Kajodi and Others vs Rajasthan Wakf Tribunal and Others

M.N. Bhandari, J.�By this writ petition, a challenge is made to the order dated 02.09.2011 passed by Rajasthan Wakf Tribunal (in short "Tribunal").

Learned counsel for petitioners submits that a petition was filed by Rajasthan Board of Muslim Wakf before the Tribunal for eviction, declaration and permanent injunction. It was for 3 bigha of land out of Khasra No. 362. The aforesaid petition was allowed by the Wakf Tribunal in ignorance of jurisdiction to entertain a petition for eviction, which lies with the Civil Court.

Learned Tribunal failed to consider that out of 9 bigha and 15 biswa of land, new Khasra Nos. 192/2 and 192/3 were made and 3 bigha of land was set apart for grave yard vide the order of Collector dated 03.02.2006. The Patwari then prepared a site report for 3 bighas of land in pursuance to the order of Tehsildar dated 10.04.2006. Prior to it, a report was also sought by the Tehsildar on 17.10.2004 wherein it was found that 3 bigha of land is used by the Muslim community and remaining land is lying vacant. The petitioners signed the report showing them to be encroachers. They however preferred an appeal to challenge it before the Revenue Appellate Authority. It was on the ground that they are having possession in the land for last 60 years. The appeal was dismissed thus petitioners preferred a revision petition bearing No. 5493/2006 before the Board of Revenue and is pending consideration. An order was further passed on 28.06.2006 under Section 91 of Land Revenue Act.

The Collector had wrongly set apart the land for grave yard as it is pasture land. In view of above, impugned order is not sustainable in the eye of law and even on facts. If revision petition preferred by the petitioners is allowed by the Board of Revenue, it would have effect on the case.

The Tribunal has passed ex-parte order against the petitioners for 3 bigha of land ignoring all the facts mentioned above and even the fact that prior to settlement, land in dispute was not in the name of grave yard. It is lastly contended that a separate land for grave yard exists thus, there was no reason to set apart the land of Khasra No. 192/3, measuring 3 bigha.

The land in dispute is pasture land thus the Tehsildar had taken cognizance of the aforesaid and finding the land to be useful for commercial purposes, sent the matter for reference to the Collector on 06.11.2006 and is yet pending.

A reference of judgment of Hon''ble Apex Court in the case of Ramesh Gobindram (Dead) through LRs. v. Sugra Humayun Mirza Wakf, reported in 2010 (4) RLW 3343 (SC) is given to show that a case for eviction is not maintainable before the Tribunal. Prayer is made to set aside the impugned order passed by the Tribunal.

Per contra, learned counsel for respondent has supported the impugned order. It is submitted that the Tribunal was having jurisdiction to adjudicate the case as it was not a case simplicitor to seek eviction or injunction simplicitor but for declaration of the property to be of wakf. The jurisdiction for it lies only with the Tribunal and not to the civil court as is barred by Section 85 of the Wakf Act.

Coming to the facts of this case, it is submitted that the land in dispute was set apart for grave yard thus being wakf property, encroachment made by the petitioners is ordered to be removed and they were directed not to make encroachment on it. To support the arguments about jurisdiction, reference of judgment of Hon''ble Apex Court in the case of Haryana Wakf Board v. Mukesh Kumar in Special Leave Petition (Civil) No. 10947/2012, decided on 21st November, 2013 has been given. Therein, the jurisdiction of the civil court has been excluded for a dispute regarding wakf property. It was in view of the fact that other party denied property to be of wakf, as happened in this case. Hon''ble Apex Court held that jurisdiction would lie exclusively to the Wakf Tribunal. Prayer is accordingly made to dismiss the writ petition.

I have considered rival submissions made by the parties and perused the record.

A petition for eviction, permanent injunction and declaration was filed by the non-petitioner-Rajasthan Board of Muslim Wakf. It was in reference to 3 bigha of land out of old Khasra No. 362. The petition was allowed. The challenge to the aforesaid has been made mainly on the ground that the Tribunal had no jurisdiction to entertain a petition for eviction and thereafter on merit.

The issue as to whether Tribunal has jurisdiction for eviction and permanent injunction from wakf property, was decided by Hon''ble Apex Court in the case of Ramesh Gobindram (supra). Therein, it was held that the Tribunal is not having jurisdiction to entertain a petition of eviction and permanent injunction. If any dispute comes as to whether property is of wakf or not, can be decided by the Tribunal alone. For the aforesaid, a reference of Sections 6 & 7 of the Wakf Act has been given. Section 6 refers about the dispute regarding wakf, whereas Section 7 provides about power for determination of question and lastly Section 85 which bars jurisdiction of civil court in regard to dispute of wakf properties. The view expressed by various High Courts which include Rajasthan High Court was not approved for the jurisdiction of Tribunal. The judgments of Rajasthan High Court and various other High Courts are in reference to Section 83 of the Wakf Act. The Hon''ble Apex Court clarified that Section 83 does not provide for exclusion of the jurisdiction of the civil court. The same view was then reiterated by Hon''ble Apex Court in subsequent judgment in the case of Haryana Wakf Board (supra).

The perusal of those judgments reveals that if a dispute comes under Section 6(1) of the Wakf Act, it can be determined only by the Tribunal but other issues to be determined by the civil court. The case in hand is of complex nature as not only petition for eviction and injunction has been filed but a declaration was also sought about wakf property. If matter is considered simplicitor for declaration of the land in dispute to be wakf property, exclusive jurisdiction lies with the Tribunal. However so far as other reliefs are concerned, it does not fall under the jurisdiction of the Tribunal but then Wakf Board cannot be asked to seek two remedies separately for one and same property. If petition is filed to seek declaration and with ancillary reliefs for eviction and injunction, it would be maintainable before the Tribunal. It is looking to specific bar regarding jurisdiction of the civil court to entertain a petition which lies exclusively to the Tribunal.

In the case of Ramesh Gobindram (supra), the aforesaid issue has been decided and paras 8 to 23 are relevant thus quoted hereunder for ready reference:

"8. Let us now see whether the respondent-Wakf Board who claims exclusion of jurisdiction of Civil Court has discharged the onus that lay upon it. Section 6 of the Act which bears direct relevance to that question may at this stage be extracted:

"Section 6. Disputes regarding wakfs.--(1) If any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or any person interested therein 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:

Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of wakfs.

Explanation-For the purposes of this section and Section 7, the expression "any person interested therein", shall, in relation to any property specified as wakf property in the list of wakfs published after the commencement of this Act, shall include also every person who, though not interested in the wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under Section 4.

(2) Notwithstanding anything contained in Sub-section (1), no proceeding under this Act in respect of any wakf shall be stayed by reason, only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit.

(3) The Survey Commissioner shall not be made a party to any suit under sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder.

(4) The list of wakfs shall, unless it is modified in pursuance of a decision of the Tribunal under Sub-section (1), be final and conclusive.

(5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a Court in that State in relation to any question referred to in sub-section (1)."

A plain reading of sub-section (5) of Section 6 (supra) would show that the Civil Court''s jurisdiction to entertain any suit or other proceedings stands specifically excluded in relation to any question referred to in sub-section (1). The exclusion it is evident from the language employed is not absolute or all pervasive. It is limited to the adjudication of the question (a) whether a particular property specified as wakf property in the list of wakfs is or is not a wakf property, and (b) whether a wakf specified in such list is a Shia wakf or a Sunni wakf. The Board or the mutawalli of the wakf or any person interested in the wakf is competent to institute a suit in a Tribunal for a decision on the above question or questions, which decision shall then be final provided that no such suit can be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of wakfs.

We may at this stage refer to Section 7 of the Act which provides for the forum for determination of questions referred to therein and arising after the commencement of this Act. What is important is that the questions referred to in Section 7(1) are the very same questions that are referred to in Section 6(1) with the only difference that Section 7(1) refer to the said questions arising after the commencement of the Act. Section 7 is extracted below:

"Section 7. Power of Tribunal to determine disputes regarding wakfs.--(1) If, after the commencement of this Act, any question arises, whether a particular property specified as wakf property in a list of wakfs is wakf property or not, or whether a wakf specified in such list is a Shia wakf or a Sunni wakf, the Board or the mutawalli of the wakf, or any person interested therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final:

Provided that -

(a) in a case of the list of wakfs relating to any part of the State and published after the commencement of this Act no such application shall be entertained after the expiry of one year from the date of publication of the list of wakfs; and

(b) in the case of the list of wakfs to any part of the State and published at any time within a period of one year immediately preceding the commencement of this Act, such an application may be entertained by Tribunal within the period of one year from such commencement;

Provided further that where any such question has been heard and finally decided by a Civil Court in a suit instituted before such commencement, the Tribunal shall not re-open such question.

(2) Except where the Tribunal has no jurisdiction by reason of the provisions of sub-section (5), no proceeding under this section in respect of any wakf shall be stayed by any Court. Tribunal or other authority by reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application, appeal or other proceeding.

(3) The Chief Executive Officer shall not be made a party to any application under sub-section (1).

(4) The list of wakfs and where any such list is modified in pursuance of a decision of the Tribunal under sub-section (1), the list as so modified, shall be final.

(5) The Tribunal shall not have jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a Civil Court under sub-section (1) of Section 6, before the commencement of this Act or which is the subject-matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be."

Second proviso to Section 7(1) accords finality to the judgments of the Civil Court in suits instituted before such commencement. Sub-section (5) to Section 7 excludes from the jurisdiction of the Tribunal any dispute which is the subject matter of a suit in a Civil Court instituted before the commencement of the Act.

From a conjoint reading of the provisions of Sections 6 and 7 (supra) it is clear that the jurisdiction to determine whether or not a property is a wakf property or whether a wakf is a Shia wakf or a Sunni wakf rests entirely with the Tribunal and no suit or other proceeding can be instituted or commenced in a Civil Court in relation to any such question after the commencement of the Act. What is noteworthy is that under Section 6 read with Section 7 (supra) the institution of the Civil Court is barred only in regard to questions that are specifically enumerated therein. The bar is not complete so as to extend to other questions that may arise in relation to the wakf property.

We may at this stage usefully digress from the core issue only to highlight the fact that Sections 6(1) and the proviso thereto has fallen for interpretation of this Court on a few occasions. In Board of Muslim Wakfs, Rajasthan Vs. Radha Kishan and Others, one of the questions that fell for determination was, who are the parties that could be taken to be concerned in a proceeding under sub-section (1) of Section 6 of the Act. This Court held that under Section 6(1) the Board or the mutawalli of the wakf or any person interested therein is entitled to file a suit but the word "therein" following the expression "any person interested" must necessarily refer to the word "wakf" which immediately precedes it. The object underlying the proviso observed, this Court was to confine the power to file a suit to the mutawalli and persons interested in the Wakf. It did not extend to persons who are not persons interested in the wakf. Consequently the right, title and interest of a stranger, (a non-Muslim), to the wakf in a property cannot be put in jeopardy merely because that property is included in the list of wakfs. The special rule of limitation prescribed by the proviso to Section 6(1) was itself held inapplicable to him and a suit for declaration of title to any property included in the list of wakfs held maintainable even after the expiry of the period of one year. The following passage from the decision is in this regard apposite:

"The question that arises for consideration, therefore, is as to who are the parties that could be taken to be concerned in a proceeding under sub-section (1) of Section 6 of the Act, and whether the list published under Sub-section (2) of Section 5 declaring certain property to be wakf property, would bind a person who is neither a mutawalli nor a person interested in the wakf.

The answer to these questions must turn on the true meaning and construction of the word ''therein'' in the expression ''any person interested therein'' appearing in Sub-section (1) of Section 6. In order to understand the meaning of the word ''therein'' in our view, it is necessary to refer to the preceding words ''the Board or the mutawalli of the wakf''. The word ''therein'' must necessarily refer to the ''wakf'' which immediately precedes it. It cannot refer to the ''wakf property''. Sub-section (1) of Section 6 enumerates the persons who can file suits and also the questions in respect of which such suits can be filed. In enumerating the persons who are empowered to file suits under this provision, only the Board, the mutawalli of the wakf, and ''any person interested therein'', thereby necessarily meaning any person interested in the wakf, are listed. It should be borne in mind that the Act deals with wakfs, its institutions and its properties. It would, therefore, be logical and reasonable to infer that its provisions empower only those who are interested in the wakfs, to institute suits. Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx. It follows that where a stranger who is a non-Muslim and is in possession of a certain property his right, title and interest therein cannot be put in jeopardy merely because the property is included in the list. Such a person is not required to file a suit for a declaration of his title within a period of one year. The special rule of limitation laid down in proviso to sub-section (1) of Section 6 is not applicable to him. In other words, the list published by the Board of Wakfs under sub-section (2) of Section 5 can be challenged by him by filing a suit for declaration of title even after the expiry of the period of one year, if the necessity of filing such suit arises."

To the same effect is the decision of this Court in Punjab Wakf Board Vs. Gram Panchayat @ Gram Sabha, .

The exclusion of the jurisdiction of the Civil Courts to adjudicate upon disputes whether a particular property specified in the wakf list is or is not a wakf property or whether a wakf specified in list is a Shia wakf or a Sunni wakf is clear and presents no difficulty whatsoever. The difficulty, however, arises on account of the fact that apart from Section 6(5) which bars the jurisdiction of the Civil Courts to determine matters referred to in Section 6(1), Section 85 of the Act also bars the jurisdiction of the Civil Courts to entertain any legal proceedings in respect of any dispute, question or matter relating to a wakf property. Section 85 of the Act reads:

"85. Bar of jurisdiction of Civil Courts - No suit or other legal proceedings 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."

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. There are a host of such matters in which the Tribunal exercises original or appellate jurisdiction. To illustrate the point we may usefully refer to some of the provisions of the Act where the bar contained in the said section would get attracted. Section 33 of the Act deals with the power of inspection by a Chief Executive Officer or person authorized by him. In the event of any failure or negligence on the part of a mutawalli in the performance of his duties leading to any loss or damage, the Chief Executive Officer can with the prior approval of the Board pass an order for the recovery of the amount or property which has been misappropriated, misapplied or fraudulently retained. Sub-section (4) of Section 33 then entitles the aggrieved person to file an appeal to the Tribunal and empowers the Tribunal to deal with and adjudicate upon the validity of the orders passed by the Chief Executive Officer.

Similarly under Section 35 the Tribunal may direct the mutawalli or any other person concerned to furnish security or direct conditional attachment of the whole or any portion of the property so specified.

Section 47 of the Act requires the accounts of the wakfs to be audited whereas Section 48 empowers the Board to examine the audit report, and to call for an explanation of any person in regard to any matter and pass such orders as it may think fit including an order for recovery of the amount certified by the auditor under Section 47(2) of the Act. The mutawalli or any other person aggrieved by any such direction has the right to appeal to the Tribunal under Section 48. Similar provisions giving powers to the Wakf Board to pass orders in respect of matters stipulated therein are found in Sections 51, 54, 61, 64, 67, 72 and 73 of the Act. Suffice it to say that there are a host of questions and matters that have to be determined by the Tribunal under the Act, in relation to the wakf or wakf property or other matters. Section 85 of the Act clearly bars jurisdiction of the Civil Courts to entertain any suit or proceedings in relation to orders passed by or proceedings that may be commenced before the Tribunal. It follows that although Section 85 is wider than what is contained in Sections 6 and 7 of the Act, the exclusion of jurisdiction of Civil Courts even under Section 85 is not absolute. It is limited only to matters that are required by the Act to be determined by a Tribunal. So long as the dispute or question raised before the Civil Court does not fall within four corners of the powers vested in the Tribunal, the jurisdiction of the former to entertain a suit or proceedings in relation to any such question cannot be said to be barred.

The High Courts of Andhra Pradesh, Rajasthan, Madhya Pradesh, Punjab and Haryana have in the decisions to which we have made reference in the earlier part of this judgment taken the view that the jurisdiction of the Civil Courts is barred in respect of disputes that concerns with any wakf or wakf property. The decisions rendered by these High Courts draw support for that conclusion from Section 83 of the Wakf Act, 1995. The language employed in Section 83 of the Act has been understood to be so wide as to include any dispute, question or other matter relating to a wakf or wakf property. Section 83 of the Act, however, does not deal with the exclusion of the jurisdiction of the Civil Courts to entertain civil suits generally or suit of any particular class or category. The exclusion of Civil Court''s jurisdiction is dealt with by Section 6(5) and Section 85 of the Act. To interpret Section 83 as a provision that excludes the jurisdiction of the Civil Courts is not, therefore, legally correct, for that provision deals with constitution of Tribunals, the procedure which the Tribunals would follow and matters relating thereto. It reads:

"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) Where any application made under Sub-section (1) relates to any wakf property which falls within the territorial limits of the jurisdiction of two or more Tribunals, such application may be made to the Tribunal within the local limits of whose jurisdiction the mutawalli or any one of the mutawallis of the wakf actually and voluntarily resides, carries on business or personally works for gain, and, where any such application is made to the Tribunal aforesaid, the other Tribunal or Tribunals having jurisdiction shall not entertain any application for the determination of such dispute, question or other matter:

Provided that the State Government may, if it is of opinion that it is expedient in the interest of the wakf or any other person interested in the wakf or the wakf property to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such wakf or wakf property, transfer such application to any other Tribunal having jurisdiction, and, on such transfer, the Tribunal to which the application is so transferred shall deal with the application from the stage which was reached before the Tribunal from which the application has been so transferred, except where the Tribunal is of opinion that it is necessary in, the interests of justice to deal with the application afresh.

(4) Every Tribunal shall consist, of one person, who shall be a, member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class I, and the appointment of every such person may be made either by name or by designation.

(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.

(6) Notwithstanding anything contained in the Code of Civil Procedure, 1908, (5 of 1908), the Tribunal shall follow such procedure as, may be prescribed.

(7) 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.

(8) 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 the Code of Civil Procedure, 1908 (5 of 1908).

(9) No appeal shall he against any decision or order whether interim or otherwise, given or made by the Tribunal:

Provided that a High Court may, on its own motion or on the 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 or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit."

It is clear from sub-section (1) above that the State Government is empowered to establish as many Tribunals as it may deem fit for the determination of any dispute, question or other matter relating to a wakf or wakf property under the Act and define the local limits of their jurisdiction. Sub-section (2) of Section 83 permits any mutawalli or other person interested in a wakf or any person aggrieved of an order made under the Act or the rules framed thereunder to approach the Tribunal for determination of any dispute, question or other matter relating to the wakf. What is important is that the Tribunal can be approached only if the person doing so is a mutawalli or a person interested in a wakf or aggrieved by an order made under the Act or the rules. The remaining provisions of Section 83 provide for the procedure that the Tribunal shall follow and the manner in which the decision of a Tribunal shall be executed. No appeal is, however, maintainable against any such order although the High Court may call for the records and decide about the correctness, legality or propriety of any determination made by the Tribunal.

There is, in our view, nothing in Section 83 to suggest that it pushes the exclusion of the jurisdiction of the Civil Courts extends beyond what has been provided for in Section 6(5), Section 7 and Section 85 of the Act. It simply empowers the Government to constitute a Tribunal or Tribunals for determination of any dispute, question of other matter relating to a wakf or wakf property which does not ipso facto mean that the jurisdiction of the Civil Courts stands completely excluded by reasons of such establishment. It is noteworthy that the expression "for the determination of any dispute, question or other matter relating to a wakf or wakf property" appearing in Section 83(1) also appears in Section 85 of the Act. Section 85 does not, however, exclude the jurisdiction of the Civil Courts in respect of any or every question or disputes only because the same relates to a wakf or a wakf property. Section 85 in terms provides that the jurisdiction of the Civil Court shall stand excluded in relation to only such matters as are required by or under this Act to be determined by the Tribunal. The crucial question that shall have to be answered in every case where a plea regarding exclusion of the jurisdiction of the Civil Court is raised is whether the Tribunal is under the Act or the Rules required to deal with the matter sought to be brought before a Civil Court. If it is not, the jurisdiction of the Civil Court is not excluded. But if the Tribunal is required to decide the matter the jurisdiction of the Civil Court would stand excluded.

In the cases at hand the Act does not provide for any proceedings before the Tribunal for determination of a dispute concerning the eviction of a tenant in occupation of a wakf property or the rights and obligations of the lessor and the lessees of such property. A suit seeking eviction of the tenants from what is admittedly wakf property could, therefore, be filed only before the Civil Court and not before the Tribunal. The contrary view expressed by the Tribunal and the High Court of Andhra Pradesh is not, therefore, legally sound. So also the view taken by the High Courts of Rajasthan, Madhya Pradesh, Kerala and Punjab and Haryana in the decisions referred to earlier do not declare the law correctly and shall to the extent they run counter to what we have said hereinabove stand overruled. The view taken by the High Courts of Allahabad, Karnataka, Madras and Bombay is, however, affirmed.

In the result these appeals succeed and are hereby allowed. The impugned orders passed by the High Court and those passed by the Wakf Tribunal shall stand set aside and the suit filed by the respondent-Wakf Board for the eviction of the appellants dismissed leaving the parties to bear their own costs. We make it clear that this order shall not prevent the Wakf Board from instituting, if so advised, appropriate civil action before the competent Civil Court for redress in accordance with law. No costs."

In the case of Haryana Wakf Board (supra), Paras 5 to 7 and 9 & 10 are relevant thus quoted hereunder:

"5. The respondent challenged the aforesaid judgment and decree by filing First Appeal under Section 96 of the Code of Civil Procedure, before the Additional District Judge, Karnal which was registered as Civil Appeal No. 49/2007. The learned Additional District Judge decided the said appeal vide his judgment dated 15.6.2009. Deciding the question of maintainability and locus standi, in respect of which issue Nos. 2 and 4 were framed, the first appellate court held that since the claim in the suit by the petitioner which is a Wakf Board, was on the basis that suit property was Wakf property and since the respondent had denied it to be the Wakf property, the question had arisen as to whether suit property is Wakf Property or not. Such a question, in the opinion of the learned ADJ, could be decided only by the Tribunal constituted under the Wakf Act. The appeal court, therefore, returned of the plaint to the petitioner under Order VII of Rule 10, CPC for presentation to the court of competent jurisdiction, namely, the Tribunal. The result was that the decree passed by the trial court was set aside and the plaint returned.

The petitioner approached the High Court by way of Regular Second Appeal under Section 100 of the CPC challenging the aforesaid findings of the First Appellate Court returning the plaint for want of jurisdiction of the Civil Court. The High Court, has, however, dismissed the appeal in limine observing that the Appellate Court has taken right view in the matter. Against that order, the present Special Leave Petition is filed.

From the aforesaid, it is clear that the only question which calls for consideration is as to whether Civil Court had the jurisdiction to entertain the suit. The issue depends upon the interpretation of Section 7 read with Section 85 of the Haryana Wakf Act, 1995 (hereinafter referred to as the Wakf Act). These provisions read as under:

Power of Tribunal to determine disputes regarding wakfs:

(1) If, after the commencement of this Act, any question arises, whether a particular property specified as wakf property in a list of wakfs is wakf property or not, or whether a wakf specified in such list is a Shia wakf or a Sunni wakf, the Board or the mutawalli of the wakf, or any person interested therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final:

Provided that-

(a) In the case of the list of wakfs relating to any part of the State and published after the commencement of this Act no such application shall be entertained after the expiry of one year from the date of publication of the list of wakfs.

(b) In the case of the list of wakfs relating to any part of the State and published at any time within a period of one year immediately preceding the commencement of this Act, such an application may be entertained by Tribunal within the period of one year from such commencement:

Provided further that where any such question has been heard and finally decided by a civil court in a suit instituted before such commencement, the Tribunal shall not re-open such question.

(2) Except where the Tribunal has no jurisdiction by reason of the provision of sub-section (5), no proceeding under this Section in respect of any wakf shall be stayed by any court, tribunal or other authority by reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application, appeal or other proceeding.

(3) The Chief Executive Officer shall not be mad a party to any application under sub-section (1).

(4) The list of wakfs and where any such list is modified in pursuance of a decision of the Tribunal under Sub-section (1), the list as so modified, shall be final.

(5) The Tribunal shall not have jurisdiction to determine any matter which is the subject matter of any suit or proceeding instituted or commenced in a civil court under sub-section (1) of section 6, before the commencement of this Act or which is the subject matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be.

Section 85 of the Act bars the jurisdiction of the Civil Court to decide such issues. Section 85 reads as under:

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."

"9. On a conjoint reading of Section 7 and Section 85, legal position is summed up as under:

i) In respect of the questions/disputes mentioned in Sub-section (1) of Section 7, exclusive jurisdiction vests with the tribunal, having jurisdiction in relation to such property.

ii) Decision of the tribunal thereon is made final.

iii) The jurisdiction of the Civil Court is barred in respect of any dispute/question or other matter relating to any wakf, wakf property for other matter, which is required by or under this Act, to be determined by a tribunal.

iv) There is however an exception made under Section 7(5) viz., those matters which are already pending before the Civil Court, even if the subject matter is covered under sub section (1) of section 6, the Civil Court would not continue and the tribunal shall have the jurisdiction to determine those matters.

Present suit was instituted in the year 2000 i.e. after the Wakf Act, 1985 came into force. Therefore, the present case is not covered by exception to Section 7(5) of the Wakf Act. Thus, on a plain reading of Section 7 read with section 85 of the Act, it becomes manifest that wherever there is a dispute regarding the nature of the property, namely whether the suit property is Wakf property or not, it is the Tribunal constituted under the Wakf Act, which has the exclusive jurisdiction to decide the same. We need not delve into this issue any longer, inasmuch as in a recent judgment by this very Bench of this Court in the case of Bhanwar Lal and Another Vs. Rajasthan Board of Muslim Wakf and Others, decided on 9th September 2013, this Court took the same view, after taking note of earlier judgments on the subject, namely, Sardar Khan and Others Vs. Syed Najmul Hasan (Seth) and Others, , Ramesh Gobindram (dead) through Lrs. Vs. Sugra Humayun Mirza Wakf, . This view has been re-affirmed in Akkode Jumayath Palli Paripalana Committee Vs. P.V. Ibrahim Haji and Others, ."

In the case of Haryana Wakf Board (supra), issue was summarized in Para 9 of the judgment. In view of judgments referred above, I am of the opinion that whenever dispute comes as to whether a property is of wakf or not with other relief, it can be adjudicated only by the Tribunal. It is in view of specific bar of the jurisdiction of civil court under Section 85 of the Wakf Act but if it is case of eviction or injunction only, it would be out of the jurisdiction of the Tribunal. Thus this case would fall under the jurisdiction of the Tribunal.

Coming to the merit of the case, it has peculiarity as out of 9 bigha and 15 biswa of land, 3 bigha was set apart for grave yard and the process to identify the land was undertaken from time to time with the reports of the Patwari. The matter is however pending before the Board of Revenue on a revision petition preferred by the petitioners. The land set apart for grave yard was a pasture land. In view of above, litigation still exists as to whether petitioners are in possession of the land set apart for grave yard. If revision petition preferred by the petitioners before the Board of Revenue is allowed with consequential reliefs then it would be in conflict with the order of the Tribunal.

The impugned order of the Tribunal does not discuss about other litigation with its effect. The petitioners were though declared to be encroachers and had even signed the report in token of acceptance but the aforesaid has been challenged by them by way of appeal and now a revision petition is pending before the Board of Revenue. The effect of pendency of the case before the Board of Revenue and even for sending the matter for reference by the Tehsildar to the Collector have not been dealt with by the Tribunal. It may be because learned counsel for petitioners did not appear before the Tribunal. The impugned order though makes a reference about the order passed by the Revenue Appellate Authority but arguments have not been dealt with while discussing the issue Nos. 1 & 2. The Tribunal has not decided the issue as to what would be the impact of the challenge to the order passed by the Revenue Appellate Authority in pending revision petition so as the application of the Tehsildar to the Collector for reference to record land in dispute to be a pasture land. In the background aforesaid, the impugned order cannot be allowed to stand hence it is set aside with remand of the case to the Tribunal to decide it afresh on its merit and specially after considering the facts pertaining to various litigation pending before the revenue courts.

With the aforesaid, writ petition is disposed of. The parties are directed to remain present before the Tribunal on 10.11.2014.