Introduction:
Farid Pindari and others come with an appeal for a suit of the permanent injunction before the civil court by ignoring sec 85 of the waqf act 1995. As the defendant raise a boundary wall in their portion of land.
Facts:
A piece of land situated at Mirzaganj, Pargana, and Tehsil Milahabad Lucknow belonged to Mirza Abid Ali beg, during his life he created waqf-al-aulad. He was the mutawalli and decided that after his lifetime it will transfer to his daughters. But afterward, the respondent’s father forced the grandmother to deliver the possession to the respondent so, that they can utilize that property for the maintenance of the family.
After taking possession the respondent constructed a shop which was let out to a tenant. After a while grandmother of the respondent transferred the possession to the respondent’s father. On 18.12.10 the defendant brought building construction material and started digging the foundation near the respondent’s shop.
The respondent at the instigation of his father filed a complaint against the defendant for raising the boundary wall in their portion of land. So to retrain the defendant from interfering with the possession of a piece of land they have, the respondent filed a suit in a court of civil judge for a permanent injunction.
The appellant took out an application under Order VII Rule 11 of CPC, for the rejection of the plaint by admitting the existence of waqf and the waqf property and the civil court allowed the application.
The respondent challenge the commanded judgment but the first appellate court dismissed the appeal. Again the second appeal was filed by the respondent which was allowed by the high court on short of ground that the dispute did not involve questions related to the nature of the property or whether the suit property is a waqf property or not.
Issued Raised:
- Whether a suit for a permanent injunction of waqf property is maintainable in a civil court or not.
- Why disputes are settled under the jurisdiction of civil courts when there is a special tribunal that is constituted under special statutes for the determination.
- Question is raised for the nature of the waqf and the respondent being the beneficiary of the waqf.
Principles/Observation:
- By referring to the case of Syed Mohiden & another V/S Ramanathapura Peria Mogallam Jamath & others. The court stated that the waqf tribunal has the power to issue a temporary injunction under Order XXXIX of rule 1 CPC. And allowed to seek a permanent injunction from civil court by ignoring disputes of sections 83 and 85 of waqf property.
- The court held that the tribunal will assume jurisdiction only when the dispute is related to waqf and waqf property.
- The court state that the determination of waqf property and the plaintiff being beneficiary of waqf will be decided by the tribunal, not the civil court.
Judgment:
In light of the above circumstances, the court allowed the appeal, and the judgment and decree of the high court were set aside. The trial court will return the plaint to the plaintiff for presentation to the jurisdictional waqf tribunal regarding the further issue related to waqf and waqf property.
Opinion:
According to my observation, I found that the tribunal got equal power as a civil court for trying a suit and executing a decree and an order. But the jurisdiction of the tribunal is limited to the dispute related to the nature of waqf and suits related to waqf property.
I agree with the decision of the court for clearing the confusion regarding the power and jurisdiction of the tribunal and civil court.
Judgment Name: Rashid Wali Beg V/S Farid Pindari & Ors.
Judgment Date: 28th October 2021
Name of the Writer: Sonam Awasthy