RSA No.2620 of 2010 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 11.5.2011 RSA No. 2620 of 2010 (O&M) Dawood Khan and another .....Appellants Versus Punjab Wakf Board and others .......Respondents RSA No. 3474 of 2010 (O&M) Shamlat Deh .....Appellant Versus Punjab Wakf Board and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr. Mr.Lokesh Sinhal, Advocate for the appellants. (in RSA No.2620 of 2010) Mr.Kunal Dawar,Advocate for the appellants. (in RSA No.3474 of 2010) Mr.G.S.Sandhawalia,Advocate for respondent No.1 **** SABINA, J. Vide this judgment, the above mentioned two Regular Second appeals bearing Nos. 2620 and 3474 of 2010 would be disposed of by a common judgment as these have arisen out of one suit. Plaintiff-Wakf Board had filed a suit for possession by way RSA No.2620 of 2010 (O&M) 2 of ejectment with recovery of arrears of rent. The case of the plaintiff-Board, in brief, was that it was the owner of the suit property and had leased out the same to defendant No.1 on a monthly rent of ` 4.25P excluding House Tax, Electricity Charges, Water Charges etc. Defendant had agreed to comply with the terms and conditions in this regard and had also agreed that he would raise a super structure with permission of the Board. Defendant had, however, committed a default in terms and conditions qua the lease and had failed to pay rent after February,1999. Defendant had raised permanent construction and had, thus, changed the nature of the suit property. A notice under Section 106 of the Transfer of Property Act,1882 was issued to the defendant to vacate the premises. However, defendant had failed to do so. Hence, the suit for possession was filed. Defendant No.1, in its written statement, averred that the plaintiff was not owner of the suit property and, in fact, the suit property belonged to the proprietors of the village and was shamlat deh. Defendant had acquired occupancy right qua the suit property. Proprietors of the village had agreed not to dispossess the defendant in case he continued paying land revenue qua the suit property. It was denied that the defendant had paid any rent to the plaintiff or that he was a tenant under the Wakf Board. The receipt for notice under Section 106 of the Transfer of Properties Act,1882 was denied. During the pendency of the suit, Shamlat deh, Barh Mohalla, Old Faridabad through its shareholders was impleaded as defendant No.2. RSA No.2620 of 2010 (O&M) 3 Defendant No.2, in its written statement, averred that defendant No.1 was not the lessee under the plaintiff and the land belong to defendant No.2. Defendant No.1 was in possession of the suit land before partition. On the pleadings of the parties,following issues were framed by the trial Court:- “1.Whether suit has been instituted through a duly authorized person?OPP 2.Whether tenancy of the defendant is validly terminated?OPD 3.Whether plaintiff is entitled alongwith arrears of rent means profit/damages from the defendants if so at what rate?OPD 4.Whether the plaintiff has no locus standi to file the present suit?OPD 5.Whether the plaintiff has no cause of action to file the present suit?OPD 6.Whether suit is time barred?OPD 7.Whether the plaintiff is stopped to file the present suit by his conduct?OPD 8.Whether the present suit is hit by doctrine of resjudicata?OPD 9.Whether the present suit is also hit by mischief of order 2 rule 2 of CPC?OPD 10.Whether defendant has become owner of the suit property being occupancy tenant?OPD 11.Relief.” RSA No.2620 of 2010 (O&M) 4 The Additional Civil Judge (Senior Division) vide judgment and decree dated 12.2.2009 dismissed the suit of the plaintiff. Aggrieved by the said judgment and decree, plaintiff-Board preferred an appeal and the Additional District Judge vide judgment and decree dated 23.12.2009 decreed the suit of the plaintiff. Hence, the present two appeals by the defendants. Learned counsel for the appellants has submitted that the Civil Court did not have the jurisdiction to try the suit. The dispute in the present case was as to whether the property was a Wakf Property or not. The said dispute could only be decided by the Tribunal Constituted under the Wakf Act, 1995 (hereinafter referred to Wakf Act) Learned counsel for the respondents, on the other hand, has submitted that the suit had been filed for eviction of the tenant and the Civil Court had jurisdiction to try the suit. Moreover, no objection had been taken before the Courts below qua the maintainability of the suit. After hearing the learned counsel for the parties, I am of the opinion that the present appeals deserve to be allowed. The substantial question of law that arises in this appeal is as to whether the suit filed by the plaintiff-Board was maintainable. Sections 6 and 7 of the Wakf Act read as under:- "6.Disputes regarding wakfs.-(1) If any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf or any person interested therein RSA No.2620 of 2010 (O&M) 5 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: 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 wakfs xx xx xx" Section 7 Power of Tribunal to determine disputes regarding wakfs.-(1) If, after the commencement of this Act, any question arises, whether a particular property specified as wakf property in a list of wakfs is wakf property or not, or whether a wakf specified in such list is a Shia wakf or a Sunni wakf, the Board or the mutawalli of the wakf, or any person interested 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; Provided that- (a) in the case of the list of wakfs 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 wakfs; and (b) in the case of the list of wakfs 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: RSA No.2620 of 2010 (O&M) 6 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. (2) Except where the Tribunal has no jurisdiction by reason of the provisions of sub-section (5), no proceeding under this section in respect of any wakf 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. xx xx xx" Thus, in a case where the question arises whether a particular property is a Wakf property or not, the said matter is to be decided by the Tribunal constituted under the Wakf Act. Section 85 of the Wakf Act reads as under:- "85.Bar of jurisidiction of civil courts.- No suit or other legal proceeding 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 a Tribunal." Thus, the jurisdiction of the Civil Court is excluded in cases where the matter in dispute is required to be determined by the Tribunal under the Wakf Act. In the present case, the Wakf Board claimed the suit property to be wakf property, whereas, the case of the defendants was that the suit property was shamlat deh and belonged to the RSA No.2620 of 2010 (O&M) 7 proprietors of the village. Thus, the material question in dispute was as to whether the suit property was a wakf property or not. The said dispute could have only been adjudicated by the Tribunal constituted under the Wakf Act. The plea now taken by the appellants is a legal plea qua maintainability of the suit and goes to the root of the matter and can be agitated in this appeal. Thus, the suit of the plaintiff-wakf board is not maintainable before the civil Court for want of jurisdiction. Wakf Board could have filed the suit before the Tribunal constituted under the Act. The substantial question of law that arises in this case stands answered accordingly. Hence, both these appeals are allowed. The judgments and decrees passed by the Courts below are set aside. The Trial Court is directed to return the plaint to the plaintiff for presenting the same before the proper forum. ( Sabina ) Judge May 11, 2011 arya RSA No.2620 of 2010 (O&M) 8 RSA No.2620 of 2010 (O&M) 9 RSA No.2620 of 2010 (O&M) 10