IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN, JAIPUR BENCH, JAIPUR. JUDGMENT Sayed Abdul Vasit & Ors. Vs. Addl.Civil Judge No.4 Ajmer & Others (S. B. Civil Writ Petition No.2348/2005) S.B. Civil Writ Petition under Articles 226 & 227 of the Constitution of India. Date of Judgment: January 06, 2009 PRESENT Hon'ble Mr. Justice R. S. Chauhan Mr. Ajeet Kumar Sharma] for the petitioner. Mr. V.D.Sharma ] Mr. Bihari Lal Agrawal] for respondents. Mr. Amit Gupta ] BY THE COURT: In a suit for recovery of money and for permanent injunction – a suit dealing with Wakf property – is the jurisdiction of the Civil Court ousted by virtue of Section 85 of the Wakf Act,1995 (`the Act' for short) or not, is the seminal issue before this Court. 2. The facts leading up to this legal controversy are as under:- The respondent No.2 had filed a civil suit for recovery of money and permanent injunction against the petitioner. The respondent No.2 averred in the suit that a property situated in Ajmer in the name of Dill Kusha Bunglaw is numbered as XIII/476=x/84. It was further claimed that the aforesaid property and other property, which belonged to grandfather of respondent No.2 and the petitioner, had a share in the ratio of 3:5. It was further averred that for the purpose of ownership about properties one Waqf-nama was executed on 27-11- 1931, which was Waqf-Al-Aulad. The grandfather of respondent No.2 Sayed Abdul Zafar, appointed himself as the first Mutawalli. It was further averred that as per Wafq-nama, the respondent No.2 is claiming his right over the properties in dispute and the rent money. The petitioner filed written statement and denied the claims made by respondent No.2. The learned Magistrate framed as many as 13 issues. Subsequently, the petitioner filed an application under sections 85 and 87 of the Act, wherein he claimed that since the suit related to a wakf property, therefore, under section 85 of the Act, the jurisdiction of the Civil suit was ousted. Hence, the Civil Court had no jurisdiction to try the suit. However, vide order dated 19-3-2005 the said application was dismissed. Hence, this petition before this Court. 3. Mr.Ajeet Kumar Sharma, learned counsel for the petitioner has contended that section 85 of the Act absolutely debars Civil Court from trying any civil suit in relation to any dispute, question or any matter relating to any wakf or wakf property or other matters which are required under the Wakf Act to be determined by the Wakf Tribunal. Therefore, in all disputes relating to wakf property, the jurisdiction of Civil Court is ipso facto ousted. Such disputes can be adjudicated upon only by the Wakf Tribunal. According to learned counsel, since the dispute in the present case relates to a wakf property, therefore the Civil Court cannot try the suit. Thus, the rejection of the application under section 85 of the Act is unsustainable. Secondly, the wakf has not been registered under the Act. Therefore, according to Section 87 of the Act no suit can be filed by a Wakf, which is unregistered. 4. On the other hand, Mr.Bihari Lal Agrawal, learned counsel for the respondents, has argued that in order to fully understand the scope and ambit of section 85 of the Act, the said section has to be read along with sections 6 and 7 of the Act, which bestow the jurisdiction upon the Wakf Tribunal. According to learned counsel most important words in Section 85 are “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.” Therefore, only those issues which can be determined by the Tribunal would fall within the jurisdiction of Tribunal. Hence, those issues which cannot be determined by the Tribunal would be out side the jurisdiction of the Tribunal, and would automatically fall within the jurisdiction of Civil Court. In order to understand the scope and ambit of jurisdiction of Wakf Tribunal, it is important to turn to sections 6 and 7 of the Act. Both these sections bestow limited jurisdiction on the Tribunal. Under these two provisions the jurisdiction is limited mainly to two issues: firstly, whether a property is a wakf property or not?, Secondly, whether the said wakf is Shia wakf or Sunni wakf? According to learned counsel neither of these issues have been raised in the civil suit pending before the Civil Court. Both the parties are ad idem (in agreement) that the property relates to a Sunni Wakf created by grandfather of respondent No.2. The cardinal issues in the suit are with regard to recovery of money and with regard to grant of permanent injunction against the petitioner. Therefore, the issues are not within the jurisdiction of the Tribunal. They are, thus within the jurisdiction of the Civil Court. Thirdly, that the civil suit was filed much before the commencement of the Act. Therefore, in accordance with section 7(5) of the Act, the Tribunal would not have the jurisdiction to determine the said suit. In order to buttress this contention, the learned counsel has relied on the case of Sardar Khan Vs. Syed Najmul Hasan (Seth) [(2007)10 SCC 727]. 5. Heard learned counsel for the parties and with their consent this Court proceeds to decide the case at the admission stage itself. 6. In order to answer the legal issue, mentioned above, it is imperative to take note of Section 85, 6 and 7 of the Act. Section 85 of the Act reads as under:- “85. Bar of jurisdiction 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.” (Emphasis supplied) 7. Chapter II of the Act deals with survey of wakfs. Section 4 of the Act deals with preliminary survey of wakfs and empowers the Government to appoint Survey Commissioner of Wakfs and as many as Additional or Assistant Survey commissioner of Wakf. The function of the Commissioner is to draw a list of Wakfs, both Shia and Sunni, which exist in the State. The said list is to be published under section 5 of the Act. 8. Section 6 of the Act reads 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 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. Explanation.--For the purposes of this section and section 7, the expression "any person interested therein", shall, in relation to any property specified as wakf property in 'the list of wakfs published after the commencement of this Act, shall include also every person who,though not interested in the wakf concerned, is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in that behalf during the course of the relevant inquiry under section 4. (2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any wakf 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. (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. (4) The list of wakfs shall, unless it is modified in pursuance of a decision or the Tribunal under sub-section (1), be final and conclusive. (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). 9. Section 7 of the Act reads as under:- 7. Power of Tribunal to determine disputes regarding wakfs. 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 6 may be entertained by Tribunal within the period of one year from such commencement: 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 subsection (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. (3) The Chief Executive Officer shall not be made a party to any application under sub-section (1). (4) The list of wakfs 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. (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 subsection (1) of section 6, before the commencements of this 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. 10. A perusal of sections 6 and 7 clearly reveals that it relates to dispute with regard to whether a particular property specified as Wakf property, in the list of Wakfs, published under section 5 is a Wakf property or not? Or whether the Wakf specified in the list is a Shia Wakf or Sunni Wakf? Thus Section 6 of the Act bestows a limited jurisdiction upon the Tribunal. 11. Section 7 also bestows the same exact jurisdiction as Section 6 upon the Tribunal when the dispute arise after commencement of the Act. Section 7 further curtails the jurisdiction of the Tribunal by providing that “in case such a question had been heard and finally decided by a civil court in a suit instituted before such commencement, the Tribunal shall not re-open such question”. Moreover, section 7(5) provides that the Tribunal does 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 subsection (1) of section 6, before the commencements of this Act. Therefore, if a dispute regarding the nature of the property – whether a property is a wakf property or not, the status of the waks – whether Shia wakf or Sunni wakf, if these disputes were brought before the civil court prior to commencement of the Act, then under section 7(5) the Tribunal does not have the jurisdiction to try these issues. 12. An analysis of both these provisions clearly reveal that an extremely limited jurisdiction has been bestowed on the Tribunal. The Tribunal does not have the same jurisdiction as a civil court. Therefore, any issue unrelated to the nature of property or status of the wakf would be out side the jurisdiction of Tribunal and within the jurisdiction of Civil Court. In another words, the civil court has a larger jurisdiction and is like a genus, whereas, the Tribunal has specific jurisdiction and is like a specie. Since the present case relates to recovery of rental money and grant of permanent injunction, obviously the case does not relate to the nature of the property or the status of the wakf. Hence, clearly the Tribunal does not have the jurisdiction to try the present suit. Thus, the jurisdiction vests wholly in civil court. Merely, because the property is a wakf property, it would not oust the jurisdiction of civil court. 13. A bare perusal of the impugned order clearly reveals that learned Judge has based his reasoning for dismissing the application on section 7(5) of the Act. However, section 7(5) of the Act is inapplicable to the present case. Section 7(5) of the Act deals with the dispute which arise under section 6(1) of the Act, but prior to commencement of the Act. In case those disputes were challenged in a civil court before the commencement of the Act, then jurisdiction of Tribunal is ousted. However, as stated above, the dispute in the present case does not relate to dispute under section 6(1) of the Act. Therefore, the reference to section 7(5) of the Act is misplaced. Hence, the logic for dismissing the application is incorrect. But nonetheless, the conclusion that the jurisdiction of civil court is not ousted in the present case is correct. Therefore, the contention raised by learned counsel for the petitioner that the application should have been allowed is unsustainable. 14. The second contention raised by the learned counsel for the petitioner that the wakf was an unregistered one, therefore, the suit could not be filed, has been answered by the learned Magistrate himself. According to the impugned order the wakf was registered as far back as in 1931. Hence, under section 43 of the Act, a wakf which is registered prior to commencement of the Act, would be deemed to be registered. Hence, the second contention raised by learned counsel for the petitioner is meritless. 15. For the reasons, stated above, there is no merit in this petition. It is, hereby, dismissed without any order as to costs. Since the suit is pending from 1977 i. e. over three decades, it is expected of the trial court that it shall expedite the case as soon as possible. ( R.S. CHAUHAN ) J. arn