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2023 DIGILAW 2918 (ALL)

Ram Lakhan v. Adnan Farukh

2023-12-22

PRAKASH PADIA

body2023
JUDGMENT : (Prakash Padia, J.) Heard Sri Narendra Kumar Chaturvedi, learned counsel for the appellants and Sri Punit Kumar Gupta and Sri Adya Prasad Tewari, learned counsel for the respondents. 2. The present second appeal has been filed by the plaintiffs-appellants, challenging the judgment dated 4.5.2022 and consequential decree dated 7.5.2022 passed by the learned Civil Judge (Junior Division), Gorakhpur in Suit No. 2004 of 2019 (Krishna Bihari and others v. Adnan Farooq and others) as well as judgment dated 11.8.2023 passed by the learned Additional District Judge, Court No. 6, Gorakhpur in Civil Appeal No. 31 of 2022 (Krishna Bihari and others v. Adnan Farooq and others). 3. The facts as stated in second appeal are that the plaintiffs have instituted a civil suit for permanent injunction, restraining the defendant-respondent from dispossessing the plaintiffs without following due procedure of law. 4. The case set up in the plaint was that plot No. 777, area 0.47 Hectare, plot No. 779 area 0.53 Hectare situated at Mauja Karjahan, Tappa Patra, Pargana Haveli, Tehsil Sadar, District Gorakhpur is a property of waqf. The waqf is allal-aulad and mutwalli of the said waqf is Adnan Farooq. The case of the plaintiffs was that on the request made by the plaintiffs, the defendants have permitted the plaintiffs to raise construction over waqf property and to pay Rs. 700/- as annual rent. It was further stated in the plaint that they are continuously paying rent to waqf but on 20.11.2019, the waqf demanded Rs. 7000/- annual rent from the plaintiffs and further threatened that in case the said rent is not paid @ Rs. 7000/- per annum they will be evicted from the property. With the aforesaid averment the suit was instituted for permanent injunction, with a prayer that the defendant/respondent be restrained from evicting the plaintiffs-appellant without following the due procedure of law. In the said suit, on behalf of the defendants/respondents, an application under Rule VII Rule 11 CPC was filed on the ground that the Civil Court has no jurisdiction to adjudicate the suit. As per plaint averment, the property for which injunction has been sought is property of waqf and as per the provisions contained under Section 85 of the Waqf Act, 1995, jurisdiction of Civil Court is barred. 5. The aforesaid application filed by the defendant/respondent was numbered as paper No. 21 Ga. As per plaint averment, the property for which injunction has been sought is property of waqf and as per the provisions contained under Section 85 of the Waqf Act, 1995, jurisdiction of Civil Court is barred. 5. The aforesaid application filed by the defendant/respondent was numbered as paper No. 21 Ga. Objection to the said application was filed by the plaintiffs- appellant, which was numbered as paper No. 27Ga. 6. The learned Civil Judge (Junior Division), Gorakhpur by judgment dated 4.5.2022, allowed the aforesaid application, holding that the Civil Court has no jurisdiction to adjudicate the matter. 7. Being aggrieved with the aforesaid judgment dated 4.5.2022, the plaintiffs-appellant filed Civil Appeal No. 31 of 2022 (Krishna Bihari and others v. Adnan Farooq and another). The aforesaid appeal has been dismissed by judgment dated 11.8.2023, relying upon a judgment of Apex Court in case of Rashid Ali Beg v. Farid Pindari, 2022 (4) SCC 414 . 8. The learned counsel for the appellant has submitted that the substantial questions of law mentioned in memo of appeal arises in this appeal. The said questions of law are reproduced below: 1. Whether, the learned Courts below have erred in rejecting the plaint giving finding that Civil Court has no jurisdiction to try the suit and it is only the Waqf Tribunal? 2. Whether, the learned Courts below have erred to interpret the Section 83 & 85 of considering the Waqf Act, 1995 without considering the Section 6 & 7 of Waqf Act ? 3. Whether the learned Courts below have erred to interpret the judgment of Hon'ble Supreme Court in case of Rashid Wali Beg v. Farid Pindari and others, 2022 (4) SCC 414 , without considering the facts and relief of the case of the plaintiffs/appellants? 4. Whether, the learned appellate Court has erred to pass the judgment and decree without follow the provisions of Order 41 Rule 31 Civil Procedure Code? 5. Whether, the learned Courts below have erred to reject the plaint of plaintiffss/appellants on relying upon the facts mentioned in Order 7 Rule 11 of C.P.C. filed on behalf of defendant/respondent No. 2 who neither has interest nor aggrieved person? 9. The learned counsel for the plaintiffs-appellants has argued that the jurisdiction of Civil Court is not barred, as the suit only for injunction was filed. 10. 9. The learned counsel for the plaintiffs-appellants has argued that the jurisdiction of Civil Court is not barred, as the suit only for injunction was filed. 10. The only question is that whether the suit for permanent injunction instituted by the plaintiffs alleging himself to be the tenant in waqf property is barred in view of Section 85 of the Waqf Act, 1995. The aforesaid question has been considered by the Apex Court in case of Mumtaz Yarud Dowla Waqf v. Badam Balakrishna Hotel Pvt. Ltd and others, 2023 SCC Online SC 1378, whereas the Apex Court, considering all the earlier cases including the case of Rashid Wali Beg (supra) has held that all the suits pertaining to a either Waqf or Waqf Property, notwithstanding nature of relief concern, except as mandate under the statute, the Waqf Tribunal has jurisdiction to adjudicate and the jurisdiction of Civil Court is barred. Relevant paragraphs 31 & 32 are reproduced below: 31. This Court has taken note of the earlier decision rendered in Ramesh Gobindram (Supra) and held that after the amendment made by the Act 27 of 2013, the basis of the said decision is correctly removed. It was further held that there are sufficient provisions even otherwise to maintain a suit for eviction over a Wakf property. While giving our imprimatur to the decision in Rashid Wali Beg (Supra), which in fact took into consideration the decisions subsequent to Ramesh Gobindram (Supra), we do not wish to elaborate much except quoting the following paragraphs, ''45. Interestingly, the basis of the decision in Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 5531 was removed through an amendment under Act 27 of 2013. As we have stated elsewhere, Ramesh Gobindram (Supra) sought to address the question whether a Waqf Tribunal was competent to entertain and adjudicate upon disputes regarding eviction of persons in occupation of what are admittedly waqf properties. Since this Court answered the question in the negative, Section 83(1) was amended by Act 27 of 2013 to include the words, ''eviction of tenant or determination of rights and obligations of the lessor and lessee of such property''. 47. Since this Court answered the question in the negative, Section 83(1) was amended by Act 27 of 2013 to include the words, ''eviction of tenant or determination of rights and obligations of the lessor and lessee of such property''. 47. The upshot of the above discussion is that the basis of Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 (2010) 3 SCC (Civ) 553] now stands removed through Amendment Act 27 of 2013. In fact, when Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 (2010) 3 SCC (Civ) 553] was decided, Sections 6(1) and 7(1) enabled only three categories of persons to approach the Waqf Tribunal for relief. They are, (i) the Board; (ii) the mutawalli of the waqf; or (iii) any person interested therein. However, the Explanation under Section 6(1) clarified that the expression ''any person interested therein'' shall include every person, who, though not interested in the waqf, is interested in the property. But by Act 27 of 2013 the words, ''any person interested'' were substituted by the words, ''any person aggrieved'', meaning thereby that even a non-Muslim is entitled to invoke the jurisdiction of the Tribunal. Due to the substitution of the words ''any person aggrieved'', Act 27 of 2013 has deleted the Explanation under 6(1). This amendment has also addressed the concern expressed in Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 (2010) 3 SCC (Civ) 553] (in para 21 of the SCC report) whether a non-Muslim could be put to jeopardy by the bar of jurisdiction, merely because the property is included in the list of waqfs. We must point out at this stage that the Explanation under sub-section (1) of Section 6, as it stood at the time when Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 (2010) 3 SCC (Civ) 553] was decided, already took care of this contingency, but was omitted to be brought to the notice of this Court. 64. We have already seen that it is not as though there was no provision in the Waqf Act conferring jurisdiction upon the Tribunal in respect of the waqf property. 64. We have already seen that it is not as though there was no provision in the Waqf Act conferring jurisdiction upon the Tribunal in respect of the waqf property. We can break the first part of Section 83 into two limbs, the first concerning the determination of any dispute, question or other matter relating to a waqf and the second, concerning the determination of any dispute, question or other matter relating to a waqf property. After Amendment Act 27 of 2013, even the eviction of a tenant or determination of the rights and obligation of the lessor and lessee of such property, come within the purview of the Tribunal. Though the proceedings out of which the present appeal arises, were instituted before the Amendment Act, the words ''any dispute, question or other matter relating to a waqf or waqf property'' are sufficient to cover any dispute, question or other matter relating to a waqf property. This is why Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 (2010) 3 SCC (Civ) 553] was sought to be distinguished both in Anis Fatma Begum [W.B. Wakf Board v. Anis Fatma Begum, (2010) 14 SCC 588 (2012) 1 SCC (Civ) 773] and Pritpal Singh [Punjab Wakf Board v. Pritpal Singh, 2013 SCC OnLine SC 1345] and such distinction was taken note of in Akkode Jumayath Palli Paripalana Committee [Akkode Jumayath Palli Paripalana Committee v. P.V. Ibrahim Haji, (2014) 16 SCC 65 : (2015) 3 SCC (Civ) 446]. Additionally, this Court in Kiran Devi [Kiran Devi v. Bihar State Sunni Wakf Board, (2021) 15 SCC 15 ], refused to apply the ratio of Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 (2010) 3 SCC (Civ) 553], on the ground that the suit was originally instituted before the Civil Court, but was later transferred to the Waqf Tribunal and that after allowing the order of transfer to attain finality, it was not open to them to resurrect the issue through Ramesh Gobindram [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 (2010) 3 SCC (Civ) 553]. 65. It is well-settled that the Court cannot do violence to the express language of the statute. 65. It is well-settled that the Court cannot do violence to the express language of the statute. Section 83(1) even as it stood before the amendment, provided for the determination by the Tribunal, of any dispute, question or other matter (i) relating to a waqf; and (ii) relating to a waqf property. Therefore to say that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property, is indigestible in the teeth of Section 83(1).'' (emphasis supplied) 32. On a proper analysis of the said decision, we have no hesitation in holding that the Wakf Tribunal has got sufficient jurisdiction to try every suit pertaining to either a Wakf or a Wakf property, notwithstanding the nature of relief concerned, except as mandated under the statute.'' 11. Thus the question raised by the plaintiffs-appellants has already been decided by the Apex Court in case of Rashid Wali Beg & Mumtaz Yarud Dowla Waqf (supra), the question already being decided by the Apex Court, the present second appeal is devoid of merit and the same is hereby dismissed.