*THE HON’BLE SRI JUSTICE K.G. SHANKAR +C.R.P.Nos.719 of 2007 and 1844 of 2008 % 04.03.2011 CRP No.719 of 2007: Between: # the Adoni Syed Khader Macci-Ul Bhokari Darga Katta … Petitioner V. $ Shaikan Bee and 2 others … Respondents CRP No.1844 of 2008: Between: #K. Khader Basha … Petitioner v. $the Adoni Syed Khader Macci-Ul Bhokari Darga Katta … Respondents ! Counsel for the petitioners: M.V.S. Suresh Kumar Counsel for the Respondents: A.M. Qureshi. <Gist: >Head Note: ? Cases referred: 1. 2010 (6) ALD (SC) THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.Nos.719 of 2007 and 1844 of 2008 Date: 04.03.2011 CRP No.719 of 2007: Between: The Adoni Syed Khader Macci-Ul Bhokari Darga Katta, … Petitioner/ Respondent/D.Hlder AND Shaikan Bee and 2 others … Respondents/ Petitioners/ J.Drs. CRP No.1844 of 2008: K. Khader Basha … Petitioner/ Plaintiff AND The Adoni Syed Abdul Khader Macci-ul-Bhokari Dargah Katta … Respondent/ Defendant THE HON’BLE SRI JUSTICE K.G. SHANKAR C.R.P.Nos.719 of 2007 and 1844 of 2008 COMMON ORDER: This order disposes of both the revisions. CRP No.719 of 2007 is by Adoni Syed Khader Macci-Ul Bhokari Darga (‘the suit Darga’ for short) against three respondents. CRP No.1844 of 2008 is by the third respondent in CRP No.719 of 2007 against the petitioner therein. Both the revisions related to the suit Darga. Common questions arose in both the cases. Consequently, both the revisions are disposed of through this common order. The parties are referred to hereinafter as they are arrayed in CRP No.719 of 2007. 2. The petitioner filed O.S.No.146 of 2008 on the file of the Principal Junior Civil Judge, Adoni. It was a suit by the Darga for the eviction of respondents 1 and 2 herein. O.S.No.146 of 1998 was decreed on 19.04.2001. 3. Aggrieved by the same, A.S.No.12 of 2001 was filed by respondents 1 and 2. A.S.No.12 of 2001, however, was dismissed on 15.07.2002. Perpetual injunction was also granted in favour of the petitioner, through the judgment and decree in A.S.No.12 of 2001. Respondents 1 and 2, thereafter, preferred Second Appeal in SA No.674 of 2002. The second appeal, however, was dismissed by this Court at the admission stage on 29.08.2002. The judgment in A.S.No.12 of 2001 was thus confirmed. Six months time was granted to the respondents 1 and 2 to vacate the schedule premises. Claiming that the respondents 1 and 2, however, did not vacate the premises within the stipulated time, the petitioner laid E.P.No.102 of 2003 on the file of the Principal Junior Civil Judge, Adoni. The E.P. was ordered. When warrant was issued for delivery of possession of the property to the petitioner, the bailiff returned the warrant on the ground that the premises was under lock and key. 4. The Wakf Board wanted to take over the management of the Darga. The Wakf Board, consequently, laid O.S.No.10 of 1969 on the file of the Subordinate’s Court, Adoni against the tenant for the eviction of the tenant. The said suit was dismissed on 28.09.1970. On 04.05.1989, the Wakf Board notified declaring the Darga as wakf property. Questioning the same, the petitioner-Management Committee filed Writ Petition No.2302 of 1990 on the file of this Court. The second respondent was impleaded in the writ petition as respondent No.6. The second respondent as the 6th respondent in W.P.No.2302 of 1990 contended that the property was not wakf property. W.P.No.2302 of 1990 was allowed on 07.09.1993. The notification issued by the Wakf Board treating the property as wakf property, consequently, was quashed. The Wakf Board filed Writ Appeal Nos.1347 and 1348 of 1993 from the orders in W.P.No.2302 of 1990. Both the writ appeals were dismissed confirming the orders in W.P.No.2302 of 1990. The present litigation started only thereafter. The respondents 1 and 2 are man and his wife. The third respondent is their son. The claim of the petitioner is that respondents 1 and 2 are illegal occupants of the premises. 5. After the disposal of the second appeal in SA No.674 of 2002, the third respondent, who is son of respondents 1 and 2, filed O.S.No.88 of 2003 before the Wakf Tribunal seeking for an injunction. By then, the property was not notified to be the wakf property. The petitioner-Management Committee resisted O.S.No.88 of 2003. On 23.02.2008, the Wakf Tribunal dismissed O.S.No.88 of 2003 holding that the suit was laid to stall the adjudication proceedings in E.P.No.102 of 2003. 6. In the meanwhile, the Management Committee of the petitioner Darga passed a resolution and requested the Wakf Board to take over the institution. The Wakf Board accepted the request of the Management Committee and took over the institution of the petitioner, through gazette notification dated 06.01.2005. The schedule property thus became wakf property with effect from 06.01.2005. 7. Respondents 1 and 2 laid E.A.No.930 of 2006 in E.P.No.102 of 2003 that the property is a wakf property and that the civil Court has no jurisdiction to decide the eviction petition for the eviction of the tenant in the premises. The third respondent, who is the son of respondents 1 and 2, also impleaded himself as one of the respondents in E.A.No.930 of 2006. Through the impugned order, the execution Court allowed E.A.No.930 of 2006. Questioning the same, the Management Committee of the Darga laid CRP No.719 of 2007. 8. As already pointed out, the Wakf Tribunal dismissed O.S.No.88 of 2003 laid by the third respondent. Impugning the judgment in O.S.No.88 of 2003 by the Wakf Tribunal, the third respondent preferred CRP No.1844 of 2008. 9. Sri A.M. Qureshi, learned counsel for the third respondent raised a preliminary question that when the property is wakf property, the Civil Court has no jurisdiction to entertain the dispute and that it is only the Wakf Tribunal which is entitled to go into the question of the rival rights of the parties. 10. It may be recalled that by the time O.S.No.146 of 1998 was filed by the petitioner, the petitioner was not a wakf property. The petitioner became wakf property with effect from 06.01.2005 only on which date gazette notification was issued treating the petition schedule property as wakf property, which was at the behest of the Management Committee of the petitioner. Therefore, when the dispute between the petitioner and respondents 1 and 2 arose, the property was not wakf property. I, therefore, agree that the contention of Sri M.V.S. Suresh Kumar, learned counsel for the petitioner that the dispute is not within the exclusive jurisdiction of the Wakf Tribunal. On the other hand, I am satisfied that when the dispute was raised, it was within the exclusive jurisdiction of the civil Court to resolve the dispute between the petitioner and the respondents 1 and 2. Further, the learned counsel for the petitioner drew my attention to Ramesh Gobindram v. Sugra Humayun irza Wakf[1]. In that case, the Supreme Court held that the dispute relating to the eviction of a tenant in occupation of wakf property can be filed before a civil Court only and not before the Wakf Tribunal. It is the contention of the learned counsel for the petitioner that when the case was laid by the petitioner for the eviction of respondents 1 and 2 as tenants, whether the property is wakf property or otherwise, the dispute can be resolved only before a civil Court and that the decree in O.S.No.146 of 1998 by the Principal Junior Civil Judge, Adoni, therefore, was perfectly justified. Further, the learned counsel for the petitioner drew my attention to Section 7 (5) of the Wakf Act, 1995. Section 7 (5) of the Wakf Act adumbrates that the Wakf Tribunal shall not have jurisdiction to determine any dispute which is pending as a suit before a civil Court by the date of commencement of the Wakf Act. I, therefore, wholly agree with the contention of the learned counsel for the petitioner that the dispute was a question to be decided by the civil Court and not by the Wakf Tribunal. The impugned order in E.A.No.930 of 2006, consequently, is erroneous in holding that it is the Wakf Tribunal which shall deal with the execution proceedings in respect of the schedule property. The revision in CRP No.719 of 2007, therefore, deserves to be allowed overruling the objection raised by the third respondent in the revision. 11. The Wakf Tribunal elaborately dealt with the claim of the third respondent in its judgment in O.S.No.88 of 2003. Referring to Ex.A.6 certified copy of the judgment in A.S.No.15 of 1965, the claim of the third respondent that he was a mutawalli or muzawar of the petitioner had been rejected by the Wakf Tribunal. The evidence of DW.1 in O.S.No.88 of 2003 was found to be established that the schedule property is the wakf property of the management of the petitioner and that the third respondent herein has nothing to do with the same either as a mutawalli or as a muzawar. The third respondent is not able to produce any evidence in support of his claim that he is the mutawalli or muzawar and that he is entitled to squat over the petition schedule property. CRP No.2844 of 2008, therefore, deserves to be dismissed as not meritorious. 12. So far as the execution against respondents 1 and 2 covered by CRP No.719 of 2007 is concerned, the learned counsel for the third respondent pointed out that the petitioner’s tenure as the Management Committee for the Darga stood expired. Either the Wakf Board shall deal with the execution proceedings on behalf of the Darga or the new Management Committee shall seek for the implementation of the decree in O.S.No.146 of 1998. The learned counsel for the revision petitioner submitted that a request of the petitioner-Management Committee for the extension of the tenure of the Management Committee is pending with the Wakf Board. There is no doubt that the respondents 1 and 2 are encroachers and that they are liable to be evicted from the premises of the petitioner. It is equally evident that the third respondent has nothing to do with the premises as a tenant or otherwise. The only question is as to who shall proceed with the execution. 13. In the light of the representation of the learned counsel for the petitioner and the third respondent, it would be just and proper to permit the Wakf Board to continue the execution proceedings from the stage where they are. The Wakf Board certainly is at liberty to permit the petitioner to proceed with the execution, which the petitioner has undertaken till today. 14. The revision in CRP No.1844 of 2008 is found to be devoid of merits and it is dismissed. The revision in CRP No.719 of 2007 is disposed of directing the Wakf Board or its nominee including the Management Committee of the petitioner to proceed with the execution of the decree in O.S.No.146 of 1998 on the file of the Principal Junior Civil Judge, Adoni. In the circumstances of the case, there shall be no order as to costs. _______________ K.G. SHANKAR, J Date: 04.03.2011 Note: L.R. Copy marked (B/o.) Isn [1] 2010 (6) ALD 76 (SC)