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2005 DIGILAW 2293 (ALL)

AKHTAR v. DISTRICT JUDGE, MAU

2005-11-23

POONAM SRIVASTAVA

body2005
JUDGMENT Hon’ble Mrs. Poonam Srivastava, J.—Heard Sri M. D. Singh Shekhar, learned Counsel for the petitioners and Sri S.F. A. Naqvi, Advocate for the contesting respondents. 2. The order dated 23.8.2004 (Annexure-6 to the writ petition) passed by the Civil Judge (Junior Division), Mau in Original Suit No. 285 of 2003 allowing the application 14-Ga whereby the plaint has been dismissed for want of jurisdiction and also judgment and order dated 23.9.2005 (Annexure-8 to the writ petition) passed by the District Judge, Mau in Civil Revision No. 79 of 2004 confirming the said order are impugned in this writ petition. 3. The facts giving rise to the dispute is that an Original Suit No. 285 of 2003 was instituted in the representative capacity in respect of Arazi No. 186 (old) new No. 134 having an area 856 Kari, situated in Mauja Baragaon, Tappa Haveli, Pargana and Tehsil Ghosi claiming relief of permanent injunction and to restrain the defendant-respondents from interfering in the right of the plaintiffs in burying dead bodies of the Sunni community. It was pleaded that the disputed property is public graveyard and a Public Waqf. The specific claim of the plaintiffs was that the dead bodies of the plaintiffs were used for burial purpose and name since the time immemorial. The defendants have no right to interfere in the right of burial since the disputed land is recorded as graveyard in the revenue records. The defendants second set filed their written statement on 7.5.2004. Before framing the issues, an application was filed by the defendants second set for dismissal of the suit for lack of jurisdiction. This application was numbered as Application No. 14-C-2. The petitioners filed their objections to the said application taking specific stand that since the relief claimed is for grant of injunction, the suit is not barred by provisions of Section 85 of the Waqf Act, 1995 (hereinafter referred to as the Act). The trial court vide its order dated 23.8.2004 allowed the application holding that the suit is barred by law and, therefore, the application under Order VII, Rule 11 (d), C.P.C. was allowed. The petitioners preferred a revision challenging the order dated 23.8.2004 which was numbered as Civil Revision No. 29 of 2004 and the same was also dismissed on 23.9.2005. 4. The petitioners preferred a revision challenging the order dated 23.8.2004 which was numbered as Civil Revision No. 29 of 2004 and the same was also dismissed on 23.9.2005. 4. The submission on behalf of the petitioners is that the court below allowed the application under Order VII, Rule 11 (d), C.P.C. without framing a preliminary issue and accepting the averments of the application 14-C-2. The suit cannot be dismissed in the manner as it has been done by the court below. A number of arguments have been advanced by Sri M.D. Singh Shekhar and decisions have been cited in support of his contention. It is argued on behalf of the petitioners that the disputed property described at the foot of the plaint has been recorded as Kabrastan and is covered within the definition of ‘Public Waqf. The plaintiffs belong to Sunni sect and the defendants belong to Shia sect. The Kabrastan was used by both the sects for burial purpose but the cause of action arose when the Shia muslims objected the sunnies (plaintiffs) from burying the dead body of a member of Sunni sect on 2.6.2003. The first argument advanced on behalf of the petitioners is that since the dispute relates to public waqf, the provisions of the Act No. 43 of 1995 will not be attracted and the suit will not be barred. While deciding the jurisdiction of the court, it is the allegations of the plaint which alone decides the forum and not the defence taken by the defendants in the written statement. In support of this contention. Sri Shekhar has cited three decisions Abdulla Bin Ali and others v. Galappa and others, AIR 1985 SC, 577; Sakeem Bhai and others v. State of Maharashtra and others, 2003, ACJ, 704 and Umesh Chandra Saxena v. First Additional Civil Judge (Senior Division), Allahabad and others, 2002 ACJ, 1510. In all these three cases, the principle enunciated is that the forum and jurisdiction in the suit depends upon the defence taken in the written statement and plea taken in the written statement are altogether irrelevant. Besides, it is held that the provisions of Order VII, Rule 11 (d), C.P.C. can be exercised at any stage. In all these three cases, the principle enunciated is that the forum and jurisdiction in the suit depends upon the defence taken in the written statement and plea taken in the written statement are altogether irrelevant. Besides, it is held that the provisions of Order VII, Rule 11 (d), C.P.C. can be exercised at any stage. In view of the aforesaid decisions, it has emphatically been argued that the plaint does not disclose any dispute regarding existence of the waqf, which is a graveyard and also specific allegation is that this graveyard is being used by both the sects of the muslim community. There was no dispute regarding the title of the waqf and, therefore, on the basis of objection raised by the defendants, the court should not have shut the doors of the civil court without even framing a preliminary issue as to whether the dispute is regarding the question, whether the property is waqf property or not or as to whether it is shia waqf or sunni waqf. 5. It has been argued next that only the allegation of the plaint is to be examined to decide whether the facts would bring the dispute within the ambit of Section 6 of the Act and only then the bar of Section 85 would operate. In the instant case, there is no such dispute and therefore the civil court has jurisdiction under Section 9 of Civil Procedure Code. In support of this contention, learned Counsel has cited a decision of this Court, Rose Lock Factory (M/s.) and another v. District Judge, Aligarh and others, 2003 Selected Civil Decision, 104, paragraphs 19, 20 and 21. In the said case, this Court had ruled that until the dispute in question is regarding the property being waqf property or not, the bar of Section 85 will not come into play. In the present case the main thrust of the argument is that once the Kabristan was held to be a public graveyard it vests in the public. The revenue record shows that it has been recorded as such since time immemorial and was used as a burial ground by Muslim Community. Counsel for the petitioners cited a decision of the Apex Court in the case of Syed Mohd. Salie Labbai (Dead) by L. Rs. and others v. Mohd. Hanifa (Dead) by L. Rs. and others, AIR 1976 SC, 1569. Counsel for the petitioners cited a decision of the Apex Court in the case of Syed Mohd. Salie Labbai (Dead) by L. Rs. and others v. Mohd. Hanifa (Dead) by L. Rs. and others, AIR 1976 SC, 1569. The second decision relied upon is Taqdeer Singh v. Ill Additional District Judge, Jalaun and another, 2001(1) ACJ, 815, where this Court had ruled that once a graveyard is declared as public graveyard then it vests in the public and it can not be divested by its non user. The third decision is Hafiz Abdul Shakoor Warsi and others v. Ram Das and others, 1995 A.C.J., 876. Lastly it has been emphasized that the provisions of Sections 3(g) and 3 (r) of the Waqf Act defines the waqf property. There is no dispute regarding the nature of the property, the dispute arose only when one of the members of Sunni Sect was prevented from burying the dead body, the injunction suit was instituted. The impugned order whereby the plaint has been dismissed under Order VII, Rule 11 (d), C.P.C., has been assailed on the basis of the arguments that the trial court wrongly recorded a finding that before granting an injunction, it is necessary to decide whether the waqf property is Shia Waqf or Sunni Waqf. The plaintiffs claimed a relief of declaration therefore, the civil court has no jurisdiction. It is argued that the suit was for injunction and therefore, the trial court should have decided the matter. The Counsel for the respondents submitted that while allowing the application under Order VII, Rule 11 (d), C.P.C., the trial court has noticed that already a reference No. 2 of 2004 on this very question under Section 83 (2) of the Waqf Act has been instituted in the Waqf Tribunal, besides Sunni Muslim had already instituted an Original Suit No. 285 of 2003 as a representative suit which is available on record as document No. 22-Ga. This suit has been instituted on the basis of pleadings that it is customary and a civil right of the Sunni Muslim for burial purpose in respect of the same property and, therefore, for the same dispute the instant suit has been instituted which cannot be allowed to continue. This fact has not been disputed by the Counsel for the petitioners. This fact has not been disputed by the Counsel for the petitioners. Sri S.F.A. Naqvi has specifically objected and countered the argument of the Counsel for the petitioners that assuming the bar of Section 85 of the Act is not attracted even then the same dispute is pending in a reference before the Tribunal which is of the year 2004 and in another suit No. 285 of 2003. In the circumstances, this is a third litigation for the same relief. Reliance has been placed by Sri Naqvi on a decision of Division Bench of this Court in Writ Petition No. 3400 of 2000, Najma Khatoon v. U.P. Sunni Central Board of Waqf and others dated 18.11.2002. The Division Bench of this Court has refused to entertain the writ petition on the ground of alternative remedy. 6. After hearing the respective Counsels and going through the impugned orders, I am in agreement with the argument of the Counsel for the petitioners that the properly in question is a graveyard and recorded as such in the revenue record from the time immemorial and, therefore, it is public waqf and also that if the relief claimed is only that of injunction and not declaration then the suit is not barred under Section 85 of the Act. A perusal of the order of the trial court shows that the plaintiffs have challenged the ex parte compromise between certain members of the Sunni Sect and it has been specifically stated that the parties to the compromise were not representative of the Sunni Community and they signed the said compromise without considering the representatives of the Sunni Sect. On the basis of the compromise, the defendants have got registration done as Shia Waqf in the Central Waqf Board. The main objection raised in the plaint is that this registration as Shia Waqf is absolutely wrong as the Sunni Muslim had exercised their customary rights for burying the dead body of the Sunni Community since a very long time. In these circumstances, the courts below have came to a conclusion that the dispute is not only one of injunction but also as to whether the registration of the graveyard as Shia Waqf is valid or not. In these circumstances, the courts below have came to a conclusion that the dispute is not only one of injunction but also as to whether the registration of the graveyard as Shia Waqf is valid or not. Since the dispute was between the two sects of the Muslim community and regarding registration with the Central Waqf Board, the argument of the Counsel for the petitioners cannot be accepted that the suit was simplicitor for a relief of injunction. Besides, before allowing the application 14-C-2 on behalf of the defendants the court had noticed that two proceedings are continuing before the Waqf Tribunal and also before the Civil Court. 7. In view of the specific finding recorded by the trial court and confirmed in revision, I am of the view that no illegality has been committed by the courts below while rejecting the plaint and allowing the application under Order VII, Rule 11 (d), C.P.C. The plain has been annexed as Annexure-1 and the allegations regarding collusive compromise and also the registration of the graveyard as Shia Graveyard has been challenged in paragraphs 13, 14, 15 and 16 of the plaint, therefore, it cannot be said that only relief of injunction was claimed. Since the question regarding title and registration with the Waqf Board between two sects of the Muslim Community is very much eloquent on the face of the plaint, the courts below did not commit any illegality while rejecting the plaint in view of Section 85 of the Waqf Act. 8. In the circumstances, I do not find any merit in this writ petition. It is accordingly dismissed. There shall be no order as to costs. Petition Dismissed. ———