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Judgment
A.S. Pachhapure, J.—The petitioners have challenged the order allowing the application of the respondents filed u/s 151 CPC and ordering transfer of suit bearing O.S. No. 35/05 to the Wakf Tribunal.
The facts relevant for the purpose of this petition are as under:
The petitioners are the plaintiffs in O.S. No. 35/05 pending on the file of the III Addl. Civil Judge (Sr. Dn.) Belgaum seeking the relief for possession of the suit property from the respondents. The suit property is the ancestral shad in CTS No. 1039 measuring about 700 square yards situate at Belgaum and the boundaries are mentioned in para No. 1 of the plaint. The petitioners claim that the suit property belonged to one shahajabdi and she sold it to one Mohammed Sadiq Abdul Rahaman Anagolkar under a registered sale dead dated 20th February 1952 and one Mr. Mohiddin Saheb Khanapuri was occupying the suit property as a tenant. Later the said Mohammed Sadiq Abdul Rahaman Anagolkar sold the suit property to one Vinayaka Gajanan Deshpande and the tenancy of Mohiddin Saheb Khanapuri was continued.
The owner Vinayak Deshpande filed suit in O.S. No. 372/55 in the Civil Court wherein the tenant Mohiddin saheb Khanapuri vas a party in the suit. In the said suit, the father of the defendant Nos. 3 and 4 and grand father of defendent Nos. 1, 2, 5, 6 and 7 in this suit admitted the title of Vinayaka Deshpande and the suit cams to be compromised in favour of Vinayaka Despande as per the compromise decree dated 23.2.1958. The tenant delivered the possession to Vinayak Despande as per the compromise decree and in due course of time the suit, property was purchased fry Amirbi Gousesaheb Desai & Khatalbi gousesaheb desai and later through further sale transaction the property came to the possession of Mohemmed Khan G. Desi, who in turn sold the suit property to the plaintiffs and their brothers under the registered sale deed dated 29.7.1980 for a consideration of Rs. 42,251/-. Their names ware entered in the CTS records and ultimately the plaintiffs filed the petition in HRC No. 124/31 seeking eviction of the tenants i.e., the respondents. During the pendency of the HRC petition, it is alleged that there was an oral partition in between the plaintiffs and his two brothers and the suit property fall to the share of the plaintiffs and the said partition was effected in the year 1984. The fact of partition was informed to the City Survey Authorities and in pursuance of the partition the names of the plaintiffs came to be entered in the CTS records as the owners. It is the case of the petitioners that the respondents, who were the tenants on a monthly rent of Rs. 50/- p.m. did not pay the rant regularly. But, due to the subsequent development of partition, the HRC No. 124/81 was withdrawn with permission to file a fresh suit.
It is the case of the petitioners that the suit property is not dedicated to any trust, much less the Syad Darga of Balgaum and that the trust is not in existence and therefore, they claim that the provisions of Bombay Trust Act are not applicable and so also, the provisions of the Indian wakf Act.
It is thereafter the petitioners filed HRC No. 37/86 u/s 21(1)(h) Karnataka Rent Act 1961 and the defendants in the suit appeared in the HRC petition and filed the written statement denying the title and also the relationship of landlord and tenants. It was their contention that the suit property is the wakf property and that the Court had no jurisdiction. An issue was framed in HFC No. 97/96 with regard to the existence of relationship of landlord and tenant and after the trial a decree of eviction came to be passed on 9.1.1991. The court held that there exists the relationship of landlord and tenant between the parties.
Aggrieved by the judgement and decree in HRC No. 87/86 the defendants filed HRC revision No. 27/1991 before the District Judge, Belgaum and it came to be dismissed on merits, vide judgement and order dated 18.4.2001, confirming the decree of eviction. Aggrieved toy the confirmation, the defendants and others approached this Court in HRRF No. 342/01 and during the pendency of the revision before this court, the Karnataka Rent Control Act 1961 wag abolished and the Karnataka Rent Act came into force. In view of change in law, the petition in HRRP 342/01 was abated as per Sections 70(2)(c) R/W Section 2(3)(g) of Karnataka Rent Act 1999. This Court directed the trial Court to dispose of the suit, in case if it is filed by the petitioners within a period of one year as the petitioners were litigating for possession of the property since from the year 1996. It is further alleged that the defendants deposited an amount of Rs. 6,350/- in CCD No.772 dated 22.2.1991 in HFC No. 87/86 admitting their tenancy over suit property and also deposited the rent in HRC revision.
The petitioners al30 contend that they filed the suit in O.S. No. 653/03 against the defendants before the civil Judge (Sr. Dn.) Belgaum and as the steps were not taken at proper time the suit came to toe dismissed on the ground that the steps for service of notice to the defendants were not taken.
The petitioners contend further that the provisions of Karnataka Rent Act 1999 are not applicable to the suit property and therefore, they got terminated the tenancy of defendants by issuing the notice of termination u/s 106 of the Transfer of Property Act and the defendants though, received the notice of termination did not comply and failed to deliver the possession. In the circumstances, the petitioners approached the trial court and instituted the suit in O.S. No. 35/05 seeking possession of the suit property alleging that they are the land lords and the defendants are the tenants and sought vacant possession of the suit property, it is thereafter that the defendant Nos. 1 and 2 filed an application in I.A. No. 3 requesting to transfer the suit to the Wakf Tribunal and in support of the said application an affidavit came to be filed by the second defendant, wherein he claims that he is in possession, of the property for more than 60 years and that the Chief Executive Officer of the Karnataka Board of Wakf has had a suit against the plaintiffs and also the defendants in KWT/BGM/SR.39/02 and it is pending on the file of the Karnataka Wakf Tribunal, Belgaum division, Belgaum, wherein the relief of declaration is sought seeking the sale deed executed in favour of plaintiffs is null and void and therefore they claimed that there are two rival claims in respect of the suit property and that prima facie the suit property is the wakf property, which was registered under the Bombay Trust Act before the Asst., Charity commissioner at sl.No.B58. Ha also contends that the schedule property belongs to Syed Idrus Darga and that now it is deemed to be registered under the wakf Act. So, also it is his contention that the suit before the wakf Tribunal is no posted for evidence, wherein the title of the plaintiffs over the suit property has been questioned.
It is their further contention that the amended Wakf Act 1985 came into force w.e.f. 1.1.1996 and any matter which involves the question of right, title and interest in the Wakf property has to be decided by the Wakf Tribunal constituted under the Wakf Act 1995 (herein after called as ''the Act 1995'') and therefore, they contended that the trial Court has no jurisdiction to decide the dispute in respect of the suit property. In the circumstances, it was their contention that the suit has to be transferred to the wakf tribunal for disposal in accordance with law.
The petitioners filed their objections to the I.A. No. 3 denying the allegation made and contended that the suit property is not at all the Wakf property and they also denied inclusion of that suit property at Sl. No. 858 in the register at Sl. No. 858 under the Bombay Public Trust Act. It is also their contention that there is no question involved in this suit which has to be tried by the Wakf Tribunal. They narrate the history with regard to the HRC petition for eviction and ultimately order of this court wherein the HRC petition was abated and therefore, it is their contention that the trial Court has the jurisdiction to proceed on with the suit and that there is no necessity to transfer the suit to the Wakf Tribunal.
The trial Court heard on I.A. No. 3 and on appreciation of the material on record allowed the application of defendant Nos. 1 and 2 and aggrieved by the said order this writ Petition has been filed by the petitioners, who are the plaintiffs before the trial Court, challenging the validity of the order of transfer of the suit.
I have heard the learned Counsel for the petitioners and also the respondents.
The points that arise for ray consideration are:
(1) whether the trial Court has no jurisdiction to try the suit filed by the petitioners fox possession of the suit property?
(2) Whether it is necessary to transfer the suit to the Wakf Tribunal.
It is the contention of the learned Counsel for the petitioners that the suit property was purchased long back under a registered sale deed on 25.7.1980 for a valuable consideration of Rs. 42,251/-. It is his case that the petitioners are the owners of the suit property and that the defendants before the trial Court are the tenants in occupation and that in the litigation under the provisions of the Karnataka Rent Control Act petitioners have sought for eviction and the order of eviction was confirmed by the revisional court. But, when the defendants approached this Court, the rent Act was abolished and the Karnataka Rent Act 1999 came into force and it is in these circumstances, that the HRC revision petition filed before this Court was abated and therefore petitioners had to file a suit for possession. So also, it is his contention that the provisions of Karnataka Wakf Act 1995 as amended up to date are not at all applicable to the suit property in question and therefore, he contends that the trial Court committed an error in ordering transfer of the suit property to the Wakf Tribunal. It is his further contention that the respondents who are the defendants before the trial Court had admitted the tenancy and the relationship of landlord and tenant and that they are estopped from denying the relationship. So, he submits that the contention of the defendants that the suit property is the wakf property is not tenable in law.
6 Per contra, the learned Counsel for the respondents submit that already the suit is pending before the Wakf Tribunal, Wherein the title of the petitioners has been questioned and the plaintiffs, including the defendants are the parties in the said suit before the Wakf Tribunal and it is in this context he submits that it is Just snd proper to transfer the suit to the Wakf Tribunal and that the trial Court has rightly taken the decision to transfer the suit so also, the learned Counsel submits that the controversy between the parties has to be decided only by the Wakf Tribunal and the Civil Court has no jurisdiction to entertain or try the suit. Hence, he submits that the petitioners have not made out any ground to warrant the interference.
I have scrutinized the documents produced by the parties and also the pleadings in the suit and also the impugned order. In my opinion both the points raised in this writ petition will have to be considered together as they axe inter dependent. At the first instance, if Section 6 of the Act of 1995 is looked into, it reads as under:
Disputes regarding Wakfs-(1) If any question arises whether a particular property specified as Wakfs 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 mutavalli of the wakf or any parson 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.
So, the perusal of this provision reveals that when the question arises as to whether a particular property specified as a Wakf property in the list of Wakfs, is Wakf property or not, it is the board or the mutavalli of the wakf or any person interest therein may institute a suit in a Tribunal for the decision of the Question and the decision of the Tribunal in respect of 3uch matter shall be final. So, if the above said provision is looked into, it is incumbent upon either the board or the Mutawalli or any person who is interested in the property has to institute a suit before the Tribunal and in such circumstance, the Tribunal has to take a decision its the matter and decide as to whether it is the Wakf property or the property specified as the Shia Wakf or Sunni Wakf.
Furthermore, Section 7 of the Act of 1995 deals with, the power of Tribunal to determine the disputes regarding the Wakf 3 which reads as under:
(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 interest 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:
So, the perusal of the provision reveals that in caser if any question arises where a particular property specified as wakf property in a list of wakfs is wakf property or not, it is the Board or the Mutawalli or any person interested therein may apply to the Tribunal having jurisdiction in relation to the suit property for the decision of the question and the decision of the Tribunal therein shall be final. So, the scrutiny of the provisions of Section 7 and also Section 6 of the Act 1995 provide that in case of any question arises with regard to the particular property as to whether it is a wakf property or not, it is the Board or Mutwalli or any person interested, who has to approach the wakf Tribunal and the question can be decided by the Tribunal and the order of the tribunal is final.
The scrutiny of these provisions reveal that there are limitations imposed, so far as the decision by Wakf Tribunal is concerned. It is only in the circumstances, where the persons specified in Sections 6 and 7 have to approach the Tribunal having jurisdiction to take a decision.
How to consider the provisions of Section 85 of the Act 1995, there is bar of the jurisdiction of the Civil Courts and the said
provision reads as under:
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.
It provides that if any question arises to a matter relating to any Wakf or Wakf property, which is required to be decided by the Tribunal under the Act, it has to be determined by the Tribunal only.
Now to consider the interpretation of the sentence "other matter which is required by or in this Act to be determined by a Tribunal", it is only where the Tribunal is required to determine the question as per the provisions of Sections 6 or Section 7 of the Act of 1995 the Tribunal assumes? the jurisdiction. At the cost of repetition, I have to say that Section 6 and Section 7 of the Act, deal with the suit instituted by the Board, the Mutawalli or any parson interested therein in the Tribunal constituted under the Act of 1995. So, it is only in such circumstances, where the suit is instituted by the parsons referred to above in the Wakf Tribunal that the Tribunal gets the jurisdiction to decide the question and not in any other circumstances. Therefore, hare in the suit filed by the petitioners before the trial court neither the plaintiffs nor the defendants have approached the Wakf Tribunal and in case, if they are the persons interested, are at liberty to approach the Wakf Tribunal for the decision of the question and in such circumstances only the wakf tribunal will have the jurisdiction to decide the question raised before it. So, the provisions of Section 85 of the Act of 1995 are confined to such disputes or questions in the suits instituted by the Board, or the Mutawalli or the persons interested in the wakf Tribunal and not otherwise.
The learned Counsel for the respondents has placed reliance on the decision of the High court of Kerala reported in Aliyathammada Beethathabiyyapura Pookoya Haji Vs. Pattakkal Cheriyakoya and Others, wherein the Hon''ble High court took into consideration the provisions of Sections 83, 85 of the Act of 1995. The perusal of the facts therein reveal that it was a suit for declaration, that the members of pattakal family alone are entitled to hold the office of Mutawalli under the custom and tradition and a declaration that plaintiff was duly chosen Mutawalii as the next and it was held that the dispute falls equally within the jurisdiction of the wakf Tribunal. it is in the context of this dispute pertaining to the appointment of Mutawalii the Hon''ble High Court has also considered the question of eviction and held that the Tribunal has the jurisdiction, since the dispute is regarding the wakf property and complied the provisions of Section 85 of the Act of 1995 granted the relief to the parties.
So far as the question regarding the appointment of Mutawalli is concerned, Saction 63 of the Act of 1995 deals with the question and it reads:
When there is a vacancy in the office of the mutawalii of a wakf and there is no one to be appointed under the terms of the deed of the wakf, or where the right of any person to act as mutawalli is disputed, the board may appoint any person to act as mutawalii for such period and on such conditions as it may think fit.
So, under the above said provision, it is the Board which has to appoint any person to act as Mutavalli for such period and on such condition as it may think fit. So, as in the petition before the Hon''ble Court of Kerala, there was also a question with regard to the appointment of mutawalli and as it was the jurisdiction of the Board, invoking the provisions of Section 85 of the Act, it held that it is the wakf Tribunal which has to decide the question in view of the fact that the Board had the authority to appoint the mutawalli u/s 63 of the Act of 1995. In the circumstances, I am of the opinion that the decision of the Hon''ble High Court of Kerela stands on a different footing and an different facts and here in the facts of the case an hand there is no such question with regard to the appointment of Mutawalli and as either the plaintiff or the defendants have not approached the wakf Tribunal as the persons interested to institute a suit, the provisions of Sections 6 and 7 does not apply to the facts on hand in this context, I have to say that the provisions of Section 85 of the Act 1995 are not attracted to the suit in question.
The learned Counsel for the petitioner has placed reliance on the decision of this Court reported in Karnataka Board of Wakfs, Bangalore Vs. B.C. Nagaraja Rao and others, . This Court taking into consideration Section 6 of the Act of 1954 held that it confines to the disputes between the Wakf Board, Mutawalli and parsons interested in the wakf and that it could never have been the intention of the Legislature to cast the cloud on the right, title or interest of the persons who are not muslims i.e., if a person who is a Non Muslim, whether ha be a Christian, a Hindu, a Sikh or a Parsi or any other religious denomination, if ha is in possession of certain property, his right, title and interest cannot be put to jeopardy because that the property included in the list published under Sub-section (2) of Section 5 and in the circumstances, it held that the suit is not barred by time. No doubt, this decision referred to supra is under the Wakf Act 1954. So far as Section 6 of the Act is concerned, there is no change and in the circumstances, I am of the opinion that on appreciation of the provisions of Section 6 and Section 7 it can be held that the provisions of Section 85 of the Act 1995 impose limitations only on such suits which fall within the category of Sections 6 and 7 i.e., suits instituted before the Tribunal by the Board or the Mutawalli or a person interested to the extent of such suits. The jurisdiction of the civil court is barred and that is made clear u/s 85 of the Act by use of the words "other matter which is required by or under this Act to be determined by a Tribunal". So, it is only in the circumstances, stated in Section 85 that the jurisdiction of the civil court is barred and the said provision does not apply to all sorts of suits instituted by the parties before the civil court and if any parson has any interest, he is at liberty to approach the tribunal.
Furthermore, it is relevant to note that as contended by the respondents herein a suit for declaration has already bean instituted before the Wakf Tribunal challenging the validity of the sale deed in favour of the petitioners and in casa if the wakf Tribunal takes any decision, that would be binding upon the parties and the proceedings in this suit. But, the mare fact that such a suit is pending before the wakf Tribunal is not a ground to transfer the suit of the petitioners which is pending on the file of the court below. The learned Counsel has also relied upon decision reported in AIR 1979 SC 239 ( Karnataka Board of Wakfs, Bangalore Vs. B.C. Nagaraja Rao and others, referred to supra. The Apex court has held that a stranger is not under obligation to file the suit who is a Non Muslim and that the jurisdiction of the Civil court is not ousted.
Now to consider the second contention of the petitioners, it is their claim that the HRC petition was filed by them earlier and later it came to be abated in view of abolition of the Karnataka Rant control Act 1961 and it is in such circumstances, that they had to approach the trial Court with the suit for possession. They have produced certified copies of the depositions which reveal that the defendants admitted the petitioners as, the land lords and on this aspect of the matter, he contends that under the doctrine of estoppel, the respondents are estopped from denying the title of the petitioners. The records reveal about the payment of rant to the petitioners, depositing of the same in the Court and eviction decree by the Civil Judge (Jr. Dn) in HRC petition which was challenged in the revision before the District Court: and ultimately when the defendants challenged the decree of eviction before this Court, the law was changed and therefore, the proceedings came to be abated. There is prima facie ample material on record to show that the respondents admitted the tenancy and the relationship. On this aspect of the matter the counsel for the petitioners has relied upon the decision of the Apex Court reported in ILR 1994 Kar 2264 (Anar Devi v. Nathu Ram) which deals with the provisions of Section 116 of the Evidence Act 1872 on the doctrine of the tenants estoppel. The Section reads "No tenant of immovable property or person claim through such tenant, shall during the continuance of the tenancy, be permitted to deny that the land lord of such tenant had, at the beginning of the tenancy, a title to such immovable property,...
So also it referred to Section 116 of the Evidence Act, which estops even a parson already in possession as tenant under one landlord from denying title of his subsequent landlord when once he acknowledges as his landlord by attornment or conduct placing reliance on the decision of the Hon''ble Apex court, the learned Counsel contended that once the respondents admitted the tenancy and accepted the title of the petitioners they are estopped from taking any such contention other than their tenancy over the suit property. So, taking into consideration the pleadings in the HRC case and the suit and also the depositions made, I am of opinion that the respondents are estopped from denying the title of the petitioners.
As could be seen from the pleadings in the suit the petitioners claim that they have purchased the property under the registered sale dead far a valuable consideration and that they are in possession of the property since then and it is also their contention that the respondents are the tenants in possession and in the circumstances, after termination of the tenancy u/s 106 of the Transfer of Property Act defendant instituted the suit for possession basing the title and the relationship as land lord and tenants. It is relevant to note that even in case, if the Wakf Tribunal in the suit which has been instituted for declaration decides that it is the Wakf property, the said decision is binding upon the petitioners and also the respondents, who are the parties in the said suit and in case if for any reason, if the said suit is dismissed the petitioners are entitled to the relief sought for in case, if they prove the facts alleged and if the trial Court comes to such a conclusion. The grounds put forth by the respondents cannot be sufficient to transfer the suit pending on the file of the court below to the wakf Tribunal. Furthermore, as the suit filed is for the relief of possession on the basis of a lease, the question before the trial court is as to whether there is relationship of landlord and tenant between the parties and whether the plaintiffs are entitled for possession. Hence, taking into consideration the facts and circumstances of the case, I am of the opinion that the trial Court has not taken into consideration the provisions of Sections 6, 7, 63 and 85 of Act 1995 in proper perspective and has come to a wrong conclusion in granting the application filed by the respondents in I.A. No. 3 and in directing the transfer of the suit to the wakf Tribunal. Hence, I answer the points No.1 & 2 I negative and proceed to pass the following order:
ORDER
The petition is allowed. The order passed by the trial Court dated 11.11.2005 granting I.A. No. 3 and directing transfer of the suit is quashed. The trial Court is directed to dispose of the suit in accordance with law. No cost.