ANAYATULLAH AND ORS. versus COMMISSIONER OF MUSLIM WAKF OF JAMMU

Citation: [1991] 1 S.C.R. 253 · Decided: 07-02-1991 · Supreme Court of India · Bench: KULDIP SINGH · Disposal: Dismissed

Judgment (excerpt)

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ANA Y ATULLAH AND ORS. 
V. 
COMMISSIONER OF MUSLIM WAKF OF JAMMU 
FEBI\UARY 7, 1991 
[KULDIP SINGH AND K. RAMASWAMY, JJ.] 
Jammu and Kashmir Wakf Act, 1959: Ziarat Shareef of Hazrat 
Baba Ibrahim Wakf-Grant of lands-Government orders dated 
September 22, 1955 and November. 29, 1958-lnterpretation of-
Whether in favour of Ziarat or the Manager personally-Manager/Trus-
tee of religious shrine in possession of trust property-Whether can 
assert adverse title. 
Civil Procedure Code, 1908: Section JOO-Interference by High 
Court in second appeal-Whether justified . 
A 
iB 
c 
The Ziarat Shareef of Hazrat Baba Ibrahim, a holy place of 
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worship, in the Rakhbahu area of Jammu City was granted certain land , 
to the Ziarat by the State Government vide two orders dated September 
22, 1955 and November.29, 1958. The Ziarat was being managed by the 
1st appellant and his brothers, since the death of their father in 1963. 
The Committee of Muslim Wakf, incorporated under the Jammu and 
Kashmir Muslim Wakf Act, which came into force in 1959, filed a suit 
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for restraining them from alienating, raising construction or recovering 
the rent from the Wakf land in dispute vested in the Ziarat, on the ' 
allegation that the appellants-defendants were treating the lands 
granted to the Ziarat, as their personal property and mismanaging and ' 
also alienating the same. 
IF 
Resisting the suit, the appellants, defendants contended, inter 
alia, that notwithstanding the use of the word "Ziarat" in the two 
Government orders the transfer of the land in dispute was in their 
father's favour in his personal capacity, in lieu of his possessory right 
over about 400 /500 kanals of land which was taken over by the Govern-
ment, and not in the form of any dedication, and as su~h the land was 
not the property of the Ziarat but their father's absolute property, lllld 
had devolved upon them by succession and, therefore, they had the right 
to deal with the property in any manner they liked . 
The trial court dismissed the suit, holding that the two grants 
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were in fact made in favour of defendants' father and not the Ziarat. 
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253 
A 
254 
SUPREME COURT REPORTS 
[1991) 1 S.C.R. 
The first appellate court upheld the trial court's findings. 
However, in second appeal, the High Court held that from the 
recitals of the two orders of the Government of 1955 and· 1958 it was 
clear that the two grants were in favour of the Ziarat. Hence, the 
appellants-defendants filed the appeal, by special leave before this 
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Court contending that the High Court had erred in upsetting the find-
ings of the courts below, based on appreciation of the evidence that, as a 
fact, the appellants-defendants were the owners of the property, the 
subject matter of the Government grants. 
c 
D 
E 
F 
G 
H 
Dismissing the appeal, the Court, 
HELD: 1.1 The two orders of the Government dated September 
22, 1955 and November 29, 1958 are absolutely clear .and unambiguous 
and can admit one and only one interpretation that the Government 
intended to grant the land to the Ziarat alone and not to the appellants-
defendants in their personal capacity. In fact the names of the appel-
lants-defendants or their ancestors are not even mentioned in the two 
orders. The order of 1955 specifically stated that the lands in 
Rakhbahu surrounding the Ziarat Shareef of Baba Ibrahim Shah be 
granted to the said Ziarat permanently. The later order of 1958 also 
says the same thing. It is nowhere mentioned in any of those orders that 
the land was given not to the Ziarat but to the father of the appellants-
defendants, who was Majawar of the Ziarat,. either in his personal 
. capacity or in lieu of compensation for his personal lands acquired by 
the Government. [259A, B-C] 
1.2 A manager or a trustee in possession of a religious shrine 
carinot be allowed to assert a hostile title unless he formally surrenders 
possession to the lawful authority. [2608). 
In the instant case, there was no justification for the appellants-
defendants to cast their covetous eyes on the property of the Ziarat, 
taking advantage of their possession over the same, which was as mana-
gers or trustees and assert a hostile title to it. Even if they were in 
possession of the lands, it would have to be referable to a lawful title and 
cannot be treated to be adverse to the · Ziarat. In other words, the 
possession would be for the benefit of the Ziarat. [259H, 260A, E] 
1.3 In the fa

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