Delay in filing the application for recall of the order is condoned.
Heard learned Counsel for the applicants.
Case shown shown is sufficient.
Accordingly, the application is allowed and the order dated 20.2.2007 is recalled. The writ petition is restored to its original number.
By means of the instant writ petition, the petitioners pray for setting aside the judgments and orders dated 20.8.1990 and 15th April, 1988 passed by the opposite parties 1 and 2, contained in Annexure Nos.10 and 9 respectively.
Learned Counsel for the petitioners submits that the opposite parties 1 and 2 committed a manifest and patent legal error in holding that the Suit for permanent injunction was not maintainable and the same was barred by Section 29 read with Section 75 of the U. P. Muslim Waqf Act, 1960. The findings recorded by the opposite parties 1 and 2 stand vitiated on account of being perverse for non-consideration of the pleadings and unrebutted evidence of the plaintiffs. Further, they failed to appreciate that prior to 1936 there was no Waqf Board in existence and as such, it could not be said that any Suit in respect of a Waqf by user was barred even for permanent injunction. Lastly, he contended that the U. P. Sunni Central Board of Waqf had not declared the property in question as non-waqf property in 2 any proceedings whatsoever and as such, there was no necessity or occasion for the plaintiffs to have filed reference under Sections 29 (8) or 33 (2) of the U. P. Muslim Waqf Act.
Mr. Vimal Kishore Verma, learned Counsel appearing for the respondents submits that the legal heirs are owners of the disputed land and their names are also recorded in the revenue records and they are still continuously in possession over the disputed land. Admittedly, the petitioners filed a Suit for permanent injunction against the opposite parties. According to the provisions of Section 8 of the U. P. Muslim Waqfs Act, 1960, the Civil Court had no jurisdiction to entertain the Suit filed by the petitioners/plaintiffs and the same is cognizable by the Board. Further, Munsif Kheri granted the order for temporary injunction ex parte, against the defendants and directed the parties to maintain status quo over the disputed land, without considering the case of the plaintiffs/petitioners. Munsi Kheri also not considered the legal point that the Suit filed by the plaintiffs/petitioners was not maintainable, hence he had no jurisdiction to pass the over for temporary injunction. Against the order dated 8.8.1983 passed by the Munsif Kheri rejecting the application for ad interim injunction, the defendants/opposite parties filed Civil Misc. Appeal No. 24/83 which was dismissed on 9.1.1984 by the Special Judge, Kheri. It is also provided in the order that at the time of trial of the Suit, whether the land is public graveyard or not should be decided.
Subsequently, by the order dated 18.5.1984, the Suit was decreed in favour of the plaintiffs ex parte after relying the commissioner's report dated 23.10.1982. Being aggrieved, the defendants filed an appeal No. 55 of 1984 which was allowed by the Civil Judge, Lakhimpur Kheri and remanded the matter to the trial Court for fresh decision of the Suit. On remand, the trial Court decided the issue no.3 against the plaintiffs by which it had been held that the dispute arises in the present case was cognizable under Section 8 of the U. P. Muslim Waqfs Act, 1960 and the same is within the jurisdiction of Waqf Board or Tribunal and Suit is barred by Section 75 of the aforesaid Act. Therefore, the present Suit was not maintainable and as such, the Munsiff 3 dismissed the appeal as not maintainable. Feeling aggrieved, they filed Revision No. 22 of 1988 which too was dismissed.
After hearing learned Counsel for the parties, I am of the opinion that the Suit for permanent injunction is not maintainable before the Civil Court and the same should be decided under Section 8 of the U. P. Muslim Waqfs Act, 1960 and as such, there is no illegality or infirmity in the impugned orders dated 15.4.1988 and 20.8.1990 passed by the opposite parties 1 and 2. Further, concurrent findings of fact recorded by the two Courts below are against the petitioners. In the case of Wali Uddin v. State [1988 AWC 24], this Court held that in view of the provisions of Section 75 of the Act, no suit or other proceedings can be initiated in any Civil Court pertaining to any dispute, question or matter which was permitted or required under the Act to be referred to the Tribunal (as defined under Section 3 of the Act) for adjudication. It is equally well settled that under the provisions of sub-section (2) of Section 33 of the Act, this was a matter which could very well be referred by the plaintiffs to the Tribunal.
I find force in the submissions of the learned Counsel for the respondents and no interference is required under Article 226 of the Constitution of India.
Accordingly, the writ petition is dismissed. All pending applications are disposed of.
Dt. 3.2.2010 Lakshman/