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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