- (1.) IN a suit for recovery of money and for permanent injunction a suit dealing with Wakf property is the jurisdiction of the Civil Court ousted by virtue of Section 85 of the Wakf Act,1995 (`the Act' for short) or not, is the seminal issue before this Court.
(2.) THE facts leading up to this legal controversy are as under:the respondent No. 2 had filed a civil suit for recovery of money and permanent injunction against the petitioner. The respondent No. 2 averred in the suit that a property situated in Ajmer in the name of dill Kusha Bunglaw is numbered as XIII/476=x/84. It was further claimed that the aforesaid property and other property, which belonged to grandfather of respondent No. 2 and the petitioner, had a share in the ratio of 3:5. It was further averred that for the purpose of ownership about properties one Waqf-nama was executed on 27-111931, which was Waqf-Al-Aulad. The grandfather of respondent No. 2 sayed Abdul Zafar, appointed himself as the first Mutawalli. It was further averred that as per Wafq-nama, the respondent No. 2 is claiming his right over the properties in dispute and the rent money. The petitioner filed written statement and denied the claims made by respondent No. 2. The learned Magistrate framed as many as 13 issues. Subsequently, the petitioner filed an application under sections 85 and 87 of the Act, wherein he claimed that since the suit related to a wakf property, therefore, under section 85 of the Act, the jurisdiction of the Civil suit was ousted. Hence, the Civil Court had no jurisdiction to try the suit. However, vide order dated 19-3-2005 the said application was dismissed. Hence, this petition before this Court.
(3.) MR. AJEET Kumar Sharma, learned counsel for the petitioner has contended that section 85 of the Act absolutely debars Civil Court from trying any civil suit in relation to any dispute, question or any matter relating to any wakf or wakf property or other matters which are required under the Wakf Act to be determined by the Wakf tribunal. Therefore, in all disputes relating to wakf property, the jurisdiction of Civil Court is ipso facto ousted. Such disputes can be adjudicated upon only by the Wakf Tribunal. According to learned counsel, since the dispute in the present case relates to a wakf property, therefore the Civil Court cannot try the suit. Thus, the rejection of the application under section 85 of the Act is unsustainable. Secondly, the wakf has not been registered under the act. Therefore, according to Section 87 of the Act no suit can be filed by a Wakf, which is unregistered. matter relating to any wakf or wakf property or other matters which are required under the Wakf Act to be determined by the Wakf tribunal. Therefore, in all disputes relating to wakf property, the jurisdiction of Civil Court is ipso facto ousted. Such disputes can be adjudicated upon only by the Wakf Tribunal. According to learned counsel, since the dispute in the present case relates to a wakf property, therefore the Civil Court cannot try the suit. Thus, the rejection of the application under section 85 of the Act is unsustainable. Secondly, the wakf has not been registered under the act. Therefore, according to Section 87 of the Act no suit can be filed by a Wakf, which is unregistered.;