ALLADIN CHARITIES AND ZAKAT WAKF v. MOHAMMED SALEEM ALIAS MOHD. WAJID ALI AND ANOTHER

2026 INSC 1122 NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. OF 2026 (@ S.L.P. (Civil) No. 23573 of 2025)

ALLADIN CHARITIES AND ZAKAT WAKF ... APPELLANT(S)

VERSUS

MOHAMMED SALEEM ALIAS MOHD. WAJID ALI AND ANOTHER … RESPONDENT(S)

JUDGMENT

S.V.N. BHATTI, J.

1. Leave granted.

2. Respondent No. 1 filed O.S. No. 2204 of 2012 before the Court of the

VII Senior Civil Judge, City Civil Court at Hyderabad, seeking specific

performance of the Agreement dated 23.02.2001, said to have been executed

by Respondent No. 2. Respondent No. 2 remained ex parte, and on

18.03.2015, O.S. No. 2204 of 2012 was decreed. The terms of the Decree and

the schedule of suit property read as under:

Signature Not Verified

Digitally signed by SNEHA DAS “ Date: 2026.10.14 16:48:42 IST

1. That the suit of the plaintiff and the same hereby is Reason: decreed.

2. That the defendant do execute and register a sale deed in favour of the plaintiff in respect of the suit schedule property.

3. That plaintiff is at liberty to get the sale deed executed and register through the process of law.

4. That the plaintiff is also entitled for possession of the suit schedule property and

5. That the defendant do pay the plaintiff a sum of Rs. 10,428/- towards cost of this suit hearing his own costs of Rs. NIL.” xxx xxx

“ SCHEDULE OF PROPERTY All that the property Old Municipal NO. 634 (New Muncipal No. 21-1-1098/9/10/11 consisting of Shops situated at Rikabgunj, Pathergatii, Hyderabad admeasuring 373 sq. yards: NORTH; City Court Land (Presently Road) SOUTH: Passage to Pathergatti (Presently Road) EAST: City Court Land (Presently Road) WEST: Passage to Mosque of Mirde Munawar. (Presently Road) ”

3. Respondent No. 1, on 05.01.2016, filed E.P. No. 4 of 2016 seeking

delivery of physical possession of the suit property in the Decree dated

18.03.2015. Alladin Charities and Zakat Wakf, represented by its Managing

Trustee/Appellant herein, filed E.A. No. 94 of 2016, resisting execution of the

Decree dated 18.03.2015 in O.S. No. 2204 of 2012, as the stranger/Third

Party Objector. To appreciate the alleged distinct flow of title claimed by the

Decree Holder (“DHR”) and the Third Party Objector, a few circumstances

required for disposing of the Appeal alone are referred to beforehand for

convenience, and the objections raised by the Third Party Objectors through

Document No. 69 of 1353 Fasli are appreciated. Mohammed Abdul Qayyum

Sayeed, through the guardianship of Mohammed Abdul Ghafoor, sold a plot

admeasuring 375 sq. yards in favour of Ali Ahmed s/o Dawood Ahmed, father

of Respondent No. 2. The boundaries of the Sale Deed read as follows:

“East: Govt Land of City Court, West: Way and Mosque (Masjid) Mirde Munnawar, North: Land of City Court South: Way to Patherghatti. Note — This land has taken by Rabia Bi which was tenant of Yashwanth Rao Nekro, pattedar R/o Kacheguda by paying the rent of Rs 20/- for the plot 72 & 73 and having been in possession and enjoyment and having taken permission from the City Improvement Board got the same constructed and I have been in possession and enjoyment thereof. And now sold the same to meet my own need and requirement in favour of Dawood Ahmed.”

4. The said Ali Ahmed is said to have executed the Agreement of Sale in

favour of Respondent No.1 for a sum of Rs.8,00,000/- (Rupees Eight Lakhs),

said to have been paid in cash, in respect of the following property:

“All that land admeasuring 375 sq. yards consisting of present more than (41) Mulgies on both sides and structure on Pillars of Cellar, First Floor, and 2ns Floor in the middle of land shown in the plan attached herewith is bounded on the North By: City Civil Court South By Passage to Patherghatti. East By: City Court land and West By Passage to Mosque of Mirdhe Munnawar.”

Respondent No.1, on 06.12.2012, filed O.S. No. 2204 of 2012 for

specific performance of the Agreement of Sale dated 23.02.2001 and delivery

of possession, etc. On 18.03.2015, the Court decreed the Suit ex parte.

5. The Third Party Objector/Appellant claims right and title to the

property in its possession through a Farman Mubarak issued by the then

Nizam of Hyderabad. Through the Farman, the then Nizam is said to have

conveyed the land at Pattharghati, Hyderabad, to Khan Bahadur Ahmed

Alladin Nawab Ahmed Nawaz Jung Bahadur, the founder of the Trusts of the

Alladin family, to set up a Waqf for charitable purposes. On 06.06.1949, the

Muntakhab (Book of Endowments) described the property as the Mecca

Madina Building at Pathergatti, Hyderabad. On 23.09.1976, the Trust Deed

was executed covering an extent of Approx. 3151.51 square yards at

Rakibgunj, Pattharghati, Hyderabad in favour of the Appellant Trust.

6. According to the Third Party Objector, in a primary dispute under the

Waqf Act, 1995, the Chief Executive Officer, A.P. State Waqf Board, on

15.05.2000 declared that the property covered by Door Nos. 21-1-1098/9 to

11 was an integral part of present Municipal No. 21-1-1098. Subsequently,

in Writ Petition No. 9434 of 2000, the Court set aside the Order dated

15.05.2000 of the Chief Executive Officer, A.P. State Waqf Board. In that Writ

Petition, the High Court directed that possession be given to the Third-Party

Claimants, Hamid Ali and others. The Appellant filed Writ Appeal No. 983 of

2001, and the Division Bench, by Order dated 18.10.2001, allowed the Writ

Appeal. On 15.02.2002, Special Leave Petition (Civil) Nos. 2351-2352 of 2002

were filed by Hamid Ali and others against the Judgment in Writ Appeal No.

983 of 2001, which was dismissed. It is a matter of record that on 20.11.2003,

the A.P. Gazette Notification No. 47 Part II under the Waqf Act, 1995 was

issued, notifying Municipal No. 21-1-1098/1 to 8 and declaring seven

unnumbered Mulgies as property belonging to, or under the administrative

control of, the Appellant. The property, admittedly in the Appellant's

possession, is claimed as Waqf property, and the DHR also claims the same

property through Ali Ahmed. O.S. No. 59 of 2002, filed by Hamid Ali and

others against the Appellant for Municipal No. 21-1-1098/9 to 11, was

dismissed, and the Tribunal's view was confirmed in the Order dated

22.11.2011 in CRP No. 6275 of 2004 by the erstwhile High Court of Andhra

Pradesh at Hyderabad.

7. The Appellant filed E.A. No. 94 of 2016 resisting delivery of possession

of the property in the Appellant's possession to the DHR in execution of the

Decree dated 18.03.2015. For the view we are proposing to take, and after

hearing Mr. C. Aryama Sundaram and Mr. Basava Prabhu S Patil, learned

Senior Counsel, we have not, in detail, referred to the competing claims of

DHR and the Third Party Objector. The Executing Court, vide Order dated

29.01.2019, dismissed the Claim Petition for the following paraphrased

reasons:

A. The Petitioner failed to prove ownership of the specific schedule

property in the Execution Petition because Municipal Nos. 21-1-1098/9 to 11

were not explicitly listed in A.P. Gazette Notification No. 47 Part II, and the

Petitioner failed to place the Farman, Survey Commission Report, or

Managing Trustee authorisation on record.

B. The Petition under Order XXI Rule 58 of the Code of Civil Procedure,

1908 (“CPC”) is not maintainable because E.P. No. 4 of 2016 sought delivery

of possession, not attachment.

C. The Claimant failed to establish that the E.P. schedule property is

declared waqf property or that it is the same property as decided in O.S. No.

8. The Appellant challenged the Order dated 29.01.2019 in CCCA No. 94

of 2019 before the High Court for the State of Telangana at Hyderabad. By the

impugned Order, CCCA No. 94 of 2019 was dismissed. The reasons in the

impugned Judgment and the conclusions are summarised as under:

A. Habib Alladin/PW1 has not filed any document showing that the Trust

authorised him to file the Claim Petition. Once the Waqf Board directly

controls the property, the Managing Trustees have no locus standi to file the

Claim Petition.

B. Although PW1 stated that he claims the property under a Farman and

the Plan annexed to it, he did not produce either the Farman or the Plan.

C. No document has been filed to show that the Municipal Numbers

referred to by the DHRs are fabricated. On the other hand, he has admitted

that, as on date, the Municipal Nos. 21-1-1098/9 to 11 still exist in the

Municipal Record.

D. In the A.P. Gazette Notification, Municipal Nos. 21-1-1098/9 to 11 are

not explicitly mentioned. The said Notification, however, refers to seven

mulgies but does not mention Municipal Numbers. The Appellant failed to

submit any Waqf Survey Commission Report linking those mulgies to the E.P.

schedule property.

E. The Appellant also did not challenge Sale Deed No. 69 of 1353 Fasli.

The Decree Holder has a Sale Deed in his favour, executed through Court

process, whereas the Petitioner has not produced any document to prove that

the Suit Schedule Property, admeasuring 375 sq. yards, bearing Municipal

Nos. 21-1-1098/9 to 11, belongs to Alladin Charities and Zakat Wakf. Thus,

in the absence of any proof of title in his favour, the Appellant cannot succeed

in claiming the suit schedule property.

F. Order XXI Rule 58 of the CPC governs objections to attachment of

property. Since. E.P. No. 4 of 2016 was filed for delivery of possession, the

Claim Petition under Order XXI Rule 58 of the CPC was not maintainable. The

application ought to have been filed under Order XXI Rule 97 of the CPC.

Even otherwise, the Claim Petition deserves to be dismissed on merits.

9. Hence the Civil Appeal.

10. Mr. C. Aryama Sundaram, appearing for the Appellant, relies on the

Judgment in Periyammal (Dead) Through Legal Representatives and Others v.

V. Rajamani and another1 and contends that the dismissal of the Claim

Petition on the ground that the claim filed under Order XXI Rule 58 of the

CPC is not maintainable by the Executing Court as well as the High Court is

illegal. The quoting of the wrong provision is not a ground for rejecting the

prayer of the Third Party Objector. The view of this Court in the relied-upon

Judgment makes the position in law crystal clear, and the Executing Court

and the Trial Court must decide the objections by conducting a detailed

inquiry. The gist of the case in Periyammal (Dead) (supra) and the principles

laid down by this Court are summed up as under:

A. Order XXI Rule 35 of the CPC confers jurisdiction on the Executing

Court to remove any person bound by the Decree who refuses to vacate the

property. Rules 97 to 101 of Order XXI deal with situations where execution

is obstructed or resisted by “any person”, including even a stranger to the

Decree who is not bound by it or who claims an independent right, title or

interest in the property.

B. Order XXI Rule 97 applies before a Decree for Possession is executed,

allowing the Court to resolve an obstructionist’s grievance before delivering

the Decree to the DHR. Rule 99 applies later, when a stranger claiming rights

in the property has been dispossessed and seeks restoration.

C. If a purported stranger to the Decree resists execution, the DHR’s sole

remedy lies under Order XXI Rule 97 of the CPC. The Holder cannot bypass

such obstruction and insist on the reissuance of the warrant for possession

under Order XXI Rule 35.

D. Courts adjudicating an Application under Order XXI Rule 97 must do

so in accordance with Rule 101 of the CPC and conduct a full-fledged inquiry

into all questions, including those relating to the right, title, or interest in the

property arising between the parties.

10.1 In a matter such as the present, the decisive factor is not the claim of

the DHR or the Appellant, but the identity of the property in the old and

contemporaneous Revenue or Municipal Records. The documents relied on by

the DHR are sketchy and do not establish the title, let alone defeat the title in

favour of the Appellant recognised in earlier rounds of litigation with Hamid

Ali and others up to this Court. The burden is wrongly fastened on the Third

Party/Appellant. The boundaries in the Sale Deed of 1943 and the Decree

Schedule are distinct. In the Suit, identity of property was not an issue. The

identity of the Agreement of Sale, as reflected in anterior documents and the

Decree Schedule, is established by the DHR. The DHR has no evidence to the

contrary. Still, on the ground that the Appellant failed to discharge the

burden, the Claim Petition is rejected, and such procedure is impermissible

and illegal. Since the enquiry has not been conducted as laid down by this

Court in the relied-upon Judgment, it is argued that the impugned Judgment

be set aside and the matter be referred to the Executing Court for disposal

afresh. Alternatively, it is argued that the Appellant be allowed to establish

the claim through legal and valid documents on record in the present Appeal.

11. Mr. Basva Prabhu S Patil, appearing for the first Respondent, argues

that no ground is made out warranting interference with the impugned Orders

and that the DHR is taking possession of the property covered by the

Agreement to Sell and the Decree dated 18.03.2015. The Learned Senior

Counsel, in response to the Court's query on whether the Schedules in the

1943 Sale Deed, Agreement of Sale, and the Sale Deed executed by the Court

are correlated and established by the documentary evidence, fairly stated that

the DHR was of the opinion that the Third Party Objector had to discharge

the burden. He suggested that the matter be remanded to the Executing Court

and that both parties be afforded an opportunity to file additional pleas and

adduce additional evidence in support of their respective claims.

12. In view of the above, we are convinced that some of the findings

recorded in the impugned Judgments do not conform to well-established

principles of law. Accordingly, the impugned Judgments are set aside, and,

as has been suggested, the matters are referred to the Executing Court for

disposal afresh in accordance with law. The Executing Court is directed to

allow further or fresh pleas on behalf of both parties, conduct a fresh inquiry

in light of the decision referred to above, and dispose of the matter afresh.

13. The Civil Appeal is allowed. The matter is remanded to the VII Senior

Civil Judge, City Civil Court at Hyderabad, State of Telangana for disposal as

indicated above. No order as to costs.

14. Pending application(s), if any, stand disposed of accordingly.

.…………………………J. [S.V.N. BHATTI]

.…………………………J. [N. V. ANJARIA] New Delhi; October 14, 2026.