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Court No. 24
C. M. Application No.7990 (W) of 2007
C. M. Application No.7989 (W) of 2007
in re:
Writ Petition No. 8657 (MS) of 1990
Karim Bux and others ... Petitioners
Versus
III Additional District Judge,
Lakhimpur Kheri and others ... Opposite parties
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Hon'ble Rajiv Sharma, J.
Delay in filing the application for recall of the order is
condoned.
Heard learned Counsel for the applicants.
Case shown shown is sufficient.
Accordingly, the application is allowed and the order dated
20.2.2007 is recalled. The writ petition is restored to its original
number.
By means of the instant writ petition, the petitioners pray
for setting aside the judgments and orders dated 20.8.1990 and
15th April, 1988 passed by the opposite parties 1 and 2, contained
in Annexure Nos.10 and 9 respectively.
Learned Counsel for the petitioners submits that the
opposite parties 1 and 2 committed a manifest and patent legal
error in holding that the Suit for permanent injunction was not
maintainable and the same was barred by Section 29 read with
Section 75 of the U. P. Muslim Waqf Act, 1960. The findings
recorded by the opposite parties 1 and 2 stand vitiated on account
of being perverse for non-consideration of the pleadings and
unrebutted evidence of the plaintiffs. Further, they failed to
appreciate that prior to 1936 there was no Waqf Board in
existence and as such, it could not be said that any Suit in respect
of a Waqf by user was barred even for permanent injunction.
Lastly, he contended that the U. P. Sunni Central Board of Waqf
had not declared the property in question as non-waqf property in
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any proceedings whatsoever and as such, there was no necessity
or occasion for the plaintiffs to have filed reference under Sections
29 (8) or 33 (2) of the U. P. Muslim Waqf Act.
Mr. Vimal Kishore Verma, learned Counsel appearing for the
respondents submits that the legal heirs are owners of the
disputed land and their names are also recorded in the revenue
records and they are still continuously in possession over the
disputed land. Admittedly, the petitioners filed a Suit for
permanent injunction against the opposite parties. According to
the provisions of Section 8 of the U. P. Muslim Waqfs Act, 1960,
the Civil Court had no jurisdiction to entertain the Suit filed by the
petitioners/plaintiffs and the same is cognizable by the Board.
Further, Munsif Kheri granted the order for temporary injunction
ex parte, against the defendants and directed the parties to
maintain status quo over the disputed land, without considering
the case of the plaintiffs/petitioners. Munsi Kheri also not
considered the legal point that the Suit filed by the
plaintiffs/petitioners was not maintainable, hence he had no
jurisdiction to pass the over for temporary injunction. Against the
order dated 8.8.1983 passed by the Munsif Kheri rejecting the
application for ad interim injunction, the defendants/opposite
parties filed Civil Misc. Appeal No. 24/83 which was dismissed on
9.1.1984 by the Special Judge, Kheri. It is also provided in the
order that at the time of trial of the Suit, whether the land is
public graveyard or not should be decided.
Subsequently, by the order dated 18.5.1984, the Suit was
decreed in favour of the plaintiffs ex parte after relying the
commissioner’s report dated 23.10.1982. Being aggrieved, the
defendants filed an appeal No. 55 of 1984 which was allowed by
the Civil Judge, Lakhimpur Kheri and remanded the matter to the
trial Court for fresh decision of the Suit. On remand, the trial
Court decided the issue no.3 against the plaintiffs by which it had
been held that the dispute arises in the present case was
cognizable under Section 8 of the U. P. Muslim Waqfs Act, 1960
and the same is within the jurisdiction of Waqf Board or Tribunal
and Suit is barred by Section 75 of the aforesaid Act. Therefore,
the present Suit was not maintainable and as such, the Munsiff
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dismissed the appeal as not maintainable. Feeling aggrieved, they
filed Revision No. 22 of 1988 which too was dismissed.
After hearing learned Counsel for the parties, I am of the
opinion that the Suit for permanent injunction is not maintainable
before the Civil Court and the same should be decided under
Section 8 of the U. P. Muslim Waqfs Act, 1960 and as such, there
is no illegality or infirmity in the impugned orders dated 15.4.1988
and 20.8.1990 passed by the opposite parties 1 and 2. Further,
concurrent findings of fact recorded by the two Courts below are
against the petitioners. In the case of Wali Uddin v. State [1988
AWC 24], this Court held that in view of the provisions of Section
75 of the Act, no suit or other proceedings can be initiated in any
Civil Court pertaining to any dispute, question or matter which
was permitted or required under the Act to be referred to the
Tribunal (as defined under Section 3 of the Act) for adjudication.
It is equally well settled that under the provisions of sub-section
(2) of Section 33 of the Act, this was a matter which could very
well be referred by the plaintiffs to the Tribunal.
I find force in the submissions of the learned Counsel for the
respondents and no interference is required under Article 226 of
the Constitution of India.
Accordingly, the writ petition is dismissed. All pending
applications are disposed of.
Dt. 3.2.2010
Lakshman/