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PETITIONER: KARNATAKA BOARD OF WAKF

       Vs.

RESPONDENT: ANJUMAN-E-ISMAIL MADRIS-UN-NISWAN

DATE OF JUDGMENT:       10/08/1999

BENCH: M.Jagannadha Rao, N.Santosh Hegde

JUDGMENT:

SANTOSH HEGDE, J.

     Leave granted.

     Heard  learned  counsel.   This  appeal  is  preferred against  the judgment and decree passed by the High Court of Karnataka  in R.S.A.  No.329/1989 dated 24.9.1997.  We shall refer  to  the  status of the parties as was  in  the  trial court.

     The  plaintiff  filed a suit for declaration that  the suit  property is not a wakf property and for  consequential directions to delete the suit property from the list of wakf properties.   The  trial  court as per  its  judgment  dated 16.4.1980 in O.S.  No.5/75 dismissed the suit and the appeal by  the  plaintiff  against  the said judgment  came  to  be dismissed  by the first appellate court as per its  judgment dated  2.1.1989  in  RA  No.508  of  1980.   The  concurrent findings  of the two lower courts have been reversed by  the impugned  judgment  of the High Court and the defendant  has preferred this appeal before us.

     The  plaintiff  claiming  to be a  Society  registered under  the Societies Registration Act, 1860 contended before the  trial court that it had purchased the suit property  as per  two  sale- deeds dated 25.7.1921 and 27.9.1921  and  is running  an  educational institution for the benefit of  the girls  of  muslim community.  It further contended that  the objects  of  the said Society did not confine itself to  the benefit  to  the  muslim   community  only,  therefore,  the property owned by it could not have been a wakf property and the  defendant-Wakf Board had erroneously notified the  same in  the  list  of wakf properties  without  proper  enquiry. Hence   it  sought  the   declaration  referred  to   above. Defendant, in brief, contended that the property in question originally   belonged  to  one   Sultanji  who  during   his life-time,  had  dedicated this property for the benefit  of muslim  community, reserving for himself the sole right  and privilege  of  managing  them.   The  said  declaration  was absolute  and  was  for the sole purpose of  benefiting  the muslim  community.  Therefore, the property in question is a wakf  property as contemplated under the Wakf Act.  On  this basis  the defendant denied the claim of the plaintiff.  The trial  court framed as many as 9 issues but for the disposal of  this case the only relevant issue for consideration  is:

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whether  the  suit property is a wakf property or not.   The definition of a wakf property reads thus :

     ""Wakf"  means  a  permanent dedication  by  a  person professing  Islam  of any movable or immovable property  for any purpose recognised by the Muslim law as pious, religious or charitable and includes,

     (i) Wakf by user, (ii) Mashrut ul khildmat and (iii) a wakf  alal  glad  to  the extent to which  the  property  is dedicated for any purpose recognised by Muslim law as pious, religious or charitable."

     Therefore,  the necessary ingredients for the  purpose of  deciding an issue whether a property is a wakf  property or  not,  is  to examine with reference  to  any  particular property whether there is a permanent dedication by a person professing  Islam  of any movable or immovable property  for any purpose recognised by the Muslim law as pious, religious o  r charitable or not.  In the instant case, the sale-deeds Ex.   P1  and  P2  dated 25.7.1921  and  29.9.1921  hitherto produced by the plaintiff at the relevant place read thus :

     "Whether  (sic)  as the land known as Sultanji  Gunta, situated  in  C  & M Station, Bangalore, and  shown  in  the accompanying  sketch  and scheduled hereunder together  with the  Makhan  adjoining it were originally the properties  of one  Sultanji,  who died about 70 years ago and whereas  the said  Sultanji constructed in the said land a pond or  gunta named  after  him  and  also set apart the  Makhan  and  had dedicated  both  for  the benefit of  the  Muslim  Community reserving  for  himself  the sole right  and  privilege  the Vendors  abovenamed  possess  as  being heirs  of  the  said Sultanji  as stated in the Putwa given about 6 years ago  by Sur  Khazi  Abdul Gaffar of C & M.  Station,  Bangalore  and whereas  the  said  pond has become insanitary  and  is  now filled  up  and has consequently become a building site  and whereas  the said Sultanji have acceded to the wishes of the said purchasers that the site of the pond should be utilised for  building a School thereon for Musalman Girls or for any other  communal  purposes and whereas the said Vendors  have agreed  to convey, assign and sell their right and privilege in  respect the schedule property to the said purchasers for the said purpose of building a Muslim Girls’ School on it or for  any  other communal purpose or purposes for the sum  of Rs.1000/- (Rupees One thousand) free from all encumbrances." (emphasis supplied).

     A perusal of this recital shows that Sultanji named in the  said  sale-deed had dedicated both the pond as well  as the Makan for the benefit of the Muslim community, reserving for  himself the sole right and privilege of managing  them. Having  so  dedicated the property on the death of  Sultanji the  privilege  of managing the said property seems to  have devolved upon the vendors of the said sale deed.  It is also clear  from  the  recital  extracted above  that  it  is  in furtherance  of  the  said  dedication of  Sultanji  with  a desiree  to  see  that the property in  question  should  be utilised  for building a School thereon for Muslim girls  or for  other communal purpose, the said property was sold.  In our  view,  the said recital makes it amply clear  that  the said  Sultanji had dedicated the property in question for  a purpose  recognised  by Muslim law, hence, the  property  in question  had become a wakf property.  Both the trial  court

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and  the lower appellate court in their elaborate  judgments referred to the arguments addressed on behalf of the parties and  perused the documents produced and concurrently came to the  conclusion  that  the property in question was  a  wakf property  and  the  fact that the plaintiff  was  registered under  the  Societies  Registration Act, did  not  make  any difference since the object of the Society was in conformity with  the  original dedication by Sultanji and also came  to the  conclusion  that the contention of the plaintiffs  that there  was no opportunity afforded to them before  notifying the  suit  property as wakf property, is also baseless.   In second  appeal, the High Court framed the following question of law for consideration :

     "i)  Having regard to the fact that Ex.P.1 and P.2 are the  sale  deeds  executed by the Vendors in favour  of  the plaintiffs,  whether  the  courts  below  are  justified  in holding that they have the effect of creating a Wakf."

     A  perusal of this question hardly gives an impression that  the  said question involves any question of  law  much less a substantial question of law.  In the ordinary course, what  we  have  stated above, would have  sufficed  for  the disposal  of this appeal.  However, the approach of the High Court  in  this case has been in total contravention of  the law laid down by this C ourt in a catena of decisions.  This Court  had repeatedly held that the power of the High  Court to  interfere  in  second appeal under Section  100  of  the C.P.C.   is limited solely to decide a substantial  question of  law,  if  at all the same arises in the  case.   It  has deprecated   the  practice  of   the  High  Court  routinely interfering  in pure findings of fact reached by the  courts below without coming to the conclusion that the said finding of   fact   is   either    perverse    or   not   based   on material-on-record.  In Ramanuja Naidu v.  V.  Kanniah Naidu &  Anr.   (1996 3 SCC 392), this Court held "It is now  well settled  that concurrent findings of fact of trial court and first  appellate court cannot be interfered with by the High Court  in exercise of its jurisdiction under Section 100  of Civil  Procedure  Code.  The Single Judge of the High  Court totally misconceived his jurisdiction in deciding the second appeal  under Section 100 of the Code in the way he did." In Navaneethammal  v.   Arjuna  Chetty (1996 6 SCC  166),  this Court  held :  "Interference with the concurrent findings of the  courts  below by the High Court under Section  100  CPC must  be avoided unless warranted by compelling reasons.  In any case, the High Court is not expected to reappreciate the evidence  just to replace the findings of the lower  courts. x  x  x  Even assuming that another view is  possible  on  a reappreciation  of  the same evidence, that should not  have been  done  by the High Court as it cannot be said that  the view  taken  by  the first appellate court was based  on  no material."  And  again in Secretary,  Taliparamba  Education Society v.  Moothedath Mallisseri Illath M.N.  & Ors.  (1997 4  SCC 484), this Court held "The High Court was grossly  in error  in trenching upon the appreciation of evidence  under Section  100 CPC and recording reverse finding of fact which is  impermissible." We are not referring to these  judgments because they have laid down any new legal principles, but to highlight  the fact, how the High Court has overlooked these dicta.   In  the  narration  of facts of this  case  in  the paragraphs hereinabove, we have referred to minimal facts of the case only to show that the question involved in the suit as  well as in the appeal was a pure question of fact.   The

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recitals  in the documents produced by the plaintiff  itself established  on their face the facts necessary to settle the question  in  dispute, without even having to interpret  the contents  of  the  documents.   The two  courts  below  have correctly  understood the same.  In the instant case, if the learned  Judge of the High Court felt that there was a  need for  examining the evidence to find out whether the findings of the lower courts were either perverse or not borne out of records  then  we  would have expected him to refer  to  and discuss the evidence in detail, pointing out the fatal error committed  by the courts below in their finding of fact.  In the  instant case, the High Court after quoting  extensively from  certain  judgments of this Court and without  pointing out  how the ratio of those judgment applied to the facts of the  present case, reversed the concurrent finding which, in our  opinion, was wholly unwarranted.  The trial court noted the  specific  admissions made by PW-1 during the course  of his  cross-examination  which clearly negatived the case  of the  plaintiff/appellant.   It also came to  the  conclusion that  the  evidence  of  PW-1  with  reference  to  lack  of opportunity given to the plaintiff was "clearly false".  The first appellate court during the course of its judgment held that  the plaintiff at the first appellate stage had filed a fabricated  affidavit  in support of its  application  under Order  41 Rule 27 CPC for additional evidence, and  directed that  steps  should  be taken to impound  the  affidavit  in question  and  to  keep the affidavit in  safe  custody  for further  action in the matter against the concerned persons. If  really the High Court had applied its mind to the  facts of  the  case, as understood by the two lower  courts,  then certainly   it   should  have   commented  upon  the   above circumstances  relied  upon by the lower courts.  All  these facts  noted above give us an impression that the High Court has  interfered  with  the concurrent findings  of  the  two courts  below in a routine and casual manner by substituting its  subjective  satisfaction  in  the place  of  the  lower courts.   For the reasons stated above, this appeal succeeds and  the judgment and decree of the High Court under  appeal is set aside, and the judgment and decree of the trial court in  OS  No.5/75 as affirmed by the first appellate court  is restored.  The appeal is, accordingly, allowed with costs.