Dismissed

President v. Mahajabeen Naaz

Karnataka HC18 Nov 2022CRP/279/2020

Case brief

AI extract

What is this about?

This judgment deals with a civil revision petition challenging the trial court's refusal to reject a plaint filed for declaration of ownership and removal of encroachment. The petitioner relied on Section 85 of the Waqf Act, 1995, arguing the property was Waqf land, but the court held the suit pertained to non-Waqf property and the Civil Court had jurisdiction. The petition was dismissed.

What did the court decide?

The civil revision petition was dismissed, and the impugned order of the trial court was upheld.

President Vs Mahajabeen Naaz — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR. JUSTICE M.I.ARUN

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CRP.NO.279 OF 2020

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BETWEEN :

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PRESIDENT, JAMIYA MASIDHI, GUNDLUPET TOWN-571 111.

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SECRETARY

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JAMIYA MASIDHI, GUNDLUPET TOWN-571 111

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… PETITIONERS (BY SRI. SYED ABDUL SABOOR, ADVOCATE)

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AND :

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MAHAJABEEN NAAZ, AGE ABOUT 56 YEARS, D/O. M.J. MEHARUNNISA, W/O AFZAL AHAMED, R/O OLD M.C. ROAD, HUNSUR GAS COMPOUND, HUNSURU-571 105.

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... RESPONDENT (BY SRI. P.MAHESHA, ADVOCATE)

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THIS CIVIL REVISION PETITION IS FILED UNDER SECTION 115 OF CPC, AGAINST THE ORDER DATED 18.06.2020 PASSED ON I.A.NO.1 IN O.S.NO.19/2019 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC., GUNDLUPET REJECTING IA.NO.1 FILED UNDER ORDER 7 RULE 11(d) of CPC, FOR REJECTING OF PLAINT.

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THIS CIVIL REVISION PETITION COMING ON FOR ADMISSION , THIS DAY THE COURT MADE THE FOLLOWING:

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ORDER

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Aggrieved by the order dated 18.06.2020 passed in O.S.No.19/2019 on I.A.No.1 filed under Order 7 Rule 11(d) read with Section 151 of CPC by the Principal Civil Judge and JMFC, Gundlupet, defendant No.1 - applicant therein has preferred this petition.

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The respondent/plaintiff has filed a suit against the petitioners herein by way of O.S.No.19/2019 contending that she is the owner of the property I.D.No.25-8-119(old No.842/661), Chamarajanagara Road, 6^th Ward, Gundlupet Town and that the petitioners-defendants have

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encroached to an extent East to West - 18 feet & North to South - 22 feet in the said property and has prayed for a declaration that she is the owner of the encroached portion of the property and also sought for a direction to the petitioners-defendants

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to hand over vacant position of the said property. The case of the plaintiff - respondent is that she is the owner of the property bearing I.D.No.25-8119(old No.842/661) and the portion of the property is encroached by petitioners-defendants.

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Upon service of notice, the petitionersdefendants entered appearance and filed an application under Order 7 Rule 11(d) read with 151 of CPC with a prayer to reject the plaint on the ground that the dispute pertains to Waqf property and as per provisions of Waqf Act, 1995, the Tribunal constituted there under alone has a jurisdiction to try the said cases.

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The trial Court on the ground that while considering the question whether the plaint has to be rejected under Order 7 Rule 11 of CPC, the Court has to look into only the plaint and nothing else and the reading of the plaint in the instant case does not show that the same needs to be

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rejected as barred by any law and on the said ground dismissed the application. Aggrieved by the same, the present petition is filed by defendant No.1 therein.

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The case of the petitioners-defendants is that property bearing assessment No.843/662 is a Waqf property and the same is known as Jamia Masjid, Sunni, Gundlupet and the same finds a place in the government Gazette Notification bearing No. MWB 1((1) 1965 dated 01.04.1965 at Sl.No.175 and that the alleged portion of the schedule property in the plaint is part of the said property and any dispute pertaining to the same has to be decided by the Tribunal constituted under the Waqf Act, 1995 and Civil Court has no jurisdiction.

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Section 85 of Waqf Act, 1995 reads as under:

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"85. Bar of jurisdiction of civil courts. - No suit or other legal proceeding shall lie in any civil court, revenue court and any other authority in respect of any dispute, question or other matter relating to any waqf, waqf property or other matter which is required by or under this Act to be determined by a Tribunal."

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Thus, if the properties are Waqf property, no proceedings in respect of the same can lie in the Civil Court and the same has to be tried by the Tribunal.

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Further, the petitioner relies upon the decision of the Hon'ble Apex Court in the case of RAJASTHAN WAKF BOARD VS. DEVKI NANDAN PATHAK & ORS reported in Civil Appeal No.6310 of 2017 arising out of SLP(C)

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No.13251/2014 , paragraph No.27 of the said judgment, which reads as under:

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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

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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 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 failing 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."

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Based on the aforementioned Section 85 of the Waqf Act, 1995 and the judgment of the Hon'ble Apex Court, the petitioner contends that

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the suit is not maintainable and the trial Court erred in not dismissing the same.

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Per contra, the respondent submits that she does not dispute the fact that property bearing assessment No.843/662 is a Waqf property, but she contends that the dispute pertains to property bearing No.842/661 and the instant suit is filed to have the encroachment in the property assessment No.842/661 removed. For the said reasons, the respondent - Plaintiff prays for dismissal of the petition.

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Section 83 of the Waqf Act, 1995 deals with jurisdiction of Tribunals and Section 83(1) and (2) of the Act, reads as under:

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"83. Constitution of Tribunals,, etc.- (1) The State Government shall, by notification in the Official Gazette, 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.

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(2) Any mutawalli or person interested in a waqf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be

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prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the waqf".

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As mentioned above, Section 85 of the Waqf Act, 1995 bars the jurisdiction of the Civil Court in trying any suit pertaining to Waqf Property and as per Section 83 of the Act, the Tribunal shall have the jurisdiction to try the same and a Mutawalli or person interested in a Waqf or any other person aggrieved by an order made under the Act or Rules there under may make application to the Tribunal in respect of any Waqf property. The decision relied upon by the petitioner pertained to a Waqf property. In the instant case, admittedly, the assessment No.843/662 is a Waqf property. The case of the petitioner does not pertain to assessment No.843/662. Her case is that, she is the owner of the property No.842/661 and admittedly, it is not part of Waqf property. The Civil Court under the circumstances, is competent to try the said suit and determine whether property

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in dispute is part of assessment No.842/661 or not. It is always open for the petitioners - defendants to contend that they have not encroached upon the property bearing No.842/661 or that respondent - plaintiff is not the owner of the said property and take up all such other contentions before the trial Court. Furthermore, the trial Court while deciding the application filed under Order 7 Rule 11 (d) of CPC has to take into consideration the averments made in the plaint alone and decide as to whether the suit is maintainable or not. It cannot consider the averments made in the written statement. The averments made in the plaint in the instant case does not pertain to Waqf property. Under the circumstances, I do not find any error in the order passed by the trial Court.

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For the aforementioned reasons, the petition is hereby dismissed .

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In view of the dismissal of the main petition, I.A.No.1/2020 does not survive for consideration and accordingly, I.A.No.1/2020 stands disposed of.

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SD/- JUDGE

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President v. Mahajabeen Naaz

Case brief

What is this about?

What did the court decide?

President v. Mahajabeen Naaz

Case brief

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