Madras High Court
S.Neelavathi vs S.Dilshad on 3 January, 2014
Author: R.Subbiah
Bench: R.Subbiah
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.01.2014
CORAM
THE HONOURABLE MR. JUSTICE R.SUBBIAH
` Application No.4968 of 2013
in
C.S.No.551 of 2013
1. S.Neelavathi
2. S.Ravi
3. M.Gomathi
4. P.Anjana Priya ... Applicants
vs.
1. S.Dilshad
2. S.Nishad Ahmed
3. S.Humara
4. S.Roshanhara
5. J.Nooma
6. S.Khader
7. S.Shakira
8. M.Shiraz
9. M.Sujath
10. M.Laila Begum
11. T.Parveen
12. The Principal Secretary &
Secretary to Government
Fort St.George, Chennai 600 009
13. The Collector,
Chennai District
Chennai 600 001
14. The Tahsildar
Greenways Road
Raja Annamalaipuram
Chennai 600 028
15. The Secretary
Tamilnadu Wakf Board
No.1, Jaffer Syrang Street
Vallal Seethakathai Nagar,
Chennai 600 001
16. S.M.Nazureen Fakri
17. S.M.Kamaludeen
18. S.M.Nizamudeen
19. S.M.Abdul Nasir
20. S.M.Abdul Khader
21. T.Kasturi
22. T.Sugumar
23. T.Manikandan
24. Lakshmi
25. P.Navaneetharaj ... Respondents
R.1 to R.11 are represented by
Power Agent A.Mohamed Yaseen
R.25 impleaded as 18th defendant vide
A.No.4765 of 2013 dated 10.10.2013.
Prayer: The application has been filed under Order XIV Rule 8 of O.S. Rules r/w Order VII Rule 11 of C.P.C. praying to reject the plaint in C.S.No.551 of 2013 with exemplary cost.
For applicant : Mr.Ravichandran Sundaresaan
For Respondents : Mr.A.S.Venkatachalapathy, Senior Counsel for
Mr.P.Rajamanickam for R.1
to R.11 and R.25
Mr.T.Jayaramaraj,G.A.for R12 to 14
Mr.V.Lakshmi Narayanan for R.15
Mr.G.Nagarajan for RR.21 to 24
Application No.4968 of 2013
in
C.S.No.551 of 2013
R.SUBBIAH,J.
The present application has been filed by defendants 14 to 17 in the suit viz., C.S.No.551 of 2013 for rejection of the plaint.
2. Respondents 1 to 11 in this application are the plaintiffs. Respondents 12 to 24 are defendants 1 to 13. Respondent No.25 is the defendant No.18.
3. For the sake of convenience, the parties will be referred to as per their ranking in the suit.
4. The plaintiffs have filed the present suit for the following reliefs:-
(i) For a declaration, declaring that the plaintiffs are the absolute owners of the land measuring 90 grounds comprised in T.S.No.2024 (O.S.2253) of Mylapore Village, Mylapore Triplicane Taluk, Chennai District.
(ii) Consequential mandatory injunction directing the defendants 1 to 3 to issue patta in favour of the plaintiffs for the suit property viz., 90 grounds in T.S.No.2024 (O.S.2253) of Mylapore Village, Mylapore Triplicane Taluk, Chennai District.
(iii) Permanent injunction restraining the defendants 4 to 17 from interfering with the physical possession and enjoyment of the suit property.
(iv) Directing the defendants to pay the costs of this suit.
5. The averments made in the plaint are as follows:-
(a) The plaintiffs claim that they are the descendants of Carnatic Nawab. They are the grand sons and grand daughters of Nawab Shadi Khan alias Etibar Khan Bahadur. They inherited the suit property from their ancestors. The Prayer Hall which is in the suit property was constructed for private worship and the same was looked after by the Imam and others.
(b) The proceedings of the Board of Revenue dated 27.10.1962 was in relation to the administration of certain mosques and choultries at Tirunelveli District. In the said proceedings, it was clearly mentioned that Abdulla Mian Sahib and his brother Sharif Sahib are the surviving male members of the Nawab Shadi Khan alias Etibar Khan Bahadur. In fact, that proceedings were also quoted by the Tamil Nadu Wakf Board in File No.11530/C1/TNV/71 in the enquiry in respect of Pettai Mosque at Tirunelveli.
(c) During the settlement period, the suit property was registered in the name of Khairunnissa Begum, wife of Nawab Sharif Sahib, the great grand son of Nawab Shadi Khan alias Etibar Khan Bahadur. The plaintiffs, being the legal heirs of said Nawab Shadi Khan alias Etibar Khan Bahadur, are entitled to the suit property.
(d) A mosque was constructed in the suit property for the private use of registered holder Khairunnissa Begum, wife of Nawab Sharif Sahib and it was looked after by some muslims and the remaining lands were cultivated by the farm hands. After the demise of Sharif Sahib and Khairunnissa Begum, their sons Jehangir Basha and Mirza were in enjoyment of the suit property. After their life time, their legal heirs viz., the plaintiffs herein were in busy taking over control and management of all the properties at Tiruchi, Tirunelveli Districts. So far as the suit property at Mylapore is concerned, they exercised control over the legal heirs of the farm hands engaged by their forefathers. In the meanwhile, the private mosque constructed by Khairunnissa Begum, the great grand mother of the plaintiffs, was being used by the public also. The person in whose control it was entrusted by the said Khairunnissa Begum died and his legal heir one SMAK Fakir Sahib, the father of defendants 5 to 9 was looking after the same. During that time, the 4th defendant Wakf Board attempted to take over the management of the prayer hall and other adjoining properties as Wakf properties. Against the said proceedings of the 4th defendant, the said SMAK Fakir Sahib filed a suit in O.S.No.1538 of 1960 before the II Assistant City Civil Court, Chennai as against the Wakf Board. The said suit was decreed on 27.8.1963 holding that the suit property was not a Wakf property except the prayer hall. Against the said judgment and decree, the 4th defendant viz., the Tamil Nadu Wakf Board filed an appeal in A.S.No.21 of 1964 and by judgment dated 21.1.1966, the decree in O.S.No.1538 of 1960 was modified holding that the suit property was Wakf Alal Aulad. In both the suit and the appeal, no document was filed by SMAK Fakir Sahib, the father of defendants 5 to 9 herein, to establish the ownership or his relationship with the property.
(e) The Tamil Nadu Wakf Board, the 4th defendant herein had stated that the lands were given to the ancestors of SMAK Fakir Sahib by Carnatic Nawab. Even without referring to the Settlement Register, which would clearly establish the ownership, the Courts were misled that the Carnatic Nawab would have created a Wakf and entrusted the property to the ancestors of defendants 5 to 9. But, the truth is that the prayer hall was an exclusive prayer hall for Nawab Sharif Saheb and his wife Khairunnissa Begum and the forefathers of defendants 5 to 9 were the Managers of the prayer hall.
(f) However, the Wakf Board, the 4th defendant herein and the legal heirs of SMAK Fakir Sahib viz., defendants 5 to 7 herein entered into a clandestine arrangement under which it was agreed to take 30 grounds by the 4th defendant and remaining 60 grounds by defendants 5 to 7. All these arrangements are not legal, valid and not binding on the plaintiffs. Defendants 5 to 17 have no manner of right, title and interest over the suit property. However, misleading the revenue authorities and the civil Courts, the defendants took out several proceedings against each other and obtained orders one way or other. All the proceedings and orders passed thereon so far taken by the defendants 5 to 17 are not valid and binding on the plaintiffs. The plaintiffs alone are entitled to the suit property. Hence, they have filed the present suit for the relief stated supra.
6. On appearance, defendants 14 to 17 have taken out the present application for rejection of the plaint. Defendants 15 and 16 are the son and daughter of defendant No,14 and defendant No.17 is the daughter in law. The sum and substance of the affidavit filed in support of the present application is as follows:-
(a) The plaintiffs have no right, title or interest or possession over the suit property and they are only strangers to the suit property. The plaintiffs have no locus standi to lay any claim over the suit schedule property.
(b) According to defendants 14 to 17, the father in law of Defendant No.14 viz., Ponnapillai @ Perumal purchased the suit property from one Kalappa Naidu under a deed of sale registered as document No.26 of 1916 to an extent of 1935.5 kuzhi viz., 116.13 grounds. From the date of purchase, the said Ponnapillai @ Perumal had been in exclusive possession and enjoyment of the same without any hindrance from anybody. Subsequently, the said Ponnapillai @ Perumal had settled the said property to one P.Subramani, the husband of Defendant No.14 out of love and affection by executing a registered settlement vide document No.1368 of 1955 dated 29.7.1955 on the file of SRO, Saidapet. By virtue of the said settlement deed, the said P.Subramani had been in possession of the suit schedule property. The said Ponnapillai @ Perumal, the father in law of Defendant No.14 had died on 12.11.1957 and his wife Govindammal died on 10.8.1953. From the date of settlement deed, the husband of Defendant No.14 had been in exclusive possession and enjoyment of the property to an extent of 90 grounds and 75 sq.ft. after deducting the encroachment made by the strangers to an extent of 26 grounds.
(c) By virtue of the settlement deed dated 29.7.1955, the said P.Subramani, the husband of the defendant No.14 became the absolute owner of the suit property. Since in the year 2008, her husband was trying to dispose of the said property by leaving his sons and daughters in lurch, the sons and daughter of Defendant No.14 have filed a suit for partition against her husband P.Subramani in C.S.No.185 of 2008 before this Court. Subsequently, the parties in the said suit entered into compromise and pursuant to the said compromise, a compromise decree was passed on 11.3.2010. Based on the said compromise decree, shares were allotted equally to the husband and the sons and daughter of Defendant No.14. Thereafter, by order dated 28.6.2013, the District Revenue Officer, Chennai directed the Tahsildar, Triplicane-Mylapore Taluk, to carry out necessary changes in the permanent land records, pursuant to the decree and judgment passed in the partition suit. In the meanwhile, defendants 11 to 13 were trying to interfere with the peaceful possession and enjoyment of the property of defendants 14 to 17 and hence, they have filed a suit as against them in O.S.No.2995 of 2012 on the file of the III Assistant Judge, City Civil Court, Chennai. However, the present suit is concerned, since the plaintiffs have impleaded the Wakf Board as the 4th defendant, under Section 6 of the Wakf Act, the present suit is not maintainable. Section 6 of the Wakf Act clearly says that even in a case, where any question arises as to whether a particular property specified as Wakf property or not, has to be decided only by the Wakf Tribunal and not by any civil Court. Further, Section 85 of the Wakf Act provides bar of jurisdiction of the civil Court in respect of any dispute, question or other matter relating to Wakf and Wakf property. Thus, defendants 14 to 17 sought for rejection of the plaint.
7. The plaintiffs have filed a counter affidavit, which contains the following facts:-
(a) Sections 6 and 85 of the Wakf Act cannot be applied to the facts of the present case. In the present suit, the plaintiffs have pleaded that the suit property originally belonged to Carnatic Nawab. The plaintiffs are the descendants of the Carnatic Nawab and they are in possession of the same and entitled to the suit property. The suit is filed for declaration of their title and there is no question or dispute raised by the plaintiffs regarding any Wakf property. While so, the Wakf Tribunal has no jurisdiction to decide the title of the suit property. Since the plaintiffs are in possession of the suit property, there is no prayer for delivery of possession. The suit is not barred by limitation.
(b) The plaintiffs denied the claim of defendants 14 to 17 that they are the owners of the property. The property originally belonged to one Khairunnissa Begum. The plaintiffs are the direct legal heirs of the said Khairunnissa Begum and they are in continuous and undisturbed possession of the property. They gave a representation to the Special Commissioner, Land Administration for change of the name in favour of the plaintiffs in the Revenue Records and the Collector of Chennai also directed the Tahsildar to hold enquiry and issue patta. The papers are pending with the Tahsildar, Mylapore Tripicane Taluk. In any event, the TSLR stands only in the name of the plaintiffs' ancestor Khairunnissa Begum. The defendants 14 to 17 are not in possession of any part of the suit property and they are not the owners of the suit property. Thus, the counter affidavit sought for the dismissal of the application.
8.(A) Learned counsel appearing for the applicants/ defendants 14 to 17 submitted that the father of Defendants 5 to 9 viz., SMAK Fakir Sahib originally filed a suit in O.S.No.1538 of 1960 on the file of the II Assistant City Civil Court, Chennai as against the 4th defendant, the Tamil Nadu Wakf Board in respect of the suit property. In the said suit, the learned II Assistant Judge, City Civil Court, Chennai held that the Wakf Board has got jurisdiction only in respect of the prayer hall in the suit property and the right of way to the prayer hall from the road and the Wakf board has no jurisdiction over the rest of the property. Against the said judgment and decree, the Wakf Board has filed an appeal in A.S.No.21 of 1964 before the first appellate Court and the first appellate Court modified the judgment and decree of the trial Court holding that the entire property was dedicated for the residence and maintenance of the male descendants of Shah Quadir and for the maintenance of the prayer hall and the burial ground found in the suit premise and the suit property will be Wakf alal aulad to the extent to which they have been dedicated for the maintenance of mosque and burial ground in the suit property. While situation stood thus, now, the present suit has been filed for declaration as against the defendants that the plaintiffs are the absolute owners of the land measuring 90 grounds comprised in O.S.No.2253, T.S.No.2024, Block No.41, Mylapore Village, Mylapore-Triplicane Taluk, Chennai District. In the present suit, one of the defendants is the Wakf Board, against whom also the relief was sought for. Therefore, one of the issues that has to be decided in this case is whether the suit property is a Wakf property or not. As per Section 6 of the Wakf Act, the issue as to whether the suit property is a Wakf Property or not, cannot be decided by the Civil Court, and the Wakf Tribunal alone is the competent authority to decide the said issue. Further, Section 85 of the Wakf Act provides bar of jurisdiction of the civil Court in respect of any dispute or other matter relating to the Wakf property, which is required by or under this Act to be determined by the Tribunal. Since the civil Court has no jurisdiction to decide the issue as to whether the suit property is a Wakf property or not, the plaint is liable to be rejected under Order VII Rule 11 CPC. In support of this contention, learned counsel appearing for defendants 14 to 17 relied on the following decisions:-
(i) (2003) 1 Supreme Court Cases 557 Saleem Bai and others vs. State of Maharashtra and others.
(ii) 2011 (1) CTC 636 Board of Wakf, West Bengal and another vs. Anis Fatma Begum & another.
(iii)2006 (5) CTC 346 V.S.B.Sikkandar vs. K.M.Khader Gani and another.
(iv) 2006 (5) CTC 341 Abdul Suban v. Syed Tharu Hussain.
(v) 2005-1-L.W.676 Salam Khan v. The Tamil Nadu Wakf Board & others.
(B) Learned counsel appearing for Defendants 14 to 17 has further submitted that when the entire suit property was declared as wakf alal aulad by the judgment dated 21.6.1966 in A.S.No.21 of 1964, now, after a lapse of several years, the present suit has been filed even though the plaintiffs are having knowledge about the judgment and decree passed in A.S.No.21 of 1964. Therefore, the present suit for declaration is also hit by limitation. Hence, on that ground also, the plaint is liable to be rejected.
9. (A) Per contra, learned counsel appearing for the plaintiffs submitted that the suit property originally belonged to Carnatic Nawab. The total extent of the suit property is 95 grounds. Out of 95 grounds, a mosque is situated in 5 grounds. Originally, the said mosque was constructed only for private prayer of Carnatic Khairunnissa Begum. The plaintiffs are the legal heirs of the said Khairunnissa Begum. The father of defendants 5 to 9 viz., SMAK Fakir Sahib, who was the priest of the mosque, filed a suit in O.S.No.1538 of 1960 on the file of the II Assistant City Civil Court, Chennai, challenging the notification dated 20.5.1959 and to declare that the suit property is not the Wakf property. In the said suit, judgment was delivered on 27.8.1963, holding that the Wakf board has got right only in respect of the prayer hall situated in the property with the right of way to the prayer hall from the road and the Wakf Board has no right over the rest of the property. Further, the learned counsel appearing for the plaintiffs submitted that the rest of the property is measuring to an extent of 90 grounds. But, in appeal filed by the Wakf Board in A.S.No.21 of 1964, the judgment of the trial Court was modified by a judgment and decree dated 21.1.1966, holding that the respondents therein and their ancestor viz., SMAK Fakir Sahib, father of defendants 5 to 9, were incharge of the property only as Muthawalli. The net result is, the respondent in that appeal has to maintain the mosque from out of the income of the suit property and is entitled to use the balance of the income for the maintenance of himself and the members of the family. Hence, the suit property will be wakf alal aulad to the extent to which it is dedicated for the maintenance of the mosque in the suit property. Thus, the learned counsel appearing for the plaintiffs, by relying upon the finding rendered in A.S.No.21 of 1964, submitted that out of 95 grounds, prayer hall is situated only in 5 grounds and the rest of the property was declared as wakf alal aulad to the extent to which it was dedicated for the maintenance of the mosque. Therefore, it is incorrect to state that the entire suit property is a Wakf property. Now, the present suit has not been filed for any declaration to the effect that the suit property is not a Wak property. Now, the dispute is only between the descendants of Khairunnissa Begum and other private individuals, who are claiming right over the suit property. Therefore, deciding the question as to whether the suit property is a Wakf property or not, does not arise in this case and there is no need to approach the Wakf Tribunal and the civil Court is having jurisdiction to try the said suit.
(B) Further, the learned counsel appearing for the plaintiffs submitted that Section 6 of the Wakf Act provides that the board or the muthawalli of the Wakf or any person interested therein may institute a suit in a Tribunal. The words "any person interested" would connote that the person must be interested in maintaining that particular property as wakf property. If any person disputes the Wakf itself, he does not come within the phrase "any person interested therein". If a person contends that the particular property is not a Wakf property at all, he cannot be considered to be a 'person interested' in the Wakf property. Under such circumstances, there is no need to approach the Wakf tribunal. Here, in the instant case, it is the claim of the plaintiffs that they inherited the suit property from their ancestors and they made a claim only as against the private individuals, who are also making claim regarding the suit property and hence, absolutely there is no need to approach the Wakf Tribunal. When Section 6 of the Wakf Act does not apply in this case, absolutely there is no bar under Section 85 of the Wakf Act to file the suit before the Civil Court. That apart, with regard to the ground of limitation, the learned counsel appearing for the plaintiffs, by relying upon the judgment reported in CDJ 2013 BHC 1736 Merit Magnum Constructions v. Nand Kumar Anant Vaity & others, submitted that the plaint can never be rejected under Order 7 Rule 11 CPC on the ground of limitation as the issue of limitation is a mixed question of law and fact.
(C) Further, the learned counsel appearing for the plaintiffs submitted that defendants 14 to 17 have filed a suit in O.S.No.2995 of 2012 on the file of the III Assistant City Civil Court, Chennai in respect of the same property as against one Kathavarayan and defendants 11 to 13 herein, to prevent them from interfering with their peaceful possession and enjoyment of the suit property. They have also obtained an interim injunction in I.A.No.7751 of 2012 on 31.5.2012. When defendants 14 to 17 themselves have filed a suit as against one Kathavarayan and defendants 11 to 13 herein in respect of the same suit property in a civil Court, now they cannot say that the plaint has to be rejected on the ground that the Civil Court has no jurisdiction to entertain the present suit.
10. (A) Learned counsel appearing for the 4th defendant / Wakf Board has submitted that in the appeal in A.S.No.21 of 1964 filed by the Wakf Board, the learned Principal Judge, City Civil Court, Chennai had clearly held that the entire 5 grounds, where a public mosque is situated, is a wakf property, and remaining 90 grounds is a wakf alal aulad. The said wakf alal aulad has been added in the definition of the Wakf Act, 1995 under Section 3(r)(iii). Therefore, wakf alal aulad is also a wakf property. As against the said finding rendered in A.S.No.21 of 1964, no further appeal was filed and therefore, the said finding has become final. Even for wakf alal aulad property, the suit has to be filed only before the Wakf Tribunal. In this regard, learned counsel appearing for the 4th defendant / Wakf board relied upon the judgment reported in (2010) 14 Supreme Court Cases 588 Board of Wakf, West Bengal and another v. Anis Fatma Begum and another.
(B) Further, the learned counsel appearing for the 4th defendant / Wakf board submitted that before filing the suit as against the Wakf Board, the plaintiffs ought to have issued a notice under Section 90 of the Wakf Act and the said notice cannot be dispensed with. Since notice under Section 90 of the Wak Act was not issued, on that ground also the plaint is liable to be rejected. In support of this contention, learned counsel appearing for the 4th defendant / Wakf board placed reliance upon the judgment reported in 1994 LW 803 Rahmath Bi and another v. The State Wakf board, rep. by its Secretary, 4, Santhome High Road, Madras-4.
(C) With regard to the factual aspect, learned counsel appearing for the 4th defendant / Wakf board submitted that apart from the findings rendered in A.S.No.21 of 1964, the Division Bench of this Court, in a tax case, made in Tax Case No.24 of 1976, filed by the Controller of Estate Duty, Madras as against S.M.Kamaluddin Falari and others, Madras, in respect of the same property held that the position of the respondent as a Muthawalli, being merely to see that the beneficiaries got the advantage of usufruct, the income did not accrue to him in any personal capacity. The right to be maintained had accrued to the male descendants of the original grantee, as a result of creation of the wakf. Thus, the suit property was found as a Wakf property by the Division Bench. Therefore, the civil Court has no jurisdiction to try the present suit.
11. Learned Special Government Pleader appearing for defendants 1 to 3 submitted that as per the revenue records, the suit property is a burial ground. One of the prayers in the present suit is, to issue a direction to the official defendants to issue a patta in favour of the plaintiffs for the suit property. As per Section 14 of the Patta Pass Book Act, there is a bar to approach the civil Court. Therefore, the plaint is liable to be rejected.
12. Learned counsels appearing for defendants 5 to 9 and defendants 10 to 13 have also made their submissions stating that the suit property is not a Wakf property.
13. I have heard the submissions on all the sides and perused the materials available on record.
14. The present application under Order VII Rule 11 C.P.C. has been filed by defendants 14 to 17 mainly on the ground that the suit has been filed for declaration, declaring that the plaintiffs are the owners of the suit property. Since one of the defendants viz., 4th defendant is a Wakf Board, one of the issues that has to be decided in this suit is, whether the suit property is a Wakf property or not. Hence, the dispute with regard to the Wakf property cannot be decided in the civil Court and the plaintiffs have to approach only the Wakf Tribunal. With regard to this, learned counsel appearing for defendants 14 to 17 has also relied upon Section 6 of the Wakf Act. Further, he has submitted that as per Section 85 of the Wakf Act, there is a bar of jurisdiction to the civil Court in trying the dispute with regard to Wakf property.
15. Per contra, according to the plaintiffs, the relief of declaration was mainly sought for as against the private individuals, who are also claiming right over the suit property. Therefore, absolutely there is no need for approaching the Wakf Tribunal.
16. In this regard, it would be appropriate to refer an earlier legal proceeding that had taken place in respect of the same property. The factual aspects of the earlier proceedings are as follows:-
In the year 1960, the father of defendants 5 to 9 viz., one SMAK Fakir Sahib filed a suit in O.S.No.1538 of 1960 to declare that the notification issued by the Wakf Board dated 20.5.1959 in respect of the present suit property as null and void and to declare that the property is not a Wakf property. The said suit came to be decreed on 27.8.1963, declaring that the extent of property, where the mosque is situated alone is the Wakf property and for the rest of the property, the Wakf Board has no jurisdiction over the same. Aggrieved over the same, the Wakf Board has filed an appeal in A.S.No.21 of 1964, in which the first appellate Court has modified the judgment of the trial Court to the extent that the respondent in the appeal viz., the father of defendants 5 to 9 has to maintain the mosque from out of the income of the suit property and is entitled to use the balance of the income for the maintenance of himself and the members of his family. Hence, the suit property will be wakf alal aulad to the extent to which it was dedicated for the maintenance of the mosque in the suit property. The relevant portion of the said judgment is as follows:-
" 30. ... The suit property will be wakf alal aulad to the extent to which it is dedicated for the maintenance of the mosque in the suit property.
31. It necessarily follows that the notification issued by the Wakf Board in respect of the suit property to the extent to which it is inconsistent with the view I have taken of the suit property is void.
32. In the result the appeal and the cross objections are allowed and the judgment and decree of the trial court are modified as follows: The suit properties had been dedicated concurrently for the residence and maintenance of the male descendants of Shah Quadir and for the maintenance of the prayer hall and the burial ground found in the suit premises and they are Wakf alal aulad to the extent to which they have been dedicated for the maintenance of mosque and burial ground in the suit property. The notification is to the extent to which it is inconsistent with the above finding is void. Under the circumstances I direct each party to bear its or their own costs here and in the Court below. "
Therefore, from the above judgment, it could be seen that the property where the mosque is situated has been declared as wakf property and the rest of the property has been declared as wakf alal aulad.
17. According to the plaintiffs, the mosque is situated in 5 grounds. Therefore, out of 95 grounds, 5 grounds alone is wakf property. Now, the dispute is only in respect of remaining 90 grounds. Therefore, there is no need to approach the Wakf Tribunal. But, according to the judgment passed in A.S.No.21 of 1964, the remaining area, which was dedicated for the maintenance of the mosque, was declared as wakf alal aulad. Therefore, the remaining 90 grounds, which was declared as wakf alal aulad, is also a wakf property. No further appeal has been filed as against the said judgment made in A.S.No.21 of 1964. Therefore, the finding rendered in A.S.No.21 of 1964 that the suit property measuring to an extent of 90 grounds is Wakf Alal Aulad reached finality. The word 'wakf alal aulad' have been added in the definition of the Wakf Act, 1995 under Section 3(r)(iii). Hence, even for filing the suit in respect of property of wakf alal aulad, the Wakf Tribunal will alone have a jurisdiction since it is a Wakf property. In this regard, a reference could be placed in the judgment relied upon by the learned counsel appearing for the 4th defendant / Wakf board reported in (2010) 14 Supreme Court Cases 588 Board of Wakf, West Bengal and another v. Anis Fatma Begum and another. Para 7 of the said judgment, it has been held as follows:-
" 7. The dispute in the present case relates to a wakf. In our opinion, all matters pertaining to wakfs should be filed in the first instance before the Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 and should not be entertained by the civil court or by the High Court straightaway under Article 226 of the Constitution of India. It may be mentioned that the Wakf Act, 1995 is a recent parliamentary statute which has constituted a Special Tribunal for deciding disputes relating to wakfs. The obvious purpose of constituting such a Tribunal was that a lot of cases relating to wakfs were being filed in the courts in India and they were occupying a lot of time of all the courts in the country which resulted in increase in pendency of cases in the courts. Hence, a Special Tribunal has been constituted for deciding such matters. "
Thus, all the matters pertaining to Wakf has to be filed only before the Wakf Tribunal and not before the Civil Court or before this Court straightaway.
18. Further, it has been submitted by the learned counsel appearing for the plaintiffs that in respect of the same property, defendants 14 to 17 have filed a suit in O.S.No.2995 of 2012 on the file of the III Assistant City Civil Court, Chennai as against one Kathavarayan and defendants 11 to 13. In my considered opinion, the filing of the said suit will not give any right to the plaintiffs to maintain the present suit before this Court. Further, in my considered opinion, since the suit property was already declared as wakf alal aulad, the judgments relied upon by the learned counsel appearing for the plaintiffs cannot be made applicable to the facts of the present case. Though the learned counsel appearing for the plaintiffs submitted that the declaration prayer was made mainly as against the private parties and as such, there is no bar for the civil Court to try the suit, I find from the prayer made in the plaint that the relief was sought for by the plaintiffs not only as against the private individuals but also as against the Wakf Board, the fourth defendant in the suit. Further, from the materials produced by the fourth respondent, it could be seen that the suit property has already been declared as Wakf alal aulad property in the earlier legal proceedings. Hence, I am of the opinion that the issue involved in the suit can be tried only by the Wakf Tribunal and not by the civil Court.
19. In view of the discussions made above, I am of the opinion that the plaint in C.S.No.551 of 2013 is liable to be rejected and accordingly, rejected and the present application is allowed. No costs. Consequently, all the connected applications are closed.
sbi