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Madhya Pradesh High Court · body

2014 DIGILAW 518 (MP)

Kallu Khan v. Wakf Intajamiya Committee

2014-05-05

ROHIT ARYA

body2014
JUDGMENT 1. This appeal by plaintiff is directed against the judgment and decree dated 24.6.2010 in Civil Appeal No.16A/2009 confirming the judgment and decree dated 27.6.2009 in Civil Suit No.10-A/2009. 2. Facts in nutshell are to the effect that plaintiff/appellant claims to be in possession of the suit shop on monthly rent of Rs.200/-. The suit shop belongs to Wakf Intajamiya Committee and he is in possession thereof as a tenant on monthly rent payable to the defendant No.1. He has paid rent upto February, 2007, however, defendant No.2 appears to have become Manager by constituting a separate Wakf Intajamiya Committee and served a notice upon appellant/plaintiff to vacate the aforesaid premises, hence, plaintiff was in confusion as to whether defendant No.1 or defendant No.2 is managing wakf property and, therefore, he also served a notice upon defendant No.1 dated 29.1.2009 and in response thereto plaintiff was required to vacate the suit premises and since he was threatened to be dispossessed, he filed the suit for declaration that he be declared to be the tenant of either defendant No.1 or defendant No.2 and defendants be restrained from dispossessing plaintiff from the suit premises. 3. On being noticed, defendant No.2 submitted an application under Order VII Rule 11 of CPC on 14.5.2009 inter alia contending that in fact vide order dated 29.11.2008 of the Wakf Committee under section 54 of the Waqf Act, the plaintiff was ordered to vacate the suit premises within thirty days. Against the said order, plaintiff/appellant had filed an appeal before the M.P. Wakf Tribunal under section 94 of the Wakf Act. The said appeal was dismissed on 23.3.2009. As such, by virtue of the aforesaid orders, it is established that the suit property is a Wakf property of the Committee and plaintiff is an encroacher. In view of the aforesaid facts, it is submitted that in the light of section 85 of the Wakf Act, 1995, the instant suit is barred. For ready reference, provisions as contained in section 83(1), (2) and section 85 of the Wakf Act, 1995 and that of Order VII Rule 11 (d) of CPC are reproduced below :- “83. Constitution of Tribunals, etc. For ready reference, provisions as contained in section 83(1), (2) and section 85 of the Wakf Act, 1995 and that of Order VII Rule 11 (d) of CPC are reproduced below :- “83. Constitution of Tribunals, etc. - (1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals 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, question or other matter relating to the wakf. (3) and (4) XXXXXX (5) The Tribunal shall be deemed to be a civil Court and shall have the same powers as may be exercised by a civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, or executing a decree or order. Order VII Rule 11 (d) of CPC- 11. Rejection of plaint.- (a) to (c) XXXXXXX (d) where the suit appears from the statement in the plaint to be barred by any law;” 4. Courts below upon perusal of aforesaid provisions, addressed upon the issue as regards maintainability of the suit. Both Courts below have found that plaintiff claims to be in possession of the suit shop as tenant of defendants-Wakf Intajamiya Committee, however, plaintiff is not accepted as tenant, but as an encroacher by the defendants, accordingly passed the order on 29.11.2008 for vacating the suit premises. The plaintiff himself had filed an appeal against the said order under section 94 of the Waqf Act, 1995 before the M.P. Wakf Tribunal. The Tribunal has dismissed the appeal on 23.3.2009. Two fold facts remained determined viz. suit property is the Wakf property and that the plaintiff/appellant is an encroacher. The plaintiff himself had filed an appeal against the said order under section 94 of the Waqf Act, 1995 before the M.P. Wakf Tribunal. The Tribunal has dismissed the appeal on 23.3.2009. Two fold facts remained determined viz. suit property is the Wakf property and that the plaintiff/appellant is an encroacher. Courts below have found that in the light of the provisions of section 85 of the Wakf Act, the instant suit is barred by law and, therefore, falls under the clause of suits as contemplated under Order VII Rule 11 (d) of CPC and accordingly dismissed the suit. On appeal before this Court, moot question is as regards maintainability of nature of suit filed before the civil Court under section 9 of CPC in the background of provisions contained in the Wakf Act, 1995. The Wakf Act has been enacted to provide for better administration and supervision of Wakf and Wakf properties spread over the territory of India. It came into force in the State of M.P. by virtue of notification issued by the State Government under section 1(3) of the Act. Chapter VIII deals with judicial proceedings. Section 83 (1) therein provides that the Tribunal shall be constituted by a notification for the determination of any dispute, question or other matter relating to wakf or wakf property under this Act. In section 83 (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 to the Tribunal for the determination of any dispute, question or other matter relating to the wakf. Section 83 (5) of the Act says that the Tribunal shall be deemed to be a civil Court and shall have all powers of a civil Court under the Code of Civil Procedure, 1908 and section 83 (7) talks that the decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a civil Court and section 83(8) of the Act talks that the execution of any decision of the Tribunal shall be made by the civil Court to which such decision is sent for execution in accordance with the provisions of CPC. Section 83 (9) of the Act speaks of bar of any appeal against the decision or order of the Tribunal provided that the High Court may either on its own motion or on an application of the Board or any person aggrieved, call for and examine the records relating to any dispute, question or other matter which has been determined by the Tribunal for the purpose of satisfying itself as to the correctness, legality and propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may deem fit. 5. Section 85 of the Act provides for bar of suit or other legal proceedings in any civil Court in respect of any dispute, question or other matter relating to any wakf property or other matter which is required by or under this Act to be determined by a Tribunal. 6. Now juxtapositioning the facts of the instant case with aforequoted provisions, it is explicit and there remains no cavil of doubt that the suit property is a wakf property in view of the order passed by the Tribunal dated 23.3.2009. Plaintiff sought declaration that he be declared as tenant either of defendant No.1 or defendant No.2 committees, managing the Wakf Intajamiya Committee and with further relief of permanent injunction against eviction. In view of the aforesaid factual matrix, in the opinion of this Court, bar as created under section 85 of the Wakf Act, 1995 squarely applies to the facts in hand as the questions to be answered in the light of the plaint allegations and the prayer clause are related to the Wakf property and the alleged status of the plaintiff has already been determined to be an encroacher by the Wakf Tribunal vide its order dated 23.3.2009, hence, the suit has rightly been dismissed by the Courts below. Appeal sans merits is hereby dismissed.