MOHAMMAD ZAFAR Vs. STATE OF U P

JUDGEMENT

(1.) JANARDAN Sahai, J. Original Suit No. 321 of 1993 filed by Shafique Ahmad mutawalli of the waqf against the petitioner was decreed by the trial court on 7. 2. 2004. The appeal against the decree was dismissed by the Additional District Judge, Bulandshahr by judgment and decree dated 2. 3. 2006. The second appeal filed by the petitioner was also dismissed by the High Court on 12. 4. 2006. The decree was put into execution. Objections under Section 47 Civil Procedure Code were filed by the petitioner on the ground that no notice to the Waqf Board as required under Section 66 of the U. P. Muslim Waqf Act, 1960 was issued. It was also alleged that under Section 90 of the Waqf Act, 1995 notice to the Waqf Board was necessary as the suit related to recovery of possession over Waqf property. The objections were dismissed by the trial court. A revision was filed by the petitioner, which has also been dismissed by order of the Additional District Judge, Bulandshahr dated 16. 11. 2006. Both these orders have been challenged in the present writ petition.

(2.) SRI Sheetla Sahai, learned counsel for the petitioner made only one submission ; that the decree in the Original Suit No. 321 of 1993 is a nullity and the execution application was also not maintainable because neither the suit nor the execution application was filed by the Waqf Board but was filed by the waqf through the mutawalli who was not competent to do so.

(3.) TO answer the question whether the mutawalli could institute the suit and execute the decree it is necessary to examine the status of the mutawalli under the Personal Law as well as under the provisions of the U. P. Muslim Waqf Act, 1960 and the Waqf Act, 1995. Para 527 of Tyabji's Muslim Law (Fourth Edition) is quoted : "the mutawalli has no ownership right or estate in waqf property ; in that respect he is not a trustee in the technical sense ; he holds the property as a manager for fulfilling the purpose of the waqf. "