{1} ao7509.odt IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO.75 OF 2009 1 Smt.Harjindar Kaur w/o Avtarsingh, age: 64 years, Occ: Household, R/o Osmanpura, Aurangabad. 2 Manindar Singh d/o Avtarsingh, age: 50 years, Occ: Business, R/o Osmanpura, Aurangabad. 3 Inprindar Singh d/o Avtarsingh, age: 48 years, Occ: Business, R/o Osmanpura, Aurangabad. 4 Harpreet Singh d/o Avtarsingh, age: 43 years, Occ: Business, R/o Osmanpura, Aurangabad. 5 Kum.Manpreet Kaur d/o Avtarsingh, age: 30 years, Occ: Student, R/o Osmanpura, Aurangabad. Appellants Versus 1 The Marathwada Wakf Board, Panchakki, Aurangabad, through its Secretary, Shri Sk.Hussain. 2 Parvez Ahmad s/o Mohd. Aflaton Khan, age: years, Occ: Business, R/o Hussaini Art, Shahbazar, Aurangabad. 3 Fazillath Hussain s/o Dr.Mohd. Hussain Siddique, age: years, {2} ao7509.odt Occ: business, R/o Hussaini Art Shahabazar, Aurangabad. Respondents Mr.A.P.Bhandari, advocate for the appellants. Mr.M.B.W.Khan, advocate for respondent no.1. Respondents No.2 & 3 served through paper publication. CORAM : R.M.BORDE, J. DATE : 23 rd March, 2011 ORAL JUDGMENT: 1 Admit. Appeal is taken up forthwith and heard finally by consent of learned Counsel for respective parties. 2 The Appeal from Order is directed against the order passed by the Extra Joint District Judge, Aurangabad, on 02.09.2004 in Regular Civil Appeal No.209/2001, thereby the first appellate Court directed the appellants to take necessary steps on return of plaint for its presentation to the Wakf Tribunal. The judgment and decree passed by the trial Court came to be set aside. 3 The suit was presented by the respondents – original plaintiffs before the Civil Court claiming decree of declaration and recovery of possession of the property bearing House No. 6-15-113/P, out S.No.77, admeasuring 7 acres 22 gunthas, situate at Kala Chabutara, Aurangabad. It is alleged that the defendants have encroached upon an area to the extent of 73 x 96 feet out of {3} ao7509.odt CTS.No.17738. The suit presented by the plaintiffs was dismissed by the trial Court. As such, appeal came to be presented by original plaintiffs before the District Court, being R.C.A. No. 209/2001. 4 The first appellate Court has taken a view that the judgment in the matter was pronounced by the Civil Judge after enforcement of the Wakf Act and the appeal is presented to the District Court against a decree which has been passed after enforcement of the Wakf Act, which is not entertainable by the District Court. The first appellate Court was of the view that the bar contained in Wakf Act in respect of entertainability of the suit or other proceedings, by any other forum, except the Wakf Tribunal, apply to the pending proceedings or in respect of the proceedings initiated prior to enforcement of Wakf Act, but decided after its enforcement. 5 The view taken by the first appellate Court runs counter to the ratio laid down by the Apex Court in the matter of Sardar Khan & others Vs. Syed Najmul Hasan (Seth) & others, reported in AIR 2007 SC 1447. The Apex Court, on interpretation of provisions of sub-section (5) of Section 7 of the Wakf Act, has ruled that the pending proceedings before the Civil Court need not be transferred to the Wakf Tribunal and the bar contained in Section 85 in respect of entertainability of the suit or any other {4} ao7509.odt proceedings, by any other forum, except the Wakf Tribunal, does not apply to the pending proceedings. It is observed by the Apex Court that sub-section (5) of Section 7 carve out an exception in respect of the pending proceedings and those are required to be dealt with by the said forum only. The relevant observations are recorded in paragraphs 13 and 14 of the judgment, which read thus: 13 “.......... By sub-section (5) of Section 7, a special provision has been made that on pending suit or proceeding or appeal or review or revision, the Act will not be applicable. In the case of Syed Inamul Hag Shah (supra), the learned Single Judge only considered the effect of Section 85 but did not examine the effect of sub-section (5) of Section 7 and, on the basis of Section 85, it was held that all the proceedings which were pending before the Civil Court, the Civil Court will have no jurisdiction. With great respect, perhaps the attention of the learned Single Judge was not drawn to sub-section (5) of Section 7 which specifically provides an exception that this will not be applicable to the pending suits, appeals and revisions. It has purpose behind it that when Act was made prospective, how can it operate retrospectively, therefore, all pending matters were taken out from purview of this Act. 14 On a conjoint 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 {5} ao7509.odt revisions which have commenced prior to 1.1.1996, i.e., coming into force of the Wakf Act, 1995. Therefore, the view taken by the learned Single Judge was not correct in the case of Syed Inamul Hag Shah (supra). Hence, in view of the above discussion, we are of the view that the learned Single Judge has gone wrong in relying on the decision rendered by the Single Judge in the case of Syed Inamul Hag Shah (supra). Consequently, the impugned order passed by the learned Single Judge is set aside and the matter is remitted back to the High Court for deciding the appeal in accordance with law, expeditiously.” 6 In view of the pronouncement of the Apex Court in the judgment cited supra, instant Appeal from Order needs to be allowed. The first appellate Court shall have to deal with the appeal presented by the Respondents herein, in accordance with the provisions of law. 7 In the result, the Appeal from Order is allowed. The judgment and decree passed by the Extra Joint District Judge, Aurangabad on 02.09.2004 in Regular Civil Appeal No.209/2001 is quashed and set aside. The first appellate Court is directed to decide the appeal expeditiously in accordance with provisions of law. In the facts and circumstances of this case, there shall be no order as to costs. R.M.BORDE JUDGE