JUDGMENT Poonam Srivastava, J.
1. Sri M. A. Qadeer, advocate, appearing on behalf of the U. P. Sunni Central Board of Waqfs, Lucknow. He has filed an application under Section 90(3) of U.P. Waqfs Act No. 43 of 1995 in Second Appeal No. 1149 of 2002, Allah Taala v. Smt. Maya Devi and Ors. Sri Faujdar Rai, advocate, appearing on behalf of the plaintiff/ respondents.
2. Both the counsels have also furnished their written submissions. This application has been challenged on behalf of the plaintiff/respondents raising preliminary objection that the application under Section 90(3) of U. P. Waqfs Act No. 43 of 1995 (hereinafter referred as the Act) is not maintainable. The suit filed by the plaintiff/respondents was decreed on 24.11.1992 in Original Suit No. 101 of 1973, Musamat Bela Devi v. Allah Taala. This judgment was confirmed in appeal by the Additional District Judge, court No. 1 Ballia in Civil Appeal No. 6 of 1993 and the second appeal filed against the judgment and decree 26.8.2002 has also been dismissed by this Court on 3.10.2002. A review application was also filed on 11.11.2002, which was rejected as not maintainable at the instance of a different counsel other than one, who had filed the second appeal. The review application was rejected on 12.7.2004. Sri Faujdar Rai, advocate, has emphatically argued raising this preliminary objection that since the suit has been decreed up till the stage of this High Court, this application at the behest of the Waqfs Board is not maintainable. The property in dispute is not Waqf property as specific issue was framed on this question. Issue No. 9 was that :
Whether the suit is barred by the provision of Section 65 of U. P. Sunni Act, 1960.
3. The said issue was decided by the trial court holding that it has been established that the property in question is not Waqf property. In the circumstances, no right of the Waqfs Board is affected and accordingly, the suit is not barred by Section 65 of the Act. This finding was confirmed in appeal filed on behalf of the defendant/appellants, which was dismissed on 26.8.2002. I have perused the judgment of the lower appellate court. It transpires that the finding of the trial court on issue No. 9 was never challenged. The second appeal was dismissed by this Court. A review application was also rejected by this Court. It appears that the applicant has resorted to a second inning by filing an application under Section 90(3) of the Act. The argument advanced by the counsel that the notice to the Waqfs Board is mandatory in respect of the property, which if admittedly is the Waqf property, is not disputed. But in the instant case, specific issue was framed regarding the question as to whether the property in dispute is Waqf property or not? This has been decided that the property in question belongs to the plaintiffs and is not Waqf property. In the circumstances, the adjudication of the suit up till the stage of the High Court cannot be reopened on a mere assertion made by the applicant that the property is Waqf property. The argument of the counsel for the applicant that in absence of the notice under Sub-clause (1) of Section 90 of the Act, the proceedings are liable to be declared as void, if the Board within one month of its knowledge of the proceeding applies to the Court on this behalf. The basic question to be decided before any judgment or order is declared as void, is that the subject matter of dispute must necessarily be a Waqf property. In case it is permitted to reopen the controversy without arriving at a substantial and categorical finding to the effect that firstly the property is a Waqf property and secondly that Waqf Board was not given any notice, a piquant situation will arise in every second case. Since there are categorical findings of fact arrived at consecutively by two courts and confirmed in second appeal by this Court, mere saying that the property in question is a Waqf property and, therefore, the entire proceedings should be rendered void, is not correct. Counsel for the respondents has placed reliance on a decision of this Court in Ajodhya Prasad v. Additional Civil Judge, Moradabad and Ors., 1995 (2) ACJ 1159, where it has been held 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 non-Muslims. Counsel for the applicant has also placed reliance on a number of decisions relating to the property which was admittedly a Waqf property. The said decisions are not applicable in the present case. In the case at hand, this question was raised at the first instance and an issue was framed and decided in negative, which has also been confirmed by this Court. In the circumstances, I come to the conclusion that this application is not maintainable and is accordingly rejected.