Madhya Pradesh High Court
Maulana Haroon vs Chhoti Masjid Prabandh Committee on 15 February, 2024
Author: Anuradha Shukla
Bench: Anuradha Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 15 th OF FEBRUARY, 2024
SECOND APPEAL No. 375 of 2019
BETWEEN:-
MAULANA HAROON
THROUGH LRS SMT. RUKSANA, AGED ABOUT 55
YEARS, WIDOW OF MAULANA HAROON, RANA
MOTORS, R/O RANA MOTORS CHHOTI MASJID
COMPLEX GURU NANAK WARD SEONI (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI IMTIYAZ HUSSAIN WITH SHRI ISHTEYAQ HUSSAIN -
ADVOCATES)
AND
1. CHHOTI MASJID PRABANDH COMMITTEE THR.
ITS PRESIDENT ABDUL ALIM KHAN S/O HAMID
KHAN R/O MAJOR DHYAN CHAND WARD SEONI
(MADHYA PRADESH)
2. STATE OF MADHYA PRADESH THR. COLLECTOR
DISTT-SEONI (MADHYA PRADESH)
.....RESPONDENTS
(SHRI MUKHTAR AHMAD - ADVOCATE FOR RESPONDENT NO.1 AND MS.
PUSHPANJALI DWIVEDI - PANEL LAWYER FOR RESPONDENT
NO.2/STATE)
.....................................................................................................................................
Reserved on : 30.01.2024
Pronounced on : 15.02.2024
This appeal having been heard and reserved for order, coming on for
pronouncement this day, the court passed the following:
ORDER
On 30.01.2024 this second appeal was taken up for hearing and it was
argued on behalf of both the parties that the question of jurisdiction of Civil
Court is involved in the matter. Therefore, this appeal being arguable is
admitted on the following substantial questions of law:-
(i). Whether under the provision of Section 85 of the Waqf
Act, 1995 the Civil Court was barred to entertain the civil
suit ?
(ii). Whether the Tribunal constituted under Section 83 of
the said Act alone had jurisdiction to try the suit for eviction
from the waqf property ?
2. Arguments of both the parties have been heard on this point.
3. This second appeal has emerged from the judgment of Ist Additional
District Judge, Seoni passed on 22.12.2018 in R.C.A. No.73/2017, whereby the
appeal was dismissed and the judgment as well as the decree passed by the Ist
Civil Judge Class - I, Seoni on 25.09.2017 in C.S. No.33-A/2013 was upheld.
4. The undisputed facts of the case are that a civil suit was filed by appellant
for seeking the decree of declaration regarding his status as a tenant in the
disputed property and for injunction restraining the respondent no.1 from
evicting the appellant from the suit property. Admittedly, a counter claim was
filed by respondent no.1 for seeking a decree of eviction and also for arrears of
rent @ of Rs.1500/- per month and mesne profit from the date of institution of
suit @ Rs.5,000/- per month. It is an undisputed fact that the property in
dispute was of the ownership of respondent no.1 and was notified in the gazette
as waqf property.
5. There is no dispute on the legal proposition that by the amendment of
01.11.2013, Sections 83 and 85 of Waqf Act have affected the jurisdiction of
Civil Court to hold trial in a suit or other legal proceedings in respect of any
dispute, question or other matter relating to waqf or waqf property and under
amended Section of 83(1) of Waqf Act the question of eviction of a tenant or
determination of right or other obligation of lessor and the lessee of any waqf
property shall be decided by the tribunal constituted by the State Govt. in this
regard.
6. The case law of Rakesh Kesharwani and others vs. Imambada
Shahedaan Karbala (S.A. No.785/2023) decided by Co-ordinate Bench of
this Court on 02.05.2023 has been very relevantly cited here to lay emphasis on
the legal principle that the change of forum is a procedural law and the
amendment in procedural law has retrospective implications if such change
does not give rise to new disabilities or obligations. In the context of present
case the plaint was filed in the month of October, 2011 before the Court of Civil
Judge Class- II and the civil suit was finally decided in the year 2017 by the
Court of Civil Judge.
7. The judgment of Apex Court delivered in Nani Gopal Mitra vs. State of
Bihar AIR 1970 SC 1636 has very aptly discussed this issue and it is laid
down therein that the amended law relating to procedure applies to pending
cases although instituted under the old Act and only for those procedures which
were not ultimately concluded under the old law. Applying this principle in the
present case, it may be observed that the amendment in Waqf Act incorporated
in 2013 was applicable in the pending civil suit instituted in 2011 and finally
disposed of in the year 2017. The Civil Court was clearly in error to decide the
civil suit despite the incorporation of amended provision as its jurisdiction was
ousted in the year 2013 itself.
8. The judgment of Apex Court delivered in Rashid Wali Beg vs. Farid
Pindari and others (2022)4 SCC 414 also needs to be referred here, in which
it has been very specifically laid down that where the subject property is a waqf
property or is admitted to be a waqf property, the proper forum for seeking
permanent injunction was not with the Civil Court and only the Waqf Tribunal
had the jurisdiction to decide any dispute, question or other matters relating to
such a property in the light of amendment of 2013 in the Waqf Act, 1955.
9. On the basis of above discussion of facts of the present case and the law
applicable, it is held that the Civil Court did not have jurisdiction to decide the
Civil Suit No.33-A/2013 which resulted into first appeal R.C.A. No.73/2017.
The first appellate Court failed to appreciate the jurisdictional aspect in the
impugned judgment. Consequently, in the absence of jurisdiction with the Civil
Court to decide Civil Suit no.33-A/2013, the judgment and decree passed by
the Ist Civil Judge, Class -I, Seoni on 25.09.2017 in that suit and also the
R.C.A. No.73/2017 decided on 22.12.2018 by Ist Additional District Judge,
Seoni are hereby set aside.
10. The trial Court is, resultantly directed to return the plaint to the plaintiff
for its presentation to the Waqf Tribunal having competent jurisdiction. It is
also directed that the Waqf Tribunal shall proceed from the stage of framing of
issues as the pleadings of the parties are complete and shall conclude the
proceedings as per the provisions of the Waqf Act.
11. By the consent of the parties, it is directed that the matter shall be taken
up by the concerned Waqf Tribunal on 13.03.2024.
12. Let a copy of this order be sent to the concerned Courts alongwith the
record.
13. The appeal, accordingly, stands disposed off.
(ANURADHA SHUKLA)
JUDGE
rv
