No doubt, while deciding the jurisdiction of the forum
to try and entertain the proceedings, the same requires to be
decided on the basis of facts pleaded in the plaint, application or
memo. Admittedly, there is no reference in the plaint that the
property is a wakf property. However, in para 10 of the plaint there is specific reference that as during the city survey, the property was recorded in the name of Wakf Board, taking disadvantage of this fact, respondent No.1 tried to induct respondent No.3 as tenant in the said property. In reply to this contention, in para 5 of the written statement filed on behalf of respondent No.1, a categorical statement is made that the plaintiff has no concern with the suit property and on the contrary the suit land belongs to Wakf Board and it reveals from the property extract that CTS No. 8796 belongs to defendant No.1 and defendant No.3 is the tenant.
Thus, the averments in plaint para 10 are supported by the
contents of para 5 of the written statement field by defendant No.1. If it is so, the issue comes under the ambit of wordings of section 85 i.e. any dispute or question or other matters relating to any wakf, and hence there is bar of jurisdiction of the Civil Court to take cognizance of the dispute. {Para 7}
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CIVIL REVISION APPLICATION NO.19 OF 2010
Hajra Bee w/o Sk.Ismail Vs Maharashtra State Board of Wakfs
[CORAM : A.V.POTDAR, J.]
DATE: 31st March 2010
Citation: 2010(4) LJSOFT(URC) 1
1. By this civil revision application, the applicant has
challenged the order dated 21.12.2009 passed below Exhibits20
and 21 in Wakf Suit No.65/2009.
2. Rule. Rule made returnable forthwith. By consent of
the learned counsel for the parties, heard finally at the stage of
admission itself.
3. It appears that the applicant / plaintiff has filed Wakf
Suit No.65/2009 for perpetual injunction in respect of the property
described in plaint para No.1. i.e. land CTS No.8796, Chalta No.
301, 302, 338 and 339 situated at Gavandi Mohalla, Old Jalna.
The plaintiff claims that the property is her own property and
received under Kabulayat from Tahsildar. It is alleged that taking
disadvantage of the fact that the property was entered into city
survey record, in the name of respondent No.1, respondent No.1
tried to induct respondent No.3 as a tenant in the said property.
Hence, initially suit was filed in the Court of Civil Judge, Junior
Division, Jalna bearing Special Civil Suit No.143/1998. The said
suit was disposed of and plaint was returned.
4. After receipt of suit summons, respondents appeared
in Wakf Suit No.65/2009 and filed written statement opposing the
suit. In the said written statement a specific plea is taken in
respect of jurisdiction of the Wakf Tribunal. Apart from this
objection, separate applications are filed at Exhibit21
and 20 for rejection of the plaint under Order 7 Rule 11 (d)
of the Civil Procedure Code contending that as the Tribunal has no
jurisdiction to entertain the suit and hence requested to return the
plaint for presentation before the proper forum. It appears that
after hearing the parties, learned Presiding Officer, Maharashtra
Wakf Tribunal, Aurangabad vide impugned order dated 21.12.2009,
allowed the applications Exhibit20 and 21 and returned the plaint
as rejected.
5. During the course of submissions, as it is not
specifically pleaded in the plaint before the Wakf Tribunal that the
suit property is a wakf property, it is urged by learned counsel for
respondent that the Wakf Tribunal has rightly rejected the plaint
and hence the impugned order requires no interference at the
hands of this Court.
6. Section 85 of the Wakf Act, 1995 deals with the bar of
jurisdiction of civil Court. Section 85 reads thus “
85. Bar of jurisdiction of Civil Courts – No suit or
other legal proceeding shall lie in any Civil Court in
respect of any dispute, question or other matter relating
to any wakf, wakf property or other matter which is
required by or under this Act to be determined by a
Tribunal.
According to learned counsel for the applicant, the case of
the applicant comes under the ambit “question or other matter
relating to any wakf, wakf property or other matter which is
required by or under this Act to be determined by the Tribunal”.
7. No doubt, while deciding the jurisdiction of the forum
to try and entertain the proceedings, the same requires to be
decided on the basis of facts pleaded in the plaint, application or
memo. Admittedly, there is no reference in the plaint that the
property is a wakf property. However, in para 10 of the plaint there is specific reference that as during the city survey, the property was recorded in the name of Wakf Board, taking disadvantage of this fact, respondent No.1 tried to induct respondent No.3 as tenant in the said property. In reply to this contention, in para 5 of the written statement filed on behalf of respondent No.1, a categorical statement is made that the plaintiff has no concern with the suit property and on the contrary the suit land belongs to Wakf Board and it reveals from the property extract that CTS No. 8796 belongs to defendant No.1 and defendant No.3 is the tenant.
Thus, the averments in plaint para 10 are supported by the
contents of para 5 of the written statement field by defendant No.1. If it is so, the issue comes under the ambit of wordings of section 85 i.e. any dispute or question or other matters relating to any wakf, and hence there is bar of jurisdiction of the Civil Court to take cognizance of the dispute. It appears that the learned Presiding Officer of the Tribunal is much impressed by the facts
pleaded in the plaint and it is observed in para 3 of the impugned
order that if the plaintiff claims to be the owner of the property and
projected herself as a land lady of which defendant No.3 is the
tenant, then the dispute is in respect of the property of private
owner and, therefore, the Tribunal has no jurisdiction to decide the
suit and the Civil Court, Jalna is the proper forum to decide the
suit. However, in the earlier part of the impugned order, there is
reference that the suit was earlier filed in the Court of Civil Judge
Junior Division, Jalna where the plea was taken by the
respondents defendants that the civil court has no jurisdiction.
Thus, it appears that attempts are / were made by the respondents
to make the applicant to run from pillar to post, without any
remedy. Considering the factual and legal aspects, the impugned
order requires interference at the hands of this Court.
8. Accordingly, the civil revision application succeeds.
The order dated 21.12.2009 passed below Exhibit20
and 21 in
Wakf Suit No.65/2009 is hereby quashed and set aside by holding
that the Wakf Tribunal, Aurangabad has jurisdiction to try and
entertain Wakf Suit No.65/2009. Parties to appear before the Wakf
Tribunal, Aurangabad on 15.04.2010.
9. Rule is thus made absolute on the terms indicated
above. No order as to costs.
[A.V.POTDAR, J.]
No comments:
Post a Comment