Ullal Jumma Masjid And Sayyid Madani Darga vs Mrs. Khathijamma and Others

Huluvadi G. Ramesh, J.—This is a plaintiffs second appeal aggrieved by the judgment and decree passed by the II Addl. Civil Judge (Jr. Dvn.), Mangalore in OS 336/2002 affirmed by the II Addl. Civil Judge (Sr. Dvn.), Mangalore in RA 110/2004. Though notice is served on respondents 7 and 10, none represent them. Heard the counsel representing the appellant.

Suit filed by the plaintiff/appellant-Wakf is dismissed Spy the trial court as well as the lower appellate court on the ground of maintainability and also opining that the property is the subject matter of Wakf and should go before the Wakf Tribunal.

The contention of the appellant is, the question for consideration is so far as the maintainability of a suit for ejectment is concerned in respect of which the general law is applicable and not the law with reference to the Wakf and the Wakf Tribunal has no jurisdiction to deal with the matter. It is also submitted, there are rulings of the Apex Court as also this Court in this regard and accordingly, relied upon the following decisions:

St. Gregorious Orthodox Cathedral Vs. Aga Ali Asgar Wakf and Karnataka State Board of Wakfs, wherein this Court has held that the terms of ouster of jurisdiction of civil courts needs to be interpreted strictly and not to enlarge the meaning of the words to take away the jurisdiction of the civil courts.

Sri Dattatray Hanamantrao Bidikar and Sri Gajana Hanamantrao Bidikar Vs. Smt. Dilshad Begum and Others, wherein it is observed, the jurisdiction of the civil court is barred in respect of Wakf property only when there is a dispute raised before the Wakf Tribunal by the Board, Mutawalli or any person interested therein and not otherwise.

The question that arises for consideration in view of the submission made is whether the Wakf Tribunal has got jurisdiction to maintain the suit for ejectment even if the property is a wakf property.

The property in question is a wakf property. So far as the nature of relief is concerned, it is not in the form of a dispute or any other nature of injunction or declaration except for ejectment and it is a suit for ejectment simplicitor. Further, in the case of Ramesh Gobindram (dead) through Lrs. Vs. Sugra Humayun Mirza Wakf, the Supreme Court has observed that in the absence of provision in the Act for any proceeding before Tribunal for determination of disputes concerning eviction of tenants in occupation of property, which was admittedly wakf property, eviction suit against such tenants is maintainable only before civil court and not before Tribunal.

In that view of the matter while answering the substantial question of law raised accordingly, the orders passed by both the courts below are set aside. Matter is remitted to the trial court for disposal of the same according to law, after affording opportunity to both the parties. Appeal is allowed.