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Civil Court barred from exercising Jurisdiction to determine whether a property is wakf or not?-Supreme Court

Team SoOLEGAL 8 Feb 2019 5:00pm

Civil Court barred from exercising Jurisdiction to determine whether a property is wakf or not?-Supreme Court

In a recent judgment, the Apex Court has given it’s opinion on when cases which involve any property which is to be determined as wakf or not.

The Court stated that such cases are governed by the Wakf Act, 1995. The matter is to be decided by the Tribunal only under Section 83. Section 85 of the Act reads as under

85. Bar of jurisdiction of civil courts.—No suit or other legal proceeding 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 a Tribunal.

Thus, by virtue of the express language of Section 85, Civil Courts are barred from jurisdiction over such matters.

Thus when an issue relates to any property as wakf or not, it is to be decided by the Tribunal only, and not Civil Courts.

An appeal in the matter of Punjab Wakf Board v. Sham Singh Harike was heard by the Supreme Court Bench comprising of Justice AK Bhushan and Justice KM Joseph. The judicial history of the case is as follows:

1.     Punjab Wakf Board filed a suit in civil court in which they sought injunction against the defendants. But the case was transferred from Civil Court to the Wakf Tribunal.

2.     The Defendants filed written statement and challenged the maintainability of the suit. They denied the claims of the wakf board. They also filed an application for the plaint to be rejected by the Tribunal on the basis that it had no jurisdiction to entertain the suit. They also contended that only the Civil Court had such jurisdiction. But the Tribunal dismissed this application.

3.     The aggrieved filed a revision petition in High Court. The Court allowed this petition and held that the tenant is not a Muslim. Hence Civil Court, and not the Wakf Tribunal, has jurisdiction to try the case.

4.     A further appeal was filed in the Supreme Court.

The Supreme Court bench observed that High Court committed an error in deciding on the appeal by the aggrieved.

The Court referred to Haryana Wakf Board vs. Mahesh Kumar wherein the subject matter of the suit was the same as that of the present case. The bench observed that:

"The defendant in written statement has pleaded that the suit property is not Wakf property. When issue in the suit is as to whether suit property is Wakf property or not it is covered by specific provision of Sections 6 and 7 of the Wakf Act, 1995, hence, it is required to be decided by the Tribunal under Section 83 and bar under Section 85 shall come into existence with regard to jurisdiction of Civil Court…. The defendant having pleaded that suit property is not a Wakf property, the question has to be decided by the Tribunal."


Tagged: Civil Court   exercising Jurisdiction   wakf property   Supreme Court  
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