Bangalore District Court
The MasjidEMuslim Colony vs Shazada on 16 March, 2021
IN THE COURT OF LVII ADDL.CITY CIVIL AND
SESSIONS JUDGE, MAYOHALL UNIT, BENGALURU
(CCH58)
Present: Smt. K.G.Shanthi, B.Com, LL.M.,
LVII Addl.City Civil & Sessions Judge
Dated this the 16th day of March, 2021
Original Suit No.15562/2005
Plaintiff: The MasjidEMuslim Colony,
(also known & called as NIMRQA
MASJID),
Having its Regd. Office at NIMRA
Masjid & Nimra Commercial
Complex,
Nimra Nagar, Muslim Colony,
Shampur Road,
D.J.Halli,
Bangalore560 045.
(By Sri Manzoor Pasha & Co.,
Advocates)
Vs
Defendant: SHAZADA,
Aged about ....years,
S/o. (not known to the plaintiff)
R/o. Portion of No.156(10),
4th Cross, Muslim Colony,
D.J.Halli, Arabic College Post,
Bangalore560 045.
(By Sri Ahamed S.N., Advocate)
2 O.S.No.15562/2005
Date of Institution of the suit 14022005
Nature of the suit Declaration
and Possession
Date of the commencement of
recording of the evidence 17122011
Date on which the Judgment was
pronounced 16032021
Year/s Month/s Days
Total duration 16 01 02
*********
JUDGMENT
This is a suit filed by the plaintiff against the defendant for declaration and also for possession of the suit schedule property.
2. The brief facts of the case is that, plaintiff claims the right on suit schedule property comprised of land and building built on a site forming a portion of Sy.No.10, situated at D.J.Halli, Bengaluru North Taluk, which measuring on the Eastern side North to South - 10 feet, on the Western side North to South - 3 O.S.No.15562/2005 20 feet, East to West on the North 30 feet and East to West on the South - 30 feet. Plaintiff contended that original owner Sri Bashu Saheb had bequeathed the said property to his wife Smt.Noorjan under a registered Will and Testament dtd.16.5.1977 bearing registered document No.3, volume 24, pages 1720, registered in the Office of the SubRegistrar, Bengaluru North Taluk. Smt.Noorjan acquired the ownership of the said property by virtue of the Will executed by her husband. Subsequently, she has gifted the said property in favour of plaintiff Mosque and she had executed a Declaration dtd.1.12.2003. The Mosque had accepted the gift.
3. It is the contention of the plaintiff that defendant herein is an unauthorized occupant of the residential house forming a portion of the aforementioned property bearing Sy.No.10, situated at D.J.Halli village. Smt.Noorjan sent a attornment notice 4 O.S.No.15562/2005 dtd.2.12.2003 to the defendant herein to attorn the tenancy in favour of the plaintiff Mosque and to pay the future rent in respect of religious institutions. But the defendant has not received the notice and it is returned with an intimation as 'unclaimed'. The defendant refused to pay the rent to the plaintiff and taken up contention that defendant is not a tenant of the plaintiff. Hence, plaintiff issued legal notice dtd.28.8.2004, notifying the defendant that he is in unauthorized occupant in the suit schedule property and vacate and deliver the vacant possession of suit schedule property. Further asked to pay damages @ Rs.500/ per month, if he continues to occupy the suit schedule property. The notice sent by the plaintiff deliberately refused by the defendant and further the notice also sent under certificate of posting.
4. The plaintiff has stated that the defendant continued as unauthorized occupant in the suit 5 O.S.No.15562/2005 schedule property hence liable to pay damages for his unauthorized occupancy.
5. The cause of action to file the suit arose on 2.12.2003 when the attornment notice was directed to the defendant and subsequently when the defendant refused to attorn the tenancy and also on 28.8.2003, when the plaintiff mosque had addressed the legal notice to the defendant to quit and deliver the vacant possession of the suit property, subsequently when the defendant refused to receive the notice within the jurisdiction of the Court.
6. The plaintiff sought for declaratory relief to declare that the plaintiff mosque is the absolute owner suit property and also to declare that the defendant herein is an unauthorized occupant in respect of the suit schedule property and also sought direction to the defendant to vacate and hand over the vacant 6 O.S.No.15562/2005 possession of the suit property to plaintiff and also claims mesne profit.
7. On filing of the suit, summons has been issued to the defendant, which has been duly served. Then the defendant appeared through his advocate and filed written statement.
8. The defendant contended that he himself and his brothers by name Vazeer, Muneer and Ameen are the sons and Jabeen, Mubeen, Shaheen and Arju are the daughters of Sri Bashu Saheb through his first wife Smt.Khamrunnisa. This defendant contended that Sri Bashu Saheb never executed Will in favour of his second wife Smt.Noorjan as alleged in the plaint. He also contended that Sri Bashu Saheb was suffering from unsoundness of mind due to his old age during the period of existence of the suspicious Will. He also stated that he is residing in the suit property since his childhood along with his family members and presently 7 O.S.No.15562/2005 as a lawful coowner as he inherited the suit property. Further contended that Smt.Noorjan never has any kind of authority to transfer the suit schedule property to any person much less to the plaintiff. Smt.Noorjan being the step mother of the defendant has been posing jealousy against the defendant. Further Smt.Noorjan is an illiterate old aged lady, she never acquired absolute ownership over the suit schedule property at any point of time. The deceased Sri Bashu Saheb has not obtained consent of his children and wife during his life time to bequeath the property.
9. The defendant stated that he himself is in peaceful possession and enjoyment of the suit property as coowner. Further contended that Smt.Noorjan neither gifted the suit schedule property to the plaintiff nor executed the alleged declaration dated 1.12.2003 out of her free will, volition and knowledge. Under the guise of preparing passport for sending her to Holy 8 O.S.No.15562/2005 Pilgrimage (Haj) the Managing Trustee of the plaintiff Mosque by name Sarwar Khan took her to the Court premises on 1.12.2003 and took her signatures and thumb marks on different papers. Since, she is an illiterate old lady, she could not make out on what papers she attested her signatures. But till this date he did not fetch any passport to her. Further stated by the defendant that Sri Bashu Saheb never whispered the fact of execution of Will by him to any of his legal heirs. The alleged Will was not voluntarily prepared by the deceased Sri Bashu Saheb. The said document was created by Sarwar Khan by cheating Sri Bashu Saheb.
10. It also contended that plaintiff has no semblance of right and plaintiff not the owner of the property as claimed. But said Sarwar Khan cheated the parents of the defendant without their knowledge concocted and created sham documents. The plaintiff 9 O.S.No.15562/2005 colluding with Sarwar Khan. Both of them conspired together and have concocted sham documents as alleged in the plaint. The said Sarwar Khan is none other than the son of said Sri Bashu Saheb. He has left blank the father's name and age of the defendant in the cause title despite he is very well acquainted with this defendant.
11. It also stated that the testator late Sri Bashu Saheb and this defendant are muslims. They are governed by Mohammedan Law. The said Sri Bashu Saheb had 3rd wife namely Smt.Shamshad who is alive and she has a son by name Zaheer. All the children of Sri Bashu Saheb are major.
12. It also stated by the defendant that there is no cause of action to file this suit and the plaintiff has filed this suit for ejectment and the Suit is valued at Rs.6,000/. Since subject matter of the suit is less than Rs.25,000/, in view of the provisions of Section 8 10 O.S.No.15562/2005 of the Small Causes Court Act, 1964, this Court has no jurisdiction to try this suit.
13. The defendant contended that there is no existence of landlord and tenant relation between the plaintiff and the defendant and no notice of termination of tenancy is served upon him. The defendant has his brothers and sisters to whom no notice served and they are not made as party to the suit. Hence, the suit is bad for nonjoinder of necessary party. Accordingly, defendant prays for dismissal of the suit.
14. Based on the above pleadings, my predecessor in office has framed the following Issues:
1. Whether the plaintiff proves its title over the suit schedule property?
2. Whether the plaintiff is entitled for possession of the suit schedule property? 11 O.S.No.15562/2005
3. Whether the plaintiff is entitled for mesne profit?
4. Whether the suit is properly valued?
5. What order or decree?
Additional issues:
1. Whether this Court has no jurisdiction to try the suit?
2.Whether there is valid termination of tenancy?
3. Whether the suit is bad for nonjoinder of necessary parties?
15. In order to prove the case, the Manaing Trustee of the plaintiff Mosque examined as P.W.1 and produced and marked the document as Exs.P1 to P8.
On behalf of the defendant, the defendant himself examined as DW1 and got marked Exs.D1 to D10 documents.
16. Heard arguments.
16. My findings on the above issues are as under: 12 O.S.No.15562/2005
Issue No.(1) : Kept open Issue No.(2) : Kept open Issue No.(3): Kept open Issue No.(4): Kept open Additional Issue No.1: In the Affirmative Additional Issue No.2: Kept open Additional Issue No.3: Kept open Issue No.(5): As per the final order for the following:
REASONS
17. Additional Issue No.(1) : Plaintiff is the Mosque i.e. The MasjidEMuslim Colony also known and called as NIMRQA MASJID. According to the suit schedule property originally belongs to Sri Bashu Saheb. He bequeathed the suit property in favour of his wife Smt.Noorjan under registered Will dated 16.5.1977. Sri Bashu Saheb died on 30.6.1997. After the demise of Sri Bashu Saheb, Smt.Noorjan had acquired the ownership over the suit schedule property by virtue of Will executed by her husband. 13 O.S.No.15562/2005 Subsequently, Smt.Noorjan executed Gift deed in favour of plaintiff and she also executed declaration dated 1.12.2003. Plaintiff Mosque had accepted the Gift made by Smt.Noorjan.
18. According to plaintiff, donor Smt.Noorjan had sent a attornment notice dt.2.12.2003 against defendant to attorn the tenancy in favour of the plaintiff Mosque and asked the defendant to pay future rent to the plaintiff. But the defendant refused to pay rent to the plaintiff Mosque. So Plaintiff issued notice on 28.8.2004 directing the defendant to vacate and hand over the suit schedule property to the plaintiff within 2 weeks. The said notice issued by RPAD returned, as the defendant refused to receive the legal notice. But the notice is also issued under certificate of posting.
14 O.S.No.15562/2005
19. In this case, plaintiff sought for relief of declaration to declare that the plaintiff Mosque is sole and absolute owner of the suit property by virtue of the gift by declaration made by Smt.Noorjan on 1.12.2003. According to plaintiff, the defendant is an unauthorized occupant. Hence, plaintiff issued notice and asked the defendant to vacate the suit property, but he failed to comply.
20. Plaintiff examined one Sarwar Khan, who is the Managing Trustee of plaintiff Mosque. He filed evidence by way of affidavit and produced the death certificate of Sri Bashu Saheb, who died on 30.6.1997, which marked as Ex.P1. The declaration made by Smt.Noorjan in favour of Donee "The MasjidEMuslim Colony" as Ex.P2. Tax paid receipt of the suit property marked as Exs.P3 to 6. Encumbrance certificate is marked as Ex.P7. It reflects that Sri Bashu Saheb 15 O.S.No.15562/2005 become the owner of the property by virtue of Sale deed executed by one Akthar Begum. Ex.P8 is E.C. for the year 2004 to 2010. Further, plaintiff had produced Trust Deed dated 4.9.1997 to show that R.Sarvar Khan is the Trustee of the plaintiff Mosque. Plaintiff also produced certified copy of the Sale deed, which was standing in the name of Sri Bashu Saheb. The Copy of the Will is also produced before the Court.
21. The defendant claims that he is the coowner of the suit property. According to him, Smt.Noorjan is the second wife of Sri Bashu Saheb and he has no absolute right to execute the Will in favour of Smt.Noorjan. According to defendant, Sri Bashu Saheb having 3 wives by name Smt.Khamrunnisa, Smt.Noorjan and Shamshad. This defendant is born to Smt.Khamrunnisa, who is 1st wife of Sri Bashu Saheb. 16 O.S.No.15562/2005 He had produced Aadhar card of his brothers and sisters.
22. Now it is for the Court to see whether this Civil Court has jurisdiction to try this suit and whether Mosque and Masjid comes under WAKF board? Mosque and Dargha are defined under section 2 of Waqf Board Regulations, 2014, under Section 20 of the Act, the legislation prescribes that for a smooth functioning of masajid and qabristan, board may constitute separate committees to assist them.
Section 85 of of the Wakf Act, 1995 which relates to Bar of jurisdiction of Civil Court. The relevant words are:
"Any dispute, question or other
matter relating to any waqf, waqf
property or other matter which is
17 O.S.No.15562/2005
required by or under this Act to be
determined by a Tribunal."
23. The plaintiff Mosque filed present suit for declaration to declare that plaintiff is the absolute owner of the suit schedule property and also for possession of the suit property. It sought for mesne profit as a consequential relief.
Section 55C deals with "Bar of jurisdiction of civil courts in respect of matters determined by Tribunal - No suit or other legal proceeding shall lie in any civil court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by, or under, this Act to be determined by a Tribunal."
18 O.S.No.15562/2005Section 83 (5) reads as under:
The Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Cr.P.C., while trying a suit, or executing a decree or order.
The Hon'ble Apex Court in the case of Punjab Wakf Board Vs. Sham Singh Harike and Punjab Wakf Board Vs. Teja Singh, reported in (2019) 4 Supreme Court Cases 698 held:
A.Trusts and Trustees - Wakf Act, 1995
- Ss.83, 84, 6(1), 7(1), 33(4), 51(5), 52(4), 54(4) and 64(6) (as they stood prior to amendment in 2013) - Jurisdiction of the Tribunal constituted under the Wakf Act, 1995, explained in detail Held, the said Tribunal is constituted for determination of any dispute, question or other matter relating to wakf or wakf property which arises under the Wakf Act - Various provisions of the Wakf Act referring 19 O.S.No.15562/2005 to Tribunal and questions which are to be decided by Tribunal, indicated.
B. Trusts and Trustees - Wakf Act, 1995 - Ss.85, 83, 6 and 7 ( as stood prior to amendment in 2013) - Bar of jurisdiction of civil courts as provided under S.85 - Scope and applicability of - Test to determine that bar - Principles explained.
Held, the said bar is confined only to those matters which are required to be determined by the Tribunal under the Wakf Act, 1995 Thus, civil court possesses jurisdiction to entertain suit and proceedings which are not required by or under the said Act to be determined by the Tribunal - In order to determine the said bar of jurisdiction of civil court, one has to ask question as to whether the issue raised in the suit or proceeding concerned is required to be decided under the Wakf Act, 1995 by the Tribunal, under any provision or not - If the answer to that question is in the affirmative, the bar of jurisdiction of civil court would operate.20 O.S.No.15562/2005
24. So, I am of the opinion that the Tribunal is having jurisdiction to determine any dispute, question or other matter relating to the Wakf property under the Act and the right of the plaintiff with respect to the suit schedule property to be decided by the Tribunal. The Civil court has no jurisdiction to declare that plaintiff Mosque is the absolute owner of the property by virtue of the gift made by Smt.Noorjan.
25. With the above discussion, I am of the opinion that Civil Court has no jurisdiction to try the suit. Accordingly Additional Issue No.1 is answered in Affirmative.
26. Issue Nos.1 to 4 and Additional Issues 2 and 3 : In view of the finding that Civil Court has no jurisdiction to try the suit, Issue Nos.1 to 4 and other 21 O.S.No.15562/2005 Additional Issue Nos.2 and 3 kept open for consideration by the Tribunal.
27. Issue No.(iv): In view of the finding on Issue No.(i) to (iii), I proceed to pass the following: ORDER The suit of the plaintiff is not maintainable before Civil Court.
Office is directed to send the entire records to WAKF Tribunal, Bengaluru for disposal in accordance with law.
Both the parties are directed to
appear before the WAKF Tribunal,
Bengaluru.
(Dictated to the Judgmentwriter, transcribed and computerized by him and after carrying out corrections by me, print out taken by him and then pronounced by me in open Court on this the 16th day of March, 2021) (Smt.K.G. Shanthi) LVII Addl.City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru.
22 O.S.No.15562/2005ANNEXURE List of witnesses examined for the plaintiff:
PW.1 : Sarwar Khan List of documents marked for the plaintiff:
Ex.P1 :Death Certificate of Basha Ex.P2 :Declaration of Noorjan Ex.P3 to 6 :Tax receipts
Ex.P7 & 8 : Encumbrance certificate List of witnesses examined for the defendant :
DW.1 : Shazada List of documents marked for the defendant :
Ex.D1 :Original Aadhar card of Vazeer Ahmed Ex.D2 :Original Aadhar card of Shazada Ex.D3 :Original Aadhar card of Muneer Pasha Ex.D4 :Original Aadhar card of Jabeen Banu Ex.P5 :Original Aadhar card of Shaheen Taj Ex.P6 :Original Aadhar card of Zaheeruddin Ex.P7 :Original Aadhar card of Mubeen Taj Ex.P8 :Original Aadhar card of Mohammed Ameen Ahmed LVII Addl.City Civil & Sessions Judge, Mayo Hall Unit, Bengaluru.23 O.S.No.15562/2005
Judgment pronounced in open court (vide separate Judgment) ORDER The suit of the plaintiff is not maintainable before Civil Court.
Office is directed to send the entire records to WAKF Tribunal, Bengaluru for disposal in accordance with law.
Both the parties are directed to appear before the WAKF Tribunal, Bengaluru.
LVII Addl. City Civil & Sessions Judge, Mayo Hall unit, Bengaluru.