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Friday, May 26, 2017

Section 85 of the Act which deals with the Bar of jurisdiction of Civil Court provides that no suit or other legal proceedings 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 the Tribunal.= whether the suit land is a Wakf property or not. Plaintiff says that it is a Wakf property whereas the defendants say that it is not the Wakf property but it is their self property. This question, in our opinion, can be decided only by the Tribunal and not by the Civil Court Second, once the property is declared to be a Wakf property, a fortiori, whether the sale of such property is made by a person not connected with the affairs of the Wakf or by a person dealing with the affairs of the Wakf, the same becomes void by virtue of Section 51 of the Act unless it is proved that it was made after obtaining prior permission of the Board as provided under the Act. One cannot dispute that the matters falling under Sections 51 and 52 of the Act are also required to be decided by the Tribunal and hence jurisdiction of the Civil Court to decide such matters is also barred by virtue of provisions contained in Section 85 of the Act.

           REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                       CIVIL APPEAL No.  6310 OF 2017
                   (ARISING OUT OF SLP (C) No.13251/2014)

Rajasthan Wakf Board                ….Appellant(s)

                             VERSUS

Devki Nandan Pathak & Ors.        …Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    Leave granted.
2)    This appeal is filed by defendant No.6 against the final judgment  and
order  dated  30.01.2014  passed  by  the  High  Court  of  Judicature   for
Rajasthan,  Bench at Jaipur in CRP No.400 of 2001  whereby  the  High  Court
allowed the revision petition filed by the respondent Nos.1 to 5 herein  and
set aside the order  dated  22.02.2001  passed  by  the  Presiding  Officer,
Rajasthan Wakf Tribunal, Jaipur,  wherein  the  Tribunal  decreed  the  suit
filed by the plaintiff-respondent No.6 herein against defendant Nos. 1 to  5
in respect of the suit land.
3)    In order to appreciate the issue involved in the  appeal,  which  lies
in a narrow compass, it is necessary to state the relevant facts infra.
4)    The appellant herein is defendant No. 6 whereas respondent Nos.  1  to
5 are defendant Nos. 1 to 5 and respondent No. 6 is the plaintiff in a  suit
out of which this appeal arises.
5)    The appellant is a Wakf Board registered  under  the  Waqf  Act,  1995
(hereinafter referred to as “the Act”).  It has an office at Jaipur  in  the
State of Rajasthan.
6)    There is a property called  "Kauria  Wali  Masjid"  situated  in  Town
Hindaun, Tehsil Hindaun Barpara District Karauli,  Rajasthan.  The  property
is registered as "Wakf" at Serial No. 23, Page No.116 in the  list  of  Wakf
published under Section 5 of the Act. Respondent No. 6 is  the  Mutawali  of
the Masjid.
7)    On 05.06.1998, respondent No.5 claiming to be the owner  of  the  land
situated adjacent to “Kauria Wali Masjid” property measuring 37  feet  x  34
feet (hereinafter called the “suit land”) sold to respondent Nos.1 to  4  by
deed of  sale.  This  sale  gave  rise  to  the  dispute  between  the  Wakf
represented by respondent No. 6 on the one hand and Respondent  Nos.1  to  5
on the other.
8)    Respondent No.6 filed a suit against respondent Nos.1  to  5  and  the
appellant before the Rajasthan Wakf Tribunal at Jaipur.  The  foundation  on
which respondent No. 6  (plaintiff)  filed  the  suit  for  claiming  relief
therein, inter alia, was that the “suit land” is the Wakf  property  or,  in
other words, a part of the Wakf property and hence respondent No.5,  who  is
an individual and unconnected with the affairs of the Wakf,  had  no  right,
title and interest to sell the suit land to anyone much less  to  respondent
Nos.1 to 4.  It was alleged that the sale of the suit land  was  equally  in
contravention of Section 51 of the Act and  hence  the  same  was  void  and
illegal (para  7  of  the  plaint).  It  was  also  alleged  that  even  the
plaintiff, who is a Mutawali of the Masjid (wakf), had no right to sell  the
Wakf property or/and any of its part without  following  the  due  procedure
prescribed under the Act.  Respondent  No.6,  therefore,  claimed  a  relief
that firstly, respondent Nos.1 to  4  (defendant  Nos.1  to  4)  should  not
forcibly take possession of the suit land and in the alternate the  sale  in
question be declared void.
9)    Respondent Nos.1 to 5 filed  the  written  statement  and  denied  the
claim set up by respondent No.6 in the plaint. According to them,  the  suit
land was neither the Wakf property and nor a part of any Wakf property.   It
was alleged that respondent No.5 being the owner of the suit land had  every
right to sell the suit land to respondent Nos.1 to 4 and  which  he  did  by
executing the sale deed.  It was also  alleged  that  the  Tribunal  has  no
jurisdiction to try the suit and the remedy of  the  plaintiff  is  to  file
civil suit before the Civil Court for  claiming  appropriate  reliefs.   The
Tribunal, on the basis of the pleadings, framed  the  following  issues  for
adjudication:
“1. Whether the plaintiff is entitled to file   the case?

 2. Whether the property in suit is the part of Masjid Kauria Wali?

3.  Whether this Board has no jurisdiction to entertain this case?

4. Whether the case is time barred?

5. To what relief the plaintiff is entitled?”

10)   The parties adduced evidence. By order dated 22.02.2001, the  Tribunal
decreed the suit and accordingly passed an order  against  respondent  Nos.1
to 5.  It was held that firstly, the Tribunal has the  jurisdiction  to  try
the suit; secondly, the plaintiff (respondent No.6) is the Mutawali  of  the
Wakf property and, therefore, competent to file the suit in relation to  the
suit land; and thirdly, the suit land is the  Wakf  property  or,  in  other
words, a part of the Wakf property and, therefore, it is  subjected  to  the
Wakf Act.
11)   Felt aggrieved,  respondent  Nos.1  to  5  filed  the  revision  under
Section 83(9) of the Act in the High Court. By impugned  order,  the  Single
Judge of the High Court allowed the revision and set aside the order of  the
Tribunal on the ground that the Tribunal had  no  jurisdiction  to  try  the
suit and the remedy of respondent No.6 (plaintiff) was to  file  civil  suit
before the Civil Court. The High  Court,  therefore,  did  not  examine  the
merits of the issues arising in the case.
12)   Felt aggrieved, defendant No.6-Wakf Board filed this appeal by way  of
special leave petition questioning  the  legality  and  correctness  of  the
order of the High Court.
13)   Heard Mr. Salman Khurshid, learned senior counsel  for  the  appellant
and Mr. Nitin Bhardwaj and Mr. Praveen Chaturvedi, learned counsel  for  the
respondents.
14)    Mr.  Salman  Khurshid,  learned  senior  counsel  appearing  for  the
appellant-Wakf Board while assailing the legality  and  correctness  of  the
impugned order contended that the High  Court  erred  in  holding  that  the
Tribunal did not have jurisdiction to try the suit out of which this  appeal
arises.
15)    According to him, reading the averments  made  in  the  plaint  as  a
whole would clearly go to show that the suit filed before the  Tribunal  was
maintainable and, therefore,  it  was  rightly  tried  and  decreed  by  the
Tribunal on merits holding the suit land to be the Wakf property.
16)   Learned counsel urged that the basic question, which was  required  to
be decided in the suit as would be clear from issue No. 2, was  whether  the
suit land is a Wakf property or, in other words, whether it  is  a  part  of
Wakf property or not.  Learned counsel pointed out from the  pleadings  that
it has been the case of the plaintiff  (respondent  No.6  herein)  that  the
suit land has all along been  the  part  of  the  Wakf  property  and  hence
neither respondent No.5 nor anyone had any right to sell the  said  land  so
long as the procedure prescribed under the Act for sale of such property  is
followed.
17)   Learned counsel pointed out that under the  Scheme  of  the  Act,  the
question as to whether a particular property is a Wakf property or  not  has
to be tried and decided by the Tribunal under Section 83 of the Act and  the
jurisdiction of the Civil Court to decide such question is expressly  barred
by Section 85 of the Act.
18)   Learned counsel, therefore, urged that the impugned  order  should  be
set aside by holding that the Tribunal  has  the  jurisdiction  to  try  and
decide the suit and the matter be accordingly remitted  to  the  High  Court
for deciding the revision on merits with a view to decide as to whether  the
Tribunal was justified in holding the suit land to be part of Wakf  property
or not.
19)   In reply, learned counsel for the respondents (defendant Nos. 1 to  5)
supported the impugned order  and  contended  that  it  does  not  need  any
interference and the same be upheld by dismissing the appeal.
20)   Having heard learned counsel for the parties and  on  perusal  of  the
record of the case, we find force in the submission of the  learned  counsel
for the appellant.
21)   The main question that arises for  consideration  in  this  appeal  is
whether the High Court was justified  in  holding  that  the  suit  was  not
capable of being tried by the Tribunal under Section 83 of the Act  and  the
remedy of the plaintiff was to file a civil suit before the Civil Court.
22)   The Waqf Act, 1995 was amended by The Wakf (Amendment) Act, 2013  (Act
No. 27/2013). Since the case at hand is governed by the  unamended  Act,  we
take  note  of  some  of  the  relevant  unamended  provisions  of  the  Act
hereinbelow.
23)     Section  51  of  the  Act  provides  that  notwithstanding  anything
contained in the Wakf Deed, any gift, sale,  exchange  or  mortgage  of  any
immovable property, which is a Wakf property, shall be  void  unless  it  is
effected with the prior sanction  of  the  Board.  Section  52  of  the  Act
empowers the Board to approach the  Collector  of  the  District  to  obtain
possession of such Wakf property, which is  alienated  in  contravention  of
Section 51 or Section 56 of the Act. It also provides a right of  appeal  to
the Tribunal against the order of the Collector passed under  Section  52(2)
of the Act. Section 54 of the Act provides that the Chief Executive  Officer
to  approach  the  Tribunal  to  seek  an  order  of  eviction  against  any
encroacher of the Wakf property.
24)   Section 83 of the Act empowers the Tribunal to determine any  dispute,
question or other matter relating to a Waqf  or  Wakf  property  under  this
Act. Section 85 of the Act which deals  with  the  Bar  of  jurisdiction  of
Civil Court provides that no suit or other legal proceedings  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 the Tribunal.
25)      Reading  the  averments  made  in  the  plaint  in  the  light   of
aforementioned sections, we are of the considered opinion that the  Tribunal
was right in its view in holding that it had the  jurisdiction  to  try  the
suit on merits whereas the High Court was not so in holding the otherwise.
26)   In other words, we are  of  the  view  that  the  Tribunal  does  have
jurisdiction to decide the question arising in the suit filed by  respondent
No.6 and, therefore, the Tribunal rightly tried  the  suit  on  merits.  The
reasons are not far to seek.
27)    In the first place, the  main  question  involved  in  the  suit  was
whether the suit land is a Wakf property or not. Plaintiff says that  it  is
a Wakf property whereas the defendants say that it is not the Wakf  property
but it is their self  property.  This  question,  in  our  opinion,  can  be
decided only by the Tribunal and not by the Civil Court as has been  decided
by this Court consistently in  Ramesh  Gobindram  vs.  Sugra  Hamayun  Mirza
Waqf, (2010) 8 SCC 726 and Bhanwar Lal & Anr. Vs. Rajasthan Board of  Muslim
Wakf & Ors., (2014) 16 SCC 51).  Second, once the property  is  declared  to
be a Wakf property, a fortiori, whether the sale of such  property  is  made
by a person not connected with the affairs  of  the  Wakf  or  by  a  person
dealing with the affairs of the Wakf, the same becomes  void  by  virtue  of
Section 51 of the Act unless it is proved that it was made  after  obtaining
prior permission of the Board as provided under the Act. One cannot  dispute
that   the matters falling under Sections 51 and 52  of  the  Act  are  also
required to be decided by the Tribunal and hence jurisdiction of  the  Civil
Court to decide  such  matters  is  also  barred  by  virtue  of  provisions
contained in Section 85 of the Act.
28)   In the light of foregoing discussion, we are  unable  to  concur  with
the reasoning and the conclusion arrived at by the High  Court  as  we  find
that the High  Court  while  deciding  the  question  did  not  examine  the
question in its  proper  perspective  keeping  in  view  the  aforementioned
provisions, their scope and the law laid down in the cases  referred  supra.

29)   As a result, the appeal succeeds and is allowed.  The  impugned  order
is set aside.
30)   As a consequence thereof, the matter is remanded  to  the  High  Court
for deciding the revision afresh on merits with  a  view  to  decide  as  to
whether the findings of the  Tribunal  on  merits  by  which  the  suit  was
decreed are correct or not?
31)   We, however, make it clear that we have not expressed any  opinion  on
the merits of the case and  hence  the  High  Court  would  now  decide  the
revision  expeditiously  on  merits  strictly   in   accordance   with   law
uninfluenced by any of our observations.

                                    ………...................................J.
                       [R.K. AGRAWAL]


…...……..................................J.
                               [ABHAY MANOHAR SAPRE]     New Delhi;
May 04, 2017
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