Judgment:
Sanjay Karol, J.
1. The appellant is the plaintiff and the respondents No. 1 & 2 are the contesting defendants and proforma respondents No. 3 to 7 are the proforma defendants having common interest with the plaintiff.
2. The plaintiff filed a suit for declaration that her property comprising khata No. 64, khasra No. 124, khasra No. 471, measuring 0-30-34 HM, situated in Tikka Kuthera, Mauza Palaura, Tehsil Jawali, Distt. Kangra, H.P. as reflected in the mutation No. 88 in the name of Wakf Board, Ambala Cantt. is against the facts, illegal, null and void. As a consequential relief plaintiff also prayed for a decree of injunction.
3. The suit was opposed by the contesting defendants on the ground that the jurisdiction of the Civil Court was barred in view of the provisions of Section 85 of The Wakf Act, 1995 (hereinafter referred to as the Act.)
4. On the pleadings of the parties the trial Court framed the following issues:
1. Whether this Court has no jurisdiction to try the suit, as alleged? OPP
2. Relief.
5. The trial Court decided the issues in favour of the contesting defendants and dismissed the plaintiff's suit by passing the following order:
6. It is not disputed that the Wakf Act, 1995 received the assent of the President on the 22nd October, 1995 and was published in the gazette of India (etc.) part 2nd Section 1, No. 65, dated 22 November, 1995 and this act was extended to the whole of India except the State of Jammu & Kashmir. The provisions of Section 85 of Wakf Act, 1995 clearly sates that no suit or other legal proceedings shall lie in civil court in respect of any dispute, question or other matter relating to any Wakf, Wakfs properties or other matter which is required by or under this act to be determined by a tribunal. Similarly, Section 88 of the act further states that save as otherwise expressly proved in this act no notification or order or decision made, proceedings or action taken, by the Central Govt. or the State Govt. under this Act or any Rule make their under shall be questioned in any civil court. In view of the clear bar of the jurisdiction of civil court, the suit is to be filed if maintainable before the tribunal constituted under Section 83 of the Wakf Act, 1995, as this suit was filed in this Court on 23.9.1996 i.e. after passing the Wakf Act, 1995, and thus, this Court has no jurisdiction to try the suit, and thus, this issue is decided against the plaintiffs and in favour of the defendants.
6. The judgment and decree dated 25.10.1997 passed by Sub Judge, Ist Class, Jawali, Distt. Kangra, H.P. in Civil Suit No. 387 of 1996, titled as Smt. Kaushlya Devi and Ors. v. Punjab Wakf Board and Anr., was assailed by the plaintiff before the District Judge, Kangra at Dharmshala in terms of Civil Appeal No. 61-J/XXII 1998, titled as Smt. Kaushalya Devi v. Punjab Wakf Board and Ors. The lower Appellate Court affirmed the findings as returned by the trial Court and dismissed the appeal in terms of its judgment and decree dated 26.5.1999. Hence the present appeal.
7. The appeal was admitted on the following substantial questions of law:
1. Whether both the learned courts below were correct in law in holding that jurisdiction of civil court was excluded by Section 85 of the Wakf Act, 1995 more especially when the title of the plaintiff/appellant had to be determined which was a matter not within the cognizance of the Act as aforesaid ?
2. In the alternative, whether both courts below were right in dismissing the suit of the plaintiff and not resorting to the provisions of Order 7 Rule 10 of the Code of Civil Procedure which required that the plaint should be returned to the plaintiff?
8. After the matter was heard for some time and record perused, learned Counsel for the parties were in agreement that no notification as envisaged under Section 5(2) of the Act had been placed on record by the contesting defendants.
9. The provisions of Section 4 and 5 of the Act are evidently clear. By way of a notification published in the official gazette, the State Government is to appoint a Commissioner for survey of the properties of the Wakf. A report of the initial or further survey, as may be directed to be carried out by the State Government by publishing a notification in the official gazette is required to be submitted. The State Government is required to forward a copy of the report received to the Board and upon examination it is to be published in the official gazette by preparing a list of properties of Suni and Shia Wakf in the State. Undoubtedly, as stipulated under Section 6 of the Act, the question as to whether a particular property specified as a Wakf property in the list of Wakfs is actually a Wakf or not has to be decided by the Tribunal in a suit instituted by the aggrieved party. In such like cases the jurisdiction of the Civil Court as stipulated under Section 85 of the Act would be barred.
10. But however in the instant case, except for the controverted pleadings of the parties there was no material on record to show that the property in effect had been notified, after due inquiry as stipulated under Sections 4 and 5 of the Act. Hence in the absence of any material the Courts below could not have come to the conclusion that the suit of the plaintiff was not maintainable and liable to be dismissed.
11. In the absence of any clear, cogent or proven material that the property in question stood declared as a Wakf property as stipulated under the Act, the Courts below could not have held that the jurisdiction of the Civil Court was barred under Section 85 of the Act. The substantial question of law No. 1 is answered accordingly.
12. In the facts and circumstances of the case substantial question of law No. 2 is not required to be answered.
13. Mr. Dushyant Dadwal, learned Counsel has referred to the following decisions rendered by the Courts: M.P. Wakf Board v. Subhan Shah (Dead) by LRs and Ors. : (2006) 10 SCC 696; Karnataka Board of Wakf v. Government of India and Ors. : (2004) 10 SCC 779; Bhupendra Singh v. State of U.P. and Ors. : AIR 1981 SC 1157; The Board of Muslim Wakfs, Rajasthan v. Radha Kishan and Ors. : AIR 1979 SC 289; Abdul Rab Shah Khadri v. The Court of the District Judge, Mandya and Ors., AIR 1972 Mys 96 (V 59 C 33); Siraj-ul-Haq Khan and Ors. v. The Sunni Central Board of Waqf U.P. and Ors. : AIR 1959 SC 198 (V 46 C 25); Sayyed Ali and Ors. v. Andhra Pradesh Wakf Board, Hyderabad and Ors. : AIR 1998 SC 972; Intazamiya Committee Id Gah, Morar v. M.P. Wakf Board, Bhopal : AIR 1996 Madhya Pradesh 47; Dilipsingh v. Malam Singh and Anr. 0065/1986 : AIR 1986 Madhya Pradesh 270; Punjab Wakf Board v. Gram Panchayat alias Gram Sabha : (2000) 2 SCC 121. Keeping in view the undisputed facts I have refrained from considering the same.
14. Keeping in view the instant facts and for the reasons discussed herein above, the impugned judgments and decrees passed by the Courts below are set aside. The suit is restored to its original number and the matter is remanded back to the trial Court for consideration afresh. Parties undertake to appear before the concerned Court on 1st December, 2009. The trial Court, after affording due opportunity to the parties to prove their case, shall decide the matter as expeditiously as possible and preferably within a period of one year from the date of first appearance.
15. For the aforesaid reasons the appeal is allowed with the aforesaid observations. The records be sent back immediately.