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2014 DIGILAW 341 (CAL)

Kulsum Fatema v. Noorjahan Bibi

2014-04-10

ASIM KUMAR RAY

body2014
JUDGMENT Asim Kumar Ray, J. 1. This revisional application is directed against the order dated December 3, 2012 passed in Title Suit No. 156 of 1999 by learned Civil Judge (Junior Division), 3rd Court, Alipore, South 24 Parganas whereby an application under Order 6 Rule 17 read with 151 CPC filed by the opposite party/plaintiffs was allowed and an application under Section 85 of the Waqf Act 1995 filed by the defendant No. 1(a) /petitioner No 1 was rejected. 2. The predecessor-in-interest of the opposite parties and the father of the petitioners filed Title Suit 156 of 1999 against the predecessor-in-interest of the petitioners. She entered appearance in the suit and contested the same by filing written statement. Petitioners being substituted filed an application under Section 85 of the Waqf Act, 1995 stating that the suit property is a Waqf property and as such the suit is not maintainable as the Court has no jurisdiction to entertain the suit. Thereafter the opposite parties filed an application under Order 6 Rule 17 read with Section 151 CPC praying for amendment. The opposite parties also filed written objection against the application under Section 85 of the Waqf Act, 1995 by treating the said application, an application under Order 7 Rule 11 of the CPC. The petitioners filed written objection against the application under Order 6 Rule 17 read with Section 151 CPC. The applications filed by the parties have been disposed of by the order impugned giving rise to this revisional application. 3. Mr. Shenaz Tareq Mina, learned advocate appearing for the petitioners submits in the tune of the revisional application. He took me to the application under Section 85 of the Waqf Act, 1995, Section 85 of the Waqf Act, the plaint of Title Suit No. 156 of 1999, the affidavit-in-chief filed on behalf of the plaintiff and the order impugned. 4. He has contended that the plaintiffs categorically admitted in para 1 of the plaint that the suit property belongs to the Waqf Estate, namely, Rafiuddin Waqf Estate and the same has duly enrolled with the Board of Waqfs, West Bengal under E.C. No. 4503A. The opposite party No. 1(a) /plaintiff Noor Zahan has stated in her affidavit-in-chief/evidence that the suit property is under Rafiuddin Waqf Estate and the plaintiff has been residing there. Learned Court below had no jurisdiction to take up the matter. The opposite party No. 1(a) /plaintiff Noor Zahan has stated in her affidavit-in-chief/evidence that the suit property is under Rafiuddin Waqf Estate and the plaintiff has been residing there. Learned Court below had no jurisdiction to take up the matter. The order impugned may be interfered with and set aside. He has relied on a decision reported in 2010 (14) SCC 588 . 5. Mr. D.K.Mondal, learned advocate appearing for the opposite parties has referred to Sections 6,7,83 and 85 of the act. He has contended that the lis between the parties does not relate to any question wherein waqf property is the subject matter. He has placed the application under Order 6 Rule 17 filed by the plaintiffs and invited the attention of the Court to the schedule of the said application. He has contended that the suit property originally belonged to Rafiuddin Waqf Estate and after passing of the Zamindari Abolition Act, the zamindari interest of waqf estate through its Mutwali Forkanda Begum was vested in the State. The interest of Sk. Idris, predecessor of the plaintiffs as Dakaldar Proja in the suit property transformed to raiyat interest/dakaldar praja interest under the State. Manu Bewa was the wife of Sk. Idris. Her name has been recorded in R.S. R.O.R. She along with her son and daughters became the raiyat in respect of the suit property. The dispute between the parties is not relating to the waqf estate/waqf property. The learned Court below has rightly said that as to whether suit property involves waqf property or not being a mixed questions of fact and law can be determined after evidence on trial. Section 85 of the act has no manner of application in this matter. There is no illegality in the order impugned. It may not be interfered with. He has relied on a decision reported in 2014 Supreme Appeals Reporter (civil) 18. 6. Perused the revisional application, annexure thereto and the order impugned. Minutely perused Section 6, 7, 83 and 85 of the act. Gone through the decision cited by the learned advocate of the parties. 7. It may not be interfered with. He has relied on a decision reported in 2014 Supreme Appeals Reporter (civil) 18. 6. Perused the revisional application, annexure thereto and the order impugned. Minutely perused Section 6, 7, 83 and 85 of the act. Gone through the decision cited by the learned advocate of the parties. 7. On perusal of the plaint of Title Suit No. 156 of 1999, it appears that the opposite parties/plaintiffs have stated in the para 1 that .07 decimal of land with structures at R.S. Dag No. 384, R.S. Khatian No. 407, Mouza-Kaklia, P.S. Tollygunge, District-South 24-Parganas now numbered at 74 Prince Ramiuddin Lane, Kolkata-33 under Rafiuddin Waqf Estate, E.C.No. 4530A is the subject matter of the suit. The petition under Order 6 Rule 17 read with Section 151 CPC has a schedule of amendment. Schedule-B indicates an amendment starting from five line of para 1 of the plaint. The amendment sought for appears to be noted after EC No. 4530A of para 1. Therefore, it is not disputed that the suit property is a waqf property under Rafiuddin Waqf Estate which has duly been enrolled with the Board of Waqf, West Bengal under EC No. 4530A. The evidence of plaintiff Noor Zahan by an affidavit reiterates the aforesaid pleading of the title suit vide para 7 of the evidence-in-chief. 8. The written objection filed by the opposite party against the application under Section 85 of the Act treating the application as an application under Order 7 Rule 11 of CPC. Para 6 of the said objection reveals that there is departure from the averment set in, in para 1 of the plaint. The existence of Rafiuddin Waqf Estate has been cleverly omitted in para 6. The reason for such omission appears to be there in para 8 of the objection wherein the opposite party has stated that the suit property is not now waqf property and the predecessor of the plaintiffs are not the tenants under any waqf estate. It has been stated in the concluding part of the said para that the plaintiff has filed one comprehensive amendment application for amendment of plaint to remove all defects in the plaint stating that the suit property is not a waqf property. This written objection mismatch with the petition under Order 6 Rule 17 vide schedule of amendment. 9. It has been stated in the concluding part of the said para that the plaintiff has filed one comprehensive amendment application for amendment of plaint to remove all defects in the plaint stating that the suit property is not a waqf property. This written objection mismatch with the petition under Order 6 Rule 17 vide schedule of amendment. 9. The mode of action reflected from the written objection filed by the opposite party is sufficient to strike the existence of the property as the property of Rafiuddin Waqf Estate. 10. Relevant part of Section 6 of the Act is quoted hereunder: “Disputes regarding Waqf- (1) If any question arises whether a particular property specified as waqf property in the list of waqf is property or not or whether a waqf specified in such list is a Shia or Sunni, the Board or the mutawalli of the waqf or any person aggrieved may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final: Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of waqf:” 11. Beside Section 6 we may quote Section 85 of the Act for proper appreciation of the matter: “85. Bar of jurisdiction of civil courts.- No suit or other legal proceeding shall lie in any [civil court, revenue court and any other authority] in respect of any dispute , question or other matter relating to any waqf, waqf property or other matter which is required by or under this Act to be determined by a Tribunal.” 12. The State Government by notification in the official gazette has constituted tribunals for the determination of any dispute, questions or other matters relating to waqf, or waqf property under the Act (Section 83 of the Act). 13. In Board of Wakf, West Bengal and another –vs- Anis Fatma Begum and another, reported in (2010) 14 SCC 588 , the Hon’ble Apex Court observed: “Thus, the Wakf Tribunal can decide all disputes, questions or other matters relating to a wakf or wakf property. The words “any dispute, question or other matters relating to a wakf or wakf property “are, in our opinion, words of very wide connotation. The words “any dispute, question or other matters relating to a wakf or wakf property “are, in our opinion, words of very wide connotation. Any dispute, question or other matters whatsoever and in whatever manner which arises relating to a wakf or wakf property can be decided by the Wakf Tribunal. The word “wakf” has been defined in Section 3(r) of the Wakf Act, 1995 and hence once the property is found to be a wakf property as defined in Section 3(r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal.” 14. In Haryana Wakf Board –vs- Mahesh Kumar, reported in 2014 SAR (Civil) 18, the Hon’ble Apex Court has observed: “On a conjoint reading of Section 7 and Section 85, legal position is summed up as under: (i) In respect of the questions/disputes mentioned in sub-section (1) of Section 7, exclusive jurisdiction vests with the tribunal having jurisdiction in relation to such property. (ii) Decision of the tribunal thereon is made final. (iii) The jurisdiction of the civil Court is barred in respect of any dispute /question or other matter relating to any wakf, wqkf property for other matter, which is required by or under this Act, to be determined by a tribunal. (iv) There is however an exception made under Section 7 (5) viz. those matters which are already pending before the Civil Court , even if the subject matter is covered under sub-section (1) of Section 6, the Civil Court would not continue and the tribunal shall have the jurisdiction to determine those matters.” 15. The opposite party with the help of alleged existence of R.S. R.O.R. standing in the name of Manu Bewa has tried to develop a case that the predecessors of the opposite parties were Dakaldar Praja in respect of the suit property which was claimed to have been vested to the State and as a result opposite parties predecessors-in-interest acquired raiyati interest. The bold pleading introduced by way of the amendment of the plaint comes to tussle with the original plaint wherein it has been stated that the suit property belongs to Rafiuddin Waqf Estate which was supported/corroborated by evidence of opposite party No. 1 Noor Zahan. The existence of the suit property within the folder of the wakf estate clearly at stake. Therefore, Section 85 of the Act has direct impact in this matter. The existence of the suit property within the folder of the wakf estate clearly at stake. Therefore, Section 85 of the Act has direct impact in this matter. The learned Court below though observed that the amendment of plaint to some extend curative in nature to take the case out of the folder of the wakf property but without coming to a conclusion has left the matter there saying the same being mixed question of law and fact cannot be decided/determined without taking evidence of trial though affidavit-in-chief on behalf of the plaintiffs /oral evidence of P.W. No. 1 was already there on record before passing the impugned order. 16. Taking the overall background in the matter the order impugned is interfered with and set aside. 17. The revisional application is allowed.