AFR

Court No.19

Case :- SECOND APPEAL No. - 604 of 2015

Appellant :- Nizamul Hai Alias Titu
Respondent :- Mohammad Ahmad And 29 Others
Counsel for Appellant :- A.K. Gupta,Tarun Verma
Counsel for Respondent :- Punit Kumar Gupta,M.A.Qadeer,Manish
Goyal

AND
Case :- SECOND APPEAL No. - 658 of 2015
Appellant :- Nizamul Haq Alias Titu
Respondent :- Sri Zikrullah (Dead) And 33 Others
Counsel for Appellant :- A.K. Gupta,Tarun Verma
Counsel for Respondent :- Punit Kumar Gupta,M.H. Qadeer

Hon'ble Ashwani Kumar Mishra,J.

1. These two connected second appeals are directed against the

appellate order passed by the Court of IIIrd Addl. District
Judge, Gorakhpur in Appeal No. 83 of 1992, dated 23.3.2015,
as well as counter objection registered in Civil Appeal No. 91 of
1996, both of which have been dismissed. The appellate court
has held that the prayer of respondent no.1/4 ( appellant here
in) to declare him as Mutawalli of the Waqf, is not maintainable
before the Civil Court.

2. Shorn of unnecessary details, basic facts giving rise to filing of

the appeal are that the father of the sole appellant Haji Abdul
Hai instituted Original Suit No. 64 of 1964 against the
defendants, who are respondents herein, as well as those
claiming through them. Sunni Waqf Board, through its
Secretary was also impleaded as Defendant No.16 in the Suit.
In the suit, a prayer was made that the plaintiff ( father of the
appellant herein) be declared as the Mutawalli of the Waqf
properties given in list-A and list-B, on the basis of the Waqf
deed dated 4.8.1931. Relief of injunction was also claimed
against the defendant Nos. 4,5 & 8 as also their successor in
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interest, from interfering in the possession of the plaintiff as

Mutawalli. Alternatively, it was claimed that in case the plaintiff
is found to be out of possession of any part or whole of the
property, then possession of such property of the waqf be
delivered to the plaintiff. It appears that certain suits were also
filed by the tenants of the property said to be belonging to the
Waqf, which were all consolidated together. Trial court framed
as many as 36 issues. It is not necessary to mention all such
issues but it would suffice to note issues no. 1,2,3,4,5,6,15 and
25, as formulated which are reproduced below:-

“1. Whether, the defendant no. 1 had created any valid

waqf with respect of the properties given in list-A of the
plaint?
2. Whether, the defendant no. 1 executed any valid
waqf deed on 4.7.1931? If so, its effect?
3. Whether, Waqf in question was acted upon and
whether the defendant no.1 had been in possession of the
properties in suit as Mutawalli?
4. Whether, the properties given in list-B at the foot of
the plaint, were acquired by the defendant no.1 with the
income of the properties as mentioned in list-A? If so, its
effect?
5. Whether, the defendant no. 1 was still in possession
of the property in dispute till he died?
6. Whether, the plaintiff is entitled to be appointed as
Mutawalli with respect to the properties in suit? If not which
of the defendant is entitled of such?
15. Whether, the defendant no.1 validly gifted the
properties in suit to defendant Nos. 4,5 & 6, if they are in
possession of the properties in suit? If so. Its effect?
25. Whether, the plaintiff is illegitimate grand son of
Abdul Samad? If so, whether he is not entitled to be
appointed as Mutawalli?”

3. Parties led their oral and documentary evidence in support of

their respective cases.

4. Trial court vide its judgment and decree dated 24.5.1982

decreed the plaintiff's suit in respect of properties enumerated
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in list-A, whereas the suit was dismissed in respect of the

properties enumerated in list-B. Operative portion of the
judgment of the trial court reads as follows:-

“The plaintiff's suit No. 64of 1964 is decreed in respect of

existing properties of List A given at the foot of the plaint.
The plaintiff is appointed as Mutawalli of these properties.
The plaintiff shall also be entitled to get possession over
these properties as Mutawalli. The defendants are
restrained from interfering in the work and management of
the plaintiff of these properties as Mutawalli.

The suit in respect of the properties in List-B is dismissed.

In view of part succession the parties shall bear their costs

of this suit.

Suit Nos. 83 of 1961, 389 of 1964, 513 of 1966, 347 of

1967, 482 of 1968, 661 of 1968, 1084 of 1968, 88 of 1969,
266 of 1969, 384 of 1989, 420 of 1969, 630 of 1969 and
839 of 1977 are hereby dismissed. Parties are directed to
bear their costs of the suits.
(M.K. Miattal)
Civil Judge, Gorakhpur
24.5.1982”
5. Aggrieved against the decree of the trial court in favour of the
plaintiff of the Original Suit No. 64 of 1964, defendants filed an
appeal before the High Court being Appeal No. 457 of 1982,
which was subsequently remitted to the Court of District Judge
on account of change of pecuniary jurisdiction. The said appeal
appeal was renumbered as Civil Appeal No. 83 of 1992.

6. Some of the other defendants, who had not joined as appellant

in Civil Appeal No. 83 1992 filed another appeal under Section
96 of the Code being Civil Appeal No. 91 of 1996. In the
subsequent appeal, a cross objection was filed by the plaintiff-
appellant, raising his grievance in respect of rejection of his
claim with regard to properties enumerated in list-B. The
subsequent appeal No. 91 of 1996 had been dismissed in
default some times in the year 2001 and the cross objection
filed by the plaintiff, therein, has now been decided by the
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impugned judgment of the appellate court.

7. While the two appeal Nos. 83 of 1992 and 91 of 1996, as well as

cross-objection therein of the plaintiff was pending
consideration before the appellate court the original plaintiff
died on 30.4.1999. The nature of dispute raised, thereafter, has
apparently taken a turn. An application for substitution was filed
by the present appellant, claiming himself to be the legal heir
and the only son of the original plaintiff seeking his
appointment as Mutawalli. This application for substitution was
objected by the defendants on the ground that the present
appellant is not the son of the original plaintiff. The appellate
court finally adjudicated the issue as to who would be the legal
representative of the deceased plaintiff vide its order dated
25.11.2004. The order dated 25.11.2004 was challenged by one
Ahmad Kamal, respondent No. 5/1 in the present appeal, by
filing writ petition No. 862 of 2005 which was dismissed on
21.7.2007. Operative portion of the order passed in Writ Petition
No. 11862 of 2005 is reproduced below:-

“From the record it is apparent that the substitution

application of the petitioner has been allowed by the
impugned order and he has been impleaded. However, he
has contended that the observation of the Court holding
the respondent no. 1 as the legal representative of Haji
Abdul Hai should be quashed. From the record it is
apparent that the petitioner never filed any objections to
the application of the respondent no.1 nor claimed to be
her heir. Once the petitioner did not contest the application
of the respondent no.1, he cannot be allowed to open the
issue before this Court . His contention that the
respondent no.1 would lay claim on the property appears
to be misplaced before impleadment and substitution only
give a right to the person to take part in the proceedings
but that by itself will not create any right in his favour,
which has to be established by bringing on record
evidence to that effect after hearing the parties on merit.
Thus, in my opinion, this writ petition is misconceived and
is accordingly dismissed.

However, as the appeal is pending since 1992, the

appellate court is directed to decide it expeditiously,
 5

preferably within a period of six months from the date of

submission of a certified copy of this order”.

8. The appellate court vide its order dated 25.11.2004 held that
the present appellant as well as three other persons namely
respondent Nos. 3/1,3/2 and 3/3 were the legal representatives
of the deceased plaintiff.

9. While the appeals, aforesaid, were pending, the present

appellant appears to have approached the respondent no. 10
i.e. U.P. Sunni Central Waqf Board, Lucknow under Section
32(g) of the Waqf Act, 1995 for him to be appointed as
Mutawalli, consequent upon the death of his father, in view of
provisions of Waqf Deed of 1931, vide his application dated
7.5.1999. The application was initially allowed on 20.9.1999
but subsequently the said order was recalled by the Board on
4.9.2000 and it was held that as the issue of paternity of the
appellant had been questioned, which was engaging the
attention of the appellate court, as such, the appellant cannot
be appointed as Mutawalli, so long as such issue is not
adjudicated. The order of the Waqf Board dated 4.9.2000, in
this regard, was subjected to challenge by the appellant by
filing Writ Petition No. 47155 of 2000. The writ petition was
dismissed with the observation that the petitioners may
approach the Tribunal created under Section 83 of the Waqf Act.
The order passed by the Division Bench of this Court dated
26.10.2006 in Writ Petition No. 47155 of 2000 is being quoted
below:-

“This is a writ petition against the order dated 4.9.2000

rejecting the application of the petitioner and appointing Sri
Ahmad Jamal as Mutawalli.

We have heard learned counsel for petitioner and learned

standing counsel for respondents.
 6

The petitioners may, if so advised, approach the Tribunal

under Section 83 of the U.P. Waqf Act.

With this observation, the writ petition is dismissed”.

10. It appears that in view of the observations made by writ court,

the present appellant approached the Tribunal created under
Section 83 of the Act by filing Appeal No. 265 of 2007,
challenging the orders passed by the Waqf Board, rejecting his
claim for appointment as Mutawalli on the ground of being son
of previous Mutawalli i.e. plaintiff of Original Suit No. 64 of
1964. However, during the course of submission, it has been
informed by the learned counsel for the parties that the Appeal
No. 265 of 2007 has been dismissed in default on 24.5.2014. It
further appears from the record that a fresh claim was raised by
the appellant for his appointment as Mutawalli, on the basis of
the order of the appellate court dated 25.11.2004, recognizing
him as son and legal representative of the plaintiff, for his being
appointed as Mutawalli. This application was again rejected by
the Waqf Board on 21.10.2010, essentially on the ground that
the issue of paternity of the appellant was disputed and had
been engaging the attention of the appellate court, as such, he
cannot be appointed as Mutawalli. This subsequent order of the
Board was again subjected to challenge in a writ petition before
this Court being Writ Petition No. 70000 of 2010. Division Bench
of this Court noticed the relevant facts as well as the previous
orders passed, and after noticing the pendency of proceedings
of appeals, proceeded not to interfere with the order of the
Waqf Board and the writ petition was dismissed. However, while
dismissing the writ petition, it was provided that the pending
appeals be decided within a period of 6 months from the date of
presentation of certified copy of the order dated 9.4.2014 and
till such time when the appeal itself is decided, all parties were
restrained from alienating any property of the waqf. It would be
 7

relevant to reproduce the observations made by the Division

Bench of this Court, which dealing with the claim of the
appellant, based upon the order of the appellate court dated
25.11.2004;

“In the light of the aforesaid, we are of the considered

opinion that an order on the substitution application under
Order 22 Rule 5 of the C.P.C. is only for the limited purpose
of representation of the estate of the deceased in a pending
proceeding for the purpose of adjudication of that case.
Such determination for such limited purpose does not
confer on the person held to be the legal representative any
right to the property, which is the subject matter of the suit
viz-a-viz other rival claimants to the estate of the deceased.
Since there is a dispute as to who is the legal
representative, a decision in this regard is required to be
taken on such dispute. At the present moment, the lower
appellate court has substituted the petitioner as well as
respondent No.3 as legal representative of the plaintiff.
When the question of legal representative is determined by
the lower appellate court and such legal representative is
brought on record only then it can be said that the estate of
the deceased is now represented.

In the light of the aforesaid, the Court is of the opinion, that

the petitioner does not get any right to be appointed as a
mutawalli at this stage pursuant to the order of the lower
appellate court dated 25.11.2004, inasmuch as, the order of
the lower appellate court dated 25.11.2004 was only for a
limited purpose of representation of the estate of the
deceased for the purpose of adjudication of that case.

In the light of the aforesaid, it is not necessary to deal with

the other questions raised by the learned counsel for the
respondents.

The writ petition fails and is dismissed with the direction to

the lower appellate court to decide the appeal pending
before it within six months from the date of presentation of
a certified copy of this order.

We further direct that till the decision of the lower appellate

court, respondent No.3, but will not alienate any property of
the waqf.”

11. It is in furtherance of the directions issued by this court in Writ

Petition No. 70000 of 2010 that the appellate court proceeded
to hear the appeal and decide the same vide its judgment dated
 8

23.3.2015. The appellate court took note of the 36 issues,

which had been framed by the trial court and it formulated
following 5 questions for determination in appeal, which are as
Under:-

“1. Whether the finding of the court below, holding the

Waqf created by the Waqf deed of 1931 and 1956, is
valid legally constituted waqf, which was in fact acted
upon, has been correctly recorded?.
2. Whether the Court below has correctly granted the
relief ?
3. Whether cross objection preferred by the
respondents in First Appeal No.91 of 1996 is maintainable
as such?
4. Whether, the finding of the court below holding that
the properties involved in the Waqf of 1956 were in fact
acquired from the income and by the nucleus of Waqf
property involved in the Waqf of 1931 could not be
proved, has been correctly recorded?
5. Whether, the claim of respondent number 1/4 to be
declared Mutawalli is entertainable by civil court?”

12. The lower appellate court took note of the provisions of the
Waqf Act, 1995 in light of the facts and circumstances of the
present case and it came to a conclusion that the question
which survives in appeal, and requires adjudication in the
pending appeal, was with regard to appointment of the
appellant as Mutawalli, and such issue could be gone into only
by the Tribunal created under Section 83 of the Waqf Act. The
appellate court, consequently, held that the civil court had no
jurisdiction to adjudicate the question which had cropped up for
consideration in appeal in view of the provisions of the Waqf
Act.

13. Aggrieved by the appellate court order dated 23.3.2015, the

appellant has filed second appeal Nos. 604 of 2015 and 658 of
2015, which have been consolidated and heard together.

14. I have heard Sri Tarun Verma, advocate assisted by Sri J.S.
Pandey for the appellant in both the appeals and Sri Manish
 9

Goel, Sri Punit Kumar Gupta, Sri M.A. Qadeer, learned Senior
Advocate, assisted by Sri Shamim Ahmad, for the contesting
respondent.

15. Before this Court proceeds to deal with the questions raised in
the appeal, it would be relevant to notice the factual
controversy requiring adjudication in the appeal in light of the
provisions of the Waqf Act,1995. It is not in dispute that the
plaintiff, who had originally instituted Suit No. 64 of 1964 has
since died on 30.4.1999. The Civil Court vide judgment and
decree of the year 1982, had allowed the suit of the original
plaintiff, in his claim for appointment as Mutawalli, on the basis
of the waqf deed dated 4.8.1931. Suit in respect of the
properties mentioned in List-A had been decreed and in respect
of properties mentioned in List-B had been dismissed. The suit,
as it was originally instituted, involved determination of the
issue as to whether the original plaintiff was the Mutawalli of the
Waqf, by virtue of the provisions of the waqf deed, and if it was
so, the properties which he was entitled to manage being its
Mutawalli.

16. It would be relevant to notice that after the death of original

plaintiff, and substitution of the present appellant as one of the
appellants, the prayer made in the suit was amended. The
substituted prayer in the plaint was to the effect that “it be
declared that as the original plaintiff has died during the
pendency of proceedings, therefore, his son i.e. the present
appellant is the Mutawalli of the waqf property specified in
schedule-A and B as a son of original plaintiff, in accordance
with the waqf deed”.

17. The right, as was being claimed by the parties, and which now
required adjudication was as to whether the present appellant,
by virtue of his claim of being son of the original plaintiff, is
 10

entitled to be declared as Mutawalli of the Waqf property or

not?. For such purposes, the present appellant relied upon
following facts:-

“(a) That in view of the provisions of the Waqf deed of

1931, he is required to be appointed as Mutawalli for
managing the properties of the Waqf.

(b) That the appellant being son of the Mutawalli,

whose right has been determined by the Civil Court vide
judgment and decree of the year 1982, was entitled to
succeed the deceased plaintiff as Mutawalli.

18. The claim of the appellant essentially requires determination of

his entitlement to be appointed as Mutawalli. The right
which is being so claimed by the appellant has arisen only upon
the death of the original plaintiff on 30.4.1999. The mute
question, therefore, is as to which is the appropriate forum to
determine the claim of the appellant that he is entitled to be
appointed as Mutawalli of the Waqf?.

19. At this juncture, it would be relevant to refer to some of the

provisions of the Waqf Act, 1995. Mutawalli has been defined
under Section 3(i) of the Act, which reads as under:-

“3(i) “mutawalli” means any person appointed, either

verbally or under any deed or instrument by which a Waqf
has been created, or by a competent authority, to be the
mutawalli of a Waqf and includes any person who is a
mutawalli of a Waqf by virtue of any custom or who is a
naib- mutawalli, khadim, mujawar, sajjadanashin, amin or
other person appointed by a mutawalli to perform the duties
of a mutawalli and save as otherwise provided in this Act,
any person, committee or corporation for the time being
managing or administering any Waqf or Waqf property:

Provided that no member of a committee or corporation

shall be deemed to be a mutawalli unless such number is
an office bearer of such committee or corporation;

Provided further that the mutawalli shall be a citizen of India

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and shall fulfill such other qualifications as may be

prescribed;

Provided also that in case a waqf has specified any

qualifications, such qualifications may be provided in the
rules as may be made by the State Government.”
20. From the scheme of the Act, it further appears that a list of
auqaf is to be maintained under Section 5 of the Act. This list is
to be prepared on the basis of the survey conducted by the
Board and also on the basis of the claim made. Section 3(g)
defines the list of auqaf which is reproduced below:-

“3(g). List of 'auqaf' means the list of auqaf published under

sub-section (2) of section 5 or contained in the register of
auqaf maintained under section 37.”

21. Procedure for holding of preliminary survey etc. is defined in

Section 4 of the Act. Section 6 provides for dispute relating to
auqaf and Section 7 provides for the power of the Tribunal to
determine the dispute regarding to auqaf. Sections 6 and 7 of
the Act are reproduced below:-

“6. Disputes regarding Auqaf. - (1) If any question arises

whether a particular property specified as Waqf property in
the list of Auqaf is Waqf property or not or whether a Waqf
specified in such list is a Shia Waqf or Sunni Waqf, the
Board or the mutawalli of the Waqf or [any person
aggrieved] may institute a suit in a Tribunal for the decision
of the question and the decision of the Tribunal in respect
of such matter shall be final:
Provided that no such suit shall be entertained by the
Tribunal after the expiry of one year from the date of the
publication of the list of Auqaf.
[Provided further that no suit shall be instituted before the
Tribunal in respect of such properties notified in a second
or subsequent survey pursuant to the provisions contained
in sub-section (6) of section 4.

(2) Notwithstanding anything contained in sub-section (1),

no proceeding under this Act in respect of any Waqf shall
be stayed by reason only of the pendency of any such suit
or of any appeal or other proceeding arising out of such
suit.

(3) The Survey Commissioner shall not be made a party to

any suit under sub-section (1) and no suit, prosecution or
 12

other legal proceeding shall lie against him in respect of

anything which is in good faith done intended to be done in
pursuance of this Act or any rules made in thereunder.

(4) The list of Waqf shall, unless it is modified in pursuance

of a decision or the Tribunal under sub-section (1), be final
and conclusive.

(5) On and from the commencement of this Act in a State,

no suit or other legal proceeding shall be instituted or
commenced in a court in that State in relation to any
question referred to in sub-section (1).

7. Power of Tribunal to determine disputes regarding

Auqaf.- (1) If, after the commencement of this Act, [any
question or dispute] arises, whether a particular property
specified as Waqf property in a list of Auqaf is Waqf
property or not, or whether a Waqf specified in such list is a
Shia Waqf or a Sunni Waqf, the Board or the mutawalli of
the Waqf, [or any person aggrieved by the publication of
the list of auqaf under section 5] therein, may apply to the
Tribunal having jurisdiction in relation to such property, for
the decision of the question and decision of the Tribunal
thereon shall be final:
Provided that-

(a) in the case of the list of Auqaf relating to any part of the
State and published after the commencement of this Act no
such application shall be entertained after the expiry of one
year from the date of publication of the list of Auqaf; and

(b) in the case of the list of Auqaf relating to any part of the
State and published at any time within a period of one year
immediately preceding the commencement of this Act,
such an application may be entertained by Tribunal within
the period of one year from such commencement:

Provided further that where any such question has been

heard and finally decided by a civil court in a suit instituted
before such commencement, the Tribunal shall not re-open
such a question.

(2) Except where the Tribunal has no jurisdiction by reason

of the provisions of sub-section (5), no proceeding under
the section in respect of any Waqf shall be stayed by any
court, tribunal or other authority by reason only of the
pendency of any suit, application or appeal or other
proceeding arising out of any such suit, application,
appeal or other proceeding.

(3) The Chief Executive Officer shall not be made a party to

any application under sub-section (1).
 13

(4) The list of Auqaf and where any such list is modified in
pursuance of a decision of the Tribunal under sub-section
(1), the list as so modified, shall be final.

(5) The Tribunal shall not have jurisdiction to determine

any matter which is the subject-matter of any suit or
proceeding instituted or commenced in a civil court under
sub-section (1) of section 6, before the commencement of
this Act or which is the subject-matter of any appeal from
the decree passed before such commencement in any
such suit or proceeding or of any application for revision or
review arising out of such suit, proceeding or appeal, as
the case may be.

(6) [The Tribunal shall have the powers of assessment

of damages by unauthorised occupation of waqf property
and to penalise such unauthorised occupants for their
illegal occupation of the waqf property and to recover the
damages as arrears of land revenue through the Collector:
Provided that whosoever, being a public servant, fails in his
lawful duty to prevent or r emove an encroachment, shall
on conviction be punishable with fine which may extend
to fifteen thousand rupees for each such offence.

22. The act further contemplates constitution of a 'Board' to secure

objectives of the Act of 1995. Power of such Board has been
specified in Section 32 of the Act. Sub Section (g) of Section 32
which is relevant for the present purposes is reproduced below:-

“32. Powers and functions of the Board.-

(g) to appoint and remove mutawallis in accordance with

the provisions of this Act;

23. Section 83 of the Act provides for constitution of a Tribunal for

determining the disputes as specified under the Act of 1995.
Section 85 provides for exclusion of the jurisdiction of Civil
Court. Sections 83 and 85 of the Act reads as Under:-

“83. Constitution of Tribunals, etc.- (1) [(1)The State

Government shall, by notification in the Official Gazette,
constitute as many Tribunals as it may think fit, for the
determination of any dispute, question or other matter
relating to a waqf or waqf property, eviction of a tenant or
determination of rights and obligations of the lessor and the
 14

lessee of such property, under this Act and define the local
limits and jurisdiction of such Tribunals;

2) Any mutawalli person interested in a Waqf or any other

person aggrieved by an order made under this Act, or rules
made thereunder, may make an application within the time
specified in this Act or where no such time has been
specified, within such time as may be prescribed, to the
Tribunal for the determination of any dispute, question or
other matter relating to the Waqf.

(3) Where any application made under sub-section (1)

relates to any Waqf property which falls within the territorial
limits of the jurisdiction of two or more Tribunals, such
application may be made to the Tribunal within the local
limits of whose jurisdiction of the mutawalli or any one of
the mutawallis of the Waqf actually and voluntarily resides,
carries on business or personally works for gain, and where
any such application is made to the Tribunal aforesaid, the
other Tribunal or Tribunals having jurisdiction shall not
entertain any application for the determination of such
dispute, question or other matter:

Provided that the State Government may, if it is of opinion

that it is expedient in the interest of the Waqf or any other
person interested in the Waqf or the Waqf property to
transfer such application to any other Tribunal having
jurisdiction for the determination of the dispute, question or
other matter relating to such Waqf or Waqf property,
transfer such application to any other Tribunal having
jurisdiction , and, on such transfer, the Tribunal to which the
application is so transferred shall deal with the application
from the stage which was reached before the Tribunal from
which the application has been so transferred, except
where the tribunal is of opinion that it is necessary in the
interests of justice to deal with the application afresh.

[Every Tribunal shall consist of—

(a) one person, who shall be a member of the State

Judicial Service holding a rank, not below that of a District,
Sessions or Civil Judge, Class I, who shall be the
Chairman;

(b) one person, who shall be an officer from the State Civil
Services equivalent in rank to that of the Additional District
Magistrate, Member;

(c) one person having knowledge of Muslim law and

jurisprudence, Member; and the appointment of every such
person shall be made either by name or by designation.]
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(4A) [The terms and conditions of appointment including

the salaries and allowances payable to the Chairman and
other members other than persons appointed as ex officio
members shall be such as may be prescribed.]

(5) 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 Code of Civil Procedure,1908(5 of 1908),
while trying a suit, or executing a decree or order.

(6) Notwithstanding any thing contained in the code of Civil

Procedure, 1908(5 of 1908), the Tribunal shall follow such
procedure as may be prescribed.

(7) The decision of the Tribunal shall be final and binding

upon the parties to the application and it shall have the
force of a decree made by a civil court.

(8) The execution of any decision of the Tribunal shall be

made by the civil court to which such decision is sent for
execution in accordance with the provisions of the Code of
Civil Procedure, 1908 (5 of 1908).

(9) No appeal shall lie against any decision or order

whether interim or otherwise, given or made by the
Tribunal:
85. Bar of jurisdiction of civil courts.- No suit or other
legal proceeding shall lie in any [civil court, revenue court
and any other authority ] in respect of any dispute, question
or other matter relating to any Waqf, Waqf property or other
matter which is required by or under this Act to be
determined by a Tribunal.”

24. From the scheme of the Act, it is apparent that all disputed
questions, arising out of auqaf as specified is Section 6, as to
whether a property in the list of auqaf is a property of the waqf
or not? or whether a waqf specified in the list is a Shia or a
Sunni waqf, would have to be resolved by the Tribunal under
Section 6 of the Act by instituting a Suit before the Tribunal.
Similarly, the power to appoint or remove a Mutawalli of a
Waqf, which is included in the list of auqaf falls exclusively with
the Board and such decision is subject to appellate/ supervisory
jurisdiction of the Tribunal.

25. Learned counsel for the appellant has invited attention of the
Court to sub section (5) of Section 7 of the Act to contend that
 16

proceedings of the Suit were pending in appeal from prior to

coming into being of the Act of 1995 as such, the proceedings
pending in appeal were liable to have been decided on merits
and the conclusion drawn by the appellate court that civil court
had no jurisdiction to determine the issue of appointment of
appellant as Mutawalli of the waqf is perverse. Learned counsel
for the appellant further submits that the main question which
required adjudication in the appeal was with regard to paternity
of the appellant, which can only to be gone into by the Civil
Court and the Tribunal had no competence to adjudicate such
question of fact.

26. Submission aforesaid of the learned counsel for the appellant is

opposed by the learned counsel appearing for the respondents
on the ground that the claim of the appellant, for being
appointed as Mutawalli, has since come into effect after
1.1.1996, therefore, it will have to be pressed before the
authority, duly constituted for the purpose under the Act of
1995, at the first instance, and any dispute arising out of such
adjudication, will then have to be adjudicated by the Tribunal.
Learned counsel further submits that in fact the claim of the
appellant had been adjudicated by the Board, at the first
instance, and the same has been rejected. Attention of the
Court has also been invited to the fact that in a challenge made
by the petitioner to determination made by the Board against
the appellant, was made before this Court and the appellant
had been relegated to the remedy available in the Statute i.e.
of approaching the Tribunal and the appellant, in fact, has
available such remedy.

27. Learned counsel for the respondent, therefore, submits that in

the peculiar facts and circumstances of the case, once the
jurisdiction of the Tribunal, which was exclusive in the facts and
circumstances of the present case and had been availed by the
 17

appellant, the appellate court committed no infirmity in

refusing to go into the question raised by observing that the
civil court has no jurisdiction to deal with the dispute which
survives for adjudication.

28. Reliance is also placed to the provisions of Section 85 of the Act,

which bars the jurisdiction of the Civil Court in respect of any
disputed question or other matter relating to any waqf, which
requires determination by the Tribunal to be gone into by the
Civil Court.

29. In order to appreciate the submission so advanced, it would be

relevant to examine the scope of sub section 5 of Section 7,
which excludes the Jurisdiction of the Tribunal, in the facts of
the present case.

30. A perusal of the records go to show that the appellant had

himself approached the Board as early as in the year 1999 by
way of an application moved before the respondent no. 10
Board under section 32(g) of the Act for being appointed as
Mutawalli. In the opinion of the Court, this course was rightly
resorted to as any issue raised with regard to right of
appointment as Mutawalli after 1.1.1996 had to be gone into
by the Board at the first instance and a person aggrieved by it
had the remedy to approach the Tribunal constituted under
Section 83 of the Act. Admittedly, the right which has been
claimed by the appellant, here in, has come into existence after
1.1.1996. The claim of the appellant, therefore, was required
to be determined in accordance with the provisions of the Waqf
Act, 1995.

31. This Court finds that the dispute which involved determination in
the facts of the present case is as to whether the appellant is
entitled to be appointed as a Mutawalli of the Waqf or not? The
 18

objection raised in respect of such claim of the appellant by the

defendant-respondent on the ground of his paternity, is a
question which also arises incidentally for determination of the
right of the appellant to be appointed as Mutawalli. Since the
jurisdiction of the Tribunal to deal with the claim for
appointment as Mutawalli of the waqf exclusive, as such, the
issue can be determined only by the Tribunal. The power of the
Tribunal under Section 83 of the Act is wide enough to include
all incidental questions which arise during the course of
adjudication of the principal issue of entitlement of appellant to
be appointed as Mutawalli. The tribunal, even otherwise, has all
powers of a civil court for the purposes of adjudication of
disputes falling within its jurisdiction. The claim of the appellant,
as has been raised, is also required to be considered by the
Tribunal.

32. The proceedings and orders of the Suit of 1964, including those
in appeals arising out of it or the orders passed therein can, at
best, be placed in support of the appellant's claim for
appointment as Mutawalli, as an evidence before the Tribunal.
The Tribunal is then required to consider the appellant's claim
for appointment as Mutawalli after considering the contra
evidence, if any, brought on record by the respondents and the
issue would require authoritative representation by the Tribunal,
at the first instance.

33. The issue of paternity of the appellant being the incidental

question to the question raised by the appellant regarding his
entitlement to be appointed as Mutawalli, therefore, also can be
gone into by the Tribunal. In such view of the matter, this Court
finds that the appellate court has rightly observed that the
dispute, as has been raised by appellant, requires adjudication
on the question of entitlement of the appellant to be appointed
as Mutawalli and, therefore, such question has to be gone into
 19

by the Tribunal and the civil court has no jurisdiction to decide it

in appeals. The conclusion drawn by the Civil Court is in
accordance with the provisions of the Act and no perversity or
illegality can be shown therein.

34. The argument of the appellant, based upon the interpretation of

Section 7(5) of the Act is not liable to be sustained, inasmuch
as what is saved by sub section (5) is “any matter”, which is
the subject matter of Suit instituted or commenced prior to
coming into being of the Act of 1995 or appeal arising out of
it. The subject matter of Suit No. 64 of 1964, as it existed on
the date of commencement of the Act of 1995 i.e. 1.1.1996, is
no longer in existence. The matter of the suit of 1964 as
pending in appeal has entirely changed after the death of the
original plaintiff who had claimed right for himself. The subject
matter of proceedings pending in appeal in view of amendment
made in prayer clause of Suit, which has been noticed above, is
regarding appellant's right to be appointed Mutawalli, a cause
which itself has come into existence after 1999. Even otherwise,
section 7(5) of the Act refers to proceedings under Section 6(1)
whereas the cause requiring adjudication now pertains to an
order made under section 32(g) of the Act which is exclusively
within the realm of jurisdiction of the Tribunal. The appellate
court, therefore, was right in holding that the cause requiring
adjudication was not maintainable before the civil court.

35. All proceedings and orders, passed during the pendency of the
suit and appeal, can at best, be placed as evidence before the
Tribunal which has the exclusive jurisdiction to adjudicate the
cause relating to appointment of Mutawalli. Parties would be at
liberty to file their evidence, in rebuttal. Appellant shall be at
liberty to apply for restoration in appeal already filed or institute
such other proceedings, as he may be advised, and are
maintainable before the Tribunal.
 20

36. Even otherwise, this court finds that the issue of entitlement of
appellant to be appointed as Mutawalli, had been raised before
the writ court and the Division Bench vide its order passed in
Writ Petition No. 47155 of 2000 had clearly relegated the
appellants to approach the Tribunal in respect of his grievance,
which judgment had attained finality and infact the remedy
available had been availed of, by the appellant and ,therefore,
for all such reasons, the judgment delivered by the appellate
court cannot be said to be suffering from any infirmity in the
eyes of law. No substantial question of law, therefore, arises for
consideration of this Court in the facts and circumstances of
both the appeals, which are consequently, dismissed subject to
the observations made above.

Order Date :- 19.8.2015

n.u.