Smt Hajjan Habib Bi ( Since ... vs Wakf Masjid Nawab Abul Khairkhan ...
2023 Latest Caselaw 6530 MP

                             1             S.A. No.2728/2019



IN THE HIGH COURT OF MADHYA PRADESH
            AT JABALPUR
                          BEFORE
       HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
                  ON THE 24th OF APRIL, 2023
                SECOND APPEAL No. 2728 of 2019
BETWEEN:-

        SMT HAJJAN HABIB BI (SINCE
        DECEASED) WIDOW OF HAJI SHEIKH
        AHMED R/O SHAHAD KUAN ITWARA
        THROUGH                  LEGAL
        RESPRESENTATIVES:


1.      SHEIKH      RAFIQUE  S/O SHEIKH
        AHMED        OCCUPATION:    SELF
        EMPLOYED SEHATKUAN, ITWARA
        DISTRICT BURHANPUR (MADHYA
        PRADESH) [DELETED BY ORDER DATED
        11.04.2023]

1(a)    ZARINA BANO W/O LATE SHEIKH
        RAFIQUE, AGED ABOUT 50 YEARS R/O
        WARD NO.18, SEHATKAUN, ITWARA,
        DISTRICT BURHANPUR (MADHYA
        PRADESH)

1(b)    SHEIKH ASHFAQUE S/O LATE SHEIKH
        RAFIQUE, AGED ABOUT 37 YEARS R/O
        WARD NO.18, SEHATKAUN, ITWARA,
        DISTRICT BURHANPUR (MADHYA
        PRADESH)

1(C)    SHEIKH MUSHTAQUE S/O LATE
        SHEIKH RAFIQUE, AGED ABOUT 34
        YEARS    R/O    WARD    NO.18,
        SEHATKAUN, ITWARA, DISTRICT
        BURHANPUR (MADHYA PRADESH)

1(d)    SHEIKH AYAZ S/O LATE SHEIKH
        RAFIQUE, AGED ABOUT 28 YEARS R/O
        WARD NO.18, SEHATKAUN, ITWARA,
        DISTRICT BURHANPUR (MADHYA
        PRADESH)
                                   2                    S.A. No.2728/2019


1(e)    YASHMEEN BANO D/O LATE SHEIKH
        RAFIQUE, AGED ABOUT 30 YEARS R/O
        WARD NO.18, SEHATKAUN, ITWARA,
        DISTRICT BURHANPUR (MADHYA
        PRADESH)

2.      SHEIKH ZAFEER S/O SHEIKH AHMED
        OCCUPATION: SELF EMPLOYED R/O
        SEHATKUAN    ITWARA    DISTRICT
        BURHANPUR (MADHYA PRADESH)

3.      SHEIKH ALTAF S/O SHEIKH AHMED
        OCCUPATION: SELF EMPLOYED R/O
        SEHATKUAN    ITWARA   DISTRICT
        BURHANPUR (MADHYA PRADESH)

4.      SAEEDA BI D/O SHEIKH AHMED R/O
        SEHATKUAN    ITWARA    DISTRICT
        BURHANPUR (MADHYA PRADESH)

5.      SHAHEDA BI D/O SHEIKH AHMED R/O
        SEHATKUAN     ITWARA   DISTRICT
        BURHANPUR (MADHYA PRADESH)

6.      SHAJIDA BI D/O SHEIKH AHMED R/O
        SEHATKUAN     ITWARA    DISTRICT
        BURHANPUR (MADHYA PRADESH)

                                                       .....APPELLANTS
(BY SHRI SANKALP KOCHAR - ADVOCATE )

AND
WAKF MASJID NAWAB ABUL KHAIRKHAN
HIMAYAT     ALI  KHAIRKHANI    THR.
PRESIDENT ABDUL SHAKOOR HABIBULLA
R/O SHAHAD KUAN ITWARA, CITY AND
DISTRICT BURHANPUR (MADHYA PRADESH)

                                                     .....RESPONDENTS
(BY SHRI MUKHTAR AHMAD - ADVOCATE)
.........................................................................................................

       This appeal coming on for admission this day, the court passed the

following:
                                       3                    S.A. No.2728/2019


                               JUDGMENT

This Second Appeal under Section 100 of CPC has been filed against the judgment and decree dated 31.07.2019 passed by Second Additional District Judge, District Burhanpur (M.P.) in Regular Civil Appeal No.9/2016 arising out of judgment and decree dated 30.01.2016 passed by Third Civil Judge Class II, Burhanpur, District Burhanpur in Civil Suit No.38A/2015.

2. Heard on the question of admission.

3. The Appeal being arguable is admitted on the following substantial question of law:

"Whether the Civil Court had a jurisdiction to try the suit in the light of the judgment passed by the Supreme Court in the case of Rashid Wali Beg Vs. Farid Pindari and others reported in (2022) 4 SCC 414?"

4. Since the controversy in this appeal revolves in a narrow compass, therefore, with the consent of the parties the appeal is heard finally.

5. The respondent filed a suit for eviction against the appellants with a specific pleading that the property in dispute is a Waqf property.

6. Therefore, the only question for consideration is as to whether the Civil Court shall have a jurisdiction to try such a suit or not?

7. The controversy in question has already been put to rest by the Supreme Court in the case of Rashid Wali Beg Vs. Farid Pindari and others reported in (2022) 4 SCC 414 and has held as under:

"54. In sum and substance, the Act makes a reference, to 3 types of remedies, namely, that of a suit,

application or appeal before the Tribunal, in respect of the following matters:

54.1. Any question or dispute whether a property specified as waqf property in the list of waqfs is a waqf property or not [Sections 6(1) & 7(1)].

54.2. A question or dispute whether a waqf specified in the list of waqfs is a Shia Waqf or Sunni Waqf [Sections 6(1) & 7(1)].

54.3. Challenge to the settlement of a scheme for management of the waqf or any direction issued in relation to such management [Section 32(3)].

54.4. Challenge to an order for restitution/restoration of the property of the waqf or an order for payment to the waqf of any amount misappropriated or fraudulently retained by the mutawalli [Section 33(4)].

54.5. Conditional attachment of the property of a mutawalli or any other person [Section 35(1)].

54.6. Challenge to the removal or dismissal of an Executive Officer or member of the staff [Section 38(7)]. 54.7. Application by the Board, seeking an order for recovery of possession of a property earlier used for religious purpose but later ceased to be used as such [Section 39(3)].

54.8. Challenge to a direction issued by the Board to any Trust or Society to get it registered [Section 40(4)]. 54.9. Challenge to an order for recovery of money from the mutawalli, as certified by the Auditor [Section 48(2)].

54.10. Challenge to an order for delivery of possession of a property issued by the Collector [Section 52(4)]. 54.11. Application by the Chief Executive Officer for the removal of encroachment and for delivery of possession of a waqf property [Section 54(3)].

54.12. Challenge to the removal of mutawalli from office [Section 64(4)].

   54.13. Challenge      to   an     order
superseding      the    Committee        of
Management [Section 67(4)].

54.14. Challenge to the removal of a member of the Committee of Management [Section 67(6)].

54.15. Challenge to any scheme framed by the Board for the administration of waqf, containing a provision for the removal of the mutawalli and the appointment of the person next in hereditary succession [Section 69(3)].

54.16. Challenge to an order for recovery of contribution payable by the waqf to the Board, from out of the monies lying in a bank [Section 73(3)]. 54.17. Any dispute, question or other matter relating to a waqf [Section 83(1)]. 54.18. Any dispute, question or other matter relating to a waqf property [Section 83(1)].

54.19. Eviction of a tenant or determination of the rights and obligations of lessor and lessee of waqf property [Section 83(1) after its amendment under Act 27 of 2013]. 54.20. Whenever a mutawalli fails to perform an act or duty which he is liable to perform [Section 94].

65. It is well settled that the court cannot do violence to the express language of the statute. Section 83(1) even as it stood before the amendment, provided for the determination by the Tribunal, of any dispute, question or other matter (i) relating to a waqf; and

(ii) relating to a waqf property. Therefore to say that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property, is indigestible in the teeth of Section 83(1).

66. In fact, Section 83(5) of the Act makes it clear that 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 CPC, while trying a suit or executing a decree or order. This is why this Court held in Mohideen v. Ramanathapura Peria Mogallam Jamath [(2010) 13 SCC 62 : (2010) 4 SCC (Civ) 762] that the Waqf Tribunal will have power to issue temporary injunctions under Order 39 Rule 1 CPC."

8. Accordingly, it is held that the trial Court did not have a jurisdiction to entertain the suit.

9. Accordingly, the appeal is allowed.

10. The judgment and decree dated 31.07.2019 passed by Second Additional District Judge, District Burhanpur (M.P.) in Regular Civil Appeal No.9/2016 as well as judgment and decree dated 30.01.2016 passed by Third Civil Judge Class II, Burhanpur, District Burhanpur in Civil Suit No.38A/2015 are hereby set aside.

11. The trial Court shall return the plaint to the plaintiffs for presentation to the jurisdiction, Waqf Tribunal. Since pleadings are complete, the Waqf Tribunal shall proceed from the stage of framing of issues and dispose of the suit within a period of six months.

12. No order as to cost.

(G.S. AHLUWALIA) JUDGE Shanu

Digitally signed by SHANU RAIKWAR Date: 2023.04.25 13:40:49 +05'30'