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Judgment
The present civil revision petition is filed challenging the order passed by the trial Court, dismissing the application filed by the petitioner seeking rejection of the plaint.
The respondents/plaintiffs filed a suit, seeking declaration of their possessory right over the suit properties and for consequential injunction restraining the petitioners / defendants 1 to 3 from interfering with plaintiffs peaceful possession and enjoyment over the suit properties.
According to the plaintiffs, the suit properties were gifted to their forefathers by the erstwhile owners and they have been in possession and enjoyment of the same for several generations.
The petitioners / defendants 1 to 3 filed instant application seeking rejection of the plaint on the ground that the suit properties belong to Thiruvithancode Muslim Jamath and hence, the same is a Waqf property. In such circumstances, in view of Section 83 read with Section 85 of Waqf Act, the jurisdiction of the Civil Court is ousted.
The trial Court dismissed the application seeking rejection of the plaint and aggrieved by the same, the petitioners / defendants 1 to 3 has come before this Court.
The learned counsel appearing for the petitioners / defendants 1 to 3 would submit the suit properties were included in the pro forma prepared by the Waqf Board and in such circumstances, there is a prima facie material to come to a conclusion that the suit properties are Waqf properties, since there is a dispute with regard to the question whether suit properties are a Waqf properties or not, the same can only be decided by the Waqf Tribunal. Therefore, according to the learned counsel, the trial Court, without appreciating the legal position, dismissed the application.
In Habib Alladdin and Others vs. Mohammed Ahmed, VS Mohammed Ahmed, reported in 2026 LiveLaw (SC) 88, the Hon'ble Supreme Court has held only in cases where the properties are included in the list of Waqf published under Chapter II of Waqf Act, the Tribunal will get jurisdiction to entertain the suit, regarding the said properties and in cases where the properties are not included in the list of Waqf jurisdiction of the Civil Court to entertain a suit will not get ousted. Relevant observation of the Hon'ble Supreme Court reads as follows:-
"50.Now, looking at the facts of the present case, a bare reading of the plaint would indicate that neither is the property specified in the 'list of auqaf' as published in Chapter II nor registered under Chapter V and hence the decision as to whether the property is a waqf property or not cannot be decided by the Tribunal since the property is not one specified in the 'list of auqaf, which is the mandatory requirement under Section 6(1) and Section 7(1) of the Waqf Act of 1995 to approach the Tribunal. We will not consider the issue as to whether the property can be deemed to be a 'waqf by user' since the question is still at large. The injunction simpliciter sought for before the Tribunal does not fall within its jurisdiction and the plaint has to be rejected, which we do, allowing the application of the defendant under Order VII, Rule 11. The order of the Tribunal, ascertaining jurisdiction and that of the High Court, affirming it are set aside."
It is also settled law, while considering the petition for rejection of the plaint the Courts are governed by the averment found in the plaint. In the present plaint, the respondents / plaintiffs have stated that the suit properties were gifted to their forefathers by the erstwhile ruler and the petitioners / defendants 1 to 3 have no right over the properties. Therefore, as per the plaint averment, properties are not Waqf properties. In the impugned order, the trial Court also observed absolutely there is no material to demonstrate that in respect of the suit properties, a statutory survey has been conducted and the suit properties were included in the list of Waqf published in the Official Gazette.
In the light of the said fact finding, it is clear that the suit properties are not included in the list of Waqfs as prepared under the Waqf Act.
In such circumstances, we cannot readily presume ouster of the Civil Court jurisdiction. If the averments found in the plaint are taken as correct, there is nothing to suggest Civil Courts have no jurisdiction to entertain the suit. After all, the respondents / plaintiffs are seeking declaration of their possessary right and injunction. Merely because the petitioners / defendants 1 to 3 raised a defence that suit properties are Waqf properties, the jurisdiction of the Civil Court will not get automatically ousted, as per the law settled by the Supreme Court in Habib Alladdin and Others vs. Mohammed Ahmed, VS Mohammed Ahmed, reported in 2026 LiveLaw (SC) 88.
In the light of the above discussion, I do not find any error in the impugned order passed by the trial Court. Accordingly, the civil revision petition stands dismissed. Consequently, connected miscellaneous petition is closed.
At this juncture, the learned counsel appearing for the petitioners / defendants 1 to 3 contended that while considering the petition for rejection of the plaint, the trial Court exhaustively considered the materials produced by the petitioners / defendants 1 to 3 and any observation made in the application will affect the rights of the petitioners / defendants 1 to 3 prejudicially in the main suit.
It is made clear that the petitioners / defendants 1 to 3 are entitled to raise all the defences available in law in their written statement and the same shall be considered by the trial Court in accordance with the law, without being influenced by anything said in the impugned order.