Allahabad High Court
Sageer Khan And Another vs Maksood Husain Khan And Another on 5 May, 2015
Bench: Krishna Murari, Pratyush Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
A.F.R.
Reserved on 20-04-2015
Delivered on 05-05-2015
Case :- FIRST APPEAL FROM ORDER No. - 2392 of 2014
Appellant :- Sageer Khan And Another
Respondent :- Maksood Husain Khan And Another
Counsel for Appellant :- Siddharth Srivastava,Mohammad Farooq
Counsel for Respondent :- Lovelesh Kumar,R.A.Siddiqui,Wasim Alam
Hon'ble Krishna Murari,J.
Hon'ble Pratyush Kumar,J.
(Delivered by Hon'ble Krishna Murari, J.)
We have heard Sri Siddharth Srivastava, learned counsel for the petitioners and Sri Wasim Alam, learned counsel for the respondents.
The plaintiff-appellants filed O.S. No. 118 of 2013 seeking a decree of permanent injunction against the defendant-respondents to restrain them from interfering in their peaceful possession over the construction and the open land showing by letters Ka, Kha, Ga, Gha in the plaint map.
In response to the notices and summons, the defendant-respondent no. 1 entered appearance and raised a preliminary objection regarding the jurisdiction of the civil court on the ground that the dispute is in respect of Waqf property. The trial court framed a preliminary issue to the following effect:
"Whether the civil court has jurisdiction to entertain a suit in respect of property related to the Waqf in view of Section 85 of the Waqf Act ?"
Vide impugned judgment and order dated 28-07-2014 the trial court found that there is a dispute between the parties regarding the fact whether the land in dispute is property of Waqf Al Aulad or Waqf for charitable purposes and accordingly held that the jurisdiction of the civil court is specifically barred by Section 85 of the Waqf Act (in short the 'Act') and returned the plaint for presentation before the competent authority.
It is contended by learned counsel for the appellant that partition in respect of the property in dispute took place 60 years back and only over half of the property Waqf was created and thus the issue before the trial court was in respect of the partition and there was no dispute with respect to the Waqf property, hence, the preliminary issue has wrongly been decided.
The sole question for adjudication is whether the civil court has jurisdiction has jurisdiction to entertain the suit. Section 85 of the Act clearly bars jurisdiction of the civil court which reads as under :
"85. Bar of jurisdiction of civil courts. - 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.
Section 7 of the Act prescribes the power of the Tribunal to determine the dispute regarding the Auquf. The said Section reads as under :
"7. Power of Tribunal to determine disputes regarding Wakfs. - (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 interested 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:
Provided that-
(a) in the case of the list of Wakfs 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 Wakfs; and
(b) in the case of the list of Wakfs 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 reopen such question.
(2) Except where the Tribunal has no jurisdiction by reason of the provisions of sub-section (5), no proceeding under this section in respect of any Wakf 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 Wakfs 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 the 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."
A conjoint reading of Section 7 and 85 of the Act, it is apparent that wherever there is a dispute regarding the nature of the property or whether the suit property is a wakf property or not, a Tribunal constituted under the Wakf Act, which has exclusive jurisdiction to decide the same.
Learned counsel for the appellant referring to Section 6 of the Act submitted that since the property is not specified in the list of Auquf, hence, the issue did not arise at all and the court below has committed manifest error in law and deciding the preliminary objection.
Section 6 of the Act provides that if any question whether a particular property specified as wakf 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 Mutwalli of the wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in such matter shall be final in this regard.
The trial court has placed reliance on paper no. 71Ga, which is a letter dated 19-08-2013, certifying that the land situate in Gata No. 3042 of village Hardauli is reserved for charitable purpose and the income from the same is concerned to Madarsa. Once this document was on record Section 6 of the Act also does not come to any benefit of the appellant. So far as the question of partition is concerned, once the dispute is in respect of a wakf property the question is also be determined by the Tribunal in view of Section 85 and Section 7 of the Act.
In view of above facts and discussions, we do not find any fault with the view taken by the learned trial court while deciding the preliminary issue and returning the plaint.
The appeal is devoid of any merit and accordingly stands dismissed.
Dt.05-05-2015
nd.
