RSA No.4105 of 2008 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH REGULAR SECOND APPEAL No.4105 of 2008 DATE OF DECISION: 19 th APRIL, 2011 Ram Murti .... Appellant Versus Dhoop Singh & others .... Respondents CORAM :- HON'BLE MR. JUSTICE L. N. MITTAL. PRESENT: Mr. Rajinder Geol, Advocate for the appellant. Mr. Rakesh Nagpal, Advocate for respondents No.1. Respondents No.2 and 3 ex party. Non for respondent No.4. * * * * L.N. MITTAL, J. (ORAL) Plaintiff Ram Murti who was successful in the trial court, but has been non-suited by the lower appellate court, has filed the instant second appeal. I need not go into detailed facts of the case, in view of the limited controversy involved in the instant second appeal. Suffice to notice that the plaintiff claimed to be tenant in possession of the suit property under defendant No.4-Punjab Wakf Board (in short, the Board), but defendant No.4 wanted to dispossess the plaintiff from the suit property forcibly and, therefore, the plaintiff earlier filed suit for injunction against defendant No.4 . Temporary injunction was granted in that suit. Now defendants No.1 to 3 RSA No.4105 of 2008 -2- claimed themselves to be allottees/tenants of the suit property under defendant No.4 and threatened to dispossess the plaintiff therefrom. The plaintiff sought permanent injunction against said threatened action. By amendment of plaint, the plaintiff alleged that during pendency of the suit, defendants No.1 to 3 had dispossessed the plaintiff from the suit property forcibly and illegally. Accordingly, the plaintiff also sought relief of possession of the suit property. Defendants No.1 to 3 inter alia pleaded that they are in possession of the suit property as allottees from the Board vide order dated 05.10.1995 and plaintiff is not in possession of the suit property. The allotment of suit property in favour of plaintiff has been cancelled by the Board. Objection of bar of jurisdiction of the Civil Court was also raised. Defendant No.4 also took similar stand. Learned Civil Judge (Senior Division), Kaithal vide judgment and decree dated 16.03.2005 decreed the plaintiff's suit. However, first appeal preferred by defendant No.1 has been allowed by learned Additional District Judge, Kaithal vide judgment and decree dated 29.07.2008 holding that jurisdiction of Civil Court to try the suit is barred and, therefore, judgment and decree of the trial court have been set aside and plaint has been ordered to be returned to the plaintiff. Feeling aggrieved, plaintiff has filed the instant second appeal. I have heard learned counsel for the parties and perused the case file. Learned Lower Appellate Court has not decided the case on merits except deciding the question of jurisdiction of Civil Court. Learned counsel for the appellant relying on judgment of Hon'ble RSA No.4105 of 2008 -3- Supreme Court in the case of Ramesh Gobindram (dead) through LRs Versus Sugra Humayun Mirza Wakf, 2010(2) RCR (Rent) 266, contended that only Civil Court has jurisdiction to try the instant suit and Wakf Tribunal constituted under the Wakf Act 1995 (in short, the Act) has no jurisdiction to try the suit. On the other hand, learned counsel for respondent No.1 contended that jurisdiction of Civil Court is barred by Sections 83 and 85 of the Act and only Wakf Tribunal constituted under the Act has jurisdiction to adjudicate upon any question relating to Wakf or Wakf property. Reliance in support of this contention is placed on judgment of Hon'ble Supreme Court in the case of Board of Wakf, West Bengal Versus Anis Fatma Begum & Anr., 2011(1) RCR (Civil) 303. I have carefully considered the rival contentions. In the instant suit, both plaintiff and defendants No.1 to 3 claimed to be tenants over the suit land under the Board-defendant No.4. To the same effect is the stand of the Wakf Board. It is thus manifest that the question, whether the suit property is Wakf property or not, is not in issue in the instant suit. On the other hand, it is the case of all the parties that the suit property is Wakf property. Consequently, the Wakf Tribunal constituted under the Act has no jurisdiction to try the suit and only Civil Court has jurisdiction to try the instant suit for permanent injunction and possession of the suit land. In this view, I am supported by the judgment of Ramesh Gobindram (supra). The said judgment is directly on this issue wherein it was held that only the Civil Court has jurisdiction to entertain suits regarding eviction of tenant from Wakf property instituted by the Wakf Board. In the instant case, the plaintiff is on better footing. He claimed injunction as tenant of the Wakf Board and RSA No.4105 of 2008 -4- subsequently he claimed possession of the suit property on the same basis, having been dispossessed during the pendency of the suit by defendants No.1 to 3. Consequently, only Civil Court has jurisdiction to try the instant suit. Judgment in the case of Anis Fatma Begum (supra) is completely distinguishable. In that case, the Wakf was created for two purposes i.e. 75% share for Wakifa, her Family and descendants and 25% for pious and religious purposes. The Wakf property was partitioned by metes and bounds by separating 75% for the benefit of descendants of family of Wakifa and remaining 25% for religious and charitable purpose. The said demarcation of the Wakf property into two portions was in issue in the said case. It was in these circumstances that jurisdiction of Civil Court was held to be barred in that case because the dispute related to Wakf nature of the property and division thereof. In the instant case, however, no issue relating to Wakf nature of the suit property is involved because all the parties have admitted that the suit property is Wakf property. Consequently, it is held that Civil Court only has jurisdiction to try the instant suit and jurisdiction of Civil Court is not barred by the Act and Wakf Tribunal constituted in the Act has no jurisdiction to try the instant suit. Finding of the lower appellate court to the contrary is illegal and unsustainable. Substantial question of law to this effect arises for adjudication in this second appeal and the same is answered in favour of the plaintiff-appellant. Since lower appellate court did not decide the appeal on merits, except deciding question of jurisdiction of Civil Court, first appeal has to be remanded to the lower appellate court for fresh decision on merits, in accordance with law. RSA No.4105 of 2008 -5- For the reasons aforesaid, the instant second appeal is allowed. Judgment and decree of the lower appellate court are set aside and first appeal preferred by defendant No.1 against judgment and decree of the trial court is remanded to the lower appellate court for fresh decision on merits in accordance with law. Files of both the courts below be sent to the lower appellate court immediately. Parties are directed to appear there on 23.05.2011. (L. N. MITTAL) JUDGE 19th April, 2011 'raj'