TMI Blog2013 (9) TMI 1255X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Court returned the plaint accepting the said contention of the Respondent. The Petitioners herein, who were the Defendants in the suit, challenged the order of the Civil Court by filing Revision Petition Under Section 115 of the Code of Civil Procedure in the High Court of Judicature for Rajasthan, at Jodhpur. The said Revision Petition is also dismissed by the impugned orders. It is how the present proceedings arise, questioning the validity of the orders of the High Court. 3. The facts around which the controversy is involved do not require big canvass and are re-capitulated herein below: The property in dispute which is the subject matter of litigation, is situated in the town of Nagaur in the State of Rajasthan and is in the possession of the Petitioners herein. Respondent No. 1 is the Rajasthan Board of Muslim Wakf and Respondent No. 2 is the Muslim Board Committee. Both the Respondents claimed that the subject property is the Wakf Property. These Respondents, filed the Civil Suit in the year 1980 for possession of the said property as well as for rendition of accounts against the Petitioners herein claiming it to be a wakf property. On coming to know, after filin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aw in this behalf was settled by the judgment of the Rajasthan High Court in Syed Inamul Haq Shah v. State of Rajasthan and Anr. AIR 2001 Raj 19. In the short order of two paragraphs referring to the aforesaid judgment, the Revision Petition has been dismissed. 7. Learned Counsel for the Appellant, at the outset, drew our attention to the judgment of this Court whereby the said judgment of the High Court has been overruled. The judgment in this Court is reported as 2007 (10) SCC 727 titled Sardar Khan and Ors. v. Syed Nazmul Hasan (Seth) and Ors. He, thus submitted that since the very foundation of the impugned judgment stood demolished in view of overruling of the said judgment by this Court, the order of the High Court needs to be set aside. 8. To this extent submission of the learned Counsel for the Appellant is correct. As pointed above, without any discussion of its own, the High Court has simply relied upon its earlier judgment in Syed Inamul Haq (supra) and dismissed the Revision Petition. Therefore, while setting aside the impugned order, we could have remitted the case back to the High Court to decide the Revision Petition afresh. However, learned Counsel for both th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided further that where any such question has been heard and finally decided by a civil court in a suit instituted before such commencement, the Tribunal shall not re-open such question. (2) Except where the Tribunal has no jurisdiction by reason of the provision of Sub-section (5), no proceeding under this Section in respect of any wakf shall be stayed by any court, tribunal or other authority by reason only of the pendency of any suit, application or appeal or other proceeding arising out of any such suit, application, appeal or other proceeding. (3) The Chief Executive Officer shall not be mad a party to any application under Sub-section (1). (4) The list of wakfs and where any such list is modified in pursuance of a decision of the Tribunal under Sub-section (1), the list as so modified, shall be final. (5) The Tribunal shall not have jurisdiction to determine any matter which is the subject matter of any suit or proceeding instituted or commenced in a civil court under Sub-section 9) of Section 6, before the commencement of this Act or which is the subject matter of any appeal from the decree passed before such commencement in any such suit or proceeding or of an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Civil Court remains by virtue of Section 5 of the Act. To enable us to find an answer to this, the provisions of Sections 5 and 6 also become relevant and need to be noticed at this juncture. Before that, we would like to state the scheme of chapter II of the Act which contains all these Sections including Section 7 Chapter II starts with Section 4. 14. Under Section 4 of the Act, power is given to the Survey Commissioner to conduct survey and make enquiries for discerning whether particular properties are wakf properties or not. After making the enquiries, the Survey Commissioner, who is given the powers of Civil Court under the Code of Civil Procedure in respect of certain matters specified Under Section 4(4) of the Act, makes a report to the State Government. On receipt of such a report under Sub-section (3) of Section 4 of the Act, the State Government has to forward a copy of the same to Wakf Board as stipulated Under Section 5(1) of the Act. The Wakf Board is required to examine this report, as provided under Sub-section (2) of Section 5 of the Act and is to publish in the official gazette a list of Sunni wakfs or Shia wakfs in the State, whether in existence at the comme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore the commencement of said suit. Keeping in view this legal framework, we have to answer this issue that has arisen. 16. Before we deal with controversy at hand, we would like to discuss some judgments of this Court that may have bearing on the issue. First case that needs mention is Sardar Khan and Ors. v. Syed Nazmul Hasan (Seth) and Ors. 2007 (4) Scale 81 : 2007 (10) SCC 727. In that case Civil Suit was filed by the Plaintiffs (Respondents in the Supreme Court) in the year 1976 in the Court of Additional District Judge, Jaipur which was dismissed. The Plaintiffs filed the appeal before the High Court taking the plea that by virtue of Section 85 of the Act, the Civil Court failed to have any jurisdiction in the matter and, therefore, judgment and decree passed by the learned Additional District Judge was without jurisdiction. This appeal was allowed accepting the contention of the Respondents. Challenging the order of the High Court, the Appellants had filed the Special Leave Petition in which leave was granted and the appeal was heard by this Court. The Court took into consideration the provisions of Sections 6, 7 and 85 of the Act and concluded that the said Act will ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by these Sections was not ousted in respect of other matters. The court exhaustively dealt with the provisions of Sections 6 and 7 of the Act in order to determine the scope of jurisdiction of the Tribunal. It noted that the plain reading of Sub-section (5) of Section 6 (supra) would show that the civil court's jurisdiction to entertain any suit or other proceedings stands specifically excluded in relation to any question referred to in Sub-section (1). The exclusion, it is evident from the language employed, is not absolute or all pervasive. It is limited to the adjudication of the questions (a) whether a particular property specified as wakf property in the list of wakfs is or is not a wakf property, and (b) whether a wakf specified in such list is a shia wakf or sunni wakf. It was also expressed that from a conjoint reading of the provisions of Sections 6 and 7 of the Act, 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 commenc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ection 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 to her 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 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. 34. The crucial question that shall have to be answered in every case where a plea regarding exclusion of the jurisdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . In Rajasthan SRTC v. Bal Mukund Bairwa, a three-Judge Bench of this Court observed There is a presumption that a civil court has jurisdiction. Ouster of civil court's jurisdiction is not to be readily inferred. A person taking a plea contra must establish the same. Even in a case where the jurisdiction of a civil court is sought to be barred under a statute, the civil court can exercise its jurisdiction in respect of some matters particularly when the statutory authority or tribunal acts without jurisdiction. 20. Another aspect of this Act came up for consideration in the case of Board of Wakf, West Bengal and Anr. v. Anis Fatma Begum and Anr. (2010) 14 SCC 588. The subject matter of the dispute in that case related to the demarcation of the wakf property in two distinctive parts, one for wakf-al-al-aulad and the remaining portion for pious and religious purposes. The demarcation was challenged on the ground that it was not in consonance with the provisions of the Wakf Deed. The Court held that it is the Tribunal constituted Under Section 83 of the Act which will have exclusive jurisdiction to deal with these questions in as much as these questions pertained to determin ..... 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