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Sayed Ekram Saha & Others v/s Debendra Kumar Pati & Others


    C.M.P. No. 756 of 2017

    Decided On, 14 November 2017

    At, High Court of Orissa

    By, THE HONOURABLE MR. JUSTICE BISWANATH RATH

    For the Petitioners: M/s. S.K. Nayak-2, Kintara, S.S.K. Nayak, A. Behera, G.C. Ray, K. Behera, Advocates. For the Opposite Parties: M/s. P.K. Mohanty, S.K. Nayak, Advocates.



Judgment Text

1. This Civil Miscellaneous Petition involves setting aside of the order dated 15.5.2017 passed by the learned Civil Judge (Junior Division), Bhadrak in Civil Suit No. 268 of 2014.

2. Short background involved in the case is that opposite party nos. 1 to 4 as plaintiffs filed a suit bearing Civil Suit No. 268 of 2014 in the court of Civil Judge (Junior Division), Bhadrak for permanent injunction against the defendant-petitioners including opposite party no. 5 also defendant no. 1 in the court below. Plaintiffs claimed that the suit property is their ancestral property. In the major settlement operation, the suit property has been recorded in their names and it is alleged that the defendants having no manner of right, title, interest and possession, are trying to dispossess the plaintiffs from the suit land. Hence the suit for permanent injunction. The defendants on their appearance filed written statement denying the allegations as well as the claims made in the suit. Defendants claimed that the suit property originally belonged to Sayed Jamal Saheb, Bije Nandigaon Mirzapur, marfat Champa Saha, Gufar Saha and others. The defendants claimed to be the legal heirs of Champa Saha, Gufar Saha, Tula Saha, Bhikari Saha, Paran Saha. Sayed Jamal Saheb is the Pirastan located over the suit land, which is treated as deity of Muslim community and is being worshiped by Muslim community. It is claimed by the defendants that in the major settlement operation, the name of the plaintiffs wrongly reflected involving the suit plot, even though the plaintiffs have no right, title and interest over the property. Before commencement of evidence, the defendants filed an application to dismiss the suit on the ground that properties involved in the suit are waqf property and one litigation vide W.T. (OA) No. 04 of 2016 is pending before the Waqf Tribunal, Cuttack where both the present plaintiffs and the defendants are also involved. They are fighting litigation involving the suit property herein. The opposite party nos. 1 to 4 as plaintiffs filed objection stating that the property involved having not been declared in the list of waqf property, the suit is very much maintainable and the suit is not barred under Section 85 of the Waqf Act. The application at the instance of the defendants indicated hereinabove was disposed of by the trial court with an order of dismissal appearing at Annexure-6.

3. Challenging the impugned order, Sri Nayak, learned counsel appearing for the petitioners contended that the suit property being waqf property, the property comes under sub-section 5 of Section 83 of the Waqf Act ousting jurisdiction of the civil court, the trial court failed in appreciating the provision contained in Section 83(5) as well as Section 5 of the Waqf Act and thus arrived at the wrong and erroneous impugned order. It is further contended by Sri Nayak that since the Tribunal under Section 83 of the Waqf Act is deemed to be a Civil Court and shall have the same powers as may be exercised by the Civil Court while trying a suit or executing a decree or order, this power also includes grant of permanent injunction. Therefore, the Civil Court has no jurisdiction to decide such matters. It is under the circumstances, Sri Nayak contended that there has been wrong appreciation of the issue by the trial court and therefore, the impugned order should be interfered and set aside.

4. Referring to a decision rendered in the case of Haryana Wakf Board v. Mahesh Kumar, 2016 (I) CLR (SC)-607, Sri Nayak submitted that for the support of the decision to the case at hand, admittedly instituted after the Waqf Act came into existence, the impugned order suffers and is unless is interfered and set aside will set a bad law.

5. Sri P.K. Mohanty, learned counsel appearing for the opposite party nos. 1 to 4, the plaintiffs seriously objecting the claim of the learned counsel for the petitioners submitted that the property involved in the suit having not been included in the list required to be prepared, applying provision contained in Section 7 of the Waqf Act, there is no adjudication of the property involved herein as to whether the property is in the status of waqf property? the suit is very much maintainable and as such taking this Court to the observations as well as the finding of the lower court submitted that there has been right consideration of the issue involved herein and there is no infirmity in the impugned order.

6. Taking into consideration the submissions of rival parties, this Court finds before entering into the question as to whether the property involved a waqf property so that inviting the restriction of the provision contained in Section 85 of the Waqf Act, this Court going through the provisions contained under Section 3(g) and 3(r), Section 4, Section 83(1), Section 83(5) as well as the provision contained in Section 85 of the Waqf Act finds as follows:

Reading of the provision at Section 3(g) of the Act, it is observed that this provision deals with list of wakfs' means the list of wakfs published under sub-section (2) of section 5 or contained in the register of auqaf maintained under section 37.

Similarly, reading of the provision at Section 3(r) of the Act, from the definition chapter this Court finds the property must be a permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognized by the Muslim law as pious, religious or charitable.

Section 4 of the Act deals with survey of auqafs which provides survey of auqafs in the State and for preparation of list of auqafs.

Section 6 of the Act deals with dispute regarding auqafs speaks if any question arises whether a particular property specified as Waqf property in the list of auqafs is Waqf property or not etc. may institute a suit in a Tribunal constituted for the purpose.

Section 7 of the Act deals with powers of the Tribunal to determine the disputes regarding auqafs and speaks if after commencement of the Waqf Act any question or dispute arises where a particular property specified as Waqf property in a list of auqafs is Waqf property or not etc., any person aggrieved by the publication list of auqaf under Section 5 therein may apply to the Tribunal having jurisdiction in relation to such property.

Similarly, Section 83 of the Act deals with constitution of Tribunal etc. and sub-section (1) speaks State Government shall by notification of 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 waqf property, eviction of a tenant or determination of rights and obligation of lessor and the lessee of such property under this Act and define the local limits and jurisdiction of such Tribunals.

Section 83(5) of the Act speaks that 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 Procdure, 1908 (5 of 1908) while trying a suit or executing a decree of order.

Section 85 of the Act provides bar of jurisdiction of civil courts, revenue courts and any other authority in respect of any dispute, question or other matter relating to any waqf, waqf property or other matter which is required by or under this Act to be determined by a Tribunal.

7. 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. This Court hence observes that so long as the disputed property is not declared to be a auqafs property, there is no application of provisions under Section 85 of the Waqf Act.

8. Coming to consider the decision cited by Sri Nayak in the case of Haryana Wakf Board v. Mahesh Kumar (supra), the decision deals with a question as to whether a suit involving a question where a property is waqf property or otherwise, is maintainable after coming into force of the Act, 1995 thus debarring a Civil Court to take up such issue. Deciding the case, the Hon'ble Apex Court finds that the property involved therein being formally notified under Section 5(2) dated 19.12.1970 of the Waqf Act, 1954 and the suit having been instituted after coming into force of the Act, the suit was barred by law. As held hereinabove, the case at hand does not involve a property already in the list prepared under Section 5 of the Act. For the difference in the fact situation, this court find

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s the decision cited by the petitioner has no application to the case at hand. Following the decision rendered in the case of Ramesh Gobindram (deceased by L, Rs.) v. Sugar Humayun Mirza Wakf, (2010) 8 SCC 726 : AIR 2010 Supreme Court 2897 and the decision rendered in the case of Bhanwar Lal v. Rajasthan Board of Muslim Wakf, (2014) 16 SCC 51 : AIR 2014 Supreme Court 758, and in the case of Madanuri Sri Rama Chandra Murthy v. Syed Jalal, decided by the Hon'ble Apex Court on 14.4.2017, this Court observes so long as the dispute and the question raised before the Civil does not Court fall within the framework of the powers vested by the Tribunal under the Waqf Act, jurisdiction of the Civil Court to entertain disputes involving such property is not ousted. 9. Under the circumstances and for the observations made in the impugned order, this Court finds there is no infirmity in the impugned order necessitating interference in the same. As a consequent, this Court while confirming the trial court's order dismisses the Civil Miscellaneous Petition for having no merit. No cost.
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