Vijaya Nainar2. Baskara Nainar3. Kamalabai Ammal4. Vijayabal Nainar5. Ramesh6. P.Baskar @ Kuppan v. Sirukadambur Masjid

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.6.2007CORAMTHE HON'BLE MR.JUSTICE S.ASHOK KUMARCRP(PD) No. 1250 of 2006and M.P.Nos. 1 + 1 of 2007 ...1. Samuthra Vijaya Nainar2. Baskara Nainar3. Kamalabai Ammal4. Vijayabal Nainar5. Ramesh6. P.Baskar @ Kuppan... Petitioner Vs.1. Sirukadambur Masjid rep. By its Muttavallis 1. Syed Basheer 2. Syed Ghouse 3. Syed Jani 4. Syed Shadullah2. Virushabadoss nainar3. Anthony4. Sugantha Bai5. Valliammal6. Dhanamathi7. Mani Megala ... Respondents Civil Revision Petition is filed against the order oftransfer of the suit to the file of the learned PrincipalDistrict Judge, Villupuram made in Original Suit No: 230 of1990, dated 15.7.2004 by the learned Additional DistrictMunsif, Gingee.For Petitioner : Mr.T.R.RajaramanFor Respondent : Mrs.N.Mala ORDERThis Civil Revision Petition is filed by the defendantsagainst the order of transfer of the suit No.230 of 1990 tothe file of the learned Principal District Judge, Villupurammade by the learned District Munsif, Gingee. https://hcservices.ecourts.gov.in/hcservices/

2. The factual matrix of the case is as follows:-The defendants are the revision petitioners herein. Thefirst respondent/plaintiff filed the suit for declarationand recovery of possession. The defendants contested the sameby filing their written statement. The District MunsifCourt, Gingee took the suit for trial and framed the issue ofjurisdiction of the court as additional issue. After a full-fledged trial, the learned District Munsif, Gingee dismissedthe suit on the issue of jurisdiction holding that theproperties are Wakf properties and the civil court has nojurisdiction to try the same as per Section 85 of the WakfAct, 1995, and further directed the parties to the suit toappear before the District Court, Villupuram. However, theDistrict Judge, Villupuram questioned the validity oftransfer made by the learned District Munsif, Gingee. Onreceipt of the query, the learned District Munsif, Gingeeanswered that after a full-fledged trial, the suit is notfound maintainable before the civil court as the propertiesare Wakf properties and hence the civil court has nojurisdiction and requested the learned District Judge to onceagain transfer the same to the Tribunal. On receipt of thereply from the learned District Munsif, the learned DistrictJudge, Villupuram transferred the case from his file to theWakf Tribunal, Villupuram. But, no notice has been issued bythe Wakf Tribunal to the defendants and the defendantsthemselves appeared before the Tribunal through theircounsel. The defendants have not even been furnished with theorder of transfers passed by the learned Judges even thoughthey have applied for copy applications. Hence the presentrevision challenging the order of the learned District Judge,in transferring the matter to the Wakf Tribunal. 3. It is not in dispute that the learned PrincipalDistrict Judge is empowered to transfer any proceedingpending before its subordinate Courts under Section 24 of theCode of Civil Procedure. Admittedly, the present suit wastaken on file by the learned District Munsif, Gingee andafter a full-fledged trial, dismissed the suit holding thatcivil court has no jurisdiction and only a Wakf Tribunal candecide the matter as the properties are Wakf properties.Therefore, even the power of the District Judge vested underSection 24 CPC ceases. However the learned District Munsif,wrongly transferred the suit to the learned District Judge,Villupuram for necessary action. The District Judge,Villupuram also after getting a clarification from theDistrict Munsif, Gingee, transferred the suit to the WakfTribunal. 4. But, a reading of Section 7(5) of the Wakf Act, 1995would establish that the Tribunal shall not have jurisdictionto determine any matter which is the subject matter of anysuit or proceeding instituted or commenced in a civil court https://hcservices.ecourts.gov.in/hcservices/ under Sub section (1) of Section 6, before the commencementof the said Act or which s the subject matter of any appealfrom the decree passed before such commencement in any suchsuit or proceeding or of any application for revision orreview arising out of such suit, proceeding, or appeal, asthe case may be. In other words, any matter which ispending before any court of law before the commencement ofthe Wakf Act, 1995 has to be tried before the same court andthe Wakf Tribunal has no jurisdiction to take cognizance ofthe suit or proceeding instituted before the commencement ofthe said Act. Admittedly, the suit is of the year 1990 andtherefore the Wakf Tribunal has no jurisdiction to entertainthe suit as it was instituted prior to the commencement ofthe Wakf Act, 1995. 5. Similar issue was taken up for consideration by theHon'ble Supreme Court in Sardar Khan and others Vs. SyedNajmul Hasan (Seth) and other, reported in 2007 (2) CTC 508,wherein their Lordships have categorically held that on areading of Section 7(5) and 83 of the Wakf Act it is seenthat Section 85 of the Wakf Act will not be applicable topending suits or proceeding or revision which have commencedprior to 1.1.1996. The relevant portions are:-"15. By virtue of Sub-section (5) of Section7, it clearly transpires that the Tribunal shallnot have jurisdiction to determine any matterwhich his the subject matter of any suit orproceeding instituted or commenced in a civilcourt under sub section (1) of Section 6, beforethe commencement of this Act, i.e., if any suithas been instituted in any civl court prior tocoming into force of the Wakf Act, 1995, then theTribunal will have no jurisdiction to decide suchmatter and it will be continued and concluded asif Act has not come into force. Xxxxxxxxxx18. On a conjoint reading of Sub section (5)of Section 7 and Section 85, the result would bethat the Act will not be application to thepending suits or proceedings or appeals orrevisions which have commenced prior to 1.1.196i.e., coming into force of the Wakf Act,1995. ..." 6. The above judgment of the Hon'ble Apex Court squarelyapplicable to the facts of the present case in the presentcase as well, the institution of the suit is in the year 1990i.e., prior to the commencement of the Wakf Act, 1995.Therefore, it is only the District Musnif Court, Gingee hasgot the jurisdiction to try the suit and the Wakf Tribunaldoes not have jurisdiction to try the same. https://hcservices.ecourts.gov.in/hcservices/

7. In the result, the order of the learned DistrictMunsif, Gingee dated 15.7.2004 in transfer the suit to thePrl.District Judge, Villupuram and also the order of thelearned Principal District Judge, Villupuram, dated 5.8.2005in transferring the same to the Wakf Tribunal are set asideas the same are erroneous and against law and the WakfTribunal is directed to transfer to suit to the file of thelearned District Munsif, Gingee for deciding other issues inthe suit. It is also made clear that the plaintiff is atliberty to prefer a fresh suit if so advised before the WakfTribunal (Sub-Court) Villupuram. CRP is disposed ofaccordingly. Consequently, connected M.Ps are closed. Nocosts. gkvSd/Asst.Registrar/true copy/Sub Asst.RegistrarCopy to: The Wakf Tribunal, Villupuram. The Addl.District Munsif. Gingee. The Prl.District Judge, Villupuram. + one cc to Mr. T.R. Rajaraman, Advocate sr no. 39175+ one cc to M/s. N,. mala, Advocate sr no. 39094ssv(co)nm(09.07.07)CRP(PD)No.1250 of 2006