Shamsher Singh @ Sher Singh vs Bahi Mohemmed and others

T.P.S. Mann, J. (Oral)

Application filed by the defendantpetitioner before the learned Trial Court for returning the plaint of the plaintiffrespondent for its presentation before the proper Court was dismissed by learned Civil Judge (Jr. Division), Dasuya vide impugned order dated 3.8.2007, which order has been challenged by the petitioner by filing the present revision under Article 227 of the Constitution of India.

In his suit filed before the learned trial Court, the plaintiff respondent averred that the Wakf Boarddefendant No. 3 was owner of the suit property and he was lessee under the Wakf Board. In his written statement, the defendant petitioner admitted the fact that the Wakf Board was owner of the suit property but it was he who was its lessee in respect of the suit property.

It is, thus, apparent that the ownership of the Wakf Board regarding the suit property had been admitted by both the parties. In such a situation, the Tribunal constituted under the Wakf Act, 1995 (hereinafter referred to as "the Act"), could not have been called upon to decide the question, which was to arise in the suit filed by the plaintiffrespondent. Under Section 6 of the Act, the Wakf Tribunal is required to decide the question as to whether particular property is Wakf property or not. Though under Section 85 of the Act, the jurisdiction of the civil Court has been barred, but the bar would operate only in those cases where the Wakf Tribunal is required to decide the dispute, as envisaged by Section 6 of the Act.

Learned counsel for the defendantpetitioner has referred to Abdul Suban v. Syed Tharu Hussain, 2007 (1) RCR (Civil) 210 to contend that the suit filed by the plaintiffrespondent in respect of the Wakf property could not have been entertained by the civil Court in view of the specific bar contained in Section 85 of the Act and only the Wakf Tribunal was competent to entertain the suit and decide the same.

I have gone through the aforementioned judgment. In that case, there was a dispute between the parties as to whether the suit property was the Wakf property or not. This is clear from a bare reading of para2 of the said judgment. In such a situation, the jurisdiction of the civil Court was held to be barred by the Act. However, where the ownership of the Wakf Board is not in dispute, there would not be any issue which would require to be tried and decided by the Wakf Tribunal. Such a suit can, therefore, be tried and disposed of by the civil Court.

In view of the above, there is no merit in the present revision, which is, accordingly, dismissed.