D. S. Bajpai, J. - (1.) THIS plaintiffs' second appeal is directed against the judgment and decree dated 16-1-1979 passed by the Additional Civil Judge, Lucknow, dismissing Regular Civil Appeal No. 16 of 1978 and affirming the judgment and decree dated 16-9-1977 passed by Munsif North, Lucknow, in Regular Suit No. 56 of 1977.
(2.) THE facts giving rise to this appeal are that the plaintiffs-appellants filed a suit for declaration against the defendant, Sunni Central Board of Waqfs, U. P. Lucknow, that the property in suit was the private property of the plaintiffs and in the alternative a private waqf and not public waqf. THE case of the plaintiffs was that the property in suit was their.private family grave-yard. It was case of the plaintiffs that on coming to know that the property was being treated as waqf property and that as such the plaintiffs valuable right was being disturbed they filed this suit. THE defendant did not put in appearance and on the basis of the affidavit filed in evidence by the plaintiffs the trial court proceeded to decide the suit. THE court was of the view that in view of the bar of section 75 of the U. P. Muslim Waqfs Act, 1960 (Act for short), the suit was not maintainable. Section 75 of the Act provides as under :- " 75. Bar to suits in matters to be decided by Tribunals-No person shall institute any suit or other proceeding in any civil court with respect to any dispute or question or matter which is required or permitted under this Act to be referred to a Tribunal for adjudication. " On examination of section 75 the court below came to the conclusion that in view of the provisions of section 33 (2) of the Act the plaintiffs had the remedy of approaching the Tribunal constituted under the Act as defined in section 3 of the said Act that the property was not the waqf property, within 90 days from' the date of the decision of the defendant and the plaintiffs having failed to do so and the dispute not having been referred to the Tribunal, the suit was not maintainable. THE suit was dismissed on this finding, whereupon the plaintiffs-appellants preferred a civil appeal before the lower appellate court. THE lower appellate court on examination of the pleadings of the parties and after considering the provisions of section 75 of the Act read with section 33 (2) of the Act confirmed the finding recorded by the trial court and affirmed the judgment and decree of the trial court. Aggrieved, the plaintiffs have come up in second appeal before this Court. Despite the list being revised twice neither any one appeared to press this appeal nor was any request made for adjournment of the case, I have examined the judgment of the two courts below and the record of the case thoroughly and have heard Shri Z. Jilani, learned counsel appearing for the Board. There could be no gainsaying that in view of the provision of section 75 of the Act no suit or other proceedings can be initiated in any civil court pertaining to any dispute, question or matter which was permitted or required under the Act to be referred to the Tribunal (as defined under section 3 of the Act) for adjudication. It is equally well settled that under the provisions of sub-section (2) of section 33 of the Act this was a matter which could very well be referred by the plaintiffs to the Tribunal for its decision inasmuch as the said provision was meant to get the matters settled by the Tribunal and not to open flood-gates of litigation for the parties which may affect waqfs which were meant to propound and carry out religious, moral or even such duties in the interest of the people at large and beneficiaries in particular. I " find myself in complete agreement with the view taken by the two courts below. I am fortified in my judgment by a decision of this Court in the case of Afzal Husain v. I Additional District Judge, AIR 1985 Alld. 79 wherein the Court held that if any question arises whether any property was a waqf property or not, the same had to be decided by the Board under sub-section (1) of section 33 of the Act against which the aggrieved person could approach the Tribunal under sub-section (2) of the said section.
(3.) THE appeal is devoid of force and is dismissed with costs. Anneal dismissed.;