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2004 DIGILAW 673 (AP)

Mohd. Qutubuddin v. M. Malla Reddy

2004-07-12

L.NARASIMHA REDDY

body2004
L. NARASIMHA REDDY, J. ( 1 ) THIS Tr. civil miscellaneous petition is filed seeking transfer of O. S. No. 71 of 1995 on the file of Junior Civil judge, Chevella to the Wakf Tribunal at hyderabad to be tried along with O. S. No. 122 of 2003 pending in that Tribunal. ( 2 ) THE first respondent filed O. S. No. 71 of 1995 in the Court of Junior Civil judge, Chevella against the petitioner (Defendant No. 3) and Respondents 8 to 14 herein for the relief of perpetual injunction, in respect of Ac. 2. 31 guntas of land in survey No. 242 of Dhobipet, Shankarpally mandal, Ranga Reddy District. The petitioner contends that the property, which is the subject-matter of that suit, belongs to the wakf and with the constitution of the Wakf tribunal, under the provisions of the Wakf act, 1995 (for short the Act ), it is to be transferred to the Tribunal. A further contention is raised to the effect that the mutavalli of the Wakf viz. , Shabbir, the younger brother of the petitioner herein, filed o. S. No. 122 of 2003 before the A. P. Wakf tribunal, Hyderabad, in respect of the same property, duly impleading Respondents 3 and 4 herein, and to avoid conflicting decisions, the suit needs to be transferred. ( 3 ) SRI K. V. N. Bhupal, learned Counsel for the petitioner, submits that the suit schedule land in O. S. No. 71 of 1995 was notified as Wakf Property in the Gazette dated 16. 2. 1989 and despite the same, respondents 1 to 4 claim it to be their patta land. Placing reliance upon Sections 7 and 83 of the Act, as well as a decision rendered by this Court in T. Shivalingam v. A. P. Wakf Tribunal, Hyderabad and others, 1999 (3) ALD 646 , he submits that not only the suit deserves to be transferred to the Wakf Tribunal, but also the jurisdiction of the Civil Court is ousted under Section 85 of the Act. ( 4 ) SRI A. M. Qureshi, learned Standing counsel for A. P. Wakf Board, submits that the Wakf Tribunal was constituted only with effect from 1. 7. 1997 and that the Act does not provide for transfer of matters touching on Wakf properties, pending as on that date, to the Tribunal. ( 4 ) SRI A. M. Qureshi, learned Standing counsel for A. P. Wakf Board, submits that the Wakf Tribunal was constituted only with effect from 1. 7. 1997 and that the Act does not provide for transfer of matters touching on Wakf properties, pending as on that date, to the Tribunal. Placing reliance upon the Judgment rendered by this court in P. Rama Rao v. High Court of a. P. , 2000 (1) ALD 298 = 2000 (1) ALT 210 (DB), he submits that there is no necessity for transfer of suits to the Tribunal, if they were filed in Civil Courts before 1. 7. 1997. ( 5 ) SRI Bajarang Singh Thakur, learned Counsel for Respondents 2 to 4, submits that even a perusal of the Gazette, relied upon by the petitioner, discloses that the property notified therein is in Survey no. 602, whereas the suit schedule property is in Survey No. 242. ( 6 ) THE transfer of O. S. No. 71 of 1995 on the file of Junior Civil Judge, Chevella is sought on the ground that with the constitution of the A. P. Wakf Tribunal, a civil Court ceases to have jurisdiction to try the matters relating to Wakf properties and that the subject-matter of that suit is notified as Wakf Property. ( 7 ) O. S. No. 71 of 1995 was filed initially by the first respondent for the relief of perpetual injunction against the defendants therein. During pendency of the suit, the first respondent died and respondents 2 to 4 came on record. A perusal of the plaint discloses that they claimed the property viz. , land admeasuring ac. 2. 31 guntas in Survey No. 242 of dhobipet as their patta land and sought for permanent injunction. The contention of the petitioner is that this very land was notified by the Government as Wakf property, in the Gazette notification dated 16. 2. 1989. A perusal of the copy of the Gazette notification, filed by the Counsel for the petitioner, discloses that the land notified therein is the one in Survey No. 602 admeasuring Ac. 2. 20 guntas. Therefore, there is no similarity between the suit schedule property on the one hand and the land notified in the Gazette on the other. 2. 1989. A perusal of the copy of the Gazette notification, filed by the Counsel for the petitioner, discloses that the land notified therein is the one in Survey No. 602 admeasuring Ac. 2. 20 guntas. Therefore, there is no similarity between the suit schedule property on the one hand and the land notified in the Gazette on the other. ( 8 ) EVEN assuming that the suit schedule property is the same as the one notified, it needs to be seen as to whether the Act mandates the transfer of the suits to the Tribunals on their being constituted. ( 9 ) SECTION 83 of the Act provides for constitution of the Tribunals to adjudicate upon the disputes relating to Wakfs and its properties. Section 85 of the Act bars the jurisdiction of the Civil Courts on such matters. It is a matter of record that the suit was filed in the year 1995 and that the a. P. Wakf Tribunal was constituted with effect from 1. 7. 1997. Whenever Specialised tribunals are constituted, the legislature or its delegate makes necessary provisions as regards the functioning of such Tribunals. Instances are not lacking where all matters, in respect of which the Tribunals are constituted, pending as on the notified date, shall stand transferred to such Tribunals. For example, all claims arising under the Railways Act are transferred to the railway Claims Tribunal on its having been constituted. So is the case with the tribunals constituted under the A. P. Land grabbing (Prohibition) Act. If there existed a provision in respect of the Wakf Tribunals also, requiring the transfer of the matters pending as on the notified date, there would have been some force in the contention of the petitioner. Such a provision, however, was not made in respect of the Wakf tribunal. This very question fell for consideration before a Division Bench of this Court in P. Rama Rao s case (supra ). It was held therein as under:"the fact that the provision for transfer of cases from the Civil Court to the Wakf tribunal is not provided for in the Act is also a pointer to the legislative intention that the suits filed earlier to the constitution of the Tribunal shall continue to be dealt with by the Civil Court. It was held therein as under:"the fact that the provision for transfer of cases from the Civil Court to the Wakf tribunal is not provided for in the Act is also a pointer to the legislative intention that the suits filed earlier to the constitution of the Tribunal shall continue to be dealt with by the Civil Court. We are, therefore, of the view that in the interests of imparting rationality to the provision and accomplishing the legislative object, Section 85 has to be qualified by the words "after the constitution of the Tribunal" immediately after the words "should lie". No doubt by doing so, the literal construction is eschewed and certain words which are really implicit are read into the section. But such reading and interpretation is not an impermissible exercise. As long back as in 1955, the Supreme Court in Tirath Singh v. Bachittan Singh, AIR 1955 SC 830 , laid down that in order to avoid absurd and anomalous consequences, there could be addition or modification of the words. "therefore even if the subject-matter of O. S. No. 71 of 1995 was capable of being treated as Wakf property, the transfer of the suit to wakf Tribunal is impermissible. ( 10 ) IN T. Shivalingam s case (supra), this Court was dealing with a situation where proceedings were initiated before the wakf Tribunal itself and the defendants therein filed a writ petition urging that the wakf Tribunal has no jurisdiction to adjudicate upon the matter. The question of transfer of proceedings pending in a Civil court to the Wakf Tribunal was not at all under consideration in that case. On interpretation of Sections 83 and 85 of the Act, this Court held that the Wakf tribunal has jurisdiction to adjudicate upon the matters relating to Wakfs and Wakf property. The ratio laid down in that case has no application to the facts of this case. ( 11 ) VIEWED from any angle, this Court is not convinced that OS No. 71 of 1995 pending on the file of Junior Civil Judge chevella deserves to be transferred to the wakf Tribunal, Hyderabad. ( 12 ) THE Tr. Civil Miscellaneous Petition is accordingly, dismissed. ( 11 ) VIEWED from any angle, this Court is not convinced that OS No. 71 of 1995 pending on the file of Junior Civil Judge chevella deserves to be transferred to the wakf Tribunal, Hyderabad. ( 12 ) THE Tr. Civil Miscellaneous Petition is accordingly, dismissed. Inasmuch as the suit is pending since the year 1995, the Trial court is directed to expedite the trial of the suit and dispose of the same within six months from the date of receipt of a copy of this order.