JUDGMENT : Abdul Moin, J. Heard learned counsel for the revisionist, learned Additional Chief Standing counsel appearing for the respondents no. 2 and 5 and Sri Q.H.Rizvi, learned counsel appearing for the respondent no.1. 2. By means of the present revision, the revisionist has challenged the order dated 26.12.2018 passed by the U.P. Waqf Tribunal, Lucknow (hereinafter referred to as "Tribunal") in Waqf Case No. 21 of 2018 In re; Waqf Qabristan Vs. U.P. Sunni Central Waqf Board whereby the application under Section 83 (2) of the Waqf Act, 1995 (hereinafter referred to as "Act, 1995") filed by the revisionist has been returned for filing the suit afresh after compliance with Section 80 of Civil Procedure Code. 3. Learned counsel for the revisionist submits that he had preferred an application under the provisions of Section 83 (2) of the Act, 1995 before the Tribunal for the following reliefs:- "(i) To issue an appropriate order declaring the Qabristan situate at Mauza Ramahimmatpur Pargana/Tehsil Purwa, District-Unnao, on Khasra plot no. 349 Ka as Waqf (Qabristan). (ii) To restrain the respondents nos. 04 and 05 from interfering/stopping the burial of the dead at Waqf Qabristan situate at Mauza Ramahimmatpur Pargana/Tehsil Purwa, District-Unnao, bearing no. 1673. (iii) To direct the respondent no. 01 for taking appropriate action on the applications of the applicant dated 03.11.2018 and 17.10.2018. (iv) To allow the application with costs. 4. It is contended that the learned Tribunal vide its order dated 26.12.2018 directed for return of the plaint to the revisionist for filing of a suit afresh after compliance of Section 80 of the Civil Procedure Code (hereinafter referred to as "C.P.C). 5. Learned counsel for the revisionist contends that the order passed by the learned Tribunal is patently bad in the eyes of law and reflects patent non application of mind inasmuch as once an application is filed under Section 83 (2) of the Act, 1995 then there is no requirement of a notice under the provisions of Section 80 CPC as has been held by this Court in the case of Shahroz Khan vs. U.P. Sunni Central Waqf Board and Ors, (2009) 4 AWC 4044 . 6. 6. It is thus contended that the order passed by the Tribunal dated 26.12.2018 has been passed without considering the relevant provisions of the Act, 1995 including Section 83 (2) and the judgment of this Court in the case of Shahroz Khan (supra), consequently the order merits to be set aside. 7. On the other hand, Sri Q.H.Rizvi, learned counsel appearing for the Waqf Board argues that as the revisionist had filed an application for declaration of the Qabristan (graveyard) as a Waqf, consequently the said application would not be maintainable under Section 83 (2) of the Act, 1995 rather the same would fall within the ambit of being a 'Suit' under the provision of Section 7 of the Act, 1995 and consequently, a notice under Section 89 of the Act, 1995 would be a sine-qua-non to any such suit. He thus contends that the order passed by the learned Tribunal is perfectly legal and valid calls for no interference. 8. Heard learned counsel for the contesting parties and perused the records. 9. Before proceeding with the matter, it would be convenient to reproduce Sections 6,7,83 and 89 of the Act, 1995 which have a direct bearing on the dispute in hand. "6. Disputes regarding (auqaf).-- (1) If any question arises whether a particular property specified as waqf property in the list of (auqaf) is waqf property or not or whether a waqf specified in such list is a Shia waqf or Sunni waqf, the Board or the mutawalli of the waqf or any person interested therein may institute a suit in a Tribunal for the decision of the question and the decision of the Tribunal in respect of such matter shall be final: Provided that no such suit shall be entertained by the Tribunal after the expiry of one year from the date of the publication of the list of auqaf. Provided further that no suit shall be instituted before the Tribunal in respect of such property notified in a second or subsequent survey pursuant to the provisions contained in sub Section (6) of Section4. (2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any waqf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit. (2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any waqf shall be stayed by reason only of the pendency of any such suit or of any appeal or other proceeding arising out of such suit. (3) The Survey Commissioner shall not be made a party to any suit under sub-section (1) and no suit, prosecution or other legal proceeding shall lie against him in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rules made thereunder. (4)The list of auqaf shall, unless it is modified in pursuance of a decision or the Tribunal under sub-section (1), be final and conclusive. (5) On and from the commencement of this Act in a State, no suit or other legal proceeding shall be instituted or commenced in a court in that State in relation to any question referred to in sub-section (1)." 7. Power of Tribunal to determine disputes regarding (auqaf):- (1) If, after the commencement of this Act, (any question or dispute) arises, whether a particular property specified as waqf property in a list of auqaf is waqf property or not, or whether a waqf specified in such list is a Shia waqf or a Sunni waqf, the Board or the mutawalli of the waqf, or any person (or any person aggrieved by the publication of the list of auqaf under Section 5) therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final: Provided that-- (a) in the case of the list of auqaf relating to any part of the State and published after the commencement of this Act no such application shall be entertained after the expiry of one year from the date of publication of the list of auqaf; and (b) in the case of the list of auqaf relating to any part of the State and published at any time within a period of one year immediately preceding the commencement of this Act, such an application may be entertained by Tribunal within the period of one year from such commencement: Provided further that where any such question has been heard and finally decided by a civil court in a suit instituted before such commencement, the Tribunal shall not re-open such question. (2) Except where the Tribunal has no jurisdiction by reason of the provisions of sub-section (5), no proceeding under this section in respect of any waqf shall be stayed by any court, tribunal or other authority by reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application, appeal or other proceeding. (3) The Chief Executive Officer shall not be made a party to any application under sub-section (1). (4) The list of auqaf and where any such list is modified in pursuance of a decision of the Tribunal under sub-section (1), the list as so modified, shall be final. (5) The Tribunal shall not have jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a civil court under sub-section (1) of section 6, before the commencement of this Act or which is the subject-matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of any application for revision or review arising out of such suit, proceeding or appeal, as the case may be. (6) Tribunal shall have the power of assessment of damages by unauthorized occupation of waqf property and to penalise such unauthorized occupants for their illegal occupation of the waqf property and to recover the damages as arrears of land revenue through the Collector. Provided that whosoever, being a public servant, fails in his lawful duty to prevent or remove an encroachment, shall on conviction be punishable with fine which may extend to fifteen thousand rupees for each such offence. 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 waqf or wakf property, eviction of a tenant or determination of right and obligations of the lessor and the lessee of such property, under this Act and define the local limits of such Tribunals. (2) Any mutawalli or person interested in a waqf 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 waqf. (3) Where any application made under sub-section (1) relates to any wakf property which falls within the territorial limits of the jurisdiction of two or more Tribunals, such application may be made to the Tribunal within the local limits of whose jurisdiction the mutawalli or any one of the mutawallis of the waqf actually and voluntarily resides, carries on business or personally works for gain, and, where any such application is made to the Tribunal aforesaid, the other Tribunal or Tribunals having jurisdiction shall not entertain any application for the determination of such dispute, question or other matter. Provided that the State Government may, if it is of opinion that it is expedient in the interest of the waqf or any other person interested in the waqf or the waqf property to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such waqf or waqf property, transfer such application to any other Tribunal having jurisdiction, and, on such transfer, the Tribunal to which the application is so transferred shall deal with the application from the stage which was reached before the Tribunal from which the application has been so transferred, except where the Tribunal is of opinion that it is necessary in the interests of justice to deal with the application afresh. (4) Every Tribunal shall consist of one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District, Sessions or Civil Judge, Class I, and the appointment of every such person may be made either by name or by designation. (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. (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. (6) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908), the Tribunal shall follow such procedure as may be prescribed. (7) 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. (8) 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 the Code of Civil Procedure, 1908 (5 of 1908). (9) No appeal shall lie against any decision or order whether interim or otherwise, given or made by the Tribunal: Provided that a High Court may, on its own motion or on the 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 or propriety of such determination and may confirm, reverse or modify such determination or pass such other order as it may think fit. 89. Notice of suits by parties against Board.--No suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this Act or of any rules made thereunder, until the expiration of two months next after notice in writing has been delivered to, or left at, the office of the Board, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left." 10. It is an undisputed fact that the application under Section 83 (2) of the Act, 1995 was filed by the revisionist for the reliefs as put forth above. 11. Relief No. (i) of the application itself indicates that the revisionist has sought for an appropriate order declaring the Qabristan as Waqf. It is an undisputed fact that the application under Section 83 (2) of the Act, 1995 was filed by the revisionist for the reliefs as put forth above. 11. Relief No. (i) of the application itself indicates that the revisionist has sought for an appropriate order declaring the Qabristan as Waqf. Accordingly, the first relief as sought by the revisionist itself takes the application filed by the revisionist before the Tribunal outside the ambit of Section 83 (2) of the Act, 1995 rather it would fall within the ambit of being a dispute regarding 'Auqaf' under the provisions of Section 6 of the Act,1995. It is pertinent to mention that Section 6 of the Act, 1995 pertains to dispute regarding 'Aukaf' i.e if any question arises whether a particular property specified as Waqf property in the list of 'Auqaf' is Waqf property or not then the person aggrieved may institute a suit in a Tribunal for the decision of the said question. Section 7 of the Act, 1995 gives the power to the Tribunal to determine the dispute regarding 'Auqaf' i.e. if any question or dispute arises whether a particular property specified as Waqf property in a list of 'Auqaf' is Waqf property or not then the Tribunal shall have jurisdiction in relation to such property to decide the said issue. At the same time, Section 83 (2) of the Act, 1995 can only be invoked by any 'Mutawalli' or a person interested in Waqf or any other person aggrieved by an order made under the Act, 1995 or rules made thereunder. Thus for a declaration which the revisionist was seeking i.e for declaration of Qabristan as Waqf situated on Khasra Plot No. 349 Ka as, the application under Section 83 (2) would not be maintainable as no order made under the Act, 1995 or the rules was under challenge rather the revisionist would have to file a suit for such declaration as provided under Section 6 and 7 of the Act, 1995. 12. 12. So far as the order passed by the learned Tribunal pertaining to a notice under Section 80 CPC to be given to the State respondents, Sri Q.H.Rizvi, learned counsel for the Waqf Board has drawn the attention of this Court towards the provisions of Section 89 of the Act, 1995 which provides that no suit shall be instituted against the Board in respect of any act purporting to be done by it in pursuance of this act or any rules made thereunder until the expiration of two months next after notice in writing. As the Court has already held that the application filed by the revisionist under Section 83 (2) of the Act, 1995 was itself not maintainable considering the relief which was prayed for rather the revisionist would have to file a suit as provided under Section 6 and 7 of the Act, 1995, as such, the question now to be considered is whether a notice under Section 80 CPC was required to be given by the revisionist. 13. In this regard, this Court may refer to the Division Bench judgment of the Calcutta High Court in the case of Sayed Hassan Ali Vs. Mahammed Sahidul Islam passed in F.M.A.T No. 195 of 2016 with C.A.No. 2132 of 2016 decided on 04.08.2016 as well as the Division Bench judgment of the Calcutta High Court in the case of Jamshed Ali Alias Sk. Jamshed Ali Vs. Hasibul Khan and Ors which have held that Section 89 of the Act, 1995 is a provision pari materia with that of Section 80 of the Civil Procedure Code. 14. The Court may also consider the judgment of the Hon'ble Supreme Court in the case of Sirajul Haq Khan and Ors Vs. The Sunni Central Board of Waqf, U.P and Ors, (1959) AIR SC 198. In the said judgment, the Hon'ble Supreme Court was seized of a matter pertaining to dispute of waqf wherein the suit filed by the appellants had been dismissed on various grounds by learned Trial Court of which one of the ground which was considered by the Hon'ble Supreme Court was as to whether a suit was maintainable without notice as required by Section 53 of the United Provinces Muslims Waqfs Act (U.P XIII of 1936) (hereinafter referred to as the "Act, 1936"). Incidentally Section 53 of the Act, 1936 is pari materia to Section 89 of the Act, 1995. 15. For the sake of convenience, Section 53 of the Act, 1936 is reproduced as under:- "No suit shall be instituted against a Central Board in respect of any act purporting to be done by such Central Board under colour of this Act or for any relief in respect of any waqf until the expiration of two months next after notice in writing has been delivered to the Secretary, or left at the office of such Central Board, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left." 16. The Hon'ble Supreme Court after considering Section 53 of the Act, 1936 held as under:- "27. That takes us to the consideration of the next preliminary objection against the competence of the suit under section 53 of the Act. Section 53 provides that "no suit shall be instituted against a Central Board in respect of any act purporting to be done by such Central Board under colour of this Act or for any relief in respect of any waqf until the expiration of two months next after notice in writing has been delivered to the Secretary, or left at the office of such Central Board, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left." This section is similar to section 80 of the Civil Procedure Code. It is conceded by Mr. Dar that if section 53 applies to the present suit the decision of the High Court cannot be successfully challenged because the notice required by section 53 has not been given by the appellants before the institution of the present suit. It is conceded by Mr. Dar that if section 53 applies to the present suit the decision of the High Court cannot be successfully challenged because the notice required by section 53 has not been given by the appellants before the institution of the present suit. His argument, however, is that the notification issued by respondent 1 on February 26, 1944, did not refer to the Darga and offerings made by the devotees before the Darga and he contends that the present suit in respect of these properties is out side the provisions of section 53 and cannot be held to be barred on the ground that the request notice had not been given by the appellants. We are not impressed by this argument. Column 1 of the notification in question sets out the name of the creator of the waqf as Shahan-e-Mughalia and the name of the waqf as Syed Salar Mahsood Ghazi. In col. 2 the name of the mutawalli is mentioned while col. 3 describes the properties attached to the waqf. The tomb of Syed Salar Mahsood Ghazi which is the object of charity in the present case is expressly mentioned in col. 1 and so it is futile to suggest that the tomb or Darga had not been notified as a waqf by respondent 1 under section 5(1). In regard to the offerings we do not see how offerings could have been mentioned in the notification. They are made from time to time by the devotees who visit the Darga and by their very nature they constitute the income of the Darga. It is unreasonable to assume that offerings which would be made from year to year by the devotees should be specified in the notification issued under section 5(1). We must, therefore, reject the argument that any of the suit properties have not been duly notified by respondent 1 under section 5(1) of the Act. If that be so, it was incumbent upon the appellants to have given the requisite notice under section 53 before instituting the present suit. The requirement as to notice applies to suits against A Central Board in respect of their acts as well as to suits for any relief in respect of any waqf. If that be so, it was incumbent upon the appellants to have given the requisite notice under section 53 before instituting the present suit. The requirement as to notice applies to suits against A Central Board in respect of their acts as well as to suits for any relief in respect of any waqf. It is not denied that the present suit would attract the provisions of section 53 if the argument that the Darga and the offerings are not notified is rejected. The result is that the suit is not maintainable as a result of the appellant's failure to comply with the requirements of section 53. We would accordingly confirm the finding of the High Court that the appellants' suit is barred by time under section 5(2) and is also not maintainable in view of the fact that the appellants have not given the requisite notice under section 53 of the Act. " 17. Consequently, when the facts of the instant case are tested on the touch stone of the law laid down by the Hon'ble Supreme Court in the case of Sirajul Haq Khan (supra), what this Court finds is that an application filed under Section 83 (2) of the Act, 1995 being itself not maintainable rather the relief for declaration as was sought for by the revisionist before the learned Tribunal i.e. for declaring Qabristan as Waqf, was in the nature of a suit and the revisionist was required to file a suit under the provisions of Section 7 of the Act, 1995 as such, the provisions of Section 89 of the Act, 1995 would be attracted and thus the revisionist was required to give notice in writing to the Board and without such notice the suit would itself be not maintainable. 18. As regards the judgment of this Court in the case of Shahroz Khan (supra), a perusal of the said judgment indicates that the said case pertains to an application having been filed under Section 83 (2) of the Act, 1995 and in such circumstances this Court held that there was no requirement of any notice under Section 89 of the Act, 1995. However, in the instant case, though the revisionist filed the application under the provisions of Section 83 (2) of the Act, 1995 yet relief no. However, in the instant case, though the revisionist filed the application under the provisions of Section 83 (2) of the Act, 1995 yet relief no. (i) of the said application itself takes it beyond the ambit of the provisions of Section 83 (2) of the Act,1995 as already discussed above rather he would have to file a suit for the reliefs which was seeking consequently, in the view of this Court, a notice under Section 89 of the Act, 1995 would certainly be required. 19. Keeping in view the aforesaid discussions, no illegality or infirmity is found with the order passed by the learned Tribunal but it is provided that the notice referred to by the learned Tribunal would be construed as a notice under Section 89 of the Act, 1995. 20. The revision is dismissed.