1 CRA NO.217/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.217 OF 2011 1) Mahmood s/o Zainuddin Khatik Age:71 Yrs., occu. Agril. R/o Quraishi Mohalla, Near Chowk Ki Masjid, Dharur, Tq. Dharur, District Beed. 2) Jeelani s/o Zainuddin Khatik Age:69 Yrs., occu. Agril. R/o as above. - Applicants (Orig.Deft.Nos.1 and 2) VERSUS 1) Osman Khan s/o Sadullah Khan Inamdar, Age: 71 Yrs., occ. Pensioner, R/o Mominpura, Opp.Madina Masjid, Beed, District Beed. 2) Rahmat Khan s/o Sadullah Khan Inamdar, Age: 77 Yrs., occu. Pensioner, r/o Khaja Nagar, Opp.Mecca Masjid, Mominpura, Beed, Tq. And Dist. Beed. 3) Ibrahim Khan s/o Sadullah Khan Inamdar, Age: 51 Yrs., occu. Business, R/o Momin Mohalla, Dharur, Tq.Dharur, Dist. Beed. 4) Yousuf Khan s/o Sadullah Khan Inamdar, Age: 46 Yrs. Occu.Business, r/o Momin 2 CRA NO.217/2011 Mohalla, Dharur, District Beed. 5) Maharashtra State Board of Wakfs, Through its Chief Executive Officer, Panchakki, Aurangabad. - RESPONDENTS ***** Mr.Sunil P.Deshmukh, Advocate for Applicants; Mr.SS Kazi, Advocate for Resp.Nos.1 to 4; Mr.UD Dalvi,Advocate for Resp.No.5. ----- CORAM : K.U.CHANDIWAL, J. DATE : 14th NOVEMBER, 2011. ORAL JUDGMENT: 1) Rule. Rule made returnable forthwith. Heard learned Counsel for the respective parties. 2) Wakf Suit No.40/2010 was preferred before the Wakf Tribunal,Aurangabad by the respondents herein. An objection was raised, vide Exhibit-19 by the petitioners. The learned Judge did not entertain the said application by his order below Exhibit-1, holding that the Tribunal had jurisdiction. The said order is questioned in this CRA. 3) Mr.Deshmukh, learned Counsel for the revision applicants, submits that as the issue 3 CRA NO.217/2011 between the same parties has been finally settled in RCS No.91/1980, decided on 31.1.1991, the same could not have been re-opened by the respondents under the garb and claiming to be legal representatives of the original Inamdar, specifically treating the property to be a Wakf property. This aspect was urged by the parties before the Civil Court, the Civil Court negated the same, and consequently, he reiterates, the status and character of the property need not be permitted to be reopened. 4) The learned Counsel further submits, in the light of Section 7(5) of the Wakf Act, the Tribunal shall not have jurisdiction to determine any matter, which is subject matter of any suit or proceedings, in a civil court in terms of Section 6(1) before commencement of the Wakf Act, 1995. The learned Counsel further submits, the Wakf suit No.40/2010 is barred by law of limitation. For that purpose, he has placed reliance to the judgment in the matter of T. Kaliamurthi and Anr. Vs. Five Gori Thaikal Wakf & Ors.,(2008(5) All MR 462). He has also placed reliance to the judgment in the matter of Sardar Khan and Ors. Vs. Syed Najmul Hasan (Seth) and Ors. – AIR 2007 SC 1447, in which, Lordships have observed, - “ exclusion of jurisdiction of civil court is limited by Section 7(5) of the 4 CRA NO.217/2011 Wakf Act." In the said case, suit was filed in 1977 and it was recorded, Civil Court does not loose the jurisdiction. 5) RCS No.91/1980 was simplicitor suit for injunction and the very nature of order recorded by the learned Judge on 31.1.1991 illustrate, he was conscious and alive to the legal position and, therefore, decreed the suit with limited brackets and allowing the plaintiffs therein not to be removed “without due course of law”. 6) The observations, to which Mr. Deshmukh gave repeated reference in the said RCS No. 91/1980, will not have a decisive bearing in the suit initiated by the respondents, as the matter, as stated earlier, revolved to grant of temporary injunction or perpetual injunction, wherein the petitioners claimed that they should not be ousted or there should not be obstruction/interference in any manner to their peaceful possession over the suit property – Survey No.17 and Survey No.18, situate at Dharur, Tq. Dharur, District Beed. 7) The petitioners, as plaintiffs, in paragraph 1 of RCS No.91/1980 claimed, the properties are service Inam lands dedicated for religious services of Jama Masjid and Graveyard, 5 CRA NO.217/2011 situated at Dharur, Tq. Kaij District Beed. The legal position, as explained in the Wakf Act, 1995 under Section 3(r)(ii), takes care to indicate that "grants", including mashrut-ul- khidmat for any purpose recognized by the Muslim law as pious, religious or charitable, come within the term of "Wakf”. 8) The contention, that the matter between the same parties is finally adjudicated upon, is again not open, to repeat, it was the suit for perpetual injunction. That apart, the learned Judge recorded that the Gazette of 1974 was not produced by the respondents or the Inamdars. Besides, it was expected, there could not have been lease to the agricultural properties by Inamdar (defendant in RCS No.91/1980) as the court kept that issue open. 9) Mr.Deshmukh, as stated earlier, raised the issue of limitation. However, that is again answered by Section 107 of the Wakf Act. The jurisdiction, which was the basic theme in the matter, raised by the revision applicants before the learned Member of the Wakf Tribunal, has been adequately dealt with. However, whether the property is a Wakf or not, or whether the status of the petitioners as Inamdars, as persons in possession on lease, is to be separately dealt 6 CRA NO.217/2011 with by the learned Member of the Tribunal. The issue in relation to limitation, as has been now raised, is again permitted to be canvassed before the same authority. 10) The locus standi of the respondents, though is challenged, however, the same can be re-addressed before the learned Member of the Tribunal. Primarily the Tribunal had jurisdiction, Section 7(5) of the Wakf Act, will not create a bar as the legal position is distinct, and consequently, I do not see any error/perversity in passing the order under challenge. 11) The CRA lacks merit, dismissed. Rule discharged. All observations are prima facie in nature and the learned Member of the Wakf Tribunal shall not be swayed with the same. sd/- (K.U.CHANDIWAL) JUDGE bdv/