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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL     APPEAL     NO. 92 OF     2019  

PUNJAB WAKF BOARD             ...APPELLANT(S)

SHAM SINGH HARIKE            ...RESPONDENT(S)

WITH

CIVIL     APPEAL     NO. 93 OF     2019  

PUNJAB WAKF BOARD             ...APPELLANT(S)

VERSUS

TEJA SINGH            ...RESPONDENT(S)

J U D G M E N T

ASHOK BHUSHAN, J.

These two appeals having been filed against two

separate judgments of the Punjab and Haryana High

Court  allowing  the  Civil  Revisions  filed  by  the

respondents have been heard together and are being

decided by this common judgment.

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2. Brief  facts  giving  rise  to  the  above  appeals

which are necessary to be noticed for deciding these

appeals are:

Civil Appeal No.92 of 2019(Punjab Wakf Board vs. Sham Singh Harike)

The appellant, Pubjab Wakf Board, claimed to be

owner  of  land  measuring  269  kanals  7  marlas,

comprising in khewat No.462, khatauni Nos.589, 593,

599 and 596 in khasra Nos.103, 105, 102 min, 104,

106, of village Birmi, Tehsil and District Ludhiana.

The appellant had let out the above-mentioned land to

Sham Singh and his wife Kuldeep Kaur for cultivation

of the land. The lessee deposited the rent for few

years and thereafter initiated litigation against the

interest of the Board which was decided in favour of

the Board. The appellant filed Civil Suit No.250 of

2001 in the Court of Civil Judge, Senior Division for

the  grant  of  permanent  injunction  restraining  the

respondents  from  raising  any  construction  and

changing  the  position  from  agricultural  to

residential  of  the  property  in  any  manner.  The

respondents filed written statement challenging the

maintainability  of  the  suit.  The  title  of  the

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appellant was denied in the written statement. After

the constitution of the Wakf Tribunal, the suit was

transferred to the Wakf Tribunal and renumbered as

RBT No.84/2006. The respondent filed an application

before the Tribunal for rejection of the plaint on

the ground that the Tribunal has no jurisdiction to

entertain  the  suit  and  the  Civil  Court  alone  has

jurisdiction to entertain the suit. The Wakf Tribunal

by  its  order  dated  17.04.2009  rejected  the

application of the respondent and held that after

01.01.1996 it is only the Wakf Tribunal which has

jurisdiction to try the present suit.  

3. The  respondent  aggrieved  by  the  order  dated

17.04.2009 filed Civil Revision in the High Court.

The  High  Court  relying  on  the  judgment  of  Ramesh

Gobindram(dead) through LRs. vs. Sugra Humayun Mirza

Wakf, (2010) 8 SCC 726,  allowed the Revision. The

High Court held that since the appellant is a non-

muslim, the Wakf Tribunal has no jurisdiction in the

matter and it is only the Civil Court which had the

jurisdiction in the present dispute. The appellant

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aggrieved by the said judgment dated 20.09.2010 has

come up in this appeal.  

Civil Appeal No.93 of 2019(Punjab Wakf Board vs. Teja Singh)

4. The Punjab Wakf Board, the appellant claiming to

be owner of the property measuring 29 Kanals 9 Marlas

comprised in Khewat No.224, khatauni No.277, Khasra

Nos.55, 56, 57 filed Suit No.2 of 2007 in the Court

of Wakf Tribunal, Ludhiana for possession of above

noted  property  and  seeking  relief  for  permanent

injunction  restraining  the  respondent  from

interfering and changing the nature of the property.

Plaintiff’s case in the suit was that the defendant,

Taja Singh took suit property on yearly lease from

Wakf Board till the year 1996-97 and paid lease money

to the plaintiff Board. After 1996-97 lease was not

renewed  and  defendant  having  committed  certain

illegalities, the Wakf Board cancelled the lease on

05.12.1998. Notice to this effect was served upon the

defendant vide which   a request was made to the

defendant to handover the vacant possession of the

leased-out  property  to  the  plaintiff  Board.  After

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cancellation  of  the  lease,  the  possession  of  the

defendant over the suit property became illegal.   

5. The defendant had also filed suit for grant of

injunction which was decreed by Civil Judge (Junior

Division), Ludhiana, the Court restrained the Board

from  dispossessing  the  respondent  forcibly  and

illegally except in due course of law. The defendant

having  failed  to  handover  the  possession,  the

appellant filed the suit for possession and the grant

of  permanent  injunction.  The  defendant  entered

appearance  and  filed  written  statement.  The

defendant’s case in the written statement was that

the defendant always remained ready to pay the rent

due to the plaintiff and is still ready to pay and

tender the rent due to the plaintiff even in the

Court but the plaintiff is not accepting the same

intentionally just to seek possession of the tenanted

premises  in  an  illegal  manner.  The  defendant  had

filed  suit  against  the  Wakf  Board  for  permanent

injunction  which  has  been  decreed  by  Civil  Judge

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(Junior Division), the appeal against which has also

been dismissed.

6. The  Wakf  Tribunal  vide  its  judgment  dated

03.06.2009  decreed  the  original  suit.  Following

decree has been passed by the Tribunal:

“17. Keeping in view the findings on the above issues, the suit of the plaintiff is decreed for possession of the suit land and the  same  is  also  decreed  for  permanent injunction restraining the defendant from changing the nature of the suit land with costs of the suit. Decree sheet be drawn. File be consigned to the record room.”

7. Against  the  judgment  of  the  Wakf  Tribunal

decreeing  the  suit,  the  defendant  filed  Civil

Revision No.6157 of 2009, which has been allowed by

the High court by following order:

“In view of the judgment delivered by the  Apex  Court  in  case  Ramesh  Gobindram (dead)  through  L.Rs.  vs.  Sugra  Humayun Mirza  Wakf,  2010(2)  RCR(Rent)  266,  the instant  petition  is  accepted,  impugned order is set aside and the plaint along with  documents  is  returned  to  the Petitioner  to  be  presented  before  the appropriate court.”

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8. The appellant aggrieved by the judgment of the

High  Court  dated  23.02.2011  has  come  up  in  this

appeal.

9.  We  have  heard  Shri  Salman  Khurshid,  learned

senior counsel for the appellant. Shri Vineet Bhagat

and Shri K.G. Bhagat, learned counsel and Shri S.B.

Upadhyay,  learned  senior  counsel  appeared  for  the

respondents.  

10. Shri Salman Khurshid, learned senior counsel for

the appellant submits that Wakf Tribunal was fully

competent  to  entertain  the  suits  filed  by  the

appellant. The defendants in both the suits having

been leased out the land which was Wakf property, the

suit  clearly  lay  before  the  Wakf  Tribunal  as  per

Section 83 of Wakf Act, 1995.  

11. He  submits  that  Wakf  Tribunal  was  conferred

jurisdiction of entertaining every dispute pertaining

to  Wakf  in  the  Wakf  Act,  1954.  After  the  1984

Amendment,  under  Section  55  of  Act,  1954  for  any

dispute pertaining to Wakf property suit has to be

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filed before the Tribunal and the jurisdiction of the

Civil Court was barred by virtue of Section 55C of

the  Act,  1954,  which  statutory  scheme  has  been

continued under Sections 83 and 85 of Act, 1995. He

submits  that  judgment  of  Ramesh  Gobindram  (supra)

which  has  been  relied  by  the  High  Court  while

allowing the revisions filed by the respondents was a

case  under  Act,  1954  that  too  prior  to  1984

Amendment. He, however, submits that suits filed by

the appellant were suits for possession, hence, were

fully  maintainable  before  the  Wakf  Tribunal.  Shri

Salman Khurshid relies on the judgment of this Court

in  Board of Wakf, West Bengal & another vs. Anis

Fatma Begum & another, (2010) 14 SCC 588, where suit

filed before the Tribunal was held to be maintainable

and  the  judgment  of  Ramesh  Gobindram was

distinguished.  

12. Shri Khurshid has further relied on the judgment

and  Order  of  this  Court  dated  13.09.2013  in  C.A.

No.8194 of 2013 (Punjab Wakf Board vs. Pritpal Singh

& Anr.)  where a similar order passed by the High

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Court holding that suit of Punjab Wakf Board is not

maintainable has been set aside. He submits that the

present case is similar to the judgment of this Court

in Pritpal Singh. Shri Khurshid has relied on other

judgments which shall be referred to later.

13. Learned counsel for the respondent, Sham Singh

Harike, refuting the submission of the counsel of the

appellant contends that the judgment of this Court in

Anis Fatma Begum (supra) does not overrule  Ramesh

Gobindram.  The case of respondent is that he is in

possession of property since 1967. In the year 1970

property was verified as Wakf property without any

notice to the Central Government. The respondent has

been opposing the move of appellant Board to seek

mutation of its title over the property before the

Revenue Authority. Punjab Wakf Board in the year 1970

got the suit land notified in the Wakf under the Wakf

Act,  1954  without  serving  any  notice  on  the

respondent.  The  title  of  the  appellant  has  been

refuted  by  the  respondent.  The  suit  filed  by  the

appellant  was  not  maintainable  before  the  Civil

Court, hence, application was filed by the respondent

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under Order VII Rule 10 and 11 CPC for rejecting the

plaint.  

14. It is submitted by the learned counsel for the

respondent that Sham Singh Harike and others have

also filed a suit in the Court of Civil Judge, Senior

Division  against  the  Union  of  India  and  others

including Punjab, Wakf Board seeking a declaration

that suit land is not a Wakf property nor Wakf Board

has  right  and  any  interest  nor  forcibly  it  can

dispossess him.  

15. Shri  S.B.   Upadhyay,  learned  senior  counsel

appearing for Teja Singh submits that a suit has been

filed by the respondent being Suit No.265 of 1999

which has been decreed by the Civil Judge (Junior

Division)  restraining  the  defendants  from

dispossessing  the  plaintiff  forcibly  or  illegally

subject to payment of dues upto date against which

appeal  filed  by  the  Punjab  Wakf  Board  was  also

dismissed on 09.04.2005. Shri Upadhyay has heavily

relied on Ramesh Gobindram case and he submits that

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in view of the judgment of Ramesh Gobindram, the suit

filed by the appellant was not maintainable and the

plaint  has  rightly  been  returned  to  be  presented

before the Civil Court.

16. We  have  considered  the  submissions  of  the

parties and perused the records.

17. The  main  issue  which  has  arisen  for

consideration in these appeals is as to whether suit

filed  by  the  appellant  before  the  Wakf  Tribunal

praying for decree of possession of suit property was

maintainable in Wakf Tribunal or would lie only in a

Civil Court. Although, the Wakf Tribunal has held

that suit was maintainable before it, the High Court

has reversed the order of the Tribunal holding that

the suit is not maintainable before the Wakf Tribunal

relying  on  the  judgment  of  this  Court  in  Ramesh

Gobindram.  Before  we  notice  the  judgment  of  this

Court in Ramesh Gobindram and the judgments relied by

the parties, the statutory provisions pertaining to

Wakf and Wakf property need to be noted.

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18. Before the enactment of Wakf Act, 1995 by the

Parliament, the Wakf Act, 1954 was in force. Many

deficiencies in Wakf Act, 1954 were found which led

to comprehensive amendments made by Wakf Amendment

Act, 1984 on the basis of recommendations of Wakf

Inquiry Committee. However, many provisions of 1984

(Amendment) Act could not be enforced. Before we come

to Act, 1995 it is relevant to notice the statutory

regime which was prevalent prior to Act, 1995. The

Wakf (Amendment) Bill, 1984 was moved with detail of

Statement of Objects and Reasons. Paragraph 3(vii)

which  is  relevant  for  the  present  purpose  is  as

follows:

“3. The  Bill  seeks  to  make,  inter  alia, amendments  to  the  Wakf  Act,  1954,  in relation to the following matters, namely:-

xxx xxx xxx

(vii) to provide for the appointment of Tribunals for the speedy determination of the  disputes,  question  or  other  matters relating to wakfs; every such Tribunal is to consist of one person who shall be a member  of  the  State  Judicial  Service holding a rank not below that of a District Judge or of a Civil Judge, First Class;

xxx xxx xxx”

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19. Section  55  of  Wakf  Act,  1954  (prior  to  1984

Amendment) was as follows:

“Section-55.  Institution  of  suits  under section 92 of the Code of Civil Procedure, 1908.-

(1) A suit to obtain any of the reliefs mentioned  in  section  92  of  the  Code  of Civil  Procedure,  1908,  (5  of  1908.) relating to any Wakf may, notwithstanding anything to the contrary contained in that section, be instituted by the Board without obtaining the consent referred to therein.

(2) No suit to obtain any of the reliefs referred to in section 92 of the Code of Civil Procedure, 1908, relating to any Wakf shall  be  instituted  by  any  person  or authority other than the Board without the consent in writing of the Board and for the institution of any such suit, it shall not be necessary to obtain the consent referred to  in  that  section,  notwithstanding anything  contained  therein:  

Provided that nothing in this sub-section shall apply in relation to any such suit against the Board.”

20. Comprehensive amendments were made in Wakf Act,

1954. Section 55 was substituted in the following

manner:

“55. Appointment, powers and jurisdiction of  tribunals.--(1)  The  State  Government shall,  by  notification  in  the  Official

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Gazette, constitute as many Tribunals as it may think fit for the determination of any dispute, question or other matter relating to a wakf property which such Tribunal is, or may be, required to determine under this Act or any rule or order made thereunder, and  may,  by  the  same  or  subsequent notification  in  the  Official  Gazette, define  the  local  limits  of  the  area  in relation to which each Tribunal appointed by  it  shall  exercise  jurisdiction  under this Act.

(2)  Any  mutawalli  of  a  wakf,  person interested in a wakf or any other person aggrieved by any order made under this Act or any rule or order made thereunder, may make  an  application  within  the  time specified in this Act or where no such time has been specified, within such time as may be  prescribed,  to  the  Tribunal  for  the determination of any dispute, question or other matter relating to the wakf.

(3) Where any application made under sub- section (1) relates to any wakf property which falls within the territorial limits of  the  Jurisdiction  of  two  or  more Tribunals, such application, may be made to the  Tribunal  within  the  local  limits  of whose jurisdiction the mutawalli or any one of the mutawallis of the wakf actually and voluntarily resides, carries on business or personally works for gain, and, where any such application is made to the Tribunal aforesaid, the other Tribunal or Tribunals having jurisdiction shall not entertain any application for the determination of such dispute, question or other matter:  

Provided that the State Government may, if it is of opinion that it is expedient in

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the  interests  of  the  wakf  or  any  other person interested in the wakf or the wakf property, to transfer such application to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such wakf or wakf property, transfer such application to any  other  Tribunal  having  jurisdiction, and,  on  such  transfer,  the  Tribunal  to which  the  application  is  so  transferred shall deal with the application from the stage which was reached before the Tribunal from  which  the  application  has  been  so transferred, except where the Tribunal is of  opinion  that  it  is  necessary  in  the interests  of  justice  to  deal  with  the application afresh.

(4)  Every  Tribunal  shall  consist  of  one person, who shall be a member of the State Judicial Service holding a rank, not below that of a District and Sessions Judge or of a Civil Judge, Class I, and the appointment of every such person may be made either by name or by designation.

(5) The Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, or executing a decree or order.

(6) Notwithstanding anything contained in the Code of Civil Procedure, 1908 (5 of 1908),  the  Tribunal  shall  follow  such procedure as may be prescribed:  

Provided  that  where  any  procedure, different from the prescribed procedure, is specified by this Act, the Tribunal shall follow the procedure specified by this Act.

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(7) The decision of the Tribunal shall be final and binding upon the parties to the application and it shall have the force of a decree made by a civil court.

(8)  Execution  of  any  decision  of  the Tribunal shall be made by the civil court to  which  such  decision  is  sent  for execution in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908).

(9)  No  appeal  shall  lie  against  any decision  or  order  whether  interim  or otherwise, given or made by the Tribunal:  

Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine  the  records  relating  to  any dispute, question or other matter which has been  determined  by  the  Tribunal  for  the purpose  of  satisfying  itself  as  to  the correctness, legality or propriety of such determination and may confirm, reverse or modify  such  determination  or  pass  such other order as it may think fit.”

21. Section  55C  was  inserted  relating  to  bar  of

jurisdiction  of  Civil  Court  which  was  to  the

following effect:

“55-C. Bar of jurisdiction of civil courts in  respect  of  matters  determined  by Tribunal.  -No  suit  or  other  legal proceeding shall lie in any civil court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by, or

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under,  this  Act  to  be  determined  by  a Tribunal.”

22. Chapter VIII of the Wakf Act, 1995 deals with

Judicial Proceedings. Sections 83 and 85 which are

relevant for this case are as follows:

“83. Constitution of Tribunals, etc.— (1) The State Government shall, by notification in the Official Gazette, constitute as many Tribunals  as  it  may  think  fit,  for  the determination of any dispute, question or other matter relating to a waqf or waqf property  under  this  Act  and  define  the local  limits  and  jurisdiction  of  such Tribunals.

(2) Any mutawalli person interested in a waqf or any other person aggrieved by an order made under this Act, or rules made thereunder, may make an application within the time specified in this Act or where no such time has been specified, within such time as may be prescribed, to the Tribunal for  the  determination  of  any  dispute, question or other matter relating to the waqf.  

(3) Where any application made under sub- section (1) relates to any waqf property which falls within the territorial limits of  the  jurisdiction  of  two  or  more Tribunals, such application may be made to the  Tribunal  within  the  local  limits  of whose jurisdiction the mutawalli or any one of the mutawallis of the waqf actually and voluntarily resides, carries on business or personally works for gain, and, where any such application is made to the Tribunal aforesaid, the other Tribunal or Tribunals having jurisdiction shall not entertain any

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application for the determination of such dispute, question or other matter:  

Provided that the State Government may, if it is of opinion that it is expedient in the  interest  of  the  waqf  or  any  other person interested in the waqf or the waqf property  to  transfer  such  application  to any other Tribunal having jurisdiction for the determination of the dispute, question or other matter relating to such waqf or waqf property, transfer such application to any  other  Tribunal  having  jurisdiction, and,  on  such  transfer,  the  Tribunal  to which  the  application  is  so  transferred, shall deal with the application from the stage which was reached before the Tribunal from  which  the  application  has  been  so transferred, except where the Tribunal is of  opinion  that  it  is  necessary  in  the interest  of  justice  to  deal  with  the application afresh.  

(4)  Every  Tribunal  shall  consist  of  one person who shall be a member of the State Judicial Service holding a rank, not below that  of  a  District,  Sessions  or  Civil Judge,  Class  I,  and  the  appointment  of every such person may be made either by name or by designation.  

(5) The Tribunal shall be deemed to be a Civil Court and shall have the same powers as may be exercised by a Civil Court under the Code of Civil Procedure, 1908, while trying a suit, or executing a decree or order.  

(6) Notwithstanding anything contained in the  Code  of  Civil  Procedure,  1908,  the Tribunal shall follow such procedure as may be prescribed.  

(7) The decision of the Tribunal shall be final and binding upon the parties to the

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application and it shall have the force of a decree made by a Civil Court.  

(8) The execution of any decision of the Tribunal shall be made by the Civil Court to  which  such  decision  is  sent  for execution in accordance with the provisions of the Code of Civil Procedure, 1908.

(9)  No  appeal  shall  lie  against  any decision  or  order  whether  interim  or otherwise, given or made by the Tribunal:  

Provided that a High Court may, on its own motion or on the application of the Board or any person aggrieved, call for and examine  the  records  relating  to  any dispute, question or other matter which has been  determined  by  the  Tribunal  for  the purpose  of  satisfying  itself  as  to  the correctness, legality or propriety of such determination and may confirm, reverse or modify  such  determination  or  pass  such other order as it may think fit.  

85. Bar of jurisdiction of Civil Courts. — No suit or other legal proceeding shall lie in  any  Civil  Court  in  respect  of  any dispute, question or other matter relating to any waqf, waqf property or other matter which is required by or under this Act to be determined by a Tribunal.”

23. Reverting back to the facts in these appeals, in

C.A.No.93 of 2019(Punjab Wakf Board vs. Teja Singh),

in  the  suit  filed  by  the  Punjab  Wakf  Board  the

plaintiff has claimed for the following reliefs:

“It is therefore, prayed that a decree for possession of property measuring 29K-9M comprised  in  Khewat  No.224,  Khatauni

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No.277,  Khasra  No.55,  56,57  as  per  the Jamabandi for the year 2000-2001 of Village Talwara,  HB  No.149,  Tehsil  Ludhana  West, District Ludhiana;

AND

For  the  grant  of  permanent  injunction restraining  the  defendant,  his  agents, attorneys, associates from interfering and changing the nature of the property in any manner whatsoever, may kindly be passed in favour of the plaintiff.”

24. Plaintiff’s case was that Teja Singh was let out

the  suit property,  till the  year 1996-97,  neither

lease  was  renewed  nor  lessee  handed  over  the

possession.  Teja  Singh  committed  illegalities,  the

lease had been cancelled on 05.12.1998 after legal

notice.  Thereafter,  the  suit  has  been  filed.

Plaintiff had also stated that Teja Singh failed to

get the lease renewed, and a suit against the Board

was filed where Civil Judge (Junior Division) decreed

the  suit restraining  the Board  from evicting  Teja

Singh forcibly or illegally. The case of Teja Singh

in his written statement was that defendant has not

violated any terms and conditions of the allotment

order and rent deed, defendant is still ready to pay

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the rent, the lease has not been terminated according

to the provisions of the Wakf Act.

25. Coming to C.A.No.92 0f 2019 (Punjab Wakf Board

vs. Sham Singh Harike), the case of the plaintiff in

the suit was that the suit land was let out to Sham

Singh with his wife, Kuldip Kaur in the year 1972 for

cultivation. Defendant deposited rent for some period

and after that he acted against the interests of the

Board and started a false litigation. The property

was  let  out  to  the  defendant  for  agricultural

purposes having no right to raise construction over

the  property.  Details  of  different  litigations

initiated by the defendant were given in the plaint.

Defendant initiated various proceedings for allotment

of the land from the Revenue Authority which were all

dismissed. The property has been mutated in the name

of Wakf Board. In the written statement filed by the

defendant, Sham Singh, the title of Wakf Board itself

was disputed, and it was pleaded that the suit is not

maintainable and liable to be dismissed. Until and

unless the suit property is declared to be that of

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the plaintiff no suit is maintainable. Mutation in

the name of the plaintiff does not confer any title.

Thus, in both the suits filed by the appellant, the

maintainability of the suit in the Wakf Tribunal was

questioned. In the written statement filed by Sham

Singh the title of the appellant to the suit property

was questioned and challenged.

26. Now, we need to notice the judgment of this Court

in Ramesh Gobindram(supra) on which the High Court as

well  as  learned  counsel  for  the  respondent  have

placed heavy reliance. In the above case, the Andhra

Pradesh Wakf Tribunal has passed an order of eviction

against the appellant. Revision Petition filed before

the Andhra Pradesh High Court was dismissed against

which the appeal was filed. The issue involved in

that case has been noticed in paragraph 2 of the

judgment which is to the following effect:

“2. The  question  is:  whether  the  Wakf Tribunal  constituted  under  Section  83  of the  Wakf  Act,  1995  was  competent  to entertain  and  adjudicate  upon  disputes regarding  eviction  of  the  appellants  who are occupying different items of what are admittedly  wakf  properties?  The  Wakf

23

Tribunal before whom the suits for eviction of  the  tenants  were  filed  answered  the question regarding its jurisdiction in the affirmative  and  decreed  the  suit  filed against the appellant.”

27. This Court noticed in the aforesaid judgment that

there is a cleavage in the judicial opinion expressed

on the question of jurisdiction of Wakf Tribunal by

the different High Courts in the country. The view of

the Andhra Pradesh High Court, Rajasthan High Court,

Madhya  Pradesh  High  Court,  Kerala  High  Court  and

Punjab and Haryana High Court has been noticed where

High Courts have taken the view that jurisdiction of

the Wakf Tribunal is wide enough to entertain and

adjudicate upon all kinds of disputes which relate to

any  Wakf  Property.  The  contrary  view  of  the  High

Court of Karnataka, High Courts of Madras, Allahabad

and Bombay was also noticed. This Court proceeded to

examine the scheme of Wakf Act, 1995. After noticing

the scheme of Sections 6, 7, 25 and other provisions

with respect to Section 85 of the Act, following was

stated by this Court in paragraphs 24 and 28:

24

“24. …………A plain reading of the above would show that the civil court’s jurisdiction is excluded only in cases where the matter in dispute is required under the Act to be determined  by  the  Tribunal.  The  words “which is required by or under this Act to be determined by a Tribunal” holds the key to the question whether or not all disputes concerning the wakf or wakf property stand excluded from the jurisdiction of the civil court.

28. Section  85  of  the  Act  clearly  bars jurisdiction  of  the  civil  courts  to entertain  any  suit  or  proceedings  in relation to orders passed by or proceedings that may be commenced before the Tribunal. It  follows  that  although  Section  85  is wider than what is contained in Sections 6 and  7  of  the  Act,  the  exclusion  of jurisdiction of the civil courts even under Section 85 is not absolute. It is limited only to matters that are required by the Act to be determined by a Tribunal. So long as the dispute or question raised before the civil court does not fall within the four corners of the powers vested in the Tribunal, the jurisdiction of the former to entertain a suit or proceedings in relation to any such question cannot be said to be barred.”

28. This Court noticing the provisions of Section 83

has observed that Section 83 does not deal with the

exclusion  of  the  jurisdiction  of  Civil  Courts  to

entertain the civil suits generally or suit of any

particular class or category. It interpreted Section

25

83  as  a  provision  which  does  not  exclude  the

jurisdiction of the Civil Court. Following was stated

in paragraph 29:

“29.  ………………………Section  83  of  the  Act, however, does not deal with the exclusion of the jurisdiction of the civil courts to entertain civil suits generally or suit of any  particular  class  or  category.  The exclusion of the civil court’s jurisdiction is dealt with by Section 6(5) and Section 85 of the Act. To interpret Section 83 as a provision that excludes the jurisdiction of the civil courts is not, therefore, legally correct,  for  that  provision  deals  with constitution  of  Tribunals,  the  procedure which  the  Tribunals  would  follow  and matters relating thereto.”

29. On an interpretation of Section 83 following has

been laid down by this Court in paragraphs 31, 32 and

33:

“31. It is clear from sub-section (1) of Section 83 above that the State Government is empowered to establish as many Tribunals as it may deem fit for the determination of any  dispute,  question  or  other  matter relating to a wakf or wakf property under the  Act  and  define  the  local  limits  of their  jurisdiction.  Sub-section  (2)  of Section 83 permits any mutawalli or other person interested in a wakf or any person aggrieved of an order made under the Act or the Rules framed thereunder to approach the Tribunal for determination of any dispute, question or other matter relating to the wakf.  What  is  important  is  that  the

26

Tribunal  can  be  approached  only  if  the person doing so is a mutawalli or a person interested in a wakf or aggrieved by an order made under the Act or the Rules. The remaining provisions of Section 83 provide for the procedure that the Tribunal shall follow and the manner in which the decision of a Tribunal shall be executed. No appeal is, however, maintainable against any such order although the High Court may call for the  records  and  decide  about  the correctness, legality or propriety of any determination made by the Tribunal.

32. There  is,  in  our  view,  nothing  in Section 83 to suggest that it pushes the exclusion of the jurisdiction of the civil courts extends (sic) beyond what has been provided for in Section 6(5), Section 7 and Section 85 of the Act. It simply empowers the Government to constitute a Tribunal or Tribunals for determination of any dispute, question of other matter relating to a wakf or wakf property which does not ipso facto mean  that  the  jurisdiction  of  the  civil courts  stands  completely  excluded  by reasons of such establishment.

33. It is noteworthy that the expression “for  the  determination  of  any  dispute, question or other matter relating to a wakf or  wakf  property”  appearing  in  Section 83(1) also appears in Section 85 of the Act. Section 85 does not, however, exclude the  jurisdiction  of  the  civil  courts  in respect  of  any  or  every  question  or disputes only because the same relates to a wakf  or  a  wakf  property.  Section  85  in terms provides that the jurisdiction of the civil  court  shall  stand  excluded  in relation  to  only  such  matters  as  are required  by  or  under  this  Act  to  be determined by the Tribunal.”

27

30. The ultimate conclusion by this Court has been

recorded  in  paragraphs  34  and  35  which  are  as

follows:

“34. The crucial question that shall have to be answered in every case where a plea regarding exclusion of the jurisdiction of the civil court is raised is whether the Tribunal  is  under  the  Act  or  the  Rules required to deal with the matter sought to be brought before a civil court. If it is not, the jurisdiction of the civil court is not  excluded.  But  if  the  Tribunal  is required  to  decide  the  matter  the jurisdiction of the civil court would stand excluded.

35. In the cases at hand, the Act does not provide  for  any  proceedings  before  the Tribunal  for  determination  of  a  dispute concerning  the  eviction  of  a  tenant  in occupation of a wakf property or the rights and  obligations  of  the  lessor  and  the lessees of such property. A suit seeking eviction  of  the  tenants  from  what  is admittedly wakf property could, therefore, be filed only before the civil court and not before the Tribunal.”

31. The crux of the judgment as noticed in paragraph

34 is that “whether the Tribunal is under the Act or

the Rules required to deal with the matter sought to

be brought before a Civil Court. If it is not, the

28

jurisdiction of the Civil Court is not excluded. But

if the Tribunal is required to decide the matter the

jurisdiction  of  the  Civil  Court  would  stand

excluded.” Thus, the ratio of the judgment as noticed

above is “as to whether the Tribunal is under the Act

or the Rules required to deal with the matter sought

to be brought”.

32. After  the  judgment  of  this  Court  in  Ramesh

Gobindram, there are several two-Judge judgments of

this  Court  either  following  Ramesh  Gobindram’s

judgment or distinguishing the same on one or other

reasons. This Court in  Bhanwar Lal and another vs.

Rajasthan Board of Muslim Wakf and others, (2014) 16

SCC 51, elaborately noticed the judgment of  Ramesh

Gobindram’s case. This Court ultimately in the facts

of that case held that since the suit was filed much

before the enforcement of the Act i.e. 1.1.1996, in

view of the dictum laid down in Sardar Khan & others

v. Syed Nazmul Hasan (Seth) and others, (2007) 10 SCC

727, the Civil Court where the suit was filed shall

continue  to  have  jurisdiction.  In  paragraph  30

following has been laid down:

29

“30. The suit is for cancellation of sale deed, rent and for possession as well as rendition of accounts and for removal of trustees.  However,  pleadings  in  the  suit are not filed before us and, therefore, the exact nature of relief claimed as well as the averments made in the plaint or written statements  are  not  known  to  us.  We  are making these remarks for the reason that some of the reliefs claimed in the suit appeared to be falling within the exclusive jurisdiction  of  the  Tribunal  whereas  for other  reliefs  the  civil  court  would  be competent.  Going  by  the  ratio  of  Ramesh Gobindram  (2010)  8  SCC  726,  suit  for possession and rent is to be tried by the civil court. However, the suit pertaining to  removal  of  trustees  and  rendition  of accounts would fall within the domain of the  Tribunal.  Insofar  as  relief  of cancellation of sale deed is concerned this is to be tried by the civil court for the reason that it is not covered by Section 6 or 7 of the Act whereby any jurisdiction is conferred upon the Tribunal to decide such an issue. Moreover, relief of possession, which  can  be  given  by  the  civil  court, depends upon the question as to whether the sale deed is valid or not. Thus, the issues of  sale  deed  and  possession  are inextricably mixed with each other. We have made  these  observations  to  clarify  the legal position. Insofar as the present case is concerned, since the suit was filed much before the Act came into force, going by the dicta laid down in Sardar Khan case, it is the civil court where the suit was filed will continue to have the jurisdiction over the  issue  and  the  civil  court  would  be competent to decide the same.”

30

33. In  Faseela  M.  vs.  Munnerul  Islam  Madrasa

Committee and another, (2014) 16 SCC 38, the Madrasa

Committee filed suit for eviction of the appellant

before  the  Wakf  Tribunal  with  regard  to  a  Wakf

property.  The  Tribunal  directed  the  plaint  to  be

returned to the Civil Court which order was recalled

on  18.09.2010.  The  appellant  had  filed  revision

before the High Court for declaration that the Wakf

Tribunal has no jurisdiction in the matter which was

dismissed  by  the  High  Court  relying  on  Ramesh

Gobindram.  This Court held that  suit for  eviction

against the tenant relating to a Wakf property is

exclusively triable by the Civil Court. In paragraph

16 following has been held:

“16. The matter before us is wholly and squarely covered by Ramesh Gobindram. The suit  for  eviction  against  the  tenant relating to a wakf property is exclusively triable by the civil court as such suit is not covered by the disputes specified in Sections 6 and 7 of the Act.”

34. There are few judgments of this Court in which

Ramesh Gobindram has been distinguished and it was

held that in those cases the suit was maintainable

31

before  the  Wakf  Tribunal.  In  Board  of  Wakf,  West

Bengal and another vs. Anis Fatma Begum and another,

(2010) 14 SCC 588, a suit was filed in the Calcutta

High  Court  in  its  original  summons  jurisdiction

questioning he demarcation of the Wakf property. In

Paragraph 4 of the judgment this Court noticed the

issues raised before the High Court. It was contended

before this Court that only the Wakf Tribunal has

jurisdiction in the matter under Wakf Act, 1995 and

the  suit  before  the  High  Court  was  without

jurisdiction.  The  said  submission  was  accepted  by

this Court. In paragraphs 6 and 7 following has been

laid down:

“6. It was submitted by Dr. Rajeev Dhavan, learned  Senior  Counsel  appearing  for  the appellant, that only the Wakf Tribunal has jurisdiction in the matter under the Wakf Act, 1995 and hence the suit filed in the High  Court  was  without  jurisdiction.  We agree.

7. The dispute in the present case relates to  a  wakf.  In  our  opinion,  all  matters pertaining to wakfs should be filed in the first  instance  before  the  Wakf  Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the  civil  court  or  by  the  High  Court straightaway  under  Article  226  of  the Constitution of India. It may be mentioned

32

that  the  Wakf  Act,  1995  is  a  recent parliamentary statute which has constituted a  Special  Tribunal  for  deciding  disputes relating to wakfs. The obvious purpose of constituting such a Tribunal was that a lot of cases relating to wakfs were being filed in  the  courts  in  India  and  they  were occupying a lot of time of all the courts in the country which resulted in increase in pendency of cases in the courts. Hence, a Special Tribunal has been constituted for deciding such matters.”

35. After noticing the provisions of Section 83 this

Court held that words “any dispute, question or other

matter relating to a Wakf or Wakf property” are words

of  wide  connotation  and  any  dispute,  question  or

other matter whatsoever and in whatever manner which

arises relating to a Wakf or Wakf property can be

decided by the Wakf Tribunal. Following has been laid

down in paragraph 10:

“10. Thus, the Wakf Tribunal can decide all disputes,  questions  or  other  matters relating to a wakf or wakf property. The words  “any  dispute,  question  or  other matters  relating  to  a  wakf  or  wakf property”  are,  in  our  opinion,  words  of very  wide  connotation.  Any  dispute, question or other matters whatsoever and in whatever manner which arises relating to a wakf or wakf property can be decided by the Wakf  Tribunal.  The  word  “wakf”  has  been defined in Section 3(r) of the Wakf Act, 1995 and hence once the property is found

33

to be a wakf property as defined in Section 3(r), then any dispute, question or other matter relating to it should be agitated before the Wakf Tribunal.”

36. This Court also held that when there is special

law  providing  for  a  special  forum,  then  recourse

cannot be taken to the general law. In paragraphs 14,

15 and 16 following was laid down:

“14. It is well settled that when there is a  special  law  providing  for  a  special forum, then recourse cannot be taken to the general  law,  vide  Justice  G.P.  Singh’s Principles of Statutory Interpretation (9th Edn., 2004, pp. 133-34).

15. In  Chief  Engineer,  Hydel  Project v. Ravinder Nath, (2008)2 SCC 350, this Court held that when the matter fell in the area covered by the Industrial Disputes Act, the civil court would have no jurisdiction. In the above decision the Court has referred to several earlier decisions on this point.

16. In view of the above, we are of the opinion that since the matter fell under the purview of the Wakf Act, only the Wakf Tribunal  has  jurisdiction  in  the  matter, and not the civil court. However, in view of the decision of this Court in  Sardar Khan v. Syed Najmul Hasan (Seth), (2007) 10 SCC  727,  the  Wakf  Act  will  not  be applicable  to suits/appeals/revisions/proceedings commenced prior to 1-1-1996 when the Wakf Act came into force.”

34

37. Distinguishing  the  judgment  of  this  Court  in

Ramesh  Gobindram  (supra) following  was  stated  in

paragraph 17:

“17. Learned  counsel  for  the  respondent, however,  relied  on  the  decision  of  this Court in Ramesh Gobindram v. Sugra Humayun Mirza Wakf. In the aforesaid decision it was held that eviction proceedings can only be decided by the civil court and not by the  Wakf  Tribunal.  The  dispute  in  the present case is not an eviction dispute. Hence,  the  aforesaid  decision  in  Ramesh Gobindram case is distinguishable.”

38. It is to be noticed that although two-Judge Bench

in  the  above  case  has  observed  that  judgment  of

Ramesh Gobindram is distinguishable but the ratio of

the judgment of  West Bengal Wakf Board  as can be

culled from paragraph 10 of the judgment, sounds a

substantially different note from Ramesh Gobindram’s

case. Two-Judge Bench in West Bengal Wakf Board case

held  

“10. ………………The words “any dispute, question or other matters relating to a wakf or wakf property”  are,  in  our  opinion,  words  of very  wide  connotation.  Any  dispute, question or other matters whatsoever and in whatever manner which arises relating to a

35

wakf or wakf property can be decided by the Wakf Tribunal………………………”  

39. In Haryana Wakf Board vs. Mahesh Kumar, (2014) 16

SCC 45, two-Judge Bench of this Court had occasion to

consider again the provisions of Sections 7 and 85 of

Wakf Act, 1995. In the above case suit was filed by

Haryana  Wakf  Board  seeking  possession  of  property

which was given on lease to different persons. It is

alleged that earlier lessee illegally created a lease

deed in favour of the respondent and treated it as

illegal encroachment by the respondent. The appellant

requested him to vacate the premises and when he did

not  do  so,  suit  was  filed  in  the  Court  of  Civil

Judge,  Junior  Division,  Karnal.  The  respondent

appeared and raised various objections and one of the

issues framed was that the suit is not maintainable

in the present forum. The trial court decreed the

suit  against  which  appeal  was  filed  before  the

Additional  District  Judge.  The  Additional  District

Judge held that since the claim of the suit by the

Wakf Board was on the basis that suit property was

Wakf property and since the respondent had denied it

36

to be the Wakf property, such a question could be

decided only by the Tribunal constituted under the

Wakf Act. The appeal court, therefore, returned the

plaint  for presentation  to the  Court of  competent

jurisdiction, namely, the Tribunal. The decree by the

trial court was set aside. The second appeal filed by

the defendant was dismissed hence appeal was filed.

This Court after examining Sections 7, 83 and 85 laid

down that wherever there is a dispute regarding the

nature  of  the  property,  namely,  whether  the  suit

property is Wakf property or not, it is the Tribunal

which has the exclusive jurisdiction to decide the

same. In paragraph 13 following has been laid down:

“13. The present suit was instituted in the year 2000 i.e. after the Wakf Act, 1995 came  into  force.  Therefore,  the  present case is not covered by exception to Section 7(5)  of  the  Wakf  Act.  Thus,  on  a  plain reading of Section 7 read with Section 85 of  the  Act,  it  becomes  manifest  that wherever there is a dispute regarding the nature of the property, namely, whether the suit property is wakf property or not, it is the Tribunal constituted under the Wakf Act, which has the exclusive jurisdiction to decide the same. We need not delve into this issue any longer, inasmuch as in a recent judgment by this very Bench of this Court in Bhanwar Lal v. Rajasthan Board of

37

Muslim Wakf, (2014) 16 SCC 51, decided on 9-9-2013, this Court took the same view, after taking note of earlier judgments on the subject, namely,  Sardar Khan v.  Syed Najmul  Hasan,  (2007)  10  SCC  727,  Ramesh Gobindram v.  Sugra  Humayun  Mirza  Wakf, (2010)  8  SCC  726.  This  view  has  been reaffirmed  in  Akkode  Jumayath  Palli Paripalana Committee v. P.V. Ibrahim Haji, (2014) 16 SCC 65.”

The view of the High Court was approved upholding

the jurisdiction of the Wakf Tribunal.

40. In Akkode Jumayath Palli Paripalana Committee vs.

P.V. Ibrahim Haji and others, (2014) 16 SCC 65, this

Court again had occasion to consider Sections 83 and

84 of the Wakf Act. The question which arose in the

above  case  is  whether  the  Wakf  Tribunal  has  got

jurisdiction  to  entertain  a  suit  for  injunction

restraining the defendants from interfering with the

administration, management and peaceful enjoyment of

the mosque and madarsa run by it and all the assets

attached to the mosque. The appellant had filed suit

for injunction before the Court of Munsif. It was

transferred  to  the  Wakf  Tribunal.  The  suit  was

decreed. Civil Revision was filed in the High Court

38

challenging the decree of the Wakf Tribunal. The High

Court setting aside the judgment and decree of the

Wakf Tribunal held that suit for injunction is not

maintainable  before  the  Wakf  Tribunal  placing

reliance  on  the  judgment  of  this  Court  in  Ramesh

Gobindram(supra). Following was noticed in paragraph

3 of the judgment:

“3. The respondents herein filed a civil revision petition as CRP No. 1362 of 2004 under Section 83(9) of the Wakf Act before the Kerala High Court. The High Court vide its judgment dated 10-11-2010 set aside the judgment  and  decree  passed  by  the  Wakf Tribunal holding that a suit for injunction is not maintainable before a Wakf Tribunal placing reliance on the judgment of this Court in Ramesh Gobindram v. Sugra Humayun Mirza  Wakf.  The  Court  also  granted permission to the appellant to take back the  plaint  for  presenting  before  the appropriate  court.  Later,  the  appellant preferred a review petition which was also dismissed by the High Court on 4-2-2011. The  legality  of  the  orders  is  under challenge  in  this  appeal.”

41. This Court disapproved the view of the High Court

and held that suit was maintainable. Two-judge Bench

has  further  observed  that  the  judgment  in  Ramesh

Gobindram (supra)  later  came  up  for  consideration

before this Court in  Board of Wakf, West Bengal v.

39

Anis Fatma Begum (supra) and the judgment in Ramesh

Gobindram was held to be distinguishable. Following

was laid down by this Court in paragraphs 5 and 6:

“5. The  ratio  laid  down  in  the abovementioned judgment in Ramesh Gobindram case later came up for consideration before this Court in W.B. Wakf Board v. Anis Fatma Begum, (2010) 14 SCC 588 and the judgment in  Ramesh  Gobindram  case was  held distinguishable. That was a case where the dispute related to the wakf estate which was created by a registered deed of wakf dated  22-9-1936.  The  question  raised  was with regard to the demarcation of the wakf property, which this Court held is a matter which fell under the purview of the Wakf Act.  The  judgment  of  the  Calcutta  High Court which held otherwise was set aside and this Court held that the Wakf Tribunal has jurisdiction to decide those disputes.

6. We are of the view that the dispute that arises for consideration in this case is with regard to the management and peaceful enjoyment of the mosque and madarsa and the assets which relate to wakf. Nature of the relief clearly shows that the Wakf Tribunal has  got  jurisdiction  to  decide  those disputes. We, therefore, find no error in the Wakf Tribunal entertaining OS No. 53 of 2003 filed by the appellant and the High Court  has  committed  an  error  in  holding otherwise. Consequently, the impugned order passed by the High Court is set aside and the matter is remitted to the High Court to consider  the  revision  on  merits.  The appeals are disposed of as above, with no order as to costs.”

40

42. Two-Judge Bench of this Court in the above case

held the suit to be maintainable in the Wakf Tribunal

and noted that the ratio of Ramesh Gobindram has been

distinguished in Anis Fatima case. But as per ratio

of Ramesh Gobindram unless there is any provision in

the Wakf Act, 1995 to entertain the said dispute only

then Wakf Tribunal has jurisdiction, the suit filed

for  injunction  was  not  maintainable  in  the  above

case. Thus, what is held in the above judgment by the

two-Judge Bench is not in accord with the ratio of

Ramesh Gobindram. Only one more judgment of two-Judge

Bench of this Court be noticed, where the suit filed

by the Punjab Wakf Board before the Wakf Tribunal

praying for mesne profits and possession was held to

be maintainable, i.e, judgment in  Punjab Wakf Board

vs.  Pritpal  Singh  &  Anr.(Civil  Appeal  No.8194  of

2013) decided on 13.09.2013. The facts of the case

have been noticed in the following manner:

“Petitioner herein filed a suit before the  Wakf  Tribunal,  Ludhiana,  inter  alia praying for possession as also for mesne profits.  The  Wakf  Tribunal  by  its  order dated  08.05.2009  decreed  the  suit  for possession as also for recovery of mesne profits.

41

Aggrieved by the same, the respondents preferred a writ petition before the High Court  for  quashing  the  said  order.  By impugned order dated 16.12.2010, the Punjab &  Haryana  High  Court  had  set  aside  the order of the Wakf Tribunal on its finding that the Wakf Tribunal had no jurisdiction to entertain a suit for ejectment. It is against this order that the petitioner has preferred this special leave petition.”  

43. After  considering  the  submissions,  this  Court

laid down:

“Having  heard  learned  counsel  for  the parties, we are of the opinion that the High Court had erred in holding that the suit was for ejectment and that being so the Wakf Tribunal has no jurisdiction. As we have observed earlier, the suit filed before the Wakf Tribunal was for possession and mesne profits and, therefore, the High Court had erred in setting aside the order of the Wakf Tribunal.”

44. Section 83 sub-section (1) has been substituted

by Act 27 of 2013. Substituted sub-section (1) is as

follows:

“Section  83(1).-  The  State  Government shall,  by  notification  in  the  Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a waqf or waqf property, eviction of a tenant  or  determination  of  rights  and obligations of the lessor and the lessee of such property, under this Act and define

42

the local limits and jurisdiction of such Tribunals.”

45. Section 83 sub-section (1) specifically includes

eviction of a tenant or determination of rights or

obligations  of  the  lessor  and  lessee  of  such

property.  

46. In both the suits giving rise to these appeals

the suits were filed much before the amendment of

Section  83  by  Act  27  of  2013.  We,  thus,  in  the

present  case  has  to  interpret  Section  83  as  it

existed prior to the above Amendment, 2013.  

47. In  sub-section  (1)  of  Section  83  the  State

Government  shall  by  notification  in  the  Official

Gazette, constitute as many Tribunals as it may think

fit. The words following the above sentence are “for

the determination of any dispute, question or other

matter relating to a wakf or wakf property under this

Act….”. The Constitution of Tribunal is, thus, for

the determination of any dispute, question or other

matter relating to wakf or wakf property under the

Act,  1995. The  “dispute, question  or other  matter

43

relating  to  wakf  or  wakf  property”,  thus,  has  to

arise under the Act, 1995. Various provisions of the

Act, 1995 refer to the Tribunal and the questions

which are to be decided by the Tribunal. In this

context sub-section (1) of Section 6 refers to the

questions which are to be decided by the Tribunal.

Sub-section (1) of Section 6 is as follows:

“Section  6(1).-If  any  question  arises whether a particular property specified as wakf property in the list of wakfs is wakf property or not or whether a wakf specified in such list is a Shia wakf or Sunni Wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a Tribunal for the decision of the  question  and  the  decision  of  the Tribunal in respect of such matter shall be final:

Provided  that  no  such  suit  shall  be entertained  by  the  Tribunal  after  the expiry of one year from the date of the publication of the list of wakfs.”

48. Similarly,  sub-section  (1)  of  Section  7  also

refers to decision of the question by the Tribunal.

Sub-section (1) of Section 7 is quoted below:

“Section 7(1).-If, after the commencement of this Act, any question arises, whether a particular  property  specified  as  wakf property  in  a  list  of  wakf,  is  wakf property or not or whether a wakf specified in such list is a Shia wakf or a Sunni

44

wakf, the Board or the mutawalli of the wakf, or any person interested therein, may apply to the Tribunal having jurisdiction in  relation  to  such  property,  for  the decision of the question and the decision of the Tribunal thereon shall be final:”

49. Section  33  contemplates  filing  of  an  appeal

before  the  Tribunal  against  orders  passed  under

Section 33. Section 33 sub-section (4) is as follows:

“Section 33(4) A mutawalli or other person aggrieved by such order may, within thirty days of the receipt by him of the order, appeal to the Tribunal:

Provided that no such appeal shall be entertained  by  the  Tribunal  unless  the appellant  first  deposits  with  the  Chief Executive Officer the amount which has been determined under sub-section (3) as being payable by the appellant and the Tribunal shall  have  no  power  to  make  any  order staying pending the disposal of the appeal, the  operation  of  the  order  made  by  the Chief Executive Officer under sub-section (3).”

50. Similar provision of appeal to Tribunal is also

contained under Section 51 sub-section (5). Section

52 sub-section (4) is again a provision to file an

appeal  before the  Tribunal. Section  54 deals  with

removal  of  encroachment  from  Wakf  property.  Under

Section 54(4) any person aggrieved by an order passed

45

by the Chief Executive Officer directing removal of

encroachment and delivering possession of the land,

building,  space or  other property  can institute  a

suit in a Tribunal to establish his right, title or

interest. Section 54(4) is as follows:

“Section  54(4)  Nothing  contained  in  sub- section  (3)  shall  prevent  any  person aggrieved by the order made by the Chief Executive  Officer  under  that  sub-section from instituting a suit in a Tribunal to establish  that  he  has  right,  title  or interest in the land, building, space or other property:

Provided  that  no  such  suit  shall  be instituted by a person who has been let into  possession  of  the  land,  building, space  or  other  property  as  a  lessee, licence or mortgagee by the mutawalli of the wakf or by any other person authorised by him in this behalf.”

51. Section  54(4)  contemplates  an  appeal  to  the

Tribunal  by  the  mutawalli  who  is  aggrieved  by  an

order of removal. Sub-section (6) of Section 64 is

again a power of the Tribunal to appoint a suitable

person  as  receiver  to  manage  the  Wakf.  On  an

application  filed  by  the  Board  in  an  appeal

challenging  his  removal  order  the  Tribunal  can

appoint a receiver. These are provisions in the Act

46

which refer to the Tribunal and refer to the subject

matter which can be brought before the Tribunal by

mutawalli or Board or any aggrieved person. The use

of the word “under this Act”, under Section 83(1)

relates to the words “for the determination of any

dispute, question or other matter relating to a Wakf

or  Wakf  property”.  Section  83(1)  provides  for

constitution of Tribunal. Other provisions of Section

83 deals with the procedure including bar of appeal

against the order of the Tribunal except power of the

High Court to revise the order of the Tribunal.  

52. Coming  to  Section  83  which  relates  to  bar  of

jurisdiction of Civil Court, the relevant words are

“any dispute, question or other matter relating to a

wakf or wakf property” which is required by or under

this Act to be determined by the Tribunal. Thus, bar

of jurisdiction of Civil Court is confined only to

those matters which are required to be determined by

the Tribunal under this Act. Thus, Civil Court shall

have jurisdiction to entertain suit and proceedings

which are not required by or under the Act, 1995 to

be  determined.  Thus,  answering  the  question  of

47

jurisdiction, question has to be asked whether the

issue raised in the suit or proceeding is required to

be decided under the Act, 1995 by the Tribunal, under

any provision or not. In the event, the answer is

affirmative, the bar of jurisdiction of Civil Court

shall operate.  

53. In the judgment in Ramesh Gobindram (supra) this

Court after considering Sections 83 and 85 as noted

above has explained the provisions. We now have to

apply the proposition of the law as noted above in

facts before us in both the appeals.

54.  In Civil Appeal No.92 of 2019(Punjab Wakf Board

vs.  Sham  Singh  Harike)  suit  for  injunction  was

initiated by the Board in the Civil Court against the

defendant. In the written statement filed by Sham

Singh Harike it was pleaded that suit property is not

a  Wakf  property.  In  paragraph  2  of  the  written

statement following was stated:

“2.  Para 2 of the plaint is wrong and denied.  It  is  wrong  that  land  measuring 269K-7M is a Wakf property. Mutation does not  confer  any  title  on  any  person. Mutation is under challenge as detailed in the preliminary objections. Plaintiff has

48

intentionally concealed the said fact. The plaintiff has also not disclosed the fact that the notification on the basis of which the alleged mutation has been sanctioned, does  not  confer  any  right,  title  or interest.  The  property  can  only  be transferred by a registered instrument duly registered  under  the  provision  of Registration  Act.  Thus,  plaintiff  has  no right,  title  or  interest  in  the  suit property  nor  is  competent  to  file  the present suit qua the said property.”

55. The suit was transferred to the Wakf Tribunal and

the  same  was  renumbered  as  RBT  No.84/2006.  An

application was filed by the defendant for rejection

of the plaint on the ground that the Tribunal has no

jurisdiction  to  entertain  the  suit.  The  Tribunal

rejected  the  application.  Against  the  order  of

rejecting application, civil revision was filed by

the  defendant  in  the  High  Court.  The  High  Court

relying on judgment of this Court in Ramesh Gobindram

has  given  the  following  reason  for  allowing  the

revision:

“In view of the aforesaid authoritative pronouncement by the Apex Court, where in it has been held that the right, title and interest of a non-muslim to the Wakf in a property cannot be put in jeopardy because that property is included in the list of

49

Wakf,  the  impugned  order  cannot  be sustained.

Thus, the present revision petition is allowed and the impugned order is set aside holding that since the Petitioner is a non- muslim,  the  Wakf  Tribunal  has  no jurisdiction in the matter and it is only the Civil Court which had the jurisdiction in the present dispute.”

56. The  High  Court  had  noticed  that  portion  of

judgment  of  Ramesh  Gobindram  where  this Court  had

noticed an earlier judgment of this Court in Board of

Muslim Wakfs, Rajasthan v. Radha Kishan and others,

(1979)  2  SCC  468.   Paragraphs  20  and  21  of  the

judgment of  Ramesh Gobindram  have been relied which

are to the following effect:

“20. From  a  conjoint  reading  of  the provisions of Sections 6 and 7 (supra) it is clear that the jurisdiction to determine whether  or  not  a  property  is  a  wakf property or whether a wakf is a Shia wakf or a Sunni wakf rests entirely with the Tribunal and no suit or other proceeding can be instituted or commenced in a civil court  in  relation  to  any  such  question after the commencement of the Act. What is noteworthy  is  that  under  Section  6  read with Section 7 (supra) the institution of (sic a suit in) the civil court is barred only  in  regard  to  questions  that  are specifically enumerated therein. The bar is not  complete  so  as  to  extend  to  other

50

questions that may arise in relation to the wakf property.

21. We may at this stage usefully digress from the core issue only to highlight the fact  that  Section  6(1)  and  the  proviso thereto have fallen for interpretation of this Court on a few occasions. In Board of Muslim Wakfs v.  Radha Kishan,(1979) 2 SCC 468, one of the questions that fell for determination was, who are the parties that could  be  taken  to  be  concerned  in  a proceeding under sub-section (1) of Section 6 of the Act. This Court held that under Section 6(1) the Board or the mutawalli of the wakf or any person interested therein is entitled to file a suit but the word “therein”  following  the  expression  “any person interested” must necessarily refer to  the  word  “wakf”  which  immediately precedes  it.  The  object  underlying  the proviso,  observed  this  Court,  was  to confine the power to file a suit to the mutawalli  and  persons  interested  in  the wakf. It did not extend to persons who are not  persons  interested  in  the  wakf. Consequently, the right, title and interest of a stranger, (a non-Muslim), to the wakf in a property cannot be put in jeopardy merely because that property is included in the  list  of  wakfs.  The  special  rule  of limitation  prescribed  by  the  proviso  to Section 6(1) was itself held inapplicable to him and a suit for declaration of title to any property included in the list of wakfs  held  maintainable  even  after  the expiry of the period of one year.”

57. This Court in  Ramesh Gobindram  has referred to

earlier judgment in Board of Muslim Wakfs, Rajasthan

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v. Radha Kishan and others, (1979) 2 SCC 468. In the

case of Board of Muslim Wakfs this Court had occasion

to  interpret  sub-section  (1)  of  Section  6  with

proviso to sub-section (1) of Wakf Act, 1954. The

questions which fell for consideration in the above

case has been considered in paragraph 22 which is to

following effect:

“22.  The  questions  that  fall  for determination  upon  the  appeal  are  two: first,  whether  a  Commissioner  of  Wakfs appointed under sub-section (1) of Section 4  of  the  Wakf  Act,  1954,  has  the jurisdiction  under  sub-section  (3)  of Section  4  to  enquire  whether  a  certain property is wakf property or not when such a dispute is raised by a stranger to the wakf and second, if so, whether the failure of such a person to institute a suit in a civil court of competent jurisdiction for decision of such question within a period of  one  year,  as  provided  for  under  sub- section  (1)  of  Section  6,  makes  the inclusion of such property in the list of wakfs  published  by  the  Board  under  sub- section (2) of Section 5 of the Act final and  conclusive  under  sub-section  (4)  of Section 6.”

58. In the above case the respondents were mortgagee

of property which under Section 5 of 1954, Act was

published for inclusion in the list of Wakfs. The

writ  petition  was  filed  by  the  respondents

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challenging legality and validity of the proceedings

taken which was allowed by the High Court. The High

Court held that where a person claiming title is a

stranger to the Wakf, the inclusion of such property

in the list of Wakfs by the Board under sub-section

(2) of Section 5 of the Act shall not be final and

conclusive. This Court noticed the contention of the

respondents who contended that they being non-Muslims

they  are  outside  the  scope  of  sub-section  (1)  of

Section 6 and they have no right to file the suit

contemplated by that sub-section, therefore, the list

of Wakfs published under sub-section (2) of Section 5

cannot  be final  and conclusive  against them  under

sub-section (4) of Section 6. The argument raised by

the  respondents  was  accepted  by  this  Court  and

following was laid down in paragraph 33:

“33. The answer to these questions must turn on the true meaning and construction of  the  word  “therein”  in  the  expression “any  person  interested  therein”  appearing in sub-section (1) of Section 6. In order to  understand  the  meaning  of  the  word “therein” in our view, it is necessary to refer to the preceding words ‘the Board or the  mutawalli  of  the  wakf’.  The  word ‘therein’  must  necessarily  refer  to  the “wakf”  which  immediately  precedes  it.  It

53

cannot refer to the “wakf property”. Sub- section  (1)  of  Section  6  enumerates  the persons  who  can  file  suits  and  also  the questions  in  respect  of  which  such  suits can  be  filed.  In  enumerating  the  persons who are empowered to file suits under this provision, only the Board, the mutawalli of the  wakf,  and  “any  person  interested therein”,  thereby  necessarily  meaning  any person interested in the wakf, are listed. It should be borne in mind that the Act deals with wakfs, its institutions and its properties. It would, therefore, be logical and reasonable to infer that its provisions empower  only  those  who  are  interested  in the wakfs, to institute suits.”

59. This Court after holding that the word ‘therein’

used in sub-section (1) of Section 6 must necessarily

refer  to  the  ‘wakf’.  After  holding  the  above

following was laid down in paragraphs 39 and 42:

“39. It follows that where a stranger who is a non-Muslim and is in possession of a certain  property  his  right,  title  and interest therein cannot be put in jeopardy merely because the property is included in the list. Such a person is not required to file a suit for a declaration of his title within a period of one year. The special rule of limitation laid down in proviso to sub-section  (1)  of  Section  6  is  not applicable to him. In other words, the list published by the Board of Wakfs under sub- section (2) of Section 5 can be challenged by him by filing a suit for declaration of title even after the expiry of the period of  one  year,  if  the  necessity  of  filing such suit arises.

54

42. We  must  accordingly  hold  that  the Commissioner  of  Wakfs  acted  within jurisdiction  in  holding  the  disputed property  to  be  wakf  property.  It  must, therefore, follow that the Board of Muslim Wakfs, Rajasthan was justified in including the property in the list of wakfs published under sub-section (2) of Section 5 of the Act. We must also hold, on a construction of sub-section (1) of Section 6 that the list of wakfs so published by the Board was not final and conclusive under sub-section (4) of Section 6 against the Respondents 1 and 2 due to their failure to bring a suit within  one  year  as  contemplated  by  sub- section (1) of Section 6.”

60. In  the  above  sub-section  (1)  of  Section  6  of

Act, 1995 an explanation has been added which is to

the following effect:

“Explanation.-  For  the  purposes  of  this Section and Section 7 the expression “any person  interested  therein,”  shall,  in relation to any property specified as wakf property  in  the  list  of  wakfs  published after the commencement of this Act, shall include also every person who, though not interested  in  the  wakf  concerned,  is interested in such property and to whom a reasonable opportunity had been afforded to represent his case by notice served on him in  that  behalf  during  the  course  of  the relevant inquiry under Section 4.”

The explanation to sub-section (1) of Section 6

makes it clear that any person interested ‘therein’

55

who, though not interested in the Wakf concerned, is

interested in such property. The above amendment of

Section 6 sub-section (1) has made the interpretation

of this Court in  Board of Muslim Wakfs (supra)  of

Section  6  sub-section  (1)  inapplicable.  Thus,  the

interpretation that the word ‘therein’ refers to only

Wakf  has  been  consciously  departed  with  and  any

person  interested  therein  is  a  person  who  is

interested in Wakf as well as in Wakf property both.

 61. In the above context it is relevant to notice

another judgment of this Court in Punjab Wakf Board

v. Gram Panchayat, (2000) (2) SCC 121, in which case

the explanation which was inserted in Section 6(1) of

the Wakf Act, 1954 by Central Act 69 of 1984 came to

be considered. The explanation which was added in

Section 6(1) by 1984 Amendment has brought almost the

same  statutory  scheme  which  has  been  brought  by

explanation  of  Section  6(1)  of  Act,  1995.  On

explanation inserted by 1984 Amendment, this Court

laid down following:

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“24. Learned  counsel  for  the  appellant also  referred  to  the  explanation  added below to sub-section (1) of Section 6 of the Wakf Act, 1954, by Central Act 69 of 1984. The explanation reads as follows:

“Explanation.—For  the  purpose  of this  section  and  Section  6-A,  the expression  ‘any  person  interested therein’ occurring in sub-section (1) of this section and in sub-section (1) of Section 6-A, shall, in relation to any  property  specified  as  wakf property in a list of wakfs published, under  sub-section  (2)  of  Section  5, after  the  commencement  of  the  Wakf (Amendment)  Act,  1984,  shall  include also  every  person  who,  though  not interested in the wakf concerned, is interested  in  such  property  and  to whom a reasonable opportunity had been afforded  to  represent  his  case  by notice  served  on  him  in  that  behalf during  the  course  of  the  relevant inquiry under Section 4.”

25. Obviously,  the  intention  of Parliament was to say that if a suit was not filed within one year, the notification would  be  binding  not  only  on  those interested in the trust but even strangers, claiming  interest  in  the  property  in question, provided they were given notice in  the  inquiry  under  Section  4  preceding the notification under Section 5(2).

26. In this connection, we have to point out that the Government of India has not issued  any  date  for  commencement  of  the explanation in Section 6 of the Wakf Act quoted above. Even if it is assumed that the explanation can be invoked, there is no material before us to show that any notice

57

was issued to the Gram Panchayat before the issuance of the notification, as required by the explanation. If no notice was issued as  required  by  the  notification,  the notification would not come in the way of a civil  court  to  decide  the  question  if raised between the Wakf and a third party, even if such a suit was filed beyond one year  from  the  date  of  the  notification. Thus, once the Assistant Collector and the Collector had jurisdiction to decide, their decision became final and Section 13 of the Punjab Act barred the civil suit filed by the Wakf Board.”

62. The judgment of this Court in Punjab Wakf Board

v. Gram Panchayat interpreting the explanation, thus,

held that the notification issued under Section 5

would be binding not only on those interested in the

Wakf but even strangers, claiming interest in the

property in question, provided they were given notice

in  the  inquiry  under  Section  4  preceding  the

notification under Section 5(2). The interpretation

put  by  this  Court  in  Punjab  Wakf  Board  Vs.  Gram

Panchayat to the explanation added by Amendment Act,

1984  can  equally  be  applied  to  interpretation  of

explanation to sub-section (1) of Section 6 of Act,

1995. Applying the above ratio to the interpretation

58

of explanation of Section 6(1) of Act, 1995 following

two conclusions can be drawn:

(a) Any person interested in the Wakf property

which is specified as Wakf property in the list

of Wakfs published under Section 5 can also raise

the  dispute  regarding  the  Wakf  property  by

instituting a suit in a Tribunal. Limitation for

filing such suit by any person interested in the

Wakf property is one year as per Section 6(1)

proviso.

 (b) The  finality  of  the  Wakf  property  being

included  in  the  list  of  Wakfs  published  under

Section 5(2) shall not be on a person to whom a

reasonable opportunity had not been afforded to

represent his case by notice served on him during

the course of relevant inquiry under Section 4.

63. We may also notice the provision of Section 6 of

sub-section (5) as it existed when suit was filed by

Punjab Wakf Board against Sham Singh Harike. Section

6 sub-section (5) provided as follows:

59

“6(5) On and from the commencement of this Act  in  a  State,  no  suit  or  other  legal proceeding shall be instituted or commence in a  Court  in  that  State  in  relation  to  any question referred to in sub-section (1).

64. As per Section 6 sub-section (1) if any question

arises as to whether a Wakf property in the list of

Wakfs  is  wakf  property  or  not,a  suit  can  be

instituted  in  a  Tribunal  for  the  decision  of  the

question which decision shall be treated as final.

Limitation for such suit was also provided in proviso

as one year from the date of the publication of the

list of Wakfs. Sub-section (5) of Section 6 contained

the provision barring a suit in any Court after the

commencement of the Act in relation to any question

referred to in sub-section (1). In Suit No.250 dated

10.09.2001 (RBT No.84 dated 09.10.2006, Punjab Wakf

Board vs. Sham Singh) the question has arisen as to

whether suit property is a Wakf property or not. We

have noticed pleadings in written statement filed by

the  defendant  in  the  above  suit  where  it  was

specifically  denied  that  suit  property  is  a  Wakf

property. Thus, within the meaning of sub-section (1)

60

of Section 6 question that whether a suit property is

a Wakf property or not has arisen. Thus, the suit

wherein the above question has arisen ought to be

considered by the Tribunal and the High Court clearly

erred in allowing the revision filed by the defendant

by its order dated 20.09.2010.

65. Thus, the view of the High Court that right,

title and interest of a non-Muslim to the Wakf in a

property cannot be put in jeopardy is contrary to the

statutory scheme as contained in Section 6 of the

Act, 1995. Thus, the reason of the High Court to

allow the revision petition is wholly unfounded. The

defendant in written statement has pleaded that the

suit property is not Wakf property. When issue in the

suit is as to whether suit property is Wakf property

or  not  it  is  covered  by  specific  provision  of

Sections 6 and 7 of the Wakf Act, 1995, hence, it is

required to be decided by the Tribunal under Section

83 and bar under Section 85 shall come into existence

with regard to jurisdiction of Civil Court. In this

context, in the judgment in  Haryana Wakf Board vs.

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Mahesh Kumar, (2014) 16 SCC 45, this Court has laid

down  that  the  question  as  to  whether  the  suit

property is a Wakf property is a question which has

to be decided by the Tribunal. In the above case

plaint  was  returned  by  the  Appellate  Court  under

Order  VII  Rule  10  for  presentation  before  the

Tribunal  which  view  was  upheld  by  this  Court.  In

paragraph 6 of the judgment following was laid down:

“6....Deciding  the  question  of maintainability  and  locus  standi,  in respect  of  which  Issues  2  and  4  were framed, the first appellate court held that since  the  claim  in  the  suit  by  the petitioner which is a Wakf Board, was on the  basis  that  suit  property  was  wakf property  and  since  the  respondent  had denied  it  to  be  the  wakf  property,  the question  had  arisen  as  to  whether  suit property is wakf property or not. Such a question,  in  the  opinion  of  the  learned Additional District Judge, could be decided only by the Tribunal constituted under the Wakf  Act.  The  appeal  court,  therefore, returned the plaint to the petitioner under Order 7 Rule 10 CPC for presentation to the court  of  competent  jurisdiction,  namely, the  Tribunal.  The  result  was  that  the decree passed by the trial court was set aside and the plaint returned.”

66. Civil  Appeal  No.92  of  2019  is,  thus,  fully

covered by the judgment of this Court in Haryana Wakf

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Board vs. Mahesh Kumar. The defendant having pleaded

that  suit  property  is  not  a  Wakf  property,  the

question has to be decided by the Tribunal. Thus, the

High  Court  has  committed  error  in  allowing  the

revision petition. Thus, this appeal deserves to be

allowed.

67. One more question needs to be considered is as

to whether a suit within the meaning of Section 6

sub-section (1) or Section 7(1) is to be filed within

a period of one year of publication of list of Wakfs

under Section 5.  

68. The  provision  contained  in  proviso  to  Section

6(1) that no such suit shall be entertained by the

Tribunal after the expiry of one year from the date

of the publication of the list of Wakfs shall be

applicable to every person who though not interested

in the Wakf concerned, is interested in such property

and  to  whom  a  reasonable  opportunity  had  been

afforded to represent his case by notice served on

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him in that behalf during the course of the relevant

inquiry under Section 4.

69. When  Section  6  sub-section  (1)  provides  for

raising a dispute regarding Wakf property in a period

of one year, it applies to every person who wants to

dispute  the  list  except  those  who  have  been  not

served notice under Section 4(1).

  70. Now coming to Civil Appeal No.93 of 2019(Punjab

Wakf Board vs. Teja Singh), the suit was filed by

Wakf  Board  for  possession  of  suit  property  and

injunction in the Tribunal. The above suit was fully

covered  by  the  ratio  laid  down  by  this  Court  in

Ramesh Gobindram (supra). The High court relying on

Ramesh Gobindram case has allowed revision petition

filed by the defendant. We do not find any error in

the order of the High Court allowing the revision

petition filed by the defendant directing the plaint

along with documents was returned to be presented

before the appropriate court i.e. Civil Court. We

uphold the above order of the High Court. In the

result, this appeal deserves to be dismissed.

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71. In view of the foregoing discussions, we allow

Civil Appeal No.92 of 2019 (Punjab Wakf Board vs.

Sham Singh Harike) and set aside the order of the

High Court dated 20.09.2010. Civil Appeal No.93 of

2019 (Punjab Wakf Board vs. Teja Singh) is dismissed.

Parties shall bear their own costs.  

......................J.                              ( ASHOK BHUSHAN )

......................J.                              ( K.M. JOSEPH )

New Delhi,  February 07,2019.