IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 3RD DECEMBER 2009 / 12TH AGRAHAYANA 1931 CRP.No. 991 of 2006() WOS.31/2005 of WAKF TRIBUNAL, ERNAKULAM, DTD 31/8/2006 .................... REVN. PETITIONERS/DEFENDANTS 1,3,4,5 AND 6: 1. USMAN, S/O.PUTHIYAVEETTIL ADIMA, VALAPPAD VILLAGE, PALLIPPURAM AMSOM, DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. 2. NABEEZA, W/O. PUTHIYAVEETTIL USMAN, VALAPPAD VILLAGE, PALLIPPURAM AMSOM, DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. 3. KAREEM, S/O. PUTHIYAVEETTIL USMAN, VALAPPAD VILLAGE, PALLIPPURAM AMSOM, DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. 4. KABIR, S/O. PUTHIYAVEETTIL USMAN, VALAPPAD VILLAGE, PALLIPPURAM AMSOM, DESOM, CHAVAKKAD TALUK, THRISSUR (NOW EMPLOYED AT DUBAI, U.A.E). 5. SHOUKATHALI, S/O.PUTHIYAVEETTIL USMAN, VALAPPAD, PALLIPPURAM, CHAVAKKAD,THRISSUR DISTRICT (NOW EMPLOYED AT DUBAI, U.A.E). BY ADV. MR.K.A.SATHEESA BABU RESPONDENTS/PLAINTIFFS 1,2,4 AND DEFENDANT 2: CHALUKKULAM JUMA MASJID MAHALLU COMMITTEE, REPRESENTED BY PRESIDENT, 1. BADHARUDHEEN, S/O. KUNJU, KARAPPAMVEETTIL HOUSE, P.O. VALAPPAD BEACH, CHAVAKKAD TALUK,THRISSUR DIST CRP.No. 991 of 2006 2. SECRETARY, SHOWKHATHALI, S/O.SAIDALYKUTTY, RAYAMMARAKKAR VEETTIL, P.O. VALAPPAD BEACH, CHAVAKKAD TALUK, THRISSUR DISTRICT. 3. ABDULKAREEM, AGED 56 YEARS, S/O. AMBALATHUVEETTIL HAMEED, VALAPPAD VILLAGE, PALLIPPURAM AMSOM, DESOM, CHAVAKKAD TALUK, THRISSUR DISTRICT. 4. KERALA WAKF BOARD, REPRESENTED BY SECRETARY, BROADWAY P.O.,ERNAKULAM. ADV. SRI.K.P.MAJEED FOR R1 & 2 SRI.P.ANOOP (MULAVANA) FOR R1 & 2 SRI.T.S.ABDUL VAHAB FOR R1 & 2 SRI.P.A.ABDUL JABBAR, SC, WAKF BOARD FOR R4 SRI.M.M.SAIDU MUHAMMED,SC,WAKF BOARD FOR R4 SRI.T.H.ABDUL AZEEZ FOR R3 THIS CIVIL REVISION PETITION HAVING BEEN FINALLY HEARD ON 03/12/2009, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: P.R.RAMAN & P.R.RAMACHANDRA MENON, JJ = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = C.R.P. No.991 of 2006 = = = = = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 03rd day of DECEMBER, 2009 O R D E R Raman, J 1. This revision arises under the Wakf Act, 1995 read with Section 83(9) and Section 115 of the Code of Civil Procedure. The revision petitioners are defendants 1,3,4,5 and 6 and the respondents are the plaintiffs 1,2,4 and defendant 2 in WOS No.31/2005 in the file of Wakf Tribunal instituted as OS.No.178/94 before the Munsiff Court, Chavakkad. The suit is one for recovery possession and mandatory injunction and mesne profits. The allegation of the plaintiff was that the plaint schedule property belonged to one Ummuru who had assigned it to his mother Beevathumma, who made a Wakf in respect of plaint schedule property on the basis of Wakf Deed Ext.A1 dated 22/9/1936. The plaint schedule item is Item No.2 of Ext.A1. C.R.P. No. 991 of 2006 2 The defendant's property lies immediately on the southern side of the plaint schedule property. It was alleged that the defendant proceeded upon the plaint schedule property and later reduced it into his possession by putting up a fence and constructing a shed and hen-cage. Hence, a prayer for mandatory injunction was made for removal of such constructions also. The petitioner resisted the suit on other grounds also, including its maintainability. It is not necessary to further go into the contentions of the petitioner for the limited purpose of the transferring of the writ petition. 2. As already stated, the suit was originally filed before the Munsiff Court. The Munsiff Court decreed the suit and against that decision, an appeal to the District Court was filed as A.S.344/1999. The Appellate Court eventually set aside the decree passed by the Munsiff Court and remanded the case to the Munsiff Court for fresh consideration, in accordance with the law after affording an opportunity to both sides to adduce further evidence. The Appellate Court, was further directed C.R.P. No. 991 of 2006 3 to raise the issue regarding the maintainability and adverse possession. Pursuant to the remand order passed by the appellate Court, while the matter was pending before Munsiff Court, a jurisdiction issue was raised at the instance of the defendant inter-alia contending that the said matter suit comes within the jurisdiction of the Wakf Tribunal and that as such Civil Court has no jurisdiction. This contention was accepted by the Munsiff Court and the plaint was ordered to be returned in the proper form. Eventually, the plaint was re- presented before the Wakf Tribunal, Ernakulam as W.O.S.31/2005. The parties went on trial and Wakf Tribunal allowed the suit against which the present revision is filed. 3. This revision was filed in 2006. The learned counsel appearing for the revision petitioner, placing reliance on the decision of the Supreme Court in Sardar Khan's Case (2007 (2)AIR SCW 1892) and the Division Bench decision of this court in Muhammed Sahib v. Mohammed Ibrahim (2007 (2)KLT 56) contends that the Wakf Tribunal has no C.R.P. No. 991 of 2006 4 jurisdiction in a pending matter instituted before the Civil Court, prior to the commencement of the Wakf Act, 1995. 4. The Wakf Act 1995 came into force with effect from 1/1/1996 as per notification S.O.NO.1007 dated 27/12/1995. Admittedly, the suit was originally filed before Munsiff Court in the year 1994 as O.S.No.178 of 1994. It is the said suit, which is tried before the Wakf Tribunal, on being presented before it. Therefore, there is no doubt that this proceedings was instituted and commenced in a Civil Court. The question for consideration is whether the Wakf Tribunal has got jurisdiction to try the issue raised earlier before the Civil Court. 5. As per Section 6 of the Wakf Act, if any question arises whether a particular property specified as Wakf property in the list of Wakf is Wakf property or not or whether a Wakf specified in such list is a Shiya 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 C.R.P. No. 991 of 2006 5 the question and the decision of the Tribunal in respect of such matter shall be final. The rest of Section 6(1) is not relevant for our purpose. 6. Therefore, if the question required to be decided under Sub-section 1 of Section 6 arises after the commencement of the Act, there cannot be any doubt that such question has to be determined only by the Wakf Tribunal. 7. As per Section 7(1) of the Act, the Muthawalli of the Wakf or any person interested therein as referred in Section 6 could apply to the Tribunal having jurisdiction of such property for the decision of the question and the decision of the Tribunal there on shall be final. The rest of the Section 7 is not relevant for our purpose. 8. As per Section 7(5) of the Act, 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 Sub-section 1 of Section.6 C.R.P. No. 991 of 2006 6 before the commencement of this Act or which is a 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. 9. It is therefore clear from the above provision that the Tribunal's jurisdiction conferred as per Section 6 is subject to Section 7(5) and in respect of proceedings instituted before the commencement of the Act, it is only the Civil Court will continue to have jurisdiction and the Tribunal's jurisdiction is expressly taken away in respect of matters pending before the Civil Court. 10. Therefore, the Tribunal's jurisdiction in respect of pending matters are expressly ousted by Section 7(5) of the Act. See Sardar Khan v. Syed Najmul Hasan (Seth) (2007 (2)AIR SCW 1892) 11. Now, two other provisions are also relevant to be noticed. Section 83 of the Wakf Act 1995 coming under C.R.P. No. 991 of 2006 7 Chapter VIII provided for the constitution of the Tribunal, for the determination of any dispute, question or any other matter relating to a Wakf or Wakf property under this Act. As per Section 85 of the Act, no suit or legal proceeding shall lie in any Civil Court in respect of dispute, question, or any 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. 12. The Supreme Court in Sardar Khan's case, after referring to the above two provisions namely Section 7(5) and also Section 85 of the Act, held that: on a joint reading of Sub-section 5 of Section 7 and Section 85 the result would be that, the Act will not be applicable to the pending suits or proceedings or appeals or revisions which have commenced prior to 1/1/1996 i.e. the date of coming into force of the Wakf Act, 1995. 13. The Division Bench of this Court in Muhammed Sahib v. Mohammed Ibrahim in 2007 (2) KLT 56, also held C.R.P. No. 991 of 2006 8 that the Wakf Act itself indicates that pending suits at the time of introduction of Section 85 will continue, but no suit can be filed thereafter, even if cause of action arose earlier. Civil Court's jurisdiction can be barred by statute and if jurisdiction is barred either expressly or impliedly, Civil Court will have no jurisdiction to deal with the case. In the absence of a provision to transfer the pending suites to Tribunal, remedy of the plaintiffs cannot be taken away without express provision in the statute. 14. Therefore, the bar under Section 7(5) or under Section 85 respectively does not apply to a pending proceedings, in view of the express provision contained in Section 7(5) and also based on the binding decision of this court and the Supreme Court referred to supra. 15. In the result, this revision is allowed and we hold that the Tribunal has no jurisdiction to try the issue arising in the pending suit instituted in the year 1994, i.e. prior to the Wakf Act 1995. The Civil Court would continue to have C.R.P. No. 991 of 2006 9 jurisdiction in the matter and the Wakf Tribunal has no jurisdiction as such. The judgment of the Wakf Tribunal in W.O.S.31/2005 dated 31/8/2005 is set aside. We direct the Tribunal to return the plaint to be presented before the Munsiff Court, Chavakkad. We also direct the Munsiff Court to proceed with the case from the stage at which the plaint was returned by that court earlier, as directed by the Appellate Court in A.S.344/1999. Communicate a copy of this order to Wakf Tribunal, as also to the Munsiff Court, Chavakkad. The parties shall appear before Munsiff Court on 15th February 2010. The Munsiff Court shall dispose of the matter as expeditiously as possible, at any rate within a period of six months from the date on which parties make their first appearance before that Court. P.R.RAMAN, JUDGE P.R. RAMACHANDRA MENON, JUDGE nl