cra14.05 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 14 OF 2005 1 Syed Afzal s/o Syed Mahboob age 70 years, occ. agriculture r/o Village Kalegaon-Ghat, Tq. Kaij Dist. Beed. 2 Syed Hassan s/o Syed Meera age 55 years, occ. agriculture r/o village Kalegaon-Ghat, Tq Kaij Dist.Beed. 3 Dastagir s/o Abdul Mulani age 60 years, occ agriculture r/o Village Kalegaon-Ghat, Tq. Kaij Dist. Beed. .. APPLICANTS VERSUS 1 Arjun s/o Laxman Kothawade age 65 years, occ. agriculture r/o Village Kalegaon-Ghat, Tq. Kaij Dist. Beed. 2 Damodhar s/o Uttareshwar Uttarappa Kothewade, age 60 years, occ. agriculture r/o as above. 3 Kishan s/o Keshavrao Kothawade age 64 years, occ. agriculture r/o as above. 4 Bhimrao s/o Mahadeo Kothawade age 66 years, occ. agriculture cra14.05 2 r/o as above. 5 Ramchandra s/o Shaurao Kothawade age 65 years, occ. agriculture r/o as above. 6 Manik s/o Nivratti Kothawade age 58 years, occ. agriculture r/o as above. 7 The State Government of Maharashtra through the Collector, Beed. 8 The Tahsildar Tq. Kaij, Dist. Beed. 9 The Marathwada Wakf Board Through the secretary Marathwada Wakf Board Aurangabad. (Now The Maharashtra State Board of Wakf, through its Chief Executive Officer at Panchakki, Aurangabad.) 10 The District Wakf Officer, Beed Dist. Beed. .. RESPONDENTS Mr. S.S Kazi, advocate for the applicants. Mrs. M.A. Kulkarni, advocate for respondent nos. 1 to 6. ===== CORAM : R.M. BORDE, J. DATE : 3 rd MAY, 2011. ORAL JUDGMENT : cra14.05 3 1 Applicants / original defendant nos. 4, 5 and 6 are challenging the order passed below exh. 44/D by the Civil Judge, Sr.Dn., Ambajogai in Regular Civil Suit no. 39/2001 on 20-3-2004. Review application presented by the applicants requesting for recall of the order passed by the trial court is also turned down on 17-12-2004. 2 Respondent nos. 1 to 6 / original plaintiffs instituted Regular Civil Suit no. 39/2001 claiming declaration that the plaintiffs are entitled to hold and continue in possession of their respective shares in pot hissa forming part survey no. 160 inclusive of survey no. 160-U situate at village Kalegaon-Ghat together with house properties. Plaintiffs have also prayed for a decree of perpetual injunction against defendant nos. 1 to 7 restraining them from causing any damage to the properties of the plaintiffs and from causing interference in the peaceful possession of the plaintiffs over their respective properties. Plaintiffs have also prayed for declaration that the notice issued by defendant nos. 3 to 7 dt. 12-7-2001 as well as notice dt. 13-7-2001 issued by defendant no. 2 on behalf of defendant no. 1 be held to be void, illegal and without jurisdiction. 3 The dispute relates to the agricultural property bearing survey no. 160. cra14.05 4 It is not necessary to go into all the factual aspects of the matter. It is contended that pot hissa no. 160-U which was in joint ownership and common possession of plaintiffs has been put to non-agricultural use and the plaintiffs have constructed their houses and kothas in the land. It is stated that there is construction raised called “Sone Saheb Mazaar” (Dargah) in the disputed property so also there are tamarind trees standing in the nearby vicinity. The ancestors of plaintiff no. 2 used to look after the said Mazaar. However, Mazaar was never treated as a public place of worship. It is further stated that an application was tendered by members of Muslim community with the Tahsildar, Keij, complaining that the plaintiffs and others have made encroachment in the surrounding area of Mazaar. It was also alleged that plaintiffs have encroached upon an area earmarked for burial ground. An enquiry was conducted by the Tahsildar in respect of allegations and the objection was turned down. It is further contended that defendant nos. 1 to 4 in collusion with the officers of the Marathwada Wakf Board managed to get the bogus entry in Wakf register in respect of Sone Saheb Dargah and burial ground in the area of 125 X 120 feet of the land survey no. 160 at village Kalegaon-Ghat. According to plaintiffs, entry recorded is without holding an enquiry and without issuing notice to the plaintiffs and thus does not bind them. A notice dt. 12-7-2001 cra14.05 5 came to be issued by the Additional Wakf Officer directing the plaintiffs to remove encroachment. Notice dt. 12-7-2001 was followed by notice issued by Tahsildar on 13-7-2001 issuing identical directions. Plaintiffs are challenging the notices issued by the concerned officials by presenting civil suit. 4 Defendants caused appearance and resisted the suit by filing written statement. It is the main contention of the defendants that the suit presented before the civil court is barred by provisions of section 85 of the Wakf Act, 1995 and the civil court cannot take cognizance of the dispute. It is contended that once it is declared that the property is a Wakf property, jurisdiction of the civil court is ousted and enquiry, if any, shall have to be made by Wakf tribunal. An application came to be presented by defendants purported to be an application under section 97 of the Code of Civil Procedure requesting the court to frame preliminary issue in respect of jurisdiction of the civil court to try the suit and decide the same before taking up the application claiming temporary injunction. Trial court, after considering the rival contentions, was pleased to reject the application. Hence the instant revision application. cra14.05 6 5 Mr. Kazi, learned counsel for the revision applicants has vehemently contended that in view of the bar contained in section 85 of the Wakf Act, 1995, the jurisdiction of the civil court is barred. He has also invited my attention to section 83 of the Act and contended that after constitution of the Wakf tribunal, it is for the tribunal to deal with the issue and the relief claimed by plaintiffs in the plaint can also be claimed before the tribunal and the tribunal is having competence to pass appropriate orders. It is contended that the contentions raised in the plaint relate to administration of Wakf and the Wakf property, and as such, cognizance of the dispute can be taken only by the Wakf tribunal. 6 It is contended by the respondents that the jurisdiction of the civil court to grant relief is not totally ousted. It is contended that the entries recorded in the Wakf register in respect of disputed property are without notice to the plaintiffs and the plaintiffs being the persons who do not profess Muslim faith, the entries recorded in the Wakf register do not bind them. It is contended that the civil court is only competent to deal with the issue raised in the plaint. Reliance is placed on a judgment of the Apex Court in the matter of The Board of Muslim Wakfs, Rajasthan vs. Radha cra14.05 7 Kishan and others reported in AIR 1979 Supreme Court 289. The issue before the Apex Court was in relation to applicability of period of limitation of one year for raising a dispute in relation to enlistment of the properties in the Wakf register by a person who is non-Muslim. While considering the issue arising before the court, the Apex Court has interpreted provisions of section 6 of the Wakf Act, more particularly, expression “any person interested therein” appearing in sub-section 1 of section 6 of the Act. Section 6(1) of the Wakf Act, 1954 reads thus 6(1) If any question arises whether a particular property specified as wakf property in a list of wakf published under sub-section (2) of Section 5 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 civil court of competent jurisdiction for the decision of the question and the decision of the civil court in respect of such matter shall be final; Provided that no such suit shall be entertained by the civil court after the expiry of one year from the date of the publication of the list of wakfs under sub-section (2) of Section 5. ..... ..... .... ..... (4) The list of wakfs published under sub-section (2) of Section 5 shall, unless it is modified in pursuance of a decision of the civil court under sub-section (1), be final and conclusive.” cra14.05 8 . In paragraph no. 33 of the judgment it is observed thus : 33 The answer to these questions must turn on the true meaning and construction of the word ‘therein’ in the expression ‘any person interested therein’ appearing in sub-s (1) of S.6. In order to understand the meaning of the word ‘ therein’ in our view, it is necessary to refer to the preceding words ‘the Board or the mutawalli of the wakf. The word ‘therein’ must necessarily refer to the ‘wakf’ which immediately preceds it. It cannot refer to the ‘wakf property’. Sub-sec. (1) of Sec. 6 enumerates the persons who can file suits and also the questions in respect of which such suits can be filed. In enumerating the persons who are empowered to file suits under this provision, only the Board, the mutawalli of the wakf, and ‘any person interested therein’, thereby necessarily meaning any person interested in the wakf, are listed. It should be borne in mind that the Act deals with wakfs, its institutions and its properties. It would, therefore, be logical and reasonable to infer that its provisions empower only those who are interested in the wakf, to institute suits. . It is also clarified in paragraph no. 34 of the judgment thus : . The word ‘therein’ appearing in sub-s (1) of S. 6, must, therefore, mean ‘any person interested in a wakf as defined in S. 3(h). The object of sub-s (1) of S. 6 is to narrow down the dispute between the Board of Wakfs, the mutawalli and the person interested in the wakf, as defined in S. 3(h). . The Apex Court has observed in paragraph no. 39 of the judgment thus : cra14.05 9 . It follows that where a stranger who is a non- Muslim and is in possession of a certain property his right, title and interest therein cannot be put in jeopardy merely because the property is included in the list. 7 The view expressed by the Apex Court has been followed consistently. In Writ Petition no. 1048/1994 decided by the Division Bench of this court on 8-7-2010, ratio laid down by the Apex court has been followed to infer vesting of jurisdiction in the court. In the matter of Marathwada Wakf Board, Aurangabad vrs. Rajaram Ramjivan Manthri and others reported in 2001(3) Mh.L.J. 73, the learned Single Judge of this court has observed that the plaintiff in the reported matter, who was a non-Muslim, was not barred from filing the suit especially in view of the fact that his right, title and interest had been jeoparadised in view of the notification issued by the Government of Maharashtra. Section 6 of the Wakf Act does not operate as a bar to the suit. 8 Reliance is also placed on a judgment in the matter of Ramesh Gobindram Vs. Sugra Humayun Mirza Wakf reported in 2010 AIR SCW 5185. In paragraph nos. 5 and 6 of the judgment, it is observed thus : 5 Before we take up the core issue whether the jurisdiction of Civil Court to entertain and adjudicate cra14.05 10 upon disputes regarding eviction of wakf property stands excluded under the Wakf Act we may briefly outline the approach that the Courts have to adopt while dealing with such questions. The well-settled rule in this regard is that the Civil Courts have the jurisdiction to try all suits of civil nature except those entertainment whereof is expressly or impliedly barred. The jurisdiction of Civil Courts to try suits of civil nature is very expansive. Any statue which excludes such jurisdiction is, therefore, a 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 Courts 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 Civil Court’s jurisdiction is ousted. 6 Even in cases where the statute accords finality to the orders passed by the Tribunals, the Court will have to see whether the Tribunal has the power to grant the reliefs which the Civil Courts would normally grant in suits filed before them. If the answer is in the negative exclusion of the Civil Court’s jurisdiction would not be ordinarily inferred. In Rajasthan SRTC v. Bal Mukund Bairwa (2), (2009) 4 SCC 299 : (2009 AIR SCW 2566), a three-Judge Bench of this Court observed : . “There is a presumption that a civil court has jurisdiction. Ouster of civil court’s jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even in a case where jurisdiction of a civil court is sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or tribunal acts without jurisdiction.” . The Apex Court has quoted with approval the decision rendered cra14.05 11 earlier by the Apex Court in the matter of Board of Muslim Wakfs, Rajasthan v. Radha Kishan and others (cited supra) and has observed thus : . From a conjoint reading of the provisions of sections 6 and 7 (supra) it is clear that the jurisdiction 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 be instituted 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 of the 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. . Mr. Kazi, learned counsel appearing for the revision applicants contends that section 85 of the Wakfs Act, 1995, prescribes bar for entertainability of the suit and as such the suit instituted by plaintiffs in the present form is not entertainable. He also seeks leave to place reliance on a judgment in the matter of Board of Wakf, West Bengal and another vs. Anis Fatma Begum and another reported in 2010 All SCR 2690. I have perused the judgment. The issue before the Apex Court was of different character and as such the decision has no applicability to the instant case. 9 My attention is invited to sections 83 and 85 of the Wakf Act and it is cra14.05 12 contended that after constitution of the tribunal and in view of provisions of section 85 of the Act, the jurisdiction of the civil court is completely barred. This argument is however, unacceptable for the reason that the issue has been covered by Apex Court to which reference is made in the earlier paragraphs of this judgment. Section 83(1) of the Act mandates the State Government to constitute a tribunal for determination of any dispute, question or other matter relating to wakf or wakf property under this Act. Sub-section 2 of section 83 reads thus : 83 (2) Any mutawalli, person interested in a wakf 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 prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the wakf. . On reading sub-section 2 of section 83, it is apparent that any mutawalli, person interested in wakf or any person aggrieved by an order made under this act or rules made thereunder, is entitled to make an application within the time specified to the tribunal. The instant suit is presented by plaintiffs who cannot be considered as the persons interested in wakf nor they are the persons aggrieved by any order made under the Wakf Act and as such, the plaintiffs are dis-entitled from approaching the cra14.05 13 tribunal under section 83 of the Act. Considering the scheme of the Act, it is quite clear that an application to the tribunal shall have to be made by the persons described in sub-section 2 of section 83. Thus, the remedy to approach the tribunal cannot be said to be available to any class of the litigants who are not covered by section 83(2) of the Act. The plaintiffs cannot be said to be the persons either interested in wakf or aggrieved by any order made under the Act and as such, are not entitled to approach the tribunal under section 83 of the Act. Bar contained in said section cannot be said to be absolute and cannot apply to the plaintiffs as they form a category of persons who are not entitled to present the application to the tribunal as contemplated by section 83 of the Act. Section 85 also refers to bar of suit or other proceedings in any civil court in respect of any dispute, question or other matter relating to any wakf property or other matter which is required by the Act to be determined by the tribunal. The question raised before the civil court cannot be considered as matter which is required by the act to be determined by the tribunal as the plaintiffs cannot be classified to be the persons who are entitled to approach the tribunal for seeking the relief as claimed by them in the suit. Bar contained in section 85 therefore obviously will not apply to the plaintiffs. This is one more reason for holding accordingly and it is that the plaintiffs have not assailed cra14.05 14 any order made under the Act or the rules made thereunder, beofore the civil court. Argument advanced by learned counsel appearing for the defendants that the suit is not entertainable in view of bar contained in section 85 of the Wakf Act, 1995, is not acceptable and shall have to be rejected. 10 For the reasons recorded above, civil revision application being devoid of substance, does not call for any interference. Civil revision application is rejected. Rule discharged. No costs. 11 Request is made for grant of stay to the order passed by this court. However, for the reasons recorded above and considering the fact that the suit is presented before the civil court in the year 2001 and is yet pending for adjudication for more than 10 years, I am of the view that the order passed by this court need not be stayed. The request stands rejected. ( R. M. BORDE ) JUDGE dyb