Rajasthan High Court: In a revision petition challenging the rejection of application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) to reject the plaint on ground that the dispute falls under the exclusive jurisdiction of the Waqf Tribunal, as per Section 85 of the Waqf Act, 1995, a single-judge bench of Birendra Kumar, J., reaffirmed the bar on Civil Court jurisdiction in matters related to Waqf properties and held that once a property is identified as a ‘Waqf by user’, any disputes regarding it must be adjudicated by the Waqf Tribunal.
Brief Facts
In the instant matter, the dispute revolved around Madina Zama Masjid in Village Kalra, Tehsil Phalodi, which was constructed with financial contributions from the Muslim community of the village. The plaintiffs-respondents alleged that defendant 1 executed a ‘vasiyat’ (will) in favor of defendant 2, asserting ownership of the land on which the mosque was constructed.
The respondents sought a permanent injunction restraining the defendants-petitioners from interfering with the peaceful use of the Masjid by the Muslim community for religious activities such as offering Namaz. The petitioners filed an application under Order VII Rule 11 of the Code of Civil Procedure, 1908 (CPC) to reject the plaint on ground that the suit is not maintainable before the Civil Court due to the bar of jurisdiction under Section 85 of the Waqf Act, 1995
The trial court rejected the petitioners’ application, vide order dated 06-09-2023, and held that since the Masjid property was not entered into the Waqf register as an Auqaf property, it was not a Waqf property, and hence, the jurisdiction of the Civil Court was not barred.
Legal Provisions
Section 85 of the Waqf Act, 1995: Bars the jurisdiction of civil courts in disputes relating to Waqf properties and mandates that such disputes be adjudicated by the Waqf Tribunal.
Section 3(r) of the Waqf Act, 1995: Defines ‘Waqf’ as the permanent dedication of movable or immovable property for purposes recognized under Muslim law as pious, religious, or charitable. It includes a Waqf by user.
Order VII Rule 11(d) CPC: Provides for rejection of a plaint when the suit is barred by law.
Parties’ Contentions Arguments
The petitioners contended that the dispute is related to Waqf property, and hence, only the Waqf Tribunal has jurisdiction as per Section 85 of the Waqf Act. It was contended that since the Masjid is a place used for religious purposes such as Namaz, it falls under the definition of Waqf under Section 3(r) of the Waqf Act. It was argued that the Civil Court erred in entertaining the suit, as the Civil Court is legally barred from doing so.
However, respondents contended that the property was never recorded in the Waqf register as Waqf property. It was contended that the suit property was erected and maintained by the Muslim community and not through any Waqf dedication. It was further argued that since there was no formal recognition of the property as Waqf, the jurisdiction of the Civil Court is not barred.
Court’s Analysis and Decision
The Court recognised that Madina Zama Masjid is a place used for religious purposes, making it a ‘Waqf by user’ under Section 3(r) of the Waqf Act. The Court asserted that since the property falls within the definition of Waqf, all disputes regarding it must be adjudicated by the Waqf Tribunal under Section 85 of the Waqf Act. The Court held that the Civil Court lacked jurisdiction to hear the matter.
The Court set aside the impugned order of the trial court and rejected the plaint under Order VII Rule 11(d) CPC. The Court granted respondents liberty to move to the Waqf Tribunal within four weeks.
[Shakur Shah v. Eliyas, S.B. Civil Revision Petition No. 189/2023, Decided on 20-02-2025]
Advocates who appeared in this case :
Mr. Roshan Lal, Counsel for the Petitioners
Mr. Moti Singh, Counsel for the Respondents
