R.K.Mahajan - (1.) THIS is a revision under Section 25 of Provincial Small Causes Court Act, 1807 filed against the order dated 11.12.1984 passed by the Additional Civil Judge, Moradabad rejecting the application No. 101-Ga filed by the defendant-applicant in Original Suit No. 171 of 1980 and deciding issue Nos. 3, 4 and 5 against the defendant-applicant.
(2.) THE plaintiff filed a suit in the court of Civil Judge, Moradabad which was transferred before the Additional Civil Judge, Moradabad for declaration that the property in dispute is not waqf property. Objection was raised by the revisionist-defendant that the matter is not cognizable by Civil Court as the entire machinery for determination of such aspect has been provided under U. P. Muslim Waqf Act, 1960 (hereinafter referred to as the Act). The learned counsel for the revisionist has argued that the lower court gave a wrong finding on issue Nos. 3, 4 and 5 regarding the jurisdiction and also that Section 33 of the Act does not deal regarding the validity of waqf name and as such suit is maintainable. I have heard Shri M. A. Qadeer, counsel for the revisionist and he has cited so many provisions of the Act. Section 8 of the Act is quoted with advantage:- "8. (1) If any dispute arises whether a particular property is waqf property or not or whether a waqf is a Shia waqf or Sunni waqf, the Board concerned or the mutawalli of the waqf or any person interested therein may, in accordance with the provisions of this Act, refer the dispute for adjudication to the Tribunal: Provided that no such dispute shall be entertained by a Tribunal after the expiry of one year from the date of the publication of the list of waqfs under sub-section (4) of Section 6. (2) The Commissioner, Additional Commissioner of Waqfs and Assistant Commissioner of Waqfs shall not be made a party to any proceeding under sub-section (1)."
(3.) HE has also invited the attention of the Court to Section 29 (7) and (8) of the Act. Section 29 (7) and (8) are quoted with advantage : "29. (7) On receipt of an application for registration, the Board may, before the registration of the waqf, make such inquiries as it thinks fit in respect of the genuineness and validity of the application and the correctness of any particular therein, and, when the application is made by any person other than the person administering the waqf property, the Board shall, before registering the waqf, give notice of the application to the person administering the waqf property and shall after affording him a reasonable opportunity of being heard, pass such orders as it may deem fit (8) Any person aggrieved by an order of the Board under sub-section (7) may, by application within 90 days from the date of that order, refer the dispute to the Tribunal which shall give its decision thereon." Section 29 of the Act relates to registration and it is the duty of the mutawalli to apply to the State Board for registration of the waqf of which he is the mutawalli whether such waqf was created before or after the commencement of the Muslim Waqf Act, 1960. Application for registration shall be made by the mutawalli within three months of his entering into possession of the waqf property. Obviously, it means that no body can become a mutawalli unless procedure under Section 29 of the Act is followed.;