SA/22/2019 of SARAFAT ULLAH Vs WAQF ALLAHTALA ALIAS MASJID KASSHABAN HALDWANI

HIGH COURT OF UTTARAKHAND AT NAINITAL Second Appeal No. 22 of 2019

Sarafat Ullah and others

..…Appellants

Versus

Waqf Allahtala Alias Masjid Kasshaban Haldwani and Others

.…Respondents

Advocate : Mr. Bhoodev Prashad Sharma, Advocate for the appellants.

Mr. B.D. Pande, Advocate for the respondent

Hon’ble Sharad Kumar Sharma, J.

This is defendants/appellants’ Second Appeal, whereby they have challenged the concurrent judgements and decree dated 29.09.2014 rendered by learned Civil Judge (J.D.), Haldwani, District Nainital rendered in an Original Suit No. 98 of 2000, Waqf Allahatala & others v. Sarafat Ullah and others, whereby the plaintiffs/respondents, to the Suit, had sought decree of permanent injunction in relation to the subject matter of the suit. The said Suit, after the exchange of the pleadings and after determination of issues framed based on rival contention by invocation of Order 14 of the Code of Civil Procedure stood decreed by the judgement dated 05.01.2019. Being aggrieved against the said judgement, the defendants/appellants of the present Second Appeal had preferred Civil Appeal invoking Section 96 of the Code of Civil Procedure which was numbered as Civil No. No. 63 of 2014, Sarafat Ullah & others v. Waqf Allahatala & others. This Civil Appeal too stood dismissed by the learned 2[nd] Additional District Judge, Haldwani, District Nainital vide its judgement impugned dated 05.01.2019. 2. The present Second Appeal, which was preferred by the defendants/appellants during the winter vacations as apparent in accordance to the order dated 30.01.2019 which is quoted hereunder:-

“Mr. Bhoodev Prasad Sharma, Advocate, for the appellants.

Mr. B.D. Pandey, Advocate for the caveator. Learned counsel for the appellants argued that one of the substantial question of law is about jurisdiction of civil

court, which was already decided by the Trial Court. Order of the Trial Court is not on record.

Learned counsel for the appellants says that the order of the Trial Court was challenged in the revision but those orders are not on record.

Learned counsel for the appellants seeks three weeks’ time to file the orders of the Trial Court as well as revisional order.

Time is granted.

List this matter in the week commencing 25.02.2019 for framing substantial question of law and admission.”

3. The issue which was raised and presented by the counsel of the appellants before this Court, principally by the defendants/appellants was with regard to the maintainability of the Suit in question in view of the provisions contained under Section 85 of the Waqf Act, 1955. Section 85 of the said Act is quoted hereunder:-

“85. Bar of jurisdiction of civil courts.—No suit or other legal proceeding shall lie in any civil court in respect of any dispute, question or other matter relating to any wakf, wakf propertyor other matter which is required by or under this Act to be determined by Tribunal.”

4. The question of maintainability of the Suit itself stood decided by the learned Trial Court way back vide its order dated 03.03.2004, wherein the learned trial Court has recorded finding in para 7 of the said judgement, the said ratio as decided it was based upon ratio as propounded by the Allahabad High Court in judgement as reported in AIR 1980 All. 342, Sayed Farjand Ali v. Nasir Beg and others.

**7- oDQ vf/kfu;e esa LFkkbZ O;kns”k tkjh fd;s tkus dh “kfDr oDQ cksMZ dks ugha gSA LFkkbZ O;kns”k dsoy flfoy U;k;ky; }kjk gh tkjh fd;k tk ldrk gSA oknhx.k dh izkFkZuk ?kks’k.kkRed ugha gS vfirq ek= LFkkbZ O;kns”k tkjh djus ds lEca/k esa gSA oknhx.k ;g ?kks’k.kk ugha pkgrs gSa fd fookfnr efLtn oDQ dh lEifRr gS vFkok ughaA oDQ cksMZ dsoy ;g r; dj ldrh gS fd dkSu lh lEifRr oDQ dh gSA ;gka mHk;i{k foofnr lEifRr dks oDQ cksMZ dh lEifRr gksuk Lohdkj djrs gSa vr% fookfnr laifRr oDQ dh gS vFkok ugha] bl ij i{kdkjksa esa fookn ugha gS] fookn dsoy bruk gS fd oknhx.k fookfnr laifRr ij viuk izaca/k r=a crkrs gSa vkSj izfroknhx.k fookfnr laifRr ¼efLtn½ ij oknhx.k dk izca/ku vLohdkj djrs gSa] vr% ;fn oknhx.k lk{; ls ;g fl} dj ys tkrs gSa fd fookfnr laifRr ij mudk izca/ku gS] rc mUgsa LFkkbZ O;kns”k fey ldrk gSA ;fn og ,slk djus esa vlQy jgrs gSa rks muds i{k esa LFkkbZ O;kns”k tkjh ugha gksxkA ;g lc lk{; ls xq.k&nks’k

ds vk/kkj ij fuf.kZr fd;k tk,xkA pwafd vuqrks’k LFkkbZ O;kns”k ds laca/k esa gS] tks dsoy flfoy U;k;ky; }kjk tkjh fd;k tk ldrk gSA**

Wherein it has been held out that in any Suit for decree of permanent injunction where it does not entail declaration of title in relation to waqf property, the bar of Section 85 will not come into play.

5. This judgement/order dated 03.03.2004, as matter of fact, deciding the issue regarding tenability of the proceedings before the Civil Court as preliminary issue stands finalized admittedly the same has not been questioned by the defendants/appellants by filing revision before any superior Court. Thus the statement made by the counsel to place the revisional order of the challenge given to the order dated 03.03.2004, was misplaced before this Court as recorded in its order dated 30.01.2019, as even till today when this Second Appeal is being argued no revisional order has been placed on record by the defendants/appellants, thus the order dated 03.03.2004 deciding the preliminary issue of maintainability of Suit has attained its finality. Hence it is no more an issue which should hold us for long in proceeding with the Second Appeal. Ultimately, after exchange of the pleadings in the suit, the following issues were framed by the learned trial Court:

**1- D;k U;k;ky; dks okn dks lquus dk {ks=kf/kdkj ugha gS\ ;fn gkWa rks izHkkoA rks izHkkoA

1&v- D;k fookfnr efLtn mRrj izns”k lqUuh lS.V~y cksMZ] y[kum }kjk uSuhrky {ks= ds fy, oDQ la0 1]2]3 ds :i esa oDQ efLtn dlkoku ds :i esa ntZ gS\ ;fn gka rks izHkkoA }kjk uSuhrky {ks= ds fy, oDQ la0 1]2]3 ds :i esa oDQ efLtn dlkoku ds :i esa ntZ gS\ ;fn gka rks izHkkoA

2- D;k izfroknhx.k fookfnr efLtn esa oknh laLFkk ds dk;Z rFkk m udh uekt esa vukf/kd`r :i ls gLr{ksi dj jgs gSa\ ;fn gkWa rks izHkkoA m udh uekt esa vukf/kd`r :i ls gLr{ksi dj jgs gSa\ ;fn gkWa rks izHkkoA

3- D;k oknhx.k okafNr vuqrks’k dks ikus dk vf/kdkjh gS\ D;k oknhx.k okafNr vuqrks’k dks ikus dk vf/kdkjh gS\

4- D;k m0iz0 lqUuh lS.V~y oDQ cksMZ }kjk ikfjr vkns”k fnukad 28-01-03 m0iz0 iquxZBu vf/kfu;e 2001 ds izko/kkuksa ls ckf/kr gS\ ;fn gka rks izHkkoA D;k m0iz0 lqUuh lS.V~y oDQ cksMZ }kjk ikfjr vkns”k fnukad 28-01-03 m0iz0 iquxZBu vf/kfu;e 2001 ds izko/kkuksa ls ckf/kr gS\ ;fn gka rks izHkkoA

5- D;k fookfnr efLtn] efLtn tqykgku gS vkSj lEcf/kr oDQ cksMZ mldks bldh ekU;rk nsrk gS\ ;fn gka rks izHkkoA D;k fookfnr efLtn] efLtn tqykgku gS vkSj lEcf/kr oDQ cksMZ mldks bldh ekU;rk nsrk gS\ ;fn gka rks izHkkoA

6- D;k oknh desVh fookfnr efLtn ij dkfct gS vkSj mldk izcU/k djrh gS\ ;fn gka rks izHkkoA** izcU/k djrh gS\ ;fn gka rks izHkkoA**

6. Primarily, the first question raised by the learned counsel for the defendants/appellants before this Court he has raised the question of maintainability on the ground of the provisions contained under Order 1 Rule 8 of CPC, contending thereof that the provisions contained under Order 1 Rule 8 has not been adhered to and hence it would render the entire proceedings to be vitiated. The provision of Order 1 Rule 8 of CPC reads as under:-

“8. One person may sue or defend on behalf of all in same interest

(1) Where there are numerous persons having the same interest in one suit,--

(a) one or more of such persons may, with the permission of the Court, sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested;

(b) the Court may direct that one or more of such persons may sue or be sued, or may defend such suit, on behalf of, or for the benefit of, all persons so interested.

(2) The Court shall, in every case where permission or direction is given under sub-rule (1), at the plaintiff's expense, give notice of the institution of the suit to all persons so interested, either by personal service, or, where, by reason of the number of persons or any other cause, such service is not reasonably practicable, by public advertisement, as the Court in each case may direct.

(3) Any person on whose behalf, or for whose benefit, suit is instituted, or defended, under sub-rule (1), may apply to the Court to be made party to such suit.

(4) No part of the claim in any such suit shall be abandoned under sub-rule (1), and no such suit shall be withdrawn under sub-rule (3), of rule 1 of Order XXIII, and no agreement, compromise or satisfaction shall be recorded in any such suit under rule 3 of that Order, unless the Court has given, at the plaintiff's expense, notice to all persons so interested in the manner specified in sub-rule (2).

(5) Where any person suing or defending in any such suit does not proceed with due diligence in the suit or defence, the Court may substitute in his place any other person having the same interest in the suit.

(6) decree passed in suit under this rule shall be binding on all persons on whose behalf, or for whose benefit, the suit is instituted, or defended, as the case may be.

Explanation.--For the purpose of determining whether the persons who sue or are sued, or defend, have the same interest in one suit, it is not necessary to establish that such persons have the same cause of action as the persons on whose behalf, or for whose benefit, they sue or are sued, or defend the suit, as the case may be.]

7. The provisions of Order 1 Rule 8 as quoted above, it provides that where one person raises cause to defend the cause of public at large in representative capacity and the proceedings takes the shape of proceeding in rem for benefit or for the interest of public at large or various persons, the permission to initiate the proceedings has had to be taken from the Civil Court under Order 8 Rule 1 (a) (b).

8. Before considering the implications of Order 1 Rule 8 which has been argued for the first time before the learned Second Appellate Court under the garb of the implications of Section 103 of the Code of Civil Procedure certain essential points which are required to be considered would always be under the backdrop of the case as pleaded by the respective parties in the proceedings before the Court below. Having gone through the plaint case, as well as the written statement as filed by the defendants to the Suit what is projected therein is that the plaintiffs as matter of fact has claimed themselves to be Muslims who belonged to the caste “Qurreshi” and according to their case they contend that they had Masjid called as MasjidQassaban. The said Masjid, according to the plaint case is registered before the Waqf Board which was then established at Lucknow and the Masjid is said to be existing in Line Locality No. 13 and 14 of Haldwani, District Nainital. Whereas the defendants, on the other hand, it is pleaded that they belonged to an “Ansari”, sect and they have got separate Masjid which too is called as Masjid Qassaban situated in Line No. 12 (different locality). According to the plaintiffs, since the Masjids being available to the persons belonging to the Muslim sect to offer their namaz, the defendants were, in fact, religiously never objected from performing their namaz from their Masjid situated in Line Nos. 13 and 14 which was an expression of brotherhood amongst the community.

9. The plaintiffs’ case was further that these two different sects i.e. “Qurreshies”, to which the plaintiffs belong and “Ansari”, to whichthedefendants belong have got different mode and manner of performing namaz. The plaintiffs’ case was that during the month of

‘Ramzan’ when the defendants were performing there namaz they have tried to interfere into the internal administration of the Masjid situated in Line Nos. 13 and 14, by making efforts to introduce their own Imam and this they tried to do under the pretext and the strength of “Ansaris”, being outnumbered as compared to the Qurreshi sect and also due to the political interferences.

10. Looking to the aforesaid facts, in fact, as per the plaint allegations and the nature of decree sought which is quoted under, in fact, they have soughta decree which was absolutely in the nature of decree of permanent injunction and the relief sought for would not be barred by any of the clauses of the provisions contained under Section 38 of the Specific Relief Act. Besides this, the action under challenge in the said suit was an action of an individual who tried to interfere into the management of the Masjid Qassaban run by the plaintiffs sect of Qurreshies, it was decree of restraint by way of injunction which was sought against the individual defendants.

11. For the purposes of attracting the principles of Order 1 Rule 8, what is necessary is that it has had to be an institution of the proceedings in representative capacity in order to defend the cause for the benefit of all the interested persons. Hence the basic element, as provided under Order 1 Rule 8, sub rule (a) and (b), the permission would be necessary where the nature of decree sought is for the benefit of the public at large which apparently in the suit in question is not involved as it was an act of interference of individual which was subjected to the condition by filing of the said Suit for decree of permanent injunction.

12. No doubt, it is an interesting issue which has been harped upon by the learned counsel for the defendants/appellants before this Court; but unfortunately, the said issue was never sought to be framed and pressed by the defendants/appellants, either before the learned trial Court by invoking the provision contained under Order 14 Rule 5 of the Code of Civil Procedure. Hence, for the first time, the said new issue involving appreciation of fact cannot be raised at second appellate stage, more particularly, when the attention of the learned

trial Court is not drawn for recording of its finding on the said issue at the initial stage itself. Not even this, even at the first appellate stage when the defendants/appellants have preferred the First Appeal in the pleadings though they have raised the plea of bar of under Order 1 Rule 8, even but before the learned Appellate Court too when the point of determination was being framed by the learned Appellate Court under Order 41 Rule 31, the defendants/appellants have never pressed in for the issue of permission from Civil Court under Order 1 Rule 8, hence inferences drawn by them in view of the implications of Order 1 Rule 8, hence this issue may not constitute as to be substantial question of law which is required to be answered by this Court for the first time, more particularly, when in Suit where decree of permanent injunction is being sought against an action of the individuals who are arrayed as defendants in Suit. The nature of decree sought in accordance with the plaint and allegations raised it was not decree in rem where the provisions under Order 1 Rule 8 would have been attracted. It was absolutely an individual claim against one another. Consequently, this substantial question of law is answered against the defendants/appellants.

13. In response to it, the learned counsel for the defendants/appellants had argued that even at the second appellate stage, the Second Appellate Court too, while exercising its powers under Section 100, may always invoke the provisions contained under Section 103 of the Code of Civil Procedure and can go into the question of facts or its determination. After having gone through the provisions of Section 103, as substituted by Act No. 104 of 1976, the same is quoted hereunder:-

“103. Power of High Court to determine issues of fact. – In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal. –

(a) which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or

(b) which has been wrongly determined by such Court or Courts by reason of decision on such question of law as is referred to in section 100.”

14. The Legislature has used the word “may”. That means it is an exclusive prerogative of the Second Appellate Court to determine an issue which is necessary for disposal of the second appeal, and only when the second appellate Court determines it to be necessary, its’ not as of right which could be pressed and claimed to be pressed by party who has lost from both the courts concurrently. 15. The learned counsel for the defendants/appellants had made reference to Section 103 of the Code of Civil Procedure in order to overcome the embargo of attracting Order 1 Rule 8 for the first time at the second appellate stage by taking shelter to the provisions contained under Section 103 of the Code of Civil Procedure which is quoted above. Section 103 of the Code of Civil Procedure has to be read in precision, the power which has been given to the Second Appellate Court to determine the question of fact which is necessary for an adjudication of Second Appeal, apart from the fact that it is absolutely at the discretion of the Second Appellate Court but what would be relevant to invoke Section 103 is that there has had to be sufficient material on record before the Second Appellate Court to determine the issue and that issue should be necessary for the disposal of the Appeal. Obviously herein when the issue pertaining to attracting Order 1 Rule 8 of the CPC was not pressed either by invoking order 14 Rule 5 or under Order 41 Rule 31 of the Code of Civil Procedure, it would tantamount that there was no material placed by the defendants/appellants before the courts below to substantiate their case in the light of the provisions contained under Section 103 of the Code of Civil Procedure to stress on the implications of Order 1 Rule 8. Even here, at the second appellate stage too, except an oral assertion an argument under shelter of Section 103 of Code of Civil Procedure, without any material has been placed by the defendants/appellants to substantiate their case. 16. The circumstances, under which the provisions of Section 103 of CPC could be made applicable and exercised by the High Court, is only when the core issue involved in the case though ispressed by party before the Courts below but has not been decided

by the trial Court or the First Appellate Court.Meaning thereby, the essentiality is that the issue was pressed before the learned trial Court and was not considered and that there has had to be material relevant for consideration or deciding the issue already on record. If the same is lacking then for the first time the said issue cannot be agitated before the learned Second Appellate Court. The aforesaid ratio has been propounded by the Hon’ble Apex Court in judgement as reported in (2010) 13 SCC 216, Municipal Committee Hoshiarpur Vs. Punjab State Electricity Board.

“24. The powers under Section 103 C.P.C. can be exercised by the High Court only if the core issue involved in the case is not decided by the trial court or the appellate court and the relevant material is available on record to adjudicate upon the said issue. (See:Haryana State Electronics Development Corporation Ltd. & Ors. v. Seema Sharma & Ors., (2009) 7 SCC 311)

25. Before powers under Section 103 C.P.C. can be exercised by the High Court in second appeal, the following conditions must be fulfilled:

(i) Determination of an issue must be necessary for the disposal of appeal;

(ii) The evidence on record must be sufficient to decide such issue; and

(iii) (a) Such issue should not have been determined either by the trial court, or by the appellate court or by both; or

(b) such issue should have been wrongly determined either by trial court, or by the appellate court, or by both by reason of decision on substantial question of law.

If the above conditions are not fulfilled, the High Court cannot exercise its powers under Section 103 CPC.

26. Thus, it is evident that Section 103 C.P.C. is not an exception to Section 100 C.P.C. nor is it meant to supplant it, rather it is to serve the same purpose. Even while pressing Section 103 C.P.C. in service, the High Court has to record finding that it had to exercise such power, because it found that finding(s) of fact recorded by the court(s) below stood vitiated because of perversity. More so, such power can be exercised only in

exceptional circumstances and with circumspection, where the core question involved in the case has not been decided by the court(s) below.

27. There is no prohibition on entertaining second appeal even on question of fact provided the Court is satisfied that the findings of fact recorded by the courts below stood vitiated by non-consideration of relevant evidence or by showing an erroneous approach to the matter i.e. that the findings of fact are found to be perverse. But the High Court cannot interfere with the concurrent findings of fact in routine and casual manner by substituting its subjective satisfaction in place of that of the lower courts. (Vide: Jagdish Singh v. NatthuSingh, AIR 1992 SC 1604;Karnataka Board of Wakf v. Anjuman- E-Ismail Madris-Un-Niswan, AIR 1999 SC 3067; andDinesh Kumar v. Yusuf Ali, AIR 2010 SC 2679).

28. If finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then the finding is rendered infirm in the eyes of law. If the findings of the Court are based on no evidence or evidence which is thoroughly unreliable or evidence that suffers from the vice of procedural irregularity or the findings are such that no reasonable person would have arrived at those findings, then the findings may be said to be perverse. Further if the findings are either ipse dixit of the Court or based on conjecture and surmises, the judgment suffers from the additional infirmity of non-application of mind and thus, stands vitiated. (Vide:Bharatha Matha & Anr. v. R. Vijaya Renganathan& Ors., AIR 2010 SC 2685)

46. If we consider the case in the totality of the circumstances involved herein, we are of the considered opinion that the trial court as well as the first appellate court had considered all factual and legal issues involved in this case. While deciding the case, the courts below had appreciated the relevant evidence including the chart prepared and so heavily relied upon by the respondent-Board in correct perspective. As the Board did not install check meter, the readings shown by the meter after correction of the connection could not be held to be

correct. Subsequent to the correction, the readings had not been regular. Thus, the revised bill could not be held to be showing the correct quantity of energy actually consumed by the appellant. In such fact-situation, there was no occasion for the High Court to decide the second appeal without framing the substantial question of law and it was not case which could warrant consideration under Section 103 C.P.C. Thus, the judgment and decree impugned are liable to be set aside.”

17. In the said judgement, the Hon’ble Apex Court has held that for Second Appellate Court too can invoke Section 103, the following points are primarily to be considered by the Second Appellate Court while doing so:-

(1) The determination of an issue must be necessary for the disposal of the case.

(2) There must have been evidence on record which should be sufficient to decide the issue, the material on record here would mean the material as placed in relation to the said issue before the trial Court or before the First Appellate Court.

(3) Such issue should have been determined should not have been determined either by the trial Court or by the Appellate Court despite of having been pressed by the party to the proceedings, and lastly;

(4) The said issue though pressed has been wrongly determined by the trial Court or by the Appellate Court.

18. None of the conditions, as envisaged by the aforesaid judgement of the Hon’ble Apex Court is available for consideration of the argument as extended by the learned counsel for the defendants/appellants with regard to the impact of Order 1 Rule 8 which has been sought to be pressed in the light of the provisions contained under Section 103 of the Code of Civil Procedure and thus this Court is of considered view that the same cannot be raised over here at the second appellate stage, more particularly, when the issue No. 1 pertaining to the maintainability of the proceedings of the suit already stood decided by the learned trial Court as preliminary issue in the light of the provisions contained under Section 85 of the Waqf

Act, 1955 vide its order dated 03.03.2004. Hence, this question is answered in negative and against the defendants/appellants. 19. For the reasons which has been assigned above apart from that the defendants/appellants despite of being conscious, the defendants/appellants have on their own, voluntarily chosen not to raise an issue of Order 1 Rule 8, under the garb of it, the defendants/appellants cannot have the liberty to raise it for the first time at second appellate stage have shelter to the provisions contained under Section 103 of the Act, which is not mandatory in nature but rather directory, as it is absolutely the prerogative of the second appellate Court to exercise powers under Section 103 CPC subject to the fulfillment of the condition provided under Section 103 of the Code of Civil Procedure.

20. The next argument which has been raised by the learned counsel for the defendants/appellants is pertaining to the provisions contained under Section 85 of the Waqf Act, which is already quoted above bars the institution of the proceedings before the learned Civil Court.

21. The stress which has been placed by the learned counsel for the defendants/appellants during the course of the argument is on the word “any dispute” which has been referred under Section 85 of the Waqf Act. The ambit of the word used as any dispute cannot be widened to imbibe within itself relief of decree of permanent injunction, as sought by way of decree by the plaintiff which does not involved in it’s relief of declaration of title in any manner in relation to waqf immovable property in any manner whatsoever even if the plaint and written statement are considered, this Court is of the view its only simplicitor decree of prohibition from an act of interference by the defendants which is in question for consideration. 22. The plea of bar of Section 85, will also not be available to the defendants/appellants now in the instant case for the reason that when the learned trial Court framed issue no. 1 pertaining to the jurisdiction of the Civil Court to entertain the proceedings and the same had already been decided the Issue No. 1 as preliminary issue,

which stood decided by the learned trial Court by its order dated 03.03.2004, which was involving decision on an issue of tenability of proceedings and it would fall to be within the ambit of the definition of term, “case decided” as it was deciding the issue of competence of the Civil Court to try the suit of the nature in question. Once if that be so, the order holding that the Civil Court will have the jurisdiction to decide the controversy in question ought to have been challenged by the defendants/appellants before the competent court at the initial as it was argued by the defendants/appellants even before this Court even on 30.01.2019, which makes reference of revisional order, in fact, there is no such revision preferred by defendants/appellants there is no material to show revision was filed. Having not done so, and having acceded to the order dated 03.03.2004, without questioning it in revision the question of jurisdiction otherwise cannot now, be agitated by invoking provisions contained under Section 85 of the Waqf Act, 1955 which altogether entail different interpretation which involves decision with regard to question of title in relation to waqf property. More particularly, when defendants/appellants had after the order dated 03.03.2004 on preliminary issue had entered the suit on merits. 23. Even otherwise also, it is settled law, and needs no further venture that the question of title in Suit involving decree of injunction is only incidental. Any decision attaching or having an element of declaration rendered in suit for permanent injunction will not be treated as to be an ultimate declaration in relation to right of party to the proceedings. Consequently, this argument too in relation to the embargo being created by Section 85 of the Waqf Act will not be attracted in the instant case. 24. According to the findings which has been recorded by the learned trial Court, as well as by the learned Appellate Court on the issues as framed therein, none of the issues either under Order 14 Rule 5 or under Order 41 Rule 31 was sought to be framed pertaining to the Suit being instituted in representative capacity. Even at the appellate stage too, when the learned Appellate Court was framing the point of

determination by invoking the provisions under Order 41 Rule 31, then too the defendants/appellants have failed to invoke the provisions contained under Order 14 Rule 5, and had never sought to get point of determination framed in relation to the provisions contained under Section 85 of the Waqf Act or under Order 1 Rule 8 hence they cannot raise it now at the second appellate stage.

25. Another argument which has been extended by the learned counsel for the defendants/appellants is pertaining to the impact of provision contained under Section 67 of the U.P. Re-organization Act, 2000. Section 67 of the Re-organization Act reads as under:-

“67. General provision as to statutory Corporations.-

(1)Save as otherwise expressly provided by the foregoing provisions of this Part, where any body corporate constituted under Central Act, State Act or Provincial Act for the existing State of Uttar Pradesh or any part thereof has, by virtue of the provisions of Part II, become an inter- State body corporate, then, the body corporate shall, on and from the appointed day, continue to function and operate in those areas in respect of which it was functioning and operating immediately before that day, subject to such directions as may from time to time be issued by the Central Government, until other provision is made by law in respect of the said body corporate.

(2)Any directions issued by the Central Government under sub- section (1) in respect of any such body corporate shall include direction that any law by which the said body corporate is governed shall, in its application to that body corporate, have effect subject to such exceptions and modifications as may be specified in the direction.”

26. It pertains to the savings clause as made applicable in relation to the statutory corporations. The word “corporation” incorporated under Section 67 of the U.P. Re-organization Act, 2000 will not include within its ambit, the Waqfs as the reference of Corporation under Section 67 of the Reorganization Act will relate to the Corporation included in it, which according to the plaintiffs/respondents happens to be Waqf registered under the provisions contained under the Waqf Act, 1995. As far the implications of Section 67 of the U.P. Re-organization Act, 2000 is

concerned, once it deals with, “the statutory corporations”, it would only imbibe within its ambit the corporations which are created and registered under the Companies Act, and where the State as defined under Article 12 of the Constitution of India has got its stakes involved. Section 67 of the U.P. Re-organization Act, 2000 will not yet again be attracted for another reason that the defendants/appellants had never sought to attract the attention of either of the Courts and get the findings returned on the implications of Section 67 of the U.P. Re-organization Act, 2000. 27. The learned counsel, while addressing this Court with regard to the issue deriving the implications of Section 67 of the U.P. Re-Organization Act, 2000 by treating the Waqfs, created under the Special Statute i.e Waqf Act, 1955 will, under no set of circumstances can be treated as to be Corporation for the reason that the Corporation would mean Corporation which has been statutorily created under the provisions of the Central or the State Act and it definitely excludes the Waqf(s), which is registered under the Waqf Act, 1955. That is why the Hon’ble Apex Court, in its judgement as reported in AIR 1973 SC 1081, Shri Ambica Mills Ltd. No. 1 v. Textile Labour Association, Ahmedabad has held out that the Corporations would mean statutory corporations, established under the Companies Act of 1956. It is Body constituted having separate entity and has got juristic status in the eyes of law. That means to say it would always relate back to an artificial person established by law prescribing perpetual successionand certain rights which is conferred on neutral persons, who constitute its. Obviously, the controversy in question as raised does not include any such element where the waqf(s) could be given the status of Corporation under Section 67 of the U.P. Re-Organization Act, 2000, hence this question too is answered against the defendants/appellants. 28. Consequently, this Court is of the view that the Second

28. Consequently, this Court is of the view that the Second Appeal is concluded by finding of facts, and it does not involved any substantial question of law as it has been pleaded by the defendants/appellants in the Memorandum of Appeal which is

required to be answered by this Court. Consequently, the Second Appeal fails and is hereby dismissed. 29. However, there would be no order as to cost.

Mahinder/

(Sharad Kumar Sharma, J.)

26.02.2019