MD. ABDULLA SK Vs. JYOTSNA BEWA AND ANOTHER

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 31.5.2004 passed by the learned Single Judge in WP(C) No. 131(SH) of 2004 holding that the learned Assistant to Deputy Commissioner, Tura (a civil court) had the jurisdiction to try the question whether the suit property is a wakf property or not.

(2.) The facts material for disposal of this writ petition are not in dispute. The Meghalaya Board of Wakf had appointed the appellant as a Khadim (Care Taker) of the Darga Shah Kamal Auliya Wakf estate at Mahendraganj in Garo Hills District on 8.4.1987, which is alleged to be a wakf property within the meaning of the Wakf Act, 1995 ("the Act" for short) and listed as such in the list of Wakf maintained by the Wakf Board. Aggrieved by this appointment, the respondent instituted Title Suit No. 1/1997 in the court of the Additional Deputy Commissioner at Tura claiming that the suit property was her personal property and prayed that a decree for perpetual injunction be issued to restrain the appellant from interfering with the suit property. The suit was apparently instituted without imploding the Meghalaya Board of Wakf as a party contrary to law. The respondent managed to obtain an ad interim injunction against the appellant. On notice, the appellant contested the suit, filed his written statement of defence wherein he challenged the jurisdiction of the civil court to entertain the suit. After hearing the parties, the Ld. Addl. Deputy Commissioner by his order dated 28.3.2000 dismissed the suit. The respondent then took the matter in revision before this court in Civil Revision No. 10 (SH) of 2000, which by the order dated 5.9.2000 set aside the impugned order holding that the Sub-Divisional Magistrate did not have the jurisdiction to try the suit and referred the case to the learned Assistant to Deputy commissioner. West Garo Hills to try the suit afresh and dispose of the same within six months. This court also directed therein that the status quo with regard to the suit property on that day be maintained till appropriate order was passed by the trial court. The learned Assistant, to Deputy Commissioner, Tura accordingly proceeded with the trial of the suit and framed the following issues:-

(3.) The preliminary issue Nos. 2 and 3, namely, whether the court has the jurisdiction to try the suit and whether the suit property is a listed wakf property or not came up for hearing before the trial court on 15.4.2004. The trial court by the order passed on the same day (22.4.2004) held that it had no jurisdiction to try the suit and dismissed the suit. The appellant thereupon approached the Deputy Commissioner, West Garo Hills for recovery of the wakf property/sit property. The Deputy Commissioner by his letter dated 28.8.2004 directed the Additional Deputy Commissioner, Ampati, under whose jurisdiction the suit property is situate, to take possession of the same and hand it over to the appellant, which was accordingly done with the result that the appellant assumed the charge of the suit property, which he continues to run till date on behalf of the Meghalaya Board of Wakf. In the meantime, dissatisfied with the order dated 22.4.2004 dismissing her suit, the respondent filed WP(C) No. 131 (SH) 2004 before this court, which, by the order dated 31.5.2004 set aside, among others, the order dated 15.4.2004 holding that the requirement of deciding the suit in accordance with law such as recording of evidence of the parties and of considering the documents filed by them and of deciding the issues framed in the suit on the basis of evidence, oral and documentary adduced by the parties had not been followed. This court, therefore, remanded the suit for fresh trial in accordance with the procedures laid down by law from the stage as it stood on 10.3.2004. This writ appeal is now filed by the appellant on the sole ground that the learned Single Judge grossly erred in law in remanding the suit to the trial court and in not holding that a civil court such as the trial court in question here did not have the jurisdiction to try the suit relating to the suit property, which is a wakf property as the same is barred by section 85 of the Act.