SAMUTHRA VIJAYA NAINAR Vs. SIRUKADAMBUR MASJID

JUDGEMENT

(1.) THIS Civil Revision Petition is filed by the defendants against the order of transfer of the suit No. 230 of 1990 to the file of the learned Principal District Judge, Villupuram made by the learned District munsif, Gingee.

(2.) THE factual matrix of the case is as follows:- THE defendants are the revision petitioners herein. THE first respondent/plaintiff filed the suit for declaration and recovery of possession. THE defendants contested the same by filing their written statement. THE District Munsif Court , Gingee took the suit for trial and framed the issue of jurisdiction of the court as additional issue. After a full-fledged trial, the learned District Munsif, Gingee dismissed the suit on the issue of jurisdiction holding that the properties are Wakf properties and the civil court has no jurisdiction to try the same as per Section 85 of the wakf Act, 1995, and further directed the parties to the suit to appear before the District Court, Villupuram. However, the District Judge, Villupuram questioned the validity of transfer made by the learned District Munsif, gingee. On receipt of the query, the learned District Munsif, Gingee answered that after a full-fledged trial, the suit is not found maintainable before the civil court as the properties are Wakf properties and hence the civil court has no jurisdiction and requested the learned District Judge to once again transfer the same to the Tribunal. On receipt of the reply from the learned District munsif, the learned District Judge, Villupuram transferred the case from his file to the Wakf Tribunal, Villupuram. But, no notice has been issued by the wakf Tribunal to the defendants and the defendants themselves appeared before the Tribunal through their counsel. THE defendants have not even been furnished with the order of transfers passed by the learned Judges even though they have applied for copy applications. Hence the present revision challenging the order of the learned District Judge, in transferring the matter to the Wakf Tribunal.

(3.) SIMILAR issue was taken up for consideration by the hon'ble Supreme Court in Sardar Khan and others Vs. Syed Najmul Hasan (Seth)and other, reported in (2007 (2) CTC 508), wherein their Lordships have categorically held that on a reading of Section 7 (5) and 83 of the Wakf Act it is seen that Section 85 of the Wakf Act will not be applicable to pending suits or proceeding or revision which have commenced prior to 1. 1. 1996. The relevant portions are:- "15. By virtue of Sub-section (5) of Section 7, it clearly transpires that the Tribunal shall not have jurisdiction to determine any matter which his 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 this Act, i. e. , if any suit has been instituted in any civl court prior to coming into force of the Wakf Act, 1995, then the Tribunal will have no jurisdiction to decide such matter and it will be continued and concluded as if Act has not come into force. Xx xx xx xx xx 18. On a conjoint reading of Sub section (5) of Section 7 and Section 85, the result would be that the Act will not be application to the pending suits or proceedings or appeals or revisions which have commenced prior to 1. 1. 196 i. e. , coming into force of the Wakf Act, 1995. . . . "