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2004 DIGILAW 603 (PAT)

Imam Askari v. Bibi Azbunnissa @ Bibi Azibun

2004-06-28

S.N.HUSSAIN

body2004
Judgment 1. This case has been running on the daily cause list for several days, but when the case was called out on 25.6.2004, no one appeared on behalf of the O.Ps., although, name of their learned counsel has been printed in the list.. Hence, opportunity was given to them and the case was ordered to be passed over for the day. However, when the case is called out today, the learned counsel for the O.Ps. is again absent, hence, this case is decided after hearing the learned counsel for the petitioner who is present today also. 2. Partition Suit No. 290/1998, out of which this civil revision has arisen, was filed by the plaintiff for partition of his legal share in the suit property. But during the pendency of the suit, Defendant Nos. 1, 3 and 4 filed a petition dated 13.6.2002 stating that the Wakf Act of 1995 had come into force much before filing of the suit and hence, according to Sections 83 and 84 of the said Act the Civil court had no jurisdiction to hear the case and any dispute with respect to Wakf property can be raised only before a Tribunal constituted by the State Government. 3. The said petition of the defendants was allowed by the learned Sub-Judge-l, Chapra, and the said Partition Suit No. 290/1998 was dismissed as not maintainable before the Civil court vide impugned order dated 28.9.2002. 4. The learned counsel for the petitioner submitted that, although, a Notifica tion for constituting a Tribunal has been issued, but no Tribunal is functioning not any Tribunal is hearing the disputes with respect to the Wakf properties. He further contended that, although, rules have been framed, but no regulation for the conduct of the proceeding before the Tribunal has yet been framed and in the absence of the aforesaid legal requirements the Tribunal is not functioning. He further contended that in the above mentioned circumstances, the petitioner had no remedy left but to move the Civil court for redressal of his grievances. He further contended that the Bihar State Shia Wakf Board has already appeared in the suit and is contesting the suit by filing written statement which is Annexure-4 to the civil revision petition. 5. l find force in the argument of the learned counsel for the petitioner. He further contended that the Bihar State Shia Wakf Board has already appeared in the suit and is contesting the suit by filing written statement which is Annexure-4 to the civil revision petition. 5. l find force in the argument of the learned counsel for the petitioner. It appears that the claim of the plaintiff-petitioner is that the suit property is not a Wakf property and it is private ancestral property in which there are various co-sharers who wanted to partition it, according to their share as provided in their personal law. This claim is being contested by the Wakf Board as well as by some of the defendants. It is quite clear that such disputes can be decided only by an appropriate Civil court specially when the Tribunal is non-functional and even the regulations for the proper conduct of its proceedings have not yet been framed. Hence, in the aforesaid circumstances, the impugned order is hereby set aside and the learned court below is directed to proceed with the suit and decide the same without any undue delay; in accordance with law. This Civil revision is accordingly allowed.