JEHANGIRKHAN ALIFKHAN PATHAN Vs. ILYASBHAI ISMAILBHAI VORA

JUDGEMENT

(1.) Learned Counsel for the Petitioner referred to a decision of the Apex Court in the case of Board of Wakf, West Bengal v. Anis Fatma Begum and Anr., in Civil Appeal No. 5297 of 2004 decided on 23.11.2010 to contend that civil court has no jurisdiction to entertain the suit. He further pointed out that in the case of Ramesh Gobindram v. Sugra Humayun Mirza Wakf, in Civil Appeal No. 1182 of 2006 decided on 1.09.2010, the property was admittedly of the Wakf in which certain persons were claiming tenancy rights in which background,the Apex Court held that civil court would decide the issue of tenancy, however, the case of Ramesh Govindram (supra) was cited before the Apex Court in the case of Board of Wakf, West Bengal (supra)in which the Apex Court held and observed as under:

(2.) The present petition is filed challenging the order dated 19.7.2006 passed by the learned Principal Civil Judge, Mehmedabad below application Ex.125 in Civil Suit No. 32 of 2004. By the said order, the learned Judge refused to decide the question of jurisdiction as preliminary issue.

(3.) It is not in dispute that the Plaintiff, present Respondent questioned the ownership of Wakf of the suit property. In the suit, prayer made was for right of way through Kabrastan land. Such being the issue, in my opinion, as held by the Apex Court, it can be decided only by the Tribunal constituted under the Wakf Act, 1995. Civil suit is therefore not maintainable. Instead of remanding the proceedings for fresh consideration by the civil court, it is declared that the suit would not be maintainable. It would, however, be open for the Plaintiff to approach the Tribunal by filing appropriate application. The petition is disposed of accordingly.