published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40740
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7902 OF 2013
(Arising out of Special Leave Petition (Civil) No. 13215 of 2006)
Bhanwar Lal & Anr. ………Appellants
vs.
Rajasthan Board of Muslim Wakf & Ors. ……….Respondents
J U D G M E N T
A.K. SIKRI, J.
1. Leave granted.
2. The question that needs determination in the present appeal is
as to
whether Civil Court lacks the jurisdiction to entertain the suit
filed by the respondent herein or the subject matter of the suit lies
within the exclusive jurisdiction of the Tribunal constituted under
the Rajasthan Wakf Act, 1995 (hereinafter to be referred as the
‘Act’), having regard to the provisions of Section 85 of the Act.
Though the suit was filed by the Respondent in the Civil Court, it is
on the application of the Respondent itself stating that the suit was
not maintainable in view of the bar contained in Section 85 of the
Act, the Civil Court returned the plaint accepting the said contention
of the Respondent. The Petitioners herein, who were the Defendants in
the suit, challenged the order of the Civil Court by filing Revision
Petition under Section 115 of the Code of Civil Procedure in the High
Court of Judicature for Rajasthan, at Jodhpur. The said Revision
Petition is also dismissed by the impugned orders. It is how the
present proceedings arise, questioning the validity of the orders of
the High Court.
3. The facts around which the controversy is involved do not
require big canvass and are re-capitulated herein below:
The property in dispute which is the subject matter of
litigation, is situated in the town of Nagaur in the State of
Rajasthan and is in the possession of the petitioners herein.
Respondent No. 1 is the Rajasthan
Board of Muslim Wakf and Respondent No. 2 is the Muslim Board
Committee. Both the Respondents claimed that the subject property is
the Wakf Property. These Respondents, filed the Civil Suit in the year
1980 for possession of the said property as well as for rendition of
accounts against the petitioners herein claiming it to be a wakf
property. On coming to know, after filing of the suit, that one
trustee Mr. Naimuddin S/o Abdul Bari had sold the property to the
petitioners vide sale deed dated 28.2.1983, the Respondent Nos. 1 & 2
amended the plaint by adding the relief of declaration to the effect
that the said sale deed dated 28.2.1983 was invalid.
4. The Petitioners filed the written statement and contested the
suit raising number of defences. The Trial Court, i.e. the
Additional District Judge, framed the following issues on 4.8.1984:
(i) Whether Haveli and the land of compound including the land
underneath the measurements of which have been given in
paragraph-3 of the plain, are Wakf Property?
(ii) Whether the sale deed executed by Defendant No. 1 in
favour of Defendant No. 3 regarding the Haveli and the land
of the compound dated 22.06.1960 for Rs. 400/- is invalid
because the property is Wakf Property?
(iii) Whether the sale deeds in favour of Defendants No. 4 and 5
are invalid with respect to Haveli and the land of the
compound because the property is Wakf Property?
(iv) Whether the sale deed executed by defendant Naimuddin in
favour of defendant No. 5 on 28.2.1983 is invalid.
(v) Whether the plaintiffs are entitled to file the present
suit?
(vi) Whether the suit is barred by limitation?
(vii) Whether Court Fee insufficient?
(viii) Relief.
5. The suit, thereafter, went on trial. All the parties led their
evidence, though it took considerable time. When the matter was ready
for final hearing, on 2.12.2000, the Respondent Nos. 1 & 2 filed the
application under Section 85 of the Act raising the contention that
the suit in question could not be tried by the Civil Court as the
jurisdiction of the Civil Court was barred. Prayer was made that the
plaint filed by them may be returned to be presented before the
Tribunal constituted under the Act, which alone had the jurisdiction
to try the suit.
6. Their application was allowed by the learned Additional District
Judge vide orders dated 4.1.2001 holding that the question whether the
property in question was Wakf Property or not, could be decided only
by the Tribunal and Section 85 of the Act specifically barred the
jurisdiction of Civil Court. In the Revision Petition filed by the
petitioners challenging the validity of the orders of the Additional
District Judge, the High Court has concurred with this view, stating
that the position in law in this behalf was settled by the judgment of
the Rajasthan High Court in Syed Inamul Haq Shah vs. State of
Rajasthan and Anr.; AIR 2001 Raj 19. In the short order of two
paragraphs referring to the aforesaid judgment, the Revision Petition
has been dismissed.
7. Learned Counsel for the appellant, at the outset, drew our
attention to the judgment of this Court whereby the said judgment of
the High Court has been overruled. The judgment in this Court is
reported as 2007 (10) SCC 727 titled Sardar Khan and Os. vs. Syed
Nazmul Hasan (Seth) and Ors. He, thus submitted that since the very
foundation of the impugned judgment stood demolished in view of
overruling of the said judgment by this Court, the order of the High
Court needs to be set aside.
8. To this extent submission of the learned Counsel for the
appellant is correct. As pointed above, without any discussion of its
own, the High Court has simply relied upon its earlier judgment in
Syed Inamul Haq (supra) and dismissed the Revision Petition.
Therefore, while setting aside the impugned order, we could have
remitted the case back to the High Court to decide the Revision
Petition afresh. However, learned Counsel for both the parties
submitted that the question of jurisdiction be decided by this Court
so that this aspect attains finality, more so when the lis is pending
for quite some time. Conceding to this prayer of both the parties,
we heard the matter on the aforesaid question in detail. We now
propose to answer this question of jurisdiction, as formulated in the
beginning.
9. We have already mentioned the subject matter of the suit filed
by the Respondent Nos. 1 & 2 herein, which is predicated on the plea
that the suit property is Wakf Property. On this basis it is pleaded
in the suit that the sale deed in favour of the Petitioners is null
and void as Mr. Naimuddin who purportedly executed sale deed dated
22.9.1983 in favour of the Petitioner No. 2 had no authority to do so.
As a consequence, the Respondent Nos. 1 & 2 maintain that the
petitioners are in unauthorized possession of the Property.
Possession of the said property alongwith rendition of accounts are
the other reliefs claims in the suit.
10. Rajasthan Wakf Act, 1995, governs the Wakf properties in the
said State. The Tribunal is constituted under this Act and is inter
alia empowered to determine suits regarding wakfs as laid down under
Section 7 of the Act. Therefore, we would like to reproduce here
Section 7 of the said Act.
7. Power of Tribunal to determine disputes regarding wakfs –
(1) If, after the commencement of this Act, any question
arises, whether a particular property specified as wakf
property in a list of wakfs is wakf property or not, or
whether a wakf specified in such list is a Shia wakf or a
Sunni wakf, the Board or the mutawalli of the wakf, or any
person interested therein, may apply to the Tribunal having
jurisdiction in relation to such property, for the decision
of the question and the decision of the Tribunal thereon
shall be final:
Provided that-
(a) in the case of the list of wakfs relating to any part
of the State and published after the commencement of
this Act no such application shall be entertained
after the expiry of one year from the date of
publication of the list of wakfs.
(b) in the case of the list of wakfs relating to any part
of the State and published at any time within a
period of one year immediately preceding the
commencement of this Act, such an application may be
entertained by Tribunal within the period of one year
from such commencement:
Provided further that where any such question has been heard and
finally decided by a civil court in a suit instituted before
such commencement, the Tribunal shall not re-open such question.
(2) Except where the Tribunal has no jurisdiction by reason of
the provision of sub-section (5), no proceeding under this
Section in respect of any wakf shall be stayed by any
court, tribunal or other authority by reason only of the
pendency of any suit, application or appeal or other
proceeding arising out of any such suit, application,
appeal or other proceeding.
(3) The Chief Executive Officer shall not be mad a party to
any application under sub-section (1).
(4) The list of wakfs and where any such list is modified in
pursuance of a decision of the Tribunal under sub-section
(1), the list as so modified, shall be final.
(5) 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 91) of section 6, before the commencement of
this Act or which is the 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”.
Section 85 of the Act barred the jurisdiction of the Civil Court
to decide such issues. Section 85 reads as under:
“85. Bar of Jurisdiction of Civil Courts. – No suit or
other legal proceeding shall lie in any Civil Court in
respect of any dispute, question or 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”.
11. As per Sub-section (1) and Section 7 of the Act, if any question
arises, whether a particular property specified as wakf property in a
list of wakfs is wakf property or not, it is the Tribunal which has to
decide such a question and the decision of the tribunal is made final.
When such a question is covered under sub-section (1) of Section 7,
then obviously the jurisdiction of the Civil Court stands concluded
to decide such a question in view of specific bar contained in Section
85. It would be pertinent to mention that, as per sub-section (5) of
Section 7, if a suit or proceeding is already pending in a Civil Court
before the commencement of the Act in question, then such proceedings
before the Civil Court would continue and the Tribunal would not have
any jurisdiction.
12. On a conjoint reading of Section 7 and Section 85, legal
position is summed up as under:
i) In respect of the questions/ disputes mentioned in
sub-section (1) of Section 7, exclusive jurisdiction vests
with the tribunal, having jurisdiction in relation to such
property.
ii) Decision of the tribunal thereon is made final.
iii) The jurisdiction of the Civil Court is barred in respect of
any dispute/ question or other matter relating to any wakf,
wakf property for other matter, which is required by or
under this Act, to be determined by a tribunal,
iv) There is however an exception made under Section 7(5) viz.,
those matters which are already pending before the Civil
Court, even if the subject matter is covered under sub
section (1) of section 6, the Civil Court would not
continue and the tribunal shall have the jurisdiction to
determine those matters.
13. Present suit was instituted in the year 1980, i.e. much before
the Rajasthan Wakf Act, 1995 was enacted. Therefore, if the subject
matter is covered by sub-section (1) of Section 6, the jurisdiction of
Civil Court remains by virtue of Section 5 of the Act. To enable us to
find an answer to this, the provisions of Section 5 and 6 also become
relevant and need to be noticed at this juncture. Before that, we
would like to state the scheme of chapter II of the Act which contains
all these Sections including Section 7 Chapter II starts with Section
4.
14. Under Section 4 of the Act, power is given to the Survey
Commissioner to conduct survey and make enquiries for discerning
whether particular properties are wakf properties or not. After making
the enquiries, the Survey Commissioner, who is given the powers of
Civil Court under the Code of Civil Procedure in respect of certain
matters specified under Section 4 (4) of the Act, makes a report to
the State Government. On receipt of such a report under sub-section
(3) of section 4 of the Act, the State Government has to forward a
copy of the same to Wakf Board as stipulated under Section 5(1) of the
Act. The Wakf Board is required to examine this report, as provided
under sub-section (2) of section 5 of the Act and is to publish in the
official gazette a list of Sunni wakfs or Shia wakfs in the State,
whether in existence at the commencement of this Act or coming into
existence thereafter. If any dispute arises in respect of wakfs list
which is published in the official gazette under section 5 of the Act,
the Board or the mutawalli of the wakf or any person interested
therein is given a right to institute a suit in a tribunal. This
remedy is provided under Section 6 of the Act, Section 6 of the Act
which reads as under:
Xxxxxx
“6. Disputes regarding wakfs. –
(1) If any question arises whether a particular property
specified as wakf property in the list of wakfs is wakf
property or not or whether a wakf specified in such list is
a Shia 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 the question and the
decision of the tribunal in respect of such matter shall be
final.
Provided that no such suit shall be entertained by the
tribunal afer the expiry of one year from the date of the
publication of the list of wakfs.
(2) Notwithstanding anything contained in sub-section
(1), no proceeding under this Act in respect of any wakf
shall be stayed by reason only of the pendency of any such
suit or of any appeal or other proceeding arising out of
such suit.
(3) The Survey Commissioner shall not be made a party to
any suit under sub-section (1) and no suit, prosecution or
other legal proceeding shall lie against him in respect of
anything which is in good faith done or intended to be done
in pursuance of this Act or any rules made thereunder.
(4) The list of wakfs shall, unless it is modified in
pursuance of a decision or the Tribunal under sub-section
(1), be final and conclusive.
(5) On and from the commencement of this Act in a State,
no suit or other legal proceeding shall be instituted or
commenced in a Court in that State in relation to any
question referred to in sub-section (1)”.
15. The subject matter of the suit which can be filed before the
tribunal, relates to the list of Wakfs as published in Section 5. If
any dispute arises in respect of the said list namely whether the
property specified in the said list is Wakf property or not or it is
Shia wakf or Sunni wakf, suit can be filed for decision on these
questions. Sub-section (5) of section 7 saves the jurisdiction of
those suits, subject matter whereof is covered by sub- section (1) of
section 6, which were instituted before the commencement of said suit.
Keeping in view this legal framework, we have to answer this issue
that has arisen.
16. Before we deal with controversy at hand, we would like to
discuss some judgments of this Court that may have bearing on the
issue.
First case that needs mention is Sardar Khan and Ors. vs. Syed
Nazmul Hasan (Seth) and Ors.; 2007 (4) Scale 81; 2007 (10) SCC 727. In
that case Civil Suit was filed by the plaintiffs (Respondents in the
Supreme Court) in the year 1976 in the Court of Additional District
Judge, Jaipur which was dismissed. The plaintiffs filed the appeal
before the High Court taking the plea that by virtue of Section 85 of
the Act, the Civil Court failed to have any jurisdiction in the matter
and, therefore, judgment and decree passed by the learned Additional
District Judge was without jurisdiction. This appeal was allowed
accepting the contention of the Respondents. Challenging the order of
the High Court, the appellants had filed the Special Leave Petition in
which leave was granted and the appeal was heard by this Court. The
Court took into consideration the provisions of Sections 6, 7 and 85
of the Act and concluded that the said Act will not be applicable to
the pending suits or proceedings or appeals or revisions which had
commenced prior to 1.1.1996 as provided in sub-section (5) of Section
7 of the Act and allowed the appeal holding that Civil Court will
continue to have the jurisdiction in respect of the cases filed before
coming into force Wakf Act, 1995.
17. The provisions of Andhra Pradesh Wakf Act, 1995 which are
identical in nature, came up for consideration again in the case of
Ramesh Gobindram (Dead) Through LRs v. Sugra Humayun Mirza Wakf; 2010
(8) SCC 726. The question which was posed for determination was:
“Whether the Wakf Tribunal constituted under Section 83 of the
Act, 1995 was competent to entertain and adjudicate upon
disputes regarding eviction of the appellants who are occupying
different items of what are admittedly wakf properties?”
18. Suits for eviction were filed before the Wakf Tribunal which had
held that it had the jurisdiction to entertain those suits and after
adjudication had decreed the suits filed by the Respondent – Sugra
Humayun Mirza Wakf. The tenants/ appellant filed revision petitions
against that order before the High Court of Andhra Pradesh which
dismissed the revision petition, affirming the view of the Wakf
Tribunal regarding its jurisdiction. Against the order of the High
Court, the appellant approached this Court. The Court noticed that in
few judgments High Court of Andhra Pradesh had taken the view that the
Tribunal established under Section 83 of the Wakf Act is competent to
entertain and adjudicate upon all kinds of disputes so long as the
same relate to any Wakf Property. Similar views were expressed by the
High Court of Rajasthan, Madhya Pradesh, Kerala as well as Punjab and
Haryana High Court. However, in the judgments rendered by the High
Courts of Karnataka, Madras, Allahabad and Bombay a contrary view was
taken. This Court, after detailed analysis of the provisions of the
Act, affirmed the view taken by the High Court of Karnataka and other
High Courts and held that the judgment of the High Court of Andhra
Pradesh etc. was incorrect in law. It was categorically noted that the
Tribunal established under Section 83 of the Act had the limited
jurisdiction to deal only with those matters which had been provided
for in Section 5, Section 6(5), Section 7 and 85 of the Act and the
jurisdiction of Civil Court to deal with matters not covered by these
Sections was not ousted in respect of other matters. The court
exhaustively dealt with the provisions of Sections 6 and 7 of the Act
in order to determine the scope of jurisdiction of the Tribunal. It
noted that the plain reading of sub-section (5) of section 6 (supra)
would show that the civil court’s jurisdiction to entertain any suit
or other proceedings stands specifically excluded in relation to any
question referred to in sub-section(1). The exclusion, it is evident
from the language employed, is not absolute or all pervasive. It is
limited to the adjudication of the questions (a) whether a particular
property specified as wakf property in the list of wakfs is or is not
a wakf property, and (b) whether a wakf specified in such list is a
shia wakf or sunni wakf. It was also expressed that from a
conjoint reading of the provisions of Sections 6 and 7 of the Act, it
is clear that the jurisdiction to determine whether or not a property
is a wakf property or whether a wakf is a shia wakf or a sunni wakf
rests entirely with the Tribunal and no suit or other proceeding can
be instituted or commenced in a civil court in relation to any such
question after the commencement of the Act. What is noteworthy is that
under Section 6 read with Section 7 of the Act, the institution of a
suit in the civil court is barred only in regard to questions that are
specifically enumerated therein. The bar is not complete so as to
extend to other questions that may arise in relation to the wakf
property. It further noted that under Section 85 of the Act, the
civil court’s jurisdiction is excluded only in cases where the matter
in dispute is required under the Act to be determined by the Tribunal.
The words “which is required by or under this Act to be determined by
a Tribunal” holds the key to the question whether or not all disputes
concerning the wakf or wakf property stand excluded from the
jurisdiction of the civil court. The Court thus, concluded that the
jurisdiction of civil courts to try eviction cases was not excluded.
Rather, the aforesaid provisions of the Act did not include such
disputes to fall within the jurisdiction of the Wakf Tribunal, and
therefore the Wakf Tribunal did not have the jurisdiction to deal with
eviction matters. For better appreciation of the issue decided in the
said judgment, we reproduce hereunder the relevant discussion:
“31. It is clear from sub-section (1) of Section 83 above that
the State Government is empowered to establish as many
Tribunals as it may deem fit for the determination of any
dispute, question or other matter relating to a wakf or
wakf property under the Act and define the local limits of
their jurisdiction. Sub – section (2) of Section 83
permits any mutawalli or other person interested in a wakf
or any person aggrieved of an order made under the Act or
the Rules framed there under to approach the Tibunal for
determination of any dispute, question or other mater
relating to the wakf. What is important is that the
Tribunal can be approached only if the person doing so is
a mutawalli or a person interested in a wakf or aggrieved
by an order made under the Act or the Rules. The remaining
provisions of Section 83 provide for the procedure that
the Tribunal shall follow and the manner in which the
decision of a Tribunal shall be executed. No appeal is,
however, maintainable against any such order although the
High Court may call for the records and decide about the
correctness, legality or propriety of any determination
made by the Tribunal.
32. There is, in our view, nothing in Section 83 to suggest
that it pushes the exclusion of the jurisdiction of the
civil courts extends (sic) beyond what has been provided
for in Section 6(5), Section 7 and Section 85 of the Act.
It simply empowers the Government to constitute a Tribunal
or Tribunals for determination of any dispute, question of
other matter relating to a wakf or wakf property which
does not ipso facto mean that the jurisdiction of the
civil courts stands completely excluded by reasons of such
establishment.
33. It is noteworthy that the expression “for the
determination of any dispute, question or to her matter
relating to a wakf or wakf property “ appearing in Section
83(1) also appears in Section 85 of the Act. Section 85
does not, however, exclude the jurisdiction of civil
courts in respect of any or every question or disputes
only because the same relates to a wakf or a wakf
property. Section 85 in terms provides that the
jurisdiction of the civil court shall stand excluded in
relation to only such matters as are required by or under
this Act to be determined by the Tribunal.
34. The crucial question that shall have to be answered in
every case where a plea regarding exclusion of the
jurisdiction of the civil court is raised is whether the
Tribunal is under the Act or the Rules required to deal
with the matter sought to be brought before a civil court.
If it is not, the jurisdiction of the civil court is not
excluded. But if the Tribunal is required to decide the
matter the jurisdiction of the civil court would stand
excluded.
35. In the cases at hand, the Act does not provide for any
proceedings before the Tribunal for determination of a
dispute concerning the eviction of a tenant in occupation
of a wakf property or the rights and obligations of the
lessor and the lessees of such property. A suit seeking
eviction of the tenants from what is admittedly wakf
property could, therefore, be filed only before the civil
court and not before the Tribunal.
19. It would also be profitable to refer to that part of the
judgment where the Court gave guidance and the need for a particular
approach which is required to deal with such cases. In this behalf
the Court specified the modalities as under:
“11. Before we take up the core issue whether the jurisdiction
of a civil court to entertain and adjudicate upon disputes
regarding eviction of (sic from) wakf property stands
excluded under the Wakf Act, we may briefly outline the
approach that the courts have to adopt while dealing with
such questions.
12. The well-settled rule in this regard is that the civil
courts have the jurisdiction to try all suits of civil
nature except those entertainment whereof is expressly or
impliedly barred. The jurisdiction of the civil courts to
try suits of civil nature is very expansive. Any statute
which excludes such jurisdiction is, therefore, an
exception to the general rule that all disputes shall be
triable by a civil court. Any such exception cannot be
readily inferred by the courts. The court would lean in
favour of a construction that would uphold the retention of
jurisdiction of the civil courts and shift the onus of
proof to the party that asserts that the civil court’s
jurisdiction is ousted.
13. Even in cases where the statute accords finality to the
orders passed by the Tribunals, the court will have to see
whether the Tribunal has the power to grant the reliefs
which the civil courts would normally grant in suits filed
before them. If the answer is in the negative, exclusion of
the civil court’s jurisdiction would not be ordinarily
inferred. In Rajasthan SRTC v. Bal Mukund Bairwa, a three-
Judge Bench of this Court observed
“There is a presumption that a civil court has
jurisdiction. Ouster of civil court’s jurisdiction is
not to be readily inferred. A person taking a plea
contra must establish the same. Even in a case where
the jurisdiction of a civil court is sought to be
barred under a statute, the civil court can exercise
its jurisdiction in respect of some matters
particularly when the statutory authority or tribunal
acts without jurisdiction.”
20. Another aspect of this Act came up for consideration in the case
of Board of Wakf, West Bengal & Anr. v. Anis Fatma Begum & Anr. (2010)
14 SCC 588. The subject matter of the dispute in that case related to
the demarcation of the wakf property in two distinctive parts, one for
wakf-al-al-aulad and the remaining portion for pious and religious
purposes. The demarcation was challenged on the ground that it was not
in consonance with the provisions of the Wakf Deed. The Court held
that it is the Tribunal constituted under Section 83 of the Act which
will have exclusive jurisdiction to deal with these questions in as
much as these questions pertained to determination of disputes
relating to wakf property and the jurisdiction of Civil Court was
ousted.
21. As per the ratio in Ramesh Gobindram (Supra) the exclusive
jurisdiction lies with the Tribunal to decide only those disputes
which are referred to in section 6 and 7. Further, jurisdiction of
Civil Courts is barred only in respect of such matters and the matters
which are not covered by Section 6 and 7 of the Act. Moreover, in view
of the judgment in Sardar Khan’s case, the suits which are already
pending before coming into force the Wakf Act, 1995 will remain in
civil court which will continue to have jurisdiction.
22. On the basis of the aforesaid principles we proceed to discuss
the present case. Interestingly, as per the Respondents themselves
there is no dispute that the property in question is a wakf property.
It is argued by the learned Counsel for the Respondents that even
before the trial court, the appellant had accepted that the disputed
property is wakf property (Though issues framed suggest otherwise).
This is so recorded in para 3 of the orders passed by the trial court
while deciding the application of the respondent for returning of the
plaint.
23. The suit is for cancellation of sale deed, rent and for
possession as well as rendition of accounts and for removal of
trustees. However, pleading in the suit are not filed before us and,
therefore, exact nature of relief claimed as well as averments made in
the plaint or written statements are not known to us. We are making
these remarks for the reason that some of the reliefs claimed in the
suit appeared to be falling within the exclusive jurisdiction of the
Tribunal whereas for other reliefs civil suit would be competent.
Going by the ratio of Ramesh Gobind Ram (supra), suit for possession
and rent is to be tried by the civil court. However, suit pertaining
to removal of trustees and rendition of accounts would fall within the
domain of the Tribunal. In so far as relief of cancellation of sale
deed is concerned this is to be tried by the civil court for the
reason that it is not covered by Section 6 or 7 of the Act whereby any
jurisdiction is conferred upon the Tribunal to decided such an issue.
Moreover, relief of possession, which can be given by the civil
court, depends upon the question as to whether the sale deed is valid
or not. Thus, the issue of sale deed and possession and inextricably
mixed with each other. We have made these observations to clarify the
legal position. In so far as present case is concerned, since the
suit was filed much before the Act came into force, going by the dicta
laid down in Sardar Khan case, it is the civil court where the suit
was filed will continue to have the jurisdiction over the issue and
civil court would be competent to decide the same.
24. We, thus, allow the appeal and set aside the impugned judgment
of the High Court thereby dismissing the application filed by the
respondent under Order 7 Rule 10 of the C.P.C. with the direction to
the civil court to decide the suit.
25. No costs.
….……………………..J.
[K.S. RADHAKRISHNAN]
………………………….J.
[A.K. SIKRI]
New Delhi
9th September, 2013
[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7902 OF 2013
(Arising out of Special Leave Petition (Civil) No. 13215 of 2006)
Bhanwar Lal & Anr. ………Appellants
vs.
Rajasthan Board of Muslim Wakf & Ors. ……….Respondents
J U D G M E N T
A.K. SIKRI, J.
1. Leave granted.
2. The question that needs determination in the present appeal is
as to
whether Civil Court lacks the jurisdiction to entertain the suit
filed by the respondent herein or the subject matter of the suit lies
within the exclusive jurisdiction of the Tribunal constituted under
the Rajasthan Wakf Act, 1995 (hereinafter to be referred as the
‘Act’), having regard to the provisions of Section 85 of the Act.
Though the suit was filed by the Respondent in the Civil Court, it is
on the application of the Respondent itself stating that the suit was
not maintainable in view of the bar contained in Section 85 of the
Act, the Civil Court returned the plaint accepting the said contention
of the Respondent. The Petitioners herein, who were the Defendants in
the suit, challenged the order of the Civil Court by filing Revision
Petition under Section 115 of the Code of Civil Procedure in the High
Court of Judicature for Rajasthan, at Jodhpur. The said Revision
Petition is also dismissed by the impugned orders. It is how the
present proceedings arise, questioning the validity of the orders of
the High Court.
3. The facts around which the controversy is involved do not
require big canvass and are re-capitulated herein below:
The property in dispute which is the subject matter of
litigation, is situated in the town of Nagaur in the State of
Rajasthan and is in the possession of the petitioners herein.
Respondent No. 1 is the Rajasthan
Board of Muslim Wakf and Respondent No. 2 is the Muslim Board
Committee. Both the Respondents claimed that the subject property is
the Wakf Property. These Respondents, filed the Civil Suit in the year
1980 for possession of the said property as well as for rendition of
accounts against the petitioners herein claiming it to be a wakf
property. On coming to know, after filing of the suit, that one
trustee Mr. Naimuddin S/o Abdul Bari had sold the property to the
petitioners vide sale deed dated 28.2.1983, the Respondent Nos. 1 & 2
amended the plaint by adding the relief of declaration to the effect
that the said sale deed dated 28.2.1983 was invalid.
4. The Petitioners filed the written statement and contested the
suit raising number of defences. The Trial Court, i.e. the
Additional District Judge, framed the following issues on 4.8.1984:
(i) Whether Haveli and the land of compound including the land
underneath the measurements of which have been given in
paragraph-3 of the plain, are Wakf Property?
(ii) Whether the sale deed executed by Defendant No. 1 in
favour of Defendant No. 3 regarding the Haveli and the land
of the compound dated 22.06.1960 for Rs. 400/- is invalid
because the property is Wakf Property?
(iii) Whether the sale deeds in favour of Defendants No. 4 and 5
are invalid with respect to Haveli and the land of the
compound because the property is Wakf Property?
(iv) Whether the sale deed executed by defendant Naimuddin in
favour of defendant No. 5 on 28.2.1983 is invalid.
(v) Whether the plaintiffs are entitled to file the present
suit?
(vi) Whether the suit is barred by limitation?
(vii) Whether Court Fee insufficient?
(viii) Relief.
5. The suit, thereafter, went on trial. All the parties led their
evidence, though it took considerable time. When the matter was ready
for final hearing, on 2.12.2000, the Respondent Nos. 1 & 2 filed the
application under Section 85 of the Act raising the contention that
the suit in question could not be tried by the Civil Court as the
jurisdiction of the Civil Court was barred. Prayer was made that the
plaint filed by them may be returned to be presented before the
Tribunal constituted under the Act, which alone had the jurisdiction
to try the suit.
6. Their application was allowed by the learned Additional District
Judge vide orders dated 4.1.2001 holding that the question whether the
property in question was Wakf Property or not, could be decided only
by the Tribunal and Section 85 of the Act specifically barred the
jurisdiction of Civil Court. In the Revision Petition filed by the
petitioners challenging the validity of the orders of the Additional
District Judge, the High Court has concurred with this view, stating
that the position in law in this behalf was settled by the judgment of
the Rajasthan High Court in Syed Inamul Haq Shah vs. State of
Rajasthan and Anr.; AIR 2001 Raj 19. In the short order of two
paragraphs referring to the aforesaid judgment, the Revision Petition
has been dismissed.
7. Learned Counsel for the appellant, at the outset, drew our
attention to the judgment of this Court whereby the said judgment of
the High Court has been overruled. The judgment in this Court is
reported as 2007 (10) SCC 727 titled Sardar Khan and Os. vs. Syed
Nazmul Hasan (Seth) and Ors. He, thus submitted that since the very
foundation of the impugned judgment stood demolished in view of
overruling of the said judgment by this Court, the order of the High
Court needs to be set aside.
8. To this extent submission of the learned Counsel for the
appellant is correct. As pointed above, without any discussion of its
own, the High Court has simply relied upon its earlier judgment in
Syed Inamul Haq (supra) and dismissed the Revision Petition.
Therefore, while setting aside the impugned order, we could have
remitted the case back to the High Court to decide the Revision
Petition afresh. However, learned Counsel for both the parties
submitted that the question of jurisdiction be decided by this Court
so that this aspect attains finality, more so when the lis is pending
for quite some time. Conceding to this prayer of both the parties,
we heard the matter on the aforesaid question in detail. We now
propose to answer this question of jurisdiction, as formulated in the
beginning.
9. We have already mentioned the subject matter of the suit filed
by the Respondent Nos. 1 & 2 herein, which is predicated on the plea
that the suit property is Wakf Property. On this basis it is pleaded
in the suit that the sale deed in favour of the Petitioners is null
and void as Mr. Naimuddin who purportedly executed sale deed dated
22.9.1983 in favour of the Petitioner No. 2 had no authority to do so.
As a consequence, the Respondent Nos. 1 & 2 maintain that the
petitioners are in unauthorized possession of the Property.
Possession of the said property alongwith rendition of accounts are
the other reliefs claims in the suit.
10. Rajasthan Wakf Act, 1995, governs the Wakf properties in the
said State. The Tribunal is constituted under this Act and is inter
alia empowered to determine suits regarding wakfs as laid down under
Section 7 of the Act. Therefore, we would like to reproduce here
Section 7 of the said Act.
7. Power of Tribunal to determine disputes regarding wakfs –
(1) If, after the commencement of this Act, any question
arises, whether a particular property specified as wakf
property in a list of wakfs is wakf property or not, or
whether a wakf specified in such list is a Shia wakf or a
Sunni wakf, the Board or the mutawalli of the wakf, or any
person interested therein, may apply to the Tribunal having
jurisdiction in relation to such property, for the decision
of the question and the decision of the Tribunal thereon
shall be final:
Provided that-
(a) in the case of the list of wakfs relating to any part
of the State and published after the commencement of
this Act no such application shall be entertained
after the expiry of one year from the date of
publication of the list of wakfs.
(b) in the case of the list of wakfs relating to any part
of the State and published at any time within a
period of one year immediately preceding the
commencement of this Act, such an application may be
entertained by Tribunal within the period of one year
from such commencement:
Provided further that where any such question has been heard and
finally decided by a civil court in a suit instituted before
such commencement, the Tribunal shall not re-open such question.
(2) Except where the Tribunal has no jurisdiction by reason of
the provision of sub-section (5), no proceeding under this
Section in respect of any wakf shall be stayed by any
court, tribunal or other authority by reason only of the
pendency of any suit, application or appeal or other
proceeding arising out of any such suit, application,
appeal or other proceeding.
(3) The Chief Executive Officer shall not be mad a party to
any application under sub-section (1).
(4) The list of wakfs and where any such list is modified in
pursuance of a decision of the Tribunal under sub-section
(1), the list as so modified, shall be final.
(5) 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 91) of section 6, before the commencement of
this Act or which is the 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”.
Section 85 of the Act barred the jurisdiction of the Civil Court
to decide such issues. Section 85 reads as under:
“85. Bar of Jurisdiction of Civil Courts. – No suit or
other legal proceeding shall lie in any Civil Court in
respect of any dispute, question or 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”.
11. As per Sub-section (1) and Section 7 of the Act, if any question
arises, whether a particular property specified as wakf property in a
list of wakfs is wakf property or not, it is the Tribunal which has to
decide such a question and the decision of the tribunal is made final.
When such a question is covered under sub-section (1) of Section 7,
then obviously the jurisdiction of the Civil Court stands concluded
to decide such a question in view of specific bar contained in Section
85. It would be pertinent to mention that, as per sub-section (5) of
Section 7, if a suit or proceeding is already pending in a Civil Court
before the commencement of the Act in question, then such proceedings
before the Civil Court would continue and the Tribunal would not have
any jurisdiction.
12. On a conjoint reading of Section 7 and Section 85, legal
position is summed up as under:
i) In respect of the questions/ disputes mentioned in
sub-section (1) of Section 7, exclusive jurisdiction vests
with the tribunal, having jurisdiction in relation to such
property.
ii) Decision of the tribunal thereon is made final.
iii) The jurisdiction of the Civil Court is barred in respect of
any dispute/ question or other matter relating to any wakf,
wakf property for other matter, which is required by or
under this Act, to be determined by a tribunal,
iv) There is however an exception made under Section 7(5) viz.,
those matters which are already pending before the Civil
Court, even if the subject matter is covered under sub
section (1) of section 6, the Civil Court would not
continue and the tribunal shall have the jurisdiction to
determine those matters.
13. Present suit was instituted in the year 1980, i.e. much before
the Rajasthan Wakf Act, 1995 was enacted. Therefore, if the subject
matter is covered by sub-section (1) of Section 6, the jurisdiction of
Civil Court remains by virtue of Section 5 of the Act. To enable us to
find an answer to this, the provisions of Section 5 and 6 also become
relevant and need to be noticed at this juncture. Before that, we
would like to state the scheme of chapter II of the Act which contains
all these Sections including Section 7 Chapter II starts with Section
4.
14. Under Section 4 of the Act, power is given to the Survey
Commissioner to conduct survey and make enquiries for discerning
whether particular properties are wakf properties or not. After making
the enquiries, the Survey Commissioner, who is given the powers of
Civil Court under the Code of Civil Procedure in respect of certain
matters specified under Section 4 (4) of the Act, makes a report to
the State Government. On receipt of such a report under sub-section
(3) of section 4 of the Act, the State Government has to forward a
copy of the same to Wakf Board as stipulated under Section 5(1) of the
Act. The Wakf Board is required to examine this report, as provided
under sub-section (2) of section 5 of the Act and is to publish in the
official gazette a list of Sunni wakfs or Shia wakfs in the State,
whether in existence at the commencement of this Act or coming into
existence thereafter. If any dispute arises in respect of wakfs list
which is published in the official gazette under section 5 of the Act,
the Board or the mutawalli of the wakf or any person interested
therein is given a right to institute a suit in a tribunal. This
remedy is provided under Section 6 of the Act, Section 6 of the Act
which reads as under:
Xxxxxx
“6. Disputes regarding wakfs. –
(1) If any question arises whether a particular property
specified as wakf property in the list of wakfs is wakf
property or not or whether a wakf specified in such list is
a Shia 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 the question and the
decision of the tribunal in respect of such matter shall be
final.
Provided that no such suit shall be entertained by the
tribunal afer the expiry of one year from the date of the
publication of the list of wakfs.
(2) Notwithstanding anything contained in sub-section
(1), no proceeding under this Act in respect of any wakf
shall be stayed by reason only of the pendency of any such
suit or of any appeal or other proceeding arising out of
such suit.
(3) The Survey Commissioner shall not be made a party to
any suit under sub-section (1) and no suit, prosecution or
other legal proceeding shall lie against him in respect of
anything which is in good faith done or intended to be done
in pursuance of this Act or any rules made thereunder.
(4) The list of wakfs shall, unless it is modified in
pursuance of a decision or the Tribunal under sub-section
(1), be final and conclusive.
(5) On and from the commencement of this Act in a State,
no suit or other legal proceeding shall be instituted or
commenced in a Court in that State in relation to any
question referred to in sub-section (1)”.
15. The subject matter of the suit which can be filed before the
tribunal, relates to the list of Wakfs as published in Section 5. If
any dispute arises in respect of the said list namely whether the
property specified in the said list is Wakf property or not or it is
Shia wakf or Sunni wakf, suit can be filed for decision on these
questions. Sub-section (5) of section 7 saves the jurisdiction of
those suits, subject matter whereof is covered by sub- section (1) of
section 6, which were instituted before the commencement of said suit.
Keeping in view this legal framework, we have to answer this issue
that has arisen.
16. Before we deal with controversy at hand, we would like to
discuss some judgments of this Court that may have bearing on the
issue.
First case that needs mention is Sardar Khan and Ors. vs. Syed
Nazmul Hasan (Seth) and Ors.; 2007 (4) Scale 81; 2007 (10) SCC 727. In
that case Civil Suit was filed by the plaintiffs (Respondents in the
Supreme Court) in the year 1976 in the Court of Additional District
Judge, Jaipur which was dismissed. The plaintiffs filed the appeal
before the High Court taking the plea that by virtue of Section 85 of
the Act, the Civil Court failed to have any jurisdiction in the matter
and, therefore, judgment and decree passed by the learned Additional
District Judge was without jurisdiction. This appeal was allowed
accepting the contention of the Respondents. Challenging the order of
the High Court, the appellants had filed the Special Leave Petition in
which leave was granted and the appeal was heard by this Court. The
Court took into consideration the provisions of Sections 6, 7 and 85
of the Act and concluded that the said Act will not be applicable to
the pending suits or proceedings or appeals or revisions which had
commenced prior to 1.1.1996 as provided in sub-section (5) of Section
7 of the Act and allowed the appeal holding that Civil Court will
continue to have the jurisdiction in respect of the cases filed before
coming into force Wakf Act, 1995.
17. The provisions of Andhra Pradesh Wakf Act, 1995 which are
identical in nature, came up for consideration again in the case of
Ramesh Gobindram (Dead) Through LRs v. Sugra Humayun Mirza Wakf; 2010
(8) SCC 726. The question which was posed for determination was:
“Whether the Wakf Tribunal constituted under Section 83 of the
Act, 1995 was competent to entertain and adjudicate upon
disputes regarding eviction of the appellants who are occupying
different items of what are admittedly wakf properties?”
18. Suits for eviction were filed before the Wakf Tribunal which had
held that it had the jurisdiction to entertain those suits and after
adjudication had decreed the suits filed by the Respondent – Sugra
Humayun Mirza Wakf. The tenants/ appellant filed revision petitions
against that order before the High Court of Andhra Pradesh which
dismissed the revision petition, affirming the view of the Wakf
Tribunal regarding its jurisdiction. Against the order of the High
Court, the appellant approached this Court. The Court noticed that in
few judgments High Court of Andhra Pradesh had taken the view that the
Tribunal established under Section 83 of the Wakf Act is competent to
entertain and adjudicate upon all kinds of disputes so long as the
same relate to any Wakf Property. Similar views were expressed by the
High Court of Rajasthan, Madhya Pradesh, Kerala as well as Punjab and
Haryana High Court. However, in the judgments rendered by the High
Courts of Karnataka, Madras, Allahabad and Bombay a contrary view was
taken. This Court, after detailed analysis of the provisions of the
Act, affirmed the view taken by the High Court of Karnataka and other
High Courts and held that the judgment of the High Court of Andhra
Pradesh etc. was incorrect in law. It was categorically noted that the
Tribunal established under Section 83 of the Act had the limited
jurisdiction to deal only with those matters which had been provided
for in Section 5, Section 6(5), Section 7 and 85 of the Act and the
jurisdiction of Civil Court to deal with matters not covered by these
Sections was not ousted in respect of other matters. The court
exhaustively dealt with the provisions of Sections 6 and 7 of the Act
in order to determine the scope of jurisdiction of the Tribunal. It
noted that the plain reading of sub-section (5) of section 6 (supra)
would show that the civil court’s jurisdiction to entertain any suit
or other proceedings stands specifically excluded in relation to any
question referred to in sub-section(1). The exclusion, it is evident
from the language employed, is not absolute or all pervasive. It is
limited to the adjudication of the questions (a) whether a particular
property specified as wakf property in the list of wakfs is or is not
a wakf property, and (b) whether a wakf specified in such list is a
shia wakf or sunni wakf. It was also expressed that from a
conjoint reading of the provisions of Sections 6 and 7 of the Act, it
is clear that the jurisdiction to determine whether or not a property
is a wakf property or whether a wakf is a shia wakf or a sunni wakf
rests entirely with the Tribunal and no suit or other proceeding can
be instituted or commenced in a civil court in relation to any such
question after the commencement of the Act. What is noteworthy is that
under Section 6 read with Section 7 of the Act, the institution of a
suit in the civil court is barred only in regard to questions that are
specifically enumerated therein. The bar is not complete so as to
extend to other questions that may arise in relation to the wakf
property. It further noted that under Section 85 of the Act, the
civil court’s jurisdiction is excluded only in cases where the matter
in dispute is required under the Act to be determined by the Tribunal.
The words “which is required by or under this Act to be determined by
a Tribunal” holds the key to the question whether or not all disputes
concerning the wakf or wakf property stand excluded from the
jurisdiction of the civil court. The Court thus, concluded that the
jurisdiction of civil courts to try eviction cases was not excluded.
Rather, the aforesaid provisions of the Act did not include such
disputes to fall within the jurisdiction of the Wakf Tribunal, and
therefore the Wakf Tribunal did not have the jurisdiction to deal with
eviction matters. For better appreciation of the issue decided in the
said judgment, we reproduce hereunder the relevant discussion:
“31. It is clear from sub-section (1) of Section 83 above that
the State Government is empowered to establish as many
Tribunals as it may deem fit for the determination of any
dispute, question or other matter relating to a wakf or
wakf property under the Act and define the local limits of
their jurisdiction. Sub – section (2) of Section 83
permits any mutawalli or other person interested in a wakf
or any person aggrieved of an order made under the Act or
the Rules framed there under to approach the Tibunal for
determination of any dispute, question or other mater
relating to the wakf. What is important is that the
Tribunal can be approached only if the person doing so is
a mutawalli or a person interested in a wakf or aggrieved
by an order made under the Act or the Rules. The remaining
provisions of Section 83 provide for the procedure that
the Tribunal shall follow and the manner in which the
decision of a Tribunal shall be executed. No appeal is,
however, maintainable against any such order although the
High Court may call for the records and decide about the
correctness, legality or propriety of any determination
made by the Tribunal.
32. There is, in our view, nothing in Section 83 to suggest
that it pushes the exclusion of the jurisdiction of the
civil courts extends (sic) beyond what has been provided
for in Section 6(5), Section 7 and Section 85 of the Act.
It simply empowers the Government to constitute a Tribunal
or Tribunals for determination of any dispute, question of
other matter relating to a wakf or wakf property which
does not ipso facto mean that the jurisdiction of the
civil courts stands completely excluded by reasons of such
establishment.
33. It is noteworthy that the expression “for the
determination of any dispute, question or to her matter
relating to a wakf or wakf property “ appearing in Section
83(1) also appears in Section 85 of the Act. Section 85
does not, however, exclude the jurisdiction of civil
courts in respect of any or every question or disputes
only because the same relates to a wakf or a wakf
property. Section 85 in terms provides that the
jurisdiction of the civil court shall stand excluded in
relation to only such matters as are required by or under
this Act to be determined by the Tribunal.
34. The crucial question that shall have to be answered in
every case where a plea regarding exclusion of the
jurisdiction of the civil court is raised is whether the
Tribunal is under the Act or the Rules required to deal
with the matter sought to be brought before a civil court.
If it is not, the jurisdiction of the civil court is not
excluded. But if the Tribunal is required to decide the
matter the jurisdiction of the civil court would stand
excluded.
35. In the cases at hand, the Act does not provide for any
proceedings before the Tribunal for determination of a
dispute concerning the eviction of a tenant in occupation
of a wakf property or the rights and obligations of the
lessor and the lessees of such property. A suit seeking
eviction of the tenants from what is admittedly wakf
property could, therefore, be filed only before the civil
court and not before the Tribunal.
19. It would also be profitable to refer to that part of the
judgment where the Court gave guidance and the need for a particular
approach which is required to deal with such cases. In this behalf
the Court specified the modalities as under:
“11. Before we take up the core issue whether the jurisdiction
of a civil court to entertain and adjudicate upon disputes
regarding eviction of (sic from) wakf property stands
excluded under the Wakf Act, we may briefly outline the
approach that the courts have to adopt while dealing with
such questions.
12. The well-settled rule in this regard is that the civil
courts have the jurisdiction to try all suits of civil
nature except those entertainment whereof is expressly or
impliedly barred. The jurisdiction of the civil courts to
try suits of civil nature is very expansive. Any statute
which excludes such jurisdiction is, therefore, an
exception to the general rule that all disputes shall be
triable by a civil court. Any such exception cannot be
readily inferred by the courts. The court would lean in
favour of a construction that would uphold the retention of
jurisdiction of the civil courts and shift the onus of
proof to the party that asserts that the civil court’s
jurisdiction is ousted.
13. Even in cases where the statute accords finality to the
orders passed by the Tribunals, the court will have to see
whether the Tribunal has the power to grant the reliefs
which the civil courts would normally grant in suits filed
before them. If the answer is in the negative, exclusion of
the civil court’s jurisdiction would not be ordinarily
inferred. In Rajasthan SRTC v. Bal Mukund Bairwa, a three-
Judge Bench of this Court observed
“There is a presumption that a civil court has
jurisdiction. Ouster of civil court’s jurisdiction is
not to be readily inferred. A person taking a plea
contra must establish the same. Even in a case where
the jurisdiction of a civil court is sought to be
barred under a statute, the civil court can exercise
its jurisdiction in respect of some matters
particularly when the statutory authority or tribunal
acts without jurisdiction.”
20. Another aspect of this Act came up for consideration in the case
of Board of Wakf, West Bengal & Anr. v. Anis Fatma Begum & Anr. (2010)
14 SCC 588. The subject matter of the dispute in that case related to
the demarcation of the wakf property in two distinctive parts, one for
wakf-al-al-aulad and the remaining portion for pious and religious
purposes. The demarcation was challenged on the ground that it was not
in consonance with the provisions of the Wakf Deed. The Court held
that it is the Tribunal constituted under Section 83 of the Act which
will have exclusive jurisdiction to deal with these questions in as
much as these questions pertained to determination of disputes
relating to wakf property and the jurisdiction of Civil Court was
ousted.
21. As per the ratio in Ramesh Gobindram (Supra) the exclusive
jurisdiction lies with the Tribunal to decide only those disputes
which are referred to in section 6 and 7. Further, jurisdiction of
Civil Courts is barred only in respect of such matters and the matters
which are not covered by Section 6 and 7 of the Act. Moreover, in view
of the judgment in Sardar Khan’s case, the suits which are already
pending before coming into force the Wakf Act, 1995 will remain in
civil court which will continue to have jurisdiction.
22. On the basis of the aforesaid principles we proceed to discuss
the present case. Interestingly, as per the Respondents themselves
there is no dispute that the property in question is a wakf property.
It is argued by the learned Counsel for the Respondents that even
before the trial court, the appellant had accepted that the disputed
property is wakf property (Though issues framed suggest otherwise).
This is so recorded in para 3 of the orders passed by the trial court
while deciding the application of the respondent for returning of the
plaint.
23. The suit is for cancellation of sale deed, rent and for
possession as well as rendition of accounts and for removal of
trustees. However, pleading in the suit are not filed before us and,
therefore, exact nature of relief claimed as well as averments made in
the plaint or written statements are not known to us. We are making
these remarks for the reason that some of the reliefs claimed in the
suit appeared to be falling within the exclusive jurisdiction of the
Tribunal whereas for other reliefs civil suit would be competent.
Going by the ratio of Ramesh Gobind Ram (supra), suit for possession
and rent is to be tried by the civil court. However, suit pertaining
to removal of trustees and rendition of accounts would fall within the
domain of the Tribunal. In so far as relief of cancellation of sale
deed is concerned this is to be tried by the civil court for the
reason that it is not covered by Section 6 or 7 of the Act whereby any
jurisdiction is conferred upon the Tribunal to decided such an issue.
Moreover, relief of possession, which can be given by the civil
court, depends upon the question as to whether the sale deed is valid
or not. Thus, the issue of sale deed and possession and inextricably
mixed with each other. We have made these observations to clarify the
legal position. In so far as present case is concerned, since the
suit was filed much before the Act came into force, going by the dicta
laid down in Sardar Khan case, it is the civil court where the suit
was filed will continue to have the jurisdiction over the issue and
civil court would be competent to decide the same.
24. We, thus, allow the appeal and set aside the impugned judgment
of the High Court thereby dismissing the application filed by the
respondent under Order 7 Rule 10 of the C.P.C. with the direction to
the civil court to decide the suit.
25. No costs.
….……………………..J.
[K.S. RADHAKRISHNAN]
………………………….J.
[A.K. SIKRI]
New Delhi
9th September, 2013
