Holding

A service inam dedicated for pious, religious or charitable purposes is a Wakf and retains that character irrespective of subsequent patta grants, so the High Court’s decree in favour of the Wakf Board stands.

Summary

The Andhra Pradesh Wakf Board claimed that a 358‑53 cent land parcel in Devada Mokhasa village, originally endowed by the Nizam for the support of the Syed Ali Ishaq Madina Vali Dargah, was a Wakf property. The Board sought cancellation of long‑term leases and sub‑leases executed by mutawallis, alleging the land was a service inam dedicated to religious and charitable purposes. The lower court dismissed the suit, holding the land was granted to individuals, but the High Court reversed that decision, declaring the land a Wakf based on documentary evidence and the 1961 Gazette notification. The appellants challenged this on grounds of res judicata, lack of jurisdiction of the Tahsildar under the Inams Act, and the effect of a patta grant on Wakf status. The Supreme Court held that a service inam dedicated for pious, religious or charitable purposes qualifies as a Wakf, that the Tahsildar lacked jurisdiction to decide the character of the property, and that a non‑jurisdictional finding cannot operate as res judicata; consequently, the High Court’s decree was upheld. The appeal was dismissed.

Issues considered

Whether the disputed land qualifies as a Wakf under Section 3(1) of the Wakf Act, 1954.
Whether the findings of the High Court (and earlier Tahsildar) constitute res judicata.
Whether the suit filed by the Wakf Board is barred by Section 14 of the Andhra Pradesh Inams Act, 1956.
Whether the grant of patta to the Mokhasadar under the Inams Act extinguishes the Wakf character of the property.
Whether the Tahsildar had jurisdiction to determine the character of the property under the Inams Act.

Legislation cited

Code of Civil Procedure, 1908s. 11
Wakf Act, 1954s. 3(1), s. 5(2), s. 6

Subjects

WakfService InamRes JudicataJurisdictionInams ActPattaReligious EndowmentCivil ProcedureProperty LawAndhra Pradesh

Judgment

A SAYYED ALI AND ORS.
v.
ANDHRA PRADESH WAKF BOARD HYDERABAD AND ORS.

JANUARY 28, 1998

B [DR. A.S. ANAND AND V.N. KHARE, JJ.]

The Wakf Act 1954: Sections 3(1) and 6-Definition of Wakf-Grants
by way of service inams for the purposes recognised by Muslim Law as pious,
religious or charitable would constitute the property as Wakf-Once a wakf
C is created, it continues to be so for all times to come-Grant of patta in
favour of Mokhasadar does not affect its original character as wakf-Any
dispute with regard to character of wakf property-To be decided in the
manner provided under Section 6.

Andhra Pradesh (AA) lnams (Abolition And Conversion into Ryotwarij
D Act, 1956-Sections 3 and 14-Jurisdiction of tehsildar while conducting
enquiry under Section 3-No power to conduct inquiry on character of wakf
property-Section 14 presupposes an order passed within jurisdiction.

Code a/Civil Procedure, 1908-Section I I-Res Judicata-Presupposes
E the existence of decree or judgment which is legal-Can not be founded on "
a judgment which is without jurisdiction.

The respondent-Wakf Board has allegeiJ that the property in dispute
is a wakf property endowed by the Nizam of Hyderabad for support and
service of the Dargah in Visakhapatnam. After the constitution of the Wakf
F Board, the said property was notified as a Wakf property in the Andhra
Pradesh Gazette dated 30.11.1961. It was further alleged that the Mutawallis >--
managing the said property executed long term leases in favour of tenants ~
who on their turn executed long-term sub-leases. The Wakf Board filed a
suit on 8.8.1976 for cancellation of the various leases and sub-leases and for
recovering the possession thereof. The sub-lessees contested the suit on the
G ground that the grant was not in favour of the dargah but in favour of
individuals burdened with the service and therefore the said property was not
a Wakf property. The suit was dismissed on 14.2.75 on the ground that the -<'. -
inam was made in favour of named individuals and that the said property was
not wakf property. The wakf Board preferred an appeal before the High
H Court which was allowed and its suit was decreed on 6.8.84. The High Court
398
(

".
SAYYED ALI v. A.P WAKF BOARD HYDERABAD 399
relied upon the following documents for holding that the said property was A
-~ wakf property-(i) an extract from the loam Fair Register which indicate that
the inam was granted for support of the Dargah; (ii) a certified copy of the
decree dt. 17.12.1903 which shows that the title deed issued by the Inam
Commissioner was cancelled as the grantees were not rendering service at
the Dargah which was challenged by the Mokhasadar by means of a suit; (iii)
copy of the compromise decree dated 7.2.1910 arrived at between the Govt.
B
'r
and the Mokhasadar which stipulated how the income from the said property
was to be utilised for services and that if the terms of the compromise are
not fulfilled, the grant would be resumable; (iv) a copy of the survey report
dated 2.4.1956 wherein it was found that the inam was granted for service
of the dargah and was tax free. c
Before the above suit was filed, the Tahsildar had made a suo motu
enquiry under Section 3 of the Andhra Pradesh (AA) loams (Abolition And
Conversion into Ryotwari) Act, 1956 for the purposes of grant of pattas. The
Tahsildar while holding that the said property was inam land, further held

~
--< that it was not held by any institution. The order of the Tahsildar was D
confirmed by the Revenue Divisional Officer and subsequently by the High
Court on 22.4.70.

The present appeal is against the order of the High Court dated 6.8.84
whereby the original suit of the Wakf Board was decreed. The contentions
raised by the appellant were:- (1) the property in dispute was in fact a grant E
in favour of individuals and not a wakf property; (ii) the findings recorded
by the High Court as regards the character of the said property in its order
dated 22.4. 70 constituted res j udicata; (iii) the suit instituted by the Wakf
Board was not maintainable in view of Section 14 of the loams Act; (iv) once
patta, under the loams Act has been granted to the Mokhasadar, it was not
F
~,
open to the High Court to hold the said property to be Wakf property.
..,
Dismissing the appeal and confirming the order of the High Court, this
Court.

HELD : 1.1. The view taken by the High Court that the disputed G
property was Wakf as defined in Section 3(1) of the Wakf Act is correct in
., 'r law and the same does not suffer from any legal infirmity. The terms of
compromise in the compromise decree dated 7.2.1910 do indicate that the
nature of the property is a service inam. The grant in favour of the
Mokhasadars was subject to the condition that the)' render service at the
Dargah and perform the va~ious obligations imposed on them. It was not left H
400 SUPREME COURT REPORTS [1998] I S.C.R.
...._

-·
A to the Mokhasadars to neglect the dargah and not to incur any expenditure
for the upkeep of Dargah or performing Moharrum and other festivals. The -1- -
purpose for which the Mokhasadar were obligated was for purposes under
the .Muslim law as pious, religious and charitable. It is true that the
compromise decree constituted inam as a service inam but under the Wakf
Act such a grant answers to the description of Wakf even if the Mokhasadars
B were allowed to enjoy the property, subject to this restriction that they would -<'
render service as stipulated in the compromise decree. [407-B; 406-A-C]

R. Doraswamy Reddy v. Board of Wakf. (1978) 2 APLJ 399, referred
to.
c 1.2. The entries in the Jnam F11ir Register establish the ingredients
of Wakf as defined in Section 3(1) of the Act. For the purposes of that
definition, it is not necessary that the dedication should be in favour of
Dargah. It is sufficient if the dedication is made for the purpose recognized
by the Muslim Law as pious, religious or charitable. Grants by way of service
inams for the purposes recognised by the Muslim law as pious, religious or
D ch.iritable would clothe the property with the character of "Wakf."
)<-
~
[406-H; 407-Al
1.3. Any dispute relating to the character of Wakf property is to be
decided in the manner provided under the Wakf Act. Subject to the result
of a civil suit, if filed, the list of Wakfs published in the official gazette is
E final and conclusive. In the present case, the disputed property was shown
as Wakf property in the A.P. Official Gazette on 30.11.1961 and no suit
having been filed challenging the Wakf property, the entries in the official
gazette describing the property as wakf became final and conclusive.
[407-F-GJ
F 1.4. While making an enquiry ~nder Section 3 of the Jnam Act as to
:.- , ,.
find out whether the inam land was held by the Dargah, the Tahsildar was ~·

not required to enquire into and adjudicate upon the character of the Wakf
property mentioned in the list of Wakf published in the official gazette under
sub-section (2) of Section 5 of the Wakf Act, as the dispute in that regard
as to its character could only be decided in the manner provided in Section
G 6 of the Wakf Act. Consequently, the finding of the Tashildar that the

-< .. '
property was not a Wakf property would not constitute res judicata in the
subsequent suit filed by the Wakf Board. [407-H; 408-A-Cf

1.5. It is well settled that if a decision of a court or a tribunal is
without jurisdiction, such a decision or finding cannot operate as resjudicata
H in any subsequent proceedings. The plea of res judicata presupposes that
SAYYED ALI v. A.P. WAKF BOARD HYDERABAD 401
there is in existence a decree or judgment which is legal but when the A
-\· judgment is non est in law, no plea ·of res judicata can be founded on such
a judgment. [408-C-D]

Mathura Prasad v. Dossibai AIR, (1971) SC 2355.

Richpal Singh v. Dalip AIR, (1987) SC 2205. B
~··

Pandurang Mahadeo Kavade v. Annagi Ba/want Bokil, 119111 3 sec
;;
5301, relied upon.

Res Judicata, Spencer Bower and Turner (2nd Edition) P. 92, referred
to. c
1.6. Decision or order contemplated under Section 14 of the Ina ms
Act presupposes an order passed within jurisdiction. Since, order passed by
the Tashildar has been found to be without jurisdiction, Section 14 of the Act
whioh bars the jurisdiction of the Civil Court would not be attracted in the
subsequent suit. In the present case, since it was not within the domain of D
... -...:: the Tahsildar to embark .upon an enquiry in respect of Wakf property,
-;?
Section 14 of the Ina ms Act cannot affect the maintainability of the suit filed
by the Wakf Board. (409-H; 410-AJ

Vatticheruku~uVillage Panchayat v. Nori Venkatarama Deekshithu/u,
[1991] 2 SCR 531, distinguished. E

1.7. rt may be stated that a Wakf is a permanent dedication of property
for purposes recognized by Muslim law as pious, religious or charitable and
the property having been found as Wakf would always retain its character
as a Wakf. In other words, once a Wakf always a Wakf and the grant of patta
F
~ in favour of Mokhasadar under the lnams Act does not, in any manner,
.; nullify the earlier dedication made of the property constituting the same as
Wakf. After a Wakf has been created, it continues to be so for all time to
come and further continues to be governed by the provisions of the Wakf Act
and a grant of patta in favour of Mokhasadar does not affect the original
character of the Wakf property. [410-E-F[ G

~ ~ CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4372 of
'
1985.

From the Judgment and Order dated '5.i!.84 of the Andhra Pradesh
High Court in A. No. 89 of 1976. H
-¥
·-..._~ ...

402 SUPREME COURT REPORTS [1998] l S.C.R.

A A. Subba Rao and K. Subba Rao for the Appellants.
-f--
P.S. Poti, M. Qamaruddin, Feroze Ahmed, Altaf Hussain, J.A. Warsi
and M~s. M. Qamaruddin for the Respondent.

The Judgment of the Court was delivered by
B ."'(
V. N. KHARE, J. This appeal is directed against the judgement of the
High Court of Andhra Pradesh dated 6.8.84 passed in Appeal No. 89 of 1976
c
whereby the High Court allowed the appeal and decreed the original suit filed
by the first respondent herein.

c The facts leading to the filing of the ~ivil appeal are these :

The first respondent herein is the Andhra Pradesh Wakf Board
!hereinafter referred to as the "Wakf Board" constituted under the wakf Act
(hereinafter referred to as the "Wakf Act"). The Wakfboard is entrusted with
the duty of administering and supervising all wakfs within the State of
D Andhra Pradesh, whether created before or after the commencement of the 0:-
.,..
Wakf Act. One of such wakfs is by the name "Syed Ali Ishaq Madina Vali
Dargah" having about Ac. 358-53 cts. land in Devada Mokhasa village covered
by title Deed No. 42. It was alleged by the Wakf Board that the aforesaid
property was endowed by the Nizam of Hyderabad for- support and the
services of the Dargah in the port area of district Visakhapatnam. It was
E
further alleged that, from the property the income wa3 being utilized for the
maintenance and performance of services of the said Dargah from time
immemorial and after constitution of the Wakf Board, the first respondent
herein, notified the said property as Wakf property in the Andhra Pradesh
Gazette dated 30.11.1961. It was also alleged that the Mutawallis managing
F said the property without any kind of right, executed long term leases in
favour of other defendants, who on their turn, executed long term sub-leases.
>--
'<;
Since the Mutawallis have no right or authority to execute long term leases,
the Wakf Board on 8.8.1967 filed the suit in the Court of Subordinate Judge,
Visakhapatnam for cancellation of various leases or sub-leases in respect of
the property and for recovering the possession thereof. The case of Wakf
G Board was that long term leases being illegal, do not bind the Dargah as the
property is a Wakf property. The suit was contested by the sub-lessees and
the defence taken by them was. that the grant was not in favour of Dargah
~-
and the property was not a Wakf property and, in fact, the grant was in favour
of named individuals burdened with the service. The learned Subordinate
H Judge by judgement dated 14.2.75 dismissed the suit holding that the inam
SAYYED ALI r. A.P. WAKF BOARD HYDERABAD [V.N. KHARE, J] 403
was in favour of the named individuals and the property did not belong to A
the Dargah and that the Wakf Board is estopped from contending that the
property in dispute is part of Wakf property in view of the judgment of the
High Court in Writ Petition No. 1726 of 1968. Jn this context it may be
mentioned here that, before filing ihe suit, the Tahsildar made a suo motu
enquiry under section 3 of the Andhra Pradesh (A.A.) Inams (Abolition and B
Conversion into Ryotwari) Act, 1956 therein after referred to as the "Inam
Act") for the purposes of grant ofpattas on three points, vi:;., firstly, whether
the property in dispute is an inam land; secondly, whether such inam land is
in a ryotwary, zamindari or inam village and, thirdly, whether such inam land
is held by any institution. The Tahsildar by his order dated 17.1.67 held that
the land specified below is an inam land; that the land is in the inam village C
of Devada Mokhasa of Visakhapatnam Taluk in Visakhapatnam District: and
that the land is not held by an institution.

T.D. No. S. No. Classification Extent Remarks

42 I to 211 Devada Mokhasa Ac. Cts. 3091....46 D
Wet and Dry

It may be mentioned here that the Tahshildar by his subsequent order dated
2.6. 77 held the following land is an inam land and is in village Devada
Mohkhasa of Viaskhapatnam Taluk and is not held by any institution.
E
ID No. S.No. Classification Extent Remarks

42 212 to 216 Devada Mokhasa Ac. 2216.35

Against the order of the Tahsildar an appeal was preferred before the F
Revenue Divisional Officer Visakhapatnam which was dismissed on 21.8.67.
Subsequently, the orders of Tahsildar and the Revenue Divisiona_l Officer
were challenged before the High Court of Andhra Pradesh by means of a
petition under Article 226 of the Constitution but the same was dismissed by
order and judgment dated 22.4.1970. To complete the chain of events the Wakf
Board after dismissal of its suit preferred first appeal before the High Court G
of Andhra Pradesh which was allowed and the WakfBoard's suit was decreed.

Learned counsel appearing for the appellant advanced number of
submissions in support of appellants case. He contended that the view taken
by the High Court that the property is a Wakf is erroneous. Learned counsel
took us to various documents which are on record of the case and argued H
404 SUPREME COURT REPORTS (1998] 1 S.C.R.

A that the property was in fact a grant made to individuals and not a Wakf
property. The documents relied upon by the High Court for coming to the
conclusion that the property is a Wakf, are Ex. B 3 dated 1.12.63 which is an
extract from the lnam fair Register, Ex. B-4 is a certified copy of the decree
dated 17.12.1903, Ex. A-20 is a certified copy of compromise decree dated
B 7.2.1910 and Ex. A-1 is a survey report dated 2.4.1956. It is true that the grant
or sanad dedicating the property is not on record. Further, there is no evidence
0:, record to show as to who granted inam, in whose favour and in what year.
In the absence of such documents what is to be considered is, whether taking
an overall view of the evidence on record, the Wakf Board has succeeded in
establishing that there is a permanent dedication of the property as Wakf. Ex.
C B.3 and Ex. A-20 throw sufficient light on the character of the disputed
property. Ex. A.20 shows that the grant was made of land in Devada Mokhasa
and the Mokhasa village was resumed and the title deed earlier issued by the
Jnam Commission was cancelled in July, 1902, as the grantees were not
rendering service at the Dargah. The Mokhasadar challenged the resumption
of land by means of a suit filed before the District Judge, visakhapatnam
D being Suit No. 16/1902 and the District Judge decreed the suit by the judgment
dated 17.12.1903 (Ex. B.4). The government preferred an appeal against the
said judgement before the Madras High Court where the dispute between the
government and the Mokhasadar was compromised, vide Ex. A-20, the relevant
clauses of which are extracted below:
E
"(I) ··········································
(2) That the Mokhasadars and their heirs do permanently enjoy the
suit properties performing the duties connected with the Dargah subject
to the following conditions viz.
F (3) Out of the annual net income of the Mokhasa of Devada for the
Dargah not less than Rs. 120.00 a year shall be spent by the
Mokhasadars on the distribution of Khyrat among travelling Fakirs or
...
if the whole amount cannot be so appropriated, the remainder shall be
spent on any suitable charity 1mong 'the Mohammedans of
Visakhapatnam with the approval c 'the Collector.
G
(b) Out of the annual net income 1 ot less than Rs. 1125.00 shall be
spent for the Moharram, monthly f stivals and general upkeep of the
Dargah and Rs 75.00 on annual re 1airs and lighting. The repairs are ·
to be done to the satisfaction of ti e Collector of Visakhapatnam.
H (c) ........... .
SAYYED ALI v. A.P. WAKF BOARD HYDERABAD [V.N. KHARE, J J 405
(3) (a) That out of the mesne profits upto the end of Fasli 1317 of A
the Mokhasa of Devada in the hands of Government, 2/9 be constituted
-t into a charitable fund for Mohammedan education or their charity to
be determined and administered by the Municipal Council of

-· Vizagapatem and that the said sum be invested in Government
Promissory notes or other Trust Securities in the name of the Municipal
Council; B
·-.,.-
(b) That a sum equal to 119 of the accumulated mesne profits be spent
·'
by the Mokhasadars on restoring the Dargah to the satisfaction of the
Collector of Visakhapatnam; and

(c) c
(4) That the costs incurred by the Government amounting to Rs.
1024.11.0 be paid in equal shares from the mesne profits to be paid
,•
to the plaintiffs and from the amount to be set apart for a charitable
fund for Mohammedan education, and that the plaintiffs do bear their
own costs. D
-..-
(5) That an account be rendered every year by the Mokhasadars to
the Collector on the 15th of April every year, of the expenditure on
charity, Dargah and ceremonies under separate heads.

(6) That the grant be resumable, if the terms of the compromise are E
not fulfilled."

A glance of the terms of the compromise would show that the compromise
decree obligated the Mokhasadars to spend a portion of income not less than
Rs. 1125 for performing Muharrum, monthly festivals and general upkeep of
Dargah and Rs. 75 on annual repair and lighting in Dargah which were to be F
--<.. done to the satisfaction of the Collector of Visakhapatnam. Further, a sum of
,,.]
Rs. 120 was required to be spent by Mokhasadars on distribution of (Khyrat)
charity amongst the travelling Fakirs and if the whole amount is not spent,
the remainder was to be spent on suitable charity among Mohammedans of
Visakhapatnam with the approval o_f the Collector. Clause 3(a) of the compromise
decree also stipulated that out of mesne profit upto the end of fasli 1317 of
G
Mokhasa in the hand of Govt., 2/9th of which be constituted into a charitable
·-· r- fund for Mokhasadars' education .fund or their charity to be determined and
administered by Municipal Council of Visakhapatnam and the said sum be
invested in govt. promissory notes or other trust securities in the name of
Municipal Council. Further a sum equal to I /9th of the accumulated mesne H
406 SUPREME COURT REPORTS (1998) 1 S.C.R.

A profits be spent by Mokhasadars on restoring the Dargah. It was also stipulated
that if the tenns of compromise are not fulfilled, the grant would be resumable.
These terms of compromise do indicate that the nature of the property is a f--
service Inam. The grant in favour of the Mokhasadars was subject to the
condition that they render service at the Dargah and perform the various
obligations imposed on them. It was not left to the Mokhasadars to neglect
B the Dargah not to incur any expenditure for the upkeep of Dargah or performing
Muharrum and other festivals. The purpose for which the Mokhasadars were '"'(

obligated was for purpose under the Muslim law as pious, religious or
charitable. It is true that the compromise decree constituted inam as a service
in am, but under the Wakf Act such a grant answers to the description of Wakf
c even if the Mokhasadars were allowed to enjoy the property, subject to this
restriction that they .would render service as stipulated in the compromise
decree.

The Andhra Pradesh High Court in. R. Doraswamy Reddy v. Board of
Wakf, (l 978) 2 APLJ 399, relied upon by the High Court, has correctly summed
D up the legal position of a service inam as under:
~

"It is true that the land was granted to an individual to perform T

service. But it does not mean than he acquires title to that property.
Similarly, if the land can be resumed for non-performance of service
and can be regranted to another person for rendering service, it does
E not mean that the original grantor continues to be the owner of the
property. When once the Wakf was created it continues to be a Wakf.
When the inam is resumed and regranted it does not mean that there
is revocation of the service. It only means that the Wakf property is
entrusted to another individual to perform the service."
F Ex. B.3 shows that an enquiry was conducted wherein it was found that
the inam which was classified as Devadayam was granted for the support of ~
Dargah of Visakhapatnam and was free of tax. The enquiry further revealed ...
that the services were being perfonned by the legal representatives of three
ancestors whose names were noted and appear under the words Dargah as
G Ansar Saheb, Madina Saheb and Mohammed Saheb. The inam was confirmed
and title deed No. 42 was issued. Further, Column 8 of the lnam Fair Register
indicates that the inam was granted for support of Dargah, Visakhapatnam.
Column I 0 shows that the grant was to continue so long as the service is
performed. These entries in the lnam Fair Register establish the ingredients
~ -
of Wakfs as defined under Section 3(1) of the Act. For the purposes of that
H definition, it is not necessary that dedication should be in favour of Dargah.
SAYYED ALI v. A.P. WAKF BOARD HYDERABAD [V.N KHARE, J.] 407

It is sufficient if the dedication is made for the purpose recognized by the A
Musihn law as pious, religious or charitable. Thus, we are of opinion that
--'I-)
grants by way of service inams for the purposes recognized by the Muslim
law as pious, religious or charitable would clothe the property with the
character of "Wakf' We, therefore, find that the view taken by the High Court
that disputed property is Wakf as defined in Section 3(1 )of the Wakf Act is
correct in law and the same does not suffer from any legal infirmity.
B
y·
The Second argument of learned counsel for the appellant is that the
findings recorded by the High Court as regards the character of the property
in its judgment dated 22.4.70 rendered in writ petition No. 1726of1968, arising
out of the order passed by the Revenue Divisional Officer, Visakhapatnam,
c
constituted res judicata. The parliament has enacted Wakf Act to provide for
better administration and supervision of Wakfs. Under Sub-Section (2) of
, Section 5 of the Act the Board is required to publish in the official Gazette
the list of Wakf properties whether in existence at the commencement of the
Act of coming into existence thereafter. Section 6 of the Wakf Act further
provides that if any question arises whether a particular property specified D
~
~ as Wakf property in the list of Wakf published under the Act, is a Wakf
property or not, the Board or Mutuwallis of the Wakf or any person interested
therein, may institute a suit in a Civil Court of competent jurisdiction for
decision of the question and the decision of the Civil Court in respect of such
matter shall be final. It is also provided therein that no such suit shall be
E
entertained by the civil court after the expiry of one year from the date of the
. publication of the list of Wakf under sub-section (8) of section 5 of the Act.
Sub-Section (4) of Section 6 further provides that the list of Wakfs published
under sub-section (2) of Section 5 shall, unless it is modified in pursuance
of a decision of the civil court under sub-section (I), be final and conclusive.
Therefore, any dispute relating to the character of Wakf property is to be F
·4' decided in the manner provided under the Wakf Act. Subject to the result of
).
a civil suit, if filed, the list of Wakfs published in the official gazette is final
and copclusive. In the present case, the disputed property was shown as
Wakf property in the A.P. Official Gazette on 30.11.1961 and no suit having
been filed challenging the Wakf property, the entries in the official gazette
describing the property as Wakf became final and conclusive. Under Section
G
3 of the In ams Act, Tahsildar may suo motu make an enquiry for the purpose
- ~
of grant of patta on three points, one of them being, whether inam land is held
by any institution. While making an enquiry in the present case as to find
out whether the inam land was held by the Dargah, the Tahsildar was not
required to enquire into and adjudicate upon the character of the Wakf H
408 SUPREME COURT REPORTS [1998] I S.C.R.

A property mentioned in the list of Wakfs published in the official gazelle under
sub-Section (2) of Section 5 of the Wakf Act, as the dispute in that regard
as to its character could only be decided in the manner provided in Section
6 of the Wakf Act. Assuming that the Wakf property was not found to be
held by the Dargah under Section 3 of the lnam Act, it was not open to the
B Tahsildar to adjudicate upon the character of the Wakf property as the same
was a grant by way of service inam for purposes recognized by the Muslim
law as pious, religious or charitable which constituted the property as Wakf.
Thus, we find that finding of the Tahsildar that the property was not Wakf,
was wholly erroneous and beyond his jurisdiction. Consequently, the finding
of the Tahsildar that the property is not a Wakfproperty would not constitute
C res judicata in the subsequent suit filed by the Wakf Board. lt is well settled
that if a decision of a court or a tribunal is without jurisdiction, such a
decision or finding cannot oper.ate· as res judicata in any subsequent
· proceedings. The plea of res judicata presupposes that there is inexistence
a decree or judgment which is legal but when the judgment is non est in law,
no plea of res judicata can be founded on such a judgment. It would be
D appropriate here to quote the following passage from "Res-judicata" Spencer
Bower and Turner, 2nd Edition, page 92:-

"Competent jurisdiction is an essential condition of every valid
res judicata, which means that, in order that a judicial decision relied
upon, whether as a bar, or as the foundation of an action, may
E conclusively bind the parties, or (in the case of in rem decisions) the
world, it must appear that the judicial tribunal pronouncing the decision
had jurisdiction over the cause or matter and over the parties, sufficient
to warrant it in so doing."

In Mathura Prasad v. Dossibai, AIR (1971] SC 2355, this Court observed
F as follows :

"A question of jurisdiction of the Court, or of procedure, or a pure ...
question of law unrelated to the right of the parties to a previous suit,
is not res judicata in the subsequent suit... ... Similarly, by an erroneous
decision if the Court assumes jurisdiction which it does not posses
G under the statute the question cannot operate, as res judicata between
the same parties, whether the cause of action in the subsequent
litigation is the same or othe.rwise."

In Richpa/ Singh v. Dalip, AIR (1987) SC 2205, this Court held thus:

H "A salutary and simple test to apply in determining whether the
SAYYED ALI v. A.P. WAKF BOARD HYDERABAD [V.N. KHARE, l.l 409

previous decision operates as res judicata or on principles analogous A
-Cr·, thereto is to find out whether the first Court, herein the Revenue
Court, could go into the question whether the respondent was a
tenant in possession or mortgagee in possession. It is clear in view
of language mentioned before that it could not. lf that be so, there
was no res judicata. The subsequent civil suit was not barred by res B
judicafa."

In Pandurang Mahadeo Kavade v. Annaji Ba/want Boki/, [1971] 3 SCC
530, it was held that in order to operate res judicata it must be established
that the previous decision was given by a Court which had jurisdiction to try
the present suit and the plea of res judicata would not be available if the C
previous decision was by a Court having no jurisdiction. Learned counsel for
the appellant referred to a decision of this Court in the case of Mohan/al
Goenka v. Benoy Krishna Mukherjee & Ors., [1953] S.C.R. p. 377, in support
of his argument. In this case it was held that the principle of res judicata will
also apply to execution proceedings. But this case has no bearing on the
controversy which is before us and, therefore, learned counsel cannot derive D
any assistance from this decision. Thus, it is well settled that doctrine of res
judicata does not apply to a decision of a Court or tribunal which lacked
jurisdiction.

In the light of the above legal position, we hold that the decision of the E
Tahsildar under Section 3 of the Inams Act as to the character of the Wakf
property which was upheld by the High Court of Andhra Pradesh being one
passed without jurisdiction, cannot operate as res jduicata and the High
Court of Andhra Pradesh was justified in ignoring the said decision and in
not giving effect to it.
F
It was then contended by the learned counsel for the appellant that the
suit filed by the wakf Board was not maintainable in view of Section 14 of
the Inams Act. We having found that the property was a service inam granted
to individuals burdened with service, which answered the description of all
the ingredients of wakf, the Tahsildar under Section 3 of the lnams Act, was G
not required to adjudicate as to whether it is a wakf property or not. His
decision holding that the property is not a Wakf property was not within his
domain and the decision could not be said to have been. passed under the
lnams Act. Decision or order contemplated under Section 14 of the lnams Act
presupposes an order passed within jurisdiction. Since order passed by the
Tahsildar has been found to be without jurisdiction, Section 14 of the Act H
410 SUPREME COURT REPORTS (1998) 1 S.C.R.

A which bars the jurisdiction of the Civil Court would not be attracted in the
subsequent suit. In the present case, since it was not within the domain of -f--
the Tahsildar to embark upon an enquiry in respect Wakf property, Section
14 of the Inams Act cannot affect the maintainability of the suit filed by the
Wakf Board. Learned counsel for the appellant relied upon a decision of this
Court in Vatticherukuru Village Panchayat and others v. Nori Venkatarama
B Deekshithulu and others, [ 1991) S.C.R. p. 531, in support of his argument that
by virtue of Section 14 of the lnams Act, the decisions of the Tahsildar cannot
be challenged in a subsequent suit. No doubt, in this case, it was held that
the Inams Act gives finality to the orders and decision given by the authorities,
but it is not the case here. We have already held that the Tahsildar under
C Section 3 of the Inams Act was not competent to enquire into or give decision
in respect of the character of the Wakf property, therefore the said decision
is of no assistance to the argument of the learned counsel.

Lastly, it was contended by learned counsel for the appellant that once
patta, under the Inams Act, having been granted in favour of Mokhasadar,
D it was not open to the High Court to hold that the property was Wakf
property. In other words, the argument seems to proceed on the basis that
once patta has been granted under the Inams Act to Mokhasadars, the land
has ceased to be a wakf property. It may be stated that a wakf is a permanent
dedication of property for purposes recognized by Muslim law as pious
E religious or charitable and the property having been found as Wakf would
always retain its character as a Wakf. In other words, orice a Wakf always a
Wakf and the grant of patta in favour of Mokhasadar under the Inams Act
does not, in any manner, nullify the earlier dedication made of the property
constituting the same as Wakf. After a Wakf had been created, it continues
to be so for all time to come and further continues to be governed by the
F provisions of the Wakf Act and a grant of patta in favour of Mokhasadar
does not affect the original character of the Wakf property. We accordingly
find no substance in last argument of learned counsel for the appellant.

For the foregoing reasons, we do not find any merit in this appeal and
G the same is accordingly dismissed. There shall be no order as to costs.
S.H. Appeal dismissed.