® IN THE HIGH COURT OF KARNATAKA AT DHARWAD DATED THIS THE4H DAY OF JANUARY, 2021 BEFORE THE HON’BLE Dr. JUSTICE H.B.PRABHAKARA SASTRY CIVIL REVISION PETITION No.1091 OF2011BETWEEN: The Majalis-E-Intizamiya Masjid, Represented by its President, Dr.Khaleel Ahmed, Age:60 years, Occ:Business, R/o. Diddikera, Tq & Dist: Koppal. ..PETITIONER (By Sri F.V. Patil, Advocate) AND:
1. The Masjid-E-Peerpasha Quadri (Sunni) Represented by its President, Abdul Nabisab S/o Gaibusab Chatni, Age:61 years, Occ:President, R/o. Paltan Street, Tq & Dist:Koppal.
2. The Karnataka State Board of Wakfs Represented by its Chairman, Cunnigham Road, Bengaluru. ..RESPONDENTS (By Sri. Ahmed Ali Rahiman Shah, Advocate for R1; Sri. D.L. Ladkhan, Advocate for R2) 2 CRP No.1091/2011 This Civil Revision Petition is filed under Section 83(9) of the Wakf Act, 1995 read with Section 115 of Civil Procedure Code, praying to set aside the Order dated 17/06/2011 passed by the Karnataka Wakf Tribunal, Gulbarga Division, Gulbarga in O.S.No.12/2010 by allowing this Appeal and to dismiss the suit of the plaintiff, etc. This Civil Revision Petition pertaining to Dharwad Bench having been heard through Physical Hearing/Video Conferencing and reserved on 15.12.2020, coming on for pronouncement of Order through video conference this day, the Court made the following:
ORDERThe present petitioner was defendant No.1 and the present respondent No.2 was defendant No.2 in O.S. No.12/2010 before the Karnataka Wakf Tribunal, Gulbarga Division, Gulbarga (for brevity, hereinafter referred to as ‘Tribunal’) which suit was filed by present respondent No.1 as a plaintiff for the relief of declaration that the corrigendum dated 03.11.2008 was not binding on the plaintiff and the gift deed dated 24.12.1969 also was not 3 CRP No.1091/2011 binding on the plaintiff and for perpetual injunction, alternatively for recovery of possession and for costs.
2. The summary of the case of the plaintiff before the Tribunal was that plaintiff – Masjid is a Waqf recognized by the 2nd defendant i.e. Karnataka State Board of Wakfs, Bangalore. Plot Nos.2664 to 2668 were the Waqf properties attached to plaintiff – Masjid. The same was notified in the Gazette Notification dated 31.01.1974 at serial No.68. Since the year 1974, plaintiff is in possession and managing the said Masjid which is situated in plot No.2666 and surrounding area comprising other plots. All the plots bearing Nos.2664 to 2668 were granted to the plaintiff by Nizam of Hyderabad as far back as 1350 – 1355 fasli corresponding to the year 1940 A.D. The same were duly recorded in the shetwar and revenue records. That being the case, one Sri Syed Sirajul Hasan Quadri having no authority in the plaintiff – institution created a bogus registered gift deed dated 24.12.1969 showing that he has gifted plot Nos.2664 and 2665 to one 4 CRP No.1091/2011 Sri Mohd. Zafar Hussain President of defendant No.1 – Masjid. The defendant No.1 moved the D.W.A.C. Koppal for registration of those two plots i.e. plot Nos. 2664 and 2665 which are the suit schedule properties as additional properties of defendant No.1 – institution by enclosing alleged khata extraction and mutation copy. The plaintiff contended that defendant No.2 since had already admitted that the said plots and other properties as Waqf properties of the plaintiff it was not competent to meddle with the property and management of the plaintiff by issuing any certificate of registration. It had no right or authority to issue further corrigendum in respect of the suit plots. That being the case, the plaintiff filed its objection before the defendant No.2 which defendant on 22.03.2007 appointed one Syed Habeebulla, K.A.S., Head Quarter Assistant of Koppal as enquiry officer regarding the subject-matter of the suit. The said enquiry officer after a detailed enquiry and making local inspection in the presence of both parties, submitted his report to defendant No.2. Even the D.W.A.C. Koppal also sent its finding holding that transfer 5 CRP No.1091/2011 of plot Nos.2664 and 2665 to defendant No.1 was uncalled for and the corrigendum and notification etc. were liable to be cancelled. However, the defendant No.2 issued a corrigendum dated 03.11.2008 showing that plot Nos.2664 and 2665 were the additional properties of defendant No.1.
3. The plaintiff further contended that the alleged donor Sri Syed Sirajul Hasan Quadri himself was stranger to the suit property and he had never been the owner or possessor of suit plots. As such, he cannot gift those plots which do not belong to him. On the other hand, the suit plots belong to the plaintiff since centuries and has been shown as the properties of the plaintiff – masjid even in Gazette Notification also. The issuance of corrigendum after a long span of nearly 35 years showing the said plots as that of defendant No.1 was bad in the eye of law. The plaintiff contended that despite the same, the defendant No.1 has been forcibly collecting the rents from the lessees/tenants in the suit schedule property. With this the plaintiff has prayed for a declaration that the 6 CRP No.1091/2011 corrigendum dated 03.11.2008 is not binding on the plaintiff and gift deed dated 24.12.1969 also is not binding on the plaintiff and for perpetual injunction; in the alternative for perpetual injunction, for recovery of possession of the suit properties.
4. The defendant No.1 filed its written statement wherein it admitted that plaintiff is a Waqf institution and duly notified in the official gazette and the defendant No.1 is also a Waqf duly notified in the official gazette. Further it contended that the suit property i.e., plots bearing Nos.2664 and 2665 were due to oversight shown as “the property attached to the plaintiff” instead of “the property attached to defendant No.1”. Originally, the plots bearing Nos.2664 to 2668 were owned and possessed by one Shah Peer Pasha Quadri who died issueless. After his demise, his great grand nephew Sri Syed Sirajul Hasan Quadri became his successor. During the year 1969, said Sri Syed Sirajul Hasan Quadri gifted plot Nos.2664 and 2665 in favour of defendant No.1 and gifted the other plot 7 CRP No.1091/2011 Nos.2666, 2667 and 2668 to the plaintiff through a registered gift deed dated 24.12.1969. He also delivered the possession of these properties to the respective institutions through their secretaries. Since then, both the plaintiff and defendant No.1 institutions are the owners in lawful possession and enjoyment of the said plots gifted to them. The defendant No.1 also contended that before execution of registered gift deed, said Sri Syed Sirajul Hasan Quadri had orally gifted plot Nos.2664 and 2665 in favour of the defendant No.1 and had delivered the possession of the same.
5. The defendant No.1 further contended that defendant No.2 was competent to rectify its records if any mistake had happened due to oversight. The certificate of registration for rectifying the previous entries was published on 08.06.2000 and the same since has not been challenged within a year, the plaint was hopelessly barred by time. He further contended that suit plots were already 8 CRP No.1091/2011 dedicated to defendant No.1 as long back as in the year 1969, hence from the date of gift it is the defendant No.1 who is in actual possession of the suit plots and has been collecting rents and utilizing the same for the benefit of the Waqf – institution. It further contended that even after issuance of corrigendum dated 03.11.2008, the plaintiff did not challenge the same within a year. The defendant No.1 further contended that since prior to 1969, it was within the knowledge of plaintiff that defendant No.1 has been in possession of suit plots and thus has perfected its title for suit property by adverse possession. With this it prayed for dismissal of the suit with costs. The defendant No.2 adopted the written statement filed by defendant No.1 by filing a memo dated 18.06.2011.
6. Based on the pleadings of the parties, the Tribunal framed the following issues and additional issues:
1. Whether the plaintiff proves that Sri Sirajul Hasan Quadri had no authority to execute 9 CRP No.1091/2011 registered gift deed dated 24.12.1969 in respect of plot Nos.2664 and 2665 in favour of Sri Md. Jafar Hussain, President of defendant No.1 institution and the same is null and void and not binding on the plaintiff?.
2. Whether the plaintiff further proves that corrigendum and consequent order dated 3.11.08 passed by defendant No.2 in respect of plot no.2664 and 2665 is void and not binding on the plaintiff?.
3. Whether the plaintiff proves that it is in possession and enjoyment of suit plots?.
4. Whether the President of plaintiff mosque is competent to file the suit?.
5. Whether the suit of plaintiff is barred by limitation?.
6. Whether the plaintiff is entitled for the reliefs sought?.
7. What decree or order?. Additional issues:
1. Whether defendants prove that one Sri Syed Sirajul Hasan Quadri was the owner and in 10 CRP No.1091/2011 possession of suit plots and has orally gifted the said plots and delivered the possession of the same in favour of defendant No.1?.
2. Alternatively whether the plaintiff is entitled for recovery of possession of suit plot?.
3. Whether the defendants prove that defendant No.1 has become the owner of the suit plot by adverse possession?.
7. The plaintiff to prove its case, examined one Mr. Mohd. Ibrahim, a power of attorney holder of Sri Abdul Nabisab, the President of Plaintiff as P.W.1 and examined one Sri Sajjadsab as P.W.2 and got marked documents from Exhibits P1 to P73. The defendant No.1 examined its President Dr. Khaleel Ahmed as D.W.1 and examined other eight witnesses as D.W.2 to D.W.9 and got marked documents from Exs.D1 to D85.
8. The Tribunal after hearing both side, answered issue Nos.1, 2, 4 and additional issue No.2 in the affirmative, issue Nos.3, 5 and additional issue Nos.1 11 CRP No.1091/2011 and 3 in the negative and issue No.6 partly in the affirmative and proceeded to partly decree the suit declaring that corrigendum dated 03.11.2008 passed by defendant No.2 in respect of suit plot Nos.2664 and 2665 was null and void and not binding on the plaintiff. It also declared that gift deed dated 24.12.1969 executed by Sri Syed Sirajul Hasan Quadri in respect of suit plot Nos.2664 and 2665 is null and void and not binding on the plaintiff. It held that the plaintiff was entitled for recovery of possession of suit plots from defendant No.1. However, it dismissed the suit of the plaintiff for the relief of perpetual injunction. Challenging the same, the defendant No.1 has preferred the present revision petition.
9. The respondents are being represented by their learned counsels.
10. Heard arguments from both side. Perused the materials placed before this Court including the impugned Judgment and the records of the Tribunal pertaining to the matter. 12 CRP No.1091/2011 11. Learned counsel for the revision petitioner in his arguments submitted that admittedly the plaintiff and defendant are Waqfs and the disputed properties are admittedly the Waqf properties. But the disputed question is, as to which Waqf the suit properties belong, whether they belong to the plaintiff or to defendant No.1. Since it is Waqf Board which is the title holder of all auqaf properties in the State, the inter-se dispute regarding the possession and alleged ownership of the properties between two Waqfs cannot be decided by the Tribunal. He vehemently submitted that in view of Section 6 of the Waqf Act, 1995 (for brevity, ‘the Act’), the Waqf Tribunal cannot decide the question of the alleged possession of the properties and the alleged execution of the gift deed for which relief the plaintiff ought to have approached the competent Civil Court. He further submitted that under Section 41 of the Act, the Board can amend the Register of Auqaf at any time. He also submitted that since the plaintiff did not challenge the corrigendum dated 13 CRP No.1091/2011 03.11.2008 within one year from the date of the corrigendum, the suit was hopelessly barred by time.
12. Learned counsel for respondent No.1 in his arguments submitted that by virtue of Section 83 of the Act, suit before the Tribunal was maintainable though undisputedly the suit property is Waqf property. He further submitted that corrigendum was issued 35 years after the publication of the Gazette Notification and admittedly when there was no typographical error, the question of issuing the corrigendum does not arise. He also submitted that since no one challenged the Gazette Notification of the year 1974, the same is binding upon all. He submitted that alleged gift is by an unauthorized person. The details of the alleged donor under the alleged gift is not forthcoming. The Waqf Board has no authority to take property from one Mosque and make it over to another Mosque. With these submissions, he prayed for dismissal of the revision petition. 14 CRP No.1091/2011 13. Learned counsel for respondent no.2 in his arguments submitted that undisputedly the suit properties are Waqf properties. However, the dispute is only with respect to reaping of benefit from the properties between the plaintiff and the defendant No.1. He submitted that Board has not changed the ownership of the property. He stated that the Board has authority to change the list and rectify the Notification. The act of the Board cannot be found fault with. With this he prayed for dismissal of the revision petition.
14. In the light of the above, the questions that arise for my consideration are: (1) Whether the impugned Judgment is non est in the eye of law?. (2) Whether the suit is barred by limitation?. (3) Whether the plaintiff has proved that it is entitled for the relief granted to it?. (4) Whether the impugned Judgment warrants any interference at the hands of this Court?. 15 CRP No.1091/2011 15. The undisputed facts in this case are that, both the plaintiff-Masjid and defendant No.1-Masjid are Waqfs. They are mentioned in Gazette Notification. In the Gazette Notification dated 31.01.1974 at Serial No.68, as could be seen at Ex.P2(a), plot Nos.2664 and 2668 are shown to have been attached to the plaintiff – Masjid. Defendant No.1 – Masjid is mentioned in the Gazette Notification at Serial No.38 but no plots are mentioned as attached to the said Masjid. It is not in dispute that all the five plots are Waqf properties. There is no dispute between the parties with respect to three plots bearing Nos.2666 to 2668 and the dispute is only with respect to the remaining two plots bearing Nos.2664 and 2665. It is also not in dispute that the plaintiff - Masjid is a century old Masjid. However the dispute is about the corrigendum issued by defendant No.2 under No.KBW/MSC/02/KPL/2008-09 dated 03.11.2008 wherein it has rectified the Gazette Notification published in respect of Serial No.68 of the Karnataka Gazette published on 11.04.1974 by issuing a corrigendum. Through the said corrigendum, 16 CRP No.1091/2011 plot Nos.2664 and 2665 which were shown as attached to the plaintiff – Waqf was shown as property attached to the defendant No.1 – Waqf. It is this corrigendum issued by defendant No.2 that has been challenged by the plaintiff before the Tribunal.
16. The main argument of the learned counsel for the petitioner (defendant No.1) is that the Wakf Tribunal constituted under the Act has no authority to decide a dispute between the Waqfs (Auqaf), with respect to the property claimed to have been attached to them. The specific contention is that the scope of the Tribunal is only limited and the jurisdiction of the Civil Court is not ousted totally under the Waqf Act. It is only the dispute as to whether a property specified as Waqf property in the list of Auqaf is a Waqf property and a dispute as to whether the Waqf specified in such list is Shia Waqf or Sunni Waqf can be decided by the Tribunal and nothing more. As such, though the present dispute is between two auqaf, but since the dispute does not fall in either of two disputes 17 CRP No.1091/2011 under Section 6 of the Act, the Tribunal cannot exercise its power to adjudicate the present dispute between the parties. He further submits that since the Tribunal has adjudicated a dispute which does not fall within its ambit, the impugned Judgment is null and void in the eyes of law, as such, it is non est.
17. Per contra, the argument of learned counsels for the respondents is that by virtue of Section 83 of the Act, the Tribunal can decide and adjudicate any dispute between the parties, as such, the present dispute is within the power of the Tribunal to adjudicate.
18. It is in the above circumstances, the first and the main question that has arisen for consideration is whether the impugned Judgment is non est in the eye of law?.
19. The contention of the petitioner to submit that the impugned Judgment is non est in the eye of law is on the only ground that Tribunal did not have power to adjudicate the present dispute and the nature of present 18 CRP No.1091/2011 dispute warrants its adjudication only by a competent Civil Court.
20. Section 9 of the Code of Civil Procedure, 1908 (for brevity, ‘CPC’) reads as below:
9. Courts to try all civil suits unless barred.- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Explanation I – A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies. Explanation II – For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.
21. A reading of the above Section goes to show that the Courts have jurisdiction to try all suits of civil nature excepting those whose cognizance is either expressly or impliedly barred. The jurisdiction of the Court and the right of a party emerging from Section 9 of the 19 CRP No.1091/2011 Code though cannot be taken as absolute right but contains in-built restrictions. Jurisdiction of the Court can be executed by law or by clear intendment arising from such law. Under Section 9 of CPC, the jurisdiction of Civil Court with regard to a particular matter can be said to be excluded if there is an express provision or by implication it can be inferred that jurisdiction is taken away. Thus, it is now required to be seen as to whether the Act has taken away the jurisdiction of the Civil Court in toto. In that regard, Section 85 of the Act draws the attention. It reads as 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 waqf, waqf property or other matter which is required by or under this Act to be determined by a Tribunal.
22. A reading of the above Section goes to show that though the Section is titled as “Bar of jurisdiction of Civil Courts” giving an impression that jurisdiction of Civil 20 CRP No.1091/2011 Courts is barred under the Act, however, a careful reading of the said Section goes to show that the said bar of jurisdiction of Civil Courts is only with respect to any dispute, question or other matter relating to any Waqf, Waqf property or other matter which is required by or under the Act to be determined by a Tribunal. Thus it is clear that, it is only those disputes or questions relating to Waqf which are required to be determined by a Tribunal under the Act alone cannot be adjudicated or decided by Civil Court. Otherwise, for those matters which do not fall within the ambit of Tribunal, the jurisdiction of the competent Civil Court is not barred.
23. The next section which draws attention is Section 83 of the Act which reads as below:
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 waqf property, eviction of a tenant or determination of rights and obligations of the 21 CRP No.1091/2011 lessor and the lessee of such property, under this Act and define the local limits and jurisdiction of such Tribunals. (2) Any mutawalli 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 waqf 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 mutawallies 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 22 CRP No.1091/2011 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- (a) 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, who shall be the Chairman; (b) one person, who shall be an officer from the State Civil Services equivalent in rank to that of the Additional District Magistrate, Member; (c) one person having knowledge of Muslim law and jurisprudence, Member; and the appointment of every such person shall be made either by name or by designation. (4-A) The terms and conditions of appointment including the salaries and allowances payable to the Chairman and other members other than persons appointed as ex officio members shall be such as may be prescribed. (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. 23 CRP No.1091/2011 (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 set 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.
24. A reading of the above Section would go to show that the said Section, in detail speaks about the purpose and constitution of the Tribunal rather than the powers of the Tribunal. Though a mention is there under Section 83(1) of the Act about the power of the Tribunal to determine any dispute, question or other matter relating to 24 CRP No.1091/2011 a Waqf or Waqf property including eviction of a tenant, or determination of rights and obligations of lessor and lessee of such property, but it cannot be ignored that the scope of said power is confined only with respect to those disputes, questions or other matters which have been mentioned or prescribed under the Act, but not generally covering any matter or any dispute wherein a Waqf is a party to the litigation. In that regard reliance can be placed upon the Judgment of the Hon’ble Apex Court in RAMESH GOBINDRAM (DEAD) THROUGH LRS. Vs. SUGRA HUMAYUN MIRZA WAKF, reported in (2010) 8 SCC726 Though the said Judgment was delivered prior to the substitution of sub-section (1) of Section 83 which was with effect from 01.11.2013, but the power and scope of the Tribunal under the Act has been explained in detail by their Lordships in the said Judgment. In para Nos.32, 33 and 34 of the said Judgment, the Hon’ble Apex Court was pleased to observe as below: “32. There is, in our view, nothing in Section 83 to suggest that it pushes the exclusion of the jurisdiction of the Civil 25 CRP No.1091/2011 Courts extends (sic) beyond what has been provided for in Section 6(5), Section 7 and Section 85 of the Act. It simply empowers the Government to constitute a Tribunal or Tribunals for determination of any dispute, question of other matter relating to a wakf or wakf property which does not ipso facto mean that the jurisdiction of the civil courts stands completely excluded by reasons of such establishment.
33. It is noteworthy that the expression "for the determination of any dispute, question or other matter relating to a wakf or wakf property" appearing in Section 83(1) also appears in Section 85 of the Act. Section 85 does not, however, exclude the jurisdiction of the civil courts in respect of any or every question or disputes only because the same relates to a wakf or a wakf property. Section 85 in terms provides that the jurisdiction of the civil court shall stand excluded in relation to only such matters as are required by or under this Act to be determined by the Tribunal.
34. The crucial question that shall have to be answered in every case where a plea regarding exclusion of the jurisdiction of the civil court is raised is whether the Tribunal is under the Act or the Rules required to deal with the matter sought to be brought before a civil court. If it is not, the jurisdiction of the civil court is not excluded. But if the Tribunal is required to decide the matter the jurisdiction of the civil court would stand excluded.” 26 CRP No.1091/2011 25. From the said Judgment, it is clear that Section 6 of the Act read with Section 7 thereof bars jurisdiction of Civil Court only to the extent of trial of suits regarding questions specifically enumerated therein. Provision in Section 85 of the Act barring jurisdiction of Civil Court although is wider than that contained in Section 6 read with Section 7, but its scope too is not absolute but is limited to matters required by the Act to be determined by Tribunal such as matters falling under Sections 33, 35, 47, 48, 51, 54, 61, 64, 67, 72 and 73 of the Act. Thus the jurisdiction of the Civil Court to entertain suit or proceedings in relation to any question not falling within four corners of Tribunal’s power does not stand barred. It was also held in the said case that Section 83 does not extend exclusion of Civil Court’s jurisdiction beyond that provided for in Sections 6, 7, 85 of the Act.
26. In the light of the above finding of the Hon’ble Apex Court, now it has to be seen as to whether the dispute between the parties in the instant case would fall 27 CRP No.1091/2011 in any of the Sections under the Act, more particularly, Sections 6, 7, 33, 35, 47, 48, 51, 54, 61, 64, 67 and 72, 73 of the Act.
27. Section 33 of the Act speaks about the powers of inspection by Chief Executive Officer or persons authorized by him. Section 35 speaks about conditional attachment by Tribunal. Sections 47 to 67 speak about the maintenance of accounts of Auqaf including removal of encroachment from Waqf property and supervision and supersession of Committee of Management. Sections 72 and 73 speak about the annual contribution payable to Board and the power of Chief Executive Officer to direct banks or other persons to make payments. Thus, even according to the learned counsels from both side, the present dispute between the parties would not fall in any of these Sections. Thus, the only two Sections which remain about the jurisdiction of the Tribunal to entertain the dispute between the parties would be Sections 6 and 7 of the Act. According to learned counsel for the petitioner, 28 CRP No.1091/2011 the present dispute does not even fall under Sections 6 and 7 of the Act. The said Sections read as below:
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 aggrieved 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 properties notified in a second or subsequent survey pursuant to the provisions contained in sub-section (6) of Section 4. (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. 29 CRP No.1091/2011 (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 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 30 CRP No.1091/2011 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 reopen 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 31 CRP No.1091/2011 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) The Tribunal shall have the powers of assessment of damages by unauthorised occupation of waqf property and to penalise such unauthorised 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.
28. As per Section 6(1) of the Act, if any question arises as to whether the property in the list of Auqaf is a Waqf property or not, a suit can be instituted in a Tribunal for the decision of that question which decision shall be treated as final. Thus the first type of disputes relating to Auqaf which a Tribunal can decide is involving the 32 CRP No.1091/2011 questions as to whether a particular property specified as Waqf property in the list of Auqaf is a Waqf property or not. In the instant case, the said question is not involved since it is an admitted fact that plot Nos.2664 and 2665 is Waqf property. But the dispute is whether the said property is attached to the plaintiff-Waqf or the defendant No.1- Waqf?. The second question which a Tribunal under Section 6 of the Act can decide is whether a Waqf specified in such list is a Shia Waqf or Sunni Waqf?. Admittedly the said question is not involved in the instant case. Therefore, on a reading of Section 6 and considering the present dispute between the parties, it can be held that the present dispute between the parties would not fall in either of the two questions which can be decided by the Tribunal under Section 6 of the Act. It is also for the reason that the first proviso to said Section 6 prescribes limitation of one year from the date of publication of the list of Auqaf. This further makes clear that the scope of disputes specified in Section 6 is very 33 CRP No.1091/2011 limited and confined only with respect to deciding the nature of the listed properties as to whether it is a Waqf property or not?. Thus the date of publication of the list of Auqaf also gains importance in the matter. Whereas in the instant case, it appears that the date of publication of the list of Auqaf is not of that importance since it is not in dispute that the property in question is a Waqf property. Section 7 of the Act does not add much to what is stated in Section 6. It also refers to the decision of questions relating to waqf properties by the Tribunal.
29. From a conjoint reading of the provisions of Sections 6 and 7 of the Act, it is clear that the jurisdiction to determine whether or not a property is a Waqf property or whether a Waqf is a Shia Waqf or a Sunni Waqf rests entirely with the Tribunal and no suit or other proceedings can be instituted or commenced in a Civil Court in relation to any such questions after the commencement of the Act. Therefore, it is clear that under Section 6 read with Section 7 of the Act, the institution of a suit in the Civil Court is 34 CRP No.1091/2011 barred only in regard to questions that are specifically enumerated therein. The bar is not complete as to extend to other questions that may arise in relation to Waqf property. Admittedly in the instant case, the question is not whether the disputed property is a Waqf property or the question is also not whether a Waqf is a Shia Waqf or a Sunni Waqf. Therefore, the present dispute does not fall within the ambit of Sections 6 and 7 of the Act enabling the Tribunal to decide the matter.
30. The jurisdiction of the Tribunal constituted under the Act was analysed in detail by the Hon’ble Apex Court in PUNJAB WAKF BOARD Vs. SHAM SINGH HARIKE and connected matter reported in (2019) 4 SCC698 The Hon’ble Apex Court was pleased to observe that under Section 83(1) of the Act (as it stood prior to amendment in 2013), the State Government shall by notification in the Official Gazette constitute as many Tribunals as it may think fit. The words following the above sentence are “for the determination of any dispute, question or other matter 35 CRP No.1091/2011 relating to a Wakf or Wakf property under this Act ……”. The constitution of Waqf Tribunal is, thus, for the determination of any dispute, question or other matter relating to Waqf or Waqf properties under the Act. Various provisions i.e., Sections 6(1), 7(1), 33(4), 51(5), 52(4), 54(4) and 64(6) of the Act refer to the questions which are required to be decided by the Tribunal. The Hon’ble Apex Court, after analysing Sections 6, 7, 83 and 85 of the Act was pleased to hold that the bar of jurisdiction of civil court provided under Section 85 is confined only to those matters which are required to be determined by the Tribunal under the Act. Thus, civil court possesses jurisdiction to entertain suits and proceedings which are not required by or under the Waqf Act to be determined by the Tribunal. In order to determine the said bar of jurisdiction of civil court, one has to ask a question as to whether the issue raised in the suit or proceedings concerned is required to be decided under the Waqf Act, 1995 by the Tribunal, under any provision or not?. If the 36 CRP No.1091/2011 answer to that question is in affirmative, the bar of jurisdiction of Civil Court would operate.
31. In the instant case, the said question as to whether an issue raised in the suit or proceedings concerned is required to be decided under the Waqf Act, 1995 by the Tribunal under any provisions if asked, then, in view of the analysis made above, the clear answer would be in the negative. Therefore, the bar of jurisdiction of the civil court would not operate. On the other hand, Tribunal does not get the power to adjudicate under the Act, the dispute like the one in hand. That being the case, when the Tribunal had no power to adjudicate or to decide the present dispute between the parties, which was neither falling in either of the essentials of Section 6 of the Act, it has to be necessarily held that the Tribunal has exercised a power which it does not possess or which ought not to have been exercised. Therefore, the impugned Judgment delivered by the Tribunal by exercising the power which does not 37 CRP No.1091/2011 vest with it, would result in the Judgment losing its recognition in the eye of law, as such, it becomes non est.
32. In the case of HARMEET KAUR Vs. ABEDA KHATOON AND OTHERS, reported in 2020 SCC Online Cal 1856, the suit was for recovery of possession from defendant Nos.1 and 2 (in Suit No.19/2018) for damages for making extensive illegal construction in the suit premises and for permanent injunction, before the Waqf Tribunal at kolkata. The said Tribunal partly rejected the application filed by both the defendants under Order VII Rule 11 of CPC on the ground that the Civil Court and not the Waqf Tribunal had jurisdiction to decide the suit. However, such rejection was allowed only against defendant No.2. Aggrieved by the same, the first defendant had preferred a petition before the High Court of Calcutta in C.O. No.2970/2019. After referring to a few Judgments of Hon’ble Apex Court, the Calcutta High Court observed that Section 83 of the Act is circumscribed by the provisions of Sections 6, 7, 54 and other like provisions 38 CRP No.1091/2011 which empower the Tribunal to decide certain issues. It further observed that the declaratory relief like the one claimed by the plaintiff would fall within the exclusive domain of a civil court and do not find place in Sections 6, 7, 54 or any of similar provisions of the Waqf Act which empower the Tribunal to decide over certain issues. Accordingly, it allowed the petition and modified the impugned order to the effect that the entire plaint pending before the Waqf Tribunal at Kolkata was rejected since the Waqf Tribunal had no jurisdiction to entertain or decide the suit.
33. In the instant case also, as observed above, the nature of dispute and the relief sought for since would not fall in any of the powers of deciding the dispute given to the Tribunal under different sections of the Act including Sections 6, 7, 33, 35, 47, 48, 51, 54, 61, 64, 67 and 72, 73 therein, the Tribunal does not get power or jurisdiction to entertain the present dispute between the plaintiff and the defendant No.1. As such, the impugned Judgment 39 CRP No.1091/2011 delivered by the Tribunal would be non est in the eye of law.
34. At this juncture, a doubt may arise as to, since the defendant No.1 before the Tribunal (the petitioner herein) has not specifically raised a contention regarding the jurisdiction of the Tribunal to entertain the dispute or its power to decide the dispute, will not it result into an implied consent by the defendant No.1 or its acquiescence to the jurisdiction of the Tribunal. In that regard, a Judgment given by Hon’ble Apex Court in HARSHAD CHIMAN LAL MODI Vs. DLF UNIVERSAL LTD. AND ANOTHER, reported in (2005) 7 SCC791can be looked into wherein the Hon’ble Apex Court analysing Sections 21, 9 and 33 of CPC, was pleased to observe about the nature of decree passed without jurisdiction and its enforceability. It was pleased to hold that where a court has no jurisdiction over subject- matter of suit, which can be the cause or matter and an order passed therein is a nullity. Invalidity of a null decree can be set up whenever it is sought to be enforced as foundation for a right, even at 40 CRP No.1091/2011 the stage of execution or in collateral proceedings. It was further held that neither consent nor waiver nor acquiescence can confer jurisdiction upon a court otherwise incompetent to try the suit. In the instant case also, merely because the present petitioner as defendant No.1 appears to have participated in the proceedings and contested the suit before the Tribunal, by that itself, it cannot be held that the Tribunal acquires the power or jurisdiction to adjudicate the present dispute between the parties when it was incompetent to try the suit. As such also, the impugned Judgment loses its existence in the eye of law and becomes non-est.
35. In view of the finding that the impugned Judgment has become non-est in the eye of law, the remaining question regarding the limitation and the plaintiff proving his case before the Tribunal would not survive for consideration. Suffice it to say that in view of the fact that the impugned Judgment has become non est in the eye of law, the said Judgment deserves to be set 41 CRP No.1091/2011 aside, however, reserving liberty to the plaintiff to approach the competent forum for redressal of its alleged grievances. Accordingly, I proceed to pass the following:
ORDERThe petition is allowed. The Order dated 17.06.2011 passed by the Karnataka Wakf Tribunal, Gulbarga Division, Gulbarga in O.S. No.12/2010 is set aside and the plaint of the plaintiff is rejected however, with a liberty to it to approach the competent forum. Registry to transmit a copy of this Judgment along with records of the Tribunal to the concerned Tribunal, immediately. Sd/- JUDGE sac*