Punjab Wakf Board vs Mehar Singh and Others

Gurmeet Singh Sandhawalia, J.—The present Civil Misc. Application has been filed by the Punjab Wakf Board (hereinafter referred to as "the Board") for recalling of the order dated 30.9.2010 passed by a coordinate Bench of this court whereby on account of the statement made by the counsel, it had been permitted to withdraw the suit itself with liberty to file a fresh suit for possession before the competent Civil Court in view of the decision of the Apex Court in Ramesh Gobindram (dead) through Lrs. Vs. Sugra Humayun Mirza Wakf, AIR 2010 SC 2897 : (2010) 9 JT 206 : (2010) 8 SCC 726 : (2010) 10 SCR 945 : (2010) AIRSCW 5185 .

The averments made in the application now are that the respondents had denied the title of the land in question and therefore, the liberty which was granted was liable to be recalled and the matter was liable to be heard on merits. Reliance has also been placed upon the judgment of the Apex Court in a subsequent decision in Board of Wakf, West Bengal Vs. Anis Fatma Begum and Another, (2011) 111 CLT 528 : (2011) 1 CTC 636 : (2011) 1 RCR(Civil) 303 : (2010) 12 SCALE 323 . It is accordingly submitted that since there was a dispute as such regarding the title of the property, the Tribunal was the competent authority and the case should be decided on merits. It is further submitted that the judgment in Ramesh Gobindram''s case (supra) pertained to the issue of eviction of a tenant and in such circumstances, the Apex court had held that the Wakf Tribunal would have no jurisdiction and only the Civil Court would have jurisdiction. The judgments are accordingly sought to be distinguished.

Counsel for the respondents on the other hand submitted that there is no dispute regarding the nature of the property and once suit itself had been withdrawn on the statement of the counsel for the Board itself order was not liable to recalled and the issue can be thrashed out before the Civil Court.

A perusal of the judgment which was the subject matter of challenge passed by the Addl. District Judge, Yamuna Nagar at Jagadhari dated 1.4.2009 would go on to show that the case of the Board was for possession of the suit property measuring 138 Kanals 11 Marlas and recovery of the mesne profits on the strength of ownership of the property in question. Reference had also been made to the earlier suit decided on 24.12.1991 and the subsequent appeal dated 6.4.1995 and the Regular Second Appeal No. 983 of 1995 decided by this court on 11.12.1995.

Defendant No. 1 had contested the suit by taking the plea that he is in possession since 1965 and the Board was aware of the possession and the possession being hostile, the suit was time barred. It was admitted by the defendants regarding earlier suit and this court did not direct the defendants to surrender possession in RSA No. 983 of 1995. Similarly defendants No. 3 and 4 had also contested the suit on the ground that the Board had no right or title and land measuring 28 kanals 15 marlas was possessed since 16.6.1988 and prior to that Mehar Siingh was owner in possession. Issue No. 1 was framed on the question of ownership and a finding was recorded that due to adverse possession, the Board was not entitled to take possession as it had matured into ownership. Under issue No. 3 since proceedings were only initiated in the year 2000 the suit was held to be time barred and accordingly dismissed.

A perusal of the judgment dated 24.12.1991 passed in the suit filed by Mehar Singh-respondent No. 1 against the Board would go on to show that the suit for declaration had been filed regarding land measuring 143 kanals 19 marlas seeking a declaration that the plaintiff and defendants No. 3 to 47 in the said suit had become co-owners of the suit land on the basis of adverse and hostile possession. Reference was made to earlier litigation dated 9.12.1966. The trial Court had initially granted the said benefit but the same was reversed in the appeal on 6.4.1995 by the Addl. District Judge. Mehar Singh had approached this Court by filing RSA No. 983 of 1995 against the Board and this Court gave liberty to the Board to evict the appellants therein in accordance with law as they were in possession over a part of the land though unauthorised. The relevant portion of the order dated 11.12.1995 reads as under:-

"Heard. No ground to interfere with the well considered judgment of the Additional District Judge is made out. Dismissed. However, it is made clear that as Additional District Judge has come to a positive finding that the appellants are in possession over a part of land (though unauthorised) they shall be evicted only in due course of law."

Thus, it is apparent that there is no dispute as such regarding the title as contended by the counsel for the Board and it is only whether the Board has right to recover possession or not in view of the long possession of the defendant which is the sole question which will arise. In such circumstances, the order dated 30.9.2010 passed by a Coordinate Bench of this court is not liable to be recalled since in Ramesh Gobindram''s case (supra) it has been specifically held that the Tribunal has only to decide those questions which were referred under Section 6 and 7 of the Wakf Act, 1995. The said sections provide where the dispute is whether the wakf specified is Shia Wakf or Sunni Wakf which is to be decided by the Tribunal and whether the wakf specified such list and the Board or the mutawalli of the wakf or any person interested therein may institute a suit. The relevant observations read as under:-

"5. Before we take up the core issue whether the jurisdiction of Civil Court to entertain and adjudicate upon disputes regarding eviction of 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. 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 Civil Courts to try suits of civil nature is very expansive. Any statue 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 Civil Court''s jurisdiction is ousted.

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A 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 question (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 a Sunni wakf. The Board or the mutawalli of the wakf or any person interested in the wakf is competent to institute a suit in a Tribunal for a decision on the above question or questions, which decision shall then be final provided that no such suit can be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of wakfs.

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Second proviso to Section 7(1) accords finality to the judgments of the Civil Court in suits instituted before such commencement. Sub-section (5) to Section 7 excludes from the jurisdiction of the Tribunal any dispute which is the subject matter of a suit in a Civil Court instituted before the commencement of the Act.

From a conjoint reading of the provisions of Sections 6 and 7 (supra) 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 (supra) the institution of 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.

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The exclusion of the jurisdiction of the Civil Courts to adjudicate upon disputes whether a particular property specified in the wakf list is or is not a wakf property or whether a wakf specified in list is a Shia wakf or a Sunni wakf is clear and presents no difficulty whatsoever. The difficulty, however, arises on account of the fact that apart from Section 6(5) which bars the jurisdiction of the Civil Courts to determine matters referred to in Section 6(1), Section 85 of the Act also bars the jurisdiction of the Civil Courts to entertain any legal proceedings in respect of any dispute, question or matter relating to a wakf property. Section 85 of the Act reads:

"85. Bar of jurisdiction of Civil Courts - 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 a Tribunal."

A plain reading of the above would show that 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 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. Whenever a question arises whether "any dispute, question or other matter" relating to "any wakf or wakf property or other matter" falls within the jurisdiction of a Civil Court the answer would depend upon whether any such dispute, question or other matter is required under the Act to be determined by the Tribunal constituted under the Act. If the answer be in the affirmative, the jurisdiction of Civil Court would be excluded qua such a question, for in that case the Tribunal alone can entertain and determine any such question. The bar of jurisdiction contained in Section 85 is in that sense much wider than that contained in Section 6(5) read with Section 7 of the Wakf Act. While the latter bars the jurisdiction of the Civil Court only in relation of questions specified in Sections 6(1) and 7(1), the bar of jurisdiction contained in Section 85 would exclude the jurisdiction of the Civil Courts not only in relation to matters that specifically fall in Sections 6 and 7 but also other matters required to be determined by a Tribunal under the Act. There are a host of such matters in which the Tribunal exercises original or appellate jurisdiction. To illustrate the point we may usefully refer to some of the provisions of the Act where the bar contained in the said section would get attracted. Section 33 of the Act deals with the power of inspection by a Chief Executive Officer or person authorized by him. In the event of any failure or negligence on the part of a mutawalli in the performance of his duties leading to any loss or damage the Chief Executive Officer can with the prior approval of the Board pass an order for the recovery of the amount or property which has been misappropriated, misapplied or fraudulently retained. Sub-section (4) of Section 33 then entitles the aggrieved person to file an appeal to the Tribunal and empowers the Tribunal to deal with and adjudicate upon the validity of the orders passed by the Chief Executive Officer.

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There is, in our view, nothing in Section 83 to suggest that it pushes the exclusion of the jurisdiction of the Civil Courts extends 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. It is noteworthy that the expression "for the determination of any dispute, question or other 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 the 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. 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."

The above said judgment was noticed by the Apex Court in Board of Wakf, West Bengal Vs. Anis Fatma Begum and Another, (2011) 111 CLT 528 : (2011) 1 CTC 636 : (2011) 1 RCR(Civil) 303 : (2010) 12 SCALE 323 wherein there was a dispute regarding the wakf estate and the suit was filed in the High Court. The Apex Court held that the Wakf Tribunal would have jurisdiction and not the Civil Court and therefore, under Section 83(9) of the Wakf Act, 1995 the High Court was not correct in entertaining the dispute.

Similarly in Bhanwar Lal and Another Vs. Rajasthan Board of Muslim Wakf and Others, (2013) 10 AD 115 : AIR 2014 SC 758 : (2014) 117 CLT 408 : (2013) 4 RCR(Civil) 758 : (2013) 11 SCALE 210 , the application filed by the respondents in the civil suit for returning the plaint was allowed and the Civil Court returned the plaint on the ground of lack of jurisdiction. The High Court of Rajasthan dismissed the revision petition. The Apex Court held that the Tribunal had only to decide those disputes which were referred to in Sections 6 and 7 of the Wakf Act, 1995 and it was held that there was no dispute that the property in question was wakf property and therefore, the Civil Court would have jurisdiction and accordingly, the application for returning of plaint under Order 7 Rule 10 CPC was dismissed and the Civil Court was directed to decide the issue.

Similarly in Faseela M. Vs. Munnerul Islam Madrasa Committee and Another, AIR 2014 SC 2064 : (2014) AIRSCW 2503 : (2014) 7 JT 247 : (2014) 5 SCALE 531 , the Apex Court approved the earlier view taken and held that the suit for eviction of the landlord against the tenant relating to wakf property is triable by the Civil Court and is not a suit covered by the dispute mentioned under Sections 6 and 7 of the Wakf Act, 1995. The order of the Wakf Tribunal returning the plaint to the Civil Court was restored.

Accordingly, keeping in view the above settled position of law, the present application for recalling of order dated 30.9.2013 is without any basis and the same is dismissed in view of the liberty already granted.