Alladin Charities and Zakat Wakf Vs Mohammed Saleem alias Mohd. Wajid Ali & Another (Supreme Court of India)
Wrong CPC Provision Cannot Defeat a Third Party’s Objection to Delivery of Possession; Executing Court Must Examine the Competing Property Claims
Background: Specific Performance Decree and Third-Party Resistance
The first respondent instituted O.S. No. 2204 of 2012 seeking specific performance of an agreement dated 23 February 2001 allegedly executed by the second respondent.
The suit was decreed ex parte on 18 March 2015. The decree directed execution and registration of a sale deed and granted possession of the scheduled property.
When the decree-holder commenced execution proceedings for possession, Alladin Charities and Zakat Wakf filed a third-party claim petition asserting an independent title to the property already in its possession.
Competing Title Claims and Identity of the Property
The decree-holder claimed through an earlier sale document and the subsequent agreement for sale.
The Wakf relied on a Farman attributed to the Nizam of Hyderabad, the Muntakhab or Book of Endowments, a 1976 trust deed, a Gazette notification and previous litigation.
The crucial issue was the correlation of the old descriptions, municipal numbers, boundaries and the actual premises sought to be delivered under the decree.
The Gazette notification referred to specified municipal premises and seven unnumbered shops. The parties disputed whether those descriptions included the execution-schedule property.
The importance of examining Gazette notifications and records identifying Wakf property is also illustrated by judicial treatment of Wakf property identification records.
Executing Court Rejected the Objection
The Executing Court dismissed the claim petition, holding that Order XXI Rule 58 CPC governs objections against attachment, whereas the execution petition sought delivery of possession.
It also held that the objector had not established ownership of the specific property described in the execution schedule. Relevant supporting documents, including the Farman and survey material, had not been produced.
The Telangana High Court affirmed the dismissal, observing that the appropriate procedural provision was Order XXI Rule 97, rather than Rule 58.
Wrong Procedural Provision and the Duty to Examine Substantive Objections
Before the Supreme Court, the Wakf relied on Periyammal (Dead) Through Legal Representatives and Others v. V. Rajamani and another, (2025) 9 SCC 568.
The appellant argued that quoting the wrong provision of law could not justify rejecting a claim involving independent rights in immovable property.
The dispute required adjudication under the applicable procedural framework for resistance to delivery of possession, rather than rejection on the ground of an incorrect statutory citation alone.
Order XXI Rules 35, 97, 99 and 101 CPC
Under Order XXI Rule 35 CPC, the Executing Court may deliver possession by removing persons bound by the decree.
Order XXI Rules 97 to 101 regulate resistance and obstruction to execution, including claims by persons asserting independent rights.
Rule 97 concerns resistance before delivery of possession, whereas Rule 99 provides relief after dispossession to a person entitled to invoke that provision.
Rule 101 requires the Executing Court to determine the relevant questions concerning right, title and interest arising between the parties in the execution proceedings.
Property Schedules and Documentary Evidence Required Fresh Examination
The Wakf contended that the earlier sale deed, agreement of sale, court-executed sale deed and execution schedule had not been adequately correlated.
When the Supreme Court questioned this issue, counsel for the decree-holder stated that the decree-holder had proceeded on the understanding that the third-party objector bore the burden.
Counsel suggested remand so that both sides could supplement their pleadings and evidence.
The Supreme Court accepted that course without finally determining the competing claims.
Supreme Court’s Decision
The Supreme Court allowed the civil appeal, set aside the impugned judgments and remanded the matter to the VII Senior Civil Judge, City Civil Court, Hyderabad.
The Executing Court was directed to permit fresh or additional pleas by both parties, undertake a fresh inquiry in light of Periyammal, and decide the matter according to law.
No final declaration concerning title, property identity or Wakf ownership was made.
Author’s Comments
The judgment highlights the importance of distinguishing attachment objections under Order XXI Rule 58 from resistance to possession under Rules 97 to 101. A procedural misdescription should not displace examination of the substantive objection where independent property rights are genuinely asserted.
However, the decision does not establish that possession or a claim of Wakf ownership automatically defeats the decree-holder. Both sides remain required to establish their claims and correlate their documents with the property described in the decree.
The ruling grants a fresh adjudicatory opportunity rather than a final finding of ownership.
List of Cases Discussed
1. Periyammal (Dead) Through Legal Representatives and Others v. V. Rajamani and another, (2025) 9 SCC 568, Supreme Court — Relied upon for the execution framework under Order XXI Rules 35 and 97 to 101, the rights of third-party objectors and the duty to conduct a full inquiry into questions of right, title and interest where resistance to possession arises.
FULL TEXT OF THE ORIGINAL JUDGMENT/ORDER OF SUPREME COURT OF INDIA
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:
“
1. That the suit of the plaintiff and the same hereby is 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. 59 of 2002.
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.
Note
1 (2025) 9 SCC 568.
