Mohammedia Co-Operative … vs Lakshmi Sreenivasa Co-Operative … on 25 January, 2007

JUDGMENT

D.S.R. Varma, J.

1. Heard both sides.

2. Since the issue involved, the parties, the. impugned judgment and decree being same, all the Appeal Suits are heard together and disposed of by this common judgment.

3. All the appeal suits arise out of the decree and judgment, dated 19-10-2005, in O.S. No. 449 of 1984, passed by the I Additional Senior Civil Judge, Vijayawada, Krishna District.

3-A. The suit O.S. No. 449 of 1984 was filed by the plaintiff-society for the relief of specific performance of the agreement of sale, dated 2-8-1982, against the Defendant Nos. 1 to 9 and 13 therein and to direct them to execute a regular sale deed in favour of the plaintiff therein on receipt of balance sale consideration and for permanent injunction restraining the defendants from interfering with the possession of the plaintiff over the suit schedule property. This suit (O.S. No. 449 of 1984) was tried along with another suit O.S. No. 200 of 1983. The suit O.S. No. 200 of 1983 was also filed by the very same plaintiff-society in suit O.S. No. 449 of 1984 against the Mohammadeeya Co-operative Building Society Limited, Gollapudi, who is the Defendant No. 13 in the suit O.S. No. 449 of 1984.

4. Both the suits were tried together by the Court below and by a common judgment, dated 19-10-2005, the suit in O.S. No. 449 of 1984 was decreed and the other suit O.S. No. 200 of 1983 was dismissed.

4-A. The suit O.S. No. 449 of 1984 was decreed in the following terms:

In the result, the suit is decreed with costs holding that the plaintiff is entitled for the relief of the specific performance of sale deed, dated 2-8-1982 on its depositing the balance sale consideration of Rs. 20,64,000/-within ONE MONTH from this day and on such deposit D-10 to D-12 are directed to issue the necessary orders for execution of sale deed in favour of the plaintiff required under the Wakf Act and ULC Act within 30 days after the plaintiff depositing the balance sale consideration and on receipt of such orders from the Defendants 10 to 12, the Defendant No. 1 represented by its Mujavars and D-13 to execute regular sale deed in favour of the plaintiff within ONE MONTH thereafter and deliver possession of the plaint schedule property to plaintiff and in default the plaintiff is at liberty to get the sale deed executed through the process of the Court. The D-l and its Mujavars with permission of D-10 are at liberty to substitute any other land other than plaint schedule property to D-13 society.

4-B. The other suit O.S. No. 200 of 1983 was dismissed in the following terms:

In the result, the suit in O.S. No. 200 of 1983, a suit for permanent injunction, is not maintainable, since the plaintiff in O.S. No. 449 of 1984 altered and prayed the relief of recovery of possession also along with the specific performance and accordingly O.S. No. 200 of 1983 shall stand dismissed. No costs.

5. Since we are concerned, in these appeals, only with the suit O.S. No. 449 of 1984, out of which all these present appeals arise and, inasmuch as, no appeals are preferred as against the decree and judgment, dated 19-10-2005, in the suit O.S. No. 200 of 1983, we are not adverting to the said suit.

6. Appellant in A.S. No. 686, Respondent No. 13 in A.S. No. 743 of 2005 and Respondent No. 5 in A.S. No. 125 of 2006 is the Defendant No. 13, the appellant in A.S. No. 743 of 2005, Respondent No. 11 in A.S. No. 686 of 2005 and Respondent No. 2 in A.S. No. 125 of 2006 is the Defendant No. 10, the appellants in A.S. No. 125 of 2006, Respondent Nos. 2 to 10 in A.S. No. 686 of 2005 and Respondent Nos.2 to 10 in A.S. No. 743 of 2005 are the Defendant Nos. 1 to 9, Respondent No. 1 in all the three appeal suits A.S. No. 686 of 2005, 743 of 2005 and 125 of 2006 is the plaintiff, Respondent No. 12 in A.S. No. 686 of 2005, Respondent No. 11 in A.S. No. 743 of 2005 and Respondent No. 3 in A.S. No. 125 of 2006 is the Defendant No. 11 and Respondent No. 13 in A.S. No. 686 of 2005, Respondent No. 12 in A.S. No. 743 of 2005 and Respondent No. 4 in A.S. No. 125 of 2006 is the Defendant No. 12, in the suit O.S. No. 449 of 1984, before the Court below.

7. For the sake of convenience, in this common judgment, the parties will be referred to as per their array in the suit.

8. The Defendant Nos. 11 and 12, the official defendants, did not file any appeal, perhaps, no relief was sought though certain directions were given by the trial Court.

9. It is apt to extract the reliefs sought for by the plaintiff in the suit O.S. No. 449 of 1984, for ready reference, which are thus:

(a) For specific performance of the suit contract of sale dated 2-8-1982 against the Defendants 1 to 9 and 13 directing them all or those whom the Court finds necessary and proper to execute and register sale deed or deeds in favour of the plaintiff or its nominees at their expense for the plaint schedule property in whole or in parts as they choose, or in the alternative, if the Defendants 1 to 9 and 13 refuse to do so, for a direction that the Court or any officer of the Court as directed by the Court do so execute and register the sale deed or sale deeds;

(b) For a permanent injunction restraining the Defendants 1 to 10 and 13 from interfering with the plaint schedule property and plaintiffs possession thereof; and

(c) For costs of the suit and such other orders as are deemed just and necessary.

Factual Background:

10. For better appreciation, it is apt to refer to the factual background behind the controversy, which, in brief, is thus:

The suit schedule property involved is Ac.35-20 cents (Hectors 14.245) in R.S. No. 63, situate at Bhavanipuram Village, Vijayawada, and belongs to the Defendant No. 1-Dargah, is not in dispute. Land Acquisition proceedings were initiated, subsequently denotified consequent upon which a writ petition was filed and withdrawn. These facts, in fact, are not worth mentioning.

11. Be that as it may, the Defendant Nos.2 to 9 had proposed to alienate the suit schedule property at a rate between Rs. 40,000/- and Rs. 1,00,000/- per acre by a resolution, dated 6-6-1981, under Ex.A-14, passed by the District Wakf Committee. In Ex.A-15, the rate was fixed as Rs. 40,000/-per acre instead of Rs. 40,000/- to Rs. 1,00,000/- per acre. By another resolution, dated 26-7-1981 (Ex.A-13), the rate was fixed as Rs. 40,000/- per acre instead of Rs. 40,000/- to Rs. 1,00,000/- per acre. The plaintiff had offered to purchase at the rate of Rs. 70,000/- per acre, by way of letters, dated 24-11-1981 and 27-11-1981. Gazette Notification under Rule 12(2) of A.P. Wakf Rules (for brevity “the Rules”) read with Section 36-A of the Wakf Act, 1954 (for brevity “the Act”), was issued on 15-2-1982 calling for objections from the public and since no objections were received, the District Collector, Krishna, had published to the same effect in the District Gazette on 20-5-1982, under Exs.A-26 and A-28 respectively. In the said notifications, it was mentioned that the sale shall be subject to the approval of the Government.

12. Be that as it may, it is the contention of the plaintiff that it entered into an agreement of sale, dated 2-8-1982, under Ex.A-31, whereas it is the contention of the Defendant No. 13-Society that under Ex.B-4, dated 3-3-1982, letter, addressed to the Defendant No. 10-Wakf Board, it was requested that the suit schedule property shall be alienated in favour of it consisting of the Muslims. Thereafter, the Defendant No. 10-Wakf Board had addressed a letter to the Urban Land Ceiling Authority, the layout submitted was sanctioned and approved and when the Defendant No. 13-Society was preparing to deposit the sale consideration, the plaintiff filed a writ petition W.P. No. 9521 of 1982 and since no interim orders were granted by this Court, in the said writ petition, the offer made by the Defendant No. 13-Society, allegedly for Rs. 1,28,000/- per acre, under Ex.B-8, dated 22-2-1982, was allegedly approved by the Government by a notification by way of G.O. Ms. No. 773, Revenue (Wakf) Department, dated 4-5-1983 (for brevity “the G.O. Ms. No. 773), under Ex.A-42, which remained unaltered. At that stage, the plaintiff had filed the suit O.S. No. 200 of 1983 against the Defendant No. 13-Society for permanent injunction and obtained interim order of status quo.

13. Thereupon, the Defendant No. 10-Wakf Board had issued consequential notification, dated 24-5-1983, under Ex.B-13 and the plaintiff had filed a writ petition W.P. No. 3602 of 1984, under Ex.B-21, seeking to declare G.O. Ms. No. 773, issued by the Respondent No. 1 therein according permission to sell the suit schedule property to the Defendant No. 13-Society, as illegal, unsustainable and not binding on the plaintiff-society and for a consequential direction to the Respondent Nos.2 and 3 therein viz., the Defendant No. 10-Wakf Board and the Defendant No. 1 -Dargah to bound by the law to proceed with the sale of suit schedule land of Ac.35-10 cents in pursuance of the agreement of sale, dated 2-8-1982, which was dismissed by this Court by order, dated 28-8-1984. Challenging the same, an appeal, being Writ Appeal No. 1391 of 1984, had been filed by the plaintiff-society, wherein interim orders were passed to the effect that any alienations made will be subject to the result of the writ appeal and subsequently the writ appeal was disposed of with a direction to the parties to agitate the pending suit.

14. The Defendant No. 1 is the Dargah, the Defendant Nos. 2 to 9 are the Mujavars of the Defendant No. 1-Dargah, the Defendant No. 10 is the Wakf Board and the Defendant No. 13 is the Society in whose favour the alleged notification under Ex.A-42, dated 4-5-1983 and consequential notification issued by the Defendant No. 10, dated 24-5-1983, in Ex.B-13.

15. Since the main dispute is between the plaintiff-society on one hand and the Defendant No. l3-society on the other, supported by the Defendant No. 1-Dargah, the Defendant Nos.2 to 9, who are the Mujavars of the Dargah, and the Defendant No. 10-Wakf Board, parties will hereafter be referred to, for convenience, as the plaintiff-society, Dargah, the Mujavars and Wakf Board respectively.

16. The averments in the plait, in brief, are thus:

The plaintiff is a registered Co-operative Building Society. Suit schedule property was owned by the Defendant No. 1-Dargah, which is being administered and managed by the registered society, by name “Jamat of Mujavars of Dargah-E-Shareef of Hazarat Galib Shaheed” to which the Defendant No. 3 was the President and the Defendant No. 2 was the Secretary. Sometime back, Land Acquisition proceedings were initiated and subsequently the said notification was withdrawn; that upon the application, dated 20-6-1981, submitted by the Defendant No. 1-Dargah, the Defendant No. 13-Wakf Board had accorded permission to sell the suit schedule property; that the plaintiff-society, represented by the President, had offered to purchase the suit schedule property at Rs. 70,000/- per acre; that two letters, dated 27-11-1981 and 24-12-1981, in this regard, were addressed by the plaintiff; that the Defendant No. 10- Wakf Board had accepted the rate offered by the plaintiff-society and accorded permission to the Defendant No. 1-Dargah to sell the suit schedule property to the plaintiff, that accordingly a statutory notice under Section 2(12) of the Rules read with Section 36(1) of the Act, was published by the Wakf Board in A.P. Gazette, dated 25-2-1982, whereby objections were invited within one month from the date of publication of the said notification and that no objections were raised for the sale of the suit schedule property to the plaintiff. Similarly, the Defendant No. 11 i.e., the State Government had issued another notification in special supplement of District Gazette on 20-5-1982 to the same effect under Section 36-A of the Act. These two notifications were marked as Exs.A-26 and A-28 respectively.

17. It is the case of the plaintiff-society that, while so, the Defendant No. 1-Dargah had addressed two letters, dated 27-3-1982 and 21-6-1982, requesting the Defendant No. l0-Wakf Board to expedite the grant of permission to enter into a contract of sale of the suit schedule property with the plaintiff. Consequently, the Defendant No. 10-Wakf Board, after considering the offer of the plaintiff, had accorded permission to the Defendant No. 1-Dargah to sell the suit schedule property to the plaintiff at Rs. 70,000/- per acre, through its proceedings, dated 30-6-1982 and that the plaintiff-society was asked to pay an earnest money of Rs. 4,00,000/- to the Defendant No. 1-Dargah and enter into a written contract of sale. Upon such letter, all the members of the plaintiff-society were informed by a Circular, dated 25-7-1982, to pay monies to the plaintiff-society cofnmensurate to their status, namely Weaker Sections, Low Income Group and Middle Income Group etc. After paying the said amount, the plaintiff-society had entered into a contract of sale, dated 2-8-1982, under Ex.A-31, with the Defendant No. 1- Dargah, by which the plaintiff-society had contracted to purchase the suit schedule property of an extent of Ac.35-20 cents, at Rs. 70,000/- per acre; that the total sale consideration was estimated at Rs. 24,64,000/-and that an earnest money of Rs. 4,00,000/-was paid to the Defendant No. 1-Dargah at the time of execution of the agreement of sale. Certain terms and conditions were incorporated in the said agreement of sale, dated 2-8-1982, which would be referred to the extent necessary at a later part of the judgment; that pursuant to the said agreement, under Ex.A-31, the plaintiff-society came into possession of the entire vacant portion of the suit schedule property and an extent of about Ac.3-00 cents, which remained to be in possession of the others got to be vacated within one year from the date of contract.

18. It is also the case of the plaintiff-society that the Defendant No. l3-society had negotiated with the plaintiff-society for parting with an extent of Ac.7-00 in the suit schedule property for the benefit of its members, which was accepted by the plaintiff-society and that in the meanwhile the Defendant No. l3-society had started evil designs by inciting rivals of the plaintiff-society to get some orders against the plaintiff-society from the Defendant No. 10-Wakf Board.

19. It is the further case of the plaintiff-society that it had addressed a letter, dated 8-8-1982, to the Defendant No. 10-Wakf Board informing about the execution of the agreement of sale, dated 2-8-1982, under Ex.A-31; that one Sri Abdul Rahiman, Advocate, Vijayawada, who is said to be the President of the Krishna District Wakf Committee, had addressed a letter, dated 11-9-1982, to the Defendant No. l0-Wakf Board, confirming the purchase of the suit schedule property by the plaintiff-society under the above said contract, marked as Ex.A-31. While so, the Defendant No. l3-society started to act contrary to the interest of the plaintiff-society and also to see that the agreement of sale, dated 2-8-1982, under Ex.A-31, is defeated and in that course it conspired with the said Abdul Rahiman, Advocate, who was the President of the Krishna District Wakf Committee, who also very much interested in the suit schedule property.

20. It is the further case of the plaintiff-society that it had received notice and an ex parte order of interim injunction in the suit O.S. No. 85 of 1983, filed by the Defendant No. l3-society; that the Defendant No. l3-society was dealing with the Defendant No. 10-Wakf Board to procure fraudulent orders to defeat the sale agreement, dated 2-8-1982, under Ex.A-31; that then the Defendant No. 2, the Secretary of the Defendant No. 1-Dargah, had addressed letters, dated 27-3-1982 and 21-6-1982, under Exs.A-27 and A-29, to the Defendant No. 10-Wakf Board to expedite the permission to sell the suit schedule property to the plaintiff-society; that subsequent the Defendant No. 10-Wakf Board had issued proceedings, dated 30-6-1982, according permission; that the Defendant No. 1-Dargah had addressed a letter, dated 10-5-1983, to the plaintiff enclosing the proceedings, dated 30-6-1982, of the Defendant No. 10-Wakf Board, which proves that the agreement of sale between the plaintiff and the Defendant No. 1 -Dargah was enforceable one; that thereafter the Defendant No. 2, who is the Secretary of the Defendant No. 1-Dargah, had addressed letters, dated 10-7-1982 and 10-4-1983, under Exs.A-30 and A-38, respectively, informing the plaintiff-society about the evil designs of the Defendant No. l3-society and that the agreement of sale in its favour would be adhered to; that then the Defendant No. 1-Dargah had addressed letter, dated 16-5-1983, under Ex.A-39, to the Defendant No. 10-Wakf Board requesting to reject the claim of the Defendant No. l3-society and to confirm the sale of suit schedule property in favour of the plaintiff-society; that then the Defendant No. 1-Dargah had addressed two letters, dated 20-10-1983 and 10-4-1983, under Exs.A.39 and A.59, respectively, admitting the sale of suit schedule property and informing about the tampering of records of the Defendant No. 10-Wakf Board and requested it to expedite the completion of sale on the ground that the Defendant No. 10-Wakf Board and the Defendant No. l3-society were adopting illegal means and also informed about the role being played by Sri Abdul Rahiman, Advocate, who was the President of the Krishna District Wakf Committee and whose wife was a member of the Defendant No. 13-society.

21. It is the further case of the plaintiff-society that the said letters further reveal that the said Abdul Rahiman was pressurizing the Defendant Nos.2 to 9, who were the Secretary and the Mujavars of the Defendant No. 1-Dargah, to turn against the plaintiff-society and that because of the pressure by the said Abdul Rahiman, Sri Syed Hussain, another Advocate and member of the Defendant No. l3-society, and also the Defendant Nos. 1 to 9 have turned hostile to the plaintiff-society and were responsible for procuring illegal orders from the Defendant No. 10-Wakf Board and also the Government only in order to defeat the contract by way of agreement of sale, under Ex.A-31, between the Defendant No. 1-Dargah and the plaintiff-society. The Defendant No. l3-society began to canvas that the plaintiff-society was having majority of non-Muslims as members, whereas all the members of the Defendant No. 13-society were Muslims and the promoters were also the Muslims; that since the Defendant No. l3-society was working only for the welfare of the Muslims, it was the duty of the Defendant No. 13-society to see that the suit schedule property not be sold to the plaintiff-society. In view of the above hpstile acts on the part of the Defendant No. 13-society, the plaintiff-society had addressed a letter, dated 4-5-1983, to the Defendant No. 2, who is the Secretary of the Defendant No. 1-Dargah, seeking to supply a copy of permission granted by the Defendant No. l0-Wakf Board. The said proceedings were sent by the Defendant No. l0-Wakf Board on 10-6-1982.

22. It is the further case of the plaintiff-society that the above said Abdul Rahiman, Advocate, who is also a Member of the A.P. Wakf Board, along with one Shukur, a member of the Defendant No. 13-society, were wrongfully attempting to tamper with the material papers in the Office of the Defendant No. l0-Wakf Board to misrepresent the facts and to suppress the contract i.e., agreement of sale, dated 2-8-1982, under Ex.A-31. Several other consequential facts pursuant to the agreement of sale, under Ex.A-31, like payment of earnest money of Rs. 4,00,000/- and also delivery of possession of suit schedule property to the plaintiff etc. Pursuant to the said maneuvering of the events, the Defendant No. 11-the Government had issued G.O. Ms. No. 773. It is the specific averment that the said G.O. Ms. No. 773 was in consequence of the fraud and misrepresentations made by the letters said to have been addressed by the Defendant No. l0-Wakf Board, as a result of which the said G.O., directs the Defendant No. l0-Wakf Board to alienate the suit schedule property to the Defendant No. l3-society. Thereupon, the plaintiff-society got issued a registered notice, dated 25-5-1983, through its Counsel under Section 80 C.P.C., to the Government of Andhra Pradesh and also the Defendant No. l0-Wakf Board, marking copies to the Hon’ble Minister for Wakfs, the Collector, Krishna District, the Defendant No. 1-Dargah, the Defendant No. l3-society and the Regional Officer, A.P. Wakf Board, Krishna District, stating that the Government has no power and authority to issue G.O. Ms. No. 773, permitting the Defendant No. l0-Wakf Board to sell the suit schedule property in favour of the Defendant No. l3-society and that the same is not binding on the plaintiff-society inasmuch-as the suit schedule property has been in possession and enjoyment of the plaintiff-society.

23. It is the further case of the plaintiff-society that it was always ready and willing to pay the balance sale consideration and the Defendant Nos. 1 to 9 are bound to complete the sale transaction in favour of the plaintiff-society; that the G.O. Ms. No. 773, issued by the Defendant No. 11 -the Government of Andhra Pradesh, was illegal, ultra vires and the proceedings of the Defendant No. 10-Wakf Board were also illegal, void and vitiates the consequential notification, dated 25-6-1983.

24. It is the further case of the plaintiff-society that for the legal notice issued by the Counsel for the plaintiff-society under Section 80 C.P.C., no replies were given by anybody who received the same but, however, the Defendant No. 1-Dargah through Sri Syed Hussain, Advocate, got issued reply, dated 9-7-1983, denying the contract by way of agreement of sale, dated 2-8-1982, for the first time. It was further alleged in the said reply notice that the Defendant No. l0-Wakf Board knocked down the suit schedule property in favour of another society – may be the Defendant No. 13; that the plaintiff-society failed to offer higher price and that the other Society had offered higher price than the plaintiff-society and that the plaintiff-society had no locus standi to assail the action of the Defendant No. l0-Wakf Board in recommending the proposals sent by it to the Government of Andhra Pradesh seeking permission to transfer the suit schedule property, which were accepted by the Government of Andhra Pradesh in exercise of the powers under Section 63 of the Wakf Act. inmniain

25. It is the further case of the plaintiff-society that pursuant to the said reply notice of the Defendant No. 1-Dargah with all falsehood, the plaintiff-society had filed a suit O.S. No. 200 of 1983 seeking to grant the relief of permanent injunction restraining the Defendant No. l3-society from interfering with its peaceful possession and enjoyment over the suit schedule property and, initially, the Court below had passed an order directing the Defendant No. 13 to maintain status quo. It was further alleged that the plaintiff-society came to know through the said reply notice, dated 9-7-1983, got issued by the Defendant No. 1-Dargah, through its Counsel, that the Defendant No. 1-Dargah had denied the contract between them by way of agreement sale that too only after issuance of G.O. Ms. No. 773, dated 4-7-1983.

26. It is the further case of the plaintiff-society that the Defendant No. 10-Wakf Board has no power or authority to alienate the suit schedule property, belonging to the Defendant No. 1-Dargah, and that the Defendant No. l0-Wakf Board has failed to exercise its powers as per the principles of natural justice and equity and on the other hand it acted in arbitrary and illegal manner and hence the question of approval the Defendant No. 11-the Government, which has no power or authority under the Wakf Act and has only supervisory powers under the Wakf Act, does not arise.

27. It is also the further case of the plaintiff-society that the subsequent proceedings said to have been issued by the Defendant No. 10-Wakf Board in favour of the Defendant No. l3-society calling it to deposit earnest money of Rs. 1,00,000/-for alienation of the suit schedule property to it was illegal and void inasmuch as the Defendant No. 10-Wakf Board has no right or authority to negotiate or enter into a contract or agree to alienate the suit schedule property or any property in favour of the Defendant No. 13-society, in violation of the Wakf Act and Rules there under.

Written Statement of D-1:

28. Repelling the plaint averments, the Defendant No. 1-Dargah has filed a written statement, which was adopted by the Defendant No. 2 and the Defendant Nos.4 to 9.

29. The averments in the written statement of the Defendant No. 1-Dargah in brief, are as under:

The Defendant No. 2, the Defendant No. 4, the Defendant No. 5, and the Defendant Nos.6 to 8 are the Secretary, Vice-President, Treasurer and Members, respectively, of the Defendant No. 1-Dargah. The status of the Defendant No. 9, as Member, and the Defendant No. 3, as President, of the Defendant No. 1-Dargah was denied. It is admitted that the Defendant No. 2 was representing the Defendant No. 1 -Dargah, in the capacity of the Secretary, to sell the plaint schedule property; that the plaintiff-society initially offered an amount of Rs. 70,000/- per acre on 27-11-1981 and the same was published in A.P. Gazette, dated 25-2-1982, under Ex.A-26, and Krishna District Gazette, dated 20-5-1982, under Ex.A-28, as per Rule 12(2) of the Rules, calling for the objections; that the conditions of sale, published in the said Notifications, clearly indicate that the sale was subject to confirmation by the Government; that the said notifications are preliminary in nature and would not confer any right on the purchaser, as per the Rules, and that the sale would be confirmed only after the approval by the Government.

30. This defendant denied the averment that the Defendant No. 10-Wakf Board had accorded permission to the Defendant No. 1 -Dargah, through the proceedings, dated 30-6-1982, to enter into an agreement of sale with the plaintiff-society in respect of the suit schedule property at the rate of Rs. 70,000/- per acre and that consequently the Defendant No. 1 addressed a letter, dated 10-7-1982, to the plaintiff-society demanding to pay the Earnest Money of Rs. 4,00,000/-in order to enter into the contract of sale.

31. It was specifically averred by the Defendant No. 1-Dargah that the proceedings, dated 30-6-1982, and the consequential proceedings, dated 10-7-1982, allegedly issued by the Defendant No. l0-Wakf Board, according sanction to enter into an agreement, are forged documents. The Defendant No. l further refers to certain criminal proceedings of the year 1984 initiated against the plaintiff-society for using the forged documents. The receipt of Rs. 4,00,000/- towards Earnest Money, representing part of the sale consideration, is also denied. It was further averred that the Chairman of the Defendant No. 10-Wakf Board filed W.P. No. 3602 of 1984 alleging that the letter, dated 30-6-1982, was not issued by the A.P. Wakf Board under his signature; that the Defendant No. 2 also filed an affidavit denying his signature on the document, dated 10-7-1982, under (Ex.A-30), and that he did not write the letter, dated 10-7-1982, enclosing the alleged proceedings, dated 30-6-1982.

32. It is the case of the Defendant No. 1-Dargah that the Earnest Money, representing the sale consideration, has to be deposited in a Scheduled Bank to the credit of the Wakf Institution, as per the Rules and conditions of the notifications and, therefore, it is alleged that the execution of the agreement of sale and receipt, dated 2-8-1982, respectively, are forged and void documents; that after the offer of the plaintiff-society was published in the preliminary notifications, as per Rule 12(2) of the Rules, the Defendant No. 10-Wakf Board received number of objections from various Societies, including the Defendant No. l3-society; that the plaintiff had increased the rate, to purchase the suit schedule property, from Rs. 70,000/- to Rs. 1,00,000/- per acre vide his letter, dated 6-10-1982, and again increased the rate to Rs. 1,26,000/- per acre, through its letter, dated 23-10-1982, and that, after publication of preliminary notifications, the Defendant No. l3-society had increased the rate from Rs. 1,00,000/- to Rs. 1,05,000/- per acre and thereafter further increased to Rs. 1,28,000/- per acre through its letter, dated 22-12-1982. It is also stated that the Defendant No. l0-Wakf Board had also received the offers to purchase the suit schedule property one from Ghousiya Committee for a sum of Rs. 1,01,000/-per acre and another from Noor Housing Society for a sum of Rs. 1,26,000/- per acre and in view of the varied rates quoted by various Societies, the Defendant No. l0-Wakf Board had recommended the highest offer of purchase at the rate of Rs. 1,28,000/- per acre given by the Defendant No. l3-society.

33. It is the further case of the Defendant No. 1-Dargah that the plaintiff-society had filed W.P. No. 9521 of 1982 seeking a direction to the Defendant No. 10-Wakf Board to accord sanction to the Defendant No. 1-Dargah to sell the suit schedule property in its favour; that, if really, the proceedings, dated 30-6-1982, to sell the property in question were issued, according permission to the Defendant Nos. 1 to 8, there is no reason for the plaintiff-society to file W.P. No. 9521 of 1982 for the same relief.

34. It is also the case of the Defendant No. l that the plaintiff has created letters, dated 10-4-1983, and 10-5-1983, under Exs.A.38 and A.39, respectively, in collusion with Sri Zahrulla, who was not in good terms with the Defendant No. 1-Dargah and that some litigations were also initiated against the said Zahrulla and others. The averment in the plaint that Sri Abdul Rahiman, Advocate, who was also the President of the District Wakf Committee; and Sri Syed Hussain, Advocate, and one Md. Ahmed Ali, Advocate, at Vijayawada, misled the Defendant No. l0-Wakf Board in order to help the Defendant No. 13-society is denied. The other plaint averment that the Defendant No. l addressed letters, dated 10-4-1983, under Ex.A-60, or 10-7-1982, under Ex.A-55, was also denied. It was denied by the Defendant No. 1-Dargah required any letter from the plaintiff-society on 4-5-1983 and that the Wakf Board had followed the procedure laid down under Rule 12 of the Rules, read with Section 36-A of the Act, before accepting the highest offer of purchase made by the Defendant No. 13-society and the same was recommended to the Government of Andhra Pradesh for the approval of sanction by the Defendant No. 10-Wakf Board and consequently the G.O. Ms. No. 773, was issued sanctioning the alienation in favour of the Defendant No. l3-society at the rate of Rs. 1,28,000/- per acre.

35. The further particulars furnished in the written statement are that, challenging the G.O. Ms. No. 773, the plaintiff-society had filed W.P. No. 3602 of 1984, which was dismissed by this Court, holding that the plaintiff-society had no locus standi to question the sale proceedings in the said G.O. Ms. No. 773 and that the plaintiff-society had no enforceable claim either against the Defendant No. 1-Dargah or against the Defendant No. l0-Wakf Board. As against the said order of dismissal, the plaintiff-society had preferred an appeal W.A. No. 1391 of 1984, and a Division Bench of this Court, passed an order, dated 1-10-1984, in W.A. M.P. Nos.2194 and 2195 of 1984, that any alienations made shall be subject to the result of the writ appeal, which ultimately was disposed of, with a direction to agitate all the contentions in the present pending suit.

36. It is also the case of the Defendant No. 1-Dargah that after the Defendant No. l0-Wakf Board had accorded sanction of alienation of the suit schedule property to the Defendant No. l3-Society, at the rate of Rs. 1,28,000/- per acre, subject to approval of the Government of A.P., in fact, the same was approved by the Government of A.P., in G.O. Ms. No. 773, and pursuant to the said G.O. Ms. No. 773, the Defendant No. l0-Wakf Board had published final notification, as per Rule 12(4) of the Rules, and the suit schedule property was allotted and layout was also sanctioned and approved by the Competent Authority; and that the suit agreement of sale, dated 2-8-1982, under Ex.A-31, is void ab initio and the suit filed on the basis of the said agreement of sale is not maintainable.

Written statement of the Defendant No. 3:

37. The Defendant No. 3 filed a separate written statement admitted the crucial facts, as regards the issuance of notifications and sanction by the Defendant No. 10-Wakf Board and also granting of permission by the Government of Andhra Pradesh in favour of the plaintiff-society. But, he did not contest any further, except filing the written statement. The Defendant No. 1-Dargah, the Defendant No. 10-Wakf Board, and also the Defendant Nos.2 to 9, who are the Mujavars of the Defendant No. 1-Dargah, disowned him as the member of the society of Mujavars.

Written statement of the Defendant No. 10:

38. The Defendant No. 10 also filed a separate written statement stating that the plaintiff-society had submitted its initial offer at Rs. 70,000/- per acre on 27-11-1981 and the same was offered to be published in A.P. Gazette, dated 25-2-1982, under Ex.A-26, and Krishna District Gazette, dated 20-5-1982, under Ex.A-28, as per Rule 12(2) of the Rules, calling for the objections; that the conditions of sale were also published in the notifications to the effect that the sale is subject to the confirmation by the Government, which itself shows that the State and District Gazette notifications are only preliminary notifications and the same will not confer any rights on the purchasers unless and until the same is confirmed by the Government after publication of final Gazette notification and that in response to the said preliminary notifications, the Defendant No. 13 – society had filed a petition on 3-3-1982, duly recommended by the Krishna District Wakf Committee.

39. It is also the case of the Defendant No. 10-Wakf Board that after the publication of preliminary notifications, regarding the offer made by the plaintiff-society to purchase the property in question at the rate of Rs. 70,000/- per acre, it received number of objections, offers and counter-offers to purchase the suit schedule property for varied rates; that the plaintiff-society itself increased the rate to purchase the suit schedule property from Rs. 70,000/- to Rs. 1,00,000/- per acre, through its letter, dated 6-10-1982, and again increased to Rs. 1,26,000/- through letter, dated 23-10-1982, and hence, the plaintiff-society is estopped from contending that its rate to purchase the suit schedule property at Rs. 70,000/-per acre has become final and accepted by the Defendant No. 10-Wakf Board, in view of the revised rates quoted by the plaintiff-society itself; that the Defendant No. l3-society had also increased the rate from Rs. 1,00,000/- to Rs. 1,05,000/- and thereafter again increased to Rs. 1,28,000/-through its letter, dated 22-12-1982 and that, similarly, some other Organisations have also offered to purchase the suit schedule property at different rates.

40. It is the further case of the Defendant No. l0-Wakf Board that the plaintiff-society had filed W.P. No. 9521 of 1982 on 29-12-1982, seeking a direction to accord sanction to the Mujavars of the Defendant No. 1-Dargah to sell the suit schedule property in favour of the plaintiff-society and since no interim directions were granted, the Government had issued the G.O. Ms. No. 773, approving the sanction of alienation in favour of the Defendant No. l3-society; that, consequently, the Defendant No. 10-Wakf Board had issued a final notification, dated 24-5-1983, as per Rule 12(4) of the Rules, according sanction of alienation in favour of the Defendant No. l3-society; that thereupon, W.P. No. 9521 of 1982, filed by the plaintiff-society, was withdrawn on 13-6-1983 as having become infructuous and that in a subsequent writ petition being W.P. No. 3602 of 1984, filed by the plaintiff-society, praying to suspend the G.O. Ms. No. 773, though interim order of status quo was granted, finally the said writ petition was dismissed, recording a finding that the plaintiff-society had no locus stand to question the said G.O. Ms. No. 773 and the plaintiff-society has no enforceable claim against the Defendant Nos. 1, 10 and 13.

41. It is also the case of the Defendant No. 10-Wakf Board that it had accorded permission to the Defendant No. 1-Dargah to enter into an agreement of sale with the plaintiff-society in respect of the suit schedule property at Rs. 70,000/- per acre was also denied. The denial of all other averments is almost similar to that of the averments made by the Defendant No. 1-Dargah.

Written Statement of the Defendant No. 11:

42. The Defendant No. 11 filed a separate written statement denying all the averments in the plaint contending inter alia that the suit is not maintainable.

Written Statement of the Defendant No. 13:

43. The case of the Defendant No. 13-society is that in the alleged letter, dated 8-8-1982, under Ex.A-36, though a reference was made about the suit agreement between the plaintiff-society and the Defendant No. 1-Dargah, and also payment of Rs. 4,00,000/-to the Mujavars Working Committee, the Defendant Nos.2 to 9, was never discussed at any point of time and for the first time it was marked as a document before the Court. All other material averments are in the line with the averments made by the Defendant No. 1-Dargah and the Defendant No. l0-Wakf Board. Therefore, we feel it inappropriate to refer to all those averments.

44. Basing on the above pleadings, the Court below had framed the following issues for trial:

1. Whether the plaintiff is entitled for specific performance of the agreement of sale dated 2-8-1982?

2. Whether the plaintiff is entitled for permanent injunction as prayed for?

3. Whether the decision in Writ Petition No. 3602 of 1984 and Writ Petition No. 9521 of 1982 operate as res judicata?

4. Whether the plaintiff is not entitled to any relief in view of the decision in Writ Petition No. 3602 of 1984 and Writ Petition No. 9521 of 1982 and G.O. Ms. No. 773, dated 4-5-1983?

5. Whether the suit is bad for mis jointer of alienees in whose favour plots and suit land was registered?

6. Whether the plaintiff has no cause of action?

7. Whether the defendants are entitled for exemplary costs under Section 35(a) C.P.C.?

8. To what relief?

45. In order to substantiate their respective contentions, the President of the plaintiff-society examined himself as P. W. 1 and four others as P.Ws.2 to 5 and got marked Exs.A.1 to A.79 on its behalf. On behalf of the Defendants, DWs. 1 to 6 were examined and Exs.B. 1 to B.30 were marked.

46. The Court below, having considered the entire material, including the evidence, both oral and documentary, available on record, on Issue No. l held that the plaintiff-society is entitled for the relief of specific performance of the agreement of sale, dated 2-8-1982, under Ex.A-31; on Issue No. 2 held that since the plaintiff-society got amended the plaint, during the pendency of the suit, for the relief of possession also along with the relief of specific performance on the ground that during the pendency of the suit the plaintiff-society was dispossessed from the suit schedule property, the Issue No. 2 had become infructuous and hence the plaintiff-society is not entitled for the relief of permanent injunction; Issue Nos.3 and 4 held in favour of the plaintiff-society and against the defendants; on Issue No. 5 held that since the sale deeds in favour of the alienees took place during the pendency of the suit, they are hit by Section 52 of the Transfer of Property Act and are not valid and binding on the plaintiff-society; on Issue No. 6 held that the plaintiff-society had cause of action to file the suit; on Issue No. 7 held that the defendants are not entitled for exemplary costs and eventually decreed the suit in favour of the plaintiff-society and against the defendants. Aggrieved by the same, the Defendant No. l3-society, the Defendant No. l0-Wakf Board and the Defendant Nos. 1 to 9 have preferred the appeals A.S. Nos.686 of 2005, 743 of 2005 and 125 of 2006, respectively.

Comprehensive contentions on behalf of the defendants:

47. Broadly stated, the submissions made by Sri S.R. Ashok, the learned Senior Counsel, appearing for the Defendant Nos. 1 to 9, Sri S.M. Subhani, the learned Standing Counsel appearing for the Defendant No. 10-Wakf Board, Sri V.L.N.G.K. Murthy, the learned Counsel appearing for the Defendant No. l3-society in whose favour the G.O. Ms. No. 773, and the consequential notification, dated 24-5-1983, were issued, can be summarized thus:

(a) The agreement of sale, dated 2-8-1982, under Ex.A-31, and the proceedings dated 30-6-1982, under Ex.A-49, issued by the Defendant No. l0-Wakf Board, granting permission to the Defendant Nos. 1 to 9, except the Defendant No. 3, to alienate the suit schedule property in favour of the plaintiff-society, are fabricated and, as such, not true. In order to substantiate this contention, it was pointed out that the plaintiff-society itself had increased its offer to Rs. 1,26,000/-after the Defendant No. l3-soceity had offered Rs. 1,28,000/-;

(b) it cannot be said that there were no objections, filed by anyone, pursuant to the preliminary notifications, under Exs.A.26 and A.28, not only the plaintiff-society, but also various other institutions came forward to purchase the suit schedule property for a higher price. In fact, the Defendant No. l3-society had filed objection petition, under Ex.B.4, letter, dated 3-3-1982; that, similarly, other societies like Noor Housing Society and Gousiya Committee, have also filed their objection petitions, under Exs.B.5 and B.6, respectively, offering more price than the one quoted by the plaintiff-society;

(c) though the relief sought for in the notice issued under Section 80 C.P.C., is to withdraw the G.O. Ms. No. 773, even without there being any prayer in the suit to set aside the said G.O. Ms. No. 773, certain directions were given by the trial Court, according permission by way of a direction to the Government. In other words, it is the contention of the learned Senior Counsel that the relief, which was not sought for, granted by the trial Court, is unlawful;

(d) in the affidavit filed by the plaintiff-society, in support of W.P. No. 9521 of 1982, praying to accord permission to the Defendant No. 1-Dargah for alienation of the suit schedule property in favour of the plaintiff-society, there was no reference to the agreement of sale, dated 2-8-1982, under Ex.A-31, and the proceedings, dated 30-6-1982, under Ex.A-49;

(e) the President of the plaintiff-society, who examined himself as P.W. 1, in his evidence, stated that he was in possession of the suit schedule property as on the date of filing of the suit, and on the other hand, he filed an application before the trial Court for amendment of the plaint, seeking alternative relief of recovery of possession, and thus he had not come to the Court with clean hands;

(f) the agreement of sale, dated 2-8-1982, under Ex.A-31, appears to have been signed by all the Mujavars (the Defendant Nos.2 to 9, except the Defendant No. 3). But, in fact, when the said document is only an agreement of sale, there is no need for all the Mujavars to sign the same, and hence, the said agreement of sale has to be treated as a fabricated one;

(g) the Mujavars have no power or authority to sell away the property of the Dargah, since they are only Sweepers, however, such a transaction can be made by the Mutawalli only, as contemplated under Section 36-A of the Act, read with Rule 12(2) of the Rules made thereunder;

(h) the letter, dated 23-10-1982, under Ex.B-1, addressed by the plaintiff-society, enhancing its offer from Rs. 70,000/- to Rs. 1,26,000/- per acre, which is subsequent to the agreement of sale, dated 2-8-1982, under Ex.A-31, in favour of the plaintiff-society, therefore, it is contended that there is no need for enhancing the price after the execution of Ex.A-31, and hence, there is a strong circumstance to disbelieve the said Ex.A-31;

(i) the proceedings, under Ex.A-49, have to be discarded, since they were not Gazetted at all and when they are not Gazetted, the same are not enforceable; and

(j) the Ex.A-31, entered into between the plaintiff and the Defendant Nos.2 to 8, on behalf of the Defendant No. 1-Dargah, is in violation of the Statutory Rule. In this context, the learned Senior Counsel relied on a judgment of the Apex Court in Kuju Collieries Ltd. v. Jharkhand Mines Ltd. and Ors. . The learned Senior Counsel contends that the relief, which was not asked for, cannot be granted and to substantiate his contention, he relied on a judgment of the Apex Court in National Board of Examinations v. G. Anand Ramamurthy and V.K. Majotra v. Union of India .

48. All the learned Counsel appearing for the appellants herein have made their elaborate submissions on the above aspects.

Contentions of respondent/plaintiff-society:

49. Per contra, Sri M.V.S. Suresh Kumar, the learned Counsel appearing for the plaintiff-society, contends that the Defendant No. 2, Secretary of the Defendant No. 1-Dargah, who examined himself as D.W-4, admitted the execution of the agreement of sale, dated 2-8-1982, under Ex.A-31, (see the deposition of D.W. 4); that Mujavars include Mutawalli, as defined under Section 3 of the Act; that the sale deeds were executed in favour of the Defendant No. l3-society by Mujavars only, and hence, it is not open for the Defendant No. 10-Wakf Board to contend that Mujavars do not have the status of Mutawalli or that they cannot enter into any transaction with regard to property of the Defendant No. 1-Dargah. He further pointed out various other circumstances, which are in favour of the plaintiff-society and against the defendants, as a whole. In this regard, he pointed out that some important persons, including the Defendant Nos.2 and 5 viz., the Secretary and the Treasurer of the Defendant No. 1-Dargah, respectively, along with their family members, were allotted the plots in the Defendant No. l3-society, and therefore, he prays to dismiss all the present appeal suits.

50. In view of the contentions of the respective parties, the points that would emerge for consideration in these appeal suits are;

1. Whether the agreement of sale, dated 2-8-1982, under Ex.A-31, allegedly entered into between the Defendant Nos. 1 to 9 and the plaintiff-society is true and valid?

2. What is the effect of G.O. Ms. No. 773, Revenue (Wakf) Department, dated 4-5-1983, under Ex.B-12, and the consequential proceedings by way of notification, dated 26-5-1983, Ex.B.13, issued by the A.P. Wakf Board?

3. What is the effect of the sale deeds, dated 20-4-1984, 15-5-1985, and 29-5-1985, under Exs.B.26 to B.28, respectively, executed by the Defendant No. 2? and

4. o what relief?

In Re Point No. 1:

51. It is on record that the Defendant No. 1 is a Dargah and the Defendant Nos.2 to 9 (Defendant No. 3 died during the pendency of the suit) are Mujavars. It is the Defendant No. 1-Dargah, which actually wanted to alienate the suit schedule property through the Mujavars. Therefore, the Defendant Nos.2 to 9 proposed to alienate the suit schedule property at a rate between Rs. 40,000/- to Rs. 1,00,000/-, vide resolution, dated 6-6-1981, under Ex.A-14, passed by the Krishna District Wakf Committee. The plaintiff-society offered to purchase the suit schedule property at Rs. 70,000/-, by letters, 27-11-1981 and 24-12-1981, which fact is not in dispute. Consequently, a notification in the State Gazette, dated 25-2-1982, under Ex.A-26, as contemplated under Rule 12(2) of the Rules, read with Section 36-A of the Act was issued, calling for the objections from the public. Similarly, another notification, dated 20-5-1982, under Ex.A-28, was issued in the District Gazette, Krishna District, calling for the objections. These two notifications were subject to certain conditions, more particularly, with a specific condition that the objections for the proposed transfer of property to the Defendant No. 1-Dargah shall be made to the Defendant No. 10-Wakf Board, within one month from the date of publication of the notifications.

52. It is the contention of the defendants that a letter of objection, dated 3-3-1982, was addressed by the Defendant No. l3-society under Ex.B-4, to the Defendant No. 10-Wakf Board, in response to the notification, a bare reading of which would only reveal that the Defendant No. 13-society sought permission to purchase at least Ac. 12-00 of land, belonging to the Defendant No. 1-Dargah, but not the entire Ac.35-20 cents in R.S. No. 63. Moreover, it is not in dispute that the Defendant No. 1-Dargah possesses other lands in various survey numbers and the present land is in R.S. No. 63. From the said letter, it is further clear that the Defendant No. 13-society did not make any claim for the land, purported to be alienated in an extent of Ac.35-20 cents, but only sought alienation of at least a minimum of Ac. 12-00, and also there is no definite indication or express inclination made by the Defendant No. 13-society that it wants Ac. 12-00 of land only from out of the extent of Ac.35-20 cents in R.S. No. 63, which was being alienated. Furthermore, it appears, it is not by way of an objection, but only a request to possess Ac. 12-00 of land in favour of the Defendant No. 13-society. Therefore, we are of the view that the said Ex.B-4 cannot, in fact, be treated as an objection petition, to the Gazette Notification in relation to the suit schedule property.

53. It is to be further seen that one Noor Housing Society also addressed a letter, dated 8-9-1982, under Ex.B-5, to the Defendant No. l0-Wakf Board, expressing its willingness to purchase the entire suit schedule property of Ac.35-20 cents in Survey No. 63, on the ground that it has been representing the Muslim Minorities, and requesting to sell the said property to the Muslim Societies. But, it can be seen that the said letter is much after the stipulated period of one month, as specified in the Gazette Notification, dated 25-2-1982, under Ex.A-26, and even after the agreement of sale, dated 2-8-1982, under Ex.A-31.

54. Yet, another letter, dated 23-10-1982, under Ex.B-6, has been addressed by one Gousiya Committee, offering a sum of Rs. 1,10,111/-, which letter is also long after the stipulated period of one month mentioned in the Gazette Notifications, under Exs.A-26 and A-28.

55. It is to be remembered that the Gazette Notifications, under Exs.A-26 and A-28, specifically stipulate a condition that -‘no representation received after the stipulated period of one month will be taken into account’. Therefore, the said two letters, dated 8-9-1982 and 23-10-1982, by the Noor Housing Society and Gousiya Housing Society, respectively, to the Defendant No. 10-Wakf Board, cannot be treated as valid objections, as contemplated by the Gazette Notifications, under Exs.A-26 and A-28, respectively, and, therefore, we cannot totally agree with the contention of the learned Counsel for the plaintiff-society that these letters might have been fabricated only in order to nullify the effect of Ex.A-31 and to substantiate their contention that Ex.A-31 was a fabricated one. Nevertheless, we are to hold that these two letters, which are said to be the objection petitions, as observed above, are not valid objections, inasmuch as, filing of those letters was not in conformity with the specific condition stipulated in the Gazette Notifications, under Exs.A-26 and A-28. Therefore, what remains on record, by way of offer by the plaintiff, is Ex.A-31 only. However, it is yet to be examined as to whether Ex.A.31 is true and valid.

56. The conspicuous fact to be noticed is that Ex.A.31 was admittedly signed by the Defendnat No. 2, who is no other than the Secretary of the Defendant No. 1-Dargah and also a Mujavar and also a Power of Attorney Holder of the Mujavars Association, which was admitted by him during his examination as D.W. 4. The actual statement made by D.W. 4 runs thus:

…It is true to suggest that after obtaining permission from the Wakf Board, we entered agreement with plaintiff under Ex.A-31 to sell the property. It contains our signatures….

(emphasis supplied)

57. This indicates that it is not only the Defendant No. 2, but also the other defendants i.e., the Defendant Nos.4 to 9 (since the Defendant No. 3 died, who sailed with the plaintiff-society), have signed the Ex.A-31. However, the Defendant No. 2 conveniently denied everything. Therefore, having admitted the signature of the Defendant No. 2 and also others on Ex.A-31, it is not open for the Defendant Nos. 1 to 9 to contend that Ex.A-31 is a fabricated one.

58. Sri S.R. Ashok, the learned Senior Counsel appearing for the Defendant No. 1-Dargah, contended that the letter, dated 10-7-1982, under Ex.A-30, allegedly addressed by the Defendant No. 1-Dargah to pay an advance of Rs. 4,00,000/- and enter into a written agreement within thirty days, does not refer to the proceedings, dated 30-6-1982, under Ex.A-49, issued by the Defendant No. 10-Wakf Board, permitting the Defendant No. 1-Dargah to alienate the wakf properties in favour of the plaintiff-society.

59. A perusal of Ex.A-30 shows that, while referring to the Gazette Notifications of the Wakf Board as well as Krishna District, it is categorically stated “This is to inform you that A.P. Wakf Board has given clearance to us to enter into an agreement with you to sell the land of our Dargah….”

60. From the above, it is clear that there is a reference of the sanction given by the Defendant No. 10-Wakf Board to alienate the property of the Defendant No. 1-Dargah to the plaintiff-society. The only deficit is, the particulars, like the date of the communication by the Defendant No. 10-Wakf Board giving sanction to alienate the property of the Defendant No. 1-Dargah in favour of the plaintiff, which is absolutely visible from the said letter. It is important to note that the said letter had been addressed by the Defendant No. 2 only, and this was his earliest stand.

61. At this juncture itself, it is to be noted that, on verification, we found the signatures of the Defendant No. 2 at different places, including that of the admitted signature on the crucial document i.e., agreement of sale, dated 2-8-1982, under Ex.A-31. Therefore, it is hard to disbelieve the issuance of the proceedings, dated 30-6-1982, under Ex.A-49, giving sanction to the Defendant No. 1-Dargah to alienate the suit schedule property in favour of the plaintiff-society.

62. It is to be further seen that, from a reading of Ex.A-31, which was signed by all the Mujavars i.e., the Defendant Nos.2 to 9, there were publication of Gazette Notifications, under Exs.A-26 and A-28, in the State and District Gazettes, respectively, to the effect that in case of any non-compliance, the plaintiff-society will be responsible and that the suit schedule property was sanctioned to be alienated to the plaintiff-society by the Defendant No. 10-Wakf Board.

63. We have already expressed our view that the signature of the Defendant No. 2, who has actively participated in the proceedings, as a representative of Mujavars Association (the Defendant Nos.2 to 9), is quite similar to that of the admitted signatures and we have no doubt whatsoever that the Defendant No. 2 has been shifting his stand from one to the other, on different occasions, as per his convenience.

64. A special reference has been made by the learned Counsel for the plaintiff-society as to the filing of the Audit Reports and Special Audit Report, dated 18-12-1986, under Exs.A-78 and A-79, respectively. We have gone through the said documents, which would only reveal that the Defendant Nos.2, 4, 5 and 9 are the members of the Defendant No. 13-society. By the time when the Defendant No. 2 admitted his signature on Ex.A-31, obviously, the Defendant No. 2 was not a member of the Defendant No. 13-society. In other words, if really he were a member of the Defendant No. 13-society, as on the date of Ex.A-31, he would not have admitted his signature on it.

65. A perusal of the said Audit Report further shows that the Defendant No. 2, who is not only a Mujavar, but also a General Power of Attorney Holder of Mujavars Association (the Defendant Nos.2 to 9), and Defendant Nos.4, 5 and 9 along with one Sri Syed Ahmed Ali, Sri Abdul Rahiman, Advocate, Smt. Lakshmi, Counsel appearing for the Defendant No. 13-society, and the then President of Krishna District Wakf Committee, became members of the Defendant No. 13-society and were allotted substantial plots along with their family members. Therefore, this is a very strong circumstance, in our considered view, that majority of Mujavars, the then Chairman of the Wakf Board and the President of Krishna District Wakf Committee, had substantial interest in the suit schedule property, having been allotted plots, not only for themselves but also for their family members, and owing to the same, the stand of the Defendants titled towards the Defendant No. 13-society.

66. At this stage, another question may crop up for consideration, which is to the effect that – when majority of Mujavars were already the members of the Defendant No. 13-society and were allotted plots, what is the effect of Ex.A-31? The simple answer, we find, is that merely because the Defendant Nos.2 to 9, except the Defendant No. 3, have become the members of the Defendant No. 13-society, the same does not vitiate the basic character and the nature of the agreement of sale, dated 2-8-1982, under Ex.A.31. In other words, notwithstanding the above aspects, which appear to be adverse, Ex.A-31 does not lose the status of its enforceability.

67. Having admitted the signatures on Ex.A-31 by the Defendant No. 2 (D.W. 4) along with other Mujavars, it is not open for them to disown the other liabilities under Ex.A-31, and the same amounts to shift their stand according to their convenience and to see that the effect of Ex.A-31 is nullified or frustrated, which is highly improper and objectionable.

68. In this context, it is to be seen that though the Mujavars wanted to alienate the suit schedule property to others for the benefit of the Defendant No. 1-Dargah, as can be seen from the G.O. Ms. No. 773, under Ex.B.12, the facts appear to be otherwise. The land was plotted and the Mujavars and their family members being responsible persons, like the then Chairman of A.P. Wakf Board and President of the Krishna District Wakf Committee, were allotted the plots along with their family members. Therefore, the very object of alienating the suit schedule property had been impliedly defeated and apparently to enure to the benefit of the alienees i.e., Mujavars themselves.

69. The learned Standing Counsel appearing for the Defendant No. 10-Wakf Board made a strong submission that if really Ex.A-31 was executed, the same need not be signed by all the Mujavars.

70. In this context, it is to be remembered that there is no such prohibition that all the Mujavars shall not sign. In fact, the Mujavars have formed into an Association and it was not the Association, which has been actually running the show. Therefore, in a crucial document, like Ex.A.31, probably, it was felt necessary, by both the parties to the agreement, that all the Mujavars should sign the agreement, in order to avoid any further litigation from any of the Mujavars, at a later point of time.

71. At the cost of repetition, it is to be again remembered that the Defendant No. 2 had admitted in his evidence “”Ex.A-31 contain all our signatures”‘. Therefore, the contention of the learned Standing Counsel for the Defendant No. 10-Wakf Board that if really Ex.A-31 was executed, the same need not be signed by all the Mujavars, cannot be sustained, nor can be treated as a strong circumstance in favour of the Defendant Nos. 1 to 9 and against the plaintiff-society.

72. Another factor to be noticed is that the Audit Report and Special Audit Report, dated 18-12-1986, under Ex.A-78, respectively, itself categorically indicate that several irregularities have been committed by the Defendant No. l3-society and it is essential to conduct an enquiry under Section 51 of the A.P. Co-operative Societies Act, 1964 (A.P.C.S. Act) and that recommendations were also made for winding up of the same. Ex.A-78 is a statutory report, of course, not conclusive, but still, in our considered opinion, a strong circumstance against the Defendant No. 13-society. The said report runs into several pages, giving out the details of irregularities and also the extents of land allotted to the Mujavars and their family members, particularly the Defendant No. 2, who has been playing different roles, first – as a Mujavar, representing the Defendant No. 1-Dargah, second – as General Power of Attorney Holder of Mujavars Association (the Defendant Nos.2 to 9), and third – as a signatory to the agreement of sale in favour of the Defendant No. l3-society, having been allotted considerable extents of land.

73. Further, a bare comparison of the signatures of the Defendant No. 2 on different documents discloses that the signature is consistently the same as that of his admitted signatures on the documents executed in favour of the plaintiff-society.

74. It is also to be noticed here that on the Audit Report and Special Audit Report, dated 18-12-1986, under Exs.A-78 and A-79, respectively, though spoken to by P.W. 1 in his evidence, there was no cross-examination with regard to the said documents. Furthermore, since those documents are the certified copies, issued by the Competent Authority, we have no hesitation to believe the contents of the said documents. As already pointed out, the irregularities allegedly committed by the Defendant No. l3-society, which were enquired into under Section 51 of the A.P.C.S. Act, are serious in nature and the Government, in its Memo, dated 25-10-1986, under Ex.A-44, had taken a very serious note of it, while staying the operation of G.O. Ms. No. 773, under Ex.B-12.

75. The specific contention of the defendants is that the issuance of permission by the Government is imperative, and, consequent upon the proposals sent by the Defendant Nos. 1 to 9 in favour of the Defendant No. l3-society, the Government have issued G.O. Ms. No. 773, under Ex.B.12, and, inasmuch as, the Government had accorded sanction pursuant to the original preliminary Gazette Notifications, under Exs.A-26 and A-28, the claim of the Defendant No. l3-society is a genuine one.

76. In this context, it is to be seen that, added to the adverse report submitted by the authorities under the A.P.C.S. Act, as already stated supra, the Government, having been informed about the various irregularities committed by the Defendant No. l3-society, issued a Memo, dated 25-10-1986, under Ex.A-44, staying operation of G.O. Ms. No. 773, under Ex.B.12, and while ordering so, taking into consideration the report submitted by the Competent Authority, under A.P.C.S. Act, recorded various irregularities. A few of them, as pointed out therein, are that A.P. Wakf Board did not follow the procedure laid down under Rule 12 of the Rules, read with Section 36-A of the Act; that there was a specific stipulation of period of limitation to receive the objections from the date of notification; that the Defendant No. 10-Wakf Board had indulged in malpractices in approaching individually various societies to quote their price, without the knowledge of other societies, and thereby manipulated to help a particular society in which they are interested, in the guise of securing price for the suit schedule property, which is in violation of the A.P. Wakf Rules; that the Defendant No. 10-Wakf Board got offers in person from various institutions; that the then Chairman did not put the subject regarding the sale of the suit schedule property before the Board Meeting, which was convened on 22-12-1982, and without the Board’s resolution, he wrote the consent letter, dated 22-12-1982, under Ex.B.8, to the Defendant No. l3-society; and that an enquiry was also pending before the Special Officer and Competent Authority under the Urban Land Ceiling, Vijayawada, for the alleged violations of the provisions of Land Ceiling Act, 1976 by the Defendant No. l3-society in alienating the land to the persons other than the members of the Defendant No. l3-society.

77. From the Memo, dated 25-10-1986, under Ex.A-44, the effect of alienation of the suit schedule property in favour of the Defendant No. 13-society, in any manner, is under heavy cloud of doubt.

78. It is to be further noted that Ex.A-29 is the letter, dated 21-6-1982, written by the Defendant No. 2 to the Defendant No. 10-Wakf Board, seeking to grant permission for sale of the suit schedule property in view of the likelihood of unauthorized occupation by third parties and as the time for filing objections also had expired. From the above letter, it is abundantly clear that the Defendant No. 2, who is the Secretary to the Defendant No. 1 -Dargah and also General Power of Attorney Holder of Mujavars Association, is well aware of the specific condition of one month for receiving the objections, as stipulated in the Gazette Notifications, under Exs.A-26 and A-28. Again, on verification of the signature of the Defendant No. 2 on Ex.A-29, it is found that it is absolutely the same with that of the admitted signatures. Therefore, absolutely, we have no doubt whatsoever to believe Ex.A-29.

79. It is to be further seen that in response to the said letter, under Ex.A-29, the Chairman of the Defendant No. l0-Wakf Board issued proceedings, dated 30-6-1982, under Ex.A-49, which clearly reflects that permission had been granted and the Mujavars were at liberty to proceed with the sale agreement with the plaintiff-society. This document was seriously disputed by the defendants. Yet again, a comparison of the signature of the Defendant No. 2 on this document would disclose that it is the same as that of his admitted signatures on other documents. Hence, we are of the considered view that there is no reason to disbelieve Ex.A-29.

80. The most controversial document in these Appeal Suits is Ex.A-49, which is said to be the permission accorded by the Chairman of the Defendant No. 10-Wakf Board to the Defendant No. 1-Dargah to alienate the suit schedule property in favour of the plaintiff-society. It is the contention of the defendants that Ex.A-49 is absolutely a fabricated one.

81. In this connection, it is to be seen that pursuant to the above-referred letter, under Ex.A-29, the proceedings, dated 30-6-1982, under Ex.A-49, were issued, giving permission to the Defendant No. 1-Dargah to sell the suit schedule property in favour of the plaintiff-society. The interesting aspect is that Ex.A-49, in which a reference of the letter, dated 21-6-1982, under Ex.A-29, was made, was signed by Sri Shaik Syed Hussain, the then Chairman of A.P. Wakf Board. We have compared the signatures of the then Chairman of the Defendant No. 10-Wakf Board on different documents viz., Exs.B-8, B-10 and A-49, which disclose that his signatures on all these documents are quite similar.

82. At the cost of repetition, we may point out that the then Chairman of the Defendant No. 10-Wakf Board had taken totally a different stand in the letter, dated 24-12-1982, under Ex.B-10, wherein the Defendant No. l3-society was asked to pay an amount of Rs. 1,00,000/- towards Earnest Money, as the offer of the Defendant No. l3-soceity at Rs. 1,28,000/- per acre was accepted.

83. In this regard, it is needless to reiterate that the offers made by the other societies, other than the plaintiff-society, were found to be manipulated for being offered beyond the stipulated period of one month specified in the preliminary notifications, under Exs.A-26 and A-28. In view of the provisional findings recorded by the Competent Authority under the A.P.C.S. Act and the Government Memo, dated 25-10-1986, under Ex.A-44, it is highly doubtful whether this letter was really written by the Chairman of the Defendant No. 10-Wakf Board. Therefore, as already observed by us, in the earlier paragraphs, the Chairman of the Defendant No. 10-Wakf Board has been taking different stands on different occasions.

84. Yet, another aspect is that the letter, dated 8-8-1982, under Ex.A-36, was addressed by the plaintiff-society to the Defendant No. 10-Wakf Board regarding execution of Ex.A-31 and the contents of the said letter were not denied.

85. Another important and supporting factor in favour of the plaintiff-society and against the defendants is that one Sri Abdul Rahiman, Advocate and President of the Krishna District Wakf Committee, Vijayawada, had addressed a letter, dated 11-9-1982, under Ex.A-51, to the Secretary of the Defendant No. 10-Wakf Board, informing that the plaintiff-society had entered into an agreement of sale with the Defendant No. 1-Dargah and that possession of the suit schedule property also was delivered.

86. From the above, it is clear that there was a sale agreement, indeed, entered into between the plaintiff-society and the Defendant No. 1-Dargah, represented by the Defendant No. 2. To prove this document, nobody, in particular, the said Sri Abdul Rahiman, Advocate and President of the Krishna District Wakf Committee, Vijayawada, was examined.

87. One more interesting aspect on record is that Sri Sd. Gulam Ali Akbar (the Defendant No. 2), who is no other than the Secretary of the Defendant No. 1-Dargah and General Power of Attorney Holder of Mujavars, had addressed a confidential letter, dated 10-4-1983, under Ex.A.38, informing the plaintiff-society that the Defendant No. 13-society was trying to tamper with the records of the Defendant No. 10-Wakf Board with the help of the Chairman and the Member Sri S. Sultan and also Mr. Rahiman, Advocate of Vijayawada and President of Krishna District Wakf Committee, in order to obtain some favourable orders from the Government by illegal means and further, while advising the plaintiff-society to take all necessary precautions, requested to pay the balance sale consideration. The signature of the said Sd. Gulam Ali Akbar, as already noticed by us, is the same on all the documents. Therefore, again we have no hesitation to believe this letter also, which is very much in support of the plaintiff-society. Therefore, we believe that a twist had taken place pursuant to the letter, dated 10-4-1983, under Ex.A-38, and, thus far, all the persons supported the case of the plaintiff-society insofar as Ex.A-31 is concerned and turned hostile to the plaintiff-society, obviously, having developed interest in the suit schedule property by virtue of becoming the members of the Defendant No. 13-society, along with their family members.

88. Another interesting factor on record is, it is the case of the plaintiff-society that the letter, dated 4-6-1983, under Ex.A-41, was addressed by the plaintiff-society to the Defendant No. 1-Dargah to furnish a copy of the letter of the Defendant No. 10-Wakf Board, granting permission, and in response to the same, a letter, dated 10-5-1983, under Ex.A-48, was addressed by the Defendant No. 1-Dargah to the plaintiff-society, enclosing a copy of the order, dated 30-6-1982, under Ex.A-49, of the Defendant No. 10-Wakf Board.

89. It is rather interesting to note that the letter, under Ex.A-48, was again signed by the Secretary of the Defendant No. 1-Dargah and General Power of Attorney Holder of Mujavars viz., Sd. Gulam Ali Akbar, the Defendant No. 2. We have already expressed our view that the signature of the Defendant No. 2 is the same on all other documents and it is to be further noted that the said letter, under Ex.A-48, refers to the letter, dated 4-6-1983, under Ex.A-41, addressed by the plaintiff-society. Therefore, we have no hesitation to believe the version of the plaintiff-society. Accordingly, Exs.A-41 and A-48 do support the case of the plaintiff-society and negates the claim of the defendants.

90. The learned Senior Counsel for the defendants further relied on Exs.B-1 to B-8. Ex.B-1 is the letter-head with signature of P.W. 1, dated 23-10-1982, and Ex.B-2 is the letter-head of the plaintiff-society, dated 18-10-1982, respectively, which are subsequent to the agreement of sale, dated 2-8-1982, under Ex.A-31, offering more amount than what was agreed to under Ex. A-31; Ex.B-4 is the letter of request by the Defendant No. 13-society to allot a minimum extent of Ac. 12-00 of land; Ex.B-5 is the letter, dated 8-9-1982, said to have been addressed by Noor Housing Society seeking allotment of the land; Ex.B-6 is the letter, dated 23-10-1982, addressed by Gousiya Committee seeking allotment of the land; Ex.B-7 is the letter, dated 23-10-1982, addressed by the Secretary of the Defendant No. l3-society, further increasing the rate of the land; and Ex.B-8 is another letter, dated 22-12-1982, allegedly addressed by the Defendant No. l3-society, increasing the rate of the land from Rs. 1,26,000/- to Rs. 1,28,000/- per acre.

91. D.W. 2, who is the Administrative Officer of the Defendant No. l0-Wakf Board, categorically stated in his evidence “None of the Exs.B-1 to B-8 bears no date stamps even or office stamp. It is true that Exs.B-l1 to B-8 do not reveal that they were submitted in response to any notification.”

92. Therefore, in view of the admission of D.W. 2 that Exs.B-1 to B-8 do not bear the date and office stamp, they need not be attached with much significance, nor can they be used as a strong circumstance against the plaintiff-society. Thus, in our view, after the preliminary notifications, under Exs.A-26 and A-28, were issued by the Defendant No. 10-Wakf Board, it was only the plaintiff-society, who came forward offering Rs. 70,000/- per acre and all the other applications were much later to the said Gazette Notifications, wherein a specific condition was stipulated that the objections shall be made within one month from the date of the notifications. Therefore, there is any amount of doubt, in our mind, that these documents could have been created for the purpose of frustrating the agreement of sale, dated 2-8-1982, under Ex.A-31, between the plaintiff-society and the Defendant Nos. 1 to 9. In other words, these documents are not authenticated in view of the statement made by D.W. 2 on behalf of the Defendant No. 10-Wakf Board and, therefore these documents cannot be relied upon nor can be taken into consideration.

93. It is also relevant to note here the excerpts of D.W. 2, which are thus:

…The plaintiff offered to purchase the property at the rate of Rs. 70,000/-per acre….The plaintiff increased his offer to purchase the property from Rs. 70,000/- to Rs. 1-00 lakh per acre on 6-10-1982. Again he raised the offer to Rs. 1,26,000/- by his letter.

94. But, as regards the increase of price by the plaintiff-society from Rs. 70,000/-to Rs. 1,00,000/- per acre on 6-10-1982, as stated by D.W. 2, there is absolutely no proof on record and no such letter is filed before the Court below. In this regard, it is to be further noted that it is the case of D.W. 1, in the cross-examination, that the plaintiff-society had enhanced the price from Rs. 70,000/- to Rs. 1,26,000/- through letter, dated 23-10-1982, under Ex.B-1. A perusal of the letter, dated 23-10-1982, under Ex.B-1, shows that the plaintiff-society had increased its offer from Rs. 1,00,000/- to Rs. 1,26,000/- per acre. But, there is no mention of the offer of Rs. 70,000/- made by the plaintiff-society in the said letter. If really the plaintiff-Society initially offered a sum of Rs. 70,000/- and then increased to Rs. 1,00,000/- per acre and further increased to Rs. 1,26,000/- per acre, the same would have been reflected in the letter, under Ex.B-1, or any other correspondence. But, no such correspondence has been filed before the Court.

95. The whole case of the Defendant No. 1-Dargah is that the plaintiff-society initially offered Rs. 70,000/- per acre and much later enhanced to Rs. 1,26,000/- per acre and since the Defendant No. 13-society offered Rs. 1,28,000/- per acre, the deal was struck in favour of the Defendant No. 13-society. The entire case of the Defendant No. 1-Dargah appears to be full of incoherent and conflicting versions. Therefore, the existence of the letter, dated 23-10-1982, under Ex.B-1, said to have been addressed by the plaintiff-society, enhancing the rate from Rs. 1,00,000/- to Rs. 1,26,000/- per acre, particularly when it was specifically admitted by D.W. 4 that all the Mujavars i.e., the Defendant Nos.2 to 9 except the Defendant No. 3, signed the agreement of sale, dated 2-8-1982, under Ex.A-31, is doubtful beyond proportion. The same is further strengthened in view of the statement made by D.W. 2, which runs thus:

None of the Exs.B-1 to B-8 bears no date stamps even or office stamp. It is true that Exs.B-1 to B-8 do not reveal that they were submitted in response to any notification.

96. It is further brought to our notice, by the learned Counsel for the plaintiff-society, that in the letters, dated 23-10-1982 and 18-10-1982, under Exs.B-1 and B-2, respectively, allegedly addressed by the plaintiff-society to the Defendant No. 1-Dargah, increasing the price, the language in both the letters appears to be almost one and the same. Similarly, the documents under Exs.B-7 and B-8, which are the letters, dated 23-10-1982 and 22-12-1982, respectively, allegedly addressed by the Defendant No. 13-society, increasing the price from Rs. 1,05,000/-to Rs. 1,28,000/- per acre also appear to be quite similar. A perusal and comparison of these two documents would reveal that there is some force in what has been argued by the learned Counsel for the plaintiff-society.

97. For better appreciation, the relevant portions of Exs.B-1 and B-2 are extracted hereunder:

Ex.B-1 – letter dated 23-10-1982

In this connection, I would like to submit that we are hereby revise our offer that is to say that our offer and make it Rs. 1,26,000/-(Rupees one lakh and twenty six thousand only) per acre. We, therefore, request you to please treat our offer as Rs. 1,26,000/- (Rs. one lakh and twenty six thousand only) per acre, (emphasis supplied by us since handwritten)

This offer is made without prejudices to our rights.

Be pleased to consider.

Ex.B-2 – letter dated 18-10-1982

As suggested by you, our Society proposed to increase the rate of the land @ Rs. 1,00,000/- (One lakh only) in the place of Rs. 70,000/- (Seventy thousand only) per acre, which was already offered, in view of the present increase in the value of the land due to lapse of time. This offer is made without prejudices to our rights.

Be pleased to consider.

98. Regarding Ex.B-1, P.W. 1 has stated that the said letter was written on the letter-head of the plaintiff-society and the signature is also appears to be the President of the plaintiff-society only. But, he denied the contents of the said letter. Regarding Ex.B-2, P.W. 1 denied his signature, even though he admitted that the said letter was addressed on the letter-head of the plaintiff-society.

99. In this regard, it is to be seen that P.W. 1 could have denied totally so far as these two documents are concerned. Therefore, we are of the view that the evidence of P.W. 1, as regards Exs.B-1 and B-2, appears to be natural.

100. Coming to the letters, Exs.B-7 and B-8, letters dated 23-10-1982 and 22-12-1982, under Exs.B-7 and B-8, respectively, allegedly addressed by the Defendant No. 13-society, we feel it appropriate to extract the relevant portions of the said letters, which are thus:

Ex.B-7 – letter dated 23-10-1982

We propose to further increase the rate of the above referred land at Rs. 1,26,000/- (One lakh and twenty six thousand only) in the place of Rs. 1,05,000:00 per acre, which was already offered as there is present increase in the value of the land due to lapse of time.

This offer is made without prejudices to our rights.

Be pleased to consider.

Ex.B-8 – letter dated 22-12-1982

Our society has agreed to further increase the rate from Rs. 1,26,000/- to Rs. 1,28,000/-(Rupees one lakh and twenty eight thousand only) per acre to purchase the land in R.S. No. 63 of Bhavanipuram, Vijayawada.

This offer is made without prejudices to our rights.

101. The tenor of all the above said four letters appears to be the same and the language used is also the same. From this, we feel that there is something more than what has been visible to a naked eye and this doubt has been confirmed by the other circumstances referred to above. The above aspect has been spoken to by the Defendant No. 3, who was also a Mujavar, but did not join with the other Mujavars i.e., the Defendant Nos.2 to 9, by filing a written statement, and died without contesting the suit further.

102. In this context, as already discussed in the earlier paragraphs, under Ex.A-78 – Audit Report, dated 18-12-1986, the Competent Authority under the A.P.C.S. Act has recommended for a detailed enquiry under Section 51 of the Act and the Government also has taken serious note of various facts that were brought to its notice and one of the findings recorded by the Government as well as the Competent Authority under the A.P.C.S. Act is that the Defendant No. 1-Dargah had manipulated to receive offers directly from the outsiders, even after the expiry of stipulated period of one month specified in the Gazette Notifications, under Exs.A-26 and A-28.

103. It is further brought to our notice that Ex.B-10 is the letter, dated 24-12-1982, written by the Chairman of the Defendant No. 10-Wakf Board to the Defendant No. 13-society requesting to comply with certain formalities, which were mentioned therein.

104. In the said letter, the date of the letter and also the survey number were corrected. In this context, D.W. 2 – the Administrative Officer of the Defendant No. 10-Wakf Board stated “It is true that in Ex.B.10, the original survey number was corrected with ink. ” But, no explanation was offered for the said corrections. Hence, it is to be treated as a deliberate interpolation to the advantage of the defendants, which clearly shows that certain documents were created in the office of the Defendant No. 10-Wakf Board in order to favour the Defendant No. l3-society in which the Defendant Nos.2 to 9 are members and were allotted substantial extents of plots, along with their family members.

105. It is to be further noticed that the defendants have heavily relied on the statement made by P.W. 1, in his cross-examination, which is as under:

…The letter dated 18-10-1982 is on our letter-head. I do not know the handwriting of the body of the letter. I cannot say whether letter 2 in the year 1982 was made to 1983….

106. But, as discussed above, we are of the view that this statement is absolutely of no use to the defendants and on the contrary it supports the case of the plaintiff-society and cuts across the very case of the defendants.

107. Much argument was advanced by the learned Counsel for the defendants that there are variations in the affidavits, filed by the plaintiff-society in the writ petitions, and the averments made in the plaint. In this regard, it is to be seen that one writ petition had been withdrawn and the other writ petition, which was filed seeking a direction to the Defendant No. l0-Wakf Board to issue necessary permission, was dismissed, and when the same was challenged in an appeal, the same was disposed of by a Division Bench of this Court with a direction to agitate all the grounds in the pending suit.

108. There may be some discrepancies in the statements made by the plaintiff-society in the affidavit, filed in support of the writ petition, and the pleadings in the plaint, as regards the possession of the suit schedule property. This, in fact, is a question of fact, which cannot be gone into by the High Court in a writ appeal. Therefore, the writ appeal had been disposed of by a Division Bench of this Court with a direction to agitate all the grounds in the pending suit. These minor discrepancies cannot be taken as serious discrepancies, which, in fact, are not capable of demolishing the very case of the plaintiff-society.

109. In view of the various facts and circumstances, which have been urged by both sides, we are of the view that the agreement of sale, dated 2-8-1982, under Ex.A-31, is true and, accordingly, Point No. l is answered in favour of the plaintiff-society and against the defendants.

In Re Point No. 2:

110. It is not in dispute that the Defendant No. 11-the Government had issued G.O. Ms. No. 773, under Ex.B-12, according sanction to the Defendant No. 1-Dargah, to alienate the suit schedule properties, subject to certain conditions, which are as under:

1. That the sale proceeds should be invested through the Secretary, Wakf Board in a Scheduled or Nationalised Bank in interest yielding deposit;

2. That the sale deed should be executed at the expenses of the purchaser or purchasers;

3. That the sale proceeds should be utilized exclusively for the objects of said Wakf Institution and also for rebuilding the corpus effected by the transfer.

111. As per the resolution, under Ex.A-14, of the meeting held on 6-6-1981, the District Wakf Committee, Krishna District, has resolved to recommend and request the Government to grant permission for the sale of certain wakf properties of the Defendant No. 1-Dargah for better management of the wakf properties. Therefore, the management of the Wakf Board were in peril in the year 1981 and, therefore, it was decided to dispose of some of the properties for a sum of Rs. 40,000/-to Rs. 1,00,000/- “for better management of the wakf properties.” Therefore, obviously, the better and effective management of the wakf properties was the theme and object of the Defendant No. l – Dargah while resolving to dispose of its properties.

112. But, as already found by us, in the earlier paragraphs, as could be seen from the Audit Report and Special Audit Report, under Exs.A-78 and A-79, respectively, contrary to the conditions laid down by the Government in G.O. Ms. No. 773, under Ex.B.12, the Defendant Nos.2 to 9, the Mujavars of the Defendant No. 1-Dargah, who were managing the wakf properties of the Defendant No. 1-Dargah and also who resolved to safeguard the properties of the Defendant No. 1-Dargah, became the members of the Defendant No. l3-society and got allotted substantial plots along with their family members. It is to be reiterated that the Defendant No. 2, who is the President of the Mujavars Association and was examined as D.W. 4, admitted all the signatures of the Mujavars on the suit agreement of sale, dated 2-8-1982, under Ex.A-31. The dual stand taken by the Defendant Nos.2 to 9 is absolutely to their convenience and advantage. In other words, their acts are, obviously, questionable and contrary to the very objects of the wakf properties and the conditions imposed by the Government in G.O. Ms. No. 773, under Ex.B-12.

113. Here, it may be noted that when it was agreed both by the plaintiff-society and the Defendant Nos. 1 to 9 that the said agreement of sale, dated 2-8-1982, under Ex.A-31, was subject to approval of the Government, it should be construed that for alienation of the wakf properties of the Defendant No. 1-Dargah, the approval of the Government is imperative. If that be the case, the same principle applies to the alienation of the wakf properties in favour of the Defendant No. l3-society also.

114. The curious aspect, in this regard, to be noted is that there is no agreement of sale at all in respect of the sale made in favour of the Defendant No. 13-society. However, the Government had issued the G.O. Ms. No. 773, under Ex.B-12, to alienate the properties of the Defendant No. 1-Dargah in favour of the Defendant No. 13-society.

115. But, what is significant is – the wakf properties of the Defendant No. 1 -Dargah were alienated by the Defendant Nos.2 to 9 in favour of the Defendant No. 13-society, pending trial of the suit O.S. No. 449 of 1984, through the sale deeds, dated 20-4-1984, 15-5-1985 and 29-5-1985, under Exs.B-26, B-27 and B-28, respectively. Subsequent to the said sales, the Defendant No. l1-Government had issued a Memo, dated 25-10-1986, under Ex.A-44, giving an account of various violations, having taken a serious note of the same and keeping in view the pendency of the suit proceedings, staying the operation of G.O. Ms. No. 773, under Ex.B-12.

116. According to the defendants, sanction of the Government is essential and when G.O. Ms. No. 773, under Ex.B-12, was stayed by the Government itself, vide Memo, dated 25-10-1986, under Ex.A-44, the instant question that falls for consideration is – what is the effect of the sales under Exs.A-26, A-27 and A-28.

117. In this connection, we are of the view that since the sale transactions were effected by way of registered sale deeds, under Exs.A-26, A-27 and A-28, they would be subject to further orders issued by the Government in Memo, dated 25-10-1986, under Ex.A-44, after conducting necessary enquiry, as contemplated therein. Therefore, the contentions advanced by the learned Counsel for the defendants that the sales were already effected by way of registered sale deeds, under Exs.A-26, A-27 and A-28, in favour of third parties, cannot be countenanced in view of the specific language used in the Memo, dated 25-10-1986, under Ex.A-44, issued by the Government with regard to the effect of G.O. Ms. No. 773, under Ex.B-12. In other words, the effect of G.O. Ms. No. 773, under Ex.B-12, is dependent upon the judgment and decree being passed by the competent Court.

118. It is also to be noted that in view of the issuance of the Memo, dated 25-10-1986, under Ex.A-44, by the Government, and also in view of the categorical finding recorded in favour of the plaintiff-society, on Point No. l, regarding the genuineness of the agreement of sale, dated 2-8-1982, under Ex.A-31, as true and valid, the effect of G.O. Ms. No. 773, under Ex.B-12, and the consequential proceedings by way of notification, dated 26-5-1983, under Ex.B-13, issued by the A.P. Wakf Board, would become inconsequential.

119. On this issue, another incidental question that sprouts up is – as to whether any prior permission of the Government is to be imperatively obtained or not before alienating the wakf properties of the Defendant No. 1-Dargah under the Act. In other words, the question is whether G.O. Ms. No. 773, under Ex.B-12, is in conformity with the provisions of Section 3 6-A of the Act.

120. For better appreciation, it is apt to extract Section 36-A of the Act, which is thus:

36-A. Transfer of immovable property of wakfs:Notwithstanding anything contained in the wakf deed, no transfer of any immovable property of a wakf of

(i) sale, gift, mortgage or exchange; or

(ii) lease for a period exceeding three years in the case of agricultural land, or for a period exceeding one year in the case of non-agricultural land or building, shall be valid without the previous sanction of the Board.

121. As per the above provision, it is only the Board, which has to accord previous sanction.

122. A perusal of the Gazette Notification, dated 26-5-1983, under Ex.B-13, which is the only consequential proceedings issued by the Defendant No. l0-Wakf Board, pursuant to G.O. Ms. No. 773, under Ex.B.12, there is no independent proceedings, as such, issued by the Defendant No. 10-Wakf Board, as contemplated under Section 36-A of the Act.

123. For ready reference, the Gazette Notification, dated 26-4-1983, under Ex.B-13, is extracted hereunder:

Final Notification under Rule 12(4) of the Andhra Pradesh Wakf Rules, 1974 read with Section 36-A of the Wakf Act, 1974.

File No. 9134/Hl/IA/KST/81 In accordance with the orders passed by the Government in their G.O. Ms. No. 773, Revenue (Wakf) Department, dated 4th May, 1983, sanction is accorded for the sale of land measuring 35-20 acres bearing Sy. No. 63 of Bhawanipuram Village, Vijayawada District, belonging to Dargah Hazrath Ghalib Shaheed, in favour of M/s. Mohammedia Cooperative Building Society, Vijayawada, at the rate of Rs. 1,28,000/- subject to the following conditions:

4. That the sale proceeds should be invested through the Secretary, Wakf Board in a Scheduled or Nationalised Bank in interest yielding deposit;

5. That the sale deed should be executed at the expenses of the purchaser or purchasers;

6. That the sale proceeds should be utilized exclusively for the objects of said Wakf Institution and also for rebuilding the corpus effected by the transfer.

(Sd)

Secretary,

Andhra Pradesh Wakf Board, Hyderabad.

Hyderabad, 24th May, 1983.

124. Therefore, since the final Notification, dated 26-5-1983, issued by the Defendant No. 10-Wakf Board, was without independent application of mind, and was simply, issued as a sequel to G.O. Ms. No. 773, under Ex.B-12, such final notification, under Ex.B-13, is a nullity. In other words, the final notification, under Ex.B-13, is not the one issued by the Defendant No. 10-Wakf Board, exercising the power under Section 36-A of the Act, and hence, the same is null and void. This act of the Defendant No. 10-Wakf Board, in our considered view, tantamount to refusal of statutory jurisdiction vested in it.

125. We are fortified with the judgment of the Full Bench of our High Court in Employees Association v. Sri Chenna Keshava Swamy Temple .

In that case, the appellant-Association had filed an application to the Assistant Commissioner of Endowments offering to purchase some land belonging to the respondent-temple. At that point of time, the land was in possession of the Archakas, who expressed their willingness for the sale of the land. The Executive Officer of the Temple also proposed for the said sale and, consequently, recommendation was made to the Commissioner of Endowments for the sale of the land. The Commissioner sent back the recommendation to the Assistant Commissioner informing that he had already agreed for acquisition of the very same land by the Social Welfare Department. Subsequently, it came to light that the said acquisition proceedings were dropped and the same was informed to the Commissioner again. Consequently, the Commissioner, exercising his jurisdiction under Section 74(1)(b) of the A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1966, calling for the objections for the sale of the land and the same was published in A.P. Gazette. Later, the Commissioner had requested the State Government to accord permission, under the proviso to Section 74(1)(c) of the Endowments Act, to sell the land. Accordingly, the Government had accorded permission by issuing the said G.O. Pursuant to the said G.O., the Commissioner had issued proceedings directing the Manager of the respondent-Temple to execute a sale deed in favour of the appellant-Association and accordingly, he executed the sale deed in favour of the appellant-Association.

126. In the aforesaid backdrop of the circumstances, Their Lordships, in an elaborate judgment, have considered various decisions, particularly the decision of a Division Bench of the Madras High Court in Sahul Hameed Rowther v. K.C.P. Mohideen Pichai 1948 (1) MLJ 270, the relevant portion of which is extracted hereunder:

Where a plaintiff alleged that a sale deed executed by him in favour of the defendant was sham and prays for a declaration to that effect and an injunction restraining the defendant from interfering with the plaintiffs possession it is not necessary for the plaintiff to pray for cancellation of the deed.

127. Their Lordships have taken into consideration the observations of the Apex Court in Mahadeo Prasad Singh and Anr. v. Ram Lochan and Ors. . For ready reference, the said observations are extracted, which are thus:

Once we come to the conclusion that the sale in question was totally null and void, the alternative contention of the appellants with regard to the suit being barred by Section 47 of the Code of Civil Procedure, does not survive.

This is not a case of an irregular or voidable sale which continues to subsist so long as it is not set aside, but of a sale which was entirely without jurisdiction. It was non east in the eye of law. Such a nullity does not from its very nature, need setting aside.

128. Their Lordships have also taken into account the judgment of the Apex Court in C. Rami Reddy v. Government of A.P. , wherein, it appears, the Government had accorded permission by issuing a G.O., for the sale of the property to the Association by way of private negotiations. No reasons whatsoever were assigned for permitting the sale of the property otherwise than by public auction.

129. The Full Bench of this Court in Employees Association’s case (supra), further noted as under:

The facts of the present case clearly reveal that the State Government failed to apply its mind before passing the impugned order and to record its reasons for granting permission. So also, the Commissioner of Endowments acted in contravention of the provisions of Section 74 and the Rules made there under in according sanction for the sale of the property. Sub-section (1) of Section 74 itself provides that any sale effected without prior sanction of the Commissioner is null and void. If the sanction accorded by the Commissioner is not in accordance with law, it can be said that there is no sanction at all in the eye of law. If there is no sanction, the sale will be null and void. Therefore, when the orders passed by the Commissioner of Endowments and the State Government are null and void, it is not at all necessary to seek a relief for setting aside such orders. They sought for the relief of cancellation of the sale deed dated January 28, 1981 and for consequential relief of delivery of possession of the suit land. If the plaintiffs succeed in proving that the orders passed by the authorities are void, and consequently the sale also is null and void, there is no legal bar for entertaining the suit and disposing it of on merits in accordance with law. In the present case, the plaintiffs themselves have sought the relief of cancellation of sale deed specifically. Therefore, it is not necessary to deal with the contention that where the sale itself is null and void, it is not even necessary for the plaintiffs to seek the relief of cancellation of the sale deed and they can straightaway file a suit for delivery of possession.

130. From the above decision of the Full Bench of this Court, it is obvious that when, apparently, it is found that the sale transaction in dispute is void ab in to, the relief of cancellation of the sale deed was not necessary and straightaway the suit for possession can be filed and that there is no bar under law when the very sale transaction itself is null and void.

131. In the light of the above proposition laid down by the Full Bench of this Court, referring to the various judgments of the Apex Court, now it is for us to examine -as to whether the sale transactions, under Exs.A-26, A-27 and A-28, have already been completed, pursuant to the issuance of G.O. Ms. No. 773, under Ex.B-12.

132. In this regard, it is to be seen that, in the present case, it is only the Government, which had accorded permission to the Defendant No. 10-Wakf Board, for alienation of the suit schedule property, subject to certain conditions. However, it is made clear that the sale transaction must be for the benefit of the Defendant No. 1-Dargah only. No other reasons are assigned. The contents of the said G.O., may not necessarily be faulted with. But, what is to be remembered is – whether the Defendant No. 11-the Government has any authority to accord such permission?

133. A perusal of Section 36-A of the Act, makes it abundantly clear that it is only the Defendant No. 10-Wakf Board, which has jurisdiction to accord necessary permission for the purpose of alienation of the wakf properties. The jurisdiction of the Government is carved out only to a narrow extent, which is provided under Sections 62, 63, 64 and 66-A of Chapter-VIII of the Act.

134. Section 62 of the Act deals with the power of the Central Government to issue directions to the Wakf Board. Section 63 of the Act deals with the power of the State Government to issue certain directions. It is clear from the above provisions, that the Central Government or the State Government, as the case may be, has the power to issue directions on questions of policy and it is incumbent upon the Wakf Board to perform and comply with the same.

135. The sale transaction of the wakf properties by the Defendant No. 1-Dargah, by no stretch of imagination, can be treated as a Policy, which imperatively requires prior sanction of the Government, nor it is for the Government to interfere with such transactions by way of issuing G.Os., treating them as ‘directions’, touching upon the policy of the Defendant No. 10-Wakf Board.

136. The above observations are clear, inasmuch as, a specific provision has been incorporated under Section 36-A of the Act. In our considered view, the power conferred upon the Wakf Board, under Section 36-A of the Act, and the powers conferred upon the Government, under Sections 62, 63, 64 and 66-A of Chapter-VIII of the Act, are distinct. In other words, Section 36-A of the Act, is specifically meant for alienation of the wakf properties. By virtue of the language incorporated in Sections 62, 63, 64 and 66-A of the Act, on one hand, and Section 36-A of the Act, on the other, by necessary implication, there is no other way than to construe that the Government has no jurisdiction in according permission to the Defendant No. 1-Dargah to alienate the wakf properties. Therefore, issuance of G.O. Ms. No. 773, under Ex.B-12, in fact, is not statutorily required in case of alienation of wakf properties. On the other hand, it is only the Defendant No. 10-Wakf Board, which is relevant.

137. Even assuming that the Government had exercised its supervisory jurisdiction by issuing G.O. Ms No. 773, under Ex.B-12, as envisaged under Section 63 of the Act, it is incumbent upon the Defendant No. 10-Wakf Board to follow such directions issued by the Government. As already pointed out, there are certain conditions incorporated in the said G.O. The important thing is that the alienation of the wakf properties shall be for the benefit of the Defendant No. 1-Dargah. But, what really had happened is another aspect.

138. The Defendant No. l is the Dargah. The Defendant Nos.2 to 9, the Mujavars, became the members of the Defendant No. l3-society, for the reasons best known to them, and obtained allotment of plots not only in their favour but also in favour of their family members. This act, on the part of the Defendant Nos.2 to 9, certainly cannot be termed as was done in the interest of the wakf properties. The personal interest had crept into the sale transaction, resulting in the loss of interest of the “wakf properties.

139. An argument was attempted to be made by the learned Counsel for the defendants that the sale in favour of the Defendant No. l3-society was for a higher price, which is definitely to the advantage and benefit of the properties of the Defendant No. 1-Dargah. But, the discussion, in the earlier part of this judgment, would only show that there is any amount of cloud hovered around the entire transaction,

140. Furthermore, as envisaged under Section 36-A of the Act, and as already pointed out, the Defendant No. 10-Wakf Board simply and faithfully followed G.O. Ms. No. 773, under Ex.B-12. In fact, there were no directions in the said G.O., issued by the Government. There are only certain directions while granting permission to sell the wakf property. Therefore, it is our view that the Defendant No. 10-Wakf Board not only did not apply its mind at all, but also violated the statutory duty casts upon it, as contemplated under Section 36-A of the Act. Therefore, it can safely be construed that the action of the Defendant No. 10-Wakf Board tantamounts to refusing the statutory duty cast upon it. This is evident from the follow up action by way of issuing Gazette Notification.

141. The learned Counsel for the plaintiff-society relies on the decision of the Privy Council in Motilal v. Nanhelal AIR 1930 PC 287. In the said case, one of the questions that fell for consideration was – as to whether the condition regarding making of an application to the authorities concerned seeking sanction of certain rights was essential on the part of the vendee and what is the effect of non-compliance of such condition. In such circumstances, it was held by Their Lordships that the parties are bound by the conditions of the agreement and making an application to the authorities concerned to transfer the rights by the vendee for the purpose of selling the land is an implied covenant and it is for the vendee to do the things that are necessary to effect such transfer, which would include making of an application to the concerned.

142. The said view was reiterated by the Apex Court in Mrs. Chandnee Widya Vati v. Dr. C.L. Katial , finding favour the view taken by the High Court while relying on the decision in Motilal’s case (supra), for coming to the conclusion that there was a completed contract between the parties and the vendor would obtain the sanction from the Competent Authority in order to complete the sale transaction. In other words, not making such an application, to the Competent Authority, would render the contract incomplete.

143. Slightly, if we put it in a different way, a duty is cast upon the vendor to do all necessary things that are to be done, including making an application to the authorities concerned, and it is a different thing, if the necessary sanction is not granted by the authorities, the contract would become unenforceable.

144. No doubt, the principles laid down by Their Lordships in the above mentioned two decisions Motilal ‘s and Mrs. Chandnee Widya Vati’s cases (supra), are totally unexceptionable, but, the facts and circumstances of those two cases do not fit into the facts and circumstances of the present case, inasmuch as, as already found by us, all necessary formalities, which eventually culminated into an agreement of sale, dated 2-8-1982, under Ex.A-31, have been complied with by the Defendant Nos.2 to 9, and only in order to frustrate the said agreement of sale, dated 2-8-1982, under Ex.A-31, the Defendant Nos.2 to 9, for their own reasons, have jacked up the Defendant No. l3-society to which the Defendant Nos.2 to 9, except the Defendant No. 3, were members along with their family members. This is something unsavory conduct on the part of the Defendant Nos.2 to 9.

145. Apropos the other submission made by the learned Standing Counsel for the Defendant No. l0-Wakf Board that the Defendant Nos.2 to 9, the Mujavars, have no right to alienate the wakf property at all, we are of the view that this submission is not only totally unsustainable, but also self-contradictory. If really his submission is to be accepted, the sale in favour of the Defendant No. l3-society by the Defendant Nos.2 to 9 has to be automatically dishonoured in all respects.

146. At the cost of repetition, it should be remembered, at this juncture, that the genuineness or otherwise of the agreement of sale, dated 2-8-1982, under Ex.A-31, in favour of the plaintiff-society, which is earlier to the sale transaction made in favour of the Defendant No. l3-society, by the Defendant Nos.2 to 9, is the substantial question of fact that has to be gone into and on this issue we have already held in favour of the plaintiff-society and against the Defendant Nos.2 to 9 in Point No. 1 Therefore, the principle of law laid down by Their Lordships of the Full Bench of this Court in Employees Association’s case (supra), is more relevant for the present set of facts, but not the principles of law laid down by Their Lordships in Motilal’s case (supra) and Mrs. Chandnee Widya Vati’s case (supra).

147. The learned Senior Counsel appearing for the Defendant No. 1-Dargah mainly contended on the aspect that the trial Court had gone beyond the scope of the relief sought for by way of issuing certain directions to the Defendant Nos. 1l and 12. In order to substantiate his contention, he relied upon a judgment of the Apex Court in Kuju Collieries Limited”s case (supra), which mainly deals with the scope of Section 65 of the Contract Act, 1872.

148. In the said case, Their Lordships have drawn a subtle distinction between ‘a contract’ and ‘an agreement’ and observed that as per the earlier part of Section 65 of the Contract Act, 1872, an agreement being discovered to be void – it means that the agreement is not enforceable and, therefore, not a contract, and further meaning thereby that it was void.

In the said judgment, it was observed that the second part of Section 65 of the Contract Act, 1872 refers to a contract becoming void in a case where an agreement, which was originally enforceable shall be treated as a contract, but however, becomes void due to subsequent happenings. Consequently, it was held that in both these cases, any person who has received any advantage under such agreement or contract is bound to restore such advantage, or to make compensation for it to the person from whom he received it. Though this distinction and the proposition made by the Apex Court are unexceptionable, the facts and circumstances in the present case do not deserve application of the above said proposition.

149. The other two decisions, relied upon by the learned Senior Counsel for the defendants i.e., National Board of Examinations’s case (supra) and V.K. Majotra’s case (supra), are also equally unexceptionable, but the facts of those cases are totally different.

150. In National Board of Examinations’s case (supra), the Apex Court held that the impugned judgment of the High Court had crossed the limitations and considered the effect of the impugned judgment of the High Court, since, as could be seen from the facts, some ineligible candidates were also given undue advantage. Therefore, it was found by Their Lordships that the High Court was not justified in directing the petitioner therein to hold examinations against its policy, meaning thereby that the High Court had stepped into the areas which it ought not to have entered into.

151. In V.K. Majotra’s case (supra), the facts are again different. In that case, it appears that regarding preparation of a panel for the post of Vice-Chairman in various Benches of Central Administrative Tribunal, the vires of Section 6(2)(a), 6(2)(b), (bb) and (c) of the Administrative Tribunals Act were considered and, eventually, the High Court observed that the appointment of Vice-Chairman should be made from amongst the persons mentioned in Section 6(2)(a) of the Administrative Tribunals Act alone. In those circumstances, Their Lordships of the Apex Court found that the vires of the provisions of the Administrative Tribunals Act, particularly Section 6(2)(a), (bb) and (c), had not fallen for consideration before the High Court at all, since not adverted to, and, in which case, the High Court was not justified in dwelling into the serious questions of law, particularly the vires of the provisions of the Administrative Tribunals Act.

152. But, in the present case, we are of the view that the observations made by Their Lordships of the Apex Court in the above said two decisions are not applicable.

153. In the present case, both the parties have mainly pleaded the questions of fact as regards the genuineness of the sale transaction either in favour of the plaintiff-society or in favour of the Defendant No. 13-society. Incidentally, the question of law as regards the application of Section 36-A of the Act, and Rule 12(2) and (4) of the Rules made there under had also been raised and was considered by the trial Court. Even before this Court also, since the application of Section 36-A of the Act and Rule 12(2) of the Rules made there under were relied upon and interpreted, we were constrained to express our opinion in that regard, however, in favour of the plaintiff-society and against the defendants.

154. In view of the above, Point No. 2 is also answered in favour of the plaintiff-society and against the defendants.

Point No. 3:

Lis pendens:

155. It is an admitted fact that the suit schedule property had been disposed of to the third parties through registered sale deeds, dated 20-4-1984, 15-5-1985 and 29-5-1985 under Exs.B-26, B-27 and B-28, respectively, pursuant to the issuance of G.O. Ms. No. 773, under Ex.B-12, sanctioning permission for alienation of the wakf properties of the Defendant No. 1-Dargah in favour of the plaintiff-society. It is on record that the suit was filed in the year 1984. G.O. Ms. No. 773, under Ex.B-12, was issued by the Defendant No. 11-Government on 4-5-1983. Except the sale deed, dated 20-4-1984, under Ex.B-26, the other two sale deeds, under Exs.B-27 and B-28, were effected during the pendency of the suit and we have no doubt to say that the sale transactions insofar as the suit schedule property covered under Exs.B-27 and B-28 are hit by the provisions of Section 52 of the Transfer of Property Act, 1882, inasmuch as, all the ingredients of Section 52 of the Transfer of Property Act, 1882, are satisfied.

156. But, it is on record that the Defendant No. 11-Government had issued a Memo, dated 25-10-1986, under Ex.A-44, staying the operation of G.O. Ms. No. 773, under Ex.B-12, according permission to the Defendant No. 1-Dargah to alienate its properties on the ground that several irregularities were committed. Those irregularities need not be reiterated here, since a detailed account of the same had already been discussed in the Memo, dated 25-10-1986, under Ex.A-44, issued by the Government.

157. As regards the specific contention raised by the defendants that prior permission by the Government is necessary and only after obtaining the necessary permission from the Government the sales were effected, it is to be seen that when the Government had issued a Memo, dated 25-10-1986, under Ex.A-44, staying the operation of its own proceedings in G.O. Ms. No. 773, under Ex.B-12, sanctioning permission to the Defendant No. 1-Dargah to alienate its properties, whether the sales effected under Exs.B-26, B-27 and B-28 would become ineffective and inoperative is altogether a different and debatable question and the same need not be addressed at this juncture.

158. Nevertheless, it is needless to say that there cannot be two stands on behalf of the Defendant Nos.2 to 9, since there is a clause in the suit agreement of sale, dated 2-8-1982, under Ex.A-31, to the effect that the sale is subject to the approval by the Government. As already discussed in the earlier paragraphs of the judgment, even though there is a clause mentioned in the agreement of sale, dated 2-8-1982, under Ex.A-31, between the plaintiff-society and the Defendant Nos.2 to 9, about the necessity of approval by the Government, in fact, neither there is any need for obtaining such permission from the Government nor can be exercised by the Government. It is already noticed that the Government had the power only under Sections 62, 63, 64 and 66-A of Chapter-VIII of the Act, which are only supervisory in nature, and necessary directions can be given only on the policy decisions of the Wakf Board. All other functions are carved out under Section 36-A of the Act, read with Rule 12(2) and (4) of the Rules made there under conferring the jurisdiction only on the Wakf Board. In fact, adding such a clause in the agreement of sale, dated 2-8-1982, under Ex.A-31, amounts to conferring the jurisdiction on the Government, stripping of the jurisdiction of the Wakf Board, which is not permissible under law. That is the reason why, we have already expressed our view that the Defendant No. 10-Wakf Board had shrunk its jurisdiction to a decimal level by simply informing about the permission granted by the Government to the Defendant Nos.2 to 9 to alienate the wakf properties of the Defendant No. 1-Dargah, without application of mind, and the same amounts to refusing to exercise the jurisdiction vested in it. Therefore, whether or not the Government had accorded sanction to alienate the wakf properties of the Defendant No. 1-Dargah, since the Defendant No. 10-Wakf Board failed to exercise its jurisdiction, conferred under Section 36-A of the Act, the very sanction accorded by the Government is otiose. In other words, there is a vital missing of jurisdictional link in the entire sale transaction in favour of the Defendant No. l3-society.

159. Consequently, we have no hesitation to hold that the sale transactions, under Exs.B-26, B-27 and B-28, effected in favour of the Defendant No. l3-society, for the reasons stated above, have to be declared as null and void, and hence, the contention of the learned Senior Counsel for the Defendant Nos. 1 to 9 that since the sale transactions have already completed, there is nothing that can be done, deserves to be rejected.

160. At the risk of repetition, it is to be noted that as regards the contention of the learned Senior Counsel for the defendants that the relief which was not actually sought for was granted by the trial Court, by way of issuing certain directions to the Government, much has already been discussed in the earlier part of the judgment while dealing with Point No. 2. In the present case, the Defendant Nos. 1l and 12 i.e., the Government and the Secretary to Government, Revenue Department, respectively, are very much parties to the suit proceedings. The purpose of adding them as parties to the suit proceedings is obvious i.e., since G.O. Ms. No. 773, under Ex.B-12, issued by the Government, was stayed by the Government itself, vide Memo, dated 25-10-1986, under Ex.A-44, on account of various alleged irregularities on the part of the Defendant Nos.2 to 9. While staying G.O. Ms. No. 773, under Ex.B-12, in Memo, dated 25-10-1986, under Ex.A-44, the Government recorded as under:

Pending further enquiries into the above irregularities notices and the allegations, Government after careful consideration, hereby order that all further proceedings in pursuance of the G.O. Ms. No. 773, Revenue (Wakf) Department, dated 4-5-1983 and G.O. Ms. No. 250, Revenue (UC-I) Department, dated 8-3-1985 are be and hereby stayed.

The Secretary, A.P. Wakf Board and the Secretary, Jamaat-E-Mujavars Association of Hazrath Galib Shaheed Dargah, Vijayawada, are directed to take immediate follow up action not to proceed further in pursuance of the above Government Orders cited at 2nd and 3rd above, pending enquiry by the appropriate authorities into the allegations mentioned above, they will acknowledge the receipt of this memorandum by return of the post.

161. Therefore, the Defendant Nos. 1l and 12 are not only necessary but also proper parties to the suit, for the simple reason that the rights have cascaded from the Defendant No. 11-Government to the Defendant No. l0-Wakf Board and to the Defendant Nos.2 to 9. As noticed earlier, it is another question of debate as to the effect of stay proceedings, issued by the Government, in Memo, dated 25-10-1986, under Ex.A-44, during the pendency of the suit itself. In such circumstances, if the Government is not made a party to the suit proceedings, any finding as regards the rights of the plaintiff-society on the one hand and the Defendant Nos. 1 to 9 on the other could not have been decided in full, and it would be rather difficult for the trial Court to give appropriate and comprehensive relief in a suit for specific performance, under the. peculiar facts and circumstances of the case.

162. It is well known principle of law that the suit relief can be moulded appropriately in order to do complete and efficacious justice in appropriate cases. No doubt, as a general principle, the Courts shall not grant the relief, which was not specifically sought for. But, in peculiar and exceptional facts and circumstances, like the present case, it is justified and absolutely appropriate for the Courts in order to do substantial justice, while granting the required relief, to mould the relief appropriately, in the interest of justice.

163. Hence, Point No. 3 is also answered in favour of the plaintiff-society and against the defendants.

In Re Point No. 4:

164. In the result, we do not find any merit in all the three appeal suits and the same are liable to be dismissed.

165. The appeal suits A.S. Nos. 686 and 743 of 2005 and 125 of 2006 are accordingly dismissed, confirming the impugned common judgment and decree, passed by the Court below insofar as O.S. No. 449 of 1984. However, there shall be no order as to costs.

166. So far as the applications A.S.M.P. Nos.2445 of 2006 in A.S. No. 743 of 2005, A.S.M.P. No. 480 of 2006 in A.S. No. 125 of 2006 and A.S.M.P. No. 821 of 2006 in A.S. No. 125 of 2006 are concerned, we do find no reason to take into account the additional evidence, at this stage, in view of the extensive evidence, both oral and documentary, already available on record.

167. Accordingly, the applications are dismissed.