Dismissed

Abdul Rashid (Since Deceased) and 4 Others v. Ahsan Jama Khan (Since Deceased) and 8 Others

Allahabad HC27 Feb 2020SAPL/224/2020

Case brief

AI extract

What is this about?

Second appeal regarding a suit for cancellation of sale deed involving alleged Waqf land. The appellant argued the Civil Court lacked jurisdiction. Held, the land nature was admitted as Waqf by the defendant, so no jurisdictional dispute existed, and the Civil Court had jurisdiction to cancel the sale deed. Appeal dismissed.

What did the court decide?

The second appeal is dismissed.

Abdul Rashid (Since Deceased) and 4 Others Vs Ahsan… — Property and Title | Allahabad HC (2020)

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Court No. - 53

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Case :- SECOND APPEAL No. - 224 of 2020

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Appellant :- Abdul Rashid (Since Deceased) And 4 Others Respondent :- Ahsan Jama Khan (Since Deceased) And 8 Others

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Counsel for Appellant :- Arimardan Yadav,Jadu Nandan Yadav,Pranvesh

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Counsel for Respondent :- Mushir Khan

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Hon'ble Vivek Agarwal,J.

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Heard Sri Pranvesh, counsel for the appellants and Sri Mushir Khan, counsel for the respondents.

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This second appeal has been filed by the defendant being aggrieved by judgment and order dated 20.11.2019 and decree dated 02.12.2019 passed by learned Additional District Judge, Court No.1, Kannauj in Civil Appeal No.16 of 2015 affirming the judgment and order dated 03.04.2015 and decree dated 10.04.2015 passed by Additional Civil Judge, Chhibramau, District, Kannauj in original suit no.205 of 2003.

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Brief facts of the case are that one Ahsan Jama Khan-plaintiff had filed a suit against the defendant for cancellation of sale deed which was partly decreed in relation to land contained in survey no.657 and 658-Ka on the ground that such land was that of "Waqf Kabrishtan" and, therefore, it could not have formed part of the sale deed but other lands which formed part of the sale deed was kept intact. This finding of fact has been affirmed by the first appellate court in an appeal filed by the defendant and the appeal which was filed by the defendant has been rejected by the first appellate court.

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Learned counsel for the appellant submits that subject matter of dispute was since, land contained in survey no.657 and 658-Ka as to whether they were the lands of waqf or not. Such dispute

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could have been only decided by Waqf Tribunal and not by the civil court and this issue can be raised even for the first time in second appeal as has been held by Hon'ble Supreme Court in case of Harshad Chiman Lal Modi Vs. DLF Universal Ltd. and another as reported in 2005 (7) SCC 791.

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Reliance has been placed by learned counsel for the appellant on para-30 of the aforesaid judgment wherein, it has been held that "the law is well settled on the point that if such objection is not taken at earliest, it cannot also to be taken at a subsequent stage. Jurisdiction as to subject matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject matter of a suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court, if any, having no jurisdiction is a nullity".

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Placing reliance on this judgment of Supreme Court, it is submitted that since, the dispute was as to whether land contained in survey no.657 and 658-ka is waqf land or not, jurisdiction was exclusively vested in the Waqf Tribunal and it could not have been exercised by the civil court and, therefore, the judgment and decree passed by the courts below are vitiated and deserves to be set aside.

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Learned counsel for the respondents, on the other hand, has placed reliance on the judgment of Hon'ble Supreme Court in case of Bhanwar Lal and others Vs. Rajasthan Board of Muslim and others as reported in (2014) 16 SCC 51 wherein, it has been held that jurisdiction in regard to cancellation of a sale deed is exclusively vested in the civil court and provisions contained in Section 85 of the Waqf Act, 1995 will not be applicable to such proceedings where cancellation of sale deed is sought.

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After hearing learned counsel for the parties and going through the records, the only issue which is to be adjudicated is as to whether, the trial court exceeded its jurisdiction in partly allowing the suit and setting aside the sale deed to the extant that it covered certain lands which formed subject matter of the Waqf property contained in survey no.657 and 658-Ka is concerned, trial court has categorically discussed that it was the case of the defendant as he had put forth vide document no.29(C-1) and 'Joat Chakbandi Aakar Patra-45' that land contained in Gata Nos.657 and 658-Ka/1.40 is a Waqf land and this fact was admitted by the plaintiff vide document no.14(c) (1).

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In view of such admission of the defendant that the land in question is a Waqf land. Now, it is no more open to the defendant in this second appeal to contest the aspect that since there was a dispute that whether the land in question is a waqf land or not, matter should have been remitted to the Waqf Tribunal rather than being decided by the civil court. Even otherwise in the light of the law laid down in case of Bhawar Lal and others (supra), the jurisdiction to adjudicate the validity of the sale deed and if a suit is filed for cancellation of a sale deed rests exclusively with the civil court and not with the Waqf Tribunal. Thus, this Court is of the opinion that the impugned judgment and decree do not suffer from any infirmity in declaring that portion of the sale deed as null and void which deals with the Waqf land and, therefore, no substantial question of law appears to emerge in this appeal lest the one mentioned in the memo of appeal.

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This view get supports from the judgment rendered by Hon'ble Supreme Court in case of Punjab Wakf Board Vs. Sham Singh Harike passed in civil appeal no.93 of 2019 decided on

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07.02.2019 wherein in para 52 which has been held as under:-

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"52. Coming to Section 83 which relates to bar of jurisdiction of Civil Court, the relevant words are "any dispute, question or other matter relating to a wakf or wakf property" which is required by or under this Act to be determined by the Tribunal. Thus, bar of jurisdiction of Civil Court is confined only to those matters which are required to be determined by the Tribunal under this Act. Thus, Civil Court shall have jurisdiction to entertain suit and proceedings which are not required by or under the Act, 1995 to be determined. Thus, answering the question of jurisdiction, question has to be asked whether the issue raised in the suit or proceeding is required to be decided under the Act, 1995 by the Tribunal, under any provision or not. In the event, the answer is affirmative, the bar of jurisdiction of Civil Court shall operate. "

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Thus, as noted above in the present case it was an admission of the defendant that the land contained in survey no.657 and 658Ka is waqf land. There was no dispute as to the nature of land; and, therefore, the civil court has jurisdiction to hear and decide the matter.

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Therefore, the appeal fails and is dismissed.

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Order Date :- 27.2.2020 Ashutosh

Abdul Rashid (Since Deceased) and 4 Others v. Ahsan Jama Khan (Since Deceased) and 8 Others

Case brief

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Abdul Rashid (Since Deceased) and 4 Others v. Ahsan Jama Khan (Since Deceased) and 8 Others

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