|
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
@page-KLT743#
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-
@page-KLT744#
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
@page-KLT745#
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.
5.
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,
i n
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
@page-KLT746#
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.
8.
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
w ho
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
raised
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.
@page-KLT747#
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
continue
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.
In
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
civil
court
would
be
ousted.”
@page-KLT748#
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
wa s
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
of 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
he
ld
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
entertain
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
@page-KLT749#
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
re
lates
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
requ
ired
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 s
o
wide
enough
to
take
in a
dispute
relating
to
the
management
of
the
@page-KLT750#
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
Act
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
possessi
on
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
@page-KLT751#
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
res
pect
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
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.
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
Tribuna
l 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
with
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
@page-KLT752#
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
jurisdict
ion
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
agricu
ltural
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
court
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
@page-KLT753#
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
plai
ntiff
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
decision
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
dea
l
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
@page-KLT754#
recourse
to
the
option
pointed
out
by
the
Apex
Court
as
aforesaid
for
referring
that
particular
issue
to
the
Tribunal
and
after
such
deci
sion
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,
the
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
b
elow
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
the
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. |
