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2016 DIGILAW 189 (CAL)

Syed Mahamudul Muswi v. Brajobashi Das

2016-02-22

ASHOKE KUMAR DASADHIKARI

body2016
JUDGMENT : Ashoke Kumar Dasadhikari, J. 1. Since issue involved in the aforementioned five applications are same, all these applications are taken up together for hearing and disposed of by a common order. 2. Petitioners are Joint Mutwalli and Joint Secretary, Baish hazari Wakf Estate, both sons of Syed Aminul Muswi of Village - Hyderpur, P.S. - English Bazar, P.O. & District - Malda. The suit properties are recorded as Baish Hazari Wakf Estate in C.S., R.S. and L.R. Record of Rights. Petitioners claimed the property in question being Wakf Property is a property subject to the provisions under Section 85 of the Wakf Act, 1995 (hereinafter referred to as the said “Act”). In view of the provisions under Section 85 of the said Act, no suit or other legal proceeding shall lie 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 the said Act to be determined by the Tribunal. 3. The plaintiff/opposite party instituted a suit being T.S. No. 79 of 2011 claiming their right, title, interest and possession in respect of the ‘A’ and ‘B’ scheduled properties before the learned Civil Judge (Junior Division), Balurghat, Dakshin Dinajpur. It was claimed by the plaintiff/opposite party that he has been possessing the suit property as a absolute owner for more than 12 years openly, uninterruptedly, continuously and with the knowledge of the other and he has acquired independent, indefeasible right, title, interest and possession in the suit property. 4. The petitioners/Mutwallis in the aforementioned title suit being T.S. No. 79 of 2011 filed an application stating therein that the property in question mentioned in the plaint is a Wakf property exclusively belonging to Baish Hazari Wakf Estate which is a public wakf property. It was claimed that in C.S., R.S. and L.R. Record of Rights property recorded as wakf property which was admitted by the plaintiff/opposite party in his plaint. In that application the point of jurisdiction of the learned Civil Court was raised and as per provisions of Section 85 of the said Act no suit or other legal proceeding would lie in Civil Court in respect of any dispute, question or other matter relating to any wakf, wakf property etc. In that application the point of jurisdiction of the learned Civil Court was raised and as per provisions of Section 85 of the said Act no suit or other legal proceeding would lie in Civil Court in respect of any dispute, question or other matter relating to any wakf, wakf property etc. The petitioners being two Mutwalli specifically claimed that the plaintiff/opposite party is not entitled to get any relief in view of specific bar under the said Act. The application was contested by the plaintiff/opposite party and it was submitted by the plaintiff’s learned advocate that the plaintiff is possessing the suit property for a long period of time. 5. Learned advocate of the plaintiff also submitted that the petition of the defendant/opposite party no. 2 was pre-matured one till the appearance and the submission of the written statement by the defendant no. 2 in the suit, namely, Commissioner of West Bengal Wakf Board. It was further submitted that the jurisdiction of the Civil Court is not barred by the provision of Section 85 of the said Act. It was further submitted that the written statement is very much necessary for consideration of the matter. According to the opposite parties, a trial is also necessary for deciding the issue. It was further submitted that a claim of adverse possession was made, which cannot be decided by the Wakf Board or the Tribunal and the Civil Court is the appropriate forum to decide the issue. 6. After hearing the learned Counsel appearing for both the sides, the learned Court below is of prima facie opinion that possession of the property in question is with the plaintiff/opposite party. Defendant No. 2, Commissioner of Wakf failed to appear even in spite of summons. Learned Court below followed a judgment of this Hon’ble High Court reported in (2011) 2 CLJ Calcutta 60. It was held by the learned Court below that the right of the plaintiff/opposite party was claimed as a beneficiary under the wakf deed. Accordingly, the provisions under Section 85 of the said Act did not apply. The learned Court below was of the view since the plaintiff/opposite party claimed right, title, interest and possession and a decree for permanent injunction, the ratio of the aforementioned judgment is applicable in the instant case. Accordingly, the provisions under Section 85 of the said Act did not apply. The learned Court below was of the view since the plaintiff/opposite party claimed right, title, interest and possession and a decree for permanent injunction, the ratio of the aforementioned judgment is applicable in the instant case. However, the learned Court below recorded that the plaintiff/opposite party has admitted that he has been paying rent of the said property to the Wakf Estate. The learned Court below was of the view that on a dispute and a question relating to wakf property, as admitted by the plaintiff in its plaint, the provision under Section 85 of the said Act is not attracted in this case. 7. According to the learned Court below tribunal is not the appropriate forum to decide the issue involved in it. Therefore, the application made by the Mutwallis was rejected. 8. Learned Counsel appearing for the petitioners/Mutwallis submits that the plain reading of the plaint would show that the property is a wakf property and the plaintiff/opposite party has been paying rent for his occupancy. He submits that the wakf is a public wakf. Nobody is entitled to claim any ownership in the wakf property. In the present case, the opposite party has been paying rent regularly for their enjoyment since they are the tenants of the aforementioned wakf property. There is no question of declaring the plaintiff/ opposite party is in adverse possession of the suit property. He submitted that the learned Court below failed to appreciate the true scope of the application and, as such, dismissed. 9. On the other hand, learned Counsel appearing for the plaintiff/opposite party submitted that this is a clear case of adverse possession and also a claim for declaration of right, title and interest and for permanent possession, which the Tribunal cannot decide. He submitted in the facts and circumstances of this case, the Tribunal is not the appropriate authority to decide the issue. According to him, Civil Court is the appropriate Court to decide the title over and in respect of the property in question. He further submitted that payment of rent and also his admission made in the plaint about the estate of the property owned by Baish Hazari Wakf in no way help the petitioners/Mutwallis to get an order of non- maintainability of the title suit before the learned Court below. 10. He further submitted that payment of rent and also his admission made in the plaint about the estate of the property owned by Baish Hazari Wakf in no way help the petitioners/Mutwallis to get an order of non- maintainability of the title suit before the learned Court below. 10. Considered the submissions made by the learned Counsel appearing for the parties. There is a specific finding of the learned Court below that the title suit is undoubtedly based on a dispute and a question relating to a wakf property, which is admitted by the plaintiff/opposite party in their plaint. Learned Court below also found that the plaintiff/opposite party has admitted that he has been paying rent for the said property to the Wakf Estate. In spite of those findings the learned Court below erroneously held that the provision under Section 85 of the said Act is not attracted in such a situation. There is no doubt that the dispute in the present case relates to a wakf property. It is now settled that in the first instance the matter pertaining to wakf should be filed before the Wakf Tribunal constituted under Section 83 of the said Act. Under no circumstances the Civil Court is authorised to entertain a suit filed by a tenant. Under the statute itself a Special Tribunal for deciding the disputes relating to wakf was constituted. The obvious purpose of constituting such a Tribunal was that a lot of cases relates to wakfs were being filed in courts in India and they were occupying a lot of times to all the courts in the country which resulted in increase in pendency of cases in the courts. Hence, Special Tribunal has been constituted under Section 83 of the said Act for deciding such matters. 11. Tribunals are authorised under Section 84 of the said Act to hold proceedings expeditiously and to furnish to the parties copies of its decisions. 12. Accordingly, the Wakf Tribunal is authorised to decide all question related to a wakf or wakf property. The words “any dispute, question or other matters relating to a wakf or wakf property” are words of very wide connotation. Therefore, 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 words “any dispute, question or other matters relating to a wakf or wakf property” are words of very wide connotation. Therefore, 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. Hence, once a property is found be a wakf property under the definition of Section 3(r) of the said Act, then the dispute relating to the wakf property should be agitated before the Wakf Tribunal. It is needless to mention that the provision under Section 85 of the said Act creates a bar for maintaining any civil suit. According to the provision under Section 83(5) of the said Act, the Tribunal has all powers of the Civil Court under the Code of Civil Procedure, and hence it has also powers under Order 39, Rule 1 , 2 and 2-A of the C.P.C. 1908 to grant temporary injunctions and enforce such injunctions. Hence, a full-fledged remedy is available to any party if there is any dispute, question or other matter relating to a wakf or wakf property. 13. The aforementioned Act is a special law providing for a special forum, the recourse cannot be taken to the general law. Accordingly, this Court is of the view that the order passed by the learned Court below in all the five matters are erroneous in law and suffer material irregularity and illegality and, as such, are not sustainable in law. Therefore, impugned orders in all the five revisional applications are set aside. 14. Accordingly, all the revisional applications are allowed. However, this order will not prevent the plaintiff/opposite party to raise any dispute relates to the aforementioned wakf property before the appropriate forum under the said Act itself. 15. After the judgment has been delivered learned Counsel appearing for the opposite parties submits that the plaints should be transferred to the Tribunal. 16. This Court is of the view that the plaints cannot be straightway transferred to the tribunal. However, the opposite parties are permitted to withdraw their plaints and submit applications before the Tribunal, if so advised. In case, any application is made before the Tribunal, the Tribunal will consider the same condoning the delay, if there be any. 17. Urgent photostat certified copy of this order, if applied for, be given to the learned advocates for the parties.