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
-----------------------
13
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
-----------------------
13
