The civil revision petition is directed against the fair and decreetal orders, dated 10.08.2009, passed in I.A.No.23 of 2006 in O.S.No.69 of 2003, on the file of the I Additional District Munsif Court, Kumbakonam.
2. The respondent has laid the suit against the revision petitioner in O.S.No.69 of 2003, for recovery of possession, arrears of rent and future mesne profits. The abovesaid suit has been resisted by the revision petitioner by filing the written statement. It is seen that pending the abovesaid suit, the revision petitioner had chosen to prefer an application in I.A.No.23 of 2006, under Order XIV Rule 2 and Section 151 of the Code of Civil Procedure and
Sections 85,87 and
90 of the Wakf Act, 1995.
3. Briefly stated, according to the revision petitioner, in the abovesaid application, the plaintiff had admitted that the suit property is a trust property and the plaintiff – Trust is a public Trust and also furnished the Trust Deed and also admitted that the suit property had been acquired for http://www.judis.nic.in 3 endowing the same to the Trust and the witness examined on behalf of the respondent had also tendered evidence with regard to the same and thereby, contended that the suit property being the wakf property and accordingly, the respondent – Trust also coming within the fold of the wakf and is governed by the Wakf Act, 1995 and accordingly, as per the Wakf Act, 1995, the respondent – Trust should have been registered and without registration, not entitled to lay the suit for claiming the reliefs and on that basis, the respondent's suit is not maintainable and furthermore, contended that inasmuch as the suit property, being the wakf property and governed by the Wakf Act, 1995, the suit laid by the respondent in the Civil Court is not maintainable and the respondent should have instituted the suit only before the Wakf Tribunal, and thereby, contended that the suit laid by the respondent in the Civil Court is not maintainable and the respondent should have issued a notice to the Wakf Board before instituting the suit and on that ground also, the suit laid by the respondent is not maintainable and inasmuch as the Civil Court has no jurisdiction to entertain the suit and only the Wakf Tribunal is empowered to decide the respondent's suit, praying for the determination of the abovesaid issue as a preliminary issue had come forward with the application.
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4. Resisting the abovesaid application of the revision petitioner, the respondent contended that the Civil Court has got the jurisdiction to try the suit and the subject matter does not come under the Wakf Act and inasmuch as the respondent – Trust is a public Trust, accordingly, the Civil Court would have the jurisdiction and the respondent has not claimed that the suit property is a wakf property and only to delay the proceedings, the present application has been preferred. Though the suit property is a Trust property, but it is not the wakf property and therefore, the provisions of the Wakf Act are not applicable to the case. The dispute is not regarding the character of the Trust and the revision petitioner, being only a tenant of the property, he cannot be allowed to deny the title of the property or dispute the maintainability of the suit and cannot be allowed to delay the proceedings one way or the other and thereby, prayed for the dismissal of the application.
5. The Court below, on a consideration of the rival contentions putforth by the parties following the Orders of the High Court passed in the matter on earlier occasion, accordingly, considering the materials placed on record and the submissions putforth, held that the Civil Court has got the jurisdiction to entertain the respondent's suit and thereby, dismissed the application preferred by the revision petitioner. Impugning the same, the present civil revision petition has been laid.
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6. The respondent claiming to be the public Trust and also admitted that in respect of the suit property, the Trust had been created and also putforth that the revision petitioner is a tenant in respect of the suit property under the respondent and he has not paid the rent due and thereby, committed wilful default and also putting forth that the suit property is required for the benefit of the Trust and it's activities, accordingly, on the abovesaid two grounds, sought for the recovery of possession of the suit property from the revision petitioner and also the other reliefs.
7. The revision petitioner resisted the respondent's suit contending that the requirement of the suit property for the respondent – Trust is not bona fide and only intended to evict the revision petitioner from the suit property and furthermore, it is stated that there is no default in the payment of the rent and on the other hand, the revision petitioner had preferred the rent control original petition against the respondent for depositing the rent in the Court and accordingly, had been depositing the rent in the Court pursuant to the orders passed the Rent Controller and therefore, there is no wilful default as putforth in the plaint and also contended that considering the Trust Deed of the respondent, the suit laid by the respondent is not maintainable in the Civil Court and accordingly, prayed for the dismissal of the respondent's application.
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8. As abovenoted, seeking to determine the issue as to whether the Civil Court would have the jurisdiction to entertain the respondent's suit or not, the revision petitioner has come forward with the abovesaid application. Admittedly, the suit property has been described as the public Trust property. Furthermore, as could be seen from the Trust Deed, marked as Ex.R2, it is found that the object of the Trust is to provide the poor and indigent men and women of all the communities various benefits as recited therein. Therefore, it is seen that inclusive of the people belonging to the Muslim community, the Trust provides to render benefits to one and and all. Accordingly, the revision petitioner contending that considering the definition of the “Wakf”, as provided under the Wakf Act, meaning the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognized by the Muslim Law as pious religious or charitable and accordingly, contended that inasmuch as considering the object of the Trust Deed – Ex.R2, the same provides for rendering benefits to all the people, including Muslim Community, accordingly, contending that the suit property is only a wakf property and governed by the provisions of the Wakf Act, relying upon Section 85 of the Wakf Act, 1995, putforth the case that the Civil Court would not have the jurisdiction to entertain the suit and only the Wakf Tribunal would have the jurisdiction as provided under Section 83 of the Wakf Act, 1995. http://www.judis.nic.in 7
9. Per contra, the respondent would contend that the suit property is not the wakf property and though it is a Public Trust, however, when the Muslim is also entitled to hold the property in Trust either privately or in public, on that score alone, it could not be construed that the suit property is also a wakf property and thereby, putforth that the Civil Court has the jurisdiction to entertain the suit and only with the aim of protracting the proceedings endlessly, the present application has been laid and hence, the application is liable to the dismissed.
10. In the light of the rival contentions putforth by the respective parties, as regards the character of the suit property, whether the same is only the Trust property or the Wakf property, as contended by the respective parties, when considering the provisions of the Sections
83,84 and
85 of the Wakf Act, 1995, prior to the Wakf Amendment Act, 2
7 of 2013, considering the issues involved between the parties as regards the character of the suit property, as rightly contended by the revision petitioner's counsel and in the light of the decision of this Court in G.Jilendran v. Mohideen Andavar Dharga and Pallivasal and others, reported in 2017-5-L.W.34, when the issue as regards whether the suit property is a wakf property is not, when in the abovesaid decision, this Court, after considering the position of law, as it http://www.judis.nic.in 8 stood before the amendments were brought into the Act by virtue of the Wakf Amendment Act, 2013, on a harmonious reading of the
Sections 6,7,83 and
84 of the Act, held that only the Wakf Tribunal has the jurisdiction to entertain the lis, it could be seen that considering the issues raised in the matter, particularly, as to whether the property in dispute is a waqf property or not, it is found that the Wakf Tribunal has the jurisdiction to entertain the lis. The above position is also found determined in the decisions Inamdhar Pallivasal Wakf vs. Sheik Abdullah, reported in 2012-4-L.W.699 as well as in Rajasthan Wakf Board vs. Devki Nandan Pathak and others, reported in (2017) 4 MLJ 354 (SC). Therefore, when the main question involved in the lis is whether the suit property is a wakf property is not, one party contending that it is only the wakf property and the other party contending that it is not the wakf property, and it is their own property, in such view of the matter, as determined by the Apex Court in the abovecited decision and the other decisions above referred to, it is seen that the same could be determined only by the Wakf Tribunal and not by the Civil Court and in such view of the matter, the Court below, without analyzing the abovesaid aspects of the matter in the right perspective, is found to have erroneously determined that the Civil Court has the jurisdiction to entertain the lis. http://www.judis.nic.in 9
11. In the light of the abovesaid factors, the impugned order of the Court below, dated 10.08.2009, passed in I.A.No.23 of 2006 in O.S.No.69 of 2003, cannot be sustained and accordingly, the same is set aside and consequently, it is held that the respondent is not entitled to maintain the suit in the Civil Court and accordingly, the Civil Court is directed to transfer the respondent's suit to the Wakf Tribunal for disposal as per law. Accordingly, I.A.No.23 of 2006 is hereby allowed.
12. Resultantly, the civil revision petition is allowed. No costs. Consequently, connected miscellaneous petition is closed.