Sheikh Akbar & Anr. vs Sheikh Mansur Ali & Ors.

Sabyasachi Bhattacharyya, J.:

The present appeal has been filed by the plaintiffs in a suit for partition.

Admittedly, half of the suit property is a wakf property whereas the other half is secular. The problem, however, is that there was never any demarcation or partition by metes and bounds in respect of the property in order to identify which half of the property belongs to the wakf estate and which is secular.

In such backdrop, the learned Trial Judge, by the impugned judgment, took up the issue of maintainability of the suit before the Civil Court as a preliminary issue under Order XIV Rule (2) of the Code of Civil Procedure and went on to observe, by relying on several judgments of the Hon’ble Supreme Court, that any dispute regarding title of the respective parties with regard to a wakf property is amenable to the jurisdiction of the wakf Tribunal and, as such, no civil suit is maintainable. Accordingly, the learned Trial Judge dismissed the suit on the ground of maintainability.

While doing so, the learned Trial Judge referred inter alia to the landmark judgment of W.B. Wakf Board vs. Anis Fatma Begum reported at (2010) 14 SCC 588 as well as the judgment rendered in Rashid Wali Beg vs. Farid Pindari reported at (2022) 4 SCC 414.

Learned counsel appearing for the plaintiffs/appellants cites Habib Alladin and Ors. vs. Mohammed Ahmed reported at 2026 SCC OnLine SC 119, where the Hon’ble Supreme Court considered both the aforementioned judgments as well as all other previous judgments holding the field and went on to analyse the scope of Sections 83 and 85 of the Wakf Act, as amended in 2013, and came to the conclusion that for the Tribunal to have jurisdiction, the dispute raised in the civil suit has to pertain to a wakf property which is found in a list of wakf, as specified in Sections 6 and 7 of the Wakf Act, 1995.

Learned counsel places reliance on the relevant paragraphs of the said judgment as well as Sections 83, 85, 6 and 7 of the said Act.

Learned counsel appearing for the defendants/respondents, on the other hand, submits that a compromise decree was entered into in respect of the part of the property which is the subject matter of the wakf in an earlier suit.

As such, it is argued that the suit specifically relates to a wakf property and the civil court does not have jurisdiction to entertain the suit.

Upon considering the arguments of the parties, we find that it is an admitted position that there is no specific demarcated portion, partitioned by metes and bounds, to segregate the part of the suit property which belongs to either the wakf property or the predecessor-in-interest of the appellants or the appellants, being secular.

In fact, the very filing of a partition suit implicitly contains the admission that the property is joint, all the co-sharers having right over every inch of the property. Thus, the wakf estate, which is the owner of half of the property, is also a co-owner of the property, having right, title and interest over every inch of the property, just as the appellants also claim to be.

In such context, the court is to ascertain the scope of adjudication and jurisdiction of the Tribunal in order to find out whether the learned Trial Judge was justified in dismissing the suit filed before the Civil Court, on the ground of maintainability.

The Hon’ble Supreme Court, in Habib Alladin (supra), considered all the previous judgments on the issue, including Anis Fatma (supra) and Ramesh Gobindram vs. Sugra Humayun Mirza Wakf reported at (2010) 8 SCC 726. Upon a thorough analysis of the said judgments, the Hon’ble Supreme Court was pleased to observe that Section 85 of the Wakf Act remained as such after the amendment of 2013 only bringing in cosmetic changes. Section 83, it was held, does not confer any jurisdiction on the Tribunal, either/or an omnibus consideration of a dispute, question or other matter related to a wakf or of wakf property, nor with respect to eviction of a tenant or determination of the rights and obligations of lessor and lessee of wakf property. It merely enables the constitution of the Tribunal and is the mere recital of what the Tribunal could do and is not an expansive conferment of power, especially considering the fact that the statute confers such powers under specific provisions. Yet again, Section 85, it was held, restricts the ouster of jurisdiction of the Civil Court etc. to those aspects which are required by or under that Act to be determined by the Tribunal. Hence, it was held, there is no absolute and all-pervasive ouster of jurisdiction of the Civil Court even under Section 85 of the Act of 1995. The Hon’ble Supreme Court went on to consider the definition of wakf under Section 85, 3(r) and held that the applicability of the Act of 1995 on all auqaf (Section 2) does not also determine jurisdiction.

On such premise, the Hon’ble Supreme Court came to the conclusion that the law declared in Ramesh Gobindram (supra), regarding the principle of jurisdiction conferred on the Tribunal under the Wakf Act, 1995 and the ouster of jurisdiction of the Civil Court under Section 85 of the said Act, holds good.

The Hon’ble Supreme Court finally observed that looking at the facts of the case at hand before the Supreme Court, a bare reading of the plaint would indicate that neither was the suit property specified in the list of auqaf as published under Chapter II nor registered under Chapter V and hence the decision as to whether the property was a wakf property or not could not be decided by the Tribunal since the property was not one specified in the list of auqaf, which is the mandatory requirement under Section 6(1) and Section 7(1) of the Wakf Act of 1995 to approach the Tribunal.

Since the aforesaid report dealt with all the earlier judgments and is the latest judgment holding the field, by necessary implication, the prevailing legal position is that the Tribunal does not have any jurisdiction unless the particular wakf property which is the subject matter of a dispute finds place in a list of auqaf.

Section 6 of the 1995 Act categorically provides that if any question arises whether a particular property specified as wakf property in the list of auqaf 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 aggrieved 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.

Again, Section 7 provides that if after the commencement of the Act, any question or dispute arises whether a particular property specified as wakf property in a list of auqaf 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 aggrieved by the publication of the list of auqaf under Section 5 may apply to the Tribunal having jurisdiction.

A mere perusal of Section 85 of the 1995 Act clearly indicates that the same merely debars the jurisdiction of Civil Courts in respect of disputes, questions and other matters relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal.

Thus, Section 85 precludes the jurisdiction of the Civil Court in only those matters which come within the domain of the jurisdiction of the Tribunal otherwise as per the contemplation of the 1995 Act.

The key provisions of the 1995 Act which determine the jurisdiction of the Tribunal are Sections 6 and 7 thereof, which have been referred to above. Thus, the bar under Section 85 has to be necessarily read in the context of the jurisdiction of the Tribunal in the first place, as delineated under Sections 6 and 7 of the 1995 Act.

As held by the Hon’ble Supreme Court in Habib Alladin (supra), Section 83 merely refers to the constitution of Tribunals and is not the jurisdiction provision in the Act.

On a thorough consideration of Sections 6 and 7, which are the ultimate determinants of the jurisdiction of the Tribunal, we find, in line with the view of the Hon’ble Supreme Court in Habib Alladin (supra), that for a dispute to be amenable to the jurisdiction of the Tribunal, it has necessarily to refer to a wakf property which is specified in a list of auqaf.

Within the four corners of either the plaint or the written statement in the case at hand, there is no mention of the disputed property featuring in any list of auqaf. Thus, it cannot be said at the preliminary stage that the Civil Court does not have jurisdiction to hear the suit.

In any event, the ambit of Order XIV Rule 2 of the Code of Civil Procedure is not attracted to the present case. The said provision enables the court to take up an issue as a preliminary issue only if it can be decided without taking further evidence and on the face of the pleadings, a bar of law being revealed ex facie.

However, in the present case, in order to ascertain jurisdiction, the matter is to be decided upon trial on evidence as to whether the suit property is the subject matter of a list of auqaf at all. Although such foundational fact is not pleaded by either party, it would not be proper to conclusively adjudicate on such issue at this early stage of the suit, since such question may even incidentally arise at the trial.

Hence, the impugned judgment is vitiated by the aforesaid error of law, having prematurely decided that the suit is barred before the Civil Court.

We also take note of the fact that Section 9 of the Code of Civil Procedure is an omnibus provision and unless there is a specific explicit or implied bar under any law, the Civil Court has blanket jurisdiction to take up all suits of a civil nature, which a partition suit otherwise is.

In view of the above, we are of the opinion that the impugned judgment needs to be set aside and the learned Trial Judge is required to decide the issue of whether the Civil Court has jurisdiction, at the time of trial on evidence, along with the other issues.

In such view of the matter, FA 149 of 2026 is allowed on contest, thereby setting aside the impugned judgment and decree dated April 25, 2025 passed by the learned Civil Judge (Senior Division), First Court at Tamluk, District – Purba Medinipur in Title Suit no. 141 of 2013 and remanding the matter to the learned Trial Judge for a fresh adjudication on the merits of the suit, including the question as to whether the suit is maintainable before the Civil Court in view of the bar under Section 85, read with Sections 6 and 7 of the Wakf Act, 1995. While framing the issue as to jurisdiction of the Civil Court, if raised by the defendants, the learned Trial Judge shall take into consideration whether the suit property or any part of it features in any list of auqaf as contemplated under Sections 6 and 7 of the 1995 Act and decide the said issue on evidence, if at all led by the parties, on the said question. The said issue shall be taken up as one of the issues along with the other issues at the time of final hearing of the suit.

We make it abundantly clear that this Court has not expressed any conclusive opinion as to whether the suit is maintainable or not before the Civil Court and it will be open to the learned Trial Judge to decide all issues, including the issue of maintainability, in the light of the above observations but independently and in accordance with law, without being unduly influenced by any of the observations made above.

Consequentially, CAN 2 of 2026 stands disposed of.

There will be no order as to costs.

A formal decree be drawn up accordingly.