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2019 DIGILAW 990 (HP)

Kaushalya Devi v. Punjab Wakf Board

2019-07-22

TARLOK SINGH CHAUHAN

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JUDGMENT : Tarlok Singh Chauhan, J. Plaintiff filed a suit for declaration. One of the issues which was considered by the learned Trial Court was with regard to the jurisdiction of the Civil Court as the defence led by the defendants was to the effect that the property in question was a Wakf Property and, therefore, only the Wakf Tribunal had the jurisdiction to try the case. 2. The learned Trial Court for want of notification decided the issue against the defendants and on merits partly decreed the suit of the plaintiffs by declaring them to be the owners of the land comprised in Khata No. 64, Khatauni No. 124, Khasra No. 471, measuring 0-30-34 HMs, situated in Tikka Kuthera, Mauza Palura, Tehsil Jawali, District Kangra, H.P. 3. Aggrieved by the judgment and decree passed by the learned trial Court, the defendants filed an appeal before the learned first Appellate Court and also placed on record the copy of notification No. 33 dated 15.08.1970, published in Gazette of India and exhibited as Ext.D10. The first Appellate Court on the basis of this notification came to the conclusion that the Civil Court has no jurisdiction to entertain the suit as the land was a Wakf Property. In drawing such conclusion the learned first Appellate Court relied upon the following judgments of the Hon'ble Supreme Court. 1. Rajasthan Wakf Board v. Devki Nandan Pathak, (2017) AIR SC 2155 2. Ramesh Gobindram v. Sugra Hamayun Mirza Wakf, (2010) 8 SCC 726 3. Bhanwar Lal and Anr. v. Rajasthan Board of Muslim Wakf and Ors., (2014) 16 SCC 51 . 4. As regards this Court, it can conveniently be held that the issue with regard to the jurisdiction of the Civil Court in dealing with the Wakf Property is no longer res intergra as the same stands conclusively decided by learned Division Bench of this Court in a batch of petitions lead case whereof LPA No. 210 of 2015 titled as Mumtaz Ahmed vs. State of H.P. and others, decided on 16.11.2016, wherein it was observed as under:- "26. In order to settle the disputes qua the Wakf properties, the Act provides for establishment of Wakf Tribunals which have to determine the disputes, as detailed in Sections 6 of the Act. It is apt to reproduce Section 6 of the Act hereunder: "6. In order to settle the disputes qua the Wakf properties, the Act provides for establishment of Wakf Tribunals which have to determine the disputes, as detailed in Sections 6 of the Act. It is apt to reproduce Section 6 of the Act hereunder: "6. Disputes regarding wakfs:- (1) If any question arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni wakf, the Board or the mutawalli of the wakf 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 wakfs. (2) Notwithstanding anything contained in sub-section (1), no proceeding under this Act in respect of any wakf 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 wakfs 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)." 27. Section 7 of the Act, reproduced below, deals with the powers of the Wakf Tribunal: "7. (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)." 27. Section 7 of the Act, reproduced below, deals with the powers of the Wakf Tribunal: "7. Power of Tribunal to determine disputes regarding wakfs :- (1) If, after the commencement of this Act, any question arises, whether a particular property specified as wakf property in a list of wakfs is wakf property or not, or whether a wakf specified in such list is a Shia wakf or a Sunni wakf, the Board or the mutawalli of the wakf, or any person interested 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 wakfs 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 wakfs; and (b) in the case of the list of wakfs 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 wakf 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 wakfs 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. (3) The Chief Executive Officer shall not be made a party to any application under sub-section (1). (4) The list of wakfs 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." 28. Thus, Sections 6 and 7 of the Act provides for determination of certain disputes regarding wakf properties only by the Wakf Tribunal. But the question arises that after determining the dispute by the Tribunal, what remedy is available to the aggrieved party. 5. The issue of jurisdiction otherwise is no longer res intergra in view of the recent judgment of the Hon'ble Supreme Court in Punjab Wakf Board vs. Sham Singh Harike, 2019 4 SCC 698 wherein majority of the decisions relied upon by the learned first Appellate Court, as quoted in para-3 supra, were taken into consideration. The Hon'ble Supreme Court held that the Tribunal is constituted for the termination of any dispute, question or other matter relating to a Wakf or Wakf property, which arises under the Wakf Act. The bar of jurisdiction of Civil Court is confined only to those matters which are required to be determined by the Tribunal under the Wakf Act, 1995. Thus Civil Court possess the jurisdiction to entertain the suit and proceedings which are not required by or under the said Act to be determined by the Tribunal. 6. In order to determine the said bar of jurisdiction of Civil Court, one has to ask question as to whether the issue raised in the suit or proceeding is required to be decided under the Wakf Act by the Tribunal under any provision or not. If answer to the question is affirmative, the bar of jurisdiction of Civil Court would operate. 7. If answer to the question is affirmative, the bar of jurisdiction of Civil Court would operate. 7. Adverting to the suit instituted by the appellants-plaintiffs, they themselves have challenged the Mutation No. 88 vide which the land 707/3034 share in Khasra No. 471 is shown to be converted into the name of the Wakf Board, Ambala Cantt., which is against the fact, is illegal, null and void and is not binding on the rights of the plaintiffs. 8. As per the judgment rendered by the Hon'ble Supreme Court in Haryana Wakf Board vs. Mahesh Kumar, (2014) 16 SCC 45 , it has been held that whether the suit property is Wakf Property or not, is a question that has to be decided by the Tribunal and, therefore, the jurisdiction of the Civil Court is clearly barred. 9. Once that be the position, then obviously, the jurisdiction of the Civil Court to entertain the present suit is clearly barred and, therefore, no fault can be found with the judgment passed by the learned first Appellate Court whereby the plaint was directed to be returned for presentation before the competent forum. 10. To be fair to the learned counsel for the appellant, he has placed strong reliance upon another Division Bench judgment of this Court rendered by the same Bench in case titled as H. P. Waqf Board vs. Khwaja Khallilula and another, (2017) AIR H.P. 38, however, the said judgment is clearly distinguishable and otherwise does not apply in the fact situation obtaining in this case, as admittedly the suit property in that case was neither notified nor declared as Wakf Property whereas in the present case the property was already declared as Wakf Property vide notification published in the official gazette (supra). 11. In view of the aforesaid discussion, I find no merit in this appeal and the same is dismissed in limine. 12. However, the dismissal of the appeal shall not come in the way of the appellants in seeking the remedy in accordance with law before the Wakf Tribunal that already stands constituted. The parties are left to bear their own costs. 13. 12. However, the dismissal of the appeal shall not come in the way of the appellants in seeking the remedy in accordance with law before the Wakf Tribunal that already stands constituted. The parties are left to bear their own costs. 13. It is further made clear that the time spent in pursuing this litigation w.e.f. 23.09.1996 up to the date of the receipt of the certified copy of the judgment of this Court shall not come in the way of the appellants, provided the suit is filed within 60 days from the date of preparation of the judgment. It is further made clear that since the defendants/respondents are already pursuing this litigation, therefore, it would not be necessary for the appellants to issue notice to the respondents/defendants instituted before the Wakf Board.