Hussain Shah And Anr vs Rajasthan Board Of Muslim Wakf
2022 Latest Caselaw 7156 Raj/2

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

            S.B. Civil Second Appeal No.735/2017

1.      Hussain Shah S/o Yaseen Khan, age about 65 years
2.      Shahabuddin S/o Yaseen Khan, age about 62 years,
        Both R/o Malpura, Tehsil Malpura, Distt. Tonk
                                                        ----Plaintiff/Appellants
                                   Versus
Rajasthan Board Of Muslim Wakf, Jaipur Through Its Chief
Executive Officer, Near Vidhansabha, Jaipur
                                                  ----Defendant/Respondent

For Appellant(s)         :     Mr. Raghunandan Sharma
For Respondent(s)        :



           HON'BLE MR. JUSTICE SUDESH BANSAL

                                Judgment

10/11/2022

1. Instant second appeal has been preferred by appellants-

plaintiffs under Section 100 CPC feeling aggrieved by the

judgment and decree dated 26.09.2017 passed in Civil Appeal

No.19/2008 by the Court of Additional District Judge, Malpura,

District Tonk affirming the judgment and decree dated 19.07.2008

passed in Civil Suit No.3/2002 by the Court of Civil Judge (JD)

Malpura, Tonk whereby and whereunder their civil suit for

permanent injunction has been dismissed.

2. Heard counsel for appellants and perused the impugned

judgments and record.

3. On perusal of record, it transpires that in respect of the suit

property, the Rajasthan Board of Muslim Waqf, instituted Case

No.188/1993 against the appellants-plaintiffs before the Court of

Estate Officer (Waqf), Jaipur. That suit was contested by plaintiffs.

(2 of 3) [CSA-735/2017]

Thereafter, the suit was decided in favour of the Rajasthan Board

of Muslim Waqf vide judgment dated 31.05.1995 and plaintiffs

were found in illegal and unauthorized possession of the waqf

property and as such they were directed to be dispossessed. In

execution of the judgment dated 31.05.1995, when the notices

were served upon plaintiffs, they instituted present civil suit for

permanent injunction before the civil court.

4. In the civil suit, plaintiffs claimed that suit property is part of

Khasra Nos.1559, 1560 and 1561 alloted by Nagar Nigam.

Defendant-Rajasthan Board of Muslim Waqf submitted written

statement and contended that the suit property is waqf property

and in relation of that, suit has already been decreed against

plaintiffs from the Estate Officer.

5. Learned trial court, in the impugned judgment dated

19.07.2008, has observed that plaintiffs have not produced any

evidence that the suit property is part of Khasra No.1559, 1560

and 1561 belonging to Nagar Nigam nor any document has been

filed nor Nagar Nigam has been impleaded as party. The trial court

further observed that the suit property is registered in the register

of waqf and is a waqf property, therefore, the jurisdiction of civil

court is barred by virtue of Section 85 of the Waqf Act, 1995.

Further the trial court also observed that since the Estate Officer,

vide its order dated 31.05.1995, has already passed order against

plaintiffs to dispossess and that order has attained finality,

therefore, plaintiffs cannot approach to the civil court.

6. Such fact findings are based on the material on record and

according to the proposition of law that civil court has no

jurisdiction in respect of the waqf property, has been affirmed by

(3 of 3) [CSA-735/2017]

the first appellate court in its judgment dated 26.09.2017 and first

appeal has been dismissed.

7. Learned counsel for appellants although argued that the

findings of courts below are perverse however, could not prove

that once plaintiffs have already suffered from the judgment dated

31.05.1995 passed by the Estate Officer (Waqf) wherein the suit

property has been held as waqf property and the suit property is

recorded in the register of waqf, therefore in what circumstances,

the civil court has jurisdiction to entertain the suit for permanent

injunction.

8. Section 85 of the Waqf Act, 1995 very expressly bars the

jurisdiction of civil court to entertain any suit or legal proceedings,

in respect of any dispute relating to waqf properties. Therefore,

this Court does not find any illegality or jurisdictional error in the

impugned judgments. In such circumstances, no substantial

question of law arises in this second appeal. Substantial question

of law is sine qua non for exercising the jurisdiction under Section

100 CPC and to entertain the second appeal. Hence, the second

appeal is found to be devoid of merits and the same is dismissed.

There is no order as to costs.

9. Record be sent back.

10. All pending application(s),if any, stand(s) disposed of.

(SUDESH BANSAL),J

SAURABH/13

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