HARYANA WAKF BOARDversusMAHESH KUMAR

                          [2013) 12 S.C.R. 596


A                      HARYANA WAKF BOARD
                                     v.
                        MAHESH KUMAR
         (Special Leave Petition (Civil) No. 10947 of 2012)

                         NOVEMBER 21, 2013
B
          [K.S. RADHAKRISHNAN AND A.K. SIKRI, JJ.]

         Haryana Wakf Act, 1995 - s. 7 r/w s. 85 - Interpretation of
   - Jurisdiction of the Tribunal (constituted under the Act) to
C determine disputes regarding wakfs - Held: In respect of the
   questions! disputes mentioned in sub-section (1) of s. 7,
   exclusive jurisdiction vests with the Tribunal, having
  jurisdiction in relation to such property; (ii) Decision of the
   tribunal thereon is made final; (iii) Jurisdiction of the Civil Court
o  is barred in respect of any dispute/ question or other matter
   relating to 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 u/s. 7(5) viz., those
   matters which are already pending before the Civil Court, even
E if the subject matter is covered ulsub section (1) of s.6, the
   Civil Court would continue and the tribunal would not have the
  jurisdiction to determine those matters - Present suit was
  instituted in the year 2000 i.e. after the Act came into force -
   Therefore, the present case not covered by exception to s. 7(5)
F of the Act - On a plain reading of s. 7 rlw s. 85, it is manifest
  that wherever there is a dispute regarding the nature of the
  proporty, namely whether the suit property is Wakf property or
  not, it is the Tribunal constituted under the Wakf Act, which
  has the exclusive jurisdiction to decide the same.

G      The petitioner-Wakf Board filed suit in the Court of
  Civil Judge seeking possession of property which was
  allegedly given on rent by the Wakf Board to one Major
  Ram Prakash. The petitioner claimed that the entire
  property was Wakf property.
H                           596
   HARYANA WAKF BOARD v. MAHESH KUMAR                 597


     The Trial court decreed the suit holding that the lease A
agreement dated 2.5.1991 executed by Savitri Devi,
widow of Major Ram Prakash in favour of Nirmala Devi
for a period of 99 years was bad in law and in turn Nirmala
Devi had no right to put the defendant-respondent in
possession by executing any lease in his favour. The trial B
court also recorded categorical finding that the Wakf
Board had by clear, cogent and consistent evidence
proved its title over the land in question and it is the Wakf
Board which was the actual owner of the suit property.

    The respondent filed First Appeal before the ADJ, C
which held that since in the suit filed by the petitioner-
Wakf Board, question had arisen as to whether the suit
property was Wakf Property or not, such a question
could be decided only by the Tribunal constituted under
the Wakf Act. The appeal court, therefore, returned the D
plaint to the petitioner for presentation to the court of
competent jurisdiction, namely, the Tribunal. The
petitioner approached the High Court by way of Regular
Second Appeal. The High Court, however, dismissed the
appeal in limine.                                          E

     In the instant SLP, the question which arose for
consideration was as to whether Civil Court had the
jurisdiction to entertain the suit filed by the Petitioner-
Wakf Board.                                                   F
     Dismissing the SLP, the Court
    HELD: 1.1. As per Sub-section (1) of Section 7 of the
Haryana Wakf Act, 1995, if a question arises, whether a
particular property specified as wakf property in a list of   G
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
                                                              H
    598     SUPREME COURT REPORTS              [2013] 12 S.C.R.


A jurisdiction of the Civil Court stands excluded to decide
  such a question in view of specific bar contained in
   Section 85. 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
B proceedings before the Civil Court would continue and
  the Tribunal would not have any jurisdiction. On a
  conjoint reading of Section 7 and Section 85 of the
  Haryana Wakf Act, 1995, legal position is summed up as
  under: i) In respect of the questions/ disputes mentioned
C in sub-section (1) of Section 7, exclusive jurisdiction
  vests with the tribunal, having jurisdiction in relation 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 any wakf, wakf property for other matter, which
0 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 before the Civil Court, even if the subject matter
  is covered under sub section (1) of section 6, the Civil
E Court would continue and the tribunal would not have
  the jurisdiction to determine those matters. [Paras 8, 9]
  [604-E-H; 605-A-E]
       1.2. The present suit was instituted in the year 2000
F i.e. after the Wakf Act came into force. Therefore, the
  present case is not covered by exception to Section 7(5)
  of the Wakf Act. Thus, on a plain reading of Section 7
  read with section 85 of the Act, it becomes manifest that
  wherever there is a dispute regarding the nature of the
G property, namely whether the suit property is Wakf
  property or not, it is the Tribunal constituted under the
  Wakf Act, which has the exclusive jurisdiction to decide
  the same. [Para 10] [605-E-G]
     Bhanwar Lal & Anr. vs. Rajasthan Board of Muslim Wakf
H & Ors. 2013 (11) SCALE 210 and Akkode Jumayath Pa/Ii
   HARYANA WAKF BOARD v. MAHESH KUMAR                         599


Paripalana Committee vs. P. V.lbrahim Haji & Ors. 2013 (9)            A
SCALE 622 - relied on.

     Sardar Khan & Ors. vs. Syed Nazmul Hasan (Seth) &
Ors, 2007 (10) SCC 727: 2007 (3) SCR 436 and Ramesh
Gobindram (D) through LRs. vs. Sugra Humayun Mirza Wakf               B
2010 (8) SCC 726: 2010 (10) SCR 945 - referred to.

                      Case Law Reference:

    2013 (11) SCALE 210         relied on              Para 10
    2007 (3) SCR 436            referred to            Para 10        C

    2010 (10) SCR 945           referred to            Para 10
    2013 (9) SCALE 622          relied on              Para 10

    CIVIL APPELLATE JURISDICTION : SLP (Civil) No.                    D
10947 of 2012.

    From the Judgment and Order dated 12.12.2011 of the
High Court of Punjab & Haryana at Chandigarh in Regular
Second Appeal No. 3939 of 2009.                                       E.
      lmtiaz Ahmed, Naghma lmtiaz (for Equity Lex Associates)
for the Petitioner.

    Hiren Dasan, Avinash Singh, Sarla Chandra for the
Respondents.                                                          F

     The Judgment of the Court was delivered by

     A.K. SIKRI, J. 1. The petitioner is the original plaintiff. It
is a Wakf Board which had filed Civil Suit in the Court of Civil
Judge, Junior Division, Kamal, Haryana way back in the year           G
2000 seeking possession of property admeasuring 21 square
yards which was allegedly given on rent by the Wakf Board to
one Major Ram Prakash. This piece of land is a part of Khasra
 No.4129, Kasba Kamal, Haryana. The petitioner claims that the
                                                                      H
    600        SUPREME COURT REPORTS               [2013] 12 S.C.R.


A entire land is a Muslim graveyard land and hence the same is
   Wakf property. The entire Khasra measures 800 square yards
   and is given on lease to different persons by different allotment
   letters. As stated above, 21 square yards out of this8 land was
  given to Major Ram Prakash on monthly rent vide allotment
s letters dated 1.9.1969. The petitioner also claims that the suit
  property was formally notified under Section 5 (2) vide
   Notification dated 19.12.1970 of the Wakf Act, 1954 as Wakf
  property. After the death of Major Ram Prakash, his son
  Gurcharan Singh and his widow Smt. Savitri Kadyan executed
c a long term lease in favour of the present defendant/ respondent
  Shri Mahesh Kumar in the year 1991 and put him in
  possession. As per the case of the petitioner, the petitioner
  came to know about this alleged illegal creation of lease deed
  in favour of the respondent in the year 1996 and treated it as
D illegal encroachment by the respondent. The petitioner
  requested him to vacate the premises. When he did not do so,
  the aforesaid suit was filed in the Court of Civil Judge, Junior
  Division, Kamal, Haryana for possession of the suit property.

        2. The respondent appeared and filed the written statement
E raising several preliminary objections regarding maintainability
  of the suit. Apart from stating that the suit was bad for non-
  joinder of necessary party, lack of locus standi and barred of
  principle of estoppel, it was also barred by limitation. On merits,
F the respondent stated that he was in possession of the suit
  property for the last 10 years as a tenant Qlf Smt. Nirmala Devi
  and it is Nirmala Devi who was the Jesse~ of the property vide
  a registered lease deed and the suit pfoperty was not wakf
  property.
G       3. On the pleadings of the parties, following issues were
    framed:

          1.    Whether the plaintiff is entitled to decree of
                possession, as prayed for? OPD
H
   HARYANA WAKF BOARD v. MAHESH KUMAR                       601
              [A.K. SIKRI, J.]
     2.    Whether the suit of the plaintiff is not maintainable   A
           in its present form: OPD

     3.    Whether the suit is bad for mis-joinder and non-
           joinder of necessary parties? OPD

     4.    Whether the plaintiff has no locus standi to file the   B
           present suit? OPD

     5.    Whether the suit is time barred? OPD

     6.    Relief.                                                 c
     4. Both the parties led their evidence in support of their
evidence. After hearing the counsel for either side, the trial court
decreed the suit vide judgment and decree dated 30th May
2007 holding that the lease agreement dated 2.5.1991
executed by Savitri Devi, widow of Major Ram Prakash in D
favour of Nirmala Devi for a period of 99 years was bad in law
inasmuch as Savitri Devi was predecessor in interest of Major
Ram Prakash as his widow to whom the property was rented
out by the petitioner. Therefore, she was not capable of entering
into such lease deed n favour of Nirmala Devi and in turn E
 Nirmala Devi had no right to put the respondent in possession
by executing any lease in his favour. The trial court also
recorded categorical finding that Wakf Board had by clear,
cogent and consistent evidence proved its title over the land in
 question and it is the Wakf Board who was the actual owner of F
 the suit property.

     5. The respondent challenged the aforesaid judgment and
decree by filing First Appeal under Section 96 of the Code of
Civil Procedure, before the Additional District Judge, Kamal       G
which was registered as Civil Appeal No.49/2007. The learned
Additional District Judge decided the said appeal vide his
judgment dated 15.6.2009. Deciding the question of
maintainability and locus standi, in respect of which issue nos.
2 and 4 were framed, the first appellate court held that since     H
    602         SUPREME COURT REPORTS              [2013) 12 S.C.R.

A the claim in the suit by the petitioner which is a Wakf Board,
  was on the basis that suit property was Wakf property and since
  the respondent had denied it to be the Wakf property, the
  question had arisen as to whether suit property is Wakf
  Property or not. Such a question, in the opinion of the learned
B ADJ, could be decided only by the Tribunal constituted under
  the Wakf Act. The appeal court, therefore, returned of the plaint
  to the petitioner under Order VII of Rule 10, CPC for
  presentation to the court of competent jurisdiction, namely, the
  Tribunal. The result was that the decree passed by the trial court
C was set aside and the plaint returned.

         6. The petitioner approached the High Court by way of
  Regular Second Appeal under Section 100 of the CPC
  challenging the aforesaid findings of the First Appellate Court
0 returning the plaint for want of jurisdiction of the Civil Court. The
  High Court, has, however, dismissed the appeal in limine
  observing that the Appellate Court has taken right view in the
  matter. Against that order, the present Special Leave Petition
  is filed.
E      7. From the aforesaid, it is clear that the only question
  which calls for consideration is as to whether Civil Court had
  the jurisdiction to entertain the suit. The issue depends upon
  the interpretation of Section 7 read with Section 85 of the
  Haryana Wakf Act, 1995 (hereinafter referred to as the "Wakf
F Act"). These provisions read as under:

       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
                 Shia wakf or a Sunni wakf, the Board or the
                 mutawalli of the wakf, or any person interested
H
HARYANA WAKF BOARD v. MAHESH KUMAR                         603
            [AK. SIKRI, J.]
        therein, may apply to the Tribunal having jurisdiction     A
        in relation to such property, for the decision of the
        question and the decision of the Tribunal thereon
        shall be final:

Provided that-
                                                                   B
 (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
        the date of publication of the list of wakfs.              C

  (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
        commencement of this Act, such an application              0
        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 re-open          E
 such question.

  (2)   Except where the Tribunal has no jurisdiction by
        reason of the provision of sub-section (5), no
        proceeding under this Section in respect of any            F
        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
        proceeding.                                                G
  (3)    The Chief Executive Officer shall not be mad a party
         to any application under sub-section (1 ).

  (4)    The list of wakfs and where any such list is modified
         in pursuance of a decision of the Tribunal under          H
    604          SUPREME COURT REPORTS                [2013] 12 S.C.R.


A                 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
B
                  court under sub-section 91) of section 6, before the
                  commencement of this Act or which 1s 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
c                 review arising out of such suit, proceeding or
                  appeal,, as the case may be".

          Section 85 of the Act bars the jurisdiction of the Civil Court
          to decide such issues. Section 85 reads as under:
D
          "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 which is required by
          or under this Act to be determined by a Tribunal".
E
        8. As per Sub-section (1) and Section 7 of the Act, if a
  question arises, whether a particular property specified as wakf
  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
F 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 excluded to decide such a question in
  view of specific bar contained in Section 85. It would be
  pertinent to mention that, as per sub-section (5) of Section 7,
G 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
  Tribunal would not have any jurisdiction. ·

H
   i
   HARYANA WAKF BOARD v. MAHESH KUMAR                             605
               [A.K. SIKRI, J.]
     9. 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   B
               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 Civil
               Court would continue and the tribunal would not
               have the jurisdiction to determine those matters."
                                                                          E
     10. Present suit was.instituted in the year 2000 i.e. after
the Wakf Act, 1985 came into force. Therefore, the present case
is not covered by exception to Section 7(5) of the Wakf Act.
Thus, on a plain reading of Section 7 read with section 85 of
the Act, it becomes manifest that wherever there is a dispute F
regarding the nature of the property, namely whether the suit
property is Wakf property or not, it is the Tribunal constituted
under the Wakf Act, which has the exclusive jurisdiction to
decide the same. We need not delve into this issue any longer,
 inasmuch as in a recent judgment by this very Bench of this G
 Court in the case of Bhanwar Lal & Anr. vs. Rajasthan Board
 of Muslim Wakf & Ors. 2013 {11}SCALE 210 decided on 9th
 September 2013, this Court took the same view, after taking
 note of earlier judgments on the subject, namely, Sardar Khan
 & Ors. Vs. Syed Nazmul Hasan (Seth) & Ors. 2007 (10) SCC H
    606      SUPREME COURT REPORTS               [2013] 12 S.C.R.


A 727, Ramesh Gobindram (D) through LRs. Vs. Sugra
  Humayun Mirza Wakf2010 (8) SCC 726. This view has been
  re-affirmed in Akkode Jumayath Pa/Ii Paripa/ana Committee
  vs. P. V.lbrahim Haii & Ors. 2013 (9) SCALE 622.

8         11. We, thus, do not find any fault with the view.taken by
    the High Court in the impugned judgment. The Special Leave
    Petition is, accordingly, rejected.

    B.B.B.                                        SLP Dismissed.