Supreme Court Sets Aside Orders Rejecting Waqf Trust's Objection To Execution Of Property Decree, Orders Fresh Inquiry

The Supreme Court has set aside orders rejecting a claim petition filed by Alladin Charities and Zakat Wakf, which sought to resist the execution of a decree for possession of a property in Hyderabad, and remanded the matter to the executing court for fresh consideration.

A bench of Justices S.V.N. Bhatti and N.V. Anjaria held that the findings recorded by the executing court and the Telangana High Court did not conform to well-established principles of law. The Court directed the VII Senior Civil Judge, City Civil Court, Hyderabad, to permit both parties to raise fresh pleas, adduce additional evidence and conduct a fresh inquiry in accordance with law.

The judgment was delivered on October 14 in an appeal filed by Alladin Charities and Zakat Wakf against Mohammed Saleem alias Mohd. Wajid Ali and another.

The dispute concerns a property measuring approximately 373 square yards, comprising shops at Rikabgunj, Pathergatti, Hyderabad.

The first respondent had filed a suit in 2012 seeking specific performance of an agreement of sale dated February 23, 2001, allegedly executed in his favour. The suit was decreed ex parte on March 18, 2015, directing execution and registration of a sale deed and granting possession of the property.

When the decree-holder initiated execution proceedings in 2016 to obtain physical possession, Alladin Charities and Zakat Wakf intervened as a third-party objector, claiming that the property belonged to the trust and was Waqf property.

The trust traced its claim to a Farman Mubarak issued by the then Nizam of Hyderabad, which allegedly conveyed the land to Khan Bahadur Ahmed Alladin Nawab Ahmed Nawaz Jung Bahadur, the founder of the Alladin family trusts, for establishing a Waqf for charitable purposes. It also relied on historical endowment records, a trust deed executed in 1976 and earlier litigation concerning the property.

The executing court dismissed the trust's objection in January 2019, holding, among other things, that it had failed to establish ownership of the specific property covered by the execution proceedings. The court also held that the claim petition under Order XXI Rule 58 of the Code of Civil Procedure (CPC) was not maintainable because the execution petition sought delivery of possession rather than attachment of property.

The Telangana High Court subsequently upheld the dismissal. It noted that the trust had not produced the Farman or the accompanying plan, and had failed to establish a documentary link between the property described in the execution proceedings and the property claimed as Waqf property. The High Court also held that the objection ought to have been filed under Order XXI Rule 97 CPC.

Before the Supreme Court, the trust argued that rejection of its claim merely because it had invoked the wrong provision of the CPC was legally impermissible. Relying on the Court's decision in Periyammal (Dead) Through Legal Representatives v. V. Rajamani, the trust submitted that objections by third parties resisting execution of a possession decree must be examined through a full-fledged inquiry into their rights, title and interest in the property.

The judgment in Periyammal explains that Order XXI Rules 97 to 101 CPC provide a mechanism to address resistance to execution, including by persons who are strangers to the decree but claim independent rights in the property. Rule 97 concerns resistance before delivery of possession, while Rule 99 provides a remedy to a person who has already been dispossessed.

The Supreme Court observed that the decisive consideration in the present dispute was the identity of the property as reflected in old and contemporaneous revenue or municipal records, rather than merely the competing assertions of title by the decree-holder and the trust.

It noted that the documents relied upon by the decree-holder were sketchy and did not establish title or defeat the title claimed by the trust, which had been recognised in earlier rounds of litigation involving Hamid Ali and others.

The Court further observed that the burden had been wrongly placed on the third-party objector. It pointed out that the boundaries described in the 1943 sale deed and those in the decree schedule were distinct, and that the identity of the property had not been an issue in the original suit.

The counsel for the decree-holder also suggested that the matter be remanded to the executing court, allowing both sides an opportunity to file additional pleadings and produce further evidence.

Accepting the need for a fresh inquiry, the Supreme Court set aside the impugned judgments and directed the executing court to reconsider the dispute in accordance with law, in light of the principles laid down in Periyammal.

The appeal was accordingly allowed, and the matter was remanded to the VII Senior Civil Judge, City Civil Court, Hyderabad. The Court made no order as to costs.

Appearance:

For Petitioner(s) Mr. C. Aryama Sundaram, Sr. Adv. Mr. Pranab Kumar Mullick- 1196, AOR Ms. Soma Mullick, Adv. Mr. Abhishek Gupta, Adv. Mr. S.n.shakeel, Adv. Mr. Rishabh Agrawal, Adv. Mr. Venkaiah Naidu, Adv.

For Respondent(s) Mr. Basva Prabhu S Patil, Sr. Adv. Mr. Amol Nirmalkumar Suryawanshi, Adv. Ms. Damini Vishwakarma, Adv. Mr. B Dhananjay, Adv. Mr. Hrishikesh Wanzalkar, Adv. M/S. Juristrust Law Offices- 3644, AOR