ORDER
Hiremath, J.
1. The present appellant was the second defendant in the original suit before the trial Court of the District Judge at Chickmagalur in which the plaintiffs-respondents 1 and 2 had sued the appellant as well as State Government, the Commissioner for Religious and Charitable Endowments, Karnataka and 5th respondent Sajjada Nashin for the reliefs stated in the plaint viz., for declaration that the suit institution is a religious institution being a holy place of worship belonging to Hindus and Mohammedans alike, that the same is not a Wakf property and inclusion of the plaint schedule property by the appellant in the list being improper and illegal does not affect the rights of plaintiffs or Hindus to the said properties and that since the appellant has no right to control or manage the said institution the administration, management and control ofthe schedule property be retransferred from the control of the appellant to that of the 3rd defendant -- the Commissioner. They further prayed for a permanent injunction restraining the appellant from interfering with the rights of the plaintiffs or Hindus as aforesaid. That was a representative suit on behalf of Hindu community people after observing the necessary formalities required in respect of representative suit. The facts briefly stated are that there exists Sri Guru Dathathreyaswamy Peeta in Inam Dathathreya Peeta village, Jaagru Hobli in Chickmagalur taluk. This 'Peeta' is situated in Inam Dathathreya Peeta village. It is also referred to as 'Peeta of Rababudan Giri'. It has an unique distinction of having devotees among Hindus as well as Mohammadans. Hindus worship the Peeta as Sri Guru Dathatreya Swamy Peeta and Mohammadans as Darga of Dada Hayath Khalander. It is however recognised by the Government as Guru Dathathreya Bababudan Swamy's Darga and was a major Muzarai institution until the same was included in the list of Wakfs prepared and published by the Board of Wakfs.
2. It was under the control and management of the 3rd defendant under the Mysore Religious and Charitable Institutions Act, 1927. It is an ancient once and held in high esteem both by Hindus and Mohammadans. The Paduka are reputed to be of Shri Guru Dathathreyaswamy and Nandadeepa (eternal light) is kept for the purpose of Pooja. Hindus offer worship or pooja by offering flowers and coconuts and burning holy camphor. The annual Gurus is also held at the Peeta but not according to the Mohammedan Calendar. It is held three days after the Holi Festival according to the Hindu Calendar. During Gurus Gandha of the Holy Sandal Wood Paste is taken in procession from Athigundi to Peeta accompanied by Hindu Musical Instruments like Kombu, Kahale and Tamate. The Head of the Peeta is a person professing Islamic faith and is called as Sajjada. But the succession to the office is regulated hy the rules governing the succession of Guru to Mult. Even Sajjada recognised as Guru isexempted from personal appearance in the Civil Courts. Thus the plaintiffs emphasised that from the narration of the custom referred to above, the institution is not exclusively a Mohammadan institution but is one belonging to Hindus and Mohammadans alike.
3. These being the facts, in the year 1975 the 3rd defendant passed an order directing the Tahsildar, Chickmagalur in handover possession and control of Dathathreya Swamy Peeta to the 2nd defendant under the impression that it is a Wakf. That was in pursuance of an enquiry which was held by the 1st defendant in or about the year 1973. The Tahsildar, Chickmagalur had sought instructions about the plaint schedule institution from the Government, but it appears he did not receive any reply. After the order referred to above was passed, the 2nd defendant-appellant in March, 1976 seized Paduke and Nandadeepa which act deprived the devotees of offering or performing Pooja. A representation of the leaders of Chikmagalur town to the Deputy Commissioner brought about settlement and by that settlement the status quo was directed to be maintained. This is how the Paduke and Nandadeepa were restored to their original position. After the Wakf Act came into force in the year 1964 the institution was notified as Wakf and this came to the knowledge of the plaintiffs only after the property was transferred to the 2nd defendant-appellant. They maintain that the inclusion of the plaint Peeta as Wakf property in the list of Wakfs without proper enquiry and against the requirements of law is improper and illegal and beyond jurisdiction of the 2nd defendant. Ghouse Mohiuddin styled as Muthavalli had never acted as Muthavalli or Sajjada or Guru of the said Peeta but it was the 4th defendant alone who was the Sajjada or Guru and he is entitled to act as such. Even after the list was published it was not acted upon and the Peeta was under the control and management of the 3rd defendant till 1975. When this came to the notice of the plaintiffs, they got issued notice under Section 80, C.P.C. to all the defendants on 8-10-1976 and in spite of defendants being served duly noreply was sent. It is stated that in March, 1976 the cause of action arose for the plaintiffs to file this suit when they came to know the notification of 1964. Defendants 2 and 4 viz., the present appellant -- Wakf Board and the Sajjada Nashin respectively did not file any written statement and it appears they did not participate during hearing as well by cross-examining the witnesses. Defendant No. 3 however filed written statement contending that the allegations in the plaint are substantially true but with regard to the annual Gurus he has stated that it is Muslim custom ceremony. Though it is done according to Hindu calendar it is not shown anywhere as a Hindu ceremony. However, both Hindus and Muslims pay visit to the Peeta and offer prayers at the time of Gurus. He admits about the Wakf Board seizing the Paduke and Nandadeepa in the year 1975 and adds that on 10-3-1976 an emergent meeting was held by the Deputy Commissioner, Chickmagalur District on the presence of both Hindus and Muslims of Chickmagalur town and particularly concerning the seizing and sealing of Paduke and Nandadeepa and in that meeting the Tahsildar was asked to verify the facts and report. It was however reported that Paduke were in the sealed box but not the Nandadeepa. They were restored to their original condition. The rest of the allegations with regard to the handing over of the properties to the Wakf Board are not disputed. It is contended that because the suit is not filed within one year from the date of publication of list of Wakfs it is barred by time.
4. The trial Court addressed itself to the following issues :
(1) Do plaintiffs prove that 'Guru Dattatreya Peeta' is a Religious Institution belonging to both the Hindus and Mohammedans alike?
(2) Do defendants 1 and 3 prove that the said Peeta is included in the list of Wakfs and that it is a Wakf property?
(3) Do they prove that the Civil Court has no jurisdiction to try the suit?
(4) Do they prove that the suit is barred by limitation?
(5) Do they prove that the Court-fee paid is sufficient?
(6) Are plaintiffs entitled to the declaration and injunction sought?
(7) To what reliefs are the parties entitled?
Issues 1, 2 and 6 were answered in the Affirmative and Issues 3 to 5 in the Negare and a consequent decree in favour of plaintiffs followed.
5. The Wakf Board-2nd defendant challenging this decree has mainly contended that the suit is barred by time as it was not filed within one year as required under Sec. 6 of the Wakf Act, 1954 ('The Act'for short hereafter) and secondly, that it is bad for non-issue of notice under Sec. 56 of the Act. It was further contended that in view of undisputed facts that both Hindus and Muslims visit this Darga or Peeta and offer worship in spite of the same were included in the list of Wakfs their rights are not at all affected materially. It may be mentioned here that the allegations in the plaint that the Peeta or Darga is visited by persons of both community and that they have got right in the institution was not challenged by the appellant by raising any contentions to the contrary. Though there was representation of the appellant and sufficient time was granted for filing statement ultimately nothing was filed.
6. In this appeal the following points arise for determination :
(1) Whether the suit is barred by time as the same is not filed within one year from the date of the publication of the list of Wakfs by the appellant?
(2) Whether the suit is bad for non-compliance of Sec. 56 of the Act?
(3) Whether the Court below was right in directing that the management be given back to the 3rd defendant as prayed for in the suit?
7. Section 6(1) of the Act relates todisputes regarding the Wakfs. It reads as follows :
'6(1) If any question arises whether a particular property specified as Wakf property in a list of Wakfs published under subsection (2) of Sec. 5 of Wakf property or not or whether a Wakf specified in such list is a Shia or Sunni Wakf, the Board or the Muhawalli of the Wakf or any person interested therein may institute a suit in a Civil Court of competent jurisdiction for the decision of the question and the decision of the Civil Court in respect of such matter shall be final;
Provided that no such suit shall be entertained by the Civil Court after the expiry of one year from the date of the publication of the list of Wakfs under sub-section (2) of Section 5.
Provided further that in the case of the list of Wakfs relating to any part of the State and published or purporting to have been published before the commencement of the Wakf (Amendment) Act, 1969, such suit may be entertained by the Civil Court within the period of one year from such commencement.'
8. The contesting respondents herein have contended that they are the persons interested in the institution and they have filed the suit in representative capacity on behalf of the Hindus. They contend that it is not at all a Wakf and the appellant was not justified in including it in the list of Wakfs. The trial Court in this behalf referred to a decision of the Supreme Court in the case of Wakf Board of Muslims, Rajasthan v. Radha Kishan, : [1979]2SCR148 and extracted the observations of the Supreme Court at para 18 of its judgment. The relevant observations are as follows :
'It follows that where a stranger who is a non-Muslim and is in possession of a certain property, his right, title and interest therein cannot be put in jeopardy merely because the property is included in the list. Such a person is not required to file a suit for a declaration ofhis title within a period of one year; the special rule of limitation laid down in proviso to sub-sec. (1) of Section 6 is not applicable to him. In other words, the list published by the Board of Wakfs under sub-sec. (2) of Sec. 5 can be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises.'
It was pointed out by the Supreme Court by referring to the provisions of the Wakf Act and also decisions cited therein at page 298 that the word 'therein' appearing in subsection (1) of Section 6 must, therefore, mean any person interested in a Wakf as defined in Section 3(h). The object of sub-section (1) of Section 6 is to narrow down the dispute between the Board of Wakfs, the mutawalli and the person interested in the Wakf, as defined in Section 3(h). They further observed that it could never have been the intention of the legislature to cast a cloud on the right, title or interest of persons who are not Muslims. If a person who is non-Muslim whether he be a Christian, a Hindu, a Sikh, a Parsi or of any other religious denomination and if he is in possession of a certain property his right, title and interest cannot be put in jeopardy simply because that properly is included in the list published under sub-section (2) of Section 5. In para 34 it was also pointed out that the purpose of Section 6 is to confine the disputes between the Wakf Board, the Mutawalli and a person interested in the Wakf.
9. It is now contended on behalf of the appellant that the plaintiffs herein are the persons interested in the Wakf as contemplated under Sec. 3(h) of the Act and therefore, they were duty bound to file the suit within one year from the date of publication of the list of Wakfs under Section 6 of the Act. In our view, the Supreme Court in analogous cases discussed at length with reference to the various decisions and observed that a suit of this nature cannot be governed by Sec. 6 of the Act. The trial Court was therefore justified in placing reliance on the decision and to find that the suit is not barred by time. We donot find any reason to come to a different conclusion. Accordingly, we find that the suit is not barred by time.
10. The next point raised is one of notice under Sec. 56 of the Act. There is averment in the plaint that notice under Sec. 80, C.P.C. was issued to the defendants 1 to 4. Sec. 56 of the Act relating to notice of suits by parties against the Board is pari materia to Sec. 80, C.P.C. It is stated no suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any rules made thereunder until the expiration of two months next after notice in writing has been delivered to or left at the office of the Board, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left. Ex. P-7 is a copy of the notice under Sec. 80 CPC and addressed to all the defendants. Virtually all the allegations in the plaint find place in this notice. Thus with regard to the relief, the cause of action, the nature of the claim the notice fulfils the requirement of Sec. 56 of the Act. There is an averment in the plaint that the notice has been so issued. Here again, as already stated there was no contention of the appellant that the suit is bad for non-issue of notice under Sec. 56 of the Act. Still that being a statutory notice it is for the Court to consider whether such a notice as required under Section 56 of the Act was issued to the appellant at all. The argument of the learned counsel for the respondents-plaintiffs that no such notice was required to be issued cannot be countenanced for the simple reason that if the plaintiffs were to challenge the act of the Wakf Board-appellant done in pursuance of the provisions of the Act, then, whatever is the relief claimed it is mandatory that notice as required under S. 56 has to be issued. The trial court did not advert to this aspect perhaps for the reason that there was no contention raised by the affected party viz., the present appellant and there was no issue on it. However, as Sec. 56makes it obligatory that the plaint should make an averment thai such a notice has been issued and in view of the mandatory requirement of issuance of such notice, it was necessary for the court to consider this aspect.
11. As already stated the purpose of the notice is to inform the Wakf Board that a suit of the nature that the plaintiffs were contemplating would be filed against it for the reliefs claimed therein. It may he stated that the purpose of issuance of such notice is only to inform the affected party that if necessary and found desirable it may consider if the reliefs that the plaintiffs are claiming in the suit could be granted without plaintiffs approaching the court. If all the requirements of S. 56 of the Act are fulfilled whether non mention of the provisions of law in the notice viz., Sec. 56 of the Act would make the notice not according to law is a point. In this behalf, the observations of the Supreme Court in the cast? of State of Punjab v. Geeta Iron & Brass Works Ltd., : [1978]1SCR746 may be noted for understanding the object of such a notice. Their Lordships held that a statutory notice of the proposed action under Sec. 80 CPC is intended to alert the State to negotiate a just settlement or atleast for the courtesy to tell the potential outsider why the claim is being resisted. A litigative policy in the State involves settlement of Governmental disputes with citizens in a sense of conciliation rather than in a fighting mood. Indeed it should be a directive on the part of the State to empower its law officer to take steps to compose disputes rather than continue them in Court. This exactly is the object and purpose of giving a notice before suit. In our view though 'Section 80 CPC' has been quoted as a provision under which this notice has been issued it is sufficient and substantial compliance of requirement of S. 56 of the Act and the object was to put the appellant on its alert to negotiate a just settlement or at least to have the courtesy to tell the potential outsiders why the claim if any was being resisted. It is undisputed that the appellant did not think it necessary to send any reply to thisnotice. In our view, therefore when there is substantial compliance of the requirement of S. 56 of the Act mere non-mentioning of the provision in the notice that it was one under S. 56 of the Act does not affect the very institution of the suit. This notice was dated 8-10-1976. The suit was filed on 13-12-1976. Our attention was invited to S. 80(3) CPC and sub-sec. (3) was added by the amending Act of 1976. However, it may be noted that the legislature recognised the object and purpose of issuance of such notice and enacted by introducing sub-sec. (3) that no suit instituted against the Government or against a public officer in respect of any act purporting to be done by an officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice (a) the name, description and residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1); and (b) the cause of action and the relief claimed by the plaintiff had been substantially indicated. Thus the legislature thought it fit that this sub-section (3) finds place on the statute book so that on technical errors the suit should not fail. If the object of providing for statutory notice is considered in the light of the decision of the Supreme Court in the case of M/s. Geeta Iron & Brass Works Ltd. (supra), it must be said, the same is not by substantial compliance with requirement of Sec. 56 of the Act. The suit therefore need not fail on this technical error.
12. Now turning to the relief it is contended that after a survey as made by the Wakf Board as required under the Act the institution came to be included in the list of Wakfs published by the appellant and therefore even if the Hindus also have a right to visit the Peeta and offer their Pooja they can do so without any hindrance. The trial court was not justified in granting the relief of retransferring the institution to the Registermaintained by the 3rd defendant Commissioner. The nature of the institution finds mention in the Mysore Muzrai Manual, 1934 at page 571. It says : --
'Guru Dathatreya Bababudan Swamy's Darga on the Bababudan Hills in the Chik-magalur Taluk is an ancient and important institution held in high esteem by Hindus and Mohammadans alike and is resorted to by large members of pilgrims from all pans of India. It is presided over by a Sajjada whose succession to the office is regulated by the rules governing the succession of GGurus to Mathas.
The Darga is endowed with the inam villages of Suraguppe, Dattatreya Peeta and Jannath Nagara. Owing to the expansion of the Railway system and the opening out of a decent road to the very gate of the Peeta, the number of pilgrims to the shrine increased very much, and as the income was found insufficient a cash grant of Rs. 1800 a year was sanctioned in recent years.'
13. This description of the shrine very much concurs with the averments in the plaint. The Wakf is defined in S. 3 (1) of the Act to mean the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable. 'Wakf' means any person making such dedication. It is necessary to note in this context that it was not contended by the appellant that this institution fulfils the requirements in the definition of a 'Wakf' and it was nowhere contended atleast by the contesting defendants that it came into existence by virtue of dedication by a Muslim. Unless the institution falls within this definition of 'Wakf' it would not be proper to contend that because it is included in the list of Wakfs, the Board of Wakf should continue to manage the institution. In our view unless there is averment and proof that the institution is a Wakf, the appellant cannot contend that its inclusion in the list of Wakfs is unassailable and hence the right to managevests in it. The very purpose of the Wakf Act isto provide for better administration andsupervision of Wakfs as stated in the pre-amble to the Wakf Act. Therefore when theappellant did not contend in the court belowthat it is a Wakf and there is no proof that it isa Wakf the appellant cannot in this appealcontend that the decree of the trial court indirecting retransferring of the institution asprayed in the plaint to the Register main-tained by the 3rd defendant cannot besustained.
14. We cannot part with this Judgment without placing on record our happiness and appreciation of the spirit of brotherhood among the Muslims and Hindus who offer prayer at this Darga or Peeta. The drab slogan we hear elsewhere in the country day in and day out that Ram and Rahim or Ishwar and Allah is one without practising the faith in its true spirit finds its translation into concrete action and practice in this holy shrine. What is more heartening and commendable is the attitude of the 4th defendant Sajjada who is said to be a Muslim not to challenge the averments of his Hindu brethern the plaintiffs that this shrine belongs to both Hindus and Muslims. Equally heartening is the spirit of Hindu plaintiffs in not claiming the shrine as exclusively belonging to the Hindus for the reason that there are 'Paduke' and 'Nandadeepa' maintained and protected since ancient time and it is also known as 'Guru Dathatreya Peeta'. It is only the Wakf Board that wants to lay claim on it taking advantage of its own unilateral acts in 1964 without the very Muslim community people offering prayer since hundreds of years making any claim on it as their exclusive shrine. The suit institution 'the Guru Dathatreya Bababudan Swamy' stands aloft as a shining example of true secularism in this world divided so sharply on narrow caste, communal or religious considerations.
We do not find any merit in this appeal. The same is liable to be dismissed and it isdismissed with costs of the respondents 1 and 2.
15. Appeal dismissed.