 5­7­429, 5­7­420/1, 5­7­420/2 and 5­7­420/3

are Wakf properties. Therefore, based on the said

conclusion and the finding rendered on other aspects by

the tribunal, the tribunal had at the outset arrived at

the conclusion that the property in question is Wakf

property. In that regard to disbelieve the documents

relied on by the respondent at Exhibits B1 to B37

namely the receipts and the claim that the slum

certificate is issued, the tribunal has noted the

corrections made therein which is visible to the naked

eye and as such did not accept the same.

13. Insofar as the Schedule ‘B’ property, the tribunal

had taken into consideration the notice at Exhibit A7

which was issued by the appellants. In order to arrive at

the conclusion that the said property also forms a part

of the Wakf property which is the Graveyard, the

tribunal had referred to Exhibit A16, i.e., plan which

was made in the year 1985 by the Wakf Board. From the

Page 12 of 28
said plan, the tribunal had noticed that the Schedule ‘A’

and ‘B’ properties form a part of the Wakf properties

which was also depicted in the photographs which was

marked as Exhibit A22. It is in that light, the Wakf

tribunal had arrived at the conclusion that the relief

prayed for in the suit is liable to be granted and the suit

was decreed in favour of the appellants herein.

14. The High Court on the other hand, before holding

that the suit ought not to have been instituted before the

Wakf tribunal in view of the judgment rendered by this

Court in the case of Ramesh Gobindram (supra) has in

fact attempted reappreciation of the evidence which was

tendered before the tribunal. Reference is made to the

Entry at Serial No.1698 and the indication of the Wakf

institution known as Graveyard Rehmat Ali Sahab, area

noted as 667.8 sq. yards at Cross road, Masjid

Nampally. It was concluded that the same does not tally.

The gazette notification dated 29.12.1988 was

mentioned, wherein the extent is indicated as 998.66 sq.

yards but the same was disbelieved. At the outset it is

Page 13 of 28
necessary to indicate that the consideration by the High

Court ought not to have been in the nature of

reappreciating the evidence which is permissible in an

appeal. In a Revision Petition the scope of consideration

is limited and the judgment/order under challenge can

be interfered only in the event of there being perversity

seen on the face of the order and if the conclusion

reached cannot be acceptable to any reasonable person.

In the instant case, on the factual aspects as noted, the

tribunal had referred to the evidence including the

manner in which the extent of the Wakf property was

rectified and indicated as 998.66 sq. yards and also had

taken into consideration the first round of litigation

between the State Wakf Board and the father of the

respondent wherein the conclusion reached was that the

property in question is Wakf property. Therefore, such

finding of fact which had been recorded by the tribunal

based on evidence available on record could not have

been lightly interfered with by the High Court.

Page 14 of 28
15. In that regard it would be appropriate to refer to

the decision of this Court in Kiran Devi versus Bihar

State Sunni Wakf Board and Others 2021 SCC

Online SC 280 which was authored by one of us (Justice

Hemant Gupta) wherein the scope of jurisdiction to be

exercised under Section 83 of Wakf Act is crystallised as


“20. Therefore, when a petition is filed
against an order of the Wakf Tribunal
before the High Court, the High Court
exercises the jurisdiction under Article
227 of the Constitution of India.
Therefore, it is wholly immaterial that
the petition was titled as a writ petition.
It may be noticed that in certain High
Courts, petition under Article 227 is
titled as writ petition, in certain other
High Courts as revision petition and in
certain others as a miscellaneous
petition. However, keeping in view the
nature of the order passed, more
particularly in the light of proviso to sub­
section (9) of Section 83 of the Act, the
High Court exercised jurisdiction only
under the Act. The jurisdiction of the
High Court is restricted to only examine
the correctness, legality or propriety of
the findings recorded by the Wakf
Tribunal. The High Court in exercise of
the jurisdiction conferred under proviso

Page 15 of 28
to sub­section (9) of Section 83 of the Act
does not act as the appellate court.”

16. Be that as it may, having noticed the manner of

consideration made by the High Court with regard to the

merit not being justified, it would also be necessary for

us to consider as to whether the proceedings before the

Wakf tribunal would be sustainable in the teeth of the

observations made by the High Court with reference to

the decision in Ramesh Gobindram (supra) which

resulted in the High Court setting aside the order passed

by the tribunal. We have carefully perused the said

decision. The consideration made therein was in the

background of the provisions as contained in Sections 6,

7, 83 and 85 of the Wakf Act 1995. No doubt it is a case

where the question arose as to whether suit for eviction

from the Wakf properties could be instituted before the

Wakf tribunal. However, what is necessary to be noted is

that, the question for consideration has been delineated

in paragraph 2 of the order which clearly indicates that

what was required to be answered therein was as to

Page 16 of 28
whether the suit for eviction of tenants in respect of the

items of property which are admittedly Wakf properties

could be filed before the Wakf tribunal. After having

taken into consideration Sections 6 and 7 of the Act,

this Court was of the view that the tribunal would have

the jurisdiction to decide such of those disputes arising

thereunder and in respect of eviction of tenants from

what is admittedly a Wakf property should be filed in the

Civil Court as jurisdiction under Section 9 of the Civil

Procedure Code is expansive. It is accordingly held,

since what is to be decided by the tribunal are the

disputes which arise under Section 6 and 7, the bar as

contemplated under Section 85 to file a suit in the Civil

Court does not apply. The said decision was rendered in

a circumstance where the property was admittedly Wakf

property, whereas in the instant case it is not an

admitted case since the respondent had taken a specific

contention that the properties in question are not Wakf


Page 17 of 28
17. The learned counsel for the respondent has

however, referred to the decision of this Court in the

case of Faseela M. vs. Munnerul Islam Madrasa

Committee and Another (2014)16 SCC 38 to point out

that in a similar consideration made by another Bench

of this Court relating to the jurisdiction of Wakf tribunal,

this Court has held that even in a case where it is

disputed by the defendant that the property is not a

Wakf property and if it is a case seeking eviction of the

tenant, the suit is required to be filed before the civil

court and jurisdiction of the Wakf tribunal cannot be


18. The learned counsel for the appellants has on the

other hand drawn our attention to the other decisions of

this Court on the same issue. In the case of Board of

Wakf, West Bengal and Another vs Anis Fatma

Begum and Another (2010) 14 SCC 588 and in the case

of Haryana Wakf Board versus Mahesh Kumar

(2014) 16 SCC 45 this Court has held that the question

Page 18 of 28
as to whether a property is Wakf property or otherwise is

exclusively determinable by the Wakf tribunal after

enactment of the Wakf Act. The decision in the case of

Punjab Wakf Board vs Sham Singh Harike (2019) 4

SCC 698 is also referred by the learned counsel for the

appellant to contend that in order to determine as to

whether there is a bar on the jurisdiction to the civil

court in relation to the provision contained in Wakf Act,

one is to ask the question as to whether the issue raised

in the suit or proceeding concerned is required to be

decided under the Wakf Act, 1995 by the tribunal under

any provision or not and if the answer to that question is

in the affirmative the bar of jurisdiction of the civil court

would operate.

19. Having noted the various decisions rendered by

this Court which are all by a quorum consisting of two

judges it would also be apposite for us to take note of

the decision in the case of Kiran Devi (supra) rendered

by a quorum of three Hon’ble Judges. The said case also

related to a suit instituted by the tenant in respect of the

Page 19 of 28
suit premises seeking declaration to that effect and to

continue in the suit premises as tenant on payment of

monthly rent. In the said case, the suit in question was

filed by the plaintiff before the competent civil court but

the defendants, namely the Wakf Board had contended

that the issue is to be decided by Wakf tribunal. They

filed application and sought transfer of the suit to the

Wakf tribunal which was accordingly ordered by the civil

court and was also upheld by the High Court in

Revision. Subsequently, having succeed on merits before

the Wakf tribunal, had failed in the writ petition wherein

the claim of plaintiff was upheld. The Wakf Board at that

point raised the contention that the tribunal did not

have the jurisdiction in the appeal filed before this Court

by placing reliance on Ramesh Gobindram (supra). This

Court in the facts arising therein had held that the

judgment passed by the Wakf tribunal in the

circumstance cannot be held as without jurisdiction.

The said case is one more circumstance to indicate that

the facts and circumstance in each case will have to be

Page 20 of 28
taken note in the background of the legal frame work

contained in the Wakf Act to determine jurisdiction.

20. In that light, in the present facts it is to be noted

that the appellants at the first instance had got issued a

notice dated 23.05.2006 to the respondent terminating

the tenancy relating to the suit ‘A’ schedule property. A

further notice was issued in respect of the suit ‘B’

schedule property requiring the respondent to vacate the

encroached portion. The respondent, by his reply notice

dated 12.06.2006 denied that the property in question

was a Wakf property. In the said circumstance, the

instant case cannot be deemed as an admitted case of

the property being Wakf property as in the reply notice

itself the respondent had disputed the same. It is in that

circumstance the appellants being of the impression

that the first issue to be established is that the property

in question is the Wakf property, which could be

considered by the tribunal, had filed the suit before the

Wakf tribunal. The respondent having appeared, filed

Page 21 of 28
the written statement and inter alia had contended as

follows: ­

“3. This defendant submits that with
regard to the averments made in para 1
of the plaint and the documents annexed
clearly shows that the suit property is
not a Wakf Property. The Gazette filed by
the Plaintiffs dated 30.10.1984 pertains
to the so called graveyard is of an extent
of 667.8 sq. yards. The said Gazette
notification clearly establish that this
Graveyard is not having any non
agricultural land such as mulgees and
houses etc. on the other hand as evident
from the Municipal records, electricity
and water works department record, that
the premises bearing No.5­7­420/2
stands in the name of the father of this
defendant. This defendant further
submits that there is no such Gazette
notification dated 21.12.1999 and the
extent mentioned 998.66 sq. yards is not
supported by any documentary evidence.
The 2 gazette notifications filed by the
Plaintiffs are self­contradictory. The so
called grave yard is endowed with any
property more over there will not be any
attached properties for the burial
grounds as there will be no
developmental activities or maintenance
like the other wakf institutions namely
the dargah masjid or ashurkhana as
much the averments made in Para 1 of
the plaint is wholly contrary to the
Gazette itself. The plaintiffs are put to
strict proof of the same.”

Page 22 of 28
21. Apart from the contention put forth by the

respondent what is also to be taken note is that the High

Court has made detailed reference to the contention put

forth by the respondent regarding the gazette

notification relating to the property as claimed by the

appellants and the discrepancy as pointed out by the

respondent by claiming that the extent mentioned is

667.8 sq. yards and not 998.66 sq. yards as contended

by the appellants. The inclusion of the property in the

gazette dated 29.12.1988 which was disputed by the

respondent was also taken into consideration. In that

light, through the discussion and conclusion reached by

the High Court in paras 12 and 13 (b) of the order while

adverting to the contention of encroachment of 40 sq.

yards which was described in Schedule ‘B’ to the suit it

has indicated that there is no evidence of required

standard as to how the extent of Wakf property had

increased from 667.8 sq. yards to 998.66 sq. yards and

by mere recital in the gazette notification under Exhibit

A2 and the resurvey report, the Muntakhab and the

Page 23 of 28
amended Muntakhab would not be sufficient to decide

the suit since the tenant had denied the case of the

plaintiffs that the ‘B’ schedule property is a Wakf

property. The High Court has further held that the

aspect as to whether the ‘B’ schedule property is a Wakf

property or not cannot be decided without affording an

opportunity to the tenant to question the correctness of

the contents of the gazette notification by following the

procedure established by law.

22. The very observations made by the High Court, in

our view would indicate that the suit was maintainable

before the Wakf tribunal in the facts and circumstances

of the instant case. This is so for the reason that the

High Court notices that the grievance put forth by the

respondent to contend that the property is not Wakf

property is by disputing the extent as shown in the

gazette notification as 998.66 sq. yards since according

to the respondent the actual extent is 667.8 sq. yards

and therefore the land in occupation by the respondent

is beyond that extent. Therefore, in fact the contention

Page 24 of 28
put forth by the tenant is with reference to the gazette

notification and to contend that the extent of property in

occupation is not within the extent as shown in the

gazette notification or otherwise. The dispute in effect is

to question the extent of land beyond 667.8 sq. yards

being included to be the property of the Wakf Institution

which is included in the list and as such whether that

extent in the list is Wakf property. That will be a

question which falls under Section 7 of the Waqf Act.

The very observation of the High Court indicating that

an opportunity is to be afforded to the respondent to

question the correctness of the contents of the gazette

notification by following the procedure established by

law is to allow the respondent to invoke the provisions of

Section 6 and 7 of the Wakf Act and seek appropriate


23. When that is the position, it will have to be noted

that in the instant case, though the legal remedy had

not been availed by the respondent within the time

frame as provided under Section 6 of the Act, the issue

Page 25 of 28
had fallen for consideration before the Wakf tribunal in

view of the defence put forth by the respondent and the

Wakf tribunal had rendered its finding on that aspect

based on the evidence placed before it. Since the gazette

notification had been questioned to indicate that the

property which is in the occupation of the respondent

was not a part of the notified Wakf property, the same

applied both to the suit Schedule ‘A’ as well as Schedule

‘B’ properties. In such circumstance, the Wakf tribunal

had the jurisdiction to determine that question which

had been framed as an issue in this suit. Further as

already noted, on the facts evolving in the instant case,

the tribunal had relied upon the evidence available and

had arrived at the conclusion that the property in

question is Wakf property and had accordingly decreed

the suit.

24. In that view, we are of the opinion that the

judgment dated 12.10.2012 passed by the Wakf tribunal

in O.S. No. 126/2006 was rendered in a suit which was

maintainable before the Wakf tribunal and it had the

Page 26 of 28
jurisdiction to do so. Insofar as the nature of the

consideration made, we notice that the evidence

available on record has been analysed in its correct

perspective and an appropriate conclusion has been

reached by the Wakf tribunal. On the other hand, as

already noted the High Court has not adhered to the

well­established norm of limited scope available in a

Revision Petition. Further the conclusion reached by the

High Court to hold that the suit was not maintainable

before the tribunal is also not justified. The order dated

02.06.2014 passed by the High Court, therefore, cannot

be sustained.

25. For all the aforesaid reasons, we pass the following
i) The order dated 02.06.2014 passed by the High

Court of Judicature at Hyderabad in Civil Revision

Petition No.1331/2013 is set aside.

ii) The judgment dated 12.10.2012 passed by the

Andhra Pradesh State Wakf Tribunal Hyderabad in O.S.

No. 126/2006 is restored.

Page 27 of 28
iii) The respondent is granted three months’ time to

vacate and handover vacant possession of the suit

schedule ‘A’ and ‘B’ properties subject to payment of

rent, including arrears.

iv) The appeal is accordingly allowed with no order as

to costs.

v) Pending application, if any, shall stand disposed of.



New Delhi,
August 03, 2021

Page 28 of 28


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