Dismissed

Mutavalli Anjuman-a-Islam v. Veerabhadrappa S/O. Fakiragouda Patil

Karnataka HC7 Oct 2021MSA/100063/2014

Case brief

AI extract

What is this about?

Suit for declaration of title and injunction over agricultural land claimed by the plaintiffs as ancestral property and by the defendant Wakf Board as Idgah and Kabristan notified as Waqf. The trial court dismissed the suit as not maintainable; the first appellate court remanded it. This Court dismissed the second appeal and refused to interfere with the remand.

What the court decided

AI extract

Mutavalli Anjuman-a-Islam Vs Veerabhadrappa S/O… — Property and Title | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

¶3

DATED THIS THE 07^TH DAY OF OCTOBER, 2021

¶4

BEFORE

¶5

THE HON’BLE MR. JUSTICE P.N.DESAI

¶6

MSA NO.100063/2014

¶7

BETWEEN:

¶8

SRI. MUTAVALLI ANJUMAN-A-ISLAM SUNNI WAKF BOARD, RESIDENT OF BANKAPUR TQ:SHIGGAON DISTRICT: HAVERI.

¶9

…APPELLANT

¶10

(BY SRI D.L.LADKHAN, ADVOCATE)

¶11

AND:

¶12

SRI. VEERABHADRAPPA S/O. FAKIRAGOUDA PATIL AGE:58 YEARS OCCUPATION:SERVICE RESIDENT OF BANKAPUR TQ: SHIGGAON DISTRICT – HAVERI

¶13

JAYAVANTAGOUDA S/O. FAKKIRGOUDA PATIL AGE:53 YEARS OCCUPATION: AGRICULTURE RESIDENT OF BANKAPUR TQ:SHIGGAON DISTRICT: HAVERI

¶14

…RESPONDENTS

¶15

(BY SRI CHANDRASHEKHAR R.HIREMATH, ADVOCATE FOR R1 AND R2;)

¶16

¶17

THIS MSA FILED UNDER SECTION 43 RULE 1(U) AND SEC.105 OF CPC, AGAINST THE JUDGMENT AND DECREE DTD:09.04.2014 PASSED IN R.A.NO.17/2013 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE, HAVERI, ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DTD:03.01.2013 PASSED IN O.S.NO.78/2005 ON THE FILE OF THE CIVIL JUDGE & JMFC, SHIGGAON, DISMISSING THE SUIT FILED FOR DECLARATION AND INJUNCTION.

¶18

THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶19

JUDGMENT

¶20

This appeal is preferred to set-aside the judgment and decree dated 09.04.2014 passed by learned Addl. Senior Civil Judge, Haveri in R.A.No.17/2013 dated 09.04.2014, wherein the appeal was allowed the matter was remanded to the trial court.

¶21

Appellant is the defendant before the trial court. Respondents are plaintiff Nos.1 and 2 before the trial court. They will be referred as ‘plaintiffs’ and ‘defendant’ as per their respective ranks before the trial court.

¶22

The plaintiffs instituted a suit seeking relief of declaration and permanent injunction in respect of agricultural land bearing Sy.No.317/1 measuring 2 acres 28 guntas situated at Kotigeri village limits,

¶23

¶24

Bankapur, Shiggaon Taluk, Haveri District situated within the boundaries shown in the plaint.

¶25

It is contended by the plaintiffs that the suit property is their ancestral property. Earlier, the total extent of suit land was 4 acres 37 guntas. The plaintiffs’ ancestors were in possession and enjoyment of the said property. After the death of father of the plaintiffs, the mother of the plaintiffs, as a guardian was cultivating the land to the extent of 4 acres 37 guntas.

¶26

It is further contended that on the basis of false varadi given by the defendant, the name of defendant was entered for 2 acres 28 guntas. No notice was given to the plaintiffs while sanctioning mutation entry No.1234 dated 03.09.1975 by the Tahsildhar and it was an exparte order by colluding with the defendant. It is further contended that on the date of the said mutation entry order dated 03.09.1975, the plaintiffs were minors. They attained majority in the year 1994. They questioned the said mutation entry before the Assistant Commissioner, Savanur and said appeal was dismissed on the ground of delay. Thereafter, plaintiff No.1 preferred W.P.No.6135/1997. This Court by order dated 08.07.1998 dismissed the writ petition

¶27

¶28

and directed the parties to get declaration before the civil court in respect of entry and ownership. It is contended that the dismissal of the writ petition was not within the knowledge of the plaintiffs. Only in the month of January 2005 when the plaintiffs enquired regarding the writ petition, they came to know about dismissal of the same. Then immediately, they filed a suit.

¶29

It is further contended that on the basis of illegal entry, the defendant is unnecessarily harassing the plaintiffs. Therefore, they filed a suit seeking declaration of title over the suit property and also relief of permanent injunction against the defendant restraining him from interfering with their possession.

¶30

Defendant filed written statement. Defendant denied the averments of the plaint as all false. Defendant also denied the description of the suit property. The defendant also denied all the contents of paragraph as all false.

¶31

It is the defence of the defendant that the suit property is used as Idgah and "Kabristan" by Muslim community of Bankapur since time immemorial. Besides

¶32

¶33

Sy.No.317/1, another Sy.No.316/3 measuring 1 acre 4 guntas is also used for the aforementioned purpose. Muslims of Bankapur Town have been offering prayer on Eid Ul Fitr.

¶34

It is further contended that the suit property as well as Sy.No.316/3 have been declared as Waqf properties in the name of defendant and the same have been registered under the provisions of The Waqf Act, 1995 (hereinafter referred for short as ‘Waqf Act’) in the year 1975. Suit property is in actual enjoyment of the defendant, managed and administered by him for the above purpose. Plaintiffs were never in possession of the said property at any point of time and they have no right, title and interest over the said property.

¶35

It is further contended that the character and nature of the property has been conclusive as Waqf and any dispute of Waqf property is required to be adjudicated by the Waqf Tribunal established under the provisions of Waqf Act. Therefore, the civil court has no jurisdiction to adjudicate the suit without making the Karnataka State Waqf Board as a party. The instant suit is not maintainable.

¶36

¶37

Suit is barred by limitation. So with these main contentions, appellant/defendant prayed to dismiss the suit.

¶38

On the basis of the above pleadings, the trial court framed the following issue:-

¶39

“Whether suit of the plaintiff is barred under section 6 of Waqf Act 1995?’

¶40

The trial court considered issue No.4 as preliminary issue stating that it goes to the root of the matter and raised point for consideration as “whether the suit of the plaintiff is barred under section 6 of Waqf Act, 1995.”

¶41

The trial court held that the suit ought to have been filed before Waqf Tribunal and not before the civil court. Accordingly, suit was dismissed as not maintainable.

¶42

Aggrieved by the same, the plaintiffs preferred R.A.No.17/2013 before the Addl. Senior Civil Court, Haveri. The learned Judge allowed the appeal and consequently answered issue No.4 in affirmative and held the suit is maintainable and remanded the matter to the trial court to

¶43

¶44

give a finding on other issues. Challenging the said order,

¶45

the appellants are before this Court.

¶46

Learned counsel for the appellants Sri. D.L. Ladkhan argued that the first appellate court has committed an error in allowing the regular Appeal.

¶47

The learned counsel for the appellant submitted that the first appellate court has not considered the provisions of Waqf Act. The appellate court has not considered as to who were the parties of the subject matter in W.P.No.6135/1997. The plaintiffs cannot take benefit of their minority. They have not shown sufficient cause. The suit itself was time barred. This Court has granted the liberty to file a suit. But such liberty was not exercised diligently. The plaintiffs have not challenged the gazette notification dated 30.07.1995 wherein at Sl.No.35, suit property is referred as it is meant for graveyard and Idgah. Therefore, the suit filed by the plaintiffs before the civil court seeking remedy to declare by nullifying gazette notification which cannot be done in the guise of suit for declaration.

¶48

¶49

Learned counsel also argued that the plaintiffs were the revenue employees. They cannot say that it is not within their knowledge. The date of birth of the plaintiffs is not shown. In view of section 6 of the Waqf Act, 1995, when the subject matter is 'Waqf' property, the suit before the civil court is not maintainable and appropriate remedy is to approach the Tribunal constituted under the Waqf Act, 1995.

¶50

Further, learned counsel also argued that the appellate court relied on the decision of the Hon’ble Supreme Court in RAMESH GOBINDRAM (DEAD) BY LRs v. SUGRA HUMAYUN MIRZA WAKF, reported in ( 2010) 8 SCC 726, wherein the Hon’ble Supreme Court held that such a suit practically challenging as to whether it is a Waqf property or not is not maintainable before the civil court. Learned counsel relied on the decision of the Hon’ble Supreme Court reported in Civil Appeal No.92/2019 in the case of PUNJAB WAQF BOARD v. SHAM SINGH HARIKE dated 07.02.2019 and referred to para 64 and 65 of the said decision and argued that “whether the suit property is Waqf property or not” that question ought to be considered by the Waqf Tribunal. It is required to be

¶51

¶52

decided by the tribunal constituted under section 83 or Waqf Act and the bar under section 85 come into existence.

¶53

Learned counsel also relied upon another decision of the Hon’ble Supreme Court in Civil Appeal No.4522/2021 in the case of TELANGANA WAQF BOARD AND ANOTHER v. MOHAMMED MUZAFAR dated 03.08.2021 and referred to paras 23, 24 and 25. He also relied upon another decision of the Hon’ble Supreme Court in Civil Appeal No.6310/2017 in the case of RAJASTHAN WAKF BOARD v. DEVKI NANDAN PATHAK & ORS. dated 04.05.2017 wherein relying on para 24, 26 and 27, the learned counsel argued that Hon’ble Supreme Court held that the jurisdiction of the civil court to decide such matters is also barred by virtue of provision contained under section 85 of the Waqf Act. It is also argued that it is section 83 of the Waqf Act which empowers the tribunal to determine any dispute or other matter relating to Waqf or Waqf property. With these main arguments, learned counsel prayed to set-aside the order of the first appellate court remanding the matter and confirm the judgment and decree passed by the trial court in dismissing the suit.

¶54

¶55

Against this, Sri. Chandrashekhar R.Hiremath, learned counsel for respondents argued that said gazette notification came to be passed in the year 1975. Earlier, no notice was given to the plaintiffs. Without hearing the plaintiffs or their guardian, exparte order came to be passed which is illegal. It is also argued by the learned counsel that prior to the year 1975, the name of the plaintiffs and plaintiffs’ ancestor were appearing in respect of suit property. Therefore, to change the name of the plaintiffs or their ancestor, in the revenue records they should have been heard. Therefore, such an entry in respect of suit property is illegal and it does not bind the plaintiffs. On attaining majority they have challenged the same. It is further contended that when they challenged the entries, this Court in W.P.No.6135/1997 directed them to approach the civil court. Therefore, they have filed a civil suit for getting declaration of their right.

¶56

Learned counsel also argued that the first appellate court in detail discussed each and every aspect and has rightly held that the suit is maintainable. Learned counsel further argued that the first appellate court rightly relied upon the decision of the Supreme Court in RAMESH

¶57

¶58

GOBINDRAM referred supra and has rightly held that section 85 of the Waqf Act is not applicable. The first appellate court has rightly held that the provisions of the said Waqf Act are applicable to the Waqf property. But the suit property is not a Waqf property. On the other hand, it is their ancestral property. Therefore, the suit filed for declaration of their right stating that it is their ancestral property being a civil suit and Civil Court has jurisdiction to entertain the same under section 9 of Code of Civil Procedure (for short ‘CPC’). The dispute is not relating to Waqf property, but dispute is for declaration of ownership of the plaintiffs, as they contend that it is their exclusive property and ancestral property. Therefore, learned counsel argued that earlier infact I.A.No.III was filed by the plaintiffs before the trial Court to permit them to withdraw the suit and file the same before the Waqf tribunal on the same cause of action. But the application was dismissed by the trial court on 18.03.2005. The learned counsel also argued that the trial court has come to a wrong conclusion and dismissed the suit which is rightly set-aside by the first appellate court and hence needs no interference. Learned counsel relied upon the decision of the Supreme Court in

¶59

¶60

RAMESH GOBINDRAM (supra). With these main

¶61

contentions, learned counsel for respondents prayed to dismiss the appeal.

¶62

I have perused the contents of the appeal memo and also the impugned judgment of the first appellate court and records of the trial court.

¶63

From the above materials, the points that arise for my consideration is:-

¶64

1. “Whether the order of remand passed by the first appellate court is not based on settled principles regarding maintainability of suit under section 9 of CPC and also bar under section 85 of Waqf Act?" and needs interference of this Court?.

¶65

My answer to the above point is in negative for the following reasons:

¶66

The plaintiffs instituted a suit seeking declaration that they be declared as the owners of the suit property and also for relief of permanent injunction restraining the defendants from interfering with their peaceful possession. It is contended by the plaintiffs that the suit property is their ancestral property. It was in possession of ancestors

¶67

¶68

of the plaintiffs. After the death of plaintiffs’ father, as these plaintiffs were minors, their mother as a guardian was in possession of the suit land till the year 1976 and the entire 4 acres 37 guntas was in the name of the plaintiffs and in their possession. Then, mutation entry 1234 came to be passed without issuing notice to the plaintiffs or their minor guardian mother by colluding with defendants on 30.03.1976. The plaintiffs came to know about the same after attaining majority in the year 1994, then they preferred appeal against the same. But on the ground of delay and laches, the said appeal was dismissed. Aggrieved by the same, they filed a writ petition, which came to be disposed on 8.7.1998. But the disposal of the writ petition was not within their knowledge till 2005. Then immediately, they took certified copy and filed the suit.

¶69

It is evident that the defendant filed the written statement denying the contents and contended that that suit property is used as Idgah and Kabristan by muslim community of Bankapur, besides Sy.No.317 another Sy.No.327/1 1acre 4 guntas is also used. It is the contention of the defendant that the suit property has been declared as Waqf and the name of the defendant has been

¶70

¶71

entered in revenue records and the same has been notified in the year 1975 in Gazette itself. It is their contention that the suit property is in actual and physical possession of the defendant. There are several graveyards and Idgah wherein namaz is offered on every Eid. So they took a defence that Civil court has no jurisdiction and as the property is Waqf property, dispute is to be adjudicated by the Waqf Tribunal established under the Waqf Act, 1995.

¶72

It is evident that the trial Court framed five issues and issue No.4 is regarding maintainability.

¶73

The order sheet of the trial Court indicates that after the issues were framed, the case was posted for plaintiffs’ evidence on 12.06.2006 itself. Then plaintiffs filed examination-in-chief evidence by way of affidavit on 05.08.2010. The order sheet shows that defendant’s counsel pressed for deciding issue No.4. Accordingly, the case was adjourned for nearly more than two and half years. On 03.01.2013, this order came to be passed. Though the suit was filed in the year 2005, it was dismissed on the preliminary issue No.4 on 3.01.2013.

¶74

¶75

I have perused the order passed by the Addl. Sr. Civil Judge, Haveri in R.A.No.17/2013.

¶76

The learned Judge referred to section 9 of the Code of Civil Procedure and also considered the jurisdiction of Civil Courts and relying on the decision of the Supreme Court in RAMESH GOBINDRAM supra held that if the parties are non-muslims and if they have no interest in Waqf property and they claim independent right over the suit property, then Civil Court has jurisdiction to entertain the suit as contemplated under section 9 of CPC. The learned appellate Judge relying decision in case of SYED ABDUL AZEEZ v. JUMMA MASJID TRUST BOARD, BANGALORE reported in 2014 (1) KCCR 575 supra of this Court came to the conclusion that the suit of the plaintiffs is maintainable. The learned appellate Judge came to the conclusion that there is no bar for the plaintiffs to independently establish their right over suit property even though Gazette is published with regard to suit property. The learned Judge also held the question of limitation at this stage cannot be considered and accordingly he has set aside the order.

¶77

¶78

Admittedly, as per the records produced in this case, the suit property as per Ex-P1 RTC was standing in the name of plaintiffs for the year 1974-75 in column No.12 and also column No.4. 2 acres 28 guntas is shown as phot kharab, remaining land is shown as 2 acres 9 guntas. Then said Survey number 42 was divided into 42, 42/1 and 42/2 as per the mutation order dated 30.03.1976. Admittedly, the plaintiffs were minors at that time. It is evident, they filed W.P.No.6135/1997 challenging the order passed by Asst. Commissioner, Savanur and the learned Single Judge of this Court observed that the civil court has to decide the right, in view of proviso to section 135 of Karnataka Land Revenue Act 1964. Accordingly, plaintiffs have filed this suit.

¶79

It is evident that in view of issues framed in this suit, the burden is on the plaintiffs to prove that they are the absolute owners and in possession of suit property. Plaintiffs are not claiming any fresh acquisition of right in the suit property. On the other hand, their names were appearing earlier and as they contend that it is their ancestral property and as there is a cloud on their title in view of the mutation entry made in the year 1975 which

¶80

¶81

they allege that without their notice when they were minors it was made, they filed this suit as directed by this Court in writ petition to get declaration of their title under section 135 of the Karnataka Land Revenue Act so that a lawful entry can be made based on any such declaration by civil court.

¶82

The contention of the learned counsel for the appellant that once the property is notified as Waqf in the gazette notification, any dispute regarding Waqf property shall be decided by the tribunal constituted under the Waqf Act, 1995. Learned counsel also contended that the section 83 of the Waqf Act, 1995 deals with constitution of Tribunals. Section 5 deals with publication of list of Waqf and section 6 of the Waqf Act, 1995 deals with disputes regarding Waqf. Section 7 deals power of Tribunal to determine disputes regarding Waqf. In order to appreciate his contention it is necessary to refer to Sections 6 and 7 of the Waqf Act 1995, which read as under:-

¶83

6. Disputes regarding 2[auqaf] .--(1) If any question arises whether a particular property specified as 2[Waqf] property in the list of 3[auqaf] is [Waqf] property or not or whether a [Waqf] specified in such list is a Shia [Waqf] or Sunni [Waqf], the Board or the mutawalli of the [Waqf] or [any person aggrieved] may institute a

¶84

¶85

suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final:

¶86

Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of [auqaf]:

¶87

[Provided further that no suit shall be instituted before the Tribunal in respect of such properties notified in a second or subsequent survey pursuant to the provisions contained in sub-section (6) of section 4.]

¶88

(Explanation- xxxxx]

¶89

(2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any [Waqf] shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit.

¶90

(3) The Survey Commissioner shall not be made a party to any suit under sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder.

¶91

(4) The list of [auqaf] shall, unless it is modified in pursuance of a decision or the Tribunal under sub-section (1), be final and conclusive.

¶92

(5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a Court in that State in relation to any question referred to in sub-section (1).

¶93

7. Power of Tribunal to determine disputes regarding [auqaf] .--(1) If, after the

¶94

¶95

commencement of this Act, [any question or dispute] arises, whether a particular property specified as [Waqf] property in a list of [auqaf] is [Waqf] property or not, or whether a [Waqf] specified in such list is a Shia [Waqf] or a Sunni [Waqf], the Board or the mutawalli of the [Waqf], [or any person aggrieved by the publication of the list of auqaf under section 5] therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final:

¶96

Provided that--

¶97

(a) in the case of the list of [auqaf] relating to any part of the State and published after the commencement of this Act no such application shall be entertained after the expiry of one year from the date of publication of the list of [auqaf]; and (b) in the case of the list of [auqaf] relating to any part of the State and published at any time within a period of one year immediately preceding the commencement of this Act, such an application may be entertained by Tribunal within the period of one year from such commencement:

¶98

Provided further that where any such question has been heard and finally decided by a civil court in a suit instituted before such commencement, the Tribunal shall not re-open such question.

¶99

(2) Except where the Tribunal has no jurisdiction by reason of the provisions of subsection (5), no proceeding under this section in respect of any [Waqf] shall be stayed by any court, tribunal or other authority by reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application, appeal or other proceeding.

¶100

¶101

(3) The Chief Executive Officer shall not be made a party to any application under sub-section (1).

¶102

(4) The list of [auqaf] and where any such list is modified in pursuance of a decision of the Tribunal under sub-section (1), the list as so modified, shall be final.

¶103

(5) The Tribunal shall not have jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a civil court under sub-section (1) of section 6, before the commencement of the Act or which is the subject-matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be.

¶104

(6) The Tribunal shall have the powers of assessment of damages by unauthorised occupation of Waqf property and to penalise such unauthorised occupants for their illegal occupation of the Waqf property and to recover the damages as arrears of land revenue through the Collector:

¶105

Provided that whosoever, being a public servant, fails in his lawful duty to prevent or remove an encroachment, shall on conviction be punishable with fine which may extend to fifteen thousand rupees for each such offence.]

¶106

On reading the said Sections, with plaint averment and plaintiffs' contention it is evident as to “whether the suit property is Waqf property or not?” is not in dispute in this suit. According to defendant, the said property was published in the list of Waqf in the year 1975 itself in the

¶107

¶108

gazette. So at that time, the Waqf Act 1995 was not in force. The property has been notified as Waqf after commencement of this Act 1995. Therefore, the bar of suit does not apply. Section 6 deals with Waqf property, but plaintiffs are not claiming that it is Waqf property.

¶109

The principles in decision relied on by learned counsel for the defendant are settled but the same are not applicable to the present case. In the judgment of PUNJAB WAQF BOARD v. SHAM SINGH HARIKE referred supra, the Supreme Court has referred to RAMESH GOBINDRAM's case supra. The Hon’ble Supreme Court has referred to various decisions and also provisions of Waqf Act. The learned counsel relied upon para 64 and 65. On perusing the said paras, it is evident that when the question as to suit property is a Waqf property or not has arisen, then that suit will have to be considered by the tribunal. But in this suit, it is not the issue. In PUNJAB WAQF BOARD case supra, the Punjab Waqf Board has filed a suit claiming to be owner of Punjab Waqf Board, Ludhiana. Plaintiff’s case was that defendant was in possession as lessee and he committed breach of lease terms, so possession was sought. The High Court in

¶110

¶111

revision relying on RAMESH GOBINDRAM referred supra set aside the order and directed to present it before Competent Civil Court. Aggrieved by the same, the Civil appeal No.92/2019 was filed. Para 69 and 70 clearly indicates that the Hon’ble Supreme Court upheld the order of High Court and the paras 69 and 70 reads as under:-

¶112

69. “When Section 6 sub-section (1) provides for raising a dispute regarding Wakf property in a period of one year, it applies to every person who wants to dispute the list except those who have been not served notice under Section 4(1).

¶113

70. Now coming to Civil Appeal No.93 of 2019(Punjab Wakf Board vs. Teja Singh), the suit was filed by Wakf Board for possession of suit property and injunction in the Tribunal. The above suit was fully covered by the ratio laid down by this Court in Ramesh Gobindram (supra). The High court relying on Ramesh Gobindram case has allowed revision petition filed by the defendant. We do not find any error in the order of the High Court allowing the revision petition filed by the defendant directing the plaint along with documents was returned to be presented before the appropriate court i.e. Civil Court. We uphold the above order of the High Court. In the result, this appeal deserves to be dismissed.”

¶114

So in view of the said principles, it is evident that here also plaintiffs contend that no notice under 4(1) of Waqf Act was served on them. Further relying on RAMESH GOBINDRAM supra, directed that plaint be presented before the civil court. In another decision of TELANGANA STATE

¶115

¶116

WAKF BOARD & ANR. v. MOHAMED MUZFAR in Civil Appeal No.4522/2021, the learned counsel relied upon para 23 which reads as under:-

¶117

23. “When that is the position, it will have to be noted that in the instant case, though the legal remedy had not been availed by the respondent within the time frame as provided under Section 6 of the Act, the issue had fallen for consideration before the Wakf tribunal in view of the defence put forth by the respondent and the Wakf tribunal had rendered its finding on that aspect based on the evidence placed before it. Since the gazette notification had been questioned to indicate that the property which is in the occupation of the respondent was not a part of the notified Wakf property, the same applied both to the suit Schedule ‘A’ as well as Schedule ‘B’ properties. In such circumstance, the Wakf tribunal had the jurisdiction to determine that question which had been framed as an issue in this suit. Further as already noted, on the facts evolving in the instant case, the tribunal had relied upon the evidence available and had arrived at the conclusion that the property in question is Wakf property and had accordingly decreed the suit.”

¶118

In the above case, there is already finding based on the evidence that the property was Waqf property. So here in the present case, the Waqf tribunal has not come before the Court.

¶119

The learned counsel also relied upon RAJASTHAN WAKF BOARD v. DEVKI NANDAN PATHAK & ORS. in

¶120

¶121

Civil Appeal No.6310/2017 and at 24, 25, 26 and 27, it is held as under:-

¶122

24) “Section 83 of the Act empowers the Tribunal to determine any dispute, question or other matter relating to a Waqf or Wakf property under this Act. Section 85 of the Act which deals with the Bar of jurisdiction of Civil Court provides that no suit or other legal proceedings shall lie in any civil court in respect of any dispute, question or other matter relating to any Wakf, Wakf property or other matter which is required by or under this Act to be determined by the Tribunal.

¶123

25) Reading the averments made in the plaint in the light of aforementioned sections, we are of the considered opinion that the Tribunal was right in its view in holding that it had the jurisdiction to try the suit on merits whereas the High Court was not so in holding the otherwise.

¶124

26) In other words, we are of the view that the Tribunal does have jurisdiction to decide the question arising in the suit filed by respondent No.6 and, therefore, the Tribunal rightly tried the suit on merits. The reasons are not far to seek.

¶125

27) In the first place, the main question involved in the suit was whether the suit land is a Wakf property or not. Plaintiff says that it is a Wakf property whereas the defendants say that it is not the Wakf property but it is their self property. This question, in our opinion, can be decided only by the Tribunal and not by the Civil Court as has been decided by this Court consistently in Ramesh Gobindram vs. Sugra Hamayun Mirza Waqf, (2010) 8 SCC 726 and Bhanwar Lal & Anr. Vs. Rajasthan Board of Muslim Wakf & Ors., (2014) 16 SCC 51). Second, once the property is declared to be a Wakf property, a fortiori, whether the sale of such property is made by a person not connected with the affairs of the Wakf or by a person dealing with

¶126

¶127

the affairs of the Wakf, the same becomes void by virtue of Section 51 of the Act unless it is proved that it was made after obtaining prior permission of the Board as provided under the Act. One cannot dispute that the matters falling under Sections 51 and 52 of the Act are also required to be decided by the Tribunal and hence jurisdiction of the Civil Court to decide such matters is also barred by virtue of provisions contained in Section 85 of the Act.”

¶128

So again the said principles are not applicable. Here the plaintiffs is not contending that the suit property is Waqf qpropety or is claiming right in respect of any other person, but he filed a suit in respect of his ancestral property and contended that when they were minors, the entries were made in the name of the defendant and therefore, he has proceeded in accordance under section 135 of Karnataka Land Revenue Act 1964 as observed by this Court in the writ petition. There is no issue in this suit as to whether the suit property is a Waqf property or not. It is for the plaintiffs to prove the burden on him about his ownership and prove his title. Such a suit to get declaration of title would lie before civil court.

¶129

Considering similar set of facts and the issues involved, learned Single Judge of this Court in the THE MAJALIS-EINTIZAMIYA MASID, KOPPAL v. THE

¶130

¶131

MASJID-E-PEERPASHA QUADRI(SUNNI) AND ANOTHER

¶132

reported in 2021 (1) KCCR 655 held at para 28 as under:-

¶133

“ As per Section 6(1) of the Act, if any question arises as to whether the property in the list of Auqaf is a Waqf property or not, a suit can be instituted in a Tribunal for the decision of that question which decision shall be treated as final. Thus the first type of disputes relating to Auqaf which a Tribunal can decide is involving the questions as to whether a particular property specified as Waqf property in the list of Auqaf is a Waqf property or not. In the instant case, the said question is not involved since it is an admitted fact that plot Nos.2664 and 2665 is Waqf property. But the dispute is whether the said property is attached to the plaintiff-Waqf or the defendant No.1- Waqf? The second question which a Tribunal under Section 6 of the Act can decide is whether a Waqf specified in such list is a Shia Waqf or Sunni Waqf? Admittedly the said question is not involved in the instant case. Therefore, on a reading of Section 6 and considering the present dispute between the parties, it can be held that the present dispute between the parties would not fall in either of the two questions which can be decided by theTribunal under Section 6 of the Act.

¶134

It is also for the reason that the first proviso to said Section 6 prescribes limitation of one year from the date of publication of the list of Auqaf. This further makes clear that the scope of disputes specified in Section 6 is very limited and confined only with respect to deciding the nature of the listed properties as to whether it is a Waqf property or not? Thus the date of publication of the list of Auqaf also gains importance in the matter. Whereas in the instant case, it appears that the date of publication of the list of Auqaf is not of that importance since it is not in dispute that the property in question is a Waqf property.

¶135

¶136

Section 7 of the Act does not add much to what is stated in Section 6. It also refers to the decision of questions relating to waqf properties by the Tribunal.

¶137

29. From a conjoint reading of the provisions of Sections 6 and 7 of the Act, it is clear that the jurisdiction to determine whether or not a property is a Waqf property or whether a Waqf is a Shia Waqf or a Sunni Waqf rests entirely with the Tribunal and no suit or other proceedings can be instituted or commenced in a Civil Court in relation to any such questions after the commencement of the Act. Therefore, it is clear that under Section 6 read with Section 7 of the Act, the institution of a suit in the Civil Court is barred only in regard to questions that are specifically enumerated therein. The bar is not complete as to extend to other questions that may arise in relation to Waqf property. Admittedly in the instant case, the question is not whether the disputed property is a Waqf property or the question is also not whether a Waqf is a Shia Waqf or a Sunni Waqf. Therefore, the present dispute does not fall within the ambit of Sections 6 and 7 of the Act enabling the Tribunal to decide the matter.

¶138

30. The jurisdiction of the Tribunal constituted under the Act was analysed in detail by the Hon’ble Apex Court in PUNJAB WAKF BOARD Vs. SHAM SINGH HARIKE and connected matter reported in (2019) 4 SCC 698. The Hon’ble Apex Court was pleased to observe that under Section 83(1) of the Act (as it stood prior to amendment in 2013), the State Government shall by notification in the Official Gazette constitute as many Tribunals as it may think fit. The words following the above sentence are “for the determination of any dispute, question or other matter relating to a Wakf or Wakf property under this Act …”. The constitution of Waqf Tribunal is, thus, for the determination of any dispute, question or other matter relating to Waqf or Waqf properties under

¶139

¶140

the Act. Various provisions i.e., Sections 6(1), 7(1), 33(4), 51(5), 52(4), 54(4) and 64(6) of the Act refer to the questions which are required to be decided by the Tribunal. The Hon’ble Apex Court, after analysing Sections 6, 7, 83 and 85 of the Act was pleased to hold that the bar of jurisdiction of civil court provided under Section 85 is confined only to those matters which are required to be determined by the Tribunal under the Act. Thus, civil court possesses jurisdiction to entertain suits and proceedings which are not required by or under the Waqf Act to be determined by the Tribunal. In order to determine the said bar of jurisdiction of civil court, one has to ask a question as to whether the issue raised in the suit or proceedings concerned is required to be decided under the Waqf Act, 1995 by the Tribunal, under any provision or not? If the answer to that question is in affirmative, the bar of jurisdiction of Civil Court would operate.

¶141

31. In the instant case, the said question as to whether an issue raised in the suit or proceedings concerned is required to be decided under the Waqf Act, 1995 by the Tribunal under any provisions if asked, then, in view of the analysis made above, the clear answer would be in the negative. Therefore, the bar of jurisdiction of the civil court would not operate. On the other hand, Tribunal does not get the power to adjudicate under the Act, the dispute like the one in hand. That being the case, when the Tribunal had no power to adjudicate or to decide the present dispute between the parties, which was neither falling in either of the essentials of Section 6 of the Act, it has to be necessarily held that the Tribunal has exercised a power which it does not possess or which ought not to have been exercised. Therefore, the impugned Judgment delivered by the Tribunal by exercising the power which does not vest with it, would result in the Judgment

¶142

¶143

losing its recognition in the eye of law, as such, it becomes non est.

¶144

32. In the case of HARMEET KAUR Vs. ABEDA KHATOON AND OTHERS, reported in 2020 SCC Online Cal 1856, the suit was for recovery of possession from defendant Nos.1 and 2 (in Suit No.19/2018) for damages for making extensive illegal construction in the suit premises and for permanent injunction, before the Waqf Tribunal at kolkata. The said Tribunal partly rejected the application filed by both the defendants under Order VII Rule 11 of CPC on the ground that the Civil Court and not the Waqf Tribunal had jurisdiction to decide the suit. However, such rejection was allowed only against defendant No.2. Aggrieved by the same, the first defendant had preferred a petition before the High Court of Calcutta in C.O. No.2970/2019. After referring to a few Judgments of Hon’ble Apex Court, the Calcutta High Court observed that Section 83 of the Act is circumscribed by the provisions of Sections 6, 7, 54 and other like provisions which empower the Tribunal to decide certain issues. It further observed that the declaratory relief like the one claimed by the plaintiff would fall within the exclusive domain of a civil court and do not find place in Sections 6, 7, 54 or any of similar provisions of the Waqf Act which empower the Tribunal to decide over certain issues. Accordingly, it allowed the petition and modified the impugned order to the effect that the entire plaint pending before the Waqf Tribunal at Kolkata was rejected since the Waqf Tribunal had no jurisdiction to entertain or decide the suit.

¶145

33. In the instant case also, as observed above, the nature of dispute and the relief sought for since would not fall in any of the powers of deciding the dispute given to the Tribunal under different sections of the Act including Sections 6, 7, 33, 35, 47, 48, 51, 54, 61, 64, 67 and 72, 73 therein, the Tribunal does

¶146

¶147

not get power or jurisdiction to entertain the present dispute between the plaintiff and the defendant No.1. As such, the impugned Judgment delivered by the Tribunal would be non est in the eye of law.”

¶148

Therefore, in view of the discussion made above, if the judgment of the Addl. Senior Civil Judge, Haveri is considered, in my considered view, the order does not need any interference. It is the civil court which has to deal with the title regarding suit property as per Specific Relief Act, 1963. It is not that the plaintiffs are claiming first time their right or trying to establish any fresh right over the suit property. On the other hand, admittedly, their name was appearing in the suit property till the year 1975. Subsequently, there is a cloud created on their title. Therefore, they have filed this suit to get the declaration of their title. It is their specific contention that no notice was served on them when changing their names in the revenue records. Simply because the defendant has taken defence that the suit is not maintainable before the civil court the suit cannot be dismissed. It is his defence that, it is only the Waqf tribunal which has to decide, but is not a ground to dismiss his suit. Already the evidence is commenced. The suit is of the year 2005. Therefore, the trial Court shall

¶149

¶150

expedite the matter and dispose of the same. Therefore, I hold that appeal being of devoid of merit is liable to be dismissed.

¶151

Accordingly, I pass the following:-

¶152

ORDER

¶153