Supreme Court of India
BHANWAR LAL & ANR.versusRAJASTHAN BOARD OF MUSLIM WAKF & ORS.
- Citation
- 2013 INSC 599
- Decided
- 9 September 2013
- Disposal
- Appeal(s) allowed
- Bench
- K S RADHAKRISHNAN
Holding
A civil court retains jurisdiction over suits pending before the Rajasthan Wakf Act, 1995, and only matters expressly within the Tribunal’s exclusive jurisdiction are barred.
Summary
The petitioners owned a property in Nagaur that the Wakf Board claimed was Wakf property and sued them for possession, rendition of accounts and declaration that a 1983 sale deed was invalid. The suit was filed in 1980, well before the Rajasthan Wakf Act, 1995 came into force. After the Act, the respondents invoked Section 85, seeking to have the suit transferred to the Wakf Tribunal, which the trial court and the High Court accepted, relying on an earlier decision. The Supreme Court held that suits pending before the Act retain civil‑court jurisdiction, except for matters expressly within the exclusive jurisdiction of the Tribunal (e.g., removal of trustees and rendition of accounts). Consequently, the appeal was allowed, the High Court’s order set aside, and the civil court was directed to continue hearing the suit.
Issues considered
- Whether Section 85 of the Rajasthan Wakf Act, 1995 bars a civil court from trying a suit filed before the Act’s commencement.
- Whether reliefs such as possession, rent, and cancellation of a sale deed fall within civil‑court jurisdiction or the exclusive jurisdiction of the Wakf Tribunal.
- Whether claims for removal of trustees and rendition of accounts are within the Tribunal’s exclusive jurisdiction.
- Effect of the exception in Section 7(5) of the Act on pending suits.
Legislation cited
- Rajasthan Wakf Act, 1995s. 5, s. 6, s. 7, s. 85
Subjects
WakfCivil court jurisdictionWakf TribunalSection 85Pending suitPossessionRendition of accountsRemoval of trusteesCancellation of sale deed
Judgment
[2013] 9 S.C.R. 721
BHANWAR LAL & ANR. A
v.
RAJASTHAN BOARD OF MUSLIM WAKF & ORS.
(Civil Appeal No. 7902 of 2013)
SEPTEMBER 9, 2013
B
[K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]
Rajasthan Wakf Act, 1995:
s. 85 read with ss. 5, 6 and 7 - Bar of jurisdiction of civil c
court - Jurisdiction of Tribunal - Explained - Held: In the
instant case, the suit is for cancellation of sale deed, rent and
for possession as well as rendition of accounts and for
removal of trustees - Suit for possession and rent as also
for cancellation of sale deed is to be tried by civil court - 0
However, suit pertaining to removal of trustees and rendition
of accounts would fall within the domain of the Tribunal -
Since the suit was filed much before the Act came into force,
the civil court, where the suit was filed, will continue to have
the jurisdiction over the issue and would be competent to E
decide the same - Jurisdiction.
The property in dispute being in the possession. of
the petitioners, respondent no. 1, the Rajasthan Board of
Muslim Wakf and Respondent No. 2 the Muslim Board
Committee, claiming it to be a wakf property, filed a civil F
suit for possession of the said property and for rendition
of accounts as also for a declaration to the effect that the
sale deed dated 28.2.1983 in favour of the petitioners was
invalid. The petitioners contested the suit, and all the
parties led their evidence. When the matter was ready for G
final hearing, on 2.12.2000, respondents Nos. 1 and 2 filed
an application uls 85 of the Rajasthan Wakf Act, 1995
contending that the jurisdiction of the civil court having
been barred, the suit could not be tried by it and prayed
721 H
722 SUPREME COURT REPORTS [2013] 9 S.C.R.
A that the plaint be returned to be presented before the
Tribunal constituted under the Act. The application was
allowed. The revision petition filed by the petitioners was
dismissed by the High Court relying upon the judgment
in Syed /namul Haq Shah's1 case.
B
Allowing the appeal, the Court
HELD: 1.1. As per sub-s. (1) of s. 7 of the Rajasthan
Wakf Act, 1995, the question whether a particular property
specified as wakf property in a list of wakfs is wakf
C property or not has to be decided by the Tribunal and its
decision is made final; and the jurisdiction of civil court
stands concluded to decide such a question in view of
specific bar contained in s.85. The subject matter of a suit
which can be filed before the Tribunal, relates to the list of
D Wakfs as published in s.5. If any dispute arises in respect
of the said list, namely, whether the property specified in
the said list is Wakf property or not or it is Shia wakf or
Sunni wakf, suit can be filed for decision on these
questions. However, as per sub-s. (5) of s.7, if a suit or
E proceeding subject matter whereof is covered by sub-s.(1)
of s.6, is already pending in a civil court before the
commencement of the Act, then such proceedings before
the civil court would continue and the Tribunal would not
have any jurisdiction. [para 11 and 15] [730-F-H; 733-E-F]
F 1.2. On a conjoint reading of s.7 and s.85 of the Act,
legal position is summed up as under:
(i) In respect of the questions/ disputes mentioned in
sub-s. (1) of s.7, exclusive jurisdiction vests with the
G Tribunal, having jurisdiction in relation to such
property.
(ii) Decision of the Tribunal thereon is made final.
H 1. Syed lnamu/ Haq Shah vs. State of Rajasthan and Anr. AIR 2001 Raj 19.
BHANWAR LAL & ANR. v. RAJASTHAN BOARD OF 723
MUSLIM WAKF & ORS.
(iii) The jurisdiction of the civil court is barred in A
respect of any dispute/ question or other matter
relating to any wakf, wakf property or other matter,
which is required by or under the Act, to b~
determined by a Tribunal,
B
(iv) There is however an exception made u/s 7(5) viz.,
those matters which are already pending before the
civil court, even if the subject matter is covered
under sub-s. (1) of s. 6 , the jurisdiction of civil court
would continue and the Tribunal shall have no the
jurisdiction to determine those matters. [para 12] C
[731-A-E]
Sardar Khan and Os. vs. Syed Nazmul Hasan (Seth) and
Ors. 2007 (3) SCR 436 = 2007 (4) Scale 81= 2007(10) SCC
727; Ramesh Gobindram (Dead) Through LRs v. Sugra D
Humayun Mirza Wakf; 2010 (10) SCR 945 = 2010 (8) SCC
726; and Board of Wakf, West Bengal & Anr. v. Anis Fatma
Begum & Anr. 2010 (13) SCR 1063 = (2010) 14. SCC 588 -
relied on.
E
Syed lnamul Haq Shah vs. State of Rajasthan and Anr.
AIR 2001 Raj 19 - stood overruled.
1.3. In the instant case, the suit is for cancellation of
sale deed, rent and for possession as well as rendition
of accounts and for removal of trustees. However, F
pleading in the suit have not been filed before this Court
and, therefore, exact nature of relief claimed as well as
averments made in the plaint or written statements are
not known. Some of the reliefs claimed in the suit appear
to be falling within the exclusive jurisdiction of the G
Tribunal whereas for other reliefs civil suit would be
competent. However, the legal position may be clarified
in that going by the ratio of Ramesh Gobind Ram, suit for
possession and rent is to be tried by the civil court. But,
suit pertaining to removal of trustees and rendition of H
724 SUPREME COURT REPORTS [2013] 9 S.C.R.
A accounts would fall within the domain of the Tribunal. In
so far as relief of cancellation of sale deed is concerned
this is to be tried by the civil court for the reason that it
is not covered by s.6 or 7 of the Act. Moreover, relief of
possession, which can be given by the civil court,
B depends upon the question as to whether the sale deed
is valid or not. Thus, the issue of sale deed and
• possession are inextricably mixed with each other. Since
the suit was filed in the year 1980, i.e. much before the
Act came into force, going by the dicta laid down in Sardar
c Khan, the civil court, where the suit was filed, will continue
to have the jurisdiction over the issue and would be
competent to decide the same. [para 13 and 23) [731-E;
740-E-H; 741-A-C]
1.4. The impugned judgment of the High Court is set
D aside. The application filed by the respondents is
dismissed. [para 24] [741-C-D]
Case Law Reference:
AIR 2001 Raj 19 stood overruled para 6
E
2010 (13) SCR 1063 relied on para 7
2007 (3) SCR 436 relied on para 16
2010 (10) SCR 945 relied on para 17
F CIVIL APPELLATE JURISDICTION : Civil Appeal No.
7902 of 2013.
From the Judgment & Order dated 21.04.2006 of the High
Court of Judicature for Rajasthan at Jodhpur in S.B. Civil
G Revision No. 419 of 2001.
B.D. Sharma, N. Vyas, S.C. Verma, Mukti D., Ved P. Arya
for the Appellant.
S. Wasim A. Qadri, Zaid Ali, Tamim Qadri, Lakshmi
H Raman Singh for the Respondents.
BHANWAR LAL & ANR. v. RAJASTHAN BOARD OF 725
MUSLIM WAKF & ORS.
The Judgment of the Court was delivered by A
A.K. SIKRI, J. 1. Leave granted.
2. The question that needs determination in the present
appeal is as to whether Civil Court lacks the jurisdiction to
entertain the suit filed by the respondent herein or the subject B
matter of the suit lies within the exclusive jurisdiction of the
Tribunal constituted under the Rajasthan Wakf Act, 1995
(hereinafter to be referred as the 'Act'), having regard to the
provisions of Section 85 of the Act. Though the suit was filed
by the Respondent in the Civil Court, it is on the application of C
the Respondent itself stating that the suit was not maintainable
in view of the bar contained in Section 85 of the Act, the Civil
Court returned the plaint accepting the said contention of the
Respondent. The Petitioners herein, who were the Defendants
in the suit, challenged the order of the Civil Court by filing D
Revision Petition under Section 115 of the Code of Civil
Procedure in the High Court of Judicature for Rajasthan, at
Jodhpur. The said Revision Petition is also dismissed by the
impugned orders. It is how the present proceedings arise,
questioning the validity of the orders of the High Court. E
3. The facts around which the controversy is involved do
not require big canvass and are re-capitulated herein below:
The property in dispute which is the subject matter of
litigation, is situated in the town of Nagaur in the State of F
Rajasthan and is in the possession of the petitioners herein.
Respondent No. 1 is the Rajasthan Board of Muslim Wakf and
Respondent No. 2 is the Muslim Board Committee. Both the
Respondents claimed that the subject property is the Wakf
Property. These Respondents, filed the Civil Suit in the year G
1980 for possession of the said property as well as for rendition
of accounts against the petitioners herein claiming it to be a
wakf property. On coming to know, after filing of the suit, that
one trustee Mr. Naimuddin S/o Abdul Bari had sold the property
to the petitioners vide sale deed dated 28.2.1983, the H
726 SUPREME COURT REPORTS [2013] 9 S.C.R.
A Respondent Nos. 1 & 2 amended the plaint by adding the relief
of declaration to the effect that the said sale deed dated
28.2.1983 was invalid.
4. The Petitioners filed the written statement and contested
the suit raising number of defences. The Trial Court, i.e. the
8
Additional District Judge, framed the following issues on
4.8.1984:
(i) Whether Haveli and the land of compound including
the land underneath the measurements of which
c have been given in paragraph-3 of the plain, are
Wakf Property?
(ii) Whether the sale deed executed by Defendant No.
1 in favour of Defendant No. 3 regarding the Haveli
D and the land of the compound dated 22.06.1960 for
Rs. 400/- is invalid because the property is Wakf
Property?
(iii) Whether the sale deeds in favour of Defendants
No. 4 and 5 are invalid with respect to Haveli and
E the land of the compound because the property is
Wakf Property?
(iv) Whether the sale deed executed by defendant
Naimuddin in favour of defendant No. 5 on
F 28.2.1983 is invalid.
(v) Whether the plaintiffs are entitled to file the present
suit?
(vi) Whether the suit is barred by limitation?
G
(vii) Whether Court Fee insufficient?
(viii) Relief.
5. The suit, thereafter, went on trial. All the parties led their
H
BHANWAR LAL & ANR. v. RAJASTHAN BOARD OF 727
MUSLIM WAKF & ORS. [A.K. SIKRI, J.]
evidence, though it took considerable time. When the matter A
was ready for final hearing, on 2.12.2000, the Respondent Nos.
1 & 2 filed the application under Section 85 of the Act raising
the contention that the suit in question could not be tried by the
Civil Court as the jurisdiction of the Civil Court was barred.
Prayer was made that the plaint filed by them may be returned B
to be presented before the Tribunal constituted under the Act,
which alone had the jurisdiction to try the suit.
6. Their application was allowed by the learned Additional
District Judge vide orders dated 4.1.2001 holding that the C
question whether the property in question was Wakf Property
or not, could be decided only by the Tribunal and Section 85
of the Act specifically barred the jurisdiction of Civil Court. In
the Revision Petition filed by the petitioners challenging the
validity of the orders of the Additional District Judge, the High
Court has concurred with this view, stating that the position in D
law in this behalf was settled by the judgment of the Rajasthan
High Court in Syed lnamu/ Haq Shah vs. State of Rajasthan
and Anr.; AIR 2001 Raj 19. In the short order of two paragraphs
referring to the aforesaid judgment, the Revision Petition has
been dismissed. E
7. Learned Counsel for the appellant, at the outset, drew
our attention to the judgment of this Court whereby the said
judgment of the High Court has been overruled. The judgment
in this Court is reported as 2007 (10) SCC 727 titled Sardar F
Khan and Os. vs. Syed Nazmul Hasan (Seth) and Ors. He,
thus submitted that since the very foundation of the impugned
judgment stood demolished in view of overruling of the said
judgment by this Court, the order of the High Court needs to
be set aside.
G
8. To this extent submission of the learned Counsel for the
appellant is correct. As pointed above, without any discussion
of its own, the High Court has simply relied upon its earlier
judgment in Syed lnamul Haq (supra) and dismissed the
H
728 SUPREME COURT REPORTS [2013] 9 S.C.R.
A Revision Petition. Therefore, while setting aside the impugned
order, we could have remitted the case back to the High Court
to decide the Revision Petition afresh. However, learned
Counsel for both the parties submitted that the question of
jurisdiction be decided by this Court so that this aspect attains
B finality, more so when the lis is pending for quite some time.
Conceding to this prayer of both the parties, we heard the
matter on the aforesaid question in detail. We now propose to
answer this question of jurisdiction, as formulated in the
beginning.
c 9. We have already mentioned the subject matter of the
suit filed by the Respondent Nos. 1 & 2 herein, which is
predicated on the plea that the suit property is Wakf Property.
On this basis it is pleaded in the suit that the sale deed in favour
of the Petitioners is null and void as Mr. Naimuddin who
D purportedly executed sale deed dated 22.9.1983 in favour of
the Petitioner No. 2 had no authority to do so. As a
consequence, the Respondent Nos. 1 & 2 maintain that the
petitioners are in unauthorized possession of the Property.
Possession of the said property alongwith rendition of accounts
E are the other reliefs claims in the suit.
10. Rajasthan Wakf Act, 1995, governs the Wakf
properties in the said State. The Tribunal is constituted under
this Act and is inter alia empowered to determine suits
F regarding wakfs as laid down under Section 7 of the Act.
Therefore, we would like to reproduce here Section 7 of the
said Act.
7. Power of Tribunal to determine disputes regarding
wakfs -
G
(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
H Shia wakf or a Sunni wakf, the Board or the
BHANWAR LAL & ANR. v. RAJASTHAN BOARD OF 729
MUSLIM WAKF & ORS. [A.K. SIKRI, J.]
mutawalli of the wakf, or any person interested A
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:
8
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 C
the date of publication of the list of wakfs.
(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 o
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 E
before such commencement, the Tribunal shall not re-open
such question.
(2) Except where the Tribunal has no jurisdiction by
reason of the provision of sub-section (5), no F
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 G
proceeding.
(3) The Chief Executive Officer shall not be mad a party
to any application under sub-section (1 ).
(4) The list ofwakfs and where any such list is modified H
730 SUPREME COURT REPORTS [2013] 9 S.C.R.
A 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
B
or proceeding instituted or commenced in a civil
court under sub-section 91) 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
c proceeding or of any application for revision or
review arising out of such suit, proceeding or
appeal, as the case may be".
Section 85 of the Act barred the jurisdiction of the Civil
D Court to decide such issues. Section 85 reads as under:
"85. Bar of Jurisdiction of Civil Courts. - No suit or other
legal proceeding shall lie in any Civil Court in
respect of any dispute, question or other matter
relating to any wakf, wakf property or other matter
E
which is required by or under this Act to be
determined by a Tribunal".
11. As per Sub-section (1) and Section 7 of the Act, if any
question arises, whether a particular property specified as wakf
F property in a list of wakfs is wakf property or not, it is the Tribunal
which has to decide such a question and the decision of the
tribunal is made final. When such a question is covered under
sub-section (1) of Section 7, then obviously the jurisdiction of
the Civil Court stands concluded to decide such a question in
G view of specific bar contained in Section 85. It would be
pertinent to mention that, as per sub-section (5) of Section 7,
if a suit or proceeding is already pending in a Civil Court before
the commencement of the Act in question, then such
proceedings before the Civil Court would continue and the
H Tribunal would not have any jurisdiction.
BHANWAR LAL & ANR. v. RAJASTHAN BOARD OF 731
MUSLIM V..JAKF & ORS. [A.K. SIKRI, J.]
12. On a conjoint reading of Section 7 and Section 85, legal A
position is summed up as under:
(i) In respect of the questions/ disputes mentioned in
sub-section (1) of Section 7, exclusive jurisdiction
vests with the tribunal, having jurisdiction in relation 8
to such property.
(ii) Decision of the tribunal thereon is made final.
(iii) The jurisdiction of the Civil Court is barred in respect
of any dispute/ question or other matter relating to c
any wakf, wakf property for other matter, which is
required by or under this Act, to be determined by
a tribunal,
(iv) There is however an exception made under Section
7(5) viz., those matters which are already pending D
before the Civil Court, even if the subject matter is
covered under sub section (1) of section 6, the
jurisdiction of Civil Court would continue and the
tribunal shall have no jurisdiction to determine those
m~ra. E
13. Present suit was instituted in the year 1980, i.e. much
before the Rajasthan Wakf Act, 1995 was enacted. Therefore,
if the subject matter is covered by sub-section (1) of Section 6,
the jurisdiction of Civil Court remains by virtue of Section 5 of F
the Act. To enable us to find an answer to this, the provisions
of Section 5 and 6 also become relevant and need to be noticed
at this juncture. Before that, we would like to state the scheme
of chapter 11 of the Act which contains all these Sections including
Section 7 Chapter II starts with Section 4. G
14. Under Section 4 of the Act, power is given to the
Survey Commissioner to conduct survey and make enquiries
for discerning whether particular properties are wakf properties
H
732 SUPREME COURT REPORTS [2013] 9 S.C.R.
A or not. After making the enquiries, the Survey Commissioner,
who is given the powers of Civil Court under the Code of Civil
Procedure in respect of certain matters specified under Section
4 (4) of the Act, makes a report to the State Government. On
receipt of such a report under sub-section (3) of section 4 of
B the Act, the State Government has to forward a copy of the same
to Wakf Board as stipulated under Section 5(1) of the Act. The
Wakf Board is required to examine this report, as provided
under sub-section (2) of section 5 of the Act and is to publish
in the official gazette a list of Sunni wakfs or Shia wakfs in the
c State, whether in existence at the commencement of this Act
or coming into existence thereafter. If any dispute arises in
respect of wakfs list which is published in the official gazette
under section 5 of the Act, the Board or the mutawalli of the
wakf or any person interested therein is given a right to institute
a suit in a tribunal. This remedy is provided under Section 6 of
0
the Act, Section 6 of the Act which reads as under:
Xxxxxx
"6. Disputes regarding wakfs. -
E
(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
F 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
G the tribunal afer 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
H
BHANWAR LAL & ANR. v. RAJASTHAN BOARD OF 733
MUSLIM WAKF & ORS. [A.K. SIKRI, J.]
pendency of any such suit or of any appeal or other A
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
B
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- C
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 o
relation to any question referred to in sub-section
(1)".
15. The subject matter of the suit which can be filed before
the tribunal, relates to the list of Wakfs as published in Section
5. If any dispute arises in respect of the said list namely E
whether the property specified in the said list is Wakf property
or not or it is Shia wakf or Sunni wakf, suit can be filed for
decision on these questions. Sub-section (5) of section 7 saves
the jurisdiction of those suits, subject matter whereof is covered
by sub- section (1) of section 6, which were instituted before F
the commencement of said suit. Keeping in view this legal
framework, we have to answer this issue that has arisen.
16. Before we deal with controversy at hand, we would like
to discuss some judgments of this Court that may have bearing G
on the issue.
First case that needs mention is Sardar Khan and Ors.
vs. Syed Nazmul Hasan (Seth) and Ors.; 2007 (4) Scale 81;
2007 (10) sec 727. In that case Civil Suit was filed by the
plaintiffs (Respondents in the Supreme Court) in the year 1976 H
734 SUPREME COURT REPORTS [2013] 9 S.C.R.
A in the Court of Additional District Judge, Jaipur which was
dismissed. The plaintiffs filed the appeal before the High Court
taking the plea that by virtue of Section 85 of the Act, the Civil
Court failed to have any jurisdiction in the matter and, therefore,
judgment and decree passed by the learned Additional District
B Judge was without jurisdiction. This appeal was allowed
accepting the contention of the Respondents. Challenging the
order of the High Court, the appellants had filed the Special
Leave Petition in which leave was granted and the appeal was
heard by this Court. The Court took into consideration the
c provisions of Sections 6,] and 85 of the Act and concluded
that the said Act will not be applicable to the pending suits or
proceedings or appeals or revisions which had commenced
prior to 1.1.1996 as provided in sub-section (5) of Section 7
of the Act and allowed the appeal holding that Civil Court will
continue to have the jurisdiction in respect of the cases filed
0
before coming into force Wakf Act, 1995.
17. The provisions of Andhra Pradesh Wakf Act, 1995
which are identical in nature, came up for consideration again
in the case of Ramesh Gobindram (Dead) Through LRs v.
E Sugra Humayun Mirza Wakt, 2010 (8) SCC 726. The question
which was posed for determination was:
"Whether the Wakf Tribunal constituted under Section 83
of the Act, 1995 was competent to entertain and adjudicate
F upon disputes regarding eviction_ of the appellants who are
occupying different items of what are admittedly wakf
properties?"
18. Suits for eviction were filed before the Wakf Tribunal
which had held that it had the jurisdiction to entertain those suits
G and after adjudication had decreed the suits filed by the
Respondent - Sugra Humayun Mirza Wakf. The tenants/
appellant filed revision petitions against that order before the
High Court of Andhra Pradesh which dismissed the revision
petition, affirming the view of the Wakf Tribunal regarding its
H jurisdiction. Against the order of the High Court, the appellant
BHANWAR LAL & ANR. v. RAJASTHAN BOARD OF 735
MUSLIM WAKF & ORS. [A.K. SIKRI, J.]
approached this Court. The Court noticed that in few judgments A
High Court of Andhra Pradesh had taken the view that the
Tribunal established under Section 83 of the Wakf Act is
competent to entertain and adjudicate upon all kinds of
disputes so long as the same relate to any Wakf Property.
Similar views were expressed by the High Court of Rajasthan, B
Madhya Pradesh, Kerala as well as Punjab and Haryana High
Court. However, in the judgments rendered by the High Courts
of Karnataka, Madras, Allahabad and Bombay a contrary view
was taken. This Court, after detailed analysis of the provisions
of the Act, affirmed the view taken by the High Court of c
Karnataka and other High Courts and held that the judgment
of the High Court of Andhra Pradesh etc. was incorrect in law.
It was categorically noted that the Tribunal established under
Section 83 of the Act had the limited jurisdiction to deal only
with those matters which had been provided for in Section 5,
0
Section 6(5), Section 7 and 85 of the Act and the jurisdiction
of Civil Court to deal with matters not covered by these
Sections was not ousted in respect of other matters. The court
exhaustively dealt with the provisions of Sections 6 and 7 of
the Act in order to determine the scope of jurisdiction of the E
Tribunal. It noted that the plain reading of sub-section (5) of
section 6 (supra) would show that the civil court's jurisdiction
to entertain any suit or other proceedings stands specifically
excluded in relation to any question referred to in sub-section(1 ).
The exclusion, it is evident from the language employed, is not
absolute or all pervasive. It is limited to the adjudication of the F
questions (a) whether a particular property specified as wakf
property in the list ofwakfs is or is not a wakf property, and (b)
whether a wakf specified in such list is a shia wakf or sunni
wakf. It was also expressed that from a conjoint reading of
the provisions of Sections 6 and 7 of the Act, it is clear that G
the jurisdiction to determine whether or not a property is a wakf
property or whether a wakf is a shia wakf or a sunni wakf rests
entirely with the Tribunal and no suit or other proceeding can
be instituted or commenced in a civil court in relation to any
such question after the commencement of the Act. What is H
736 SUPREME COURT REPORTS [2013] 9 S.C.R.
A noteworthy is that under Section 6 read with Section 7 of the
Act, the institution of a suit in the civil court is barred only in
regard to questions that are specifically enumerated therein.
The bar is not complete so as to extend to other questions that
may arise in relation to the wakf property. It further noted that
B under Section 85 of the Act, the civil court's jurisdiction is
excluded only in cases where the matter in dispute is required
under the Act to be determined by the Tribunal. The words
"which is required by or under this Act to be determined by a
Tribunal" holds the key to the question whether or not all disputes
C concerning the wakf or wakf property stand excluded from the
jurisdiction of the civil court. The Court thus, concluded that the
jurisdiction of civil courts to try eviction cases was not excluded.
Rather, the aforesaid provisions of the Act did not include such
disputes to fall within the jurisdiction of the Wakf Tribunal, and
therefore the Wakf Tribunal did not have the jurisdiction to deal
0
with eviction matters. For better appreciation of the issue
decided in the said judgment, we reproduce hereunder the
relevant discussion:
"31. It is clear from sub-section (1) of Section 83 above
E that the State Government is empowered to
establish as many Tribunals as it may deem fit for
the determination of any dispute, question or other
matter relating to a wakf or wakf property under the
Act and define the local limits of their jurisdiction.
F Sub - section (2) of Section 83 permits any
mutawalli or other person interested in a wakf or any
person aggrieved of an order made under the Act
or the Rules framed there under to approach the
Tibunal for determination of any dispute, question
G or other mater relating to the wakf. What is
important is that the Tribunal can be approached
only if the person doing so is a mutawalli or a
person interested in a wakf or aggrieved by an
order made under the Act or the Rules. The
remaining provisions of Section 83 provide for the
H
BHANWAR LAL & ANR. v. RAJASTHAN BOARD OF 737
MUSLIM WAKF & ORS. [A.K. SIKRI, J.]
procedure that the Tribunal shall follow and the A
manner in which the decision of a Tribunal shall be
executed. No appeal is, however, maintainable
against any such order although the High Court may
call for the records and decide about the
correctness, legality or propriety of any B
determination made by the Tribunal.
32. There is, in our view, nothing in Section 83 to
suggest that it pushes the exclusion of the
jurisdiction of the civil courts extends (sic) beyond C
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 D
civil courts stands completely excludes:! by reasons
of such establishment.
33. It is noteworthy that the expression "for the
determination of any dispute, question or to her E
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 civil courts in respect of
any or every question or disputes only because the F
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. G
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 H
738 SUPREME COURT REPORTS [2013] 9 S.C.R.
A 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.
35. In the cases at hand, the Act does not provide for
B
any proceedings before the Tribunal for
determination of a dispute concerning the eviction
of a tenant in occupation of a wakf property or the
rights and obligations of the lessor and the lessees
of such property. A suit seeking eviction of the
c tenants from what is admittedly wakf property
could, therefore, be filed only before the civil court
and not before the Tribunal.
19. It would also be profitable to refer to that part of the
D judgment where the Court gave guidance and the need for a
particular approach which is required to deal with such cases.
In this behalf the Court specified the modalities as under:
"11. Before we take up the core issue whether the
jurisdiction of a civil court to entertain and
E
adjudicate upon disputes regarding eviction of (sic
from) wakf property stands excluded under the
Wakf Act, we may briefly outline the approach that
the courts have to adopt while dealing with such
questions.
F
12. The well-settled rule in this regard is that the civil
courts have the jurisdiction to try all suits of civil
nature except those entertainment whereof is
expressly or impliedly barred. The jurisdiction of the
G civil courts to try suits of civil nature is very
expansive. Any statute which excludes such
jurisdiction is, therefore, an exception to the general
rule that all disputes shall be triable by a civil court.
Any such exception cannot be readily inferred by the
H courts. The court would lean in favour of a
BHANWAR LAL & ANR. v. RAJASTHAN BOARD OF 739.
MUSLIM WAKF & ORS. [A.K. SIKRI, J.]
construction that would uphold the retention of A
jurisdiction of the civil courts and shift the onus of
proof to the party that asserts that the civil court's
jurisdiction is ousted.
13. Even in cases where the statute accords finality to
the orders passed by the Tribunals, the court will B
have to see whether the Tribunal has the power to
grant the reliefs which the civil courts would normally
grant in suits filed before them. If the answer is in
the negative, exclusion of the civil court's jurisdiction
would not be ordinarily inferred. In Rajasthan SRTC C
v. Bal Mukund Bairwa, a three-Judge Bench of this
Court observed
"There is a presumption that a civil court has jurisdiction.
Ouster of civil court's jurisdiction is not to be readily inferred. D
A person taking a plea contra must establish the same. Even
in a case where the jurisdiction of a civil court is sought to be
barred under a statute, the civil court can exercise its jurisdiction
in respect of some matters particularly when the statutory
authority or tribunal acts without jurisdiction." E
20. Another aspect of this Act came up for consideration
in the case of Board of Wakf, West Bengal & Anr. v. Anis
Fatma Begum & Anr. (2010) 14 SCC 588. The subject matter
of the dispute in that case related to the demarcation of the
wakf property in two distinctive parts, one for wakf-al-al-aulad F
and the remaining portion for pious and religious purposes. The
demarcation was challenged on the ground that it was not in
consonance with the provisions of the Wakf Deed. The Court
held that it is the Tribunal constituted under Sec,tion 83 of the
Act which will have exclusive jurisdiction to deal with these G
questions in as much as these questions pertained to
determination of disputes relating to wakf property and the
jurisdiction of Civil Court was ousted.
21. As per the ratio in Ramesh Gobindram (Supra) the H
740 SUPREME COURT REPORTS [2013] 9 S.C.R.
A exclusive jurisdiction lies with the Tribunal to decide only those
disputes which are referred to in section 6 and 7. Further,
jurisdiction of Civil Courts is barred only in respect of such
matters and the matters which are not covered by Section 6
and 7 of the Act. Moreover, in view of the judgment in Sardar
8 Khan's case, the suits which are already pending before coming
into force the Wakf Act, 1995 will remain in civil court which will
continue to have jurisdiction.
22. On the basis of the aforesaid principles we proceed
to discuss the present case. Interestingly, as per the
C Respondents themselves there is no dispute that the property
in question is a wakf property. It is argued by the learned
Counsel for the Respondents that even before the trial court,
the appellant had accepted that the disputed property is wakf
property (Though issues framed suggest otherwise). This is so
D recorded in para 3 of the orders passed by the trial court while
deciding the application of the respondent for returning of the
plaint.
23. The suit is for cancellation of sale deed, rent and for
E possession as well as rendition of accounts and for removal
of trustees. However, pleading in the suit are not filed before
us and, therefore, exact nature of relief claimed as well as
averments made in the plaint or written statements are not
known to us. We are making these remarks for the reason that
some of the reliefs claimed in the suit appeared to be falling
F within the exclusive jurisdiction of the Tribunal whereas for other
reliefs civil suit would be competent. Going by the ratio of
Ramesh Gobind Ram (supra), suit for possession and rent is
to be tried by the civil court. However, suit pertaining to removal
of trustees and rendition of accounts would fall within the domain
G of the Tribunal. In so far as relief of cancellation of sale deed is
concerned this is to be tried by the civil court for the reason
that it is not covered by Section 6 or 7 of the Act whereby any
jurisdiction is conferred upon the Tribunal to decided such an
issue. Moreover, relief of possession, which can be given by
H
BHANWAR LAL & ANR. v. RAJASTHAN BOARD OF 741
MUSLIM WAKF & ORS. [A.K. SIKRI, J.]
the civil court, depends upon the question as to whether the sale A
deed is valid or not. Thus, the issue of sale deed and
possession and inextricably mixed with each other. We have
made these observations to clarify the legal position. In so far
as present case is concerned, since the suit was filed much
before the Act came into force, going by the dicta laid down in B
Sardar Khan case, it is the civil court where the suit was filed
will continue to have the jurisdiction over the issue and civil court
would be competent to decide the same.
24. We, thus, allow the appeal and set aside the impugned C
judgment of the High Court thereby dismissing the application
filed by the respondent under Order 7 Rule 10 of the C.P.C.
with the direction to the civil court to decide the suit.
25. No costs.
D
R.P. Appeal allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "Wakf"Sign in to search