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Wakf Act 1995, Ss. 83, 85 and 80 - Jurisdiction of Civil Court - Only those matters which are required to be determined by a Tribunal, the bar under S.85 applies - Jurisdiction of the Civil Court is not completely ousted - Right of office of Mutawalli - Suit for injunction - Relief can be granted only by the Civil Court - Suit is within the jurisdiction of the Civil Court.
If the subject matter (emphasis supplied) of the suit pertains to matters squarely coming within the jurisdiction of the Tribunal, then notwithstanding the fact that the suit was pending at the time when the Tribunal was constituted, the civil court shall cease to have jurisdiction to continue such proceedings. As per S. 85 of the Act 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. Therefore, only those matters which are required by or under this Act to be determined by a Tribunal, that the bar under S. 85 applies. It could also be seen from the Scheme of the Act that the jurisdiction of the civil court is not completely ousted. In respect of matters to be specifically dealt with by the Tribunal either by way of suit or application or appeal are s eparately provided for by the Legislature. It cannot be said that the words “Wakf or Wakf property in dispute” or the expression used under S. 83(1) is so wide enough to take in within its scope even matters which are specifically dealt with by the other provisions. Only such of the matters which are required to be decided specifically by the Tribunal are taken out from the jurisdiction of the civil court. Even a matter which may otherwise fall under the purview of any authority other than the Tribunal is not taken away from the jurisdiction of the civil court. On a careful analysis of the above provisions it can be seen that a dispute which relates to the management of the affairs of the Mosque is not specifically dealt with in any of the provisions of the Act to be adjudicated upon by the Tribunal.
An injunction is a relief which can be granted by the civil court and that power is not conferred on the Tribunal. Therefore, a suit or proceeding relating to a title to or possession of Wakf property or the right of a Mutawalli is a matter which can be adjudicated by a court and the only condition for such adjudication by the civil court or the Tribunal is that before proceeding to adjudicate the same notice shall be given to the Wakf Board and in the absence of any such notice to the Board such order or decree passed will be rendered void by virtue of S. 90(3) of the Wakf Act. S. 92 also indicates that a suit or other proceeding in respect of a Wakf or any Wakf prop erty which is not specifically required to be dealt with or adjudicated by the Tribunal is still an area where the civil court will have jurisdiction. The right of office of Mutawalli
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being a common law right and in the absence of any provision specifically requiring such disputes to be adjudicated by the Tribunal and this being a suit for injunction a relief which can be granted only by the civil court, for reasons stated above, I hold that the present suit instituted is within the jurisdiction of the Civil Court to be tried and decided. (paras. 13, 15, 19, 20 & 21)
1990 (2) KLT 968; AIR 1971 SC 2355;
AIR 1993 SC 1756 & AIR 1954 Bom. 100 Referred to
AIR 2001 Raj. 19 & AIR 2001 Mad. 431 Relied on
K.T. Sankaran, Preethi Karunakaran,
R. Rajesh Komath, Anish S. Ambady &
Bijimol Jose For Petitioners
P.N. Krishnankutty Achan (Sr. Advocate) &
K. Mohanakannan For Respondents
ORDER
P.R. Raman, J.
The plaintiff in O.S. No. 764/92 on the file of the Munsiff’s Court, Palakkad is the petitioner in C.R.P. No. 921/2001 filed against the order in I.A. No. 1300/2001. He is also the appellant in C.M.A. No. 15/2002. Whereas the defendants 2 and 3 in the said suit are the petitioners 1 and 2 in C.R.P. No. 914/2001 filed against the order in I.A. No. 1427/2001. They are also the appellants in C.M.A. No. 16/2002. The brief facts are as follows:-
2. The plaintiff instituted the suit before the Munsiff’s Court, Pala kkad claiming himself to be the Mutawalli of Palakkad Manjakkulam Mosque Jaram. The plaint allegation is that Manjakkulam Palli Jaram is an ancient Muslim Mosque where one Sayeed Khaja Hussain, who was a divine person breathed his last in the said place and a Jaram was constructed and the family of the plaintiff constructed a Mosque and managed the affairs. The senior most member of the Arakkal family was in successful management of this private Wakf. Public used to come for making prayers irrespective of religion or caste in this Jaram. The plaintiff claims to be the senior most member and in that capacity he is the Mutawalli since 1969 and managing the affairs. The Wakf is also registered with the Wakf Board as private Wakf. For the purpose of renovating the Mosque steps are taken by the public for which purpose with the full knowledge and consent of Mutawalli, a committee of 11 persons was constituted and renovation work is in progress. There is a Madrassa also run under the management of the plaintiff. For that purpose also a committee was constituted; but the entire management of the Mosque and the Madrassa vests in the plaintiff and no one has got any right over the same. While so, the plaintiff happened to see a notice in the notice-
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board stating that a committee was constituted with the 1st defendant as the President and the 2nd defendant as the Secretary. When he enquired about the same he came to know that it was constituted for the pe rsonal gains of the defendants and that there is an attempt on the part of the defendants to collect money unauthorisedly and also to take over the management of the Mosque for which they have absolutely no right. According to the plaintiff, the management of the Mosque and Jaram is strictly in accordance with the directions and under the control of the Wakf Board. Hence, it is prayed that the defendants be prevented from interfering with the management of the Mosque and Jaram or in connection with the affairs of the same and permanent injunction is sought for restraining them from collecting any amount or interfering with the affairs of the Mosque and Jaram.
3. A written statement was filed by the 2nd defendant denying the allegations contained in the plaint. It is alleged that it is only a test case and also stated that the plaint schedule Mosque is a public trust. The description of the plaintiff as Mutawalli is not legally supportable and it is also denied. It is also stated that the plaintiff is not appointed as Mutawalli of the Wakf by anybody and that he is not managing the affairs of Manjakkulam Mosque, Jaram and Madrassa. It is admitted that Manjakkulam Mosque is an ancient one and the Jaram is also very ancient. The Jaram and Mosque are situated in two rooms of the same building. There is a committee constituted for the purpose of renovation of the Mosque and there are coconut trees standing in the property. The renovation of the building is done by the public with public fund. It is denied that Arakkal family was in the management of the Mosque or the Jaram. It is also denied that senior most member of the said family was the successful Mutawalli of the Jaram. It is also their case that the Wakf in question is public Wakf and that the Sunni Muslims of the Palakkad Municipality are the beneficiaries and that the plaintiff or his family has no right in the Mosque, Jaram or in the property where these institutions stand. It is admitted that people belonging to different religions used to come and make their prayers and offerings. The management of these institutions is done by committee constituted by the beneficiaries who are the Sunni Muslims since 1982. It is the general body which elects the managing committee and the management is being done by the said committee. It is further denied that the plaintiff is in the management of the affairs of the Mosque or Jaram and if at all he was in any such management that is not authorised.
4. The above is only the brief facts as averred in the plaint and in the written statement and I am not going to the detailed averments contained in the plaint or in the written statement, as it is not necessary for the purpose of deciding the controversy, arising in the present proceeding. Both sides adduced evidence and while the matter was ready for final hearing, a Tribunal was constituted under the Wakf Act. The question arose as to whether the Court below has ceased to have juris diction over the matter. In view of the appointment of the Tribunal, the court below held that the
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constitution of the Tribunal though subsequent to the filing of the suit, will take away the jurisdiction of the civil court and the proceedings cannot be continued. It also recorded the admission of the parties that the subject matter of the suit is cognizable by the Wakf Tribunal established under the Act. The Court below observed that the words “no action shall lie” takes within its comprehension, actions already brought but not yet disposed of through a verdict. Hence, no suit or other legal proceedings in respect of any dispute, question or other matter relating to any Wakf or Wakf property shall be carried on or continued to be entertained in a Civil Court. Thus it was held that the bar imposed by S. 85 of the Act to the effect that “no suit or legal proceedings shall lie in Civil Court” would supply to pending proceedings also and the present suit cannot be continued for want of jurisdiction. The petition filed by the supplemental 2nd defendant requesting the court below to decide the jurisdictional aspect, was thus disposed of and the court below returned the plaint to be presented to the Tribunal. The return of the plaint is the subject matter of challenge in C.M.A. No. 15/2002. It was further directed that the present management of the hundis by the Commissioner as directed by the District Court in C.M.A. No. 32/93 shall continue. In the a pplication I.A. No. 1427/2001, the plaintiff sought for an order to maintain status quo till the plaintiff is in a position to seek appropriate reliefs from the appellate court. The court below directed that the parties shall maintain status quo and co-operate with the Commissioner already appointed in the execution of his work till fresh orders are passed by appropriate forum. That is the subject matter of challenge in C.R.P. No. 914/2001. The Court below during the pendency of the proceedings had appointed a Commissioner to open the Bhandars and to keep an account of the same. The amount collected from the Bhandars kept in the Jaram was to be entrusted to the plaintiff where as the amount collected from the other two Bhandars kept in the Mosque was to be entrusted to the defendants, who were to manage the Jaram and Mosque respectively.
While deciding the jurisdictional aspect and returning the plaint, it was ordered that the present management of the hundies by the Commissioner as directed by the District Court shall continue, which is also challenged in C.M.A. No. 16/2002 by the defendants.
6. Though these two C.M.As. were filed before the District Court in view of the pendency of the C.R.Ps. before this Court, they were directed to be transferred to this Court and that is how the two C.M.As. as referred to above were heard along with the C.R.Ps.
7. In view of the fact that the plaintiff and defendants have separately challenged the respective orders, in effect, the challenge made by the plaintiff is against the decision of the court below holding that it has no jurisdiction to proceed with the suit. As regards the order to maintain the status quo is concerned, the aggrieved parties
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are the defendants. Hence, the only question that arise for consideration in the above matters is as to whether the decision of the court below holding that it has no jurisdiction to proceed with the suit is correct in law? When the Court below holding that it has no jurisdiction, returned the plaint, whether it can pass an order to maintain status quo or pass any interim order to be effective until orders are obtained by the parties from the appropriate forum.
During the pendency of these matters the plaintiff died. One Arakkal Muhammad Ibrahim, son of the plaintiff-Arakkal Abdul Rahiman Musaliar sought to get himself impleaded as the present Mutawalli entitled to continue the proceedings. According to him, as per a Will executed by his father he was the next Mutawalli to be succeeded; and also stated that in the family meeting, he has been elected as the next Mutawalli.
9. A counter-affidavit is filed for and on behalf of the defendants denying his status as Mutawalli and opposing the impleading petition. According to the defendants, after the death of the plaintiff, the controversy put forward by him has come to an end. The averments made in the written statement that the Sunni Muslims of Palakkad Town who are the members of the public, have been controlling the affairs of the Mosque, Jaram and Madrassa, who were in possession of the same are reiterated. It is contended that the Will is said to have been executed on 28.7.2001 but the plaint was returned on 27.3.2002. It is also stated that the Will of the kind put forward in the C.M.P. is not true or correct and does not confer any right on the 4th son of the plaintiff, Abdul Rahiman Musaliar, since dead to continue the proceedings. The plaintiff or Muhammad Ibrahim, his son has no right to prosecute any proceedings before this Court and this is a matter to be adjudicated by the Wakf Tribunal. In the reply-affidavit filed thereto with reference to the contention raise d in para 7 of the counter affidavit it is stated that Annexure I is dated 13.1.2002 and Annexure II is dated 28.7.2001 whereas the plaint was ordered to be returned on 27.3.2001 and not on 27.3.2002 as stated in paragraph 7 of the counter-affidavit. Annexure I is a proceedings dated 13.1.2002 of the Arakkal Family regarding the election for appointment of a successor Mutawalli, after the death of plaintiff. It is stated that the present Mutawalli Abdul Rahiman Musaliar is aged and hence his son Arakkal Muhammed Ibrahim Sahib is appointed as the Mutawalli designate and to inform all the Government and the religious institutions about the said decision. It also contains 13 names and their signatures against each other. Annexure-II is a copy of the Will. There is an acknowledgement that original of the same was received by the Wakf Board. It shows that the Will is executed by Arakkal Abdul Rahiman Musaliar authorising and appointing his 4th son Arakkal Mohammad Ibrahim as the successor Mutawalli. It should be noticed that is a registered Will attested by two witnesses.
10. In the circumstances and in the absence of anybody claiming to be the legal heir of the plaintiff having come forward and on being prima facie satisfied, C.M.P.
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No. 3076/2002 is allowed to the limited extent of permitting the petitioner to prosecute the proceedings pending before this Court, leaving open the question as to whether Arakkal Mohammad Ibrahim is entitled to continu e the further proceedings in the Court below to be decided finally by the trial court and the petitioner in C.M.P. No. 3076/2002 shall be entitled to seek substitution of his name in the place of the original plaintiff and after hearing both sides and if necessary after taking evidence in the matter, the Munsiff’s Court, Palakkad shall decide the question as to whether the petitioner is entitled to continue the proceedings and all other incidental questions arising thereto.
11. Similar application for impleadment has been filed in the other cases also. In the light of the order in C.M.P. No. 3076/2002 no separate orders are called for.
12. Now the main question for consideration is as to whether the Court below has jurisdiction to proceed with the suit? Though the court below has disposed of the matter on the basis of the admission made by the parties that the subject matter of the suit is cognizable by the Wakf Tribunal and did not enter a finding on merits, it is contended by the learned counsel for the plaintiff that an admission on a question of law cannot bind the parties and he has challenged the said finding and contended that the subject matter of the suit is not one cognizable by the Tribunal and/or that the civil court’s jurisdiction is not ousted as regards the subject matter. He placed reliance on the decisions of the Apex Court in Isabella Johnson v. Susai (1990 (2) KLT 968) and in Mathura Prasad Sarjoo Jaiswal & Ors. v. Dossibai, AIR 1971 SC 2355. I n Mathura Prasad Sarjoo Jaiswal’s case, AIR 1971 SC 2355, it was held by the Hon’ble Supreme Court of India that a question regarding jurisdiction cannot be deemed to have been finally decided by an erroneous decision of that Court and the question would not operate as res judicata. Again in Isabella Johnson’s case, 1990 (2) KLT 968, it was held by the Apex Court that there cannot be an estoppel on a pure question of law and that a question of jurisdiction in the case is a pure question of law. Thus, the admission made regarding a jurisdictional aspect having been challenged on the first occasion itself in these proceedings and being a question of law the parties cannot be bound by such admission and the question is liable to be considered on merits.
13. The court below while returning the plaint has held that when a Tribunal is constituted by the express provision contained in S. 85 the Court has no jurisdiction to proceed with the case and the bar applies to pending proceedings as well. Reliance is also placed on the decision of the Apex Court in Inacio Martins v. Narayan Hari Naik & Ors. (AIR 1993 SC 1756) where the Hon’ble Supreme Court held that if the new law which is enacted during the pendency of a suit, contains the provision that “no civil court shall have jurisdiction to settle, decide or deal with certain questions which are committed to the jurisdiction of the new Court or Tribunal and the pending suit relates to those questions the jurisdiction of the civ il court would be ousted.”
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Subsequently, in Syed Inamul Haq Shah v. State of Rajasthan & Anr. (AIR 2001 Rajasthan 19) the High Court of Rajasthan while interpreting S. 85 of the Wakf Act held that the expression “no suit or other legal proceedings shall lie” would mean no suit or legal proceedings shall be carried on or continued to be entertained and hence the bar of jurisdiction apply to pending proceedings also”. In the light of the afore-mentioned decision of the Apex Court and also the Rajasthan High Court I hold that if the subject matter (emphasis supplied) of the suit pertains to matters squarely coming within the jurisdiction of the Tribunal, then notwithstanding the fact that the suit was pending at the time when the Tribunal was constituted, the civil court shall cease to have jurisdiction to continue such proceedings.
14. However, the main thrust of the argument of the learned counsel for the plaintiff/petitioner in C.R.P. No. 921/2001 is that the subject matter of the suit pending before the Munsiff’s Court is not a matter squarely coming within the jurisdiction of the Tribunal as per the Wakf Act. According to him, the relief sought for in the suit was for a permanent prohibitory injunction restraining the defendants from interfering with the affairs of the Mosque, Jaram and Madrassa, which reliefs the Tribunal, unless specifically conferred by the statute, is not competent to grant and hence falls outside the scope and jurisdiction o f a Tribunal under the statute. He placed reliance on the decision of the Madras High Court in A.M. Ali Akbar & Anr. v. Keelakarai South Street Jamath Masjid Paripalana Committee & Ors. (AIR 2001 Madras 431) which is also a case arising under the Wakf Act. That was a case where some of the members of one Jamath sought for permanent injunction restraining the opposite parties from interfering with the management of the Jamath and also for a temporary injunction restraining them from holding the election. The Wakf Original Petition was however filed before the Tribunal under S. 83(1) of the Wakf Act, ultimately the matter came before High Court of Madras. After referring to the relevant provisions of the Act and the powers conferred on the Tribunal, it was held that the powers of the Tribunal are restricted only to disputes specifically referred in S. 83(1) of the Act. As per that provision, the Tribunal is empowered to determine the dispute, question or other matters relating to Wakf or Wakf property and not in respect of an application for permanent injunction. The words “or other matter which is required by or under the Act to be determined by the Tribunal” shall be referable only to Ss. 6, 7, 67(4), 70(1) & (2) and S. 94. None of the provisions of the Act either expressly or impliedly empowers the Tribunal to entertain, adjudicate upon and decide a petition for permanent injunction. S. 85 of the Act also does not specifically bar the jurisdiction of civil court to e ntertain a suit for injunction. Hence, it was held that the word “any dispute” does not mean a dispute relating to the Managing Committee of the Jamath and the word “any” used in S. 83(1) of the Act shall mean every and whatever the dispute relating to a Wakf and the said word “Wakf” does not relate to the Managing Committee. In these circumstances and in the light of the above provisions of the Act, it was held that the
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Tribunal has no power to determine the dispute as to the constitution of Managing Committee or the conduct of election to the Managing Committee and that the petition for permanent injunction and temporary injunction filed by the members of Jamath cannot be entertained by the Tribunal.
15. The facts of this case as relates to the relief sought for are identical with the factual situation arising for consideration in the aforesaid decision. Here also the dispute mainly centres around the right of management of the Wakf. It is not in dispute that this is a Wakf property. Nor is there any dispute regarding the Wakf as such. The Wakf in this case was admittedly registered with the Wakf Board. The main argument seems to be that the plaintiff has no right of management of the Wakf and that he is not the Mutawalli entitled to manage the affairs of the Wakf. The defendants also dispute the averment of the plaint that it is a private Wakf. According to them, it is a public Wakf. So much so, the right of management of the Wakf is the main question that arise for consideration in the suit. If that does not fall within the powers of the Tribunal for adjudication as per the provisions of the Act, needless to say that such a question cannot arise for consideration before the Tribunal and so it cannot be said that the civil court has no jurisdiction. The court below, however, did not proceed to determine this question because of the admission made by the parties. As per S. 85 of the Act 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 (emphasis supplied by me). Therefore, only those matters which are required by or under this Act to be determined by a Tribunal, that the bar under S. 85 applies. It could also be seen from the scheme of the Act that the jurisdiction of the civil court is not completely ousted. As per S. 83(1) of the Act, the State Government is empowered to issue notification in the Official Gazette constituting the Tribunals, as it may think fit, for the determination of the dispute, question or other matter relating to Wakf or Wakf property under this Act. As per sub-s. (2) of S. 83 of the Act any Mutawalli, person interested in a Wakf or any other person aggrieved by an order made under this Act or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified within such time as may be prescribed, to the Tribunal for the determination of any dispute, question or other matter relating to the Wakf. Thus, sub-s.2 of S. 83 enables a person to challenge any order passed under this Act with respect to which he has a grievance. Thus if any authority under this Act passes an order against a Mutawalli or any other person, he is entitled to prefer an application under sub-s. 2 of S. 83 of the Act for the determination of the dispute. Therefore, it is more in the nature of appeal to the Tribunal from orders that may be passed under this Act by any authority. Now the question is as to whether the words “determination of any dispute, question or other matter relating to the Wakf or Wakf property” is so wide enough to take in a dispute relating to the management of the
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affairs of a Mosque or Wakf. In this connection, the words ‘under this Act’ qualifies the dispute to be adjudicated. Thus we have necessarily to refer to other provisions to see as to what are such disputes specifically required to be adjudicated by the Tribunal. The scheme of the A ct provides for applications, appeals and suits to be filed before the Tribunal. Ss. 6, 7, 32(3) and 54(4) deal with matters where suits can be filed before the Tribunal. Disputes as to whether a property specified in the list is a Wakf property and disputes as to whether it is a Shia Wakf or Sunni Wakf are to be resolved by suit to be filed before the Tribunal.
16. S. 32(3) of the Wakf Act enables a person interested in the Wakf or who is affected by any scheme of management settled by the Board to institute a suit to set aside such scheme framed by the Board.
17. S. 33(4) provides for an appeal to the Tribunal by Mutawalli or other person aggrieved by the order of the Chief Executive Officer for recovery of any amount. S.38(7) provides for an appeal to the Tribunal by the Executive officer or a member of his staff aggrieved by any order of removal or dismissal. S. 40(2) provides for an appeal to the Tribunal against the decision of the Board on the question as to whether a particular property is Wakf property or not and also whether a Wakf is a Sunni Wakf or a Shia Wakf. S. 51(5) provides for an appeal to the Tribunal by the Mutawalli or any other person having an interest in the Wakf against the order of the Board in respect of the utilisation or investment of the amount realised by the sale, exchange or mortgage of any property. S. 52(4) provides for an appeal to the Tribunal by any person aggrieved by the order of the Collector for delivery of the property. S. 64(4) provides for an appeal to the Tribunal by a Mutawalli, who is aggrieved by the order of removal by the Board. S. 67(4) provides for an appeal to the Tribunal by any person aggrieved by the order superceding the committee of management. 2nd proviso to S. 67(6) provides for an appeal to the Tribunal by any member aggrieved by any order of the Board removing him from the membership of the committee of management. Proviso to S. 69(3) provides for an appeal to the Tribunal by any person aggrieved by an order of the Board framing any scheme. S. 73(3) provides for an appeal by any bank or other person who is ordered by the Chief Executive Officer to make any payment within thirty days from the date of the order. S. 83(2) provides for an appeal to the Tribunal by any Mutawalli or person interested in a Wakf or any other person aggrieved by an order made under this Act or Rules made thereunder.
18. S. 35 provides for an application to the Tribunal by the Chief Executive Officer for the conditional attachment. S.39(3) provides for an application to the Tribunal by the Board for recovery of possession on any building or place. S. 48(2) provides for an application to the Tribunal against any recovery of the amount from the Mutawalli or any other person by the Board on the basis of auditor’s report. Proviso to S. 51(2) provides for an application to the Tribunal by Mutawalli or other
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person for permitting the sale of any property otherwise than by public auction. S.94(1) provides for an application to the Tribunal for directing the Mutawalli to pay to the Board or to any person authorised by the Board in this behalf the amount necessary for the performance of such act which the Mutawalli fails to perform. S. 94(2) provides for an application by the Board or any person interested in the Wakf against the Mutawalli who fails to discharge the duties imposed on him for appropriate directions.
19. The above provisions would show that in respect of matters to be specifically dealt with by the Tribunal either by way of suit or application or appeal are separately provided for by the Legislature. It cannot be said that the words “Wakf or Wakf property in dispute” or the expression used under S. 83(1) is so wide enough to take in within its scope even matters which are specifically dealt with by the other provisions. As a matter of fact, S. 83(1) deals with the constitution of the Tribunal and generally states the power of the Tribunal to adjudicate the dispute relating to Wakf or Wakf property and S. 85 bars the jurisdiction of the civil court in respect of matters which are required to be decided by the Tribunal under the Act. In other words, only such of the matters which are required to be decided specifically by the Tribunal are taken out from the jurisdiction of the civil court. Even a matter which may otherwise fall under the purview of any authority other than the Tribunal is not taken away from the jurisdictio n of the civil court. On a careful analysis of the above provisions it can be seen that a dispute which relates to the management of the affairs of the Mosque is not specifically dealt with in any of the provisions of the Act to be adjudicated upon by the Tribunal. Further, as held by the decision of the Madras High Court in A.M. Ali Akbar’s case (AIR 2001 Madras 431) an injunction is a relief which can be granted by the civil court and that power is not conferred on the Tribunal.
20. It may also be incidently noticed that S. 90 of the Wakf Act itself recognises the suit or other proceeding relating to title to or possession of a Wakf property or the right of a Mutawalli or beneficiary which has to be adjudicated by the court or the Tribunal and what is required is that notice to be issued to the Board at the cost of the party instituting such suit or proceeding. Therefore, a suit or proceeding relating to a title to or possession of Wakf property or the right of a Mutawalli is a matter which can be adjudicated by a court and the only condition for such adjudication by the civil court or the Tribunal is that before proceeding to adjudicate the same notice shall be given to the Wakf Board and in the absence of any such notice to the Board such order or decree passed will be rendered void by virtue of S. 90(3) of the Wakf Act. S. 92 also indicates that a suit or other proceeding in respect of a Wakf or any Wakf property which is not specifically required to be dealt wit h or adjudicated by the Tribunal is still an area where the civil court will have jurisdiction.
21. The right of office of Mutawalli being a common law right and in the absence of any provision specifically requiring such disputes to be adjudicated by the Tribunal
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and this being a suit for injunction a relief which can be granted only by the civil court, for reasons stated above, I hold that the present suit instituted is within the jurisdiction of the Civil Court to be tried and decided.
22. Before I conclude one more decision of the Supreme Court is required to be referred to on the question as to what are the options available when admittedly some of the issues may fall within the purview of the jurisdiction of the Tribunal and those which are not specifically required to be decided by the Tribunal. The Apex Court in Shri Inacio Martins’s case, AIR 1993 SC 1756, while considering a situation where the entire dispute is outside the jurisdiction of the civil court held thus:-
“...........In such a situation where the entire dispute falls outside the Civil Court’s jurisdiction on account of the change in law the proper course would be to follow in spirit the procedure outlined in O. VII, Rr. 10 and 10A of the Code of Civil Procedure.”
23. The Apex Court, in the course of discussion, took notice of the fact that the suit was pending when Goa, Daman & Diu Agricultural Tenancy Act (as amended by Act 17 of 1976) came into force (5th Amendment Act) and the civil court had undoubtedly jurisdiction to try and grant eviction till the 5th amendment became effective. After coming into force of the amendment, the provisions of the Act became applicable to the lands in question. By virtue of S. 7 any question whether a person is a tenant or a deemed tenant was required to be decided by the Mamlatdar and the jurisdiction of the civil court stood ousted by S. 58(2) of the Act. The question arose as to whether the subsequent change in the law deprived the civil court of jurisdiction which it undoubtedly possessed on the date of the institution of the suit. The Apex Court considered three situations which may arise in the context of the provisions of the Act, namely (i) the civil court retains jurisdiction; (ii) the civil court is precluded from deciding, even incidentally, questions falling within the ambit of S. 7 of the Act; (iii) the civil court’s jurisdiction is wholly ousted. There was no provision in the Act as to the fate of pending litigation after the fifth amendment came into force. Hence, when suit is filed to recover possession of agricultural land from a trespasser and no dispute arises, as to the adjudication whereof is required to be done by the special machinery set up under the Act, the civil court will continue to have jurisdiction. If, however, the defendant raises a dispute which is required to be resolved by the special machinery under the Act, a question as to whether what procedure the civil cou rt should adopt will arise for consideration. There may arise a situation where the entire dispute pending before the civil court can be adjudicated by the special machinery only and not the civil court, what procedure the civil court follow in such a situation? In the case of the first mentioned situation, there is no difficulty as the civil court will continue to have jurisdiction to settle and decide the dispute and grant appropriate relief. But, in the latter situation there is no doubt that the jurisdiction of the civil court is partly or wholly ousted and the situation may be different. The question of the
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defendant’s tenancy in respect of agricultural land would be within the exclusive jurisdiction of the Mamlatdar under S. 7 read with S. 58(2) of the Act. When the entire dispute falls within the jurisdiction of the Tribunal, it could not have been instituted in a civil court. Then what is the procedure to be adopted by the civil court? All these questions were discussed and formulated the following principles:-
“....... It would not stand to reason to non-suit the plaintiff who had filed the suit in a competent court having jurisdiction to try the same merely because of the subsequent change in law. The proper course, therefore, would be one which was followed by the Bombay High Court in Bhimaji Shankar Kulkarni v. Dundappa Vithappa Udapudi (AIR 1966 SC 166) ...........”.
24. The Apex Court quoted the following passage from the decis ion of the Bombay High Court in Dhondi Tukaram v. Hari Dadu (AIR 1954 Bom. 100) with approval:
"Therefore we hold that in a suit filed against the defendant on the footing that he is a trespasser if he raises the plea that he is a tenant or a protected tenant, the Civil Court would have no jurisdiction to deal with that plea........ We would, however, like to add that in all such cases where the civil court cannot entertain the plea and accepts the objection that it has no jurisdiction to try it, it should not proceed to dismiss the suit straightway. We think that the proper procedure to adopt in such cases would be to direct the party who raises such a plea to obtain a decision from the Mamlatdar within a reasonable time. If the decision of the Mamlatdar is in favour of the party raising the plea, the suit for possession would have to be dismissed, because it would not be open to the civil court to give any relief to the landlord by way of possession of the agricultural land. If, on the other hand, the Mamlatdar rejects the plea raised under the Tenancy Act, the Civil Court would be entitled to deal with the dispute on the footing that the defendant is a trespasser.”
25. After referring to the above passage, the Apex Court also held that it would be just and fair that the issue whether defendant No. 1 was a tenant in respect of the lands in question should be referred to the Mamlatdar for decision and after his decision is received by the civil court if the issue is held against defendant No.1, the civil court may consider passing of a decree in eviction but if on the other hand he is held to be tenant, the civil court may be required to dismiss the suit. But when the dispute falls outside the civil court’s jurisdiction because of the change in law as already held, the proper procedure is to follow in spirit the procedure outlined under O. VII, Rr. 10 and 10A of the Code of Civil Procedure.
26. There is no finding here as to whether there are any other issues which are specifically required to be decided by the Tribunal under the Act. The suit as a whole cannot be said to be one falling outside the jurisdiction of the civil court, for the reasons already mentioned above, hence it would be proper for the court below to consider various issues arising in the case and if it finds later that any such issues required to be decided by the Tribunal under the Act, then it will be open to the court below to take
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recourse to the option pointed out by the Apex Court as aforesaid for referring that particular issue to the Tribunal and after such decision is received, to decide the case fully. Hence, it is for the court below to frame issues and advert to each of them and see whether any particular issue is required to be decided by the Tribunal and if so, to refer the same alone for the decision of the Tribunal.
27. Having found that the civil court cannot be said to be totally without jurisdiction in the matter, t he question as to whether the civil court would have passed an order to maintain status quo after returning the plaint really does not arise for consideration. However, if I were to hold that the Court below has no jurisdiction and when the plaint is returned on the finding that the court has no jurisdiction, it is outside its jurisdiction to extend the operation of any interim order passed earlier until such time the parties are enabled to obtain necessary orders from the appropriate forum. When the court has no jurisdiction to adjudicate on the matter in dispute, any interim order after it ceases to have jurisdiction is also without jurisdiction. That may be remedy available or a relief which can be granted by this Court in appropriate proceedings arising from such order or the parties can seek such reliefs from the Tribunal to which the case stood transferred.
28. In the result, the revision petitions and the appeals are disposed of as above. The Court below will take back the plaint and dispose of the matter in accordance with law and in accordance with what is stated above.
29. The Court below has issued certain interim directions for the maintenance of the Bhandars by appointing a Commissioner which has become final. That arrangement will continue. Any further interim relief required for subserving the main relief sought for in the suit is a matter which the parties can seek from the court below. Now it is brought to my notice by the learned counsel for t he petitioner that an order has been passed in C.M.P. No. 1761/2002 not to demolish the Mosque and Jaram until the disposal of the C.R.P. That interim order will continue until further orders by the court below; but the parties are at liberty to seek any variation of the order or vacating the same and the court below will dispose of the same untrammelled by the fact that the interim order was granted by this Court. |
