Madras High Court
At The Instance Of The Learned ... vs K.M.Jahabar Nachiyar on 18 February, 2021
CRP.NPD.No.3788 of 2015
CRP.NPD.No.3788 of 2015
G.K.ILANTHIRAIYAN, J.
At the instance of the learned counsel for the petitioners, today this
matter has been posted under the caption “for being mentioned”.
2. The learned counsel for the first respondent would submit that
the first petitioner died long back. Even then, the legal heirs of the deceased
first petitioner did not take any step to implead them as party to the
proceedings.
3. Considering the submission of the learned counsel for the first
respondent, it is ordered that paragraph 7 to 9 of the order dated 18.02.2021
passed in CRP.NPD.No.3788 of 2015 by this Court shall read as follows:
“7. Therefore, for determination of any dispute,
question or other matter relating to a Wakf or Wakf property,
the Tribunal has got jurisdiction to try the same. Further, the
said issue is open to the parties before the Wakf Tribunal in
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CRP.NPD.No.3788 of 2015
respect of its jurisdiction and as such it cannot be rejected on
its threshold.
8.In view of the above discussion, the order passed
by the Court below dated 02.07.2015 in I.A.No.96 of 2013 in
W.O.P.No.1 of 2012 on the file of the Wakf Tribunal
Nagapattinam, in the Court of Subordinate Judge,
Nagapattinam, is perverse and illegal and also liable to be set
aside.
9.Accordingly, the Civil Revision Petition is allowed
and the Wakf Tribunal is directed to conduct enquiry on the
petition i.e.,I.A.No.96 of 2013 in W.O.P.No.1 of 2012 on the
file of the Wakf Tribunal Nagapattinam, in the Court of
Subordinate Judge, Nagapattinam, and dispose of the same
within a period of four months from the date of receipt of a
copy of this order. The legal heirs of the first respondent are
at liberty to file necessary petition before the trial court to
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CRP.NPD.No.3788 of 2015
implead themselves as party within a period of two weeks
from the date of receipt of copy of this order. No costs.
Consequently connected miscellaneous petition is closed.
4. It is also ordered that the learned counsel for the first
respondent shall be shown as Mr.Palani Swamy in stead of Mr.Desinghu
Natesan for Mr.Palani Swamy in the cause title of the order dated
18.02.2021 passed in CRP.NPD.No.3788 of 2015 by this Court.
5. Accordingly, the Registry is directed to issue a fresh order copy
in CRP.NPD.No.3788 of 2015 dated 18.02.2021 after making necessary
corrections.
01.03.2021
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CRP.NPD.No.3788 of 2015
G.K.ILANTHIRAIYAN, J.
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CRP.NPD.No.3788 of 2015
01.03.2021
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CRP.NPD.No.3788 of 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 18.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(N.P.D).No.3788 of 2015
and M.P.No.1 of 2015
1.S.Mohammed Ansari
2.M.M.Ismail ...Petitioners
Vs
1.K.M.Jahabar Nachiyar
2.Tamil Nadu Wakf Board
Represented by its Chief Executive Officer
1, Jaffar Seran Street
Vallal Seethakathi Nagar
Chennai - 600 001.
3.K.Balu ...Respondents
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
India to set aside the order dated 02.07.2015 in I.A.No.96 of 2013 in
W.O.P.No.1 of 2012 on the file of the Wakf Tribunal Nagapattinam, in the
Court of Subordinate Judge, Nagapattinam.
For Petitioners : Mr.K.Ashok Kumar
For Respondents : Mr.Desinghu Natesan
for Mr.Palani Swamy for R1
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CRP.NPD.No.3788 of 2015
Ms.J.B.Abitha Banu for R2
ORDER
The Civil Revision Petition is directed as against the order dated
02.07.2015 in I.A.No.96 of 2013 in W.O.P.No.1 of 2012 on the file of the Wakf
Tribunal Nagapattinam, in the Court of Subordinate Judge, Nagapattinam,
thereby allowing the petition filed under Order 7 Rule 11 of CPC and the
W.O.P.No.1 of 2012 is objected as not maintainable before the Wakf Tribunal.
2.The petitioners filed a petition before the Wakf Tribunal for
declaration declaring that the sale deed executed by the 1st respondent in favour
of the 3rd respondent herein in respect of the C schedule property is null and
void and further direction directing the 1st and 3rd respondent herein to restore
the possession of B and C schedule properties to the petitioners. On perusal of
the petition, the petitioners alleged that their grandfather was a pious religious
muslim and endowed a wakf through a registered wakf deed dated 28.03.1933,
registered as document No.550 of 1933, thereby endowing large extent of
properties belonging to him as described in A to C schedule properties.
3.The C Schedule property was allotted to his third son and after his
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CRP.NPD.No.3788 of 2015
demise, the 1st respondent, as the only daughter of the deceased, who is in
possession, with the consent of the petitioners. While being so, the 1st
respondent executed sale deed in respect of the C schedule property in favour of
the 3rd respondent herein. In fact the petitioners have cautioned general public
by making a publication in the tamil daily, by highlighting the character of the
wakf properties and cautioned the public not to purchase any of the items from
the 1st respondent. In spite of the publication, the 3rd respondent herein
purchased the suit property on 20.12.2011. That apart for selling the wakf
property, both the respondents 1 and 3 have not obtain any permission either
from the Court or from the Wakf. Therefore, the sale is liable to be set aside.
While pending the petition, the respondents also filed their counter. Thereafter
they filed a petition for rejection of the plaint under Order 7 Rule 11 of CPC on
the ground that the suit property is not a wakf property and as such the Wakf
Tribunal has no jurisdiction to try the petition. The trust created by the
deceased grandfather is a family trust under the document dated 28.03.1933.
The respondents 1 and 3 also filed their written arguments. In support of his
objections, the petitioners also filed detailed counter. On perusal of the written
arguments submitted by the respondents 1 and 3 herein and also Judgments
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CRP.NPD.No.3788 of 2015
cited by them, the Wakf Tribunal rejected the petition on the ground that the
suit schedule property is not a wakf property and as such the petition is not
maintainable before the Wakf Tribunal and the Civil Court only has got the
jurisdiction to try the issues.
4.The learned counsel for the petitioners relied upon the following
Judgments in support of his contentions:
(i) in the case of C.Natarajan Vs. Ashim Bai and another. Relevant
paragraphs are extracted hereunder:-
"6.Order VII Rule 11(d) of the Code of Civil Procedure
reads as under :
11.Rejection of plaint.The plaint shall be rejected in the
following cases :
(a) to (c) ...
(d) where the suit appears from the statement in the plaint
to be barred by any law;
(e) to (f) ...
7. An application for rejection of the plaint can be filed if
the allegations made in the plaint even if given face value
and taken to be correct in their entirety appear to be
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CRP.NPD.No.3788 of 2015
barred by any law. The question as to whether a suit is
barred by limitation or not would, therefore, depend upon
the facts and circumstances of each case. For the said
purpose, only the averments made in the plaint are
relevant. At this stage, the court would not be entitled to
consider the case of the defence."
(ii) in the case of Popat and Kotecha Property Vs. State Bank of
India Staff Association, relevant paragraphs are extracted here:-
"Rule 11 of Order VII lays down an independent
remedy made available to the defendant to challenge the
maintainability of the suit itself, irrespective of his right to
contest the same on merits. The law ostensibly does not
contemplate at any stage when the objections can be raised,
and also does not say in express terms about the filing of a
written statement. Instead, the word 'shall' is used clearly
implying thereby that it casts a duty on the Court to perform
its obligations in rejecting the plaint when the same is hit by
any of the infirmities provided in the four clauses of Rule 11,
even without intervention of the defendant. In any event,
rejection of the plaint under Rule 11 does not preclude the
plaintiffs from presenting a fresh plaint in terms of Rule 13.
The above position was highlighted in Sopan Sukhdeo Sable
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CRP.NPD.No.3788 of 2015
and Ors. v. Assistant Charity Commissioner and Ors. (2004
(3) SCC 137).
When the averments in the plaint are considered in
the background of the principles set out in Sopan Sukhdeo's
case (supra), the inevitable conclusion is that the Division
Bench was not right in holding that Order VII Rule 11 CPC
was applicable to the facts of the case. Diverse claims were
made and the Division Bench was wrong in proceeding with
the assumption that only the non-execution of lease deed was
the basic issue. Even if it is accepted that the other claims
were relatable to it they have independent existence. Whether
the collection of amounts by the respondent was for a period
beyond 51 years need evidence to be adduced. It is not a case
where the suit from statement in the plaint can be said to be
barred by law. The statement in the plaint without addition or
subtraction must show that is barred by any law to attract
application of Order VII Rule 11. This is not so in the present
case.
We do not intend to go into various claims in detail
as disputed questions in relation to the issue of limitation are
involved.
The appeal is accordingly allowed with no order as
to costs. We make it clear that we have not expressed any
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CRP.NPD.No.3788 of 2015
opinion on the merits of the case which shall be gone into in
accordance with law by the Trial Court."
5.In the above Judgments the Hon’ble Supreme Court of India has
held that to consider the rejection of plaint under Order 7 Rule 11 and only the
averments made in the plaint are relevant. In the case on hand, the learned
Wakf Tribunal without letting evidence, came to the conclusion only on the
basis of the written arguments submitted by the respondents 1 and 3 and
concluded that the property is purely a private family property and it was
created under the family trust under the document dated 28.03.1933. As stated
supra the petitioners made specific averments that the suit properties which
were endowed through the suit property, dedicated to the Wakf. Therefore, the
Wakf filed the document No.550 of 1993. When it being so, the parties
concerned have to obtain necessary permission from the Court or from the
Wakf. These are all the issues have to be tried with a fullfledged trial.
6.In so far as the jurisdiction of the Wakf Board is concerned, it is
relevant to extract the provisions under Section 83 of the Wakf Act.
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CRP.NPD.No.3788 of 2015
"83.Constitution of Tribunals, etc.,- (1)The State
Government shall, by notification in the Official Gazatte,
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."
7.Therefore, for determination of any dispute, question or other matter
relating to a Wakf or Wakf property, the Tribunal has got jurisdiction to try the
same. Therefore, the Wakf Tribunal has got the jurisdiction to try the petition
filed by the petitioners and it cannot be rejected on its threshold.
8.In view of the above discussion, the order passed by the Court
below dated 02.07.2015 in I.A.No.96 of 2013 in W.O.P.No.1 of 2012 on the
file of the Wakf Tribunal Nagapattinam, in the Court of Subordinate Judge,
Nagapattinam, is perverse and illegal and also liable to be set aside.
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CRP.NPD.No.3788 of 2015
9.Accordingly, the Civil Revision Petition is allowed and the Wakf
Tribunal is directed to conduct enquiry on the petition i.e.,I.A.No.96 of 2013 in
W.O.P.No.1 of 2012 on the file of the Wakf Tribunal Nagapattinam, in the
Court of Subordinate Judge, Nagapattinam, and dispose of the same within a
period of six months from the date of receipt of a copy of this order. No costs.
Consequently connected miscellaneous petition is closed.
18.02.2021
Index:Yes/No
Internet: Yes/No
Speaking Order: Yes/No
Jer
To
1.The Wakf Tribunal Nagapattinam.
2.The Subordinate Judge, Nagapattinam.
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CRP.NPD.No.3788 of 2015
G.K.ILANTHIRAIYAN.J,
Jer
C.R.P.(N.P.D).No.3788 of 2015
18.02.2021
http://www.judis.nic.in
