Saturday 23 April 2022

Whether Wakf tribunal has jurisdiction to entertain a suit for grant of perpetual injunction U/S 38 of Specific relief Act?

  The very scheme under the Wakf Act, 1995, in terms of Sections

83 and 85 in particular needs to be considered. The legislature desire to confer the jurisdiction of all the disputes relating to Wakf property are to be decided or adjudicated upon by the legally established Tribunal created in terms of Section 83 of the Act. Taking survey of the statute, even a suit simplicitor for injunction in terms of  Section 38 of Specific Relief Act will lie within Domain of the Wakf Tribunal. The proviso is for the aggrieved plaintiff, branding himself as Mutawali, it will, squarely fall within role of Wakf established under the Wakf Act,

1995. Hence, recourse taken by present respondent by a suit before learned Civil Judge (J.D.) at Paranda was not warranted.

 {Para 9}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

APPELLATE SIDE, BENCH AT AURANGABAD

CIVIL REVISION APPLICATION NO. 71/2009

 Dastagir s/o Ahmed Jagirdar, Vs Ashar Sharif Dargah,Paranda


CORAM : K.U. CHANDIWAL, J

Date : 17th February, 2010.


1 Heard.

2 Rule. The matter is finally heard as agreed by both the

counsels.

3 A short question whether jurisdiction vests to civil court, in a suit

filed in terms of Section 38 of Specific Relief Act even if the property is Wakf or it should be referred to Wakf Tribunal, is projected.

4 The factual matrix in the matter about status of the property to

be wakf or declaration of the original plaintiff as Mutawali or initiation of

proceeding for taking possession of the property in question, being

not in controversy, need not further be dissected.

5 The powers under Wakf Act 1995 are spelt out by virtue of

Section 83, and Section 85 of the Wakf Act 1995 excludes jurisdiction

of Civil Court.

6 The counsel for the plaintiff / respondent herein dealt with

judgments (1) in the matter of Abdul Kadar vs. Masjid Juma Darwaja

(2009(2) Mh.L.J. 454, (2) to the judgment in the matter of Yashpal Lala

Shri Narain vs. Allatala Tala Malik Waqf Ajakhan Mus AIR 2006

Allahabad 115 and (3) to the judgment of this Court in the matter of

Marathwafa Wakf Board, Aurangabad vs. Rajaram Ramjivan Manthri and

others 2001 (3) Mh. L.J. Page 73. The first matter of Abdul Kadar

relates to controversy of landlord and tenant where the landlord


desired eviction of the tenant and it was in context of the special

statute under the Maharashtra Rent Control Act, 1999 and

consequently, jurisdiction of Civil Court was sought. In the second

matter of Allahabad High Court, it was in relation of payment of rent

and various other aspects concerning status of the parties. In the third

matter, controversy was of non-muslim, and declaration as Wakf

property and what relief he could claim by filing suit before the

competent Civil Court and in such contingencies, this Court has

observed, Section 6 of the Wakf Act did not operate as bar to the suit

filed by non-muslim, since it was a question whether property formed

to be a Wakf property or not, were answered by this Court.

7 To sum up, these three judgments will not come to the rescue

of the present respondent / original plaintiff to stake his contention

about invoking jurisdiction of Civil Court.

8 The learned counsel for the applicant (original defendant) has

taken re-course to the judgment (1) in the matter of Anjuman A.

Burhani vs/ Daudi Bohra Jamaet AIR 2009 Rajasthan 150, (2) to the

judgment of Aliyathammada Beethathabiyyapura Pookoya Haji vs.

Pattakkal Cheriyakoya and others AIR 2003 Kerala 366. By this

judgment, the Division Bench has indeed over-ruled the judgment of

learned Single Judge in the matter of Abdul Rahiman Musaliar vs. T.K.

Muhammed Sahib and another reported in AIR 2003 Kerala 84. The

sum and substance of above referred judgment is, the dispute

essentially pertaining to title of Wakf property itself between two


parties and claim of injunction was merely consequential. It was

observed, the controversy would fall within domain and jurisdiction of

Wakf Tribunal and therefore, Civil Court would have no jurisdiction in

the matter, in view of Section 85.

9 The very scheme under the Wakf Act, 1995, in terms of Sections

83 and 85 in particular needs to be considered. The legislature desire

to confer the jurisdiction of all the disputes relating to Wakf property

are to be decided or adjudicated upon by the legally established

Tribunal created in terms of Section 83 of the Act. Taking survey of

the statute, even a suit simplicitor for injunction in terms of 

Section 38 of Specific Relief Act will lie within Domain of the Wakf Tribunal. The

proviso is for the aggrieved plaintiff, branding himself as Mutawali, it

will, squarely fall within role of Wakf established under the Wakf Act,

1995. Hence, recourse taken by present respondent by a suit before

learned Civil Judge (J.D.) at Paranda was not warranted.

10 The learned judge in para 7 and para 12 of the order while

deciding preliminary issue, has indeed misread provisions of Section 

and Section 7 of the Wakf Act. The controversy between the parties

can not and need not be restricted only to a dispute in the bracket of

Section 6 as sought to be done by the learned judge. The matter

revolved to a Wakf, and any consequential relief will be entertained by

Tribunal alone. The jurisdiction being exclusively vested with the

learned Tribunal, the plaintiff ought not to have filed the suit before

Civil Court.

11 The order under challenge is set aside. The plaint in Regular

Civil Suit No. 296/2008 is returned under Order VII Rule 10 of the

Code of Civil Procedure. The learned judge shall return the plaint in

terms of Order VII Rule 10 by making necessary endorsements in the

Admission Register and where-ever it is required. Necessary

amendment be effected by the plaintiff in the proceeding. The learned

judge will also endorse the date of its presentation and return and also

the party presenting it.

The parties shall appear before the learned Wakf Tribunal at

Aurangabad on 29th March, 2010. Rule is made absolute in above

terms.

(K.U. CHANDIWAL, J)


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