Pleadings Specific for Fraud required

    Specific pleading to fraud is required and [Afsar Sheikh v Soleman Bibi (1976) 2 SCC 142;  

 the threshold is very high [Narandas Karsondas v S.A Kamtam 1977 3 SCC 247]    

THIRD PARTY AUCTION PURCHASER RIGHTS ARE PROTECTED

Ashwin S. Mehta v. Custodian, (2006) 2 SCC 385	Rights of auction purchaser – Bona fide purchaser for value in auction is on different footing than a decree holder purchasing such property (¶¶ 70-72)
Sadashiv Prasad Singh v. Harendar Singh, (2015) 5 SCC 574	Third party – auction purchaser rights – auction purchaser's rights continues to be protected notwithstanding the underlying decree is set aside. Once sale is confirmed by authority, rights accrue in favour of the auction purchaser and these rights cannot be extinguished unless fraud or collusion is proved .  [¶¶ 17-19 ]

SALE DEED IS PRESUMED TO BE VALID AND NEEDS SEPARATE CANCELLATION

Prem Singh v. Birbal, (2006) 5 SCC 353	Validity of registered deed- See ¶ 16; A registered document is prima facie presumed to be valid in law (¶ 27)
Jamila Begum v. Shami Mohd., (2019) 2 SCC 727	held a registered document carries with it a presumption that it was validly executed and that it is for the party challenging the genuineness of the transaction to show that the transaction is not valid in law. [ See ¶ 16] Thus, the Cour concluded that a revenue Court has to presume the validity and genuineness of a duly registered sale deed. [ ¶ 20 last line ]
Damodhar Narayan Sawale v. Tejrao Bajirao Mhaske, 2023 SCC OnLine SC 566	Court needs to consider the impact of registered sale deed before granting reliefs prayed   [¶13]

No pleading, no relief can be granted

Trojan & Co. Ltd. v. Nagappa Chettiar, (1953) 1 SCC 456	Decision of a plaint cannot be on grounds outside the pleadings, without amendment of the plaint, court was not entitled to grant relied not asked for "It is well settled that the decision of a case cannot be based on grounds outside the pleadings of the parties and it is the case pleaded that has to be found. Without an amendment of the plaint, the Court was not entitled to grant the relief not asked for and no prayer was ever made to amend the plaint so as to incorporate in it an alternative case ." See ¶ 38
Chikkathammiah v. Chikkahutchiah, 1976 SCC OnLine Kar 126;   ILR 1976 Kar 1697 : AIR 1977 Kar 99	Defendants raised the objection that suit was not maintainable unless a relief for cancellation of sale deed was asked for. The munsiff court agreed and same was upheld by HC.- that even when the plaintiffs were not a party to sale deed they still had to seek relief for cancellation ( see ¶ 2-4 )
Krishna Priya Ganguly v. University of Lucknow, (1984) 1 SCC 307	When High Court granted relief which the respondent never prayed for, this was reproached by the SC. (i.e issued mandamus to admit student when the prayer was for a writ directing the college to consider him for admission) See ¶ 26
Om Prakash v. Ram Kumar, (1991) 1 SCC 441	A party cannot be granted a relied not claimed, if grant of such relief results in serious prejudice to the interested party and deprive him of rights under statute, (here in action by landlord against tenant, it is necessary that the landlord seeks to enforce that cause of action in the same proceedings by suit at the amendment or by separate proceedings to entitle the landlord to relief on the basis of such cause of action. Principle of moulding relief does not apply here) See  ¶ 4 at pg 445 last 6 lines
Anathula Sudhakar v. P. Buchi Reddy, (2008) 4 SCC 594	Suit for declaration and injunction,  prayer for declaration is necessary if the denial of title by the defendant raises doubts on P's property . ¶ 32. civil cases are circumscribed by the rules of pleadings, nature of relief claimed – "predicament of the plaintiffs was brought upon themselves by failing to convert the suit to one for declaration even when the written statement was filed and by not seeking amendment of issues to include an issue of title" [see ¶¶ 13,14] See notes on LiqT. ¶21 also ¶32
Bharat Amratlal Kothari v. Dosukhan Samadkhan Sindhi, (2010) 1 SCC 234.	General Principle of CPC- Court cannot grant relief not prayed for. ""Though the Court has very wide discretion in granting relief, the Court, however, cannot, ignoring and keeping aside the norms and principles governing grant of relief, grant a relief not even prayed for by the petitioner." [¶ 30]
Akella Lalitha v. Konda Hanumantha Rao, 2022 SCC OnLine SC 928	"relief not found on pleadings should not be granted. If a Court considers or grants a relief for which no prayer or pleading was made depriving the respondent of an opportunity to oppose or resist such relief, it would lead to miscarriage of justice." (SLP based on child custody matter under the family law) ¶16-17

Alternative Remedy argument in Appeal

if a statute provides for a thing to be done in a particular manner then it has to be done in that manner and in no other manner and following any other course is not permissible

The age old principle enshrined in the Latin maxim expressio unius est exclusio alterius i.e. if a statute provides for a thing to be done in a particular manner then it has to be done in that manner and in no other manner and following any other course is not permissible, is squarely attracted. The principle was recently reiterated by the Supreme Court in Selvi J. Jayalalithaa v. State of Karnataka (2014) 2 SCC 401 and in Mackinon Mackenzie and Company Ltd. v. Mackinnon Employees Union (2015) 4 SCC 544. In the latter, it was further held that if the procedure prescribed is not followed, then such act of the authority has to be held to be null and void ab initio in law. The principle was yet again reiterated in Zuari Cement Ltd. v. Regional Director E.S.I.C. Hyderabad (2015) 7 SCC 690.

Person interested in Wakf Waqf

 

1.      WHO IS PERSON INTERESTED IN WAKF?

 

Section 3(k) of the Waqf Act, 1995 defines the term "person interested in wakf". It means any person who is entitled to receive any pecuniary or other benefits from the [waqf][1] and includes –

 

(i) any person who has a right to [offer prayer][2] or to perform any religious rite in a mosque, idgah, imambara, dargah, [khanqah, peerkhana and karbala][3], maqbara, graveyard or any other religious institution connected with the [waqf][4] or to participate in any religious or charitable institution under the [waqf][5];

 

(ii) the [waqif][6] and any descendant of the [waqif] and the mutawalli

 

Section 83 (2) of the Waqf Act, 1995 says that: "Any mutawalli, person interested in a waqf or any person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the tribunal for determination of any dispute, question or other matter relating to the waqf."

 

Section 70 of The Waqf Act, 1995 says that: "Any person interested in a waqf may make an application to the board supported by an affidavit to institute an enquiry relating to the administration of the waqf and if the board is satisfied that there are reasonable grounds for believing that the affairs of the waqf are being mismanaged, it can take such action thereon as it thinks fit"

 

CONCLUSION- After studying section 3(k), 83(2) & section 70 of the Waqf Act, 1995 a person who has right to offer namaz at Masjid is an Interested person to it and being an interested person he can be party to any dispute relating to the mosque as well as can institute an enquiry relating to the administration of waqf.

 

 

 

 

 

 

 

CASE LAWS

 

S.no.	Name of case	Relevant paragraph
1.	Sirajul Haq Khan v. Sunni Central Board of Wakf, AIR 1959 SC 198   JUSTICE T. L. VENKATARAMA AYYAR, JUSTICE P.B. GAJENDRAGADKAR & JUSTICE A.K. SARKAR	16. In our opinion, on a reading of the provisions of the relevant sub-section as a whole there can be no doubt that the expression "any person interested in a waqf" must mean "any person interested in what is held to be a waqf" (Para 16) The legislature has definitely contemplated that the decision of the Commissioner of the Waqfs that a particular transaction is a waqf can be challenged by persons who do not accept the correctness of the said decision, and it is this class of persons who are obviously intended to be covered by the words "any person interested in a waqf"
2.	Waqf Masjid through Sec. Mohd Ismail v. Waqf Tribunal U.P.   Neutral Citation No. - 2023:AHC-LKO:23390   JUSTICE MANISH MATHUR	10. Evidently a person interested in a waqf is any person who is entitled to receive any pecuniary or other benefits from the waqf. The provision is inclusive of any person who has a right to offer prayer or perform any religious rite in a religious place as defined thereunder. 11. Once it is admitted that petitioner even without holding the post of Mutawalli or Secretary of the managing committee of the waqf has a right to offer prayers or to perform any religious rite in the religious institution of the waqf, the revisionist would come within definition of a person interested in the waqf as defined under Section 3(k) of the Act, 1995. 18. It is therefore evident that despite the fact that revisionist was removed from his post as Mutawalli/Secretary of the managing committee of waqf, the application filed by him under Section 83(2) of the Act, 1995 in his individual capacity was clearly maintainable not only as a person interested in a waqf but also as a person aggrieved by order dated 16th February, 2022 passed in terms of Section 32 of the Act. 19. A perusal of the impugned order reveals the fact that revisionist's application under Section 83(2) of the Act of 1995 has been dismissed as infructuous only on the ground that he has been removed from the post of Mutawalli/Secretary of the managing committee of waqf. The Tribunal has clearly not adverted to other provisions of Section 83(2) of the Act of 1995 pertaining to whether the suit was maintainable in individual capacity of revisionist either as a person aggrieved or as a person interested in the waqf.
3.	Sk. Safik And Others v. The Board Of Wakfs C.O. No.200 of 2021   JUSTICE SABYASACHI BHATTACHARYYA	83. The plaintiffs, being persons interested and worshippers of God in the Mosque, certainly fall within the category of 'beneficiaries', it is submitted. Moreover, the Tribunal, by partially decreeing the suit in favour of the plaintiffs, obviously gave a go-bye to the maintainability point for want of notice under Order I Rule 8 of the Code. Such factors render them 'interested persons' within the contemplation of Section 70 of the 1995 Act and conferring locus standi on the revisionist petitioners to prefer the instant application under Article 227 of the Constitution of India.
4.	Syed Mohd. Salie Labbai v. Mohd. Hanifa, (1976) 4 SCC 780	34. For instance in the case of a mosque if the Mahomedans of the village, town or the area are permitted to offer their prayers either on the vacant land or in a mosque built for the said purpose that amounts to the delivery of possession and divestment and after the prayers have been offered the dedication becomes complete. Unfortunately the courts which decided the previous litigation between the parties do not appear to be aware of the considerations mentioned above. 49. It is further contended that under the agreement, the plaintiffs clearly stipulated not to claim any right or interest in the mosque and, therefore, they cannot now be heard to say that the mosque was a wakf property. This argument appears to have found favour with the trial court. But in our opinion it is based on a serious misconception of the Mahomedan Law on the subject. Once there was a complete dedication of the mosque as a place of public worship any reservation or condition imposed by the owner would be deemed to be void and would have to be ignored. Moreover we do not construe the so-called stipulation by the plaintiffs' ancestors at the time of erecting the prayer hall as an assertion that the mosque was not a public wakf. Reading the statements made in the agreement as a whole what the plaintiffs' ancestors meant was that the mosque would be undoubtedly a public wakf meant for the purpose of public worship and that they would not interfere with the management of the same. This does not mean that if the founder's descendants indulged in mismanagement of the mosque the plaintiffs as members of the Mahomedan community could not take suitable action under the law against the defendants. This argument is, therefore, negatived.

Conclusion- These case laws affirm the position of a musalli(person who prays in the mosque) with regard to the affairs of masjid.

 

2.     IS MUTAWALLI THE OWNER OF MASJID/ WAKF PROPERTY?

 

Section 3(k) of the Waqf Act, 1995 defines the term "Mutawalli":

 

"mutawalli" means any person appointed, either verbally or under any deed or instrument by which a waqf has been created, or by a competent authority, to be the mutawalli of a waqf and includes any person who is a mutawalli of a waqf by virtue of any custom or who is a naib-mutawalli, khandim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being, managing or administering any waqf or 1 waqf property:

Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such member is an office-bearer of such committee or corporation: Provided further that the mutawalli shall be a citizen of India and shall fulfil such other qualifications as may be prescribed: Provided also that in case a waqf has specified any qualifications, such qualifications may be provided in the rules as may be made by the State Government;

 

 

CASE LAWS

S. no.	Name of Case	Relevant paragraph
1.	Bibi Saddiqa Fatima v. Saiyed Mohd. Mahmood Hasan, AIR 1978 SC 1362   JUSTICE R.S. SARKARIA, JUSTICE N.L. UNTWALIA, JUSTICE P.S. KAILASAM	16. A Mutawalli is like a Manager rather than a trustee (see p. 498). The Mutawalli, so far as the waqf property is concerned, has to see that the beneficiaries got the advantage of usufruct
2.	Syeda Nazira Khatoon v. Syed Zahiruddin Ahmed Baghdadi, (2019) 9 SCC 522   Justice N. V. RAMANNA, Justice M. M. SHANTANAGOUDAR, and Justice AJAY RASTOGI	15. Under Mohammedan Law, when a wakf is created, all rights in the property pass from the wakif or dedicator to the God. The mutawalli is only a manager of such property and does not have any rights in it. This role envisaged for a mutawalli finds clear exposition in Ahmed G.H. Ariff v. CWT [Ahmed G.H. Ariff v. CWT, (1969) 2 SCC 471] , where a three-Judge Bench of this Court observed as follows: (SCC p. 476, para 6)   "6. … the moment a wakf is created, all rights of property pass out of the Wakif and vest in the Almighty. Therefore, the Mutawalli has no right in the property belonging to the wakf. He is not a trustee in the technical sense, his position being merely that of a superintendent or a manager. A Mutawalli has no power, without the permission of the Court, to mortgage, sell or exchange wakf property or any part thereof unless he is expressly empowered by the deed of wakf to do so."
3.	Faqir Mohd. Shah v. Qazi Fasihuddin Ansari AIR 1956 SC 713   JUSTICE VIVIAN BOSE, JUSTICE SYED JAFAR IMAM & JUSTICE CHANDRASHEKHARA IYER	66. Now it is evident that the space on which the pushtas and the minarets stood was part of the mosque property. The defendant has therefore built on a part of the mosque estate and as he has not demarcated those portions from the rest we are bound to treat them as accretions to the mosque estate.' It is true that a stranger to the trust could have encroached on the trust estate and would in course of time have acquired a title by adverse possession. But a Mutwalli cannot take up such a position. Both Gulab Shah and the defendant have described themselves as Mutwallis of the mosque, therefore, if they choose to build on part of the mosque property in such a way as to integrate the whole into one unit (that is to say, the parts of each room that stand on the mosque property and the remainder that does not so as to form one composite room) then we are bound to regard this as an accretion to the estate of which they were trustees; and they will be estopped from adopting any other attitude because no trustee can be allowed to set up a title adverse to the trust or be allowed to make a benefit out of the trust for his own personal ends.   A person in a fiduciary relationship or one, in whom the property was vested in trust, could not claim title by adverse possession over trust property. A Mutawalli, accordingly, on the said principle, could not claim title by adverse possession over waqf property.
4.	Faqruddin v. Tajuddin, (2008) 8 SCC 12   JUSTICE S.B. SINHA & JUSTICE L.S. PANTA	36. It is beyond any doubt or dispute that a mutawalli is the temporal head. He is the manager of the property.

 

 

 

 

 

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[1] Substituted for "wakf" by Act 27 of 2013

[2] Substituted for "worship", ibid.

[3] Substituted for "khanzah", ibid.

[4] Substituted for "wakf", ibid.

[5] Substituted for "wakf", ibid.

[6] Substituted for "wakif", ibid.