Research › Search › Judgment

Calcutta High Court · body

2015 DIGILAW 260 (CAL)

Mustari Khatoon v. Mallick Hussain

2015-03-18

NISHITA MHATRE, RANJIT KUMAR BAG

body2015
JUDGMENT : Nishita Mhatre, J. 1. The appeal is directed against the decision of the Civil Judge Senior Division, First Court, Barasat in Title Suit No. 545 of 2010. By the order dated 24th September, 2013 the Trial Court has rejected the application of the appellant/plaintiff for temporary injunction. 2. The appellant is an heir of one Buddhu Khan who by deed of Waqf dated 10th May, 1939 created a Waqf in respect of his properties. The appellant claims to have an undivided share in the properties of Buddhu Khan along with the defendants. She has pleaded in the plaint that she is entitled to partition the property in order to protect her share in the property. According to her, the defendants have conspired to misuse the suit property and their actions would adversely affect her interest. It is on this basis that she approached the Civil Court, contending that she was entitled to partition the suit property. 3. The defendants opposed the contentions raised by the appellant in their written statement filed before the Trial Court. The appellant also prayed for a temporary injunction which was opposed by the respondents. 4. The Trial Court after hearing the parties has found that since the property which was the subject matter of the plaint was Waqf property, the appellant was not entitled to a temporary injunction as it had no jurisdiction to decide issues relating to such properties. 5. The learned Counsel for the appellant submitted that since the property is being wasted, there is no other remedy for the appellant but to seek the partition of the suit property. He further submitted that under the Waqf Act, 1995 the power vested in the Waqf Tribunal has been delineated under Section 7 of the Act. According to the learned Counsel the prayer sought by the appellant cannot be granted by the Waqf Tribunal and, therefore, the appellant had no other alternative remedy but to approach the Civil Court for partitioning the suit property. The learned Counsel has placed reliance on the judgment of the Supreme Court reported in the case of Ramesh Gobindram v. Sugra Humayun Mirza Wakf reported in (2010) 8 SCC 726 in support of his contention that not all disputes in respect of Waqf property are required to be adjudicated by the Waqf Tribunal. 6. The learned Counsel has placed reliance on the judgment of the Supreme Court reported in the case of Ramesh Gobindram v. Sugra Humayun Mirza Wakf reported in (2010) 8 SCC 726 in support of his contention that not all disputes in respect of Waqf property are required to be adjudicated by the Waqf Tribunal. 6. There is no dispute that the deed of Waqf was executed on 10th May, 1939 and that the property described in the schedule to the plaint was the part of the properties owned by the Waqif i.e. Buddhu Khan. Once a Waqf is created, the properties of the Waqif no longer continue as personal properties and can be used only for the purposes of maintaining the beneficiaries of the Waqf. In fact, the deed of Waqf in the present case mentions that the on the creation of the Waqf, the ownership rights of the Waqif in the properties have been extinguished. The deed further mentions that the property would no longer be a private property but a Waqf property. It would be used for the maintenance of the Waqif, his children and their descendants and in the case of the extinction of his line of the descendants, it would be used "for the benefit of the poor belonging to the Musalman faith". 7. Section 85 of the Waqf Act specifically bars the jurisdiction of the Civil Court in respect of any dispute, question or other matter relating to any Waqf, Waqf property or other matter which is required by or under the Waqf Act, to be determined by a tribunal. 8. In the case of Ramesh Gobindram (supra) the Supreme Court interpreted Section 85 of the Waqf Act and held that though the provisions of this section are wider than those of Section 6 read with Section 7 of the Act, it must be limited to matters required by the Act to be determined by the tribunal such as those falling under Sections 33, 35, 47, 48, 51, 54, 61, 64, 67, 72 and 73 of the Waqf Act. The jurisdiction of the Civil Court to entertain a suit or proceeding in relation to any question not falling within the ambit of the tribunal's power was not barred, observed the Supreme Court. 9. The jurisdiction of the Civil Court to entertain a suit or proceeding in relation to any question not falling within the ambit of the tribunal's power was not barred, observed the Supreme Court. 9. This judgment of Ramesh Gobindram (supra) which has been cited by the learned Counsel for the appellant has no application in the present case. This is because undisputedly the property is Waqf property. It therefore cannot be considered as private property vesting in a private person. The appellant has no ownership right in respect of the Waqf property. Therefore, it is but natural that she cannot claim partition of the Waqf property. The Trial Court has, in our opinion, rightly refused to grant any injunction in favour of the appellant. 10. The learned Counsel for the appellant has mentioned that the Waqf is being mismanaged and the appellant's rights need to be protected. Even if this contention is correct, the remedy for the same lies elsewhere and not before the Civil Court. Therefore, the Trial Court has committed no error in refusing to grant any injunction. 11. Hence, the appeal is dismissed. In view of the dismissal of the appeal, the application being CAN No. 9569 of 2014 is also dismissed. No order as to costs. 12. Urgent certified photocopies of this judgment, if applied for, be given to the learned Advocates for the parties upon compliance of all formalities.