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2019 DIGILAW 2772 (ALL)

Siraj Ahmad @ Sirajuddin v. Sanjeev Kumar

2019-12-13

YOGENDRA KUMAR SRIVASTAVA

body2019
JUDGMENT : 1. Heard Sri Bashir Ahmad Khan, learned counsel for the petitioners and Sri Ravi Agrawal along with Sri Rakesh Kumar Pandey, learned counsel for the respondents. 2. The present petition has been filed seeking a prayer to set aside the order dated 24.11.2018 passed by the Civil Judge (Junior Division)I, Hapur in Original Suit No.199 of 2017 (Sanjeev Kumar & Ors. Vs. Siraj Ahmad & Ors.) whereby the application (Paper No.90Ga) filed by the petitioners under Order VII Rule 11 of the Code of Civil Procedure, 1908 CPC has been rejected. 3. The petitioners also seek to assail the order dated 23.07.2019 passed by the District Judge, Hapur in Civil Revision No.75 of 2018 (Siraj Ahmad & Ors. Vs. Sanjeev Kumar & Ors.) in terms of which the order rejecting the application under Order VII Rule 11 CPC has been affirmed. 4. The only ground which has been sought to be canvased on behalf of the petitioners to support their claim for rejection of plaint under Order VII Rule 11 CPC is by placing reliance upon Section 85 of the Waqf Act, 1995 the Act, 1995 to contend that the property in question being a waqf property the jurisdiction of the civil court would be barred. 5. Per contra, learned counsel for the respondents has supported the orders passed by the courts below by submitting that no material was placed on record by the petitioners to support their claim that the property in question is a waqf property. It has further been submitted that there was no material to show that the property was included in the list of auqaf published under the Act, 1995 and the claim of the petitioners which was based merely on certain revenue entries could not be accepted. 6. In order to examine the rival contentions the scope of the provisions under Order VII Rule 11 CPC is required to be considered and it has also to be seen as to whether, in the facts of the case the jurisdiction of the civil court would be barred in view of the provisions contained under Section 85 of the Act, 1995. 7. Section 9 CPC enables any person, as a matter of right, to file a suit of a civil nature excepting those, the cognizance whereof is either expressly or impliedly barred. 8. 7. Section 9 CPC enables any person, as a matter of right, to file a suit of a civil nature excepting those, the cognizance whereof is either expressly or impliedly barred. 8. The two conditions which are required to be fulfilled for a civil court to have jurisdiction are; (a) the suit must be of a civil nature; and (b) the cognizance of such a suit should not have been expressly or impliedly barred. 9. The expression "civil nature" and the scope of jurisdiction of a civil court under Section 9 CPC was considered in the case of Most Rev. P.M.A. Metropolitan & Ors. Vs. Moran Mar Marthoma & Anr. 1995 Supp (4) SCC 286, and it was held as follows: “28. ...The expansive nature of the section is demonstrated by use of phraseology both positive and negative. The earlier part opens the door widely and latter debars entry to only those which are expressly or impliedly barred. The two explanations, one existing from inception and latter added in 1976 bring out clearly the legislative intention of extending operation of the section to such religious matters where right to property or office is involved irrespective of whether any fee is attached to the office or not. The language used is simple but explicit and clear. It is structured on the basic principle of a civilised jurisprudence that absence of machinery for enforcement of right renders it nugatory. The heading which is normally key to the section brings out unequivocally that all civil suits are cognizable unless barred. What is meant by it is explained further by widening the ambit of the section by use of the word 'shall' and the expression, “all suits of a civil nature” unless “expressly or impliedly barred”. 29. Each word and expression casts an obligation on the court to exercise jurisdiction for enforcement of right. The word 'shall' makes it mandatory. No court can refuse to entertain a suit if it is of description mentioned in the section. That is amplified by use of expression 'all suits of civil nature'. The word 'civil' according to dictionary means “relating to the citizen as an individual; civil rights”. In Black's Legal Dictionary it is defined as “relating to provide rights and remedies sought by civil actions as contrasted with criminal proceedings”. In law it is understood as an antonym of criminal. The word 'civil' according to dictionary means “relating to the citizen as an individual; civil rights”. In Black's Legal Dictionary it is defined as “relating to provide rights and remedies sought by civil actions as contrasted with criminal proceedings”. In law it is understood as an antonym of criminal. Historically the two broad classifications were civil and criminal. Revenue, tax and company etc. were added to it later. But they too pertain to the larger family of 'civil'. There is thus no doubt about the width of the word 'civil'. Its width has been stretched further by using the word 'nature' along with it. That is even those suits are cognizable which are not only civil but are even of civil nature. In Article 133 of the Constitution an appeal lies to this Court against any judgment, decree or order in a “civil proceeding”. This expression came up for construction in S.A.L. Narayan Row v. Ishwarlal Bhagwandas ( AIR 1965 SC 1818 ). The Constitution Bench held “a proceedings for relief against infringement of civil right of a person is a civil proceedings”. In Arbind Kumar Singh v. Nand Kishore Prasad ( AIR 1968 SC 1227 ) it was held “to extend to all proceedings which directly affect civil rights”. The dictionary meaning of the word 'proceedings' is “the institution of a legal action, any step taken in a legal action”. In Black's Law Dictionary it is explained as: “In a general sense, the form and manner of conducting juridical business before a court or judicial officer. Regular and orderly progress in form of law, including all possible steps in an action from its commencement to the execution of judgment. Term also refers to administrative proceedings before agencies, tribunals, bureaus, or the like.” The word 'nature' has been defined as “the fundamental qualities of a person or thing; identity or essential character; sort; kind; character”. It is thus wider in content. The word 'civil nature' is wider than the word “civil proceeding”. The section would, therefore, be available in every case where the dispute has the characteristic of affecting one's rights which are not only civil but of civil nature.” 10. A litigant having grievance of a civil nature thus has a right to institute a suit in a civil court unless its cognizance is either expressly or impliedly barred. In Dhulabhai Vs. A litigant having grievance of a civil nature thus has a right to institute a suit in a civil court unless its cognizance is either expressly or impliedly barred. In Dhulabhai Vs. State of M.P., AIR 1969 SC 78 it was held that the exclusion of the jurisdiction of civil court is not to be readily inferred and such exclusion must be clear. 11. Reference may also be had to the judgment in the case of Secretary of State Vs. Mask & Company, AIR 1940 PC 105 which is the leading decision on the point that exclusion of jurisdiction of civil courts is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied. The observations made in the judgment are as follows: "... It is settled law that the exclusion of the jurisdiction of the Civil Courts is not to be readily inferred, but that such exclusion must either be explicitly expressed or clearly implied. It is also well settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure..." 12. The aforementioned legal position was reiterated in Firm Seth Radha Kishan (Deceased) represented by Hari Kishan Vs. the Administrator, Municipal Committee, Ludhiana, AIR 1963 SC 1547 wherein it was stated that at the mere conferment of special jurisdiction on a tribunal in respect of any matter does not itself exclude the jurisdiction of civil courts. The observations made in the judgment are as follows: “7. Under S. 9 of the Code of Civil Procedure the Court shall have jurisdiction to try all suits of civil nature excepting suits of which cognizance is either expressly or impliedly barred. A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of civil Courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil Courts. A statute, therefore, expressly or by necessary implication, can bar the jurisdiction of civil Courts in respect of a particular matter. The mere conferment of special jurisdiction on a tribunal in respect of the said matter does not in itself exclude the jurisdiction of civil Courts. The statute may specifically provide for ousting the jurisdiction of civil Courts; even if there was no such specific exclusion, if it creates a liability not existing before and gives a special and particular remedy for the aggrieved party, the remedy provided by it must be followed. The same principle would apply if the statute had provided for the particular forum in which the said remedy could be had. Even in such cases, the Civil Court's jurisdiction is not completely ousted. A suit in a civil Court will always lie to question the order of a tribunal created by a statute, even if its order is, expressly or by necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its provisions.” 13. The inherent right in every person to bring a suit of civil nature unless the same is barred by statute was emphasised in the case of Smt. Ganga Bai Vs. Vijay Kumar & Ors., (1974) 2 SCC 393 , in the following words: “15. ...There is an inherent right in every person to bring suit of a civil nature and unless the suit is barred by statute one may, at one's peril, bring a suit of one's choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue. A suit for its maintainability requires no authority of law and it is enough that no statute bars the suit...” 14. A similar view was taken in the case of Dhannalal Vs. Kalawatibai & Ors., (2002) 6 SCC 16 wherein it was stated that plaintiff is dominus litis and it is for him to choose the forum unless there be a rule of law excluding access to the said forum. The observations made in the judgment are as follows: “23. Plaintiff is dominus litis, that is, master of, or having dominion over, the case. He is the person who has carriage and control of an action. The observations made in the judgment are as follows: “23. Plaintiff is dominus litis, that is, master of, or having dominion over, the case. He is the person who has carriage and control of an action. In case of conflict of jurisdiction the choice ought to lie with the plaintiff to choose the forum best suited to him unless there be a rule of law excluding access to a forum of the plaintiff's choice or permitting recourse to a forum will be opposed to public policy or will be an abuse of the process of law.” 15. In the case at hand the plea which has been sought to be raised on behalf of the petitioners for rejection of plaint under Order VII Rule 11 CPC is based on the contention that the suit property having been shown in the revenue records as a “kabristan” (graveyard) as a consequence the same would be a waqf property and in view of the bar under Section 85 of the Act, 1995 the jurisdiction of the civil court would be barred. 16. In order to appreciate the aforementioned contention the provision contained under Section 85 may be adverted to. For ease of reference Section 85 is being reproduced below: “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 wakf, waqf property or other matter which is required by or under this Act to be determined by a Tribunal.” 17. The expression “waqf” has been defined under Section 3(r) of the Act, 1995, and the same is extracted below: “3. The expression “waqf” has been defined under Section 3(r) of the Act, 1995, and the same is extracted below: “3. Definitions.—In this Act, unless the context otherwise requires,— x x x x x (r) “waqf” means the permanent dedication by any person, of any movable or immovable property for any purpose recognised by the Muslim law as pious, religious or charitable and includes— (i) a waqf by user but such waqf shall not cease to be a waqf by reason only of the user having ceased irrespective of the period of such cesser; (ii) a Shamlat Patti, Shamlat Deh, Jumla Malkkan or by any other name entered in a revenue record; (iii) “grants”, including mashrutulkhidmat for any purpose recognised by the Muslim law as pious, religious or charitable; and (iv) a waqfalalaulad to the extent to which the property is dedicated for any purpose recognised by Muslim law as pious, religious or charitable, provided when the line of succession fails, the income of the waqf shall be spent for education, development, welfare and such other purposes as recognised by Muslim law, and “waqif” means any person making such dedication;” 18. Section 5 of the Act, 1995 provides for publication of list of auqaf in the Official Gazette, which reads as follows:“ 5. Publication of list of auqaf.—(1) On receipt of a report under subsection (3) of section 4, the State Government shall forward a copy of the same to the Board. (2) The Board shall examine the report forwarded to it under subsection (1) and forward it back to the Government within a period of six months for publication in the Official Gazette a list of Sunni auqaf or Shia auqaf in the State, whether in existence at the commencement of this Act or coming into existence thereafter, to which the report relates, and containing such other particulars as may be prescribed. (3) The revenue authorities shall— (i) include the list of auqaf referred to in subsection (2), while updating the land records; and (ii) take into consideration the list of auqaf referred to in subsection (2), while deciding mutation in the land records. (4) The State Government shall maintain a record of the lists published under subsection (2) from time to time.” 19. (4) The State Government shall maintain a record of the lists published under subsection (2) from time to time.” 19. In terms of Section 36 of the Act, 1995 every waqf whether created before or after commencement of the Waqf Act, 1995 is required to be registered at the office of the Waqf Board the Board, and in terms of subsection (8) thereof every application for registration of waqf is required to be made within three months from the date of; (a) commencement of the Act, 1995, (b) the creation of the waqf, (c) the establishment of the Board, as the case may be. The relevant provisions in this regard are being extracted below: “36. Registration.—(1) Every waqf, whether created before or after the commencement of this Act, shall be registered at the office of the Board. x x x x x (8) In the case of auqaf created before the commencement of this Act, every application for registration shall be made, within three months from such commencement and in the case of auqaf created after such commencement, within three months from the date of the creation of the waqf: Provided that where there is no Board at the time of creation of a waqf, such application will be made within three months from the date of establishment of the Board. Comments: Registration of every waqf at the office of the Board is a sine qua non to its valid creation. Every application for registration of waqf shall be made within three months from the date of (a) the commencement of this Act, (b) the creation of the waqf, (c) the establishment of the Board, as the case may be.” 20. A plain reading of the provisions under Section 36 lead to the inference that registration of every waqf at the office of the Board is a sine qua non to its valid creation. 21. The Act, 1995 provides for publication of the list of auqaf under Section 5 after receipt of a report of survey under sub section (3) of Section 4 and it is also enjoined upon the Revenue Authorities to include the list of auqaf published in the Official Gazette, while updating the land records. 22. 21. The Act, 1995 provides for publication of the list of auqaf under Section 5 after receipt of a report of survey under sub section (3) of Section 4 and it is also enjoined upon the Revenue Authorities to include the list of auqaf published in the Official Gazette, while updating the land records. 22. The courts below have recorded that the petitioners have not been able to place any material on record that the property in question, which according to them was entered in revenue records, as “kabristan”, was a waqf property, as per the requirement under the Act, 1995, by way of its inclusion in the list of auqaf which is required to be published in the Official Gazette or by way of its registration as a waqf before the Board. 23. As regards the reliance sought to be placed on certain revenue entries wherein the property is stated to be entered as “kabristan” this Court may take into consideration that it is settled law that the revenue records do not confer title and even if the entries in the record of rights may be held to carry value that by itself would not confer any title upon the person claiming on the basis of the same. 24. The Supreme Court in Guru Amarjit Singh Vs. Rattan Chand & Ors., (1993) 4 SCC 349 held that entry in revenue records are not proof of title, and it was stated as follows: "2. ...It is settled law that entries in the Jamabandi are not proof of title. They are only statements for revenue purpose. It is for the parties to establish the relationship or title to the property unless there is unequivocal admission..." 25. A similar position was reiterated in Jattu Ram Vs. Hakam Singh, (1993) 4 SCC 403 and it was held as follows:" "3. ...The sole entry on which the appellate court placed implicit reliance is by the Patwari in Jamabandi. It is settled law that the Jamabandi entries are only for fiscal purpose and they create no title..." 26. In Union of India & Ors. Vs. Vasavi Cooperative Housing Society Limited & Ors., (2014) 2 SCC 269 the same legal position has again been stated in the following terms: "21. This Court in several judgments has held that the revenue records do not confer title. In Corpn. In Union of India & Ors. Vs. Vasavi Cooperative Housing Society Limited & Ors., (2014) 2 SCC 269 the same legal position has again been stated in the following terms: "21. This Court in several judgments has held that the revenue records do not confer title. In Corpn. of the City of Bangalore v. M. Papaiah (1989) 3 SCC 612 this Court held that: (SCC p. 615, para 5) "5. ...It is firmly established that the revenue records are not documents of title, and the question of interpretation of a document not being a document of title is not a question of law." In Guru Amarjit Singh v. Rattan Chand (1993) 4 SCC 349 this Court has held that: (SCC p. 352, para 2) "2. ...that entries in the Jamabandi are not proof of title." In State of H.P. v. Keshav Ram (1996) 11 SCC 257 this Court held that: (SCC p. 259, para 5) "5. ...an entry in the revenue papers by no stretch of imagination can form the basis for declaration of title in favour of the plaintiffs." 27. This Court may also take notice of the fact that the Act, 1995 has been enacted to provide for the better administration of auqaf for the matters connected therewith or incidental thereto, and as per Section 85, the bar of jurisdiction of the civil courts is 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 Act, 1995 to be determined by a Tribunal, therefore, it is only those matters which are required by or under the Act, 1995 to be determined by a Tribunal that the bar under Section 85 would apply. It is also seen from the scheme of the Act, 1995 that the jurisdiction of the civil courts is not completely ousted. 28. A similar plea with regard to the ouster of jurisdiction of civil courts in view of the provision contained under Section 85 of the Act, 1995 was considered in the case of Sayed Ekram Saha & Ors. Vs. Debendra Kumar Pati & Ors., AIR 2018 Ori 47 and the said contention was repelled after taking notice of the fact that no material was placed on record to establish that the property involved in the suit was enlisted property in the list of auqaf prepared under the Act, 1995. Vs. Debendra Kumar Pati & Ors., AIR 2018 Ori 47 and the said contention was repelled after taking notice of the fact that no material was placed on record to establish that the property involved in the suit was enlisted property in the list of auqaf prepared under the Act, 1995. The relevant observations made in the judgment are as follows: “6. A whole reading of the aforesaid provisions makes it clear that first of all the property must be a auqaf property finds place in the list prepared following section 5 of the Act based on the preliminary survey following the provisions contained in Section 4 of the Act and in the event any dispute regarding the status of such property under the list, the Tribunal constituted under the Act has been given power to decide such matters. So far as provision under Section 81(5) is concerned, it also leaves no doubt that the Tribunals have the same power like the Civil Court under the Code of Civil Procedure while trying a suit or executing a decree or order. Taking into consideration the claim of Sri Nayak, learned counsel that Civil Court has all powers to decide the dispute even involving waqf property has no force. Power given under Section 83 (5) of the Act is limited to the extent following the powers of Civil Court following the provisions of the Code of Civil Procedure relating to trial of a suit or executing a decree or order and nothing beyond that. Looking to the claim of Sri Nayak, learned counsel for the petitioner, this Court finds even though the petitioners claimed in the court below that the property being waqf property, a civil suit is barred under Section 85 of the Act, but for no material to establish that the property involved in the suit is enlisted property involving the list of Waqf or auqafs as prepared under Sections 4 and 5 of the Act, a civil suit at this stage is not barred...” 29. The jurisdiction of civil court is plenary in nature and unless the same is ousted expressly or by necessary implication, it will have jurisdiction to try all types of suits. The ouster of jurisdiction, it is well settled, cannot be inferred readily and onus lies on the person asserting the ouster and vesting of jurisdiction in some other court, tribunal or authority. The ouster of jurisdiction, it is well settled, cannot be inferred readily and onus lies on the person asserting the ouster and vesting of jurisdiction in some other court, tribunal or authority. Section 9 CPC enables any person, as of right, to file a suit of civil nature excepting those, the cognizance whereof is expressly or by necessary implication barred. 30. Order VII Rule 11(d) CPC is one of such provisions which provides for rejection of plaint, if it is barred by any law. The provision therein being in the nature of an exception the same must be strictly construed and the embargo there under to the maintainability of the suit must be apparent from the averments in the plaint. 31. The courts below having recorded findings to the effect that no material was placed on record by the petitioner to show that the suit property is a waqf or a waqf property or relates to any other matter which is required to be determined by a Tribunal constituted under the Act, 1995, the bar under Section 85 where under the jurisdiction of civil courts is ousted, has rightly been held to be not attracted and in view of the same the application of the petitioners for rejection of the plaint has been turned down. The orders passed by the courts below therefore cannot be faulted with. 32. This Court may also take notice of the fact that the power of superintendence conferred under Article 227, is to be exercised most sparingly and within the parameters which have been summarized in the case of Shalini Shyam Shetty & Anr. Vs. Rajendra Shankar Patil, (2010) 8 SCC 329 , and also in the case of Radhey Shyam & Anr. Vs. Chhabi Nath & Ors., (2015) 5 SCC 423 . 33. Counsel for the petitioners has not been able to point out any material error or illegality in the orders passed by the court below so as to warrant interference in exercise of power under Article 227 of the Constitution of India. 34. The petition thus fails and is accordingly dismissed.