- 1 - HC-KAR NC: 2025:KHC-D:14515 RSA No. 5615 of 2010 IN THE HIGH COURT OF KARNATAKA,AT DHARWAD DATED THIS THE 28TH DAY OF OCTOBER, 2025 BEFORE THE HON'BLE MR. JUSTICE C M JOSHI REGULAR SECOND APPEAL NO.5615 OF 2010 (DEC) BETWEEN: 1. ABDUL REHMAN S/O. MOHMAD SAHEB FARIDA, AGE: 87 YEARS, R/O. D.NO-50, MOHMADALI ROAD, BHATKAL. REP. BY HIS G.P.A HOLDER MOHAMEAD ZUBAIR SINCE DECEASED BY HIS LRS. (AMENDEMENT CARRIED OUT AS PER ORDER DATED 18.06.2018.) 1A. MOHAMMAD ZUBAIR S/O. ABDUL REHMAN FARIDA. AGE: 62 YEARS, R/O. HOUSE NO.50/1, MOHAMMAD ALI ROAD, BHATKAL. 1B. NAFEESA BEGUM MOHAMMED JAFAR AGE: 59 YEARS, OCC. HOUSE WIFE, R/O. HOUSE NO.50/1, MOHAMMAD ALI ROAD, BHATKAL. 1C. MOHAMMED IBRAHIM S/O. ABDUL REHMAN FARIDA. AGE: 53 YEARS, R/O. HOUSE NO.50/1, MOHAMMAD ALI ROAD, BHATKAL. 1D. BIBI KHATIJA S/O. ABDUL REHMAN FARIDA. AGE: 47 YEARS, R/O. HOUSE NO.50/1, MOHAMMAD ALI ROAD, BHATKAL. 1E. BAVAMEER S/O. ABDUL REHMAN FARIDA. AGE: 38 YEARS, R/O. HOUSE NO.50/1, MOHAMMAD ALI ROAD, BHATKAL. …APPELLANT (BY SRI. SANGRAM S. KULKARNI, ADVOCATE) AND: 1. ISMAIL S/O. HASSAN DAMUDI, AGE: 79 YEARS, OCC: NOT KNOWN, YASHAVANT NARAYANKAR Digitally signed by YASHAVANT NARAYANKAR Date: 2025.10.30 11:11:02 +0530 - 2 - HC-KAR NC: 2025:KHC-D:14515 RSA No. 5615 of 2010 R/O. "AL RIZWAN", MAIN ROAD, BHATKAL, NORTH KANARA DISTRICT-581320. 2. MOULANA ABDUL ALIM KASIMI, AGE: 63 YEARS, OCC. NOT KNOWN, R/O "AL-MOVLI", MUSHMA STREET, BHATKAL, NORTH KANARA DISTRICT-581320. 3. MOHMAD JUFRI MOTHESAM, AGE: 69 YEARS, OCC. NOT KNOWN, R/O NEAR GIRLS HIGH SCHOOL, BASTI ROAD, BHATKAL, NORTH KANARA DISTRICT-581320. 4. RUKNODDIN ABDUL REHMN S/O ABU MOHMAD, AGE: 69 YEARS, R/O CHOWK BAZAR, BHATKAL, NORTH KANARA DISTRICT-581320. (SINCE DECEASED LRS ARE NOT PROPER PARTIES) NAMES DELETED V.O.D. AMENDMENT CARRIED OUT ON 09.02.2024. 5. BADRUL HASSAN MUALLIM S/O. ABDUL KHADIR MUALLIM, AGE: 75 YEARS, R/O. SIDDIQUE STREET, BHATKAL, NORTH KANARA DISTRICT-581320. 6. ABDUL RUKKNODDIN, AGE: 79 YEARS ,OCC. NOT KNOWN, R/O. ALWA STREET, BHATKAL, NORTH KANARA DISTRICT-581320. …RESPONDENTS (BY SRI. AFAQUE KOLA, ADVOCATE FOR R2; R6-NOTICE SERVED; R1-DECEASED; R3-R4-DISMISSED AS ABATED) THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE PASSED BY THE CIVIL JUDGE(SR.DN.) HONNAVAR, IN RA NO.384/2001 DATED 24.04.2010 AND THE JUDGMENT AND DECREE PASSED BY CIVIL JUDGE (JR.DN.) HONNAVAR, IN O.S.NO.42/1998 DATED 08.06.2001 AND ALLOW THE APPEAL THROUGHOUT IN THE INTEREST OF JUSTICE AND EQUITY AND ETC. - 3 - HC-KAR NC: 2025:KHC-D:14515 RSA No. 5615 of 2010 THIS APPEAL, COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE C M JOSHI) Heard the learned counsel appearing for the appellant, none appeared for the respondent. 2. This Court while admitting this appeal on 04.04.2014 has framed the following substantial question of law: “Whether the trial Court as well as the First Appellate Court have committed a serious error in holding that the suit is barred under Section 85 of the Wakf Act, 1995, even though the Tribunal had not been constituted as per the Act, as on the date of filing of the suit, and thereby the judgments have become perverse and illegal?” 3. This appeal is filed by the plaintiff, who was non- suited by the Trial Court in O.S.No.42/1998 and in R.A.No.384/2001 by the learned Civil Judge (Jr.Dn) Bhatkal and learned Senior Civil Judge, Honnavar, respectively. - 4 - HC-KAR NC: 2025:KHC-D:14515 RSA No. 5615 of 2010 4. The appellant/plaintiff approached the Trial Court contending that the suit schedule property contains a Dargah called ‘Peer Saheb Hazrath Shah Khadri Dargah’ at Bhatkal. The said property has been notified as a Wakf property under the Wakf Act, 1995, in a gazette notification and the maternal uncle of the plaintiff has been shown as the person managing the said Dargah. It is contented that the plaintiff has inherited the management of the said Dargah and he is in possession of the same. He contends that the suit property was not Wakf property at any point of time, since it was not dedicated as Wakf property. It was alleged that the defendants have allegedly formed a Trust with a view to usurp the management of the Dargah and deprive the plaintiff from managing it. Therefore, the plaintiff filed a suit before the Trial Court contending that there is no such Trust represented by the defendants and therefore, it may be declared that there is no Trust in the name and style of ‘Peer Saheb Hazrath Shah Khadri Dargah Trust’ as contented by the defendants and the defendants be restrained from interfering in the management of the Dargah by the plaintiff. - 5 - HC-KAR NC: 2025:KHC-D:14515 RSA No. 5615 of 2010 5. The said suit was resisted by the defendants contending that since the said Dargah has been notified under the gazette notification of the Wakf Board under the provisions of Wakf Act, the suit is not maintainable and the plaintiff has to approach the Wakf Tribunal for the relief. 6. The plaintiff was examined as PW1 and Ex.P.1 to Ex.P3 were marked. The defendant No.1 was examined as DW1 and Ex.D.1 was marked on their behalf. After hearing both the sides, the suit came to be dismissed. When the appellant approached the First Appellate Court, it also heard the matter and dismissed the appeal. 7. The learned counsel appearing for the appellant would submit that the notification of the suit schedule property in the gazette shows that the said property was not taken as a Wakf property since there are disputes. He points out that the gazette notification clearly mentioned that it is not taken as the Wakf property at the time of publication, despite that the Trial Court and the First Appellant Court have held that the provisions of Section 85 of the Wakf Act are applicable, and therefore dismissal of the suit is not sustainable. - 6 - HC-KAR NC: 2025:KHC-D:14515 RSA No. 5615 of 2010 8. On a query posed by this Court, the learned counsel for the appellant fairly submits that except Ex.P.2 and Ex.P.3 there are no other documents to show that the plaintiff had inherited the management of the Dargah from his maternal uncle or ancestors. A perusal of Ex.P2 and Ex.P.3 shows that the name of ‘Peer Saheb Hazrath Shah Khadri Dargah’ is mentioned as the holder of the suit schedule property. There is no mention of the name of the plaintiff as the person in charge of the management of the Dargah. No other documents are available to show that the plaintiff had inherited the management of the said Dargah from his ancestors. There is absolutely no other material to show that the plaintiff has any sort of right, title or interest in the same. Therefore, even if it is held that the suit schedule property is not the Wakf property, the plaintiff would not succeed in establishing his rights. What is sought by the plaintiff is a negative relief. On this count itself, the suit was not maintainable. It is pertinent to note that in the notification issued by the Wakf Board, it is mentioned as below: “Remarks: The total expenditure of Rs.1675-95 is borne by the mutwalli himself, and no contribution etc., is taken from the public nor are there any grants etc. No accounts have - 7 - HC-KAR NC: 2025:KHC-D:14515 RSA No. 5615 of 2010 been maintained. It is said there is some property belonging to the Dargah but there is dispute and the matter is pending in the Civil Court. As the name of Dargah or the mutwalli is not mentioned in the R/Rs. these properties have not been taken as Dargah properties at present. The R/Rs of the properties said to be in dispute are among the case papers, which will show the properties in the name of the some other persons and not the Dargah.” 9. This would make it clear that the suit schedule property was never declared to be the Wakf property by the Wakf Board under the notification. In that view of the matter, the question whether the provisions of Section 85 of the Act would apply or not recedes to the oblivion. It is not necessary for this Court to enter into the question whether the property is Wakf property or not. Obviously, there is no such declaration, which makes the suit schedule property to be a Wakf property. But on the other hand, the plaintiff has utterly failed to establish his right in the suit schedule property since there is absolutely no other evidence except his oral self-interested testimony. Under these circumstances, even though this Court comes to the conclusion that the suit schedule property is not the Wakf property, the plaintiff is not entitled for any relief. - 8 - HC-KAR NC: 2025:KHC-D:14515 RSA No. 5615 of 2010 10. In that view of the matter, even though the judgment of the First Appellate Court and the Trial Court are not sustainable, the appeal would not succeed. Hence the appeal is dismissed. 11. Learned counsel appearing for the appellant submits that the cost imposed by this court on the last occasion be waived. Since the matter is argued today and is disposed of, the costs are waived. 12. In view of disposal of the appeal, pending interlocutory applications, if any, do not survive for consideration and are disposed of accordingly. SD/- (C M JOSHI) JUDGE YAN CT:PA LIST NO.: 1 SL NO.: 45