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2018 DIGILAW 862 (KAR)

Kawalnawaz Begum v. Haji Ebrahim Sait Wakf

2018-08-07

VINEET KOTHARI

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JUDGMENT : VINEET KOTHARI, J. 1. Smt. Kawalnawaz Begum, D/o late Syed Ahmed Ali-defendant No. 9 in the ejectment suit filed in the Court of the V Additional Small Causes Judge and XXIV ACMM, Court of Small Causes, Mayo Hall Unit, Bengaluru (SCCH-20) has, by way of present writ petition under Article 227 of the Constitution of India, challenged the order dated 30.01.2017 passed by the V Additional Small Causes Judge and XXIV ACMM, Court of Small Causes, Mayo Hall Unit, Bengaluru in S.C. No. 15470/2011 (M/s. Hajee Ebrahim Sait Wakf vs. Syed Wazir Abbas and Ors.) rejecting IA Nos. 18 and 19 filed by the defendant under Sections 36 and 87 of the Wakf Act, 1995 read with Section 151 of CPC challenging the jurisdiction of the said Court on the anvil of bar of jurisdiction under Section 87 of the Wakf Act, 1995. 2. The reasons assigned by the trial court for rejecting I.A. Nos. 18 and 19 are quoted below for ready reference: "18. It is so held by our Hon'ble High Court of Karnataka reported in KLJ 2008 (1) page 507 Mohamed Musa Sait Wakf V/s. Atul A Modi as follows: "As could be seen from the record that the petitioner-M/s. Mohamed Musa Sait Wakf, has executed Wakf deed in the year 1920 in respect of the suit schedule property. It is also an admitted fact that respondents are the tenants in respect of suit schedule property bearing shop premises No. 55, Central Street, Bangalore on rent of Rs. 2000/- p.m. It is also an admitted fact that lease deed dated 1/6/2000 was entered into between the respondents and revision petitioner-plaintiff for a period of three years. It is the contention of the revision petitioner before the trial Court that the respondents are irregular in payment of rent, therefore, filed a suit for ejectment, since the property in question is a wakf property. The Small Cause case filed by the revision petitioner-M/s. Mohammed Musa Sait wakf represented by its Muthavalli Shri Muneer Sai contended that the Judgment and decree for delivery of actual vacant physical possession of the suit, schedule property from the respondents. In pursuance of the summons, respondents appeared through their counsel and filed their written statements. The records disclose that the petitioner-plaintiff represented by Muthavalli, the power of attorney holder, viz., Afzal Pasha filed an affidavit, and the same is on record. In pursuance of the summons, respondents appeared through their counsel and filed their written statements. The records disclose that the petitioner-plaintiff represented by Muthavalli, the power of attorney holder, viz., Afzal Pasha filed an affidavit, and the same is on record. The respondents-defendants also filed a memo to hold that the Small Cause Court has no jurisdiction to entertain the Suit for ejectment since there is a bar under Sec. 85 of the Wakf Act and the wakf Tribunal alone can decide the matter. As could be seen from the records that the respondents are the tenants under the revision petitioner. The Wakf Deed was executed by his descendants in the year 1920 to enjoy the property by himself then his children, descendants thereafter it shall go to the poor persons. Therefore, there is difference between wakf-alal-aulad simpliciter and Wakf-alal-aulad composite. In the instant case, by plain reading of Wakf deed discloses that the entire right was not given to the charitable institutions, he reserved his right over the property by himself, his family, children and descendants. In the absence of his descendants and family, the property should go to the benefit of the poor persons. Therefore, the finding recorded by the trial Court that the Small cause Court has no jurisdiction under Sec. 85 of the Wakf Act, 1985 is totally incorrect and illegal. According to Section 85 the powers of Tribunal has rightly discussed by the author S.A. Kadar, the Law of Wakfs, An analytical and critical study, 1999 Edition. In view of the facts and circumstances of the case and the ratio lay down by the Division Bench of Madras high court cited supra, that the suit schedule property is a composite of Wakf property. Therefore, the Wakf Tribunal cannot decide the rights of landlord and tenant. Hence, the impugned order under challenge passed by the Wakf Tribunal is hereby set aside. 19. Upon the considering all the facts and circumstances of the case, nature of the relief claimed Section 87 of the Wakf Act 1995 is not applicable. The suit is not barred under Section 36 & 87 of the Wakf Act. The suit for ejectment of the tenant from the suit schedule premises, Wakft Alal-Aulad is maintainable. Accordingly, I answer point No. 1 is in the Affirmative. 20. The suit is not barred under Section 36 & 87 of the Wakf Act. The suit for ejectment of the tenant from the suit schedule premises, Wakft Alal-Aulad is maintainable. Accordingly, I answer point No. 1 is in the Affirmative. 20. Point No. 2-In view of the above discussion aforesaid, I proceed to pass the following: ORDER Application No. 18 & 19 filed under Section 36 & 87 of the Wakf Act 1995 R/w. Section 151 of the CPC is hereby dismissed." 3. Learned counsel for petitioner-defendant, Mr. Naveed Ahmed, has submitted before the Court that the civil court has no jurisdiction since the property in question is a wakf property and therefore, the Wakf Tribunal, under the said Act of 1995, will have jurisdiction to try the ejectment suit in question and therefore, the learned court below has erred in rejecting said I.A. Nos. 18 and 19 filed on behalf of the defendants. He submits that there is a bar of jurisdiction even in respect of unregistered wakf under Section 87, which provision held the field at the relevant point of time, though it was omitted later on 01.11.2013 by the Wakf (Amendment) Act, 2013 and therefore, the court below has erred in passing the impugned order. 4. Having heard the learned counsel for the petitioner, this Court is satisfied that there is no error in the impugned order and the same does not require any interference by this Court under Article 227 of the Constitution of India. 5. The learned court below has observed in the above quoted portion that the Wakf created by the person concerned in 1920 was a wakf-alal-aulad simpliciter and the property in question in which the defendant claimed to be tenant was not to be given to charitable institution, but the right of use was reserved for the testators's family, children and descendants. Only in the absence of any descendants of the family remaining, the property was to go to the Wakf for the benefit of the other poor persons. Since such a situation had not arisen in the present case, the ejectment suit filed by the land lord was not covered by the Wakf Act, 1995 and therefore, the question of bar of jurisdiction of civil courts under Sections 85 and 87 for unregistered Wakf, prior to its omission with effect from 01.11.2013, will not apply. 6. Since such a situation had not arisen in the present case, the ejectment suit filed by the land lord was not covered by the Wakf Act, 1995 and therefore, the question of bar of jurisdiction of civil courts under Sections 85 and 87 for unregistered Wakf, prior to its omission with effect from 01.11.2013, will not apply. 6. The reasons assigned by learned trial court are not only relevant and correct but it has rightly decided the question of jurisdiction against the said defendant and in favour of the plaintiff. 7. Therefore, writ petition filed by defendant-tenant is found to be devoid of merit. Hence, is liable to be dismissed. Accordingly, the writ petition is dismissed. No costs. Copy of this order be sent to the respondents forthwith.