Whether principles of res judicata are applicable to compromise decree?

 E.2.4 Compromise decree and Res Judicata

46. It is contended by the counsel for the Appellant that since a compromise deed was arrived at between the Mysore State Board of Wakf, Abdul Khuddus and the lessee with regard to the possession of the suit property, the other reliefs have been abandoned. It was thus contended that in view of the compromise deed, the claim of title to the suit property has been abandoned and cannot be raised in the subsequent suit. In Pulavarthi Venkata Subba Rao v. Valluri Jagannadha Rao MANU/SC/0018/1963 : AIR 1967 SC 591 and Sunderabai v. Devaji Shankar Deshpande MANU/SC/0098/1952 : AIR 1954 SC 82, this Court held that since a compromise decree is not a decision of the court, the principle of res judicata cannot be made applicable. However, it was held that the compromise decree may in effect create estoppel by conduct between the parties, and the parties by estoppel will be prevented from initiating a subsequent suit. Chief Justice Bhagwati (as he was then) writing for a three judge bench in Sunderabai observed:

12. The bar of res judicata however, may not in terms be applicable in the present case, as the decree passed in Suit No. 291 of 1937 was a decree in terms of the compromise. The terms of Section 11 of the Code of Civil Procedure would not be strictly applicable to the same but the underlying principle of estoppel would still apply. Vide: the commentary of Sir Dinshaw Mulla on Section 11 of the Code of Civil Procedure at p. 84 of the 11th Edn. under the caption Consent decree and estoppel:

The present Section does not apply in terms to consent decrees; for it cannot be said in the cases of such decrees that the matters in issue between the parties 'have been heard and finally decided' within the meaning of this section. A consent decree, however, has to all intents and purposes the same effect as res judicata as a decree passed in invitum. It raises an estoppel as much as a decree passed in invitum.

Since it is the principle of estoppel by conduct that will bar the institution of the subsequent suit, it is pertinent that we refer to the compromise decree to determine if any compromise was arrived at between the parties on the title to the suit property. On a perusal of the compromise deed, it is evident that a compromise was reached only on the issue of possession and lease. When no compromise was arrived at between the parties on the title to the suit property, then no estoppel by conduct could also be inferred. d. Additionally, the counsel for the Respondent referred to Order 23 Rule 3A to contend that a subsequent suit is barred when the previous suit is dismissed through a compromise decree. However, the provision would not be applicable to the case at hand since it only bars the challenge to a compromise decree on the ground that it is unlawful. Therefore, the disposal of the second suit in view of the compromise would not bar the filing of the suit out of which the instant proceedings arise.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10946 of 2014

Decided On: 23.09.2021

The Jamia Masjid  Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: MANU/SC/0691/2021.

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What are twin tests to identify whether an issue has been conclusively decided in the previous suit attracting bar of res judicata in the subsequent suit?

In view of the authorities cited above, the twin test that is used for the identification of whether an issue has been conclusively decided in the previous suit is:

 A. Whether the adjudication of the issue was 'necessary' for deciding on the principle issue ('the necessity test'); and

B. Whether the judgment in the suit is based upon the decision on that issue ('the essentiality test').{Para 40}

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10946 of 2014

Decided On: 23.09.2021

The Jamia Masjid  Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: MANU/SC/0691/2021.

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Basic principles for deciding whether the matter was "directly and substantially" in issue and when it was only "collaterally or incidentally" in issue

 On a perusal of the above authorities it is evident that a representative suit is binding on all the interested parties. Therefore, the judgment of the court in the first suit would be binding on Jamia Masjid and would preclude it from instituting another suit on the same issue if it has been conclusively decided. It is now to be analysed if the substantive issue in the instant suit was conclusively decided in the first suit.

E.2.3 Conclusive decision and Res Judicata

36. The locus classicus on the point of determining if an issue was 'directly and substantially' decided in the previous suit is the decision of Justice M Jagannadha Rao (writing for a two judge bench) in Sajjadanashin Syed MD B.E. Edr. (D) by Lrs. v. Musa Dadabhai Ummer MANU/SC/0122/2000 : (2000) 3 SCC 350. During the course of the judgment, the Court analysed the expression "directly and substantially in issue" in Section 11 and laid down the twin test of essentiality and necessity:

12. It will be noticed that the words used in Section 11 Code of Civil Procedure are "directly and substantially in issue". If the matter was in issue directly and substantially in a prior litigation and decided against a party then the decision would be res judicata in a subsequent proceeding. Judicial decisions have however held that if a matter was only "collaterally or incidentally" in issue and decided in an earlier proceeding, the finding therein would not ordinarily be res judicata in a latter proceeding where the matter is directly and substantially in issue.

18. In India, Mulla has referred to similar tests (Mulla, 15th Edn., p. 104). The learned author says: a matter in respect of which relief is claimed in an earlier suit can be said to be generally a matter "directly and substantially" in issue but it does not mean that if the matter is one in respect of which no relief is sought it is not directly or substantially in issue. It may or may not be. It is possible that it was "directly and substantially" in issue and it may also be possible that it was only collaterally or incidentally in issue, depending upon the facts of the case. The question arises as to what is the test for deciding into which category a case falls? One test is that if the issue was "necessary" to be decided for adjudicating on the principal issue and was decided, it would have to be treated as "directly and substantially" in issue and if it is clear that the judgment was in fact based upon that decision, then it would be res judicata in a latter case (Mulla, p. 104). One has to examine the plaint, the written statement, the issues and the judgment to find out if the matter was directly and substantially in issue (Ishwer Singh v. Sarwan Singh [MANU/SC/0345/1964 : AIR 1965 SC 948] and Syed Mohd. Salie Labbai v. Mohd. Hanifa [MANU/SC/0510/1976 : (1976) 4 SCC 780 : AIR 1976 SC 1569]). We are of the view that the above summary in Mulla is a correct statement of the law.

19. We have here to advert to another principle of caution referred to by Mulla (p. 105):

It is not to be assumed that matters in respect of which issues have been framed are all of them directly and substantially in issue. Nor is there any special significance to be attached to the fact that a particular issue is the first in the list of issues. Which of the matters are directly in issue and which collaterally or incidentally, must be determined on the facts of each case. A material test to be applied is whether the court considers the adjudication of the issue material and essential for its decision.

(emphasis supplied)

37. Adverting to the decision in Mahant Pragdasji Guru Bhagwandasji (supra) and two earlier decisions12, the Court held that these were instances where in spite of adverse findings in an earlier suit, the finding on that specific issue was not treated as res judicata as it was purely incidental, auxiliary or collateral to the main issue in each of these cases and not necessary in the earlier case.

38. In another decision in Gram Panchayat of Village Naulakha v. Ujagar Singh MANU/SC/0628/2000 : (2000) 7 SCC 543, it has been held that the decision in an earlier suit for an injunction, where no question of title was adjudicated upon will not be binding on the question of title:

10. We may also add one other important reason which frequently arises Under Section 11 Code of Civil Procedure. The earlier suit by the Respondent against the Panchayat was only a suit for injunction and not one on title. No question of title was gone into or decided. The said decision cannot, therefore, be binding on the question of title. See in this connection Sajjadanashin Sayed v. Musa Dadabhai Ummer [MANU/SC/0122/2000 : (2000) 3 SCC 350] where this Court, on a detailed consideration of law in India and elsewhere held, that even if, in an earlier suit for injunction, there is an incidental finding on title, the same will not be binding in a later suit or proceeding where title is directly in question, unless it is established that it was "necessary" in the earlier suit to decide the question of title for granting or refusing injunction and that the relief for injunction was founded or based on the finding on title. Even the mere framing of an issue on title may not be sufficient as pointed out in that case.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10946 of 2014

Decided On: 23.09.2021

The Jamia Masjid  Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: MANU/SC/0691/2021.

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What is the scope of the suit filed U/S 92 of CPC?

  A suit Under Section 92. Civil Procedure Code is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is a breach of such trust or that directions from the Court are necessary for the administration thereof, and it must pray for one or other of the reliefs that are specifically mentioned in the section. It is only when these conditions pre fulfilled that the suit has got to be brought in conformity with the provision of Section 92, Civil Procedure Code As was observed by the Privy Council in Abdul Rahil v. Md. Barkat Ali. MANU/PR/0084/1927 : 55 Ind, App. 96, Procedure Code a suit for a declaration that certain property appertains to a religious trust may lie under the general law but is outside the scope of Section 92 Code of Civil Procedure. In the case before us, the prayers made in the plaint are undoubtedly appropriate to the terms of Section 92 and the suit proceeded on the footing that the Defendant, who was alleged to be the trustee in respect of a public trust, was guilty of breach of trust. The Defendant denied the existence of the trust and denied further that he was guilty of misconduct or breach of trust. The denial could not certainly oust the jurisdiction of the court, but when the courts found concurrently, on the evidence adduced by the parties, that the allegations of breach of trust were not made out, and as it was not the case of the Plaintiffs, that any direction of the court was necessary for proper administration of the trust, the very foundation of a suit Under Section 92 of the Code of Civil Procedure became wanting and the Plaintiffs had absolutely no cause of action for the suit they instituted. In these circumstances, the finding of the High Court about the existence of a public trust was wholly inconsequential and as it was unconnected with the grounds upon which the case was actually disposed of, it could not be made a part of the decree or the final order in the shape of a declaratory relief in favour of the Plaintiffs. It has been argued by the learned Counsel for the Respondents that even if the Plaintiffs failed to prove the other allegations made in the plaint, they did succeed in proving that the properties were public and charitable trust properties -- a fact which the Defendant denied. In these circumstances, there was nothing wrong for the court to give the Plaintiffs a lesser relief than what they actually claimed. The reply to this is, that in a suit framed Under Section 92 of the Code of Civil Procedure the only reliefs which the Plaintiff can claim and the court can grant are those enumerated specifically in the different clauses of the section. A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses. When the Defendant denies the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the Section if the Plaintiff is held entitled to it; but when the case of the Plaintiff fails for want of a cause of action, there is no warrant for giving him a declaratory relief under the provision of Section 92 of the Code of Civil Procedure. The finding as to the existence of a public trust in such circumstances would be no more than an obiter dictum and cannot constitute the final decision in the suit. {Para 10}

33. Bhagwandasji (supra) lays down the following principles on the ambit of a representative suit Under Section 92 Code of Civil Procedure:

(i) The Plaintiff can only seek reliefs that fall under any of the clauses in Section 92 Code of Civil Procedure. A declaration that the suit property belongs to the trust, does not fall under the scope of any of the reliefs enumerated in Section 92 Code of Civil Procedure and is outside the scope of the provision;

(ii) Merely because the Defendant denies the title of the trust over the suit property, the jurisdiction of the court cannot be ousted;

(iii) When the title of the trust is contested, a determination of the title of the suit property is necessary for the purpose of adjudication on the final relief, and thus it can be made ancillary to the main relief if the Plaintiff is entitled to the relief sought Under Section 92 Code of Civil Procedure; and

(iv) If the Plaintiff is not entitled to the relief sought, then in that case no determination on the title of the suit property can be made since it would be inconsequential to the final decision in the suit.

On applying the principles evolved in Bhagwandasji (supra) to the facts of the case, the relief sought in the first suit Under Section 92 Code of Civil Procedure was for determination of a scheme of management of the mosque. A determination of the title of the suit property with respect to the mosque was ancillary to the main relief, Under Section 92 of the Code of Civil Procedure.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10946 of 2014

Decided On: 23.09.2021

The Jamia Masjid  Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: MANU/SC/0691/2021.

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When can the court decide the issue of res judicata as a preliminary issue?

 We are unable to accept the submission of the Appellants that res judicata can never be decided as a preliminary issue. In certain cases, particularly when a mixed question of law or fact is raised, the issue should await a full-fledged trial after evidence is adduced. In the present case, a determination of the components of res judicata turns on the pleadings and judgments in the earlier suits which have been brought on the record. The issue has been argued on that basis before the Trial court and the first appellate court; followed by two rounds of proceedings before the High Court (the second following upon an order of remand by this Court on the ground that all parties were not heard). All the documentary material necessary to decide the issue is before the court and arguments have been addressed by the contesting sides fully on that basis.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10946 of 2014

Decided On: 23.09.2021

The Jamia Masjid  Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: MANU/SC/0691/2021.

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Whether the subsequent suit is barred by res judicata if there has been any material alteration in law or facts since the first suit was decreed?

 The court while undertaking an analysis of the applicability of the plea of res judicata determines first, if the requirements of Section 11 Code of Civil Procedure are fulfilled; and if this is answered in the affirmative, it will have to be determined if there has been any material alteration in law or facts since the first suit was decreed as a result of which the principle of res judicata would be inapplicable. 

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10946 of 2014

Decided On: 23.09.2021

The Jamia Masjid  Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: MANU/SC/0691/2021.

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Whether the second suit is barred by res judicata if the decree passed in the previous suit is nullity?

 Justice K. Ramaswamy writing for a three judge bench of this Court in Sushil Kumar Mehta v. Gobind Ram Bohra MANU/SC/0593/1989 : (1990) 1 SCC 193 held that the principle of res judicata cannot be fit into the pigeon hole of 'mixed question of law and facts' in every case. Rather, the plea of res judicata would be a question of law or fact or a mixed question of both depending on the issue that is claimed to have been previously decided. The court while determining the applicability of the plea of res judicata would determine if there has been any material alteration in the facts and law applicable:

26. The doctrine of res judicata Under Section 11 Code of Civil Procedure is founded on public policy. An issue of fact or law or mixed question of fact and law, which are in issue in an earlier suit or might and ought to be raised between the same parties or persons claiming under them and was adjudicated or allowed uncontested becomes final and binds the parties or persons claiming under them. Thus, the decision of a competent court over the matter in issue may operate as res judicata in subsequent suit or proceedings or in other proceedings between the same parties and those claiming under them. But the question relating to the interpretation of a statute touching the jurisdiction of a court unrelated to questions of fact or law or mixed questions does not operate as res judicata even between the parties or persons claiming under them. The reason is obvious; a pure question of law unrelated to facts which are the basis or foundation of a right, cannot be deemed to be a matter in issue. The principle of res judicata is a facet of procedure but not of substantive law. The decision on an issue of law founded on fact in issue would operate as res judicata. But when the law has since the earlier decision been altered by a competent authority or when the earlier decision declares a transaction to be valid despite prohibition by law it does not operate as res judicata. Thus a question of jurisdiction of a court or of a procedure or a pure question of law unrelated to the right of the parties founded purely on question of fact in the previous suit, is not res judicata in the subsequent suit. A question relating to jurisdiction of a court or interpretation of provisions of a statute cannot be deemed to have been finally determined by an erroneous decision of a court. Therefore, the doctrine of res judicata does not apply to a case of decree of nullity. If the court inherently lacks jurisdiction consent cannot confer jurisdiction. Where certain statutory rights in a welfare legislation are created, the doctrine of waiver also does not apply to a case of decree where the court inherently lacks jurisdiction.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 10946 of 2014

Decided On: 23.09.2021

The Jamia Masjid  Vs. K.V. Rudrappa (Since Dead) by L.Rs. and Ors.

Hon'ble Judges/Coram:

Dr. D.Y. Chandrachud, Vikram Nath and Hima Kohli, JJ.

Author: Dr. D.Y. Chandrachud, J.

Citation: MANU/SC/0691/2021

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Can a structure be treated as a place for offering namaz without proof of dedication?

The experts from the Archaeological Department have reported that the structure has no historical or archaeological importance. It is further contended that the Tehsildar, before the possession was delivered, had given an extensive report of each of the structure existing on the land proposed to be given. The lands for graveyard and other religious structures have been excluded from the lease. Therefore, the act of identification carried out years before raising of the dispute done by the revenue officials in the course of their official duties carry presumption of correctness. It shows that the structure had no religious value.

16. The letter dated 17.4.2012 by the Anjuman Committee is based upon hearsay and is not of any binding value.

17. Still further, there is no evidence at any given point of time that the structure was being used as a mosque. There is no allegation or proof of either of dedication or user or grant which can be termed as a waqf within the meaning of the Act. Section 3 (r) of the Act reads thus:-

“[(r) “waqf” means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes—

(i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser;

(ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record;

(iii) xxx xxx”

18. The report of the experts is relevant only to the extent that the structure has no archaeological or historical importance. In the absence of any proof of dedication or user, a dilapidated wall or a platform cannot be conferred a status of a religious place for the purpose of offering prayers/Namaaz.

IN THE SUPREME COURT OF INDIA 

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2788 & 2789 OF 2022 

WAQF BOARD, RAJASTHAN Vs JINDAL SAW LIMITED & ORS.

Coram:  HEMANT GUPTA; V. RAMASUBRAMANIAN, JJ.

Author: HEMANT GUPTA, J.

Dated: APRIL 29, 2022 

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Can Wakf tribunal decide suit relating to encroachment and tenancy over wakf property?

 It is clear that the Legislature has

added the underlined portion in the earlier

Section 83. If the amended Section 83(1) is

perused, it is quite apparent that any dispute,

question or other matter relating to Waqf

property, eviction of a tenant or determination of

rights and obligation of the lessor and the lessee

of such property i.e. Waqf property is to be

decided by the Waqf Tribunal. The amended

provision came into effect on 1st November 2013 and

naturally when the Waqf Tribunal decided the

Application on 5th May 2014, it was within its

jurisdiction to consider the dispute of tenancy

also, which was raised. This is apart from the

fact that the basic dispute the Tribunal was

dealing with, was whether or not the Applicant was

a trespasser as found under Section 54 of the Waqf

Act. To decide that dispute, it was required to

deal with the defence of the claim of tenancy.

10. Tribunal considered the admitted facts,

the law and opportunity given to applicant by

C.E.O. and rejected the application. The Applicant

is unable to show that the impugned order is not

correct, legal or proper. Consequently, there is

no substance in the Revision application.{Para 9}

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CIVIL REVISION APPLICATION NO.127 OF 2014

Ishtaque Ali Sayyad Ali, Vs  Maharashtra State Wakf Board,

CORAM: A.I.S. CHEEMA, J.

DATED : 17TH FEBRUARY, 2015.

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How to ascertain jurisdiction of wakf tribunal to entertain a proceeding?

  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

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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.

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Whether Wakf tribunal can entertain a suit regarding a dispute about the area of wakf property?

 When that is the position, it will have to be noted that in the instant case, though the legal remedy had not been availed by the Respondent within the time frame as provided Under Section 6 of the Act, the issue had fallen for consideration before the Wakf tribunal in view of the defence put forth by the Respondent and the Wakf tribunal had rendered its finding on that aspect based on the evidence placed before it. Since the gazette notification had been questioned to indicate that the property which is in the occupation of the Respondent was not a part of the notified Wakf property, the same applied both to the suit Schedule 'A' as well as Schedule 'B' properties. In such circumstance, the Wakf tribunal had the jurisdiction to determine that question which had been framed as an issue in this suit. Further as already noted, on the facts evolving in the instant case, the tribunal had relied upon the evidence available and had arrived at the conclusion that the property in question is Wakf property and had accordingly decreed the suit. {Para 23}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4522 of 2021 

Decided On: 03.08.2021

 Telangana State Wakf Board and Ors. Vs. Mohamed Muzafar

Hon'ble Judges/Coram:

Hemant Gupta and A.S. Bopanna, JJ.

Author: A.S. Bopanna, J.

Citation: MANU/SC/0500/2021

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Whether the wakf tribunal can entertain suit for declaration in respect of wakf property?

 Aforesaid provisions show that the powers of Civil Court are vested with the Wakf Tribunal. The provisions also show that the suit of the present nature, the suit filed for declaration of rights by Shikmidars and for enforcement of their rights can be entertained by Wakf Tribunal and the decision of Wakf Tribunal needs to be treated as the decision of civil Court. {Para 26}

 IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

CRA No. 10 of 2013

Decided On: 20.07.2015

Syed Muzafaruddin and Ors. Vs.  Syed Zeenat Bee and Ors.

Hon'ble Judges/Coram:

T.V. Nalawade, J.

Citation: 2015(6) MHLJ 378,MANU/MH/1744/2015

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Whether the Civil court can entertain dispute relating to wakf property?

 In our opinion, all matters pertaining to Wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the Civil Court or by the High Court straightaway under Article 226 of the Constitution of India. {Para 10}

14. Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a Wakf or Wakf property.

The words "any dispute, question or other matters relating to a Wakf or Wakf property" are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a Wakf or Wakf property can be decided by the Wakf Tribunal.

The word 'Wakf' has been defined in Section 3(r) of the Wakf Act, 1995 and hence once the property is found to be a Wakf property as defined in Section 3(r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal.

15. Under Section 83(5) of the Wakf Act, 1995 the Tribunal has all powers of the Civil Court under the Code of Civil Procedure, and hence it has also powers under Order 39 Rules 1, 2 and 2A of the Code of Civil Procedure to grant temporary injunctions and enforce such injunctions. Hence, a full-fledged remedy is available to any party if there is any dispute, question or other matter relating to a Wakf or Wakf property.

16. We may further clarify that the party can approach the Wakf Tribunal, even if no order has been passed under the Act, against which he/she is aggrieved. It may be mentioned that Sections 83(1) and 84 of the Act do not confine the jurisdiction of the Wakf Tribunal to the determination of the correctness or otherwise of an order passed under the Act. No doubt Section 83(2) refers to the orders passed under the Act, but, in our opinion, Sections 83(1) and 84 of the Act are independent provisions, and they do not require an order to be passed under the Act before invoking the jurisdiction of the Wakf Tribunal. Hence, it cannot be said that a party can approach the Wakf Tribunal only against an order passed under the Act. In our opinion, even if no order has been passed under the Act, the party can approach the Wakf Tribunal for the determination of any dispute, question or other matters relating to a Wakf or Wakf property, as the plain language of Sections 83(1) and 84 indicates.

18. It is well-settled that when there is a special law providing for a special forum, then recourse cannot be taken to the general law vide Justice G.P. Singh's Principles of Statutory Interpretation (9th Edn. 2004, pp 133-134).

20. In view of the above, we are of the opinion that since the matter fell under the purview of the Wakf Act, only the Wakf Tribunal has jurisdiction in the matter, and not the Civil Court.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 5297 of 2004

Decided On: 23.11.2010

Board of Wakf, West Bengal Vs. Anis Fatma Begum and Ors.

Hon'ble Judges/Coram:

Markandey Katju and Gyan Sudha Misra, JJ.

Author: Markandey Katju, J.

Citation: MANU/SC/0970/2010,2010 ALLSCR 2690,(2010) 14 SCC 588

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Whether State Government can invoke the writ jurisdiction against the action of the Wakf Board to declare the land as wakf property?

 Thus, the State Government, as a juristic entity, has a right to protect its property through the writ court, just as any individual could have invoked the jurisdiction of the High Court. Therefore, the State Government is competent to invoke the writ jurisdiction against the action of the Wakf Board to declare the land measuring 1654 acres and 32 guntas as wakf property.

{Para 125}

(3) Whether the State is estopped to challenge the notification inter-alia on the ground that Government Pleader was present before the Nazim Atiyat and before the High Court in proceedings against the order passed by Nazim Atiyat and that the notification was published in State Government Gazette?

129. It is to be noted that the presence of the Government Pleader before the Nazim Atiyat was for a limited purpose as the grants were to be paid by State Government. The State was not a party either before the Nazim Atiyat or before the High Court. The State would be bound by the orders, if it was impleaded as party as it is likely to be affected on account of the orders passed. The liability of State for payment of grant was not in dispute but the question was as to whom the grants would be payable. Thus, the presence of Government Pleader was for the limited purpose of facilitating the implementation of the orders passed.

Supreme Court

JUSTICE HEMANT GUPTA JUSTICE V. RAMASUBRAMANIAN

STATE OF ANDHRA PRADESH (NOW STATE OF TELANGANA) Vs. A. P. STATE WAKF BOARD & ORS.

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What is the limitation for Suit for a declaration that property was not wakf property?

  Wakf Act (1954), S.3 - Limitation Act (1963), Art.58 - Suit for declaration that property was not wakf property - Limitation for - It is to be filed within period of three years from date of knowledge of notification as wakf property - Suit filed after period of three years from date of knowledge - Suit barred by limitation.  (Para 31)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY (AURANGABAD BENCH)

T. V. NALAWADE, J.

Bhaskarrao s/o. Bapurao Patil Khatgaonkar & Ors. Vs. The Maharashtra State Board of Wakfs & Anr.

Civil Revision Application No.172 of 2011

20th July, 2016.

Citation: 2017(3) ALL MR 51

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Whether wakf tribunal can decide issue of title even if non muslim parties are involved?

Thus, the view of the High Court that right, title and interest of a non-Muslim to the Wakf in a property cannot be put in jeopardy is contrary to the statutory scheme as contained in Section 6 of the Act, 1995. Thus, the reason of the High Court to allow the revision petition is wholly unfounded. The defendant in written statement has pleaded that the suit property is not Wakf property. When issue in the suit is as to whether suit property is Wakf property or not it is covered by specific provision of Sections 6 and 7 of the Wakf Act, 1995, hence, it is required to be decided by the Tribunal under Section 83 and bar under Section 85 shall come into existence with regard to jurisdiction of Civil Court. In this context, in the judgment in Haryana Wakf Board v. Mahesh Kumar, (2014) 16 SCC 45, this Court has laid down that the question as to whether the suit property is a Wakf property is a question which has to be decided by the Tribunal.

In the Supreme Court of India

(Before Ashok Bhushan and K.M. Joseph, JJ.)

Civil Appeal No. 92 of 2019

Punjab Wakf Board  v. Sham Singh Harike

Civil Appeal No. 92 of 2019 and Civil Appeal No. 93 of 2019

Decided on February 7, 2019

Citation: 2019 SCC OnLine SC 142

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Whether dispute relating to mutation entries of wakf property can be referred to wakf tribunal?

 No doubt, Section 83 of Wakf Act, 1995 says about the constitution of Tribunal for determination of any disputed question or other matter relating to a wakf or wakf property and the aforesaid Act bars the jurisdiction of courts to entertain the dispute relating to wakf or wakf property but the dispute in the present matter does not relate to the right and title as well as nature of wakf property rather it relates to mutation proceeding and admittedly, the wakf Tribunal has got no power to pass an order of mutation because the aforesaid power lies with revenue officials. Therefore, in my view, learned counsel appearing for the private respondents rightly submitted that learned Additional Collector was right in passing the impugned order.

IN THE HIGH COURT OF PATNA

Civil Writ Jurisdiction Case No. 5953 of 2009

Decided On: 03.07.2017

Masjid and Madarasa Committee Vs. The State of Bihar and Ors.

Hon'ble Judges/Coram:
Hemant Kumar Srivastava, J.
Citation: AIR 2017 PATNA 137

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Whether nature of Wakf property changes if it is leased?

It is settled principle of law that once a wakf always a
wakf. The property which has been found as a wakf always retain its
character as a wakf. Mere leasing out of such property in any manner

will not nullify the original character of the property.
IN THE HIGH COURT OF PUNJAB & HARYANA
AT CHANDIGARH
 Civil Revision No.2042 of 2016 (O&M)
 Date of decision : 03.05.2016
Kullu Ram
V
Punjab Wakf Board, Ambala.
CORAM : HON'BLE MR. JUSTICE DARSHAN SINGH
Citation: AIR 2017 (NOC) 10 P&H

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Whether civil court can grant interim relief as per S 9 of arbitration in dispute related to wakf?

We, therefore, hold that Section 85 has not created an absolute bar
for the Civil Court for determination of a dispute of like nature as has
been agitated in the Section 9 application before the learned Court below.
We hold that the learned District Judge is competent to entertain an
application under Section 9 of the aforesaid Act of 1996.
Arbitration and Conciliation Act, 1996 has been enacted after the
Waqf Act, 1995. Therefore, while enacting the said Act of 1996
Legislature was quite aware of the consequences of the said Act and has
not intentionally kept any provision in the Act of 1996 creating any
exception to the jurisdiction of arbitration in respect of any matter arising
out of a valid agreement related to a waqf property. We, therefore, hold
that the learned Court below has got jurisdiction to entertain an
application under Section 9 of the said Act of 1996. Since the question ofjurisdiction and the bar created under Section 85 of the Waqf Act has
been taken as a specific objection in the written objection of the
respondent, the learned Court below ought to have dealt with the
question before rejection of the Section 9 application.

IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Before :
 INDIRA BANERJEE
 SAHIDULLAH MUNSHI
F.M.A.T. No.195 of 2016
With
C.A.N.2132 of 2016

SAYED HASSAN ALI V MAHAMMED SAHIDUL ISLAM

Judgment on : August 4, 2016.
Citation:AIR 2016 Cal 351

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