Shaik Silar Died vs Mr.Syed Munawar
2021 Latest Caselaw 1881 AP

     THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

            CIVIL REVISION PETITION No.4131 of 2012

ORDER:

The civil revision petition is filed under Article 227 of the

Constitution of India challenging the order dated 09.07.2012 in

I.A.No.541 of 2011 in O.S.No.121 of 2008 passed by the learned

Presiding Officer, Andhra Pradesh State Wakf Tribunal,

Hyderabad, whereby the petition filed by the defendant under

Order VII Rule 10 r/w Section 151 of Code of Civil Procedure, 1908

(for short "CPC") requesting to return the plaint to the plaintiff for

want of jurisdiction, was allowed.

2. The brief facts which led to filing of this revision are that the

revision petitioner and other plaintiff (since died) filed a suit

against the respondent/defendant under Section 26 r/w Order VII

Rule 1 of CPC and Sections 83 and 85 of the Wakf Act, 1995 for

eviction of the defendant from the suit schedule property and for

recovery of possession and for past and future profits. In the

plaint, it is interalia contended that the 1st plaintiff is a notified

Mutawalli of Ashoor Khana known as Khader Vali Dargah and

Peerla Chavidi situated at Sullurpet, Nellore District and the suit

schedule property is a Wakf property and the defendant was a

tenant therein having obtained it on rent from the 1st plaintiff.

The defendant who was residing in the suit schedule property filed

I.A.No.541 of 2011 under Order VII Rule 10 r/w Section 151 of

CPC requesting the Court to return the plaint with a direction to

present the same before an appropriate forum for want of

jurisdiction of the tribunal. The plaintiffs resisted the same by

filing a counter. The Tribunal following the ratio laid down in the

judgment of the Hon'ble Apex Court in Ramesh Ramesh

Gobindram (Dead) through L.Rs. Vs. Sugra Humayun Mirza

Wakf1 had allowed the application holding that a civil Court is only

having jurisdiction to entertain the suit for eviction of the tenant

from the suit schedule property, which is a wakf property and the

wakf Tribunal is not having jurisdiction. Aggrieved thereof, the 2nd

plaintiff filed this civil revision petition.

3. Heard Sri A.M.Qureshi, learned counsel for the petitioner

and Sri M.Brahma Reddy, learned counsel for the respondent.

4. Admittedly, the plaintiffs filed the suit for eviction of

defendant from a wakf property interalia alleging that the

defendant is a tenant in the suit schedule wakf property having

obtained the same on rent from the 1st plaintiff, who is mutawalli

of the wakf institution. The Hon'ble Apex Court in the decision

referred to supra held thus:

"A suit seeking eviction of the tenants from what is admittedly wakf property could, therefore, be filed only before the Civil Court and not before the Tribunal. The contrary view expressed by the Tribunal and the High Court of Andhra Pradesh is not, therefore, legally sound. So also the view taken by the High Courts of Rajasthan, Madhya Pradesh, Kerala and Punjab and Haryana in the decisions referred to earlier do not declare the law correctly and shall to the extent they run counter to what we have said hereinabove stand overruled. The view taken by the High Courts of Allahabad, Karnataka, Madras and Bombay is, however, affirmed."

5. The Hon'ble Apex Court in the above referred decision, has

clearly laid down that a suit seeking eviction of the tenant from

what is admittedly a wakf property could be filed only before a civil

2010 (3) ALT 36 (SC)

Court and not before a Tribunal. Therefore, the Court below is

justified in holding that the tribunal has no jurisdiction and only a

civil Court has jurisdiction to entertain the suit. Subsequently, in

the year 2013 the Wakf Act was amended by the Wakf

(Amendment) Act, 2013 (Act 27 of 2013) and under the amended

new provision of Section 83 (1) of the Act, a suit for eviction of the

tenant from a wakf property is maintainable before a Wakf

Tribunal. Section 83 (1) of the Act, which came into force on

20.09.2013, reads thus:

"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 wakf or wakf 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."

6. A reading of the above provision would show that under the

present law, as amended, the Wakf Tribunal is conferred with the

jurisdiction to determine any dispute, question or other matter

relating to wakf or wakf property including the dispute, question or

other matter in regard to eviction of a tenant. However, as on the

date of the institution of the instant suit by the plaintiffs, the wakf

tribunal lacked inherent jurisdiction to entertain the suit in view of

the decision of the Hon'ble Apex Court. In the circumstances of

the case, the plaintiffs now have two options, namely, either to

take return of the plaint and present it before a civil Court since as

on the date of the institution of the suit, the civil Court is alone

having jurisdiction or in the alternative the plaintiffs are at liberty

to bring a fresh suit before the wakf tribunal for eviction of the

tenant from the wakf property in view of the new amended

provision of Section 83 (1) of the Act.

7. In the light of the admitted facts and the undisputed legal

position, this Court finds that the impugned order is sustained

under facts and in law. However, learned counsel for the revision

petitioners/plaintiffs would submit that the plaintiffs may be given

liberty to institute a fresh suit for eviction invoking the amended

provision of Section 83 (1) of the Act, which came into effect from

20.09.2013. It is needless to mention that when the plaintiffs have

two options, the plaintiffs are entitled under law to elect any one of

the two options.

8. In the result, the civil revision petition is disposed of giving

liberty to the plaintiffs either to take return of the plaint and

present it before a competent civil Court or alternatively to

institute a fresh suit before the Wakf Tribunal for eviction of the

defendant from the suit schedule property, which is said to be a

wakf property.

There shall be no order as to costs. As a sequel, all the

pending miscellaneous applications shall stand closed.

___________________________ LALITHA KANNEGANTI, J

7th April, 2021

PVD

THE HON'BLE SMT. JUSTICE LALITHA KANNEGANTI

CIVIL REVISION PETITION No.4131 of 2012

7th April, 2021

PVD