Prasenjit Biswas, J
1. Feeling aggrieved and dissatisfied with the order passed by the learned Trial Court dismissing the application and refusing to reject the respective plaint under Order VII Rule 11(d) of the CPC, the petitioners preferred revision application before this Court.
2. The defendants in the Title Suit No.983/2007 on the file of the Court of learned Civil Judge (Junior Division), 3rd Court at Alipore, are the petitioners in the present civil revision petition. The above said suit was filed by the predecessor in interest of the opposite parties no(s) 1(a) to 1(e)(herein) against these petitioners (herein) for: (1) decree of declaration of the lease hold right, title and interest of the scheduled property and ownership of the building standing thereon; (2) declaration that the defendants no(s). 1 to 3 of the Mysore Family Fateha Fund Committee have no locus standi to evict the plaintiff and persons claiming through them has no locus standi in this regard; (3) a decree for permanent injunction restraining the defendants no(s). 1 to 3 of the Mysore Family Fateha Fund Committee and all persons claiming through them from disturbing the peaceful possession of the plaintiff and his family members in respect of the suit property and (4) cost.
3. The revision petitioners/defendants filed an application under Order VII Rule 11 (d) of CPC praying for the rejection of the plaint on the ground that the Civil Court has no jurisdiction and the respondent/plaintiff should have approached the Competent Authority under the Waqf Act, 1995, as there is a bar for entertaining a civil suit in a Civil Court. The said application was resisted by the predecessor-in-interest of the present opposite parties no(s) 1(a) to 1(e)/plaintiff, based on the contention that the father of the plaintiff purchased scheduled land and building in the year 1964 and after his demise the plaintiff became the owner and is in possession. The Waqf Board had no authority to pass order of eviction ignoring the fact that lease in respect of the suit property was executed way back in 1936 with the permission of the learned District Judge.
4. The learned Trial Judge, after hearing both sides, by an order dated April 19, 2013, sustained the objection raised by the plaintiff, rejected the contention of the revision petitioners (herein)/defendants and dismissed the said application filed under Order VII Rule 11(d) of CPC. The said order is challenged in the present revision.
5. Mr. Ganesh Shrivastava, learned Senior Counsel appearing on behalf of the petitioners has vehemently submitted that in the facts and circumstances of the case, the Trial Court has materially erred in rejecting the application filed under Order VII Rule 11(d) of C.P.C. It is submitted by the learned Advocate that the learned Trial Court has not properly appreciated and/or considered the relevant provisions of the Waqf Act, more particularly Sections 83 and 85 of the said Act.
6. It is submitted by the learned Counsel that the civil suit is not maintainable and therefore the case squarely falls within Order VII Rule 11(d) of the CPC and therefore the learned Trial Court ought to have rejected the respective plaints in exercise of powers under Order VII Rule 11(d) of the CPC. In support of the above submission, learned Advocate appearing on behalf of the petitioners has heavily relied upon the decision rendered by the Hon’ble Apex Court in case of Rashid Wali Beg Vs. Farid Pindari and others reported in (2022) 4 SCC 414.
7. So far as Order VII Rule 11 of the Civil Procedure Code is concerned, it is submitted by Mr. Saptangshu Basu, learned senior counsel on behalf of the opposite party no.1 that plaint be rejected relying upon the statements made therein. It is submitted that on perusal of the plaint, it clearly appeared that mixed question of law and facts have arisen and when the Court is required to go into the facts of the case, the plaint could not be rejected under Order VII Rule 11 of the Civil Procedure Code. The attention of the court is drawn by the learned counsel to Order VII Rule 11(d) of the Civil Procedure Code which provides for rejection of a plaint on the ground where the suit appears from the statement in the plaint to be barred by any law. The condition precedent for rejection of the plaint under the aforesaid statutory provision was some statements in the plaint showing that the suit was barred by some law. Since this condition was not satisfied, the plaint could not be rejected.
8. Learned Counsel appearing on behalf of the opposite parties no(s) 1(a) to 1(e) made reliance upon a decision rendered by a Division Bench of this court in FAT 647 of 2017 (Putul Bhattacharjee and Others Vs Sudarshan Bhattacharjee and Others).
9. In Putul Bhattacharjee (supra) Hon’ble Division Bench observed that the court is bound to take the statements pleaded in the plaint at face value and ought not to be persuaded by the documents relied by the respondent which may impinge upon the plaintiffs’ claim. I find that there is no scope of disagreement with that view of the Division Bench as the Court has to look at plaint only to decide whether plaint deserves to be rejected on ground raised therein.
10. Md. Salahuddin. Learned counsel for the Waqf Board virtually reiterated the submission advanced by the learned counsel appearing on behalf of the petitioners and prays for allowing the application filed by the defendants filed under Order VII Rule 11(d) of CPC. It is submitted that the suit property is a waqf property or secular property is to be decided by the Waqf Tribunal under the Waqf Act, 1995 and the jurisdiction of the civil court to entertain, try and determine the suit involving the waqf property is barred.
11. This court paid its anxious considerations to the above said submissions and certified copy of the impugned order, grounds of revision and copies of other documents produced were also perused.
12. Order VII Rule 11(d) of CPC provides that the plaint shall be rejected “where the suit appears from the statement in the plaint to be barred by any law”. Hence, in order to decide whether the suit is barred by any law, it is the statement in the plaint which will have to be construed. The Court while deciding such an application must have due regard only to the statements in the plaint. Whether the suit is barred by any law must be determined from the statements in the plaint and it is not open to decide the issue on the basis of any other material including the written statement in the case.
13. In Saleem Bhai v. State of Maharashtra, (2003) 1 SCC 557, in which while considering Order VII Rule 11 of the Code, it was held as under:
“9. A perusal of Order 7 Rule 11 CPC makes it clear that the relevant facts which need to be looked into for deciding an application there under are the averments in the plaint. The trial court can exercise the power under Order 7 Rule 11 CPC at any stage of the suit — before registering the plaint or after issuing summons to the defendant at any time before the conclusion of the trial. For the purposes of deciding an application under clauses (a) and (d) of Rule 11 of Order 7 CPC, the averments in the plaint are germane; the pleas taken by the defendant in the written statement would be wholly irrelevant at that stage, therefore, a direction to file the written statement without deciding the application under Order 7 Rule 11 CPC cannot but be procedural irregularity touching the exercise of jurisdiction by the trial court. The order, therefore, suffers from non-exercising of the jurisdiction vested in the court as well as procedural irregularity. The High Court, however, did not advert to these aspects”.
14. It is clear that in order to consider Order VII Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averments. These principles have been reiterated by the Hon’ble Apex Court in Surjit Kaur Gill and Another vs. Adrsh Kaur Gill and Another reported in
15. In the case of Madanuri Sri Rama Chandra Murthy v. Syed Jalal, (2017) 13 SCC 174, this Court has observed and held as under:
“7. The plaint can be rejected under Order 7 Rule 11 if conditions enumerated in the said provision are fulfilled. It is needless to observe that the power under Order 7 Rule 11 CPC can be exercised by the Court at any stage of the suit. The relevant facts which need to be looked into for deciding the application are the averments of the plaint only. If on an entire and meaningful reading of the plaint, it is found that the suit is manifestly vexatious and meritless in the sense of not disclosing any right to sue, the court should exercise power under Order 7 Rule 11 CPC. Since the power conferred on the Court to terminate civil action at the threshold is drastic, the conditions enumerated under Order 7 Rule 11 CPC to the exercise of power of rejection of plaint have to be strictly adhered to. The averments of the plaint have to be read as a whole to find out whether the averments disclose a cause of action or whether the suit is barred by any law. It is needless to observe that the question as to whether the suit is barred by any law, would always depend upon the facts and circumstances of each case. The averments in the written statement as well as the contentions of the defendant are wholly immaterial while considering the prayer of the defendant for rejection of the plaint. Even when the allegations made in the plaint are taken to be correct as a whole on their face value, if they show that the suit is barred by any law, or do not disclose cause of action, the application for rejection of plaint can be entertained and the power under Order 7 Rule 11 CPC can be exercised. If clever drafting of the plaint has created the illusion of a cause of action, the court will nip it in the bud at the earliest so that bogus litigation will end at the earlier stage.”
16. In case of Ram Singh v. Gram Panchayat Mehal Kalan, (1986) 4 SCC 364, the Apex Court has observed and held that when the suit is barred by any law, the plaintiff cannot be allowed to circumvent that provision by means of clever drafting so as to avoid mention of those circumstances, by which the suit is barred by law of limitation.
17. In Raptakos Brett & Co. Ltd. v. Ganesh Property, (1998) 7 SCC 184, it was observed that the averments in the plaint as a whole have to be seen to find out whether clause (d) of Rule 11 of Order VII was applicable.
18. In Sopan Sukhdeo Sable v. Asstt. Charity Commr., (2004) 3 SCC 137, the Apex Court held thus:
“15. There cannot be any compartmentalisation, dissection, segregation and inversions of the language of various paragraphs in the plaint. If such a course is adopted it would run counter to the cardinal canon of interpretation according to which a pleading has to be read as a whole to ascertain its true import. It is not permissible to cull out a sentence or a passage and to read it out of the context in isolation. Although it is the substance and not merely the form that has to be looked into, the pleading has to be construed as it stands without addition or subtraction or words or change of its apparent grammatical sense. The intention of the party concerned is to be gathered primarily from the tenor and terms of his pleadings taken as a whole. At the same time it should be borne in mind that no pedantic approach should be adopted to defeat justice on hair-splitting technicalities."
19. In Kamala Vs. K.T. Eshwara; (2008) 12 SCC 661, the Apex Court examined the ambit of Order VII Rule 11(d) CPC and observed:
“21. Order 7, Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7, Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code is the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another.
22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject matter of an order under the said provision.”
20. For this case, clause (d) is relevant. It makes it clear that if the plaint contains necessary averments relating to barred by any law, the same is liable to be rejected. For the said purpose, it is the duty of the defendant who files such an application to satisfy the Court that the plaint is to be rejected as barred by law. In order to answer the said question, it is incumbent on the part of the Court to verify the entire plaint.
21. The only question to be considered in this revision is whether the defendants/respondents herein made out a case for rejection of the plaint under Order VII Rule 11(d) of the C.P.C.
22. Applying the law laid down by the Apex Court and on going through the entire plaint averments, it can be said at this stage that the suit is barred by law on the face of it. The necessary averments in the plaint are in paragraph 1 which read as under:-
“The property in dispute in the suit and other surrounding land belonged to Mysore Family Fateha Fund. In course of management of the said Fund by the Trustees or members of the committee, they for the benefit of the committee transferred by lease or otherwise many plots of land in lump or parcels to different persons.
The plaintiff states that in the application seeking permission for leasing out the property filed on behalf of the Mysore Family Fateha Fund committee in Misc. Case No. 176 of 1934 categorically stated that “That with the approval of the Government the entire area of land measuring roughly 24 Bighas but actually 23 Bighas 18 Cottahs 1 Chittak and 25 square feet was constituted a private Trust and Rules were framed and a committee consisting of 24 members of the family was framed for the management of the estate. “The plaintiff states that the Mysore Family Fateha Fund committee by stating such fact before the Learned District Judge Court admitted that the said committee was a private trust which had its own rules for the management of its estate.
The plaintiff finds it pertinent to mention here that in or about the year 1933 Shaebzada Mohammed Sultan Hamid and Others being members of the Mysore Family Fateha Fund Committee filed a suit against the Commissioner of Wakfs, Bengal and another before the 1st Court of the Learned Sub-Judge at Alipore (As it was known then) and the same was registered as Title Suit No. 2 of 1938. In the said suit the plaintiffs therein inter alia prayed for a decree declaring that the cemetery and the other properties mentioned in the Schedule of the plaint filed therein were private properties of the Mysore family of Tollygunge and further that the order of the Defendant No. 1 that the same are public Wakf Properties is illegal and without jurisdiction and that he has no authority to interfere with the same.
The plaintiff states that the suit property as mentioned in the Schedule of the plaint filed in the instant suit forms part of the Schedule mentioned in plaint filed in the aforesaid suit being Title Suit No. 2 of 1938.
The plaintiff further states that the disputes between the parties to the said Title Suit No. 2 of 1938 was amicably settled out of Court and the said suit was decreed on 15.11.1938 on the basis of a compromise petition (solenama) filed on behalf of both the sides and such solenama filed on behalf of the parties to the suit formed part of the decree passed in the said suit.
The plaintiff states that in the said compromise petition (solenama) it was inter alia categorically agreed by and between the parties to the said Title Suit No. 2 of 1938 that the properties mentioned in the schedule of the plaint filed therein shall always continue to remain the hands of the General Committee and the Sub-Committee of the Mysore Family Fateha Fund composed of the members of the Mysore Family and constituted as at present. The members of the Mysore Family means and include only the descendants in the direct male line of H. M. Hyder Ali and H. M. Tipu Sultan and of Prince Hyder Hussein, nephew and son in law of H. M. Tipu Sultan.
The plaintiff further states that in the said solenama filed in the said Title Suit No. 2 of 1938 the commissioner of Wakfs as defendant No. 1 in the said suit ratified and confirmed the lease dated 23.09.1936 and dated 30.01.1938 execuated in favour of R. Mitter of 47/1, Hazra Road and the assignment dated 23.09.1936. In the said solenama it was further agreed by and between the parties that the decree passed in the suit shall have no retrospective effect.
The plaintiff states that said deed of assignment dated 23.09.1936, which was ratified and confirmed by the Commissioner of Wakfs, Bengal in the said solenama which formed a part of the decree dated 15.11.1938, was executed by and between Sahebzada Muhammed Mohammed Latifuddin Khan as members of the Sub-Committee of the Mysore Family Feteha Fund as Lessors and Hrishikesh Mitter (Rishikesh Mitter) of 47/1, Hazra Road as lessee and thereafter the said Hrishikesh Mitter transferred his rights to the said Nimal Chandra Sen in terms of the order passed by the Learned District Judge at Alipore in Misc. Case No. 176 of 1934 with concurrence of the Mysore Family Fateha Fund Committee.” Moreover, in the plaint the defendants no(s) 1 to 3 are arrayed as “Members and Office Bearer of Mysore Family Fateha Fund Committee, a Muslim religious Trust i.e. (wakf)”
23. The petitioners/defendants questioned the very competence of the civil court to entertain the suit and prayed for the rejection of the plaint on the ground that the suit in the civil court is barred by the provisions of the Waqf Act, 1995. The learned Trial Judge, while considering the application, did not advert to the provisions of the Waqf Act to find out whether such a suit in a civil court is barred by any of the provisions of the Waqf Act. Section 83 of the Waqf Act, 1995 contemplates the constitution of Waqf Tribunals for determination of any dispute, question or other matter relating to a waqf or wakf property. For the sake of convenience, Section 83 is reproduced herein.
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, eviction of a tenant or determination of rights and obligations of the lessor and the lessee of such 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 there under, 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 45 Tribunals, such application may be made to the Tribunal within the local limits of whose jurisdiction of 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 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 interests of justice to deal with the application afresh.
(4) Every Tribunal shall consist of
(a) 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, who shall be the Chairman;
(b) one person, who shall be an officer from the State Civil Services equivalent in rank to that of the Additional District Magistrate, Member;
(c) one person having knowledge of Muslim law and jurisprudence, Member; and the appointment of every such person shall be made either by name or by designation.]
(4A) [The terms and conditions of appointment including the salaries and allowances payable to the Chairman and other members other than persons appointed as ex officio members shall be such as may be prescribed.]
(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 any thing contained in the code of Civil Procedure, 1908(5 of 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 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 (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 order as it may think fit.
24. A reading of Section 83 will make it clear that the Tribunals contemplated under the said provision are conferred with jurisdiction to determine any dispute, question or other matter relating to a waqf or waqf property.
25. Section 85 bars the jurisdiction of the Civil courts, Revenue court and other authorities in respect of any dispute, question or other matter relating to any waqf or waqf property, which is required to be determined by a Tribunal. Section 85 is reproduced here under:
85. Bar of jurisdiction of civil courts.- No suit or other legal proceeding shall lie in any civil court, revenue court and any other authority 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.
26. A conjoint reading of Sections 83 and 85 will make it clear that any dispute regarding a waqf property has to be determined by the Waqf Tribunal and the jurisdiction of Civil Court, Revenue Court and other authorities in respect of the said dispute is barred by Section 85 of the Waqf Act, 1995.
27. It is profitable to quote the observation of the Hon’ble Apex Court in Rajasthan Wakf Board v. Devki Nandan Pathak, (2017) 14 SCC 561 wherein Hon’ble Court observed interalia that-
“23. Section 83 of the Act empowers the Tribunal to determine any dispute, question or other matter relating to a wakf 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. 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 6 and, therefore, the Tribunal rightly tried the suit on merits. The reasons are not far to seek.
26. In the first place, the main question involved in the suit was whether the suit land is a wakf property or not. The 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 v. Sugra Humayun Mirza Wakf [Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 : (2010) 3 SCC (Civ) 553] and Bhanwar Lal v. Rajasthan Board of Muslim Wakf [Bhanwar Lal v. Rajasthan Board of Muslim Wakf, (2014) 16 SCC 51 : (2015) 3 SCC (Civ) 432] . 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 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. The controversy in question has already been put to rest by the Supreme Court in the case of Rashid Wali Beg Vs. Farid Pindari and others reported in (2022) 4 SCC 414 and has held as under:
“54. In sum and substance, the Act makes a reference, to 3 types of remedies, namely, that of a suit, application or appeal before the Tribunal, in respect of the following matters:
54.1. Any question or dispute whether a property specified as waqf property in the list of waqfs is a waqf property or not [Sections 6(1) & 7(1)].
54.2. A question or dispute whether a waqf specified in the list of waqfs is a Shia Waqf or Sunni Waqf [Sections 6(1) & 7(1)].
54.3. Challenge to the settlement of a scheme for management of the waqf or any direction issued in relation to such management [Section 32(3)].
54.4. Challenge to an order for restitution/restoration of the property of the waqf or an order for payment to the waqf of any amount misappropriated or fraudulently retained by the mutawalli [Section 33(4)].
54.5. Conditional attachment of the property of a mutawalli or any other person [Section 35(1)].
54.6. Challenge to the removal or dismissal of an Executive Officer or member of the staff [Section 38(7)].
54.7. Application by the Board, seeking an order for recovery of possession of a property earlier used for religious purpose but later ceased to be used as such [Section 39(3)].
54.8. Challenge to a direction issued by the Board to any Trust or Society to get it registered [Section 40(4)].
54.9. Challenge to an order for recovery of money from the mutawalli, as certified by the Auditor [Section 48(2)].
54.10. Challenge to an order for delivery of possession of a property issued by the Collector [Section 52(4)].
54.11. Application by the Chief Executive Officer for the removal of encroachment and for delivery of possession of a waqf property [Section 54(3)].
54.12. Challenge to the removal of mutawalli from office [Section 64(4)].
54.13. Challenge to an order superseding the Committee of Management [Section 67(4)].
54.14. Challenge to the removal of a member of the Committee of Management [Section 67(6)].
54.15. Challenge to any scheme framed by the Board for the administration of waqf, containing a provision for the removal of the mutawalli and the appointment of the person next in hereditary succession [Section 69(3)].
54.16. Challenge to an order for recovery of contribution payable by the waqf to the Board, from out of the monies lying in a bank [Section 73(3)].
54.17. Any dispute, question or other matter relating to a waqf [Section 83(1)].
54.18. Any dispute, question or other matter relating to a waqf property [Section 83(1)].
54.19. Eviction of a tenant or determination of the rights and obligations of lessor and lessee of waqf property [Section 83(1) after its amendment under Act 27 of 2013].
54.20. Whenever a mutawalli fails to perform an act or duty which he is liable to perform [Section 94].
65. It is well settled that the court cannot do violence to the express language of the statute. Section 83(1) even as it stood before the amendment, provided for the determination by the Tribunal, of any dispute, question or other matter
(i) relating to a waqf; and (ii) relating to a waqf property. Therefore to say that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property, is indigestible in the teeth of Section 83(1).
66. In fact, Section 83(5) of the Act makes it clear that 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 CPC, while trying a suit or executing a decree or order. This is why this Court held in Mohideen v. Ramanathapura Peria MogallamJamath [(2010) 13 SCC 62 : (2010) 4 SCC (Civ) 762] that the Waqf Tribunal will have power to issue temporary injunctions under Order 39 Rule 1 CPC.”.
Accordingly, it is held that the trial Court did not have a jurisdiction to entertain the suit.
29. It is not in dispute that a Tribunal has been constituted and it has jurisdiction over the matter in issue. As such, this court does have no hesitation in coming to the conclusion that the suit filed by the opposite parties (herein) in the Civil court is barred by Section 85 of the Waqf Act, 1995 and accordingly, it falls under the mischief of Order VII Rule 11(d) of CPC. The learned trial Judge, without adverting to the said provisions of law and without properly considering the issue raised in the application, simply came to the conclusion that the question of jurisdiction was a mixed question of law and fact and it can be decided only after evidence, both oral and documentary, could be adduced. The said finding of the trial court is quite infirm, erroneous and discrepant, which requires interference by this court in this revision.
30. Applying the law laid down by the Apex Court in the aforesaid decisions on exercise of powers under Order VII Rule 11 of the CPC to the facts of the case on hand and the averments in the plaints, I am of the opinion that the trial court has materially erred in not rejecting the plaint in exercise of powers under Order VII Rule 11(d) of the CPC.
31. For all the reasons stated above, this court comes to the conclusion that the revision is bound to be allowed and the impugned order of the trial court deserves to be set aside.
32. In the result, the civil revision petition is allowed.
33. The order of the trial court dated April 19, 2013 made in Title Suit No. 983 of 2007 is hereby set aside.
34. C.O. being No.1617 of 2013 is hereby allowed.
35. The plaint in Title Suit No. 983 of 2007 shall stand rejected as barred by a statutory provision. However, there shall be no order as to costs.
36. Consequently, the connected miscellaneous petition is closed.
37. I, however, make it clear that I have not expressed any opinion on the merits of the case.
38. Liberty is hereby given to the opposite parties no(s) 1(a) to 1(e) to institute appropriate proceeding before the Competent Authority under the Waqf Act, 1995 to assert any rights contrary to the claims of the revisionists/petitioners.
39. Urgent Photostat certified copy of this order, if applied for, be given to the parties on payment of requisite fees.
