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Judgment
R.S. Ramanathan, J.—The first defendant in O.S. No. 257 of 1998 and the defendant in O.S. No. 13 of 2006 on the file of the Wakf
Tribunal (Sub Court), Vellore is the revision petitioner in the above revisions. The first respondent filed O.S. No. 257 of 1998 for recovery of
possession and also filed O.S. No. 13 of 2006 for injunction restraining the revision petitioner herein from in anyway proceedings with the
construction work in the suit property. Both the suits were tried together and both the suits were decreed as prayed for and aggrieved by the same,
these revision are filed u/s 83 of the Wakf Act.
It is submitted by the learned counsel appearing for the revision petitioner that the suit filed in O.S. No. 257 of 1998 for eviction is not
maintainable and the Wakf Tribunal has no jurisdiction to entertain the suit for eviction, as per the law laid down by the Hon''ble Supreme Court in
the judgment reported in Ramesh Gobindram (dead) through Lrs. Vs. Sugra Humayun Mirza Wakf, and therefore, the suit for eviction can be filed
only in the civil court and the Wakf Tribunal has no jurisdiction to entertain the suit for eviction, as it is beyond the scope of sections 83 and 85 of
the Wakf Act and therefore, the decree and judgment passed in O.S. No. 257 of 1998 is liable to be set aside.
The learned counsel further submitted that the suit property is also not a Wakf property and the same has not been included in the list of Wakfs
and no publication has been effected and it is a Gramanatham of Navalpur village, as per the revenue records and without knowing the nature of
the suit property, the revision petitioner was paying rent for the vacant land and has put up a construction in the suit property and as the first
respondent is not the owner of the suit property, he is not entitled to collect rent and maintain the suit for eviction. He, therefore, submitted that
these aspects were not properly appreciated by the court below.
The learned counsel further submitted that the revision petitioner is entitled to the protection u/s 9 of the Tamil Nadu City Tenants'' Protection
Act, as he took the vacant site on lease and thereafter, put up a construction and he also filed an application u/s 9 of the Act to sell the property,
wherein he has put up the construction and he has not sub-let the premises and he is enjoying the property.
On the other hand, the learned counsel for the respondents submitted that the suit property is a Wakf property and though, the Hon''ble
Supreme Court in the judgment reported in Ramesh Gobindram (dead) through Lrs. Vs. Sugra Humayun Mirza Wakf, held that the Tribunal
constituted under the Wakf Act has no jurisdiction to pass an order of eviction, the suit was filed in the year 1989 and at that time, there was no
Wakf Tribunal to entertain the suit and therefore, the suit was originally filed before the civil court and after the constitution of the Wakf Tribunal,
the suit was transferred to Wakf Tribunal, as the Sub Court is also functioning as ''Wakf Tribunal'' and the revision petitioner has not raised an
objection regarding the jurisdiction of the Tribunal to entertain the suit, after the Wakf Tribunal took cognizance of the case and both the suits were
dismissed by the Wakf Tribunal by judgments and decrees, dated 12.08.2009. The first respondent filed revision in CRP(NPD) Nos. 332 and
333 of 2010 before this court and in this court also, no objection was raised regarding the jurisdiction of the Tribunal in entertaining the suit for
eviction and this court allowed the revisions and remitted the cases to the Wakf Tribunal for fresh disposal and thereafter, both the suits were
decreed on 17.02.2011. He, therefore, submitted that having kept quiet for more than 13 years and having participated in the proceedings before
the Wakf Tribunal and contested the suit without raising the question of jurisdiction, it is not open to the revision petitioner to raise the jurisdiction
of the Wakf Tribunal in entertaining the suit for eviction, at this point of time in the revisions.
The learned counsel further submitted that the revision petitioner herein filed W.P. No. 24622 of 2003 to quash the order passed by the District
Revenue Officer, Vellore, dated 24.12.2000 and in that writ petition, an order was passed by the learned single Judge, directing the Wakf Tribunal
to decide the status of the property viz., whether it is a Wakf property or not and the same was challenged by the first respondent herein in W.A.
No. 1079 of 2009 and that writ appeal was allowed and liberty was given to the writ petitioner to take appropriate steps for redressal of his
grievance, as the revision petitioner herein challenged the order of grant of patta in favour of the first respondent. He, therefore, submitted that
having regard to the nature of dispute raised by the revision petitioner regarding the character of the property, the Wakf Tribunal is a competent
court to decide that issue and therefore, the court below rightly decreed the suits.
It is seen from the decree passed in O.S. No. 257 of 1998 that the suit was filed on 15.09.1989. The Wakf Act, 1995 came into force only on
27.12.1995 and earlier to that, the Wakf Act, 1954 was in force. Therefore, when the suit was filed in the year 1989, there was no Wakf Tribunal
constituted under the old Act and the Wakf Tribunal was constituted only under the new Act in 1995. Therefore, it cannot be stated that the case
was instituted in a wrong forum.
The Hon''ble Supreme Court in the judgment reported in Nand Kishore Marwah and Others Vs. Samundri Devi, held that the law applicable on
the date of the institution of a suit alone governs the situation and the suit has to be decided without reference to the subsequent events. The same
principle was also reiterated in the judgment reported in A.V. Hanifa Vs. Salima Dhanu, Therefore, when a suit for eviction was filed in the year
1990, there was no Tribunal constituted under the Wakf Act and therefore, the suit was initiated before the competent court. Later, after the
constitution of the Wakf Tribunal, without reference to the parties, the case was posted before the Wakf Tribunal, as the Sub-court is also
designated as ''Wakf Tribunal''. Further, no question of jurisdiction was raised in this case, though technically transfer of the case from Sub Court
to Wakf Tribunal (Sub Court) is not proper. However, as rightly submitted by the learned counsel for the first respondent, no objection was raised
by the revision petitioner, when the case was tried by the Wakf Tribunal and delivered the judgment in the year 2009 and thereafter also, when the
revision was filed by the respondents herein before this court challenging the dismissal of the suits in O.S. Nos. 257 of 1998 and O.S. No. 13 of
2006, no objection was raised and this court remitted the matter to the Wakf Tribunal for adjudication of the issue in the light of the observations
made therein and even thereafter, no objection was raised by the revision petitioner. Therefore, by reason of the conduct of the revision petitioner,
he waived his objection regarding the jurisdiction and he also acquiesced the jurisdiction of the Wakf Tribunal for deciding the issue involved in the
case.
Further, u/s 21 of CPC, no objection as to the place of suing, as to the competence of a court with reference to the pecuniary limits of its
jurisdiction shall be allowed by any Appellate or Revisional Court, unless such objection was taken at the earliest possible opportunity and in all
these cases, the jurisdiction issue was not at all raised. Therefore, having regard to the fact that no objection was raised by the revision petitioner,
for all these years regarding the jurisdiction of the Wakf Tribunal to entertain the suit for eviction and that issue has been raised only for the first
time before this court, it can easily be inferred that the revision petitioner has waived his right to raise that issue and the same cannot be allowed to
be raised for the first time in the Revisional court. Therefore, the judgment reported in Ramesh Gobindram (dead) through Lrs. Vs. Sugra
Humayun Mirza Wakf, holding that the suit seeking for evict of the tenant''s from the Wakf property can be filed only before the civil court and not
before the Wakf Tribunal cannot be applied to the facts of the case for the reasons as stated supra.
Though, a decree passed by the court, which has no inherent jurisdiction to try the matter is a nullity, in my opinion, the above proposition of
law can not be applied to the facts of this case. As stated supra, originally the suit was filed in the civil court and thereafter, without reference to the
parties, the suit was transferred to Wakf Tribunal, which is also the same sub court and though the procedures followed by the court below in
transferring the suit without giving notice to the parties and allowed the suit having the same numbered is not proper, the fact remains that the case
was made out from the civil court to Wakf Tribunal by the act of the Court and as per the maxim ""Actus curiae neminem gravabit"", an act of the
Court shall prejudice no man. Therefore, the made over by the civil court to Wakf Tribunal shall not prejudice the rights of the parties and
therefore, on that ground the Wakf Tribunal has no jurisdiction to order eviction cannot be sustained.
The case can be looked into from another perspective. It is the case of the revision petitioner that the suit property is not a Wakf property and
is a Gramanatham and according to the first respondent, the suit property is a Wakf property belonging to Navalpur Mosque. Therefore, when an
issue has been raised regarding the character of the property, whether it is a Wakf property or not, that can be decided only by the Wakf Tribunal,
having regard to the provisions of section 83 of the Wakf Act, 1995 and that is also confirmed by the Hon''ble Supreme Court in the judgment
reported in Board of Wakf, West Bengal Vs. Anis Fatma Begum and Another, . In that judgment, it has been held that the Wakf Tribunal can
decide all disputes, questions or other matters relating to a Wakf or Wakf property and the words ""any dispute, question or other matters relating
to a Wakf or Wakf property"" are words of very wide connotation and once the property is found to be a Wakf property as defined in 3(r), then
any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal.
In this case, the revision petitioner has raised the issue that the suit property is not a Wakf property and the first respondent contended that the
suit property is a Wakf property and whether the suit property is a Wakf property or not can be decided only by the Wakf Tribunal as per section
83 of the Wakf Act and therefore, the Wakf Tribunal has got jurisdiction to decide the same. Hence, the contention of the learned counsel for the
revision petitioner that the Wakf Tribunal has no jurisdiction to try the suit for eviction, in view of the judgment reported in Ramesh Gobindram
(dead) through Lrs. Vs. Sugra Humayun Mirza Wakf, cannot be sustainable, as the judgment of the Hon''ble Supreme Court relied upon by the
revision petitioner applies only in a case, where there is no dispute regarding the character of the Wakf property, and when the defendant admitted
the property as a Wakf property, then a suit for eviction is not maintainable before the Wakf Tribunal and the civil court alone has got jurisdiction.
As stated supra, in this case, the revision petitioner raised the dispute regarding the character of the suit property and denied that the suit
property was not a Wakf property and also raised the same, in his reply, dated 25.3.2008. The suit was therefore rightly made over to the Wakf
Tribunal, after coming into force of the Wakf Act, 1995 and therefore, the Wakf Tribunal has got jurisdiction over the same. The court below,
after considering the admission of the revision petitioner in the reply notice, where he admitted that the property belonged to a Navalpur Dharga
and he took the vacant site on lease and put up a construction thereon and therefore, he was not entitled to the benefits of Tamil Nadu City
Tenants'' Protection Act and also having regard to the decree passed in O.S. No. 63 of 1964 (Ex. A23) rightly held that the suit property is a
Wakf property belonging to the Navalpur Dharga.
Further, the court below relied upon Ex. A25, the Suit Register in O.S. No. 63 of 1964 and the judgment and decree in O.S. No. 1964 [Exs.
A22 and 23] and Exs. A7 and A8, the Town Survey Field Map and Town Survey Register, wherein the suit property has been described as
''Burial ground belonging to Navalpur Dharga'' and rightly held that the suit property is a Wakf property. Once the suit property has been held to
be a Wakf property, then the revision petitioner is not entitled to get any protection under the Tamil Nadu City Tenants'' Protection Act. Further,
except the allegations made in the written statement that he has filed an application u/s 9 of the Tamil Nadu City Tenants'' Protection Act, no
document has been produced by the revision petitioner to that effect. Hence, the court below has rightly held that the suit property is a Wakf
property and therefore, the revision petitioner is liable to be evicted, having questioned the title of the respondents, after having executed a lease
deed accepting the title of the respondents and therefore, there is no need to interfere with the order of the court below.
As regards the revision petition filed against judgment and decree passed in O.S. No. 13 of 2006, admittedly the suit was filed before the
Wakf Tribunal in the year 2006 and the Wakf Tribunal has got jurisdiction to grant relief of injunction in respect of the property and therefore, the
court below has rightly granted injunction restraining the revision petitioner from putting up any construction in the suit property, as the suit O.S.
No. 257 of 1998 was filed for eviction of the revision petitioner from the suit property and the same has been decreed. Therefore, there is no need
to interfere with the judgment and decree made in O.S. No. 10 of 2006. In the result, the decrees and judgments of the Wakf Tribunal (Sub
Court, Vellore) made in O.S. Nos. 257 of 1998 and 13 of 2006 are confirmed and both the revisions are dismissed. Consequently, connected
Miscellaneous Petitions are closed. No costs.