Inamdhar Pallivnsal Wakf vs Sheik Abdullah

Aruna Jagadeesan, J.—These Civil Revision Petition are filed against the order dated 9.4.2011 made in IA. No. 37/2011 in WOP. No.

1/2010 by the learned Principal Subordinate Judge (Wakf Tribunal), Tiruchirappalli, allowing the rejection petition in WOP. No. 1/2010 and

consequently striking off the same from the file of the Wakf Tribunal. The Petitioner/Inamdhar Pallivasal Wakf represented by its Muthawali filed

the suit against the Respondent herein in WOP. No. 1/2010 for permanent injunction restraining the Respondent from interfering with the

possession of the Petitioner in the schedule mentioned property either by way of trespass or otherwise in any manner whatsoever. The Respondent

in the said suit has filed an application under Order 7 Rule 11(d) of CPC to reject the main WOP. No. 1/2010 and in consequence thereof to

strike of the same from the file of the Wakf Tribunal. The same has been allowed by the Tribunal and aggrieved against the same, the Petitioner has

preferred these Civil Revision Petitions.

In the said application, it has been stated by the Respondent that there was a rental agreement between the erstwhile Muthavalli and the

Respondent''s father and after him, the Respondent and his brothers were in possession and enjoyment of a portion of the petition mentioned

property as a tenant from the year 1986, by running a petty shop. It is further stated that after the demise of erstwhile Muthawali, the Petitioner

who was appointed as Muthawali, concealed the entire fact of tenancy and with an evil motive has filed this WOP before the Wakf Tribunal. It is

stated that the relationship between the Respondent and the Petitioner Wakf is that of landlord and tenant and the same would not come under the

purview of Wakf Act. The Petitioner Wakf seeking a relief of injunction is only to safeguard the wakf properties and therefore, it is an ordinary civil

dispute and such a dispute should be decided only by a competent regular civil court.

The Revision Petitioner resisted the said application contending inter alia that there is neither rental agreement nor any right of tenancy between

the Respondent and the Petitioner Wakf and the Respondent is not in possession of the property. It has been pointed out that in the counter filed

by the Respondent in the application for interim injunction, the Respondent has stated that the property leased out to the Respondent was acquired

and taken over by the National Highways Authority of India and that he had put up a small petty shop on the southern road margin of Kulathur-

Villivadi road and that he has nothing to do with the petition Wakf property. It has been further contended that all matters relating to any Wakf

have to be decided only by the Wakf Tribunal and not by a Civil Court.

I have heard Ms. N. Krishnaveni, the learned counsel for the Petitioner and Mr. A. Syed Abuthakar, the learned counsel for the Respondent

and perused the records.

Section 85 of the Wakf Act runs thus:-

Section 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.

Since a full-fledged forum for the determination of disputes arising out of the Wakf Act, 1995 has been provided under Sections 83 to 95, the

jurisdiction of the civil courts to try any suit or legal proceedings in respect of any dispute relating to any Wakf has been barred. Section 85 of the

Wakf Act incorporates the same and bar of jurisdiction of civil court is contemplated u/s 85 of the Wakf Act, 1995 in respect of Wakf property.

The question as to whether the suit property is a wakf property or not relates to the jurisdiction of the Wakf Tribunal and it has to be determined

only by the Wakf Tribunal. u/s 83 of the Wakf Act, the Wakf Tribunal is constituted to determine any dispute, question or other matter relating to a

Wakf or Wakf property. This interpretation on Section 83 gets further strength by the mandate of Section 85 which imposes bar on the jurisdiction

of the civil courts 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 the Tribunal.

The claim of the Petitioner is that the petition mentioned property is the wakf property and the Respondent was trying to encroach on the said

property and therefore, the Petitioner seeks for permanent injunction. Whereas the Respondent has put forth a plea of landlord and tenant

relationship between the Wakf and himself. Contrary to the said plea, in the counter filed by him in IA. No. 17/2010 in WOP. No. 1/2010, the

Respondent has pleaded that for laying a four lane Highways for Dindugul-Trichy main road, the property that was leased out to him by the Wakf

was acquired and taken over by the National Highways Authority of India and that the Respondent, after he was dispossessed by NHAI, located

his shop on the southern road margin of Kulathur-Villivadi road which is a state highway road. Therefore, it has been contended that the shop put

up by him in the above said site has nothing to do with the Petitioner wakf property.

So, the Respondent at one stage claims that he is a tenant under the petitioner wakf and in contra to the said plea, he has come forward with a

statement that the site occupied by him has nothing to do with the Petitioner wakf. Therefore, the question arises for determination is as to whether

the petition mentioned property is a wakf property or not and the dispute relates to nature of the property.

As per Section 6 of the Wakf Act, if any question arises whether a particular property is a wakf property or not, the Board or the muthawali of

the wakf may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final.

The Honourable Supreme Court in 2010-6-MLJ-527-SC (Ramesh Gobindram (dead) by LRs Vs. Sugra Humayun Mirza Wakf) has held

that whenever a question arises whether any dispute, a question or other matter relating to any wakf or wakf property falls within the jurisdiction of

a civil court, the answer would depend upon whether any such dispute question or other matter is required under the Act to be determined by the

Tribunal constituted under the Act. It held thus:-

A plain reading of the above would show that the civil court''s jurisdiction is excluded only in cases where the matter in dispute is required

under the Act to be determined by the Tribunal. The words ''which is required by or under this Act to be determined by Tribunal"" holds the key to

the question whether or not all disputes concerning the wakf or wakf property stand excluded from the jurisdiction of the civil court. Whenever a

question arises whether ''any dispute, question or other matter"" relating to ''any wakf or wakf property or other matter'' falls within the jurisdiction

of a civil court the answer would depend upon whether any such dispute, question or other matter is required under the Act to be determined by

the Tribunal constituted under the Act. If the answer be in the affirmative, the jurisdiction of civil court would be excluded qua such a question, for

in that case, the Tribunal alone can entertain and determine any such question. The bar of jurisdiction contained in Section 85 is in that sense much

wider than that contained in Section 6(5) read with Section 7 of the Wakf Act. While the latter bars the jurisdiction of the civil court only in relation

of questions specified in Sections 6(1) and 7(1), the bar of jurisdiction contained in Section 85 would exclude the jurisdiction of the Civil Courts

not only in relation to matters that specifically fall in Sections 6 and 7 but also other matters required to be determined by a Tribunal under the Act.

In the case on hand, the question is whether the site occupied by the Respondent is a wakf property or not which is required to be determined

by the wakf Tribunal.

At this juncture, it is relevant to refer to the decision of the Honourable Supreme Court reported in 2011-1-CTC-636 (Board of Wakf, West

Bengal and another Vs. Anis Fatma Begum and another) wherein it has been held that any dispute, question or other matter whatsoever and in

whatever mariner it arises which relates to a wakf or wakf property, it should be agitated before the wakf Tribunal. It has been clarified that the

Tribunal has all powers of the civil court under the CPC and hence, it has also powers under Order 39, Rule 1, 2 and 2D of CPC to grant

temporary injunction and enforce such injunction.

Since in this case, there is dispute regarding the nature of property as to whether it is a wakf property or not, it cannot be a civil dispute and the

civil court can have no jurisdiction and the Tribunal constituted u/s 83 of the Act alone has jurisdiction to determine the said dispute. Therefore,

when the Tribunal has been conferred with the power to determine any dispute, question or other matter relating to a wakf property under the Act,

the civil court''s jurisdiction is ousted and it is for the Tribunal to deal with the disputed question in this case. Therefore, the impugned order passed

by the wakf Tribunal rejecting the petition and consequently striking off the WOP. No. 1/2010 from the file of the wakf Tribunal is liable to be set

aside. In the result, these Civil Revision Petitions are allowed and the impugned order passed in IA. No. 37/2011 in WOP. NO. 1/2010 and the

consequential order passed in WOP. No. 1/2010 are set aside. The wakf Tribunal is directed to restore the WOP. No. 1/2010 to its file and to

dispose of the same, on merits and in accordance with law, as expeditiously as possible. No costs. Consequently, the connected MP is closed.