- (1.) This petition is directed against orders passed by Courts below, whereby decree of eviction has been passed against petitioners-tenants and affirmed in revision. Learned Counsel for the petitioners submits that SCC Suit wherein decree for eviction has been passed itself was not maintainable as landlord-respondent herein was a waqf and the matter could be tried only by the Tribunal created under Waqf Act. Submission is that though such objection has been raised, but neither any issue has been framed nor the same has been appropriately considered by both the Courts below. Learned Counsel further submits that notice under section 106 of the Transfer of Property Act was inconsequential as landlord continued to receive rent thereafter, and there is otherwise no default in payment of rent. Reliance has been placed upon a decision of this Court in Maulvi Abdul Rahman Siyai v. Sardar Maqbool Hasan, 2009 75 AllLR 5 as well as decision of Madras High Court in I. Salam Khan v. Tamil Nadu Wakf Board, 2005 AIR(Mad) 241 to contend that eviction suit was not maintainable before Small Cause Court In reply, Sri M.A. Qadeer, learned Senior Counsel appearing for landlord-respondent, submits that no issue on the aspect of jurisdiction of Civil Court has been framed, and therefore, such a question is not liable to be entertained. It is further submitted that this question has otherwise been answered by the Apex Court in its judgment in Ramesh Gobindram v. Sugra Humayun Mirza Wakf, 2010 AIR(SC) 2897, wherein it has been held that eviction suit against tenant of waqf property would be maintainable before the Civil Court and not before the Waqf Tribunal. It is also submitted that tenancy has already been terminated after service of notice under section 106 of the Act, and deposit of rent thereafter would not come in the way of securing eviction of tenant from the premises in question.
(2.) Having considered the aforesaid submissions, this Court finds that the issue as to whether suit for eviction could be filed, in respect of waqf property, before the waqf Tribunal or before the Civil Court, is no longer res integra, in view of law laid down by the Apex Court in Ramesh Gobindram . Para 21 and 22 of the said judgment is reproduced: "21. There is, in our view, nothing in section 83 to suggest that it pushes the exclusion of the jurisdiction of the Civil Courts extends 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 29 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. It is noteworthy that the expression "for the determination of any dispute, question or other 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 the 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 Acquired by or under this Act to be determined by the Tribunal. The crucial question that shall have to be answered in every case where a plea regarding exclusion of the jurisdiction of the Civil Court is raised is whether the Tribunal is under the Act or the Rules required to deal with the matter sought to be brought before a Civil Court. If it is 30 not, the jurisdiction of the Civil Court is not excluded. But if the Tribunal is required to decide the matter the jurisdiction of the Civil Court would stand excluded. 22. 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 lessor and the lessees 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. The contrary view expressed by the Tribunal and the High Court of Andhra Pradesh is not, therefore, legally sound. So also the view taken by the High Courts of Rajasthan, Madhya Pradesh, Kerala and Punjab and Haryana in the decisions referred to earlier do not declare the law correctly and shall to the extent they run counter to what we have said hereinabove stand overruled. The view taken by the High Courts of Allahabad, Karnataka, Madras and Bombay is, however, affirmed."
(3.) In view of the law settled by the Apex Court, it is no longer open for the petitioners to contend that eviction suit would not be maintainable before the Small Cause Court.;