St Gregorious Orthodox Cathedral vs Aga Ali Asgar Wakf on 2 June, 2008

[Cites 10, Cited by 3]

Karnataka High Court

St Gregorious Orthodox Cathedral vs Aga Ali Asgar Wakf on 2 June, 2008

Equivalent citations: 2008 (5) AIR KANT HCR 350, 2008 A I H C 3647 (2008) 6 KANT LJ 358, (2008) 6 KANT LJ 358

Bench: D.V.Shylendra Kumar

--....,  ................. nuan Wu." VF mmmmm rm-an cmm or KARNATAKA HIGH COURT or XARNATAKA man com'

my

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nu ms area oomrr or x.mrurr.u¢A AT 
DATED mxs ms 2!" DAY or     ~ _

1-rm Horn: ma. Jtxsnés om  5

own. REVISIOH ~? $?I'1TI( )K 

Between:

ST. GREGORIOUS OR'I'HO_JOX._  

CATHEDRAL, ' . V V

N0.18,HOSUR"RQAD.v." 1  - 

RICHMONDTOWK;    

BANGALORE» 5::';ja'o1.0254~_   

REP BY rrs H,r3N"'~rR.EAsUR_E-22..  ,

MR, MATHEW'-GHANDY'.-V  ~ _   PETITIONER

M T' "  Rwy Aiyappa. Adv. for
 " ' _ 'id;-5.  Associates, Advs.]

1. . . , AGA 11%;: ASGAR WAKF',
 A WAKFREGISTERED WITH
'~ rrna. KARNA'FA"KA STATE BOARD
'OF WAKFS UNDER THE PROVISIONS
~. _ 'V .012' fI'HE 'wax? ACT, HAVING rrs
vv..Qv§«'_P'lCE}?%"AT NO. 15,

HOSIJE ROAD, RICHMOND TOWN,
BANGALORE -- 560 025,

"REP BY ITS comuxssxomsn

" .391. am. BADAMI.

's/o sm. AKBAR ALI BADAMI,
AGED ABOUT 52 YEARS,
RESIDHIG AT BANGALORE.

"E2. KARNATAKA STATE BOARD OF WAKFS,

A BODY CONS'I'I'I'U"I'ED UNDER THE
PROVISION OF' THE WAKF ACT, 1995,
HAVING ITS OFFICE AT DARUL
AUKHAAF, NO. 6,

CUNNIGI-{AM ROAD,

BANGALORE ~-- 560 052,

.53..»-.- ._..-- VIVV3 -_



' -W" ' ~vv-\tfe..w;v- nnnlvninnn ruun uuum Ur ISAKNAIAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUR1

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plaintiff had sought for the relief of peI'mane13$,V_iI1;'jt:11ction

to restrain the ﬁrst defendant in the  

had owned the suit schedule prope1fty,fiis  age-;n:s'i 

from interfering with the  of   of "

Shia Muslims to reach  
to the plaintiff   to reach
which property the   were to pass
through a_    in the suit
mduigloiiqieaey demam.

3.  Theii b also sought for further relief of
restraintji order   from putting up a gate

 ofthe mssage and for incidental prayers

V 1    injunction.

  ex parte ad interim order of injunction had
 AA  initially, an application flied by the first
 ' defendant to vary this order of temporary injunction

 through an application under Order XXXIX Rule 4 of the

CodeofCivi1PI'ocedurecametobedismissedintern1sof

the impugned order dated 10.6.2005. 



"""'-°-e  u..-mu.-unm-u niun \.\JU!(I Ur ISAKNAIAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT

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5. It is aggrieved by this order, the petition by the ﬁrst defendant.

6. The first defendant had it tribunal lacks it Wtl"V:1e suit, particularly, as the qnestioii admittedly belonged to the i was not a Wald' property and: euit could not have been is a tribunal which nadttiie {to exclusively deal with the wakf to Wald' and not with other pI'cp6¥'"55- = ' ., objection was that the subjwt H " suit did not come Within the scope of either sn'he<.§eetions (I) or (2) of section 83 of the Act and it * ii_therei'o1'e the tribunal cannot entertain the suit for grannng any relief temporary or on regular basis.

8. The tribunal had formulated the question regarding the maintainability as a preliminary point and having a/ "'" """"l-A"{" ""'""""'*""" '"'"="* 'vvvnl var Mmntaaaim mun count OF KARNATAKA H16!-I COURT OF KARNATAKA I-l|Gi~l COURX E i -5- answered this in favour of the plaintiff and the fast defendant, had proceeded to for ganting the relief soug,i1t~ for confirmed the ad interim exlh 5 parte earlier.

9. Civil revision----4.'_'.f;'etit:loI:gV admitted. The respondents had "'l'he plaintiﬂ --- Wald' and uof"Wakfs which was the second are represented by Sri. "learned oounsel.

10_ . _, matter been set down for hearing, I have Ms. Aiyappa, learned counsel for the Sri. Prabhuling K Navadgi, learned counsel therespondents.

2 V» 11.' The contention of learned counsel for the petitioner that the tribunal lacked jurisdiction to entertain a suit ' of the present nature; that the property admittedly belonged to the ﬁrst defendant; that the plaj11tiﬂ' if at all had only a right of easement which is also not disputed; V WU"! IMF I\I'"\iW"\il'\I\f'I l'II\5r3\.J-JlJKi,_.l.;f "l.'ﬁI",'!,"" rib?' '-'JQK _ _ A' ._: 3 UP KAKNAIAKA HIUH K.-'JUN! K)!' KAKNAIAKA HIUH QUUKI WI' KI'\KE'lI'\i.F\I\.H l'NL'ﬂ'I LUUKI (4) ,3- shall deal with the appliomion stage which was 'reached been so transferned, Tribunal is of opirzionwthat :'t_ is in the interests ofjaastioestcira deal application afresh.

Every "

person, who beu a the below that:e"of ct or Civﬂ Judge, Ciass of every either by deemed to be a civil?

the same powers as ~ edwby a civil court under ~ Procedure, 1908 (5 of a suit, or executing Ct anything contained in .._the Code" ''''' " of Civil Procedure 1903 (5 of "$908), the Tﬁbunal shall follow such an (3) dectston ofthe Tnbunalshall befinal and binding upon the parties to the applioationanditshallhavetheforceof adeaeenladebyacxtwilcmut The execution of any deasion of the Tribunalshallbemadebytheciviloaurt to whtchsuch decision is set for execution inacoordanoewiththeprovisionsofthe CodeofCivilProcedure, 1908(5of1908).

,v_.. ................. .-mm Wu... w Mmnmm men COURT es xAmAm<A Haewceum es KARNAEAKA masseuse -9- (9) No appeal shall tie against any or order whether interim or given or made by the V Provided that a Hoard or any canﬁvret and examine records relrm*3ag_:'to any dispute, er other the its'e£.*--'..as" to the other buts-r asj may think ﬁt. ' and go before the tribumal the jurisdiction of civil courts is ousted 85 of the Act are such matters eiqtlieiﬂyienumezated in sub-sections (1) and (2) 1 of the Act.

.' V_ of learned counsel for the petitioner AA on the premise that it is only when the subject V _ is wakf property and the disputes relate to the h éwald' or property claimed as a wakf property that the Tribunal gets jurisdiction and the seeps of the subject matter which can go before the tribunal in terms of it stetmta W: mm -12- him in respect of anything which is good faith done or intended to be donegm. -. t pursuance ofthts Act or any rules "

(4) The list of walqf unless'-serif... is modgfied in pursuance of a'd_ec;'s1bn orthe 2 V' (5) On and from .ﬂ'E.E,_' of Act in a State, arjoﬁuer legal proceeding shall' or commenced in=21'*cou.z1 in relatiqn"':q1'--ang; question' to in dispute:

* (1)9: of this Act, 'V any arises, whether a particular specfed as wakfpmperty in a V. «qfn-*ak_:fs is walg"-property or not, or Cl wakfspecﬁied in such list is a wakfora Sunni wakj} the Board or mutawalli ofthe wakj; or any person interested therein, may apply to the Tribunal having jurisdiction in relation to suchpmperty,forthedecisionQfthe question and the decision ofthe Tribunal thereon shall beﬁnal:

au-nut:-*\|.r"\I\.r1 nuwn uuunl ur RHKNRIRKA HIGH COURT OF KARNATAKA HEGH COURT OF KARNATAKA HIGH COURT"

Provided that -

- -UV-yuan': V' (at) in the case of the list of walcfs relatingtoanypartofthestateand published cﬁer the commencement I ofthisActnosuch applicationshall I be entertained after the expiry of V wu-

Mllllﬁl vr nnnnnannn ﬂlvn MVUKI ,5-Ir nnluvnlnnn nnan HQJUIH Ur IEHKNAIRRA till.-RI i.sUUK¥ U!' IKAKNAIA '" ' ' ' KR l"!I(.'.1tI"E LUUKT Q? KARNATAKA H¥GH'COURﬁ -13- one year from the EV' publication ofthe list ofwﬁfs; Y (13) in the Case Of the relating to any pa.rt'of'_tPce';§:xte"an;1 published at} any a, j Peﬂbd of one 93'?

preceding __the " jof"

this Act, arc ' may be by rm-tuna:

Provided where any bye civil court in a V _ " " ' 'ez,¢i't'-(ff; , _ before such " ¥:,__ the Tribunal shall Tribunal has no A * reason of the provisions of " (5), no proceeding under thﬁ sezrtionyén respect of any walg' shall be .. by any court, tribunal or other by reason only of the pendency 'A " 'foVf5~any suit, application or appeal or other 5 fl-orooeedr'ng arising out of any such suit, application, appeal orotherprooeeding.

(3) The chief Executive omoer shall not be madeapartytoany applioationunder (1} (4) Thelfst ofwalgk andwhere anyswchlist ismodtjﬁedinpursuanceoj'adea'sionof theﬁibunalundersub-sectitm (1), thelist assomod1;ﬁed,$ha£lbeﬁnaI.

va/ ........,............ ulnar: Wu... us" nnxmmaltn men COURT or KARNATAKA. HIGH COURT o:= KARNAYAKA i-HG!-i COURT

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or other property encroached upon A4 mutawalli of the wakf " _ . .___j and if so understood, dispute" . ate"

concerning a right of easemet*;t__ olfthe a A property admittedly cannot be constzwgede as.=ii" scope of either sub-sections 83 of the Act and therefore civil court which has the £1 dispute of such nature if oneiiléot and as such the tribunal snougictnot' have the suit.

In learned counsel for the petitioner has on the following two single Bench % * .titv:isiotés--3_oi'>.tt1e Madras High Court.

I. V¥".!\\T.Vt."ALA.l\fI as. P. LAKSHAVATSALU CHETHAR L' » fepozted in AIR 2001 moans 257 'MALI Amaze AND woman as. zmemsxzanar sozmar smear JAMAITI Maw PA.Rl'.PALA.NA Cﬂﬁﬁﬁ AND OHERS' reported in AIR 2001 MADRAS 431.

E F m :3 O U I 9 :1: § 5 < 2 Ir.' 5 I8.

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9. 9

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E E 5 I P E 5 i'f i ' g H > 3 E ..}_5-

16. While the first decision is relied eeiltend that even on the pleadings, no case. ..

contend that there was a disj2.ute_-Ainfiveiéietence"iwitjieiiiwasi-.A I required to be taken eitfierebefeifeii' the tribunal as the defendantiei iizad not only admitted the right of the plaintiﬁ' but also hadeinv' in the Written statemeigt in preventing the of easement over the appiveachi the defendants. In this regard, Jipetitioner ---- first defendant has tile ettentiozi of the court to parephwl 1 of the ' ;V'V61'Ifitt£;4l'IiSg'{$'1';t3II1eI1t which reads as under:

"1-Ii; Re: Plaint para 10: This Dejkndant has ,_vnez2e*ratanypointoftf:neobstr1¢ctedtI1euseQf ,. 't_heﬁghtofwayasaHeged.ThisDefendant£s '=puttingupagateattheEastemer:dofthe passagvewhichliesfaczirxgthel-IasurR_oczdc:sa matterofprotectionofitspmpertyandto preventthepassagewayﬁombeingusedasa plaoetoparkvehicIes.1hepe1son.swhouse theAshurkhanaarefreetoenterthegateand proceedtotheAsfu4rkhana. AR m theoentraryaredenieciThedec1'eeinO..S. No. 1I38of1987infactenurestothebeneﬁtofthe Plaintﬁ'IHowever§"thePla1'nti_ﬂ"does notwant " "'"'" ' ""'" ' """"""l'A"',- """"'"'"""H*\H "FUN I-UUKI Ur KARNA¥AKA HIGH COURT OF KARNATAKA HEGH COURT OF KARNATAKA HIGH COURV -19- passage and the pathway ABCD suit schedule, the plaintiff will not be in a en'3;oy,or make use of its own pmpertyend the exercise of the right of »wm§1d "

denial of a property the" 'and; such it should be taken. 'that _esllT1'sas' a dispute relating to a wakf matter is squarely I within the julgsdicedrl oonstituted for the 'Act and the tribunal has «:E%1?IteI"tam" l 1ihe'ma"lter.

20. 'I12. by learned counsel for the respondents in the suit that the object of the Act a special tribunal to deal with all disputes ~. properties is not only to ensure that all siioh'--lidisgoutes involving 3 Walt!' and wakf properties are l' " msoleed by a common specialized forum, but also for expedient disposal of the cases and resolution of the disputes; that a jurisdiction of this nature conferred exclusively on the tribunal cannot be in any Way whittled down by giving a limited meaning to the word 'wakf' _g1_ taken by the Iearned single Judge of the High Court in ALI AKBAR': case supra, tile submission made on behalf of__th.e_ therefore urges for dismissal it

23. I have bestowed to the rival submissions . ._ the" i j' L' A perused the records and the relevant for the purpose 0;' extracted in the

24. state the Wakf Act, 1995 is a created a special tribunal in tCE'331SA of the Act for resokution of disputes . " and management of the wakf I The main object is to ensure that all Adisptttesi to wakf and Wakf properties are within .. ?ﬂ_'1e.'domain of the tribunal and to that extent the ' jurisdiction of the civil court is ousted under section 85 of the Act.

-uwuwaa Ir! In-IrIm.uva"su7"II\l-I lllﬁﬂll l\l1H.I'lQ3oP\I\l1 !1I\$rI HUUKI K3."

25. The ouster of jurisdiction under section 85 is with reference to the provisions of section 83 of the Act i.e., the 92/, {......... V. nu-Ii\IIr|Irl|\r\ a man \.\J1..n\':tA _».ag_:-- Tu-\lS.lV.l-U!-\I\..H nusﬂ KJJUKI Ur IKAKNAIAKA HIGH COURT OF KARNAIAKA HIGH COURT OF KARNATAKA HEGH COURT -33- jurisdiction of the civil court is ousted only in _.sa~~as the matters which are brought within the tribunal and not a general ouster.' subject matter is within' the .:Vl:'on(1)"" J or sub--section(2) of sectio1i:3'3»of of l the Act is not attI'aCtCd'.~_ In tfriethe question that is to be V'i;l1vg%;~"(_1ispute relating to violation 9; is sought to be suit brought before the scope of section 83 of the = V As' by learned counsel for the ' V:V'pet1t.io13e1r;"'the scope of the disputes with regard to the . " should be understood in the context of the fitovisions, particularly, sections 6, 7, 32(3) and 2 * V5"-=l.(3)"of the Act. A reading' of these provisions indicate that the stress is always on the property belonging to the waktf as already notiﬁed and contained in the list of Wald' properties or a wakf property which was asserted and used as a wakf property hitherto. ECOURT OF IKARNAIAIKA I-IIUI1 l...'UUKI Ur IKAKNHIHIKH ruun uuulu VI' BMKIVHIHRH r'llu'l'I uvulu vr MNNEWMIHRM irlnan uwuns vr'nnn:1nunnn Mug"

.5 'rV'-"He

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2'7. In the present case, the property in "the main property is admittedly the defendants and because of esm,ssNgvaag;

learned counsel for the Vxespondents te' 'the dispute Within the scope of ﬁne in aid the also part of a pmperty right in 'an? and seeks to draw of 'immovable propergyi' 3(26) of the General claizses ' _ See'iio_i1 General Clauses Act, 1897 reads * v_.{.9.6)..-- ' 'immovabie property' shall include land, ' beneﬁtstoarise out afland, and things attached to the earth, or pennanently fastened to anything attached to the earth,'

29. Even on an examination of section 3(26) of the General Clauses Act, 1897 , it does not necessarily indicate that a right of easement can be brought Within the E 5 s i N" 'uvufi. ""§ """"""""" """" '*"'-W W mmamm user: COURT or KARNATAKA HIGH COURT or KARNATAKA HIGH comm -25- disputes relating to the ownership of the _ as to whether it belongs to Wald' or otherwise.

30. Though Sri. Navadgi, the respondents -- plaintiff would provision as it occurs in -- 83 of the Act would msisss A qtiestion or other Inatters relating to taken before the tribunal? ,1 cannot be accepted as for the petitioner, it tn' ejusdem genens in the context of the 6, 7, 32 and 54 of the Act. The wakf property and as is sought to be e in terms of sections 6, 7, 32 and 54 of the Act H " to understancl the scope of the words to a Wald' or Wakf property and the rig' ht it ~ otia ﬁutawalli or other interested person of a wakf or any other person aggrieved by an order made under this Act to take such dispute relating to the wakf before the Tribunal, the present is not a situation involving any order passed by any person functioning under the authority of the W :3 D 9 3 E 1:.

E5 '1 2 H S L. 3 § 3 3 .4 1:

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2. -35- While, it is even difﬁcult to say that the piaiI1tii'f real cause of action to bring a suit before the trfbunjallhciior court in terms of the prayer soughtp fofi appears the defendants had J by the foilowers of the not be examined ill" epﬂetition'-Aasyil am of the view that a dispute of action as was pleaded covered by section 33 of the lacked jurisdiction to the brought before it.

31. Section xS3."' is a provision which seeks to out the jurisdiction of the civil court and ' jurisdiction in favour of the tribunal. While " provision of this nature, there is no scope for enlarging the meaning and understanding of the words " seeks to ouster the jurisdiction of the civil court as any provision ousting the jurisdiction of the civil court should be strictly construed and cannot be unduly enlarged and unless the subject matter is squarely covered within the limited jurisdiction sought to be carved i/ IQURT OF KAKNATAKA HIGH COURT QITKAIKNATAISA HIGH Luulu Ur hnnlwnannn nzwn Mvu ...27..

out, it cannot be taken to be within the juI'isdic1r.:ioI_ 1 ~of the special tribunal either by the process of or through a logical process. A

32. In the circumstanoee, allowed. The impugned 2 on IA No.5 in os or one Presiding Officer, Kamanaka iﬂongaiore Division, Bangaxoge, in os No.6 of 2005 itself tthe Wald' tribunal did not havethe juﬁeyiioﬁohovverxnertain the suit. 33; » It plaintiff ----- respondents to work out if are aﬁected, in terms of any other % 'provision erlaw.

Tudgé

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