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2008 DIGILAW 666 (GAU)

Md. Abdulla S. K. v. Jyotsna Bewa

2008-09-09

P.K.MUSAHARY, TINLIANTHANG VAIPHEI

body2008
JUDGMENT 1. This appeal is directed against the judgment and order dated 31.5.2004 passed by the learned Single Judge in WP(C) No. 131(SH) of 2004 holding that the learned Assistant to Deputy Commissioner, Tura (a civil court) had the jurisdiction to try the question whether the suit property is a wakf property or not. 2. The facts material for disposal of this writ petition are not in dispute. The Meghalaya Board of Wakf had appointed the Appellant as a Khadim (Care Taker) of the Darga Shah Kamal Auliya Wakf estate at Mahendraganj in Garb Hills District on 8.4.1987, which is alleged to be a wakf property within the meaning of the Wakf Act, 1995 ("the Act" for short) and listed as such in the list of Wakf maintained by the Wakf Board. Aggrieved by this appointment, the Respondent instituted Title Suit No. 1/1997 in the court of the Additional Deputy Commissioner at Tura claiming that the suit property was her personal property and prayed that a decree for perpetual injunction be issued to restrain the Appellant from interfering with the suit property. The suit was apparently instituted without imploding the Meghalaya Board of Wakf as a party contrary to law. The Respondent managed to obtain an ad interim injunction against the Appellant. On notice, the Appellant contested the suit, filed his written statement of defense wherein he challenged the jurisdiction of the civil court to entertain the suit. After hearing the parties, the Ld. Addl. Deputy Commissioner by his order dated 28.3.2000 dismissed the suit. The Respondent then took the matter in revision before this Court in Civil Revision No. 10 (SH) of 2000, which by the order dated 5.9.2000 set aside the impugned order holding that the Sub-Divisional Magistrate did not have the jurisdiction to try the suit and referred the case to the learned Assistant to Deputy commissioner. West Garo Hills to try the suit afresh and dispose of the same within six months. This Court also directed therein that the status quo with regard to the suit, property on that day be maintained till appropriate order was passed by the trial court. The learned Assistant, to Deputy Commissioner, Tura accordingly proceeded with the trial of the suit and framed the following issues: 1. Whether there is any cause of action? 2. Whether this Court lias the jurisdiction to try the suit? 3. The learned Assistant, to Deputy Commissioner, Tura accordingly proceeded with the trial of the suit and framed the following issues: 1. Whether there is any cause of action? 2. Whether this Court lias the jurisdiction to try the suit? 3. Whether there is any wakfnama and Gazette Notification to the effect of declaring the suit property as wakf property or whether the suit property is the ancestral property of the Plaintiff? 4. Whether the suit property as alleged to be wakf property has been registered as wakf property? 5. Whether the suit property has been managed and looked after by the Plaintiffs family from the time of her predecessors as Khadim? 6. Whether the Defendant trespassed into the suit land and interfered with the peaceful possession, enjoyment and management of the suit land by the Plaintiff? 7. To what relief/reliefs are the parties entitled? 3. The preliminary issue Nos. 2 and 3, namely, whether the court has the jurisdiction to try the suit and whether the suit property is a listed wakf property or not came up for hearing before the trial court on 15.4.2004. The trial court by the order passed on the same day (22.4.2004) held that it had no jurisdiction to try the suit and dismiss d the suit. The Appellant thereupon approached the Deputy Commissioner, West Garo Hills for recovery of the wakf property/sit property. The Deputy Commissioner by his letter dated 28.8.2004 directed the Additional Deputy Commissioner, Ampati, under whose jurisdiction the suit property is situate, to take possession of the same and hand it over to the Appellant, which was accordingly done with the result that the Appellant assumed the charge of the suit property, which he continues to run till date on behalf of the Meghalaya Board of Wakf. In the meantime, dissatisfied with the order dated 22.4.2004 dismissing her suit, the Respondent filed WP(C) No. 131 (SH) 2004 before this Court, which, by the order dated 31.5.2004 set aside, among others, the order dated 15.4.2004 holding that the requirement of deciding the suit in accordance with law such as recording of evidence of the parties and of considering the documents filed by them and of deciding the issues framed in the suit on the basis of evidence, oral and documentary adduced by the parties had not been followed. This Court, therefore, remanded the suit for fresh trial in accordance with the procedures laid down by law from the stage as it stood on 10.3.2004. This writ appeal is now filed by the Appellant on the sole ground that the learned Single Judge grossly erred in law in remanding the suit to the trial court and in not holding that a civil court such as the trial court in question here did not have the jurisdiction to try the suit relating to the suit property, which is a wakf property as the same is barred by Section 85 of the Act. 4. There is no dispute at the bar that the suit property has not been published as wakf property as required under Section 5(2) of the Act. It is, however, the contention of Mr. A.S. Siddiquie, the learned Counsel for the Appellant that the suit property has been registered as wakf property in the register of wakf maintained by the Meghalaya Board of Wakf under Section 37 of the Act. At any rate, so submits the learned Counsel, the publication of the list of wakf in the State of Meghalaya under Section 5(2) of the Act is not the condition precedent for instituting a suit before a Tribunal constituted under Section 83 of the Act. In other words, according to the learned Counsel, the suit filed by the Respondent is in respect of a dispute or question or other matter relating to wakf property or other matter which is required by or under the Act to be determined by such Tribunal, and is, thus, barred by Section 85 of the Act. The learned Counsel, therefore, submits that as the suit instituted by the Respondents before that court is wholly without jurisdiction, it is a case of coram non judice and the learned Assistant to Deputy Commissioner be prohibited from further proceeding of the suit or the Respondent be relegated to the Tribunal to pursue, her case. Mr. The learned Counsel, therefore, submits that as the suit instituted by the Respondents before that court is wholly without jurisdiction, it is a case of coram non judice and the learned Assistant to Deputy Commissioner be prohibited from further proceeding of the suit or the Respondent be relegated to the Tribunal to pursue, her case. Mr. S.R. Sen, the learned senior Counsel for the Respondents, however, seriously disputes the statement of the learned Counsel for the Appellant that the suit property has been registered as wakf property in the Register of Wakfs maintained by the Meghalaya Board of Wakf and contends that the list of wakf properties, which included the suit property therein, is just a scrap of paper, which did not even indicate its author and cannot be acted upon for holding that the suit property is a registered wakf property. He also submits that there is no evidence to show that registration of the suit property as wakf property has been done in accordance with the procedures laid down by Sections 36 and 37 of the Act. Alternatively, the learned senior Counsel for the Respondent contends that the Respondent is neither a mutawali of the wakf nor a person interested therein within the meaning of Section 6 or Section 83 of the Act, and the suit instituted by her before a civil court is, thus, not barred by Section85 of the Act. Contending that the appeal is devoid of merits, the learned senior Counsel strenuously urges this Court to dismiss the appeal with costs. 5. At the outset, it may not be out of place to refer to the findings recorded by the trial court while dismissing the suit. It appears from the order dismissing the suit that the trial court was swayed by the fact that the Appellant herein had produced a copy of the list of Wakf Estates recognized by the Meghalaya Board of Wakf and that the suit property had been listed in the said list as wakf property/estate. The trial court also took into consideration the order dated 8.4.1997 issued by the Chief Executive Officer, Meghalaya Board of Wakf appointing the Respondent No. 1 as Khadim of the Shah Kamal Aulia Wakf Estate, Mohendragonj to look after the Mazhar Sharif. The trial court also took into consideration the order dated 8.4.1997 issued by the Chief Executive Officer, Meghalaya Board of Wakf appointing the Respondent No. 1 as Khadim of the Shah Kamal Aulia Wakf Estate, Mohendragonj to look after the Mazhar Sharif. The trial court also had observed that the Appellant herein could not produce a single supporting document to prove that the suit property is otherwise a private property. It was on the basis of those findings that the trial court held that the suit property is a wakf property within the meaning of Section 3(r)(i) of the Act and not a private property in view of the provision of Section 6 of the Act and that the suit was, thus, not maintainable for want of jurisdiction. In our considered view, the aforesaid findings, when considered in the light of the admission made by Mr. A.S. Siddique, the learned Counsel for the Appellant in the course of hearing of this appeal that the list of wakf has not been published by the Meghalaya Board of Wakf under Section 5(2) of the Act, appears to be perverse. The procedures for publication of list of wakfs under Section 5(2) of the Act are laid down in Section 4 starting with the exercise of preliminary survey of wakfs by a Survey Commissioner of Wakfs appointed by the State Government. If no publication in respect of the list of wakfs was done, as is the case here, the Meghalaya Board of Wakf has the statutory duty to register every wakf, whether created before or after the commencement of the Act, the procedures whereof are laid down in Sub-section (2) to (8) of Section 37. There is no evidence at this stage to conclude that this exercise has been undertaken by the Board; no evidence has been produced by the Appellant to show, prima facie, that the suit property has been registered as wakf property under Section 36. The so called list of wakf properties produced by the Appellant before the trial court is neither one published under Section 5(2) nor one appearing in the register of wakfs maintained by the Board under Section 37 of the Act, which, in turn, is to be based upon the registration of wakfs made in accordance with Section 36 of the Act. Therefore, we have no hesitation to say at this stage that the suit property is a wakf property. Section 83 of the Act deals with the provisions for judicial proceedings concerning wakf and other connected matters. Section 83(1) and (2) are relevant for our purpose, and the same read thus: 83. Constitution of Tribunals, etc.- (1) The State Government shall, by notification in the Official Gazette, constitute as many tribunal as it may think fit, for the determination of any dispute, question or other matter relating to a wakf or wakf property under this Act and define the local limits and jurisdiction under this Act of each of such Tribunals. (2) 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 or other matter relating to the wakf. (emphasis mine) 6. A conjoint reading of the two Sub-sections extracted above plainly shows that the Tribunal is constituted for the determination of any dispute, question or other matter relating to a wakf or wakf property on the application of a mutawalli or a person interested in a wakf or any other person aggrieved by an order made under the Act or rules made thereunder. Assuming, for a moment, that the suit property is a wakf Deputy, and therefore, the dispute in connection therewith is to be determined by the Tribunal, the question which calls for consideration is whether the Respondent is a mutawalli or a person interested in a wakf or any other person aggrieved by an order passed under the Act or the rules made thereunder. That the Respondent is not a mutawalli is not in dispute. That the Respondent is not a mutawalli is not in dispute. A person interested in a wakf is defined by Section 3(k) to mean any person who is entitled to receive any-pecuniary or other benefits from the wakf and includes: (i) any person who has a right to worship or to perform any religious rite in a mosque, idgah, imambara, dargah, khangah, maqbara, graveyard or any other religious institution connected with the wakf or to participate in any religious institution connected with the wakf or to participate in any religious or charitable institution under the wakf; (ii) the wakif and any descendant of the wakif and the mutawalli. 7. From the definition of the term "a person interested in a wakf", it becomes obvious that it is not every Tom, Dick and Harry, who can file an application for determination by the Tribunal of any dispute, question or other matter relating to wakf or wakf property but it must be one who is entitled to receive any benefit, pecuniary or otherwise, or who should come within the meaning of Sub-clause (i) and (ii) of Section 3(k) of the Act. As per the definition of "benefit" provided for in Section 3(k) of the Act, such benefit does not include any benefit which a mutawalli is entitled to claim solely by reason of his being such mutawalli. The term "beneficiary" is defined by Section 3(a) of the Act to mean a person or object for whose benefit a wakf is created and includes religious, pious and charitable objects and any other objects of public utility sanctioned by the Muslim Law. A combined reading of Section 3(k), Section 3(b) and Section 3(a) unmistakably indicates that the Respondent herein, who is incidentally not a Muslim, cannot come anywhere near the definition of "a person interested in a wakf" inasmuch as she is not a person for whose benefit a wakf is created: she is completely a stranger. Nor is she a person who can be said to be aggrieved by any order made under the Act or the rules made thereunder. As a matter of fact, on the facts found by us earlier, no order bas been passed by the Meghalaya Board of Wakf under the provisions of the Act including one under Section 40 or the rules made thereunder. As a matter of fact, on the facts found by us earlier, no order bas been passed by the Meghalaya Board of Wakf under the provisions of the Act including one under Section 40 or the rules made thereunder. To recapitulate the position, the jurisdiction of the Tribunal constituted under Section 83 of the Act can be invoked Only by a mutawalli, person interested in a wakf or any other person aggrieved by an order made under the Act or rules made thereunder for determination of any dispute, question or other matter relating to a wakf or wakf property under the Act. As the Respondent is not a mutawalli or a person interested in a wakf or a person aggrieved by any order made under the Act or rules made thereunder, the instant suit instituted by her before the learned Assistant to Deputy Commissioner is competent, and is not barred by Section 85 of the Act, Consequently, the impugned judgment and order is in order and is not liable to be interfered with. 8. For what has been stated in the foregoing, this writ appeal has no merit, and is accordingly dismissed. The trial court shall now proceed with the trial of the suit in accordance with law keeping in mind the observations of the learned Single Judge in the impugned judgment and order. The suit was filed as early as 1997 and yet, not even an inch has moved till now for disposal due to various interlocutory/incidental/ancillary proceedings. This can as well be a classic instance where justice delayed is justice denied. To avoid such categorization, it s imperative that the trial court deals with the suit with the necessary zeal and promptitude so that the suit is disposed of, preferably, within one year from today. The learned Assistant to Deputy Commissioner is directed to accord top priority to this suit and shall hold, if possible, day to day hearing for its speedy disposal. However, on the peculiar facts of this case, we pass no order as to costs. Appeal dismissed.