Plaintiff sought
declaration that he be declared as tenant either of defendant no.1
or defendant no.2 committees, managing the Waqf Intzamiya
Committee and with further relief of permanent injunction against
eviction. In view of the aforesaid factual matrix, in the opinion of
this court, bar as created under Section 85 of the Wakf Act, 1995
squarely applies to the facts in hand as the questions to be
answered in the light of the plaint allegations and the prayer
clause are related to the Wakf property and the alleged status of
the plaintiff has already been determined to be an encroacher by
the Wakf Tribunal vide its order dated 23/3/2009, hence, the suit
has rightly been dismissed by the courts below.
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE ROHIT ARYA
SECOND APPEAL NO.512/2010
Kallu Khan
Versus
Wakf Intajamiya Committee
and another
Date of judgment : 5/05/2014
Citation;AIR 2015(NOC) 555 MP
This appeal by plaintiff is directed against the judgment and
decree dated 24/6/2010 in Civil Appeal No.16A/2009 confirming
the judgment and decree dated 27/6/2009 in Civil Suit No.10-
A/2009.
2. Facts in nutshell are to the effect that plaintiff/appellant
claims to be in possession of the suit shop on monthly rent of
Rs.200/-. The suit shop belongs to Wakf Intzamiya Committee
and he is in possession thereof as a tenant on monthly rent
payable to the defendant no.1. He has paid rent upto February,
2007, however, defendant no.2 appears to have become Manager
by constituting a separate Wakf Intzamiya Committee and served
a notice upon appellant/plaintiff to vacate the aforesaid premises,
hence, plaintiff was in confusion as to whether defendant no.1 or
defendant no.2 is managing wakf property and, therefore, he also
served a notice upon defendant no.1 dated 29/1/2009 and in
response thereto plaintiff was required to vacate the suit premises
and since he was threatened to be dispossessed, he filed the suit
for declaration that he be declared to be the tenant of either
defendant no.1 or defendant no.2 and defendants be restrained
from dispossessing plaintiff from the suit premises.
3. On being noticed, defendant no.2 submitted an application
under Order VII Rule 11 of CPC on 14/5/2009 interalia contending
that in fact vide order dated 29/11/2008 of the Wakf Committee
under Section 54 of the Waqf Act, the plaintiff was ordered to
vacate the suit premises within thirty days. Against the said order,
plaintiff/appellant had filed an appeal before the M.P. Wakf
Tribunal under Section 94 of the Wakf Act. The said appeal was
dismissed on 23/3/2009. As such, by virtue of the aforesaid
orders, it is established that the suit property is a Wakf property of
the Committee and plaintiff is an encroacher. In view of the
aforesaid facts, it is submitted that in the light of Section 85 of the
Wakf Act, 1995, the instant suit is barred. For ready reference,
provisions as contained in Section 83 (1), (2) and Section 85 of
the Wakf Act, 1995 and that of Order VII Rule 11 (d) of CPC are
reproduced below:-
“83. Constitution of Tribunals, etc. -
(1) The State Government shall, by notification in the
Official Gazette, constitute as many Tribunals as it may
think fit, for the determination of any dispute, question or
other matter relating to a wakf or wakf property under
this Act and define the local limits and jurisdiction under
this Act of each of such Tribunals.
(2) Any Mutawalli person interested in a wakf or any
other person aggrieved by an order made under this Act,
or rules made thereunder, may make an application
within the time specified in this Act or where no such
time has been specified, within such time as may be
prescribed, to the Tribunal for the determination of any
dispute, question or other matter relating to the wakf.
(3) and (4) XXXXXX
(5) The Tribunal shall be deemed to be a civil court
and shall have the same powers as may be exercised
by a civil court under the Code of Civil Procedure, 1908
(5 of 1908), while trying a suit, or executing a decree or
order.
Order VII Rule 11 (d) of CPC-
11. Rejection of plaint.-
(a) to (c) XXXXXXX
(d) where the suit appears from the statement in the
4 Second Appeal No.512/2010
(Kallu Khan Vs. Wakf Intajamiya Committee and another)
plaint to be barred by any law;”
4. Courts below upon perusal of aforesaid provisions,
addressed upon the issue as regards maintainability of the suit.
Both courts below have found that plaintiff claims to be in
possession of the suit shop as tenant of defendants-Wakf
Intzamiya Committee, however, plaintiff is not accepted as tenant,
but as an encroacher by the defendants, accordingly passed the
order on 29/11/2008 for vacating the suit premises. The plaintiff
himself had filed an appeal against the said order under Section
94 of the Waqf Act, 1995 before the M.P. Wakf Tribunal. The
Tribunal has dismissed the appeal on 23/3/2009. Two fold facts
remained determined viz. suit property is the Wakf property and
that the plaintiff/appellant is an encroacher. Courts below have
found that in the light of the provisions of Section 85 of the Wakf
Act, the instant suit is barred by law and, therefore, falls under the
clause of suits as contemplated under Order VII Rule 11 (d) of
CPC and accordingly dismissed the suit. On appeal before this
Court, moot question is as regards maintainability of nature of suit
filed before the civil court under Section 9 of CPC in the
background of provisions contained in the Wakf Act, 1995. The
Wakf Act has been enacted to provide for better administration
and supervision of Wakf and Wakf properties spread over the
territory of India. It came into force in the State of M.P. by virtue of
notification issued by the State Government under Section 1 (3) of
the Act. Chapter VIII deals with judicial proceedings. Section 83
(1) therein provides that the Tribunal shall be constituted by a
notification for the determination of any dispute, question or other
matter relating to wakf or wakf property under this Act. In Section
83 (2), any Mutawalli person interested in a wakf or any other
person aggrieved by an order made under this Act, or rules made
thereunder, may make an application to the Tribunal for the
determination of any dispute, question or other matter relating to
the wakf. Section 83 (5) of the Act says that the Tribunal shall be
deemed to be a civil court and shall have all powers of a civil court
under the Code of Civil Procedure, 1908 and Section 83 (7) talks
that the decision of the Tribunal shall be final and binding upon
the parties to the application and it shall have the force of a
decree made by a civil court and Section 83 (8) of the Act talks
that the execution of any decision of the Tribunal shall be made by
the civil court to which such decision is sent for execution in
accordance with the provisions of CPC. Section 83 (9) of the Act
speaks of bar of any appeal against the decision or order of the
Tribunal provided that the High Court may either on its own
motion or on an application of the Board or any person aggrieved,
call for and examine the records relating to any dispute, question
or other matter which has been determined by the Tribunal for the
purpose of satisfying itself as to the correctness, legality and
propriety of such determination and may confirm, reverse or
modify such determination or pass such other order as it may
deem fit.
5. Section 85 of the Act provides for bar of suit or other legal
proceedings in any civil court in respect of any dispute, question
or other matter relating to any wakf property or other matter which
is required by or under this Act to be determined by a Tribunal.
6. Now juxtapositioning the facts of the instant case with
aforequoted provisions, it is explicit and there remains no cavil of
doubt that the suit property is a wakf property in view of the order
passed by the Tribunal dated 23/3/2009. Plaintiff sought
declaration that he be declared as tenant either of defendant no.1
or defendant no.2 committees, managing the Waqf Intzamiya
Committee and with further relief of permanent injunction against
eviction. In view of the aforesaid factual matrix, in the opinion of
this court, bar as created under Section 85 of the Wakf Act, 1995
squarely applies to the facts in hand as the questions to be
answered in the light of the plaint allegations and the prayer
clause are related to the Wakf property and the alleged status of
the plaintiff has already been determined to be an encroacher by
the Wakf Tribunal vide its order dated 23/3/2009, hence, the suit
has rightly been dismissed by the courts below. Appeal sans
merits is hereby dismissed.
(Rohit Arya)
Judge
declaration that he be declared as tenant either of defendant no.1
or defendant no.2 committees, managing the Waqf Intzamiya
Committee and with further relief of permanent injunction against
eviction. In view of the aforesaid factual matrix, in the opinion of
this court, bar as created under Section 85 of the Wakf Act, 1995
squarely applies to the facts in hand as the questions to be
answered in the light of the plaint allegations and the prayer
clause are related to the Wakf property and the alleged status of
the plaintiff has already been determined to be an encroacher by
the Wakf Tribunal vide its order dated 23/3/2009, hence, the suit
has rightly been dismissed by the courts below.
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON. SHRI JUSTICE ROHIT ARYA
SECOND APPEAL NO.512/2010
Kallu Khan
Versus
Wakf Intajamiya Committee
and another
Date of judgment : 5/05/2014
Citation;AIR 2015(NOC) 555 MP
This appeal by plaintiff is directed against the judgment and
decree dated 24/6/2010 in Civil Appeal No.16A/2009 confirming
the judgment and decree dated 27/6/2009 in Civil Suit No.10-
A/2009.
2. Facts in nutshell are to the effect that plaintiff/appellant
claims to be in possession of the suit shop on monthly rent of
Rs.200/-. The suit shop belongs to Wakf Intzamiya Committee
and he is in possession thereof as a tenant on monthly rent
payable to the defendant no.1. He has paid rent upto February,
2007, however, defendant no.2 appears to have become Manager
by constituting a separate Wakf Intzamiya Committee and served
a notice upon appellant/plaintiff to vacate the aforesaid premises,
hence, plaintiff was in confusion as to whether defendant no.1 or
defendant no.2 is managing wakf property and, therefore, he also
served a notice upon defendant no.1 dated 29/1/2009 and in
response thereto plaintiff was required to vacate the suit premises
and since he was threatened to be dispossessed, he filed the suit
for declaration that he be declared to be the tenant of either
defendant no.1 or defendant no.2 and defendants be restrained
from dispossessing plaintiff from the suit premises.
3. On being noticed, defendant no.2 submitted an application
under Order VII Rule 11 of CPC on 14/5/2009 interalia contending
that in fact vide order dated 29/11/2008 of the Wakf Committee
under Section 54 of the Waqf Act, the plaintiff was ordered to
vacate the suit premises within thirty days. Against the said order,
plaintiff/appellant had filed an appeal before the M.P. Wakf
Tribunal under Section 94 of the Wakf Act. The said appeal was
dismissed on 23/3/2009. As such, by virtue of the aforesaid
orders, it is established that the suit property is a Wakf property of
the Committee and plaintiff is an encroacher. In view of the
aforesaid facts, it is submitted that in the light of Section 85 of the
Wakf Act, 1995, the instant suit is barred. For ready reference,
provisions as contained in Section 83 (1), (2) and Section 85 of
the Wakf Act, 1995 and that of Order VII Rule 11 (d) of CPC are
reproduced below:-
“83. Constitution of Tribunals, etc. -
(1) The State Government shall, by notification in the
Official Gazette, constitute as many Tribunals as it may
think fit, for the determination of any dispute, question or
other matter relating to a wakf or wakf property under
this Act and define the local limits and jurisdiction under
this Act of each of such Tribunals.
(2) Any Mutawalli person interested in a wakf or any
other person aggrieved by an order made under this Act,
or rules made thereunder, may make an application
within the time specified in this Act or where no such
time has been specified, within such time as may be
prescribed, to the Tribunal for the determination of any
dispute, question or other matter relating to the wakf.
(3) and (4) XXXXXX
(5) The Tribunal shall be deemed to be a civil court
and shall have the same powers as may be exercised
by a civil court under the Code of Civil Procedure, 1908
(5 of 1908), while trying a suit, or executing a decree or
order.
Order VII Rule 11 (d) of CPC-
11. Rejection of plaint.-
(a) to (c) XXXXXXX
(d) where the suit appears from the statement in the
4 Second Appeal No.512/2010
(Kallu Khan Vs. Wakf Intajamiya Committee and another)
plaint to be barred by any law;”
4. Courts below upon perusal of aforesaid provisions,
addressed upon the issue as regards maintainability of the suit.
Both courts below have found that plaintiff claims to be in
possession of the suit shop as tenant of defendants-Wakf
Intzamiya Committee, however, plaintiff is not accepted as tenant,
but as an encroacher by the defendants, accordingly passed the
order on 29/11/2008 for vacating the suit premises. The plaintiff
himself had filed an appeal against the said order under Section
94 of the Waqf Act, 1995 before the M.P. Wakf Tribunal. The
Tribunal has dismissed the appeal on 23/3/2009. Two fold facts
remained determined viz. suit property is the Wakf property and
that the plaintiff/appellant is an encroacher. Courts below have
found that in the light of the provisions of Section 85 of the Wakf
Act, the instant suit is barred by law and, therefore, falls under the
clause of suits as contemplated under Order VII Rule 11 (d) of
CPC and accordingly dismissed the suit. On appeal before this
Court, moot question is as regards maintainability of nature of suit
filed before the civil court under Section 9 of CPC in the
background of provisions contained in the Wakf Act, 1995. The
Wakf Act has been enacted to provide for better administration
and supervision of Wakf and Wakf properties spread over the
territory of India. It came into force in the State of M.P. by virtue of
notification issued by the State Government under Section 1 (3) of
the Act. Chapter VIII deals with judicial proceedings. Section 83
(1) therein provides that the Tribunal shall be constituted by a
notification for the determination of any dispute, question or other
matter relating to wakf or wakf property under this Act. In Section
83 (2), any Mutawalli person interested in a wakf or any other
person aggrieved by an order made under this Act, or rules made
thereunder, may make an application to the Tribunal for the
determination of any dispute, question or other matter relating to
the wakf. Section 83 (5) of the Act says that the Tribunal shall be
deemed to be a civil court and shall have all powers of a civil court
under the Code of Civil Procedure, 1908 and Section 83 (7) talks
that the decision of the Tribunal shall be final and binding upon
the parties to the application and it shall have the force of a
decree made by a civil court and Section 83 (8) of the Act talks
that the execution of any decision of the Tribunal shall be made by
the civil court to which such decision is sent for execution in
accordance with the provisions of CPC. Section 83 (9) of the Act
speaks of bar of any appeal against the decision or order of the
Tribunal provided that the High Court may either on its own
motion or on an application of the Board or any person aggrieved,
call for and examine the records relating to any dispute, question
or other matter which has been determined by the Tribunal for the
purpose of satisfying itself as to the correctness, legality and
propriety of such determination and may confirm, reverse or
modify such determination or pass such other order as it may
deem fit.
5. Section 85 of the Act provides for bar of suit or other legal
proceedings in any civil court in respect of any dispute, question
or other matter relating to any wakf property or other matter which
is required by or under this Act to be determined by a Tribunal.
6. Now juxtapositioning the facts of the instant case with
aforequoted provisions, it is explicit and there remains no cavil of
doubt that the suit property is a wakf property in view of the order
passed by the Tribunal dated 23/3/2009. Plaintiff sought
declaration that he be declared as tenant either of defendant no.1
or defendant no.2 committees, managing the Waqf Intzamiya
Committee and with further relief of permanent injunction against
eviction. In view of the aforesaid factual matrix, in the opinion of
this court, bar as created under Section 85 of the Wakf Act, 1995
squarely applies to the facts in hand as the questions to be
answered in the light of the plaint allegations and the prayer
clause are related to the Wakf property and the alleged status of
the plaintiff has already been determined to be an encroacher by
the Wakf Tribunal vide its order dated 23/3/2009, hence, the suit
has rightly been dismissed by the courts below. Appeal sans
merits is hereby dismissed.
(Rohit Arya)
Judge
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