V. Nath, J.@mdashHeard the learned Counsel for the parties. These ten civil revision applications have been filed by the Bihar State Sunni Wakf Board (hereinafter referred to as the ''Wakf Board'') assailing the orders passed in the eviction suits filed by the plaintiff-opposite parties against the defendant-tenants-opposite parties by which the court below has decided to continue with the hearing of the suit rejecting the objection of the petitioner challenging the jurisdiction of the court to entertain the suit.
2. The facts are not much in dispute and it would suffice to notice that the plaintiff-opposite parties filed ten eviction suits against the defendant-tenants opposite parties seeking their eviction on ground of default and personal necessity. The defendant-tenants appeared and contested the claim of the plaintiff and also raised objection to the maintainability of the suit. The defendant-tenants initially filed a petition u/s 32 of the Bihar Building (Lease Rent and Eviction) Control Act and Section 151 read with Order XIV Rule 2 C.P.C. raising the objection that as the suit property was a Wakf Property, the eviction suits were not maintainable. The said objection was rejected and thereafter the rejection order was challenged by filing ten civil revision applications before this Court. By order dated 30.09.1999 and dated 03.04.2000, this Court disposed of the civil revision applications upholding the order of the court below to decide the issue of maintainability of the suit in view of the provision of Section 32 of the B.B.C. Act along with other issues at the stage of trial. However, the liberty was given to the defendant-tenants to pray before the court below for issue of notice of the suit in terms of section 90 of the Wakf Board Act 1995 (hereinafter referred to as the ''Act''), without expressing opinion on merit.
3. It is not in dispute that the Wakf Board has been added as a party defendant in the eviction suits by order dated 19.08.2000 but prior to that the prayer of the plaintiff-opposite parties u/s 15 of the B.B.C. Act was allowed directing the defendant-tenants to deposit arrears of rent as well as current rent. The said order was unsuccessfully challenged by the defendant-tenants as well as the Wakf Board up to the Hon''ble Apex Court. As the rent was not deposited by the tenants, as directed, the court below by order dated 02.05.2001 struck off the defence of the tenants against ejectment. The said order was challenged both by the defendant-tenants and by the Wakf Board by filing their separate revision applications. By order dated 08.05.2002 all the said revision applications were dismissed by this Court. It would be relevant to mention here that the issue of maintainability of the suit on the ground that the suit property was a Wakf property was raised in the said revision applications also in view of the provision contained in Section 85 of the Wakf Act 1995. This Court dispelled the objection on behalf of the tenants and Wakf Board holding as follows:-
18. As stated above, the question as to whether the civil court has jurisdiction to decide the matter in question or not raised earlier by the tenants with reference to Section 32 of the Act has already been ordered to be decided along with other issues. The same point has been raised again in different form. As the said question has to be decided by the trial court, it is not proper for this Court to express any final opinion as to whether the trial court has jurisdiction to decide the suit in view of the provisions contained u/s 32 of the Act or under the provisions of the Wakf Act. This question has to be decided in the suit itself. This apart, in a suit for eviction only question has to be decided is as to whether there is relationship of land lord or tenant between the parties or not. If the plaintiffs failed to prove the said question, the suit will fail. The complicated question of title cannot be gone into the eviction suit. The question as to whether the civil court has jurisdiction or not to decide the eviction suit will be decided by it as ordered earlier along with other issues after giving opportunity to the parties to lead evidence.
19...It is well settled that as to whether the civil court has jurisdiction to try the matter or not has to be decided by the civil court though ultimately the court may come to the conclusion that it has no jurisdiction to try the suit, but the suit filed in the civil court cannot be thrown out only because the tenants/petitioners said that the same is not maintainable under the provisions of the Wakf Act. This question has to be decided by the trial court.
(emphasis supplied.)
4. Thereafter, the defendant-tenants filed petition before the court below for analogous trial of all the ten eviction suits but the same was rejected. The Wakf Board moved before this Court in civil revisional jurisdiction but this Court, while affirming the order of the court below, further issued direction for the disposal of the eviction suits within the period of nine months from the date of receipt/production of the copy of the order.
5. Instead of co-operating with the court below in the disposal of the suits within the time frame as directed by this Court and getting the issues including the core issue relating to the maintainability of the suit determined, the tenants-defendant on 10.05.2004 and the Wakf Board on 22.05.2004 filed objections in the suit again raising the same objection to the maintainability of the suit but by adding two new grounds as subsequent events, firstly, that the Wakf Tribunal had come into existence by notification dated 03.11.2003 and secondly that the plaintiffs themselves had filed T.S. No. 299 of 1998 seeking declaration of their title over the suit property with further relief against the inclusion of the suit property in the Wakf list. By the impugned order the court below has rejected the said petitions.
6. In the above said background, these ten revision applications have been filed by the Wakf Board but the defendant-tenants have not chosen to assail the order rejecting their prayer for dismissal of the eviction suits as not maintainable.
7. The main thrust of the submissions by Mr. Salauddin Khan, the learned Counsel for the petitioner, is that after the introduction of Section 85(A) in the Wakf Act by the Wakf (Bihar Amendment) Act 2006, which has obviously been done after the orders of this Court in earlier revision applications, the position has entirely changed. By pointing out the object and purpose as mentioned in the Amendment Act, it has been emphasized that there cannot be two parallel forums after the constitution of the Wakf Tribunal on 03.09.2003 for adjudication of the disputes relating to Wakf property and therefore the transfer of the suits, pending in the civil courts which could have been entertained by the Wakf Tribunal, if it would have been constituted, has been deemed expedient. The learned Counsel has further submitted that Section 85A of the Wakf Act is not controlled by the provision of Section 85 rather it is a supplement to Section 83 of the Wakf Act and therefore, it should be interpreted in that manner. Even otherwise also, it has been argued by the learned Counsel, the provision of Sections 6, 7, 83, 85 and Section 85A [Bihar Amendment] are self explicit and do not warrant the proposition that eviction suits are not triable by the Wakf Tribunal and by referring to Rule 48 Sub-Rule (5) of the Bihar Wakf Rules, 2002, it has been contended that eviction suits categorically come within the preview of the jurisdiction of the Wakf Tribunal. It has been next submitted that the issue No. (c) has been specifically framed in the present eviction suits for determination as to whether the suit property is a Wakf property or not, and as this issue is crucial issue in the suit and clearly covered within the ambit of Sections 6, 7, 83, 85 and 85A, there is no escape from the conclusion that the court below has no jurisdiction to proceed with the eviction suits as this issue can be determined only by the Wakf Tribunal. The learned Counsel has also pointed out that the explanation which has been added to Section 6(1) of the Wakf Act, 1954 by the amendment in the year 1984 and retained in the Waqf Act 1995, also includes even a stranger, not concerned with the Wakf but interested in Wakf property, and enables him to institute a suit in the Tribunal for determination as to whether a particular property specified in the list of Wakfs is a Wakf property or not. The next submission of the learned Counsel is that the plaintiffs have admittedly filed T.S. No. 299 of 1998 for declaration of their title over the property i.e. suit property of the eviction suits and seeking direction for removing the same from the list of Wakfs, and as such they have admitted that the suit property of the eviction suits have been included in the list of the Wakfs. Lastly, it has been submitted that in view of the subsequent events by change in law by the constitution of the Wakf Tribunal and introduction of Section 85A by Bihar Amendment, and the fact of filing of T.S. No. 299 of 1998 coming to the knowledge of the petitioner, the learned court below has committed illegality and error of jurisdiction in deciding to continue with the proceeding of the eviction suits by rejecting the objection of the petitioner. A large number of decisions have been relied on by the learned Counsel, which shall appropriately be referred to later in this judgment.
8. The learned Counsel appearing on behalf of the plaintiffs-opposite parties has submitted that the jurisdiction of the Wakf Tribunal as mentioned in the different provisions of the Wakf Act does not include within its ambit eviction suit to be within Wakf Tribunal''s jurisdiction and the introduction of Section 85A by Bihar Amendment has not at all altered this position. It has been contended that the grounds in defence raised by the petitioner-Wakf Board after its addition as defendant or for that matter even by the defendant-tenants will not change the nature of the suit from an eviction suit to a suit where the nature of the property to be Wakf Property or not will become the main issue. By referring to the relief claimed in the suit, it has been pointed out that no relief has been sought against the Wakf Board and in fact this Court in its earlier order dated 08.05.2002 passed in C.R. No. 1073 of 2001 with analogous civil revision applications, in which the Wakf Board was also the petitioner, has observed that the Wakf Board and the tenants are having hands in gloves. This becomes more apparent, it has been urged, when instead of the defendant-tenants, it is the Wakf Board alone who has filed all these ten revision applications. The learned Counsel has further submitted that the issue of jurisdiction in view of the provision of the Wakf Act has been repeatedly settled by this Court in this matter but the Wakf Board is unnecessarily raking up this issue on trivial grounds only with the purpose to linger the eviction suits which have been filed as far back as in the year 1996. It has also been submitted by the learned Counsel that the filing of T.S. No. 299 of 1998 by the plaintiffs, and its subsequent transfer to the Wakf Tribunal cannot have any impact on the pending eviction suits as the question of relationship of land lord or tenant between the plaintiffs and the defendant-tenants is not to be decided in that suit and there is no admission by the plaintiffs in that suit that the suit property in the eviction suits are the Wakf Property, rather, the filing of the title suit No. 299 of 1998 and the contents of its plaint demonstrate the illegality committed by the Wakf Board in including the property of the plaintiffs in the list of Wakfs. The learned Counsel has lastly argued that the pious purpose and wholesome object for creation of the Wakf Board and establishment of a Wakf Tribunal cannot at all be disputed but the active steps taken by the petitioner Wakf Board in these eviction suits to forestall its disposal demonstrate substantive deviations from that object and purpose. The learned Counsel for the defendant-tenants, however, has supported the submissions made on behalf of the petitioner.
9. There is no dispute that the ten suits have been filed seeking eviction decree against the defendant-tenants from the suit property on ground of default in payment of rent and personal necessity. The objection as to the jurisdiction of the court to proceed with the suits in view of the provisions of Section 32 of the B.B.C. Act as well as those of the Wakf Act has been decided by this Court earlier by order dated 30.09.1999 and 03.04.2000 in the civil revision applications filed by the Wakf Board and the defendant-tenants, and it has been categorically held, after elaborately taking notice of the submissions of the Wakf Board as petitioner, that the question of jurisdiction to decide the eviction suits shall be decided in the suit along with other issues. This Court again in its order dated 08.05.2002 passed in subsequent civil revision applications considered the submission of the Wakf Board that Section 85 of the Wakf Act and its other provision created a bar to the institution of the eviction suits in a civil court, but did not accept the same and upheld the decision of the civil court to proceed with the eviction suits. However, the constitution of the Wakf Tribunal in 2003 and the introduction of Section 85A by the Wakf (Bihar Amendment) Act, 2006 has given a new fillip to the petitioner-Wakf Board to raise the issue of maintainability of the suit again by asserting that the jurisdiction of the civil court to decide the eviction suits is now completely ousted. The serious attempt to avoid the consequence of the earlier orders of this Court has also been made by contending that the Wakf Tribunal has been constituted after the passing of the orders by this Court.
10. In view of the submissions made by the learned Counsel for the petitioner-Wakf Board, it is relevant to examine the provisions of the Wakf Act 1995, to find out the nature of the dispute, for determination of which the jurisdiction of the civil court has been ousted; and thereafter to consider the impact of the introduction of Section 85A by Bihar Amendment, in order to determine whether the position existing earlier has been altered. The first such provision is contained in Sub-Section (5) of Section 6 which bars institution or commencement of a suit in relation to any question referred to in Sub-Section (1) of Section 6. The relevant question for the present purpose, which has been mentioned in Sub-Section (1) of Section 6, is whether a particular property specified as Wakf property in the list of Wakfs is the Wakf property or not, and the Board or the Motawali of the Wakf or any person interested therein has been given a right to institute a suit in a Tribunal for the decision of the question. An explanation has been added to Sub-Section (1) of Section 6 by Amendment in the year 1984 (retained in the Wakf Act, 1995) expanding the ambit of expression "any person interested therein" to include every person who, though may not be interested in the Wakf concerned but is interested in the Wakf property. Thus, it is clear that the bar of institution or commencement of a suit or other legal proceeding in a court is limited to the question (relevant for the present) whether a particular property included in the list of Wakfs is or is not a Wakf property. Noteworthy here is the provision of Sub-Section 5 of Section 7 which saves the suit pending in a civil court before the commencement of the Act, with regard to the question referred in Sub-Section (1) of Section 6 from the jurisdiction of the tribunal. The other provisions of Section 7 are similar, albeit overlapping to the provisions of Section 6. The next such provision is contained in Section 85 which excludes the jurisdiction of the civil court with regard to any dispute, question or other matter relating to Wakf property or other matter which is required by or under this Act to be determined by a Tribunal. Therefore, even in view of the wide sweep of this provision, the relevant consideration would still be the primary nature of the dispute or question arising in a suit pending before the civil court, and the determinative factor would be whether such dispute or question is required under the Wakf Act to be determined only by Wakf Tribunal. Section 83 of the Act, on which strong reliance has been placed by the learned Counsel for the petitioner by also submitting that the Section 85A is supplementary to this Section, only describes the constitution and description of the Tribunal and does not deal with the exclusion of the jurisdiction of the civil court. The submission however, has also been made that by virtue of Sub-Section (5) of Section 83 the Wakf Tribunal is deemed to be a civil court having the same powers as may be exercised by a civil court under the CPC and in that view of the matter, the jurisdiction of the Wakf Tribunal is all pervasive. But the language employed in Sub-Section (5) and other Sub-Sections of Section 83 do not support this contention as this Sub-Section 5 does nothing more than prescribing the procedure to be followed by a Wakf Tribunal. It would not be correct to interpret the provision of Sub-Section 5 as conferring all the jurisdiction of a civil court upon the Tribunal with regard to all matters and, thereby, completely ousting the jurisdiction of the civil court.
11. It is well settled that the ouster of the jurisdiction of a civil court is not to be readily inferred. The conspectus of the provisions of the Wakf Act, as above mentioned, does not suggest that the Wakf Tribunal has been given all pervasive jurisdiction even to entertain a suit for eviction where the prime consideration is the existence of relationship of land lord and tenant as a jurisdictional fact.
12. By introducing Section 85A by Bihar Amendment in the year 2006, the legislature has provided for the deemed transfer of pending cases (any suit or other proceeding) which have been pending before any court, after the commencement of the Wakf Act 1995 and before the constitution of Tribunal under the Act. But such deemed transfer has again been limited to only such suit or other proceeding which would have fallen within the jurisdiction of the Tribunal if such Tribunal would have been constituted. The provision of Section 85A (1) reads as follows:-
85A. Transfer of pending cases-(1) Any suit or other proceeding pending before any court immediately before the date of constitution of a Tribunal under this Act and after the date of the commencement of the Act (Act 43 of 1995), the cause of action of which is based on such facts that if the Tribunal would have been constituted, it would be within the jurisdiction of such Tribunal, shall be deemed to be transferred to such Tribunal on the date of constitution of the Tribunal.
13. From a plain reading of the aforesaid Section 85A, it at once becomes clear that the purpose of its introduction is only to meet the eventuality arising due to the delay in the constitution and establishment of a Wakf Tribunal in the State of Bihar, as a full functional body. Further, it visualizes the transfer of only such suit or proceeding which would have been maintainable only before the tribunal, if it would have been constituted. Clearly, this Section 85A does not create any new jurisdiction in the Tribunal and does not exclude the jurisdiction of a civil court to continue with a suit or other proceeding which is not encompassed within the jurisdiction of the tribunal by virtue of other provisions of the Wakf Act specifically dealing with the subject of jurisdiction. No doubt, the submission that this Section 85A is supplementary to Section 83 of the Wakf Act is correct but it is correct only to that extent and cannot be stretched further as prescribing any further jurisdiction in the Wakf Tribunal and to exclude the jurisdiction of a civil court to the extent than what have been envisaged in other provisions of the Act. This Section 85A only provides for transfer of pending cases in view of the delay in the constitution of the Wakf Tribunal after the commencement of the Wakf Act, 1995 and is purely procedural in nature as are the provisions of Section 83. Thus, it is held that by introduction of Section 85A by Bihar Amendment, no new vista of exclusion of jurisdiction of a civil court has been created and the law relating to the jurisdiction of the of the Wakf Tribunal and the exclusion of the jurisdiction of the civil court has remained unaltered.
14. The question of jurisdiction of Wakf Tribunal and the exclusion of jurisdiction of a civil court with regard to an eviction suit directly fell for consideration before the Hon''ble Apex Court in the case of
....It follows that although Section 85 is wider than what is contained in Section 6 and 7 of the Act, the exclusion of jurisdiction of the civil courts even u/s 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.
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 lesser and the lessee 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...
15. It would be relevant to notice here that their Lordships in the aforementioned decision granted liberty to the Wakf Board to institute appropriate civil action before the competent civil court for redress in accordance with law.
16. The learned Counsel for the petitioner has submitted that the aforesaid decision has been rendered ignoring the explanation inserted in Sub-Section (1) of Section 6 of the previous Act by Amendment in the year 1984 which has been retained by the present Act also. It has also been pointed out that their lordships in the aforesaid judgment have relied upon the decision in
17. From the reading of the judgment in Ramesh Gobindram (supra) it appears that the explanation to Sub-Section (1) of Section 6 has been taken notice of and the said explanation has also been quoted in paragraph-15 of the judgment. Further it is also evident that the reference to Radha Kishan''s case (supra) has been made only for emphasizing the fact of the consideration of Section 6 (1) of the Wakf Act and its proviso on earlier occasions also by the Apex Court. In fact, the opening words of para 21 of the judgment makes this position clear where it has been mentioned " we may at this stage usefully digress from the core issue only to highlight the fact that this Section 6 (1) and the proviso thereto have fallen for interpretation of this Court on a few occasions". Moreover, it could not be satisfactorily explained by the learned Counsel for the petitioner as to how the principle of law as laid down in the case of Ramesh Gobindram (supra) can be affected by the explanation to Sub Section (1) of Section 6 and as such 1 do not find force in the submission on behalf of the petitioner that the decision in the case of Ramesh Gobindram (supra) should not be relied upon simply because a reference therein has been made to an earlier decision of the Apex Court in Radhakishan case. In the later decision in Anish Fatma case (supra), their Lordships again considered the issue of jurisdiction of Wakf Tribunal and the exclusion of the jurisdiction of other courts but simultaneously the decision in Ramesh Gobindram case (supra) has also been considered and it has been, thereafter, held as follows:-
...The dispute in the present case is not an eviction dispute. Hence, the aforesaid decision in Ramesh Gobindram''s case is distinguishable.
Therefore, the submission of the learned Counsel that the principles laid down in the later decision by the Hon''ble Apex Court should be followed has no force in view of the fact as mentioned in the later decision itself that it does not relate to the dispute with regard to eviction matters. It has also been contended by the learned Counsel by referring to Sub-Rule 5 of Rule 48 of the Bihar Wakf Rules 2002 that the Wakf Tribunal has the jurisdiction to entertain eviction suits. However, a bare perusal of the provisions of Rule 48 does not support the contention. Rule 48 deals with cases where the Board has been empowered to authorize the Chief Executive Officer or any Officer of the Board to determine fair rent of Wakf land, building or premises and the tenant or the licensee thereof has been made liable to pay such fair rent as determined to the Motawali/Secretary/ Administrator or the Board as the case may be. It has been further provided therein that in case of failure in payment of the fair rent as determined, the eviction order can be passed by the Tribunal on the application by the authority entitled to receive the rent, and in such cases the Tribunal has been given the power of the civil court while passing an order for eviction. This provision, as is apparent, is limited to cases as envisaged therein and instead of supporting the stand of the petitioner it supports the view that the Tribunal has not been given all pervasive jurisdiction to entertain eviction matters in all cases. No other specific provision in the Act or the Rules has been pointed out on behalf of the petitioner to support the contention that an eviction suit filed under the Rent Control Act can also be entertained by the Wakf Tribunal.
18. It is well settled that the jurisdiction of a court to grant an eviction decree under the Bihar Building (Lease, Rent and Eviction) Control Act 1982 is dependent upon the existence of relationship of land lord and tenant between the plaintiff and defendant-tenant. The Hon''ble Apex Court in the case of
19. As mentioned earlier, the present ten revision applications have been filed only by the defendant-Wakf Board challenging the order of the court below by which it has decided to continue with the eviction suits. The jurisdiction of the court to entertain a suit is determined by the averments in the plaint and it does not depend upon the defence taken by the defendant in the written statement. Simply because the defendant-tenants have come out with the case that the plaintiffs are not their landlord rather it is the Wakf Board to whom they have been paying rent as landlord, the nature of the suit will not change as the plaintiffs have not sought the relief for declaration of their title against the Wakf Board. Further, even the addition of the Wakf Board as a party defendant in the eviction suits will also not change the nature of the suits, only because the Wakf Board has claimed the suit property as Wakf Property and an issue has been framed in that regard. The defence of a tenant or a third party in an eviction suit under the Bihar Building [lease, Rent and Eviction] Control Act, 1982 cannot enlarge the scope of the jurisdiction of the court and will not ipso facto convert an eviction suit into a title suit. The primary issue in these eviction suits to be determined shall always be the existence of relationship of landlord and tenant as held by this Court in the order dated 08.05.2002 aforementioned, in earlier revision application between the parties. The further contention on behalf of the petitioner that by filing T.S. No. 299 of 1998, the plaintiff has accepted the inclusion of the suit property in the list of Wakfs which list is final under the provisions of the Act and therefore also the eviction suits now cannot proceed, has also got no force. The filing of T.S. No. 299 of 1998 by the plaintiffs seeking declaration of title and the relief against the inclusion of the suit property in the list of Wakfs, can never be taken to be the acceptance of the case of the defendants by the plaintiffs and the issues, regarding the nature of the property and the validity of its inclusion in the list of Wakfs are yet to be determined by appropriate forum in accordance with law. The jurisdiction of the court below, for that reason, to continue with the proceedings of the eviction suits cannot come to an end. For the forgoing reasons and discussions, it is held that there is no illegality or error of jurisdiction in the impugned order in all the ten civil revision applications which are, accordingly, dismissed. However, as the eviction suits are pending since 1996, the court below is directed to take up the hearing of the same on priority basis and dispose them of, within nine months from the date of receipt/production of a copy of this order.
