MAHBOOB KHAN Vs. MOHD KHAJA

JUDGEMENT

(1.) (Petitioner under Section 115 of Civil Procedure Code., to revise the order dated 18/11/2002 in AS No: 50 of 2002 (As.No.5 of 2001) on the file of the court of the III Additional District Judge (Fast Track Court) Nirmal and preferred against the order dated 31.01.2001 made in O.S.No.82 of 1997 on the file of the Court of the Junior Civil Judge, Bhainsa.) This revision petition is filed under Section 115 of the Code of Civil Procedure against the order of the III Additional District Judge (FTC), Nirmal dated 18-11-2002 in A.S.No.50 of 2002 confirming the order of the Junior Civil Judge, Bhainsa dated 31-1-2001 passed in O.S.No.82 of 1997 ordering return of the plaint on the ground that the Civil Court has no jurisdiction to entertain the suit relating to a dispute of wakf property and that the Wakf Tribunal has the jurisdiction to entertain the same.

(2.) The petitioner is the plaintiff in O.S.No.82 of 1997. He filed the suit for perpetual injunction restraining the respondents from interfering with his possession and enjoyment of a graveyard situated in S.No.330/2 admeasuring 28 guntas. According to the plaintiff, the suit land was originally a part of bigger extent belonging to his paternal grandfather Sri. Abdullah Khan. The said Abdullah Khan donated one acre land towards a Mosque. Some extent was acquired for location of bus station and the remaining land is the suit land reserved for the family burial ground. His ancestors were buried in the suit land and it has been notified as a wakf through a Government notification dated 4-1-1990 at Serial No.7602. The defendants who have no right are trying to encroach upon the land. The trial Court dismissed the suit holding that the petitioner is not entitled for the relief of perpetual injunction not only on the ground of jurisdiction, but also on factual position. The appellate court taking into consideration the points whether the suit property is a wakf property, whether the suit dispute is a dispute covered by Section 85 read with Section 6 of the Wakf Act, 1995 (for short the Act) and the legal position placed before it, observed that under Section 83 of the Act the Wakf Tribunal is a Civil Court and the procedure laid down in the Code of Civil Procedure for trial of the suit or for execution of a decree is also extended to the Tribunal under sub-sections 5 and 8 of Section 83, and that the Tribunal can entertain the suit under Section 6 of the Act to deal with the question; therefore, the plaint has to be returned to the plaintiff for presentation before the Tribunal instead of dismissing the suit. The appellate court therefore modified the order of the junior Civil Judge and it reads as follows: A notice is ordered to the plaintiffs counsel that the plaint is intended to be returned on 20-11-2002, at 10-30 a.m., on the ground of lack of jurisdiction in Civil Court and the plaintiff is at liberty to make an application as required under Order 7 Rule 10(a) (2) of the Code of Civil Procedure.

(3.) The learned counsel for the petitioner contended that the order of the appellate court directing return of the plaint is erroneous and contrary to the provisions of the Act. There is no dispute that the suit schedule property is a wakf property and the suit was filed for perpetual injunction. A suit before a Civil Court is not barred under Sections 6 and 85 of the Act.