Nizamul Hai Alias Titu vs Mohammad Ahmad And 29 Others
2015 Latest Caselaw 1857 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

                                             	                                     AFR								
 
Court No.19
 

 
Case :- SECOND APPEAL No. - 604 of 2015
 
Appellant :- Nizamul Hai Alias Titu
 
Respondent :- Mohammad Ahmad And 29 Others
 
Counsel for Appellant :- A.K. Gupta,Tarun Verma
 
Counsel for Respondent :- Punit Kumar Gupta,M.A.Qadeer,Manish Goyal
 

 
				AND 
 
Case :- SECOND APPEAL No. - 658 of 2015
 
Appellant :- Nizamul Haq Alias Titu
 
Respondent :- Sri Zikrullah (Dead) And 33 Others
 
Counsel for Appellant :- A.K. Gupta,Tarun Verma
 
Counsel for Respondent :- Punit Kumar Gupta,M.H. Qadeer
 

 
Hon'ble Ashwani Kumar Mishra,J.

1.These two connected second appeals are directed against the appellate order passed by the Court of IIIrd Addl. District Judge, Gorakhpur in Appeal No. 83 of 1992, dated 23.3.2015, as well as counter objection registered in Civil Appeal No. 91 of 1996, both of which have been dismissed. The appellate court has held that the prayer of respondent no.1/4 ( appellant here in) to declare him as Mutawalli of the Waqf, is not maintainable before the Civil Court.

2.Shorn of unnecessary details, basic facts giving rise to filing of the appeal are that the father of the sole appellant Haji Abdul Hai instituted Original Suit No. 64 of 1964 against the defendants, who are respondents herein, as well as those claiming through them. Sunni Waqf Board, through its Secretary was also impleaded as Defendant No.16 in the Suit. In the suit, a prayer was made that the plaintiff ( father of the appellant herein) be declared as the Mutawalli of the Waqf properties given in list-A and list-B, on the basis of the Waqf deed dated 4.8.1931. Relief of injunction was also claimed against the defendant Nos. 4,5 & 8 as also their successor in interest, from interfering in the possession of the plaintiff as Mutawalli. Alternatively, it was claimed that in case the plaintiff is found to be out of possession of any part or whole of the property, then possession of such property of the waqf be delivered to the plaintiff. It appears that certain suits were also filed by the tenants of the property said to be belonging to the Waqf, which were all consolidated together. Trial court framed as many as 36 issues. It is not necessary to mention all such issues but it would suffice to note issues no. 1,2,3,4,5,6,15 and 25, as formulated which are reproduced below:-

"1. Whether, the defendant no. 1 had created any valid waqf with respect of the properties given in list-A of the plaint?

2. Whether, the defendant no. 1 executed any valid waqf deed on 4.7.1931? If so, its effect?

3. Whether, Waqf in question was acted upon and whether the defendant no.1 had been in possession of the properties in suit as Mutawalli?

4. Whether, the properties given in list-B at the foot of the plaint, were acquired by the defendant no.1 with the income of the properties as mentioned in list-A? If so, its effect?

5. Whether, the defendant no. 1 was still in possession of the property in dispute till he died?

6. Whether, the plaintiff is entitled to be appointed as Mutawalli with respect to the properties in suit? If not which of the defendant is entitled of such?

15. Whether, the defendant no.1 validly gifted the properties in suit to defendant Nos. 4,5 & 6, if they are in possession of the properties in suit? If so. Its effect?

25. Whether, the plaintiff is illegitimate grand son of Abdul Samad? If so, whether he is not entitled to be appointed as Mutawalli?"

3.Parties led their oral and documentary evidence in support of their respective cases.

4.Trial court vide its judgment and decree dated 24.5.1982 decreed the plaintiff's suit in respect of properties enumerated in list-A, whereas the suit was dismissed in respect of the properties enumerated in list-B. Operative portion of the judgment of the trial court reads as follows:-

"The plaintiff's suit No. 64of 1964 is decreed in respect of existing properties of List A given at the foot of the plaint. The plaintiff is appointed as Mutawalli of these properties. The plaintiff shall also be entitled to get possession over these properties as Mutawalli. The defendants are restrained from interfering in the work and management of the plaintiff of these properties as Mutawalli.

The suit in respect of the properties in List-B is dismissed.

In view of part succession the parties shall bear their costs of this suit.

Suit Nos. 83 of 1961, 389 of 1964, 513 of 1966, 347 of 1967, 482 of 1968, 661 of 1968, 1084 of 1968, 88 of 1969, 266 of 1969, 384 of 1989, 420 of 1969, 630 of 1969 and 839 of 1977 are hereby dismissed. Parties are directed to bear their costs of the suits.

(M.K. Miattal)

Civil Judge, Gorakhpur

24.5.1982"

5.Aggrieved against the decree of the trial court in favour of the plaintiff of the Original Suit No. 64 of 1964, defendants filed an appeal before the High Court being Appeal No. 457 of 1982, which was subsequently remitted to the Court of District Judge on account of change of pecuniary jurisdiction. The said appeal appeal was renumbered as Civil Appeal No. 83 of 1992.

6.Some of the other defendants, who had not joined as appellant in Civil Appeal No. 83 1992 filed another appeal under Section 96 of the Code being Civil Appeal No. 91 of 1996. In the subsequent appeal, a cross objection was filed by the plaintiff-appellant, raising his grievance in respect of rejection of his claim with regard to properties enumerated in list-B. The subsequent appeal No. 91 of 1996 had been dismissed in default some times in the year 2001 and the cross objection filed by the plaintiff, therein, has now been decided by the impugned judgment of the appellate court.

7.While the two appeal Nos. 83 of 1992 and 91 of 1996, as well as cross-objection therein of the plaintiff was pending consideration before the appellate court the original plaintiff died on 30.4.1999. The nature of dispute raised, thereafter, has apparently taken a turn. An application for substitution was filed by the present appellant, claiming himself to be the legal heir and the only son of the original plaintiff seeking his appointment as Mutawalli. This application for substitution was objected by the defendants on the ground that the present appellant is not the son of the original plaintiff. The appellate court finally adjudicated the issue as to who would be the legal representative of the deceased plaintiff vide its order dated 25.11.2004. The order dated 25.11.2004 was challenged by one Ahmad Kamal, respondent No. 5/1 in the present appeal, by filing writ petition No. 862 of 2005 which was dismissed on 21.7.2007. Operative portion of the order passed in Writ Petition No. 11862 of 2005 is reproduced below:-

"From the record it is apparent that the substitution application of the petitioner has been allowed by the impugned order and he has been impleaded. However, he has contended that the observation of the Court holding the respondent no. 1 as the legal representative of Haji Abdul Hai should be quashed. From the record it is apparent that the petitioner never filed any objections to the application of the respondent no.1 nor claimed to be her heir. Once the petitioner did not contest the application of the respondent no.1, he cannot be allowed to open the issue before this Court . His contention that the respondent no.1 would lay claim on the property appears to be misplaced before impleadment and substitution only give a right to the person to take part in the proceedings but that by itself will not create any right in his favour, which has to be established by bringing on record evidence to that effect after hearing the parties on merit. Thus, in my opinion, this writ petition is misconceived and is accordingly dismissed.

However, as the appeal is pending since 1992, the appellate court is directed to decide it expeditiously, preferably within a period of six months from the date of submission of a certified copy of this order".

8.The appellate court vide its order dated 25.11.2004 held that the present appellant as well as three other persons namely respondent Nos. 3/1,3/2 and 3/3 were the legal representatives of the deceased plaintiff.

9.While the appeals, aforesaid, were pending, the present appellant appears to have approached the respondent no. 10 i.e. U.P. Sunni Central Waqf Board, Lucknow under Section 32(g) of the Waqf Act, 1995 for him to be appointed as Mutawalli, consequent upon the death of his father, in view of provisions of Waqf Deed of 1931, vide his application dated 7.5.1999. The application was initially allowed on 20.9.1999 but subsequently the said order was recalled by the Board on 4.9.2000 and it was held that as the issue of paternity of the appellant had been questioned, which was engaging the attention of the appellate court, as such, the appellant cannot be appointed as Mutawalli, so long as such issue is not adjudicated. The order of the Waqf Board dated 4.9.2000, in this regard, was subjected to challenge by the appellant by filing Writ Petition No. 47155 of 2000. The writ petition was dismissed with the observation that the petitioners may approach the Tribunal created under Section 83 of the Waqf Act. The order passed by the Division Bench of this Court dated 26.10.2006 in Writ Petition No. 47155 of 2000 is being quoted below:-

"This is a writ petition against the order dated 4.9.2000 rejecting the application of the petitioner and appointing Sri Ahmad Jamal as Mutawalli.

We have heard learned counsel for petitioner and learned standing counsel for respondents.

The petitioners may, if so advised, approach the Tribunal under Section 83 of the U.P. Waqf Act.

With this observation, the writ petition is dismissed".

10.It appears that in view of the observations made by writ court, the present appellant approached the Tribunal created under Section 83 of the Act by filing Appeal No. 265 of 2007, challenging the orders passed by the Waqf Board, rejecting his claim for appointment as Mutawalli on the ground of being son of previous Mutawalli i.e. plaintiff of Original Suit No. 64 of 1964. However, during the course of submission, it has been informed by the learned counsel for the parties that the Appeal No. 265 of 2007 has been dismissed in default on 24.5.2014. It further appears from the record that a fresh claim was raised by the appellant for his appointment as Mutawalli, on the basis of the order of the appellate court dated 25.11.2004, recognizing him as son and legal representative of the plaintiff, for his being appointed as Mutawalli. This application was again rejected by the Waqf Board on 21.10.2010, essentially on the ground that the issue of paternity of the appellant was disputed and had been engaging the attention of the appellate court, as such, he cannot be appointed as Mutawalli. This subsequent order of the Board was again subjected to challenge in a writ petition before this Court being Writ Petition No. 70000 of 2010. Division Bench of this Court noticed the relevant facts as well as the previous orders passed, and after noticing the pendency of proceedings of appeals, proceeded not to interfere with the order of the Waqf Board and the writ petition was dismissed. However, while dismissing the writ petition, it was provided that the pending appeals be decided within a period of 6 months from the date of presentation of certified copy of the order dated 9.4.2014 and till such time when the appeal itself is decided, all parties were restrained from alienating any property of the waqf. It would be relevant to reproduce the observations made by the Division Bench of this Court, which dealing with the claim of the appellant, based upon the order of the appellate court dated 25.11.2004;

"In the light of the aforesaid, we are of the considered opinion that an order on the substitution application under Order 22 Rule 5 of the C.P.C. is only for the limited purpose of representation of the estate of the deceased in a pending proceeding for the purpose of adjudication of that case. Such determination for such limited purpose does not confer on the person held to be the legal representative any right to the property, which is the subject matter of the suit viz-a-viz other rival claimants to the estate of the deceased. Since there is a dispute as to who is the legal representative, a decision in this regard is required to be taken on such dispute. At the present moment, the lower appellate court has substituted the petitioner as well as respondent No.3 as legal representative of the plaintiff. When the question of legal representative is determined by the lower appellate court and such legal representative is brought on record only then it can be said that the estate of the deceased is now represented.

In the light of the aforesaid, the Court is of the opinion, that the petitioner does not get any right to be appointed as a mutawalli at this stage pursuant to the order of the lower appellate court dated 25.11.2004, inasmuch as, the order of the lower appellate court dated 25.11.2004 was only for a limited purpose of representation of the estate of the deceased for the purpose of adjudication of that case.

In the light of the aforesaid, it is not necessary to deal with the other questions raised by the learned counsel for the respondents.

The writ petition fails and is dismissed with the direction to the lower appellate court to decide the appeal pending before it within six months from the date of presentation of a certified copy of this order.

We further direct that till the decision of the lower appellate court, respondent No.3, but will not alienate any property of the waqf."

11.It is in furtherance of the directions issued by this court in Writ Petition No. 70000 of 2010 that the appellate court proceeded to hear the appeal and decide the same vide its judgment dated 23.3.2015. The appellate court took note of the 36 issues, which had been framed by the trial court and it formulated following 5 questions for determination in appeal, which are as Under:-

"1. Whether the finding of the court below, holding the Waqf created by the Waqf deed of 1931 and 1956, is valid legally constituted waqf, which was in fact acted upon, has been correctly recorded?.

2.Whether the Court below has correctly granted the relief ?

3.Whether cross objection preferred by the respondents in First Appeal No.91 of 1996 is maintainable as such?

4.Whether, the finding of the court below holding that the properties involved in the Waqf of 1956 were in fact acquired from the income and by the nucleus of Waqf property involved in the Waqf of 1931 could not be proved, has been correctly recorded?

5.Whether, the claim of respondent number 1/4 to be declared Mutawalli is entertainable by civil court?"

12.The lower appellate court took note of the provisions of the Waqf Act, 1995 in light of the facts and circumstances of the present case and it came to a conclusion that the question which survives in appeal, and requires adjudication in the pending appeal, was with regard to appointment of the appellant as Mutawalli, and such issue could be gone into only by the Tribunal created under Section 83 of the Waqf Act. The appellate court, consequently, held that the civil court had no jurisdiction to adjudicate the question which had cropped up for consideration in appeal in view of the provisions of the Waqf Act.

13.Aggrieved by the appellate court order dated 23.3.2015, the appellant has filed second appeal Nos. 604 of 2015 and 658 of 2015, which have been consolidated and heard together.

14.I have heard Sri Tarun Verma, advocate assisted by Sri J.S. Pandey for the appellant in both the appeals and Sri Manish Goel, Sri Punit Kumar Gupta, Sri M.A. Qadeer, learned Senior Advocate, assisted by Sri Shamim Ahmad, for the contesting respondent.

15.Before this Court proceeds to deal with the questions raised in the appeal, it would be relevant to notice the factual controversy requiring adjudication in the appeal in light of the provisions of the Waqf Act,1995. It is not in dispute that the plaintiff, who had originally instituted Suit No. 64 of 1964 has since died on 30.4.1999. The Civil Court vide judgment and decree of the year 1982, had allowed the suit of the original plaintiff, in his claim for appointment as Mutawalli, on the basis of the waqf deed dated 4.8.1931. Suit in respect of the properties mentioned in List-A had been decreed and in respect of properties mentioned in List-B had been dismissed. The suit, as it was originally instituted, involved determination of the issue as to whether the original plaintiff was the Mutawalli of the Waqf, by virtue of the provisions of the waqf deed, and if it was so, the properties which he was entitled to manage being its Mutawalli.

16.It would be relevant to notice that after the death of original plaintiff, and substitution of the present appellant as one of the appellants, the prayer made in the suit was amended. The substituted prayer in the plaint was to the effect that "it be declared that as the original plaintiff has died during the pendency of proceedings, therefore, his son i.e. the present appellant is the Mutawalli of the waqf property specified in schedule-A and B as a son of original plaintiff, in accordance with the waqf deed".

17.The right, as was being claimed by the parties, and which now required adjudication was as to whether the present appellant, by virtue of his claim of being son of the original plaintiff, is entitled to be declared as Mutawalli of the Waqf property or not?. For such purposes, the present appellant relied upon following facts:-

"(a) That in view of the provisions of the Waqf deed of 1931, he is required to be appointed as Mutawalli for managing the properties of the Waqf.

(b) That the appellant being son of the Mutawalli, whose right has been determined by the Civil Court vide judgment and decree of the year 1982, was entitled to succeed the deceased plaintiff as Mutawalli.

18.The claim of the appellant essentially requires determination of his entitlement to be appointed as Mutawalli. The right which is being so claimed by the appellant has arisen only upon the death of the original plaintiff on 30.4.1999. The mute question, therefore, is as to which is the appropriate forum to determine the claim of the appellant that he is entitled to be appointed as Mutawalli of the Waqf?.

19.At this juncture, it would be relevant to refer to some of the provisions of the Waqf Act, 1995. Mutawalli has been defined under Section 3(i) of the Act, which reads as under:-

"3(i) "mutawalli" means any person appointed, either verbally or under any deed or instrument by which a Waqf has been created, or by a competent authority, to be the mutawalli of a Waqf and includes any person who is a mutawalli of a Waqf by virtue of any custom or who is a naib- mutawalli, khadim, mujawar, sajjadanashin, amin or other person appointed by a mutawalli to perform the duties of a mutawalli and save as otherwise provided in this Act, any person, committee or corporation for the time being managing or administering any Waqf or Waqf property:

Provided that no member of a committee or corporation shall be deemed to be a mutawalli unless such number is an office bearer of such committee or corporation;

Provided further that the mutawalli shall be a citizen of India and shall fulfill such other qualifications as may be prescribed;

Provided also that in case a waqf has specified any qualifications, such qualifications may be provided in the rules as may be made by the State Government."

20.From the scheme of the Act, it further appears that a list of auqaf is to be maintained under Section 5 of the Act. This list is to be prepared on the basis of the survey conducted by the Board and also on the basis of the claim made. Section 3(g) defines the list of auqaf which is reproduced below:-

"3(g). List of 'auqaf' means the list of auqaf published under sub-section (2) of section 5 or contained in the register of auqaf maintained under section 37."

21.Procedure for holding of preliminary survey etc. is defined in Section 4 of the Act. Section 6 provides for dispute relating to auqaf and Section 7 provides for the power of the Tribunal to determine the dispute regarding to auqaf. Sections 6 and 7 of the Act are reproduced below:-

"6. Disputes regarding Auqaf. - (1) If any question arises whether a particular property specified as Waqf property in the list of Auqaf is Waqf property or not or whether a Waqf specified in such list is a Shia Waqf or Sunni Waqf, the Board or the mutawalli of the Waqf or [any person aggrieved] 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 Auqaf.

[Provided further that no suit shall be instituted before the Tribunal in respect of such properties notified in a second or subsequent survey pursuant to the provisions contained in sub-section (6) of section 4.

(2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any Waqf 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 intended to be done in pursuance of this Act or any rules made in thereunder.

(4) The list of Waqf shall, unless it is modified in pursuance of a decision or 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).

7. Power of Tribunal to determine disputes regarding Auqaf.- (1) If, after the commencement of this Act, [any question or dispute] arises, whether a particular property specified as Waqf property in a list of Auqaf is Waqf property or not, or whether a Waqf specified in such list is a Shia Waqf or a Sunni Waqf, the Board or the mutawalli of the Waqf, [or any person aggrieved by the publication of the list of auqaf under section 5] therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and decision of the Tribunal thereon shall be final:

Provided that-

(a) in the case of the list of Auqaf 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 Auqaf; and

(b) in the case of the list of Auqaf 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 a question.

(2) Except where the Tribunal has no jurisdiction by reason of the provisions of sub-section (5), no proceeding under the section in respect of any Waqf 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 Auqaf 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.

(6)[The Tribunal shall have the powers of assessment of damages by unauthorised occupation of waqf property and to penalise such unauthorised occupants for their illegal occupation of the waqf property and to recover the damages as arrears of land revenue through the Collector: Provided that whosoever, being a public servant, fails in his lawful duty to prevent or r emove an encroachment, shall on conviction be punishable with fine which may extend to fifteen thousand rupees for each such offence.

22.The act further contemplates constitution of a 'Board' to secure objectives of the Act of 1995. Power of such Board has been specified in Section 32 of the Act. Sub Section (g) of Section 32 which is relevant for the present purposes is reproduced below:-

"32. Powers and functions of the Board.-

(g) to appoint and remove mutawallis in accordance with the provisions of this Act;

23.Section 83 of the Act provides for constitution of a Tribunal for determining the disputes as specified under the Act of 1995. Section 85 provides for exclusion of the jurisdiction of Civil Court. Sections 83 and 85 of the Act reads as Under:-

"83. Constitution of Tribunals, etc.- (1) [(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 waqf or waqf property, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals;

2) Any mutawalli person interested in a Waqf 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 Waqf.

(3)Where any application made under sub-section (1) relates to any Waqf 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 of the mutawalli or any one of the mutawallis of the Waqf 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 Waqf or any other person interested in the Waqf or the Waqf property to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such Waqf or Waqf 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.

[Every Tribunal shall consist of--

(a) 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, who shall be the Chairman;

(b) one person, who shall be an officer from the State Civil Services equivalent in rank to that of the Additional District Magistrate, Member;

(c) one person having knowledge of Muslim law and jurisprudence, Member; and the appointment of every such person shall be made either by name or by designation.]

(4A) [The terms and conditions of appointment including the salaries and allowances payable to the Chairman and other members other than persons appointed as ex officio members shall be such as may be prescribed.]

(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 any thing 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 lie against any decision or order whether interim or otherwise, given or made by the Tribunal:

85.Bar of jurisdiction of civil courts.- No suit or other legal proceeding shall lie in any [civil court, revenue court and any other authority ] in respect of any dispute, question or other matter relating to any Waqf, Waqf property or other matter which is required by or under this Act to be determined by a Tribunal."

24.From the scheme of the Act, it is apparent that all disputed questions, arising out of auqaf as specified is Section 6, as to whether a property in the list of auqaf is a property of the waqf or not? or whether a waqf specified in the list is a Shia or a Sunni waqf, would have to be resolved by the Tribunal under Section 6 of the Act by instituting a Suit before the Tribunal. Similarly, the power to appoint or remove a Mutawalli of a Waqf, which is included in the list of auqaf falls exclusively with the Board and such decision is subject to appellate/ supervisory jurisdiction of the Tribunal.

25.Learned counsel for the appellant has invited attention of the Court to sub section (5) of Section 7 of the Act to contend that proceedings of the Suit were pending in appeal from prior to coming into being of the Act of 1995 as such, the proceedings pending in appeal were liable to have been decided on merits and the conclusion drawn by the appellate court that civil court had no jurisdiction to determine the issue of appointment of appellant as Mutawalli of the waqf is perverse. Learned counsel for the appellant further submits that the main question which required adjudication in the appeal was with regard to paternity of the appellant, which can only to be gone into by the Civil Court and the Tribunal had no competence to adjudicate such question of fact.

26.Submission aforesaid of the learned counsel for the appellant is opposed by the learned counsel appearing for the respondents on the ground that the claim of the appellant, for being appointed as Mutawalli, has since come into effect after 1.1.1996, therefore, it will have to be pressed before the authority, duly constituted for the purpose under the Act of 1995, at the first instance, and any dispute arising out of such adjudication, will then have to be adjudicated by the Tribunal. Learned counsel further submits that in fact the claim of the appellant had been adjudicated by the Board, at the first instance, and the same has been rejected. Attention of the Court has also been invited to the fact that in a challenge made by the petitioner to determination made by the Board against the appellant, was made before this Court and the appellant had been relegated to the remedy available in the Statute i.e. of approaching the Tribunal and the appellant, in fact, has available such remedy.

27.Learned counsel for the respondent, therefore, submits that in the peculiar facts and circumstances of the case, once the jurisdiction of the Tribunal, which was exclusive in the facts and circumstances of the present case and had been availed by the appellant, the appellate court committed no infirmity in refusing to go into the question raised by observing that the civil court has no jurisdiction to deal with the dispute which survives for adjudication.

28.Reliance is also placed to the provisions of Section 85 of the Act, which bars the jurisdiction of the Civil Court in respect of any disputed question or other matter relating to any waqf, which requires determination by the Tribunal to be gone into by the Civil Court.

29.In order to appreciate the submission so advanced, it would be relevant to examine the scope of sub section 5 of Section 7, which excludes the Jurisdiction of the Tribunal, in the facts of the present case.

30.A perusal of the records go to show that the appellant had himself approached the Board as early as in the year 1999 by way of an application moved before the respondent no. 10 Board under section 32(g) of the Act for being appointed as Mutawalli. In the opinion of the Court, this course was rightly resorted to as any issue raised with regard to right of appointment as Mutawalli after 1.1.1996 had to be gone into by the Board at the first instance and a person aggrieved by it had the remedy to approach the Tribunal constituted under Section 83 of the Act. Admittedly, the right which has been claimed by the appellant, here in, has come into existence after 1.1.1996. The claim of the appellant, therefore, was required to be determined in accordance with the provisions of the Waqf Act, 1995.

31.This Court finds that the dispute which involved determination in the facts of the present case is as to whether the appellant is entitled to be appointed as a Mutawalli of the Waqf or not? The objection raised in respect of such claim of the appellant by the defendant-respondent on the ground of his paternity, is a question which also arises incidentally for determination of the right of the appellant to be appointed as Mutawalli. Since the jurisdiction of the Tribunal to deal with the claim for appointment as Mutawalli of the waqf exclusive, as such, the issue can be determined only by the Tribunal. The power of the Tribunal under Section 83 of the Act is wide enough to include all incidental questions which arise during the course of adjudication of the principal issue of entitlement of appellant to be appointed as Mutawalli. The tribunal, even otherwise, has all powers of a civil court for the purposes of adjudication of disputes falling within its jurisdiction. The claim of the appellant, as has been raised, is also required to be considered by the Tribunal.

32.The proceedings and orders of the Suit of 1964, including those in appeals arising out of it or the orders passed therein can, at best, be placed in support of the appellant's claim for appointment as Mutawalli, as an evidence before the Tribunal. The Tribunal is then required to consider the appellant's claim for appointment as Mutawalli after considering the contra evidence, if any, brought on record by the respondents and the issue would require authoritative representation by the Tribunal, at the first instance.

33.The issue of paternity of the appellant being the incidental question to the question raised by the appellant regarding his entitlement to be appointed as Mutawalli, therefore, also can be gone into by the Tribunal. In such view of the matter, this Court finds that the appellate court has rightly observed that the dispute, as has been raised by appellant, requires adjudication on the question of entitlement of the appellant to be appointed as Mutawalli and, therefore, such question has to be gone into by the Tribunal and the civil court has no jurisdiction to decide it in appeals. The conclusion drawn by the Civil Court is in accordance with the provisions of the Act and no perversity or illegality can be shown therein.

34.The argument of the appellant, based upon the interpretation of Section 7(5) of the Act is not liable to be sustained, inasmuch as what is saved by sub section (5) is "any matter", which is the subject matter of Suit instituted or commenced prior to coming into being of the Act of 1995 or appeal arising out of it. The subject matter of Suit No. 64 of 1964, as it existed on the date of commencement of the Act of 1995 i.e. 1.1.1996, is no longer in existence. The matter of the suit of 1964 as pending in appeal has entirely changed after the death of the original plaintiff who had claimed right for himself. The subject matter of proceedings pending in appeal in view of amendment made in prayer clause of Suit, which has been noticed above, is regarding appellant's right to be appointed Mutawalli, a cause which itself has come into existence after 1999. Even otherwise, section 7(5) of the Act refers to proceedings under Section 6(1) whereas the cause requiring adjudication now pertains to an order made under section 32(g) of the Act which is exclusively within the realm of jurisdiction of the Tribunal. The appellate court, therefore, was right in holding that the cause requiring adjudication was not maintainable before the civil court.

35.All proceedings and orders, passed during the pendency of the suit and appeal, can at best, be placed as evidence before the Tribunal which has the exclusive jurisdiction to adjudicate the cause relating to appointment of Mutawalli. Parties would be at liberty to file their evidence, in rebuttal. Appellant shall be at liberty to apply for restoration in appeal already filed or institute such other proceedings, as he may be advised, and are maintainable before the Tribunal.

36.Even otherwise, this court finds that the issue of entitlement of appellant to be appointed as Mutawalli, had been raised before the writ court and the Division Bench vide its order passed in Writ Petition No. 47155 of 2000 had clearly relegated the appellants to approach the Tribunal in respect of his grievance, which judgment had attained finality and infact the remedy available had been availed of, by the appellant and ,therefore, for all such reasons, the judgment delivered by the appellate court cannot be said to be suffering from any infirmity in the eyes of law. No substantial question of law, therefore, arises for consideration of this Court in the facts and circumstances of both the appeals, which are consequently, dismissed subject to the observations made above.

Order Date :- 19.8.2015

n.u.