A suit sought injunctions against third parties to prevent alienation, encumbrance and construction on Wakf property. The Court held that the dispute was not one required to be determined under the Wakf Act and retained civil jurisdiction. It dismissed the application for rejection of the plaint.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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+IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 10.01.2017
PRONOUNCED ON 27.01..2017
CORAM
THE HON`BLE MR.JUSTICE N.SATHISH KUMAR
Application No.1311 of 2011 in C.S.No.136 of 2011
vs.
17, Venkatesan Street
.. 1st respondent/plaintiff
.. Respondents/defendants 4to7
Application filed under Order XIV Rule 8 of Madras High
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Court Original Side Rules read with Order VII Rule 11 of the Civil
Procedure Code 1908 to reject the plaint in C.S.No.136 of 2011.
For applicant/D1 to D3 :Mr. Rathina Asokan
For R1/plaintiff : Mrs. Hema Sampath Senior counsel for M/s. A.Ajimath Begam For R4 /D6 : Mr.S.Parthasarathy. Senior Counsel for Mr.T.Ravikumar For R5/D7 : Mr.V.Lakshmi Narayanan
O R D E R
The defendants 1 to 3 in C.S.No.136 of 2011 have taken
out this application seeking to reject the plaint in the above suit on the ground that the suit property is a Wakf property.
that the original defendants 1 to 3 are the legal heirs of late Nawabzada Nawab Ali Khan, who was the absolute owner of the immovable property measuring a total extent of 3.68 acres. The said Nawab Ali Khan was directed by the Tamil Nadu Wakf Board,
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by its proceedings dated 25.4.2000, to approach the Wakf Tribunal, to declare that the Suit properties are not a Wakf Property. Accordingly, the suit was filed before the Wakf Tribunal. When the matter stood thus, the 1st respondent/ original plaintiff herein filed a suit seeking permanent injunction against the original defendants 4 to 6. According to the applicants/original defendants 1 to 3, since the property is a Wakf property, Civil Court has no jurisdiction to entertain the suit. Hence, the applicants/original defendants 1 to 3 prays for rejection of the plaint in the said suit.
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defendants 1 to 3 submitted that the 1st respondent/ original plaintiff filed a suit for permanent injunction restraining the respondents 2 to 4/ original defendants 4 to 6, their men, agent from alienating or encumbering or in any way dealing with the suit schedule property. It is submitted by the learned counsel for the applicants/ original defendants 1 to 3 that the plaint pleadings itself clearly indicate that the suit property is a Wakf property and that no relief, whatsoever, sought against the applicants/original defendants 1 to 3. It is submitted that since the suit property is a Wakf property, the Civil Court has no jurisdiction to entertain the suit. It is the submission of the learned counsel for the applicants/ original defendants 1 to 3 that all the disputes relating to Wakf properties have to be decided only by the Wakf Tribunal constituted under the Wakf Act. 1995.
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Assistant City Civil Court, Chennai, (herein after referred as “Wakf Tribunal”) for declaration that the property was not Wakf property and also for a direction to denotify the notification issued by the concerned authorities. The learned counsel for the applicants/original defendants 1 to 3 submitted that in view of the provisions contained in the Wakf Act, 1995, absolutely, the suit is not maintainable. The learned counsel also relied on the judgments of this Court reported in (2005) 1 MLJ 646 ( Salam Khan v. The Tamil Nadu Wakf Board); 2006 (5) CTC 341 ( Abdul Suban v. Syed Tharu Hussain) 2014 -2-L.W. 357 (S.Dilshad & Others v. The Principal Secretary and Secretary to Government and others) and 2016 (5) CTC 209 ( Dr.Abdul Rahman v. Mohamed Syed)
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has already seized off the matter in O.S.No.4555 of 2000 and instead of filing application seeking injunction in the said suit, the present suit has been filed by the original plaintiff. Admittedly, there is a dispute over title of the suit property. Therefore, the suit filed against the respondents 2 to 4/ original defendants 4 to 6 is not maintainable, in view of the provisions contained in the Wakf Act, 1995. In support of his arguments, the learned Counsel seeks in aid the very same judgments, which have been relied on by the learned counsel for the applicants/ original defendants 1 to 3.
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the captioned application. It is submitted by the learned Senior Counsel that the applicants/original defendants 1 to 3 are not necessary parties and they are impleaded only as formal parties. It is further submitted by the learned Senior Counsel that the applicants/ original defendants 1 to 3, during the pendency of the suit before the Wakf Tribunal, have sold the property in favour of the 4th respondent /original 6th defendant and thereby they have divested all the rights in the suit property. Therefore, without having any locus standi , now they cannot canvass the case.
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prevent the respondents 2 to 4/original defendants 4 to 6, the suit has been filed. There is no issue whatsoever, involved in the suit, which is covered under the Wakf Act, 1995. The Wakf Board can maintain the Suit as against the third parties in order to protect the wakf property. It is submitted by the learned counsels that the Wakf Board has exclusive jurisdiction to decide the disputes, which are arising out of the Wakf Act and the present suit is not covered under such dispute. Hence, it is submitted by the learned Counsels that Civil Court jurisdiction cannot be ousted merely on the basis of such Act. Hence, the learned Senior Counsel and the counsel for Wakf Bord prayed for dismissal of the application.
Parimala Sunnath Jammth Masjid Committee v. P.A. Kareem and others) ; AIR 2001 Madras 431 (A.M.Ali Akbar
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and another v. Keelakarai South Street Jamath Masjid Paripalana Committee and others) as well as the judgment of the Hon`ble Apex Court reported in (2010) 8 SCC 726 ( Ramesh
Gobindram vs. Sugar Humayun Mirza Wakf) to substantiate his contention.
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read, it is seen that the suit property is a vacant land and it is a Wakf property. It is admitted fact that the applicants herein / original defendants 1 to 3 filed a suit in OS.No.4555 of 2000 before the Wakf Tribunal against the 1st respondent/original plaintiff and the 4th respondent/original 7th defendant seeking declaration that the property in question was not a Wakf property and also for a direction to the Wakf Board to denotify and delete the suit property from the proforma of the original plaintiff as well as from the records of the Board.
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original 4th defendant, who claims to be the bonafide purchaser, being the realtor, trying to encroach upon the properties. Hence, the suit has been filed by the original plaintiff.
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mutawalli of the wakf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final. Further the above section also bars a suit, if such suit is filed after the expiry of one year from the date of publication of the list of wakfs. That apart, Section 7 of the Wakf Act also deals with the the power of the Tribunal to determine disputes regarding wakfs. The said section denotes that if any disputes arises after the commencement of this Act, it should be raised before the Wakf Tribunal. Section 7 also gives one year period of limitation for filing such suit, after publication.
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the issues that are specifically enumerated therein. The bar is not complete so as extend to other questions that may arise in relation to Wakf property.
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defendants 1 to3 clearly indicate that the above suit was filed in the year 2000. Thereafter the applicants/original defendants 1 to 3 have executed various agreement to third parties. Even during the pendency of the suit proceedings, the applicants / original defendants 1 to 3 executed sale agreement in favour of one V.Nedumaran, the original 4th defendant on 15.11.2010 and on the same day, the said Nedumaran also executed Power of Attorney in favour of one D.Mahaveeer. Again another sale agreement was executed by one Renuka, in favour of the original 6th defendant on 30.11.2010. These facts are not disputed by both sides. Now the so called agreement holders are the original defendants 4 to 6, against whom, the permanent injunction is sought in the present suit.
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Wakf Act. In this context, it is useful to refer Section 85 of the Wakf Act, which reads as follows:
“.. .. .. 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 wakf, wakf property or other matter which is required by or under Act to be determined by a Tribunal. .. .. .. “
The above Section bars the suit before the Civil Court in respect of any dispute or question or other matter relating to the Wakf property. As per the above Section, only the matters, which are required to be decided by the Tribunal alone excluded from the Civil Court jurisdiction. Section 85 does not disclose ouster of Civil Court jurisdiction in total. Only the matters specifically covered under Wakf Act alone are excluded from the purview of the Civil Court jurisdiction.
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Court in Salem Mohammedpura Parimala Sunnath Jammth Masjid Committee cited supra, wherein this Court has held as follows:
.. .. .. 47. The Tribunal created under the Statute provides a remedial forum only for certain specific matter relating to administration and management of Wakf properties, which are regulatory in nature and it does not provide for a forum for adjudicating the common law remedies. Any person who has grievance that he has been wronged and the Civil right is affected, where no remedial measure is provided under the statute, he can approach the ordinary Civil Court on the principle of law that where there is a right, there is a remedy. .. .. ..
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Reading of the Act in entirety makes it clear that the intention of the Act is to provide a machinery to supervise and maintain the wakf and its properties, and it is not intended to take away the powers of the Civil Court, where no remedy is provided under the Wakf Act. .. .. ..
20. Similarly, in the case of A.M. Ali Akbar and another
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vs. Keelakarai South Street Jamath Masjid Paripalana
Committee and others cited supra, this Court has observed as follows:
“The powers of the Tribunal are restricted only to the dispute specifically referred in Section 83 (1) of the Act to be adjudicated. Under Section 83 (1) of the Act, the Tribunal is empowered to determine the dispute, question or other matters relating to Wakf of Wakf property and not in respect of an application for permanent injunction. In this context, the words “or other matter which is required by or under the Act to be determined by the Tribunal” shall be referable only to Ss.6,7, 67 (4), 70(1) and (2) and S.94. None of the provisions of the Act either expressly or impliedly empowers the Tribunal to entertain, adjudicate upon and decide a petition for permanent injunction. Section 85 of the Act also does not specifically bar the jurisdiction of Civil Court to entertain a suit for Injunction. Therefore, it cannot be said that the word used “ any dispute” shall also mean a dispute relating to the Managing Committee of the Jamath and the word
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“any” used in S.83 (1) of the Act shall mean every and whatever the dispute relating to a Wakf and the said word “Wakf” does relate to the Managing Committee. Thus, in the light of the provisions of the Act and in the absence of any power for the Tribunal to determine the dispute as to the Constitution of the Managing Committee or the conduct of election to the Managing Committee, the petitions for permanent injunction and temporary injunction filed by the members of Jamath would not be entertainable by the Tribunal. .. .. ..”
Humayun Mirza Wakf cited supra, the Hon`ble Apex Court has given the following dictum:
“ 12. The well settled rule in this regard is that the
civil courts have the jurisdiction to try all suit of civil nature except those entertainment whereof is expressly or impliedly barred. The jurisdiction of the civil courts to try suits suits of civil nature is very expansive. Any statute which excludes such jurisdiction is, therefore, an
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exception to the general rule that all disputes shall be triable by a civil court. Any such exception cannot be readily inferred by the Courts. The Court would lean in favour of a construction that would uphold the retention of jurisdiction of the Civil Courts and shift the onus of proof to the party that asserts that the civil court's jurisdiction is ousted. .. .. “
“20. From a conjoint reading of the provisions of Sections 6 and 7 (supra) it is clear that thejurisdiction to determine whether or not a property is a wakf property or whether a wakf is a Shia wakf or a Sunni wakf rests entirely with the Tribunal and no suit or other proceeding can beinstituted or commenced in a Civil Court in relation to any such question after the commencement of the Act. What is noteworthy is that under Section 6 read with Section 7 (supra) the institution ofthe Civil Court is barred only in regard to questions that are specifically enumerated therein. The bar is not complete so as to extend to other questions that may arise in relation to the wakf property. .. .. ..”
“21. We may at this stage usefully digress from
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the core issue only to highlight the fact that Sections 6(1) and the proviso thereto has fallen for interpretation of this Court on a few occasions. In Boardof Muslim Wakfs Rajasthan v. Radha Kishan and Ors. (1979) 2 SCC 468 one of the questions that fell for determination was, who are the parties that could be taken to be concerned in a proceeding under sub-section(1) of Section 6 of the Act. This Court held that under Section 6(1) the Board or the mutawalli of the wakf or any person interested therein is entitled to file a suit but the word "therein" following the expression "any person interested" must necessarily refer to the word "wakf" which immediately precedes it. The object underlying the proviso observed, this Court was to confine the power to file a suit to the mutawalli and persons interested in the Wakf. It did not extend to persons who are not persons interested in the wakf. Consequently the right, title and interest of a stranger, (a non-Muslim), to the wakf in a property cannot be put in jeopardy merely because that property is included in the list of wakfs. The special rule of limitation prescribed by the proviso to Section 6(1) was itself held inapplicable to him and a suit for declaration
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of title to any property included in the list of wakfs held maintainable even after the expiry of the period of one year. .. .. .. “
“25. Whenever a question arises whether "any dispute, question or other matter" relating to "any wakf or wakf property or other matter" falls within the jurisdiction of a Civil Court the answer would depend upon whether any such dispute, question or other matter is required under the Act to be determined by the Tribunal constituted under the Act. If the answer be in the affirmative, the jurisdiction of Civil Court would be excluded qua such a question, for in that case the Tribunal alone can entertain and determine any such question. The bar of jurisdiction contained in Section 85 is in that sense much wider than that contained in Section 6(5) read with Section 7 of the Wakf Act. While the latter bars the jurisdiction of the Civil Court only in relation of questions specified in Sections 6(1) and 7(1), the bar of jurisdiction contained in Section 85 would exclude the jurisdiction of the Civil Courts not only in relation to matters that specifically fall in Sections 6 and
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7 but also other matters required to be determined by a Tribunal under the Act. There are a host of such matters in which the Tribunal exercises original or appellate jurisdiction. .. .. ..”
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proceedings in relation to orders passed by or proceedings that may be commenced before the Tribunal. It follows that although Section 85 is wider than what is contained in Sections 6 and 7 of the Act, the exclusion of jurisdiction of Civil Courts even under Section 85 is not absolute. It is limited only to matters that are required by the Act to be determined by a Tribunal. So long as the dispute or question raised before the Civil Court does not fall within four corners of the powers vested in the Tribunal, the jurisdiction of the former to entertain a suit or proceedings in relation to any such question cannot be said to be barred.
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applicants / original defendants 1 to 3, for declaration that the suit property is not the Wakf property, it did not reach any finality. Therefore, the Court of justice being custodian of the Wakf properties and other trust properties, it is necessary, to protect the property from being snatched away by third parties. Having filed the suit before the Tribunal to adjudicate their right in the 2000, the applicants / original defendants have created various encumbrances over the property. The above conduct of the applicants/ defendants 1 to 3 clearly indicate that they made an attempt only to swallow the valuable properties, which is situated in the heart of city.
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Dr.Abdul Rahman v. Mohamed Syed cited surpa will not help the facts of the present case. In all the above judgments, it has been held that Civil Court has no jurisdiction with regard to any dispute relating to Wakf property. It is to be noted that various powers and provisions of Wakf Act has not been discussed in the above judgments. Whereas in the case of Ramesh Gobindram vs. Sugra Humayun Mirza Wakf cited supra, the Hon`ble Apex Court, by considering the various provisions of Wakf Act, has categorically held that the Civil Court's jurisdiction has not been ousted. It has been held that even for the eviction of tenants, the suit is maintainable only before the Civil Court and not before the Tribunal.
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Therefore, merely because some suit has been filed in the year 2000, to declare the notification issued in the year 1969 is not valid, that itself cannot be aground to hold that common law remedy is not available to the original plaintiff to prevent trespass or to preserve the valuable properties.
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In the result,the captioned application is dismissed.
ga 27..01..2017 Index : Yes/No Internet : Yes/No
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N.SATHISH KUMAR, J
ga
Pre-delivery order in Application No.1311 of 2011 in C.S.No.136 of 2011
27..01..2017
1 issue framed by the court
Does the Wakf Act bar a civil suit for bare injunction against third parties to prevent encumbrance, alienation or construction on Wakf property?
Colour shows how this judgement treated each authority
Salam Khan v. The Tamil Nadu Wakf BoardDistinguished¶130
(2005) 1 MLJ 646
Abdul Suban v. Syed Tharu HussainDistinguished¶130
2006 (5) CTC 341
S.Dilshad & Others v. The Principal Secretary and Secretary to Government and othersDistinguished¶130
2014 -2-L.W. 357
Dr.Abdul Rahman v. Mohamed SyedDistinguished¶132
2016 (5) CTC 209
Salem Mohammedpura Parimala Sunnath Jammth Masjid Committee v. P.A. Kareem and othersRelied on¶87
2008 (2) CTC 492
A.M.Ali Akbar and another v. Keelakarai South Street Jamath Masjid Paripalana Committee and othersRelied on¶93
AIR 2001 Madras 431 · Who else cites this
Ramesh Gobindram vs. Sugra Humayun Mirza WakfApplied¶132
(2010) 8 SCC 726 · Who else cites this
7 provisions across 2 enactments
Mahaboobsa Begum
Fisal Mohammed Khan
Bagath Mohammed Khan
Soorsha Makkan Wakf
V.Nedumaran
N.Renuka
N.SATHISH KUMAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
