S.U. Khan, J.@mdashA suit being S.C.C. Suit No. 4 of 1973 was filed on behalf of Managing Committee of Masjid Nawab Sahab Kha and its Secretary (respondent Nos. 4 and 5 in the instant writ petition) against Mohd, Anwar (respondent No. 6 in the instant writ petition). In the said suit plaintiffs claimed themselves to be owner landlord of the shop in dispute and described Mohd. Anwar the defendant of the said suit as their tenant in the shop in dispute. The said suit was decreed as ex-parte on 4.5.1973. Thereafter, Abdul Rashid Lutfi (respondent No. 3 in the instant writ petition) filed regular suit being O.S. No. 176 of 1973 before Civil Judge, Bulandshahr against plaintiffs and defendant of the earlier suit and Mohd. Yameen and Abdul Hamid (respondents No. 6 and 7 in the instant writ petition) standing therein that he along with Abdul Hamid, defendant No. 5 of the said suit (respondent No. 7 in the instant petition) was owner of the shop in dispute and Mohd. Yameen defendant No. 4 of the said suit was their tenant in the shop in dispute since 1961 and that the decree passed in S.C.C. Suit No. 4 of 1973 was collusive as neither plaintiff of the said suit was landlord of the shop nor defendant of the said suit Mohd. Anwar was the tenant of the said shop and that the decree passed therein was sham. The relief sought in the said suit was for possession. Even though no relief for cancelling the decree passed in Suit No. 4 of 1973 was sought in O.S. No. 176 of 1973 however, almost all the allegations in the plaint related to the decree passed in the earlier suit. O.S. No. 176 of 1973 was decreed on 19.8.1976 against which appeal was filed which was dismissed on 24.4.1978 by IV-Addl. District Judge, Bulandshahr, Unfortunately the said judgment have, not been annexed either alongwith the writ petition or counter-affidavit. The decree passed in O.S. No. 176 of 1973 was put in execution, registered as execution case No. 45 of 1978. In execution application U.P. Sunni Central Waqf Board, Lucknow filed objections u/s 47, CPC. In the said objections it was stated that by virtue of Section 66 of U.P. Sunni Waqf Act, 1960, the decree which was sought to be executed was null and void and not executable as no notice to Waqf Board was issued and that Waqf Board came to know about the decree passed in O.S. No. 176 of 1973 on 28.6.1978. The objections were dismissed by Civil Judge, Bulandshahr through order dated 12.7.1978. The petitioner filed a revision against the same being Revision No. 84 of 1978 which was also dismissed by District Judge, Bulandshahr through judgment dated 28.8.1981. This writ petition is directed against the aforesaid judgments and orders.
2. Both the Courts below quoted Section 66 of the U.P. Sunni Waqf Act, 1960. The said Section is also quoted below:
"66. Notice of Suits, etc. by Court.--(1) In every suit or proceeding relating to the title to Waqf property or the right of a Mutwali, the Court shall issue notice to the Board at the cost of the party instituting such suit or proceedings.
(2) Whenever any Waqf Property is notified for sale in execution or a decree of a Civil Court or for the recovery of any revenue, can, rates or taxed due to the Government or any local authority, notice shall be given to the Board by the Court, Collector or other person under whose order the sale is notified.
(3) In the absence or a notice under Sub-section (1) any decree or order passed in the suit or proceeding, shall be declared void if the board, within one month of becoming aware of such suit or proceedings, applies to the Court in this behalf.
(4) In the absence or a notice under Sub-section (2), the sale shall be declared void, if the Board within one month of its becoming aware of the sale applies in this behalf to the Court or other authority under whose order the sale was held."
3. Similarly under the Waqf Board Act, 1995 same provision has been provided for u/s 90. The first suit i.e. S.C.C. Suit No. 4 of 1973 was filed by the Waqf and was based on the title of the Waqf over the property in dispute. In the second suit (O.S. No. 176 of 1973) the judgment passed in earlier suit was challenged and it was asserted that the property did not belong to the waqf. Para 3 of the plaint translated in English reads as under:
"that the defendant No. 1 (i.e. Waqf) is not owner of the shop in dispute neither he has got any right in the shop in dispute and defendant No. 3 is not tenant of the shop."
4. The clearly shows appellant that in O.S. No. 176 of 1973 a clear cut dispute relating to the title to waqf property was involved. Hence it was mandatory to issue notice to the Waqf Board. In the instant case Revisional Court in Para 7 has held, "in the instant case it was held that neither there was any waqf nama nor any cogent evidence to show that the disputed land was actually waqf property of waqf masjid. Therefore, it is not at all necessary for this Court to issue notice to the Waqf Board as laid down in Section 66."
5. In the suit in question validity of the decree passed in the earlier suit based upon title of the waqf to the property in dispute was directly and substantially in issue. Hence, it could not be said that question of title of waqf property was not involved.
6. The proceeding of the suit (O.S. No. 176 of 1973) related to the title to waqf property and the right of the mutawalli (Managing Committee) for the additional reason that waqf (God Almighty) through managing committee and secretary of managing committee were made defendants in the suit.
7. Accordingly writ petition is allowed. Order passed by both the Courts below are set aside. Objections filed by the petitioner Waqf Board are allowed. Judgment and decree passed in O.S. No. 176 of 1973 is set aside. The trial Court is directed to re-hear and decide the said suit after hearing the petitioner. The proceedings of suit must be reinitiated when plaintiff/respondent No. 3 Abdul Rashid Lutfi files an application for the same and after issuing summons to the defendant of the said suit and U.P. Sunni Central Waqf Board.
