Page 1 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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Page 2 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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Page 3 “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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Page 4 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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Page 5 “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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Page 6 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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Page 7 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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Page 8 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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Page 9 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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Page 10 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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Page 11 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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Page 12 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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Page 13 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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