Karnataka High Court
Mr. Syed Abdul Azeez vs Jumma Masjid Trust Board on 13 December, 2013
Equivalent citations: AIR 2014 KARNATAKA 53, 2014 AIR CC 1583 (KAR), 2014 (2) AIR KANT HCR 257, (2014) 1 KCCR 575, (2014) 3 ICC 239
Author: Aravind Kumar
Bench: Aravind Kumar
1 R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF DECEMBER, 2013
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
C.R.P.NO. 422/2013
C/W
C.R.P.NOS. 343/2013, 344/2013, 345/2013,
346/2013, 403/2013, 404/2013, 405/2013, 406/2013,
407/2013, 408/2013, 409/2013, 410/2013, 411/2013
& 421/2013
C.R.P.NO. 422/2013
BETWEEN:
Mr. Syed Abdul Azeez,
S/o S.A. Khader,
Aged major
Azeez Collections
Shop no. 471, Ground floor,
Mezzanine floor,
Jumma Masjid road,
Bangalore-51. ... Petitioner
(By Sri. SZA Khurshi, Advocate)
AND:
Jumma Masjid Trust Board
No. 11, Jumma Masjid Road,
Bangalore-560 051
Represented by its Chairman
Mr.Anwar Shariff ..Respondent
(By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu
Associates, Advocates)
2
This petition is filed under Section 18 of
Karnataka Small Causes Act, Against the Order dated
05.07.2013 passed in SC No.15259/2011 on the file of
V-Additional Small Causes Judge and XXIV ACMM,
Bangalore dismissing the IA No.3 filed U/O-VII, Rule-
10(1), R/w Section 151 of CPC.
C.R.P.NO. 343/2013
BETWEEN:
Mr. Azmathulla
S/o Abdul Gani,
Aged about 27 years
No. 123, First floor,
Golden Plaza,
L.No.3 Street Cross,
Meenakshi Koli Street
Bangalore-51. ... Petitioner
(By Sri. SZA Khurshi, Advocate)
AND:
Jumma Masjid Trust Board
No. 11, Jumma Masjid Road,
Bangalore-560 051
Represented by its Chairman
Mr.Anwar Shariff ..Respondent
(By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu
Associates, Advocates)
This petition is filed under Section 18 of
Karnataka Small Causes Act, Against the Order dated
05.07.2013 passed in SC No.15259/2011 on the file of
V-Additional Small Causes Judge and XXIV ACMM,
Bangalore dismissing the IA No.3 filed U/O-VII, Rule-
10(1), R/w Section 151 of CPC.
3
C.R.P.NO. 344/2013
BETWEEN:
Mr. Suhail K.S.
S/o K.S. Sadulla,
Aged about 27 years
No. 152, 2nd floor,
Golden Plaza,
L.No.3 Street Cross,
Meenakshi Koli Street
Jumma Masjid Road,
Shivajinagar,
Bangalore-51. ... Petitioner
(By Sri. SZA Khurshi, Advocate)
AND:
Jumma Masjid Trust Board
No. 11, Jumma Masjid Road,
Bangalore-560 051
Represented by its Chairman
Mr.Anwar Shariff ..Respondent
(By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu
Associates, Advocates)
This petition is filed under Section 18 of
Karnataka Small Causes Act, Against the Order dated
05.07.2013 passed in SC No.15360/2011 on the file of
V-Additional Small Causes Judge and XXIV ACMM,
Bangalore dismissing the IA No.3 filed U/O-VII, Rule-
10(1), R/w Section 151 of CPC.
4
C.R.P.NO. 345/2013
BETWEEN:
1. Mrs. Zeba Shireen
W/o Abrar Mathreen
Aged about 30 years
2. M.Matheen
S/o D.M.Iqbal
Aged about 45 years
No. 110, ground floor,
Golden Plaza,
L.No.3 Street Cross,
Meenakshi Koli Street
Bangalore-51. ... Petitioners
(By Sri. SZA Khurshi, Advocate)
AND:
Jumma Masjid Trust Board
No. 11, Jumma Masjid Road,
Bangalore-560 051
Represented by its Chairman
Mr.Anwar Shariff ..Respondent
(By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu
Associates, Advocates)
This petition is filed under Section 18 of
Karnataka Small Causes Act, Against the Order dated
05.07.2013 passed in SC No.15505/2011 on the file of
V-Additional Small Causes Judge and XXIV ACMM,
Bangalore dismissing the IA No.4 filed U/O-VII, Rule-
10(1), R/w Section 151 of CPC.
5
C.R.P.NO. 346/2013
BETWEEN:
1. Mrs. Zeba Shireen
W/o Abrar Mathreen
Aged about 30 years
2. Abrar Matheen
S/o D.M.Iqbal
Aged about 45 years
No. 146, IInd floor,
Golden Plaza,
L.No.3 Street Cross,
Meenakshi Koli Street
Bangalore-51. ... Petitioners
(By Sri. SZA Khurshi, Advocate)
AND:
Jumma Masjid Trust Board
No. 11, Jumma Masjid Road,
Bangalore-560 051
Represented by its Chairman
Mr.Anwar Shariff ..Respondent
(By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu
Associates, Advocates)
This petition is filed under Section 18 of
Karnataka Small Causes Act, 1964, Against the Order
dated 05.07.2013 passed on IA No.4 in SC
No.15374/2011 on the file of V-Additional Small Causes
Judge and XXIV ACMM, Bangalore dismissing I.A.No.2
filed U/O-VII, Rule-10(1), R/w Section 151 of CPC.
6
C.R.P.NO. 403/2013
BETWEEN:
Mr. K.P.Umar,
S/o K.P.Abubacker,
Aged about 50 years
Shop No. 139, first floor,
Golden Plaza,
L.No.3 Street Cross,
Meenakshi Koli Street
Bangalore-51. ... Petitioner
(By Sri. SZA Khurshi, Advocate)
AND:
Jumma Masjid Trust Board
No. 11, Jumma Masjid Road,
Bangalore-560 051
Represented by its Chairman
Mr.Anwar Shariff ..Respondent
(By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu
Associates, Advocates)
This petition is filed under Section 18 of
Karnataka Small Causes Act, 1964, Against the Order
dated 05.07.2013 passed on IA No.III in SC
No.15268/2011 on the file of V-Additional Small Causes
Judge and XXIV ACMM, Mayo hall unit, Bangalore
dismissing IA No.III the filed U/O-VII, Rule-10(1), R/w
Section 151 of CPC.
C.R.P.NO. 404/2013
BETWEEN:
M/s G.S.Ramaswamy Chetty & Sons,
7
Mr. G.P.Srinivas, partner
S/o G.P.Parthasarthy,
Aged about 63 years
No. 69/8, ground floor,
L.No.3 Street,
Meenakshi Koli Street Cross,
Bangalore-51. ... Petitioner
(By Sri. SZA Khurshi, Advocate)
AND:
Jumma Masjid Trust Board
No. 11, Jumma Masjid Road,
Bangalore-560 051
Represented by its Chairman
Mr.Anwar Shariff ..Respondent
(By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu
Associates, Advocates)
This petition is filed under Section 18 of
Karnataka Small Causes Act, 1964, Against the Order
dated 05.07.2013 passed on IA No.III in SC
No.15376/2011 on the file of V-Additional Small Causes
Judge and XXIV ACMM, Mayo hall unit, Bangalore
dismissing IA No.III the filed U/O-VII, Rule-10(1), R/w
Section 151 of CPC.
C.R.P.NO. 405/2013
BETWEEN:
Mrs. Shireen Taj,
W/o Mohamed Najee Ullah,
Aged about 31 years
Shop No. 103 & 104, ground floor,
Golden Plaza,
L.No.3 Street
Meenakshi Koli Street Cross,
8
Bangalore-51. ... Petitioner
(By Sri. SZA Khurshi, Advocate)
AND:
Jumma Masjid Trust Board
No. 11, Jumma Masjid Road,
Bangalore-560 051
Represented by its Chairman
Mr.Anwar Shariff ..Respondent
(By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu
Associates, Advocates)
This petition is filed under Section 18 of
Karnataka Small Causes Act, 1964, Against the Order
dated 05.07.2013 passed on IA No.III in SC
No.15567/2011 on the file of V-Additional Small Causes
Judge and XXIV ACMM, Mayo hall unit, Bangalore
dismissing IA No.III filed U/O-VII, Rule-10(1), R/w
Section 151 of CPC.
C.R.P.NO. 406/2013
BETWEEN:
Mr. T.A. Ameenulla,
S/o Azmathulla,
Aged about 51 years
Shop No. 130, first floor,
Golden Plaza,
L.No.3 Street
Meenakshi Koli Street Cross,
Bangalore-51. ... Petitioner
(By Sri. SZA Khurshi, Advocate)
9
AND:
Jumma Masjid Trust Board
No. 11, Jumma Masjid Road,
Bangalore-560 051
Represented by its Chairman
Mr.Anwar Shariff ..Respondent
(By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu
Associates, Advocates)
This petition is filed under Section 18 of
Karnataka Small Causes Act, 1964, Against the Order
dated 05.07.2013 passed on IA No.III in SC
No.15262/2011 on the file of V-Additional Small Causes
Judge and XXIV ACMM, Mayo hall unit, Bangalore
dismissing IA No.III filed U/O-VII, Rule-10(1), R/w
Section 151 of CPC.
C.R.P.NO. 407/2013
BETWEEN:
Mr. Mohammed Hafeez,
S/o Mohammed Haneef,
Aged about 47 years
Shop No. 133, first floor,
Golden Plaza,
L.No.3 Street
Meenakshi Koli Street Cross,
Bangalore-51. ... Petitioner
(By Sri. SZA Khurshi, Advocate)
AND:
Jumma Masjid Trust Board
No. 11, Jumma Masjid Road,
Bangalore-560 051
10
Represented by its Chairman
Mr.Anwar Shariff ..Respondent
(By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu
Associates, Advocates)
This petition is filed under Section 18 of
Karnataka Small Causes Act, 1964, Against the Order
dated 05.07.2013 passed on IA No.III in SC
No.15267/2011 on the file of V-Additional Small Causes
Judge and XXIV ACMM, Mayo hall unit, Bangalore
dismissing IA No.III filed U/O-VII, Rule-10(1), R/w
Section 151 of CPC.
C.R.P.NO. 408/2013
BETWEEN:
Mr. Fazal Ahmed,
S/o Abdul Azeez,
Aged about 50 years
No. 69/18, first floor,
Golden Plaza,
L.No.3 Street
Meenakshi Koli Street Cross,
Bangalore-51. ... Petitioner
(By Sri. SZA Khurshi, Advocate)
AND:
Jumma Masjid Trust Board
No. 11, Jumma Masjid Road,
Bangalore-560 051
Represented by its Chairman
Mr.Anwar Shariff ..Respondent
(By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu
Associates, Advocates)
11
This petition is filed under Section 18 of
Karnataka Small Causes Act, 1964, Against the Order
dated 05.07.2013 passed on IA No.III in SC
No.15373/2011 on the file of V-Additional Small Causes
Judge and XXIV ACMM, Mayo hall unit, Bangalore
dismissing IA No.III filed U/O-VII, Rule-10(1), R/w
Section 151 of CPC.
C.R.P.NO. 409/2013
BETWEEN:
Mrs. Haseena Banu,
W/o Hyder Ali Khan,
Aged about 45 years
No. 121, first floor,
Golden Plaza,
L.No.3 Street
Meenakshi Koli Street Cross,
Bangalore-51. ... Petitioner
(By Sri. SZA Khurshi, Advocate)
AND:
Jumma Masjid Trust Board
No. 11, Jumma Masjid Road,
Bangalore-560 051
Represented by its Chairman
Mr.Anwar Shariff ..Respondent
(By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu
Associates, Advocates)
This petition is filed under Section 18 of
Karnataka Small Causes Act, 1964, Against the Order
dated 05.07.2013 passed on IA No.III in SC
No.15260/2011 on the file of V-Additional Small Causes
Judge and XXIV ACMM, Mayo hall unit, Bangalore
12
dismissing IA No.III filed U/O-VII, Rule-10(1), R/w
Section 151 of CPC.
C.R.P.NO. 410/2013
BETWEEN:
Mr. M.Abdul Rahman,
S/o M.Fazlur Rahman,
Aged about 52 years
Shop No. 132, first floor,
Golden Plaza,
L.No.3 Street
Meenakshi Koli Street Cross,
Bangalore-51. ... Petitioner
(By Sri. SZA Khurshi, Advocate)
AND:
Jumma Masjid Trust Board
No. 11, Jumma Masjid Road,
Bangalore-560 051
Represented by its Chairman
Mr.Anwar Shariff ..Respondent
(By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu
Associates, Advocates)
This petition is filed under Section 18 of
Karnataka Small Causes Act, 1964, Against the Order
dated 05.07.2013 passed on IA No.III in SC
No.15263/2011 on the file of V-Additional Small Causes
Judge and XXIV ACMM, Mayo hall unit, Bangalore
dismissing IA No.III filed U/O-VII, Rule-10(1), R/w
Section 151 of CPC.
13
C.R.P.NO. 411/2013
BETWEEN:
Mr. Rafeequlla T.A,
S/o late A.T.Azmathulla,
Aged about 48 years
No. 69/9, ground floor,
L.No.3 Street
Meenakshi Koli Street Cross,
Bangalore-51. ... Petitioner
(By Sri. SZA Khurshi, Advocate)
AND:
Jumma Masjid Trust Board
No. 11, Jumma Masjid Road,
Bangalore-560 051
Represented by its Chairman
Mr.Anwar Shariff ..Respondent
(By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu
Associates, Advocates)
This petition is filed under Section 18 of
Karnataka Small Causes Act, 1964, Against the Order
dated 05.07.2013 passed on IA No.II in SC
No.15375/2011 on the file of V-Additional Small Causes
Judge and XXIV ACMM, Mayo hall unit, Bangalore
dismissing IA No.II filed U/O-VII, Rule-10(1), R/w
Section 151 of CPC.
C.R.P.NO. 421/2013
BETWEEN:
Mr. Afroz Pasha,
14
S/o Syed Abdul Khaliq,
Aged about 38 years
Shop No. 138, first floor,
Golden Plaza,
L.No.3 Street
Meenakshi Koli Street Cross,
Bangalore-51. ... Petitioner
(By Sri. SZA Khurshi, Advocate)
AND:
Jumma Masjid Trust Board
No. 11, Jumma Masjid Road,
Bangalore-560 051
Represented by its Chairman
Mr.Anwar Shariff ..Respondent
(By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu
Associates, Advocates)
This petition is filed under Section 18 of
Karnataka Small Causes Act, 1964, Against the Order
dated 05.07.2013 passed on IA No.III in SC
No.15269/2011 on the file of V-Additional Small Causes
Judge and XXIV ACMM, Court of Small Causes, Mayo
hall unit, Bangalore.
These petitions having been heard and reserved,
coming on for pronouncement of judgment this day, the
Court made the following:
ORDER
These revision petitions are directed against the orders passed by the Small Causes Judge, Bangalore 15 rejecting the applications filed by defendants under Order VII Rule 10(1) R/W Section 151 CPC.
2. I have heard the arguments of Sriyuths S.Z.A Khureshi, learned Advocate appearing for revision petitioners - defendants and Sri Rahul Cariappa, learned Advocate appearing on behalf of Kamal and Banu for respondent-plaintiff. Perused the order in question as also the pleadings, interlocutory application filed under Order VII Rule 10(1) read with Section 115 CPC and objections filed thereto. Parties are referred to as per their rank in the trial Court.
3. It is the contention of Mr.Khureshi that since Jumma Masjid Trust Board is registered as Wakf under the Wakfs Act and as such the Court of Small Causes at Bangalore has no jurisdiction in view of bar under Section 85 of the Wakf Act, 1995. He would also contend that since the properties belonging to the plaintiff - Trust has been declared to be the Wakf property, the provisions of Karnataka Public Premises (Eviction of unauthorized occupants) Act, 1974 16 (hereinafter referred to as 'Public Premises Act' for brevity) would be applicable since suit schedule property is a public premises as defined under Clause
(e) of sub-clause (v) of Section 2 of the Public Premises Act. The bar contained in Section 16 of the Public Premises Act would prohibit the Civil Court exercising the jurisdiction. Hence, he contends that order of the trial Court rejecting the application filed by the revision petitioner - defendant seeking rejection of the suit is erroneous and the judgment of the Hon'ble Apex Court relied upon by the trial Court is inapplicable to the facts on hand. Hence, he prays for allowing the revision petitions.
In support of his submissions, he relies upon the following judgments:
(1) SMT. JABEEN TAJ & OTHERS vs MASJID-E-
PENSION MOHALLA, A WAKF INSTITUTION reported in ILR 2006 KAR 1146 (2) THE HEAD QUARTERS ASSISTANT, THE DEPUTY COMMISSIONER'S OFFICE, MYSORE & OTHERS reported in 1997 (5) Kar.LJ 493 17
4. Per contra, Sri Rahul Cariappa would support the order passed by the trial Court and contends that provisions of the Wakf Act, 1995 nor the provisions of Public Premises Act is attracted to the facts of the present case inasmuch as, the plaintiff- institution is being managed and administered by Trust formed under a scheme framed by the District Court and there is a marked distinction between Trust property and the Wakf property and in the instant case, the suit schedule properties being Trust properties, the trustees are entitled to deal with the same and as such, neither the provisions of the Wakf Act, 1995 nor the provisions of Public Premises Act are applicable to the facts on hand.
In support of his submission, he has relied upon the following judgments:
(1) AHMED ADAM SAIT & OTHERS vs M.E.MAKHRI & OTHERS reported in AIR 1964 SC 107 (2) MAHARASHTRA STATE BOARD OF WAKFS vs YUSUF BHAI CHAWALA & OTHERS reported in 2012(6) SCC 238 18
5. Having heard the learned Advocates appearing for the parties, I am of the considered view that following points would arise for my consideration:
(1) Whether the Small Causes Suits filed by the plaintiff - Jumma Masjid Trust Board were liable to be dismissed or rejected on the ground of bar of jurisdiction contained in Section 85 of the Wakfs Act, 1995 and Section 16 of the Public Premises Act, 1974.
OR Whether the properties managed by the plaintiff Trust is to be construed as a Wakf property or Trust property?
(2) What order?
6. The plaintiff "Jumma Masjid Trust"
represented by its Chairman has filed suits against defendants for the relief of evicting them from suit schedule premises and also for arrears of rent and 19 mesne profits. Defendants have appeared and filed an application to reject the plaint as the Court of Small Causes, Bangalore has no jurisdiction in view of Section 85 of the Wakf Act, 1995 read with Section 16 of Public Premises Act. Said application came to be resisted by the plaintiff and on contest, it came to be dismissed with costs. Said order is questioned before this Court by defendants.
RE: POINT NO.(1):
7. Along with statement of objections filed to the main petition and application for rejection of the plaint, defendants had filed gazette notification dated 07.06.1965, G.O. dated 20.01.2001, show cause notice issued by the Karnataka Board of Wakf dated 06.01.2011 and reply submitted by plaintiff - Trust dated 17.09.2010 contending interalia that suit properties are declared to be Wakf property and as such, under Section 85 of Wakf Act, Civil Court has no jurisdiction. It was further contended that Section 16 of the Public Premises Act would bar the jurisdiction of 20 the Civil Court to entertain any suit or legal proceeding in respect of eviction of any person and no Court will have jurisdiction to entertain any such suit or proceedings in respect of eviction of any person who is in unauthorized occupation of any "public premises"
or recovery of rent and as such, it was contended that suit for ejectment filed before Small Causes Court was not maintainable.
8. In order to examine the contention of learned Advocate appearing for revision petitioners- defendants, it would be necessary to extract relevant provisions pressed into service which reads as under:
I. WAKF ACT, 1995 "85: Bar of jurisdiction of civil courts:- 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."21
II. KARNATAKA PUBLIC PREMISES (EVICTION OF UNAUTHORISED OCCUPANTS) ACT, 1974.
"2(e):- "Public Premises" means any premises belonging to or allotted to State Government or taken on lease or requisitioned by or on behalf of the State Government and includes any premises belonging to or taken on lease by or on behalf of -----
(i) xxx
(ii) xxx
(iii) xxx
(iv) xxx
(v) A Wakf, registered with the Karnataka State Board of Wakfs."
5:- Eviction of unauthorized occupants:- (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and any evidence he may produce in support of the same and after giving him a reasonable opportunity of being heard, the competent officer is satisfied that the public premises are in unauthorized occupation, the competent officer may on a date to be fixed for the purpose, make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated by all persons who may be in occupation thereof or any part 22 thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.
(3) If any person refuses or fails to comply with the order of eviction within forty-five days from the date of affixture of the order under sub-
section (1), the competent officer or any other officer duly authorised by the competent officer in this behalf may evict that person from and take possession of, the public premises and may, for that purpose, use such force as may be necessary."
16. Bar of jurisdiction:- No Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is in unauthorized occupation of any public premises or the recovery of the arrears of rent payable under sub-section (1) of Section 7 or the damages payable under sub-
section (2) of that section or the costs awarded to the State Government or the Local Authority or the corporate authority under sub-section (5) of Section 10 or any portion of such rent, damages or costs."
9. A perusal of above provisions would indicate that under Section 85 of the Wakf Act, Civil Court's jurisdiction is taken away in respect of any dispute, 23 question or other matters relating to Wakf, Wakf property or other matter which is required to be determined by a Tribunal under the said Act. Likewise, Section 2(e)(v) of Public Premises Act brings within its sweep a premises belonging to Wakf registered with the Karnataka State Board of Wakfs within the purview of Wakf Act and said premises will have to be construed as public premises under the Public Premises Act. If it is so construed, eviction proceedings of such occupants to be treated as unauthorized occupants, proceedings will have to be initiated under Section 5 of Public Premises Act. A premises is declared to be "public premises" in respect of premises belonging to or taken on lease by or on behalf of Wakf registered under the Karnataka State Board of Wakfs. If it is so construed, then, there would be bar for any Court to entertain a suit or proceedings in respect of eviction of such person who is in unauthorized occupation of such public premises or recovery of arrears of rent in view of Section16 ousting jurisdiction of Civil Court to entertain a claim in that regard.
24
10. In the background of analysis of above statutory provisions, facts on hand are required to be examined. It is not in dispute that in respect of the properties belonging to Jumma Masjid, a scheme suit had been filed before District Judge, Bangalore in O.S.No.32/1924 and in the said suit, a scheme had been framed in the year 1927. Pursuant to the said scheme, trustees were appointed and they have been managing the trust properties. Thereafter, an application came to be filed by certain persons under Order 1 Rule 10 and Sections 141 and 151 CPC contending that they should be joined as parties to the proceedings under the scheme and for other reliefs. Said application was rejected by the District Judge on 20.07.1945. As such, said applicants filed a suit in O.S.No.2/1947 praying for a fresh scheme being settled for the proper administration of Jumma Masjid and its properties by removing the trustees and praying for a committee of New Trustees being appointed by dissolving the old scheme. On contest it resulted in 25 dismissal of the suit. Aggrieved by the said judgment and decree, plaintiff filed an appeal to this Court. This Court took the view that plea of resjudicata as opined by the trial Court could not be sustained and agreed with the trial Court that in law a scheme once settled should not be lightly disturbed or modified but came to a conclusion that for framing a new scheme it has to set aside the judgment and decree passed by the trial Court and accordingly remanded the matter to the District Court for framing a new scheme. This judgment of the High Court was challenged by the defendants therein before the Hon'ble Apex Court and after considering the rival contentions, the Hon'ble Apex Court was not inclined to affirm the order of remand passed by the High Court and as such reversed the same by modifying the earlier scheme with modifications to clauses (iv), (v), (xxiv) and (xxv). It was also made clear in the said judgment that if in future any occasion were to arise for changing or altering the terms of the scheme, it would not be necessary to file a separate suit but the trustees or any person interested in the trust may apply for 26 modification of the scheme to the District Court. Hence, the order of remand passed by this Court was reversed and respondent's claim for modified scheme was allowed to the extent of incorporating four clauses and appeal came to be dismissed with the modifications indicated therein. It was held by the Hon'ble Apex Court as under:
"23. The next question xxxx of this case. We have already referred to the fact that the High Court was satisfied that the scheme has worked, on the whole, satisfactorily. We have examined the 25 clauses of the scheme and have heard the learned counsel for both the parties in regard to the modifications which these clauses may need and we are satisfied that if suitable changes are made in clauses (iv), (v), (xxiv) and (xxv), that would meet the requirements of justice and fair administration of the Mosque, its affairs and its properties."
11 The above facts would clearly indicate that the properties vested in the Trust. As to the distinction between Muslim Wakf and a Trust created by Muslims came up for consideration before Hon'ble Apex Court in the case of MAHARASHTRA STATE BOARD OF WAKFS 27 vs YUSUF BHAI CHAWALA & OTHERS reported in (2012)6 SCC 328 and it was held that dividing line between Public Trust and Wakfs may be thin but the main factor always is that while Wakf properties vests in God Almighty the Trust properties do not vest in God and trustees in terms of the deed of Trust would be entitled to deal with the same for the benefit of the Trust and its beneficiaries. It has been held by the Hon'ble Apex Court as under:
"38. There is a vast difference between Muslim Wakfs and trusts created by Muslims. The basic difference is that Wakf properties are dedicated to God and the "Wakif" or dedicator does not retain any title over the Wakf properties. As far as trusts are concerned, the properties are not vested in God. Some of the objects of such trusts are for running charitable organisations such as hospitals, shelter homes, orphanages and charitable dispensaries, which acts, though recognized as pious, do not divest the author of the trust from the title of the properties in the trust, unless he relinquishes such title in favour of the trust or the trustees. At times, the dividing line between public trusts and wakfs may be thin, but the main factor always is that while wakf properties vest in God Almighty, the trust properties do not vest in God and the trustees in terms of deed of trust are entitled to deal with the same for the benefit of the trust and its beneficiaries."28
12. In the light of law laid down by the Hon'ble Apex Court as noted herein above when the facts on hand are examined, it would indicate that a scheme suit had been filed in O.S.NO.32/1924 and a scheme was drawn by the Court relating to plaintiff-Trust. The said scheme was sought to be undone by another group by filing a fresh scheme suit in O.S.No.2/1947 after the plaintiffs therein sought to get impleaded in O.S.No.32/1924 was rejected by the District Judge on 20.07.1945. As noticed herein above, judgment and decree passed by the District Court dismissing the suit was pursued before this Court and an order of remand came to be passed by this Court and in the Civil Appeal, the Hon'ble Apex Court in AHMAD ADAM SAIT & OTHERS vs M.E.MAKHRI & OTHERS reported in AIR 1964 SC 107 reversed the said order of remand by concluding that the scheme framed in 1927 should be left as it is with the modifications as has been indicated in the judgment. It has been held by the Hon'ble Apex Court as under:
29
"27. In the result, we reject all the contentions raised by the appellants and confirm the findings recorded by the High Court in favour of the respondents. We are, however, not inclined to affirm the order of remand passed by the High Court, because we have held that the scheme framed in 1927 should be left as it is with the modifications which we have indicated in our judgment. Therefore, the order of remand passed by the High Court is reversed and the respondents' claim for a modified scheme allowed. The appeal is dismissed with the above modifications. The appellants will pay the costs of the contesting respondents throughout."
(Emphasis supplied by me) In other words, the scheme made in the year 1927 by the District Court in OS.No.32/1924 stood affirmed with modification of incorporating four clauses as already referred to herein above. It is to be further noticed that properties of the Trust continued with the Trust and there was no Wakf created.
13. Even by virtue of notification issued by the Karnataka State Board of Wakfs it would not take away the scheme settled by competent Civil Court based on proceedings initiated under Section 92 of CPC and said 30 proceeding would not abate. If the Wakf Board was aggrieved by the decree passed in the scheme suit, the Board was empowered to have the decree declared void within one month of its knowledge regarding the decree. There is no material on record to show that Wakf Board was not aware of the decree. As such, it cannot be accepted that the jurisdiction of the Civil Court is ousted by virtue of the notification dated 02.06.1975 particularly when the Wakf Board has not taken any steps in this regard. Though notification has been issued under the Wakf Act, this Court cannot ignore the fact that the scheme of management of plaintiff-Trust approved by the Hon'ble Apex Court subject to permitting the Trustees or any person interested in the Trust for modification of the scheme before the District Court, Bangalore would be a clear pointer to the fact that the management of the properties belonging to plaintiff-Trust continues to be vested with the Trust. Undisputedly, even after issuance of the notification in the year 1975 under the Wakf Act, the properties are 31 managed and administered by the Trust Board as settled under the scheme of management.
14. It can also be noticed that in the Gazette notification which has been produced by learned Advocate appearing for revision petitioners-defendants along with revision petition that under the heading "Name, address and occupation of Mutavalli" it has been indicated as "JUMMA MOSQUE TRUST BOARD". This would also indicate that property settled under the scheme in favour of the Jumma Masjid Trust has continued with the said Trust which is being monitored by the District Court as directed by the Hon'ble Apex Court and as such, the contention of Mr.Khureshi that suit schedule premises is belonging to the Karnataka Board of Wakf or it is a Wakf property and as such it falls within the definition of "Public premises" as defined under Section 2(e)(v) of Public Premises Act cannot be accepted and it stands rejected.
32
15. In the light of discussion made herein above, I am of the considered view that trial Court was fully justified in dismissing the applications filed by the defendants seeking rejection of the plaint and the reasons assigned by the trial Court in its order that the process of appointment of trustees, supervision and administration of the Trust is being carried on by the Additional City Civil Judge, Bangalore as on today requires to be affirmed.
16. Yet another factor which also requires to be noticed is that the judgment passed in O.S.32/1924 settling the scheme relating to the plaintiff-trust has not been questioned or challenged by the Karnataka Board of Wakfs and it is not even a party to the scheme suit which is being administered by the competent Civil Court, at Bangalore. Hence, I am of the considered view that order passed by trial Court rejecting the application is just and proper and there is no material irregularity in the said order calling for exercise of revisional jurisdiction at the hands of this Court. 33
17. Hence, the following order:
(1) Revision petitions are hereby
dismissed.
(2) The orders passed by the trial Court dismissing the applications filed by the revision petitioners for rejection of the plaint are hereby affirmed.
(3) Parties to bear their respective costs.
Sd/-
JUDGE *sp