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        REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION CIVIL APPEAL No.  6310 OF 2017

(ARISING OUT OF SLP (C) No.13251/2014)

Rajasthan Wakf Board        ….Appellant(s)

VERSUS

Devki Nandan Pathak & Ors.      …Respondent(s)

J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted.

2) This appeal is filed by defendant No.6 against

the  final  judgment  and  order  dated  30.01.2014

passed  by  the  High  Court  of  Judicature  for

Rajasthan,  Bench at Jaipur in CRP No.400 of 2001

whereby  the  High  Court  allowed  the  revision

petition filed by the respondent Nos.1 to 5 herein

and set aside the order dated 22.02.2001 passed by

the  Presiding  Officer,  Rajasthan  Wakf  Tribunal,

Jaipur, wherein the Tribunal decreed the suit filed

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by  the  plaintiff-respondent  No.6  herein  against

defendant Nos. 1 to 5 in respect of the suit land.

3) In order to appreciate the issue involved in the

appeal,  which  lies  in  a  narrow  compass,  it  is

necessary to state the relevant facts infra.

4) The  appellant  herein  is  defendant  No.  6

whereas respondent Nos. 1 to 5 are defendant Nos.

1 to 5 and respondent No. 6 is the plaintiff in a suit

out of which this appeal arises.

5) The appellant is a Wakf Board registered under

the Waqf Act, 1995 (hereinafter referred to as “the

Act”).   It  has  an  office  at  Jaipur  in  the  State  of

Rajasthan.  

6) There is a property called "Kauria Wali Masjid"

situated in Town Hindaun, Tehsil Hindaun Barpara

District  Karauli,  Rajasthan.  The  property  is

registered as "Wakf" at Serial No. 23, Page No.116 in

the list  of  Wakf published under Section 5 of  the

Act. Respondent No. 6 is the Mutawali of the Masjid.

7) On 05.06.1998,  respondent  No.5  claiming  to

be  the  owner  of  the  land  situated  adjacent  to

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“Kauria Wali Masjid” property measuring 37 feet x

34 feet  (hereinafter  called  the  “suit  land”)  sold  to

respondent  Nos.1  to  4  by  deed  of  sale.  This  sale

gave  rise  to  the  dispute  between  the  Wakf

represented by respondent No. 6 on the one hand

and Respondent Nos.1 to 5 on the other.  

8) Respondent  No.6  filed  a  suit  against

respondent Nos.1 to 5 and the appellant before the

Rajasthan Wakf Tribunal at Jaipur. The foundation

on which respondent No. 6 (plaintiff) filed the suit

for  claiming relief  therein,  inter  alia, was that the

“suit land” is the Wakf property or, in other words, a

part  of  the  Wakf  property  and  hence  respondent

No.5,  who is  an individual  and unconnected with

the  affairs  of  the  Wakf,  had  no  right,  title  and

interest to sell the suit land to anyone much less to

respondent Nos.1 to 4.  It was alleged that the sale

of  the  suit  land  was  equally  in  contravention  of

Section 51 of the Act and hence the same was void

and illegal (para 7 of the plaint). It was also alleged

that  even  the  plaintiff,  who  is  a  Mutawali  of  the

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Masjid (wakf), had no right to sell the Wakf property

or/and  any  of  its  part  without  following  the  due

procedure  prescribed under  the  Act.   Respondent

No.6,  therefore,  claimed  a  relief  that  firstly,

respondent Nos.1 to 4 (defendant Nos.1 to 4) should

not forcibly take possession of the suit land and in

the alternate the sale in question be declared void.

9) Respondent  Nos.1  to  5  filed  the  written

statement  and  denied  the  claim  set  up  by

respondent No.6 in the plaint.  According to them,

the suit land was neither the Wakf property and nor

a part  of  any Wakf  property.   It  was alleged that

respondent No.5 being the owner of  the suit  land

had every right to sell the suit land to respondent

Nos.1 to 4 and which he did by executing the sale

deed.  It was also alleged that the Tribunal has no

jurisdiction to try the suit  and the remedy of  the

plaintiff is to file civil suit before the Civil Court for

claiming appropriate reliefs.  The Tribunal, on the

basis of the pleadings, framed the following issues

for adjudication:

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“1. Whether  the  plaintiff  is  entitled  to  file the case?

2. Whether the property in suit is the part of Masjid Kauria Wali?

3.  Whether this Board has no jurisdiction to entertain this case?

4. Whether the case is time barred?

5. To what relief the plaintiff is entitled?”

10) The parties adduced evidence. By order dated

22.02.2001,  the  Tribunal  decreed  the  suit  and

accordingly  passed  an  order  against  respondent

Nos.1 to 5.  It was held that firstly, the Tribunal has

the jurisdiction to try the suit; secondly, the plaintiff

(respondent  No.6)  is  the  Mutawali  of  the  Wakf

property and, therefore, competent to file the suit in

relation to the suit land; and thirdly, the suit land is

the Wakf property or, in other words, a part of the

Wakf property and, therefore, it is subjected to the

Wakf Act.

11) Felt aggrieved, respondent Nos.1 to 5 filed the

revision under Section 83(9) of the Act in the High

Court. By impugned order, the Single Judge of the

High Court allowed the revision and set aside the

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order  of  the  Tribunal  on  the  ground  that  the

Tribunal had no jurisdiction to try the suit and the

remedy of respondent No.6 (plaintiff) was to file civil

suit  before  the  Civil  Court.  The  High  Court,

therefore, did not examine the merits of the issues

arising in the case.  

12) Felt  aggrieved,  defendant  No.6-Wakf  Board

filed  this  appeal  by  way  of  special  leave  petition

questioning the legality and correctness of the order

of the High Court.

13) Heard  Mr.  Salman  Khurshid,  learned  senior

counsel  for  the appellant  and Mr.  Nitin Bhardwaj

and Mr. Praveen Chaturvedi, learned counsel for the

respondents.

14) Mr. Salman Khurshid, learned senior counsel

appearing  for  the  appellant-Wakf  Board  while

assailing  the  legality  and  correctness  of  the

impugned  order  contended  that  the  High  Court

erred  in  holding  that  the  Tribunal  did  not  have

jurisdiction to try the suit out of which this appeal

arises.

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15)  According  to  him,  reading  the  averments

made in the plaint as a whole would clearly go to

show  that  the  suit  filed  before  the  Tribunal  was

maintainable and, therefore, it was rightly tried and

decreed by the Tribunal on merits holding the suit

land to be the Wakf property.  

16) Learned counsel urged that the basic question,

which  was  required  to  be  decided  in  the  suit  as

would be clear from issue No. 2, was whether the

suit  land  is  a  Wakf  property  or,  in  other  words,

whether  it  is  a  part  of  Wakf  property  or  not.

Learned counsel pointed out from the pleadings that

it has been the case of the plaintiff (respondent No.6

herein) that the suit land has all along been the part

of the Wakf property and hence neither respondent

No.5 nor anyone had any right to sell the said land

so long as the procedure prescribed under the Act

for sale of such property is followed.  

17) Learned  counsel  pointed  out  that  under  the

Scheme of  the  Act,  the  question  as  to  whether  a

particular property is a Wakf property or not has to

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be tried and decided by the Tribunal under Section

83 of the Act and the jurisdiction of the Civil Court

to  decide  such  question  is  expressly  barred  by

Section 85 of the Act.  

18) Learned  counsel,  therefore,  urged  that  the

impugned order should be set aside by holding that

the Tribunal has the jurisdiction to try and decide

the suit and the matter be accordingly remitted to

the High Court for deciding the revision on merits

with a view to decide as to whether the Tribunal was

justified in holding the suit land to be part of Wakf

property or not.

19) In reply, learned counsel for the respondents

(defendant  Nos.  1  to  5)  supported  the  impugned

order  and  contended  that  it  does  not  need  any

interference and the same be upheld by dismissing

the appeal.

20) Having heard learned counsel  for  the parties

and on perusal  of  the record of  the case, we find

force in the submission of the learned counsel for

the appellant.

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21) The  main  question  that  arises  for

consideration  in  this  appeal  is  whether  the  High

Court was justified in holding that the suit was not

capable of being tried by the Tribunal under Section

83 of the Act and the remedy of the plaintiff was to

file a civil suit before the Civil Court.

22) The Waqf Act, 1995 was amended by The Wakf

(Amendment)  Act,  2013  (Act  No.  27/2013).  Since

the case at hand is governed by the unamended Act,

we take  note  of  some of  the  relevant  unamended

provisions of the Act hereinbelow.   

23)  Section  51  of  the  Act  provides  that

notwithstanding  anything  contained  in  the  Wakf

Deed, any gift,  sale,  exchange or mortgage of  any

immovable property, which is a Wakf property, shall

be void unless it is effected with the prior sanction

of the Board. Section 52 of the Act empowers the

Board to approach the Collector of  the District  to

obtain possession of such Wakf property, which is

alienated in contravention of Section 51 or Section

56 of the Act. It also provides a right of appeal to the

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Tribunal against the order of the Collector passed

under Section 52(2) of the Act. Section 54 of the Act

provides  that  the  Chief  Executive  Officer  to

approach the Tribunal to seek an order of eviction

against any encroacher of the Wakf property.  

24) Section 83 of the Act empowers the Tribunal to

determine  any  dispute,  question  or  other  matter

relating to a Waqf or Wakf property under this Act.

Section 85 of the Act which deals with the Bar of

jurisdiction of Civil Court provides that no suit or

other legal proceedings 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  under  this  Act  to  be

determined by the Tribunal.

25)   Reading the averments made in the plaint in

the light of aforementioned sections, we are of the

considered opinion that the Tribunal was right in its

view in holding that it had the jurisdiction to try the

suit on merits whereas the High Court was not so in

holding the otherwise.  

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26) In  other  words,  we  are  of  the  view  that  the

Tribunal  does  have  jurisdiction  to  decide  the

question arising in the suit filed by respondent No.6

and, therefore, the Tribunal rightly tried the suit on

merits. The reasons are not far to seek.

27)  In the first place, the main question involved

in  the  suit  was  whether  the  suit  land  is  a  Wakf

property  or  not.  Plaintiff  says  that  it  is  a  Wakf

property whereas the defendants say that it is not

the Wakf property but it is their self property. This

question, in our opinion, can be decided only by the

Tribunal  and not  by  the  Civil  Court  as  has  been

decided  by  this  Court  consistently  in   Ramesh

Gobindram  vs.  Sugra  Hamayun  Mirza  Waqf,

(2010)  8  SCC 726  and  Bhanwar  Lal  &  Anr.  Vs.

Rajasthan Board of Muslim Wakf & Ors.,  (2014)

16 SCC 51).  Second, once the property is declared

to be a Wakf property, a fortiori, whether the sale of

such property is made by a person not connected

with the affairs of the Wakf or by a person dealing

with the affairs of the Wakf, the same becomes void

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by virtue of Section 51 of the Act unless it is proved

that it was made after obtaining prior permission of

the Board as provided under the Act.  One cannot

dispute that   the matters falling under Sections 51

and 52 of the Act are also required to be decided by

the  Tribunal  and  hence  jurisdiction  of  the  Civil

Court  to  decide  such  matters  is  also  barred  by

virtue of provisions contained in Section 85 of the

Act.  

28) In  the  light  of  foregoing  discussion,  we  are

unable  to  concur  with  the  reasoning  and  the

conclusion arrived at by the High Court as we find

that the High Court while deciding the question did

not examine the question in its proper perspective

keeping in view the aforementioned provisions, their

scope and the law laid down in the cases referred

supra.   

29) As  a  result,  the  appeal  succeeds  and  is

allowed. The impugned order is set aside.

30) As  a  consequence  thereof,  the  matter  is

remanded  to  the  High  Court  for  deciding  the

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revision afresh on merits with a view to decide as to

whether the findings of the Tribunal on merits by

which the suit was decreed are correct or not?  

31) We, however, make it clear that we have not

expressed any opinion on the merits of the case and

hence the High Court would now decide the revision

expeditiously on merits strictly in accordance with

law uninfluenced by any of our observations.   

                      ………...................................J. [R.K. AGRAWAL]

                                                          …...……..................................J.   [ABHAY  MANOHAR  SAPRE]

New Delhi; May 04, 2017  

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