Post on 25-Mar-2020
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 13TH DAY OF DECEMBER, 2013
BEFORE
THE HON’BLE MR.JUSTICE ARAVIND KUMAR
C.R.P.NO. 422/2013 C/W
C.R.P.NOS. 343/2013, 344/2013, 345/2013, 346/2013, 403/2013, 404/2013, 405/2013, 406/2013, 407/2013, 408/2013, 409/2013, 410/2013, 411/2013
& 421/2013 C.R.P.NO. 422/2013
BETWEEN: Mr. Syed Abdul Azeez, S/o S.A. Khader, Aged major
Azeez Collections Shop no. 471, Ground floor, Mezzanine floor, Jumma Masjid road, Bangalore-51. ... Petitioner
(By Sri. SZA Khurshi, Advocate) AND: Jumma Masjid Trust Board No. 11, Jumma Masjid Road,
Bangalore-560 051 Represented by its Chairman Mr.Anwar Shariff ..Respondent (By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu Associates, Advocates)
R
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This petition is filed under Section 18 of Karnataka Small Causes Act, Against the Order dated 05.07.2013 passed in SC No.15259/2011 on the file of
V-Additional Small Causes Judge and XXIV ACMM, Bangalore dismissing the IA No.3 filed U/O-VII, Rule-10(1), R/w Section 151 of CPC. C.R.P.NO. 343/2013
BETWEEN: Mr. Azmathulla S/o Abdul Gani, Aged about 27 years No. 123, First floor,
Golden Plaza, L.No.3 Street Cross, Meenakshi Koli Street Bangalore-51. ... Petitioner (By Sri. SZA Khurshi, Advocate)
AND: Jumma Masjid Trust Board No. 11, Jumma Masjid Road, Bangalore-560 051
Represented by its Chairman Mr.Anwar Shariff ..Respondent (By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu Associates, Advocates)
This petition is filed under Section 18 of Karnataka Small Causes Act, Against the Order dated 05.07.2013 passed in SC No.15259/2011 on the file of V-Additional Small Causes Judge and XXIV ACMM, Bangalore dismissing the IA No.3 filed U/O-VII, Rule-
10(1), R/w Section 151 of CPC.
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C.R.P.NO. 344/2013
BETWEEN: Mr. Suhail K.S. S/o K.S. Sadulla, Aged about 27 years No. 152, 2nd floor, Golden Plaza,
L.No.3 Street Cross, Meenakshi Koli Street Jumma Masjid Road, Shivajinagar, Bangalore-51. ... Petitioner
(By Sri. SZA Khurshi, Advocate) AND: Jumma Masjid Trust Board No. 11, Jumma Masjid Road,
Bangalore-560 051 Represented by its Chairman Mr.Anwar Shariff ..Respondent (By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu Associates, Advocates)
This petition is filed under Section 18 of
Karnataka Small Causes Act, Against the Order dated
05.07.2013 passed in SC No.15360/2011 on the file of
V-Additional Small Causes Judge and XXIV ACMM,
Bangalore dismissing the IA No.3 filed U/O-VII, Rule-
10(1), R/w Section 151 of CPC.
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C.R.P.NO. 345/2013
BETWEEN:
1. Mrs. Zeba Shireen W/o Abrar Mathreen Aged about 30 years
2. M.Matheen S/o D.M.Iqbal
Aged about 45 years No. 110, ground floor, Golden Plaza, L.No.3 Street Cross, Meenakshi Koli Street
Bangalore-51. ... Petitioners (By Sri. SZA Khurshi, Advocate) AND:
Jumma Masjid Trust Board No. 11, Jumma Masjid Road, Bangalore-560 051 Represented by its Chairman Mr.Anwar Shariff ..Respondent
(By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu Associates, Advocates) This petition is filed under Section 18 of Karnataka Small Causes Act, Against the Order dated
05.07.2013 passed in SC No.15505/2011 on the file of V-Additional Small Causes Judge and XXIV ACMM, Bangalore dismissing the IA No.4 filed U/O-VII, Rule-10(1), R/w Section 151 of CPC.
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C.R.P.NO. 346/2013
BETWEEN:
1. Mrs. Zeba Shireen W/o Abrar Mathreen Aged about 30 years
2. Abrar Matheen S/o D.M.Iqbal
Aged about 45 years No. 146, IInd floor, Golden Plaza, L.No.3 Street Cross, Meenakshi Koli Street
Bangalore-51. ... Petitioners (By Sri. SZA Khurshi, Advocate) AND:
Jumma Masjid Trust Board No. 11, Jumma Masjid Road, Bangalore-560 051 Represented by its Chairman Mr.Anwar Shariff ..Respondent
(By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu Associates, Advocates) This petition is filed under Section 18 of
Karnataka Small Causes Act, 1964, Against the Order
dated 05.07.2013 passed on IA No.4 in SC
No.15374/2011 on the file of V-Additional Small Causes
Judge and XXIV ACMM, Bangalore dismissing I.A.No.2
filed U/O-VII, Rule-10(1), R/w Section 151 of CPC.
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C.R.P.NO. 403/2013
BETWEEN:
Mr. K.P.Umar, S/o K.P.Abubacker, Aged about 50 years Shop No. 139, first floor, Golden Plaza, L.No.3 Street Cross,
Meenakshi Koli Street Bangalore-51. ... Petitioner (By Sri. SZA Khurshi, Advocate) AND: Jumma Masjid Trust Board No. 11, Jumma Masjid Road, Bangalore-560 051 Represented by its Chairman Mr.Anwar Shariff ..Respondent
(By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu Associates, Advocates) This petition is filed under Section 18 of
Karnataka Small Causes Act, 1964, Against the Order dated 05.07.2013 passed on IA No.III in SC No.15268/2011 on the file of V-Additional Small Causes Judge and XXIV ACMM, Mayo hall unit, Bangalore dismissing IA No.III the filed U/O-VII, Rule-10(1), R/w Section 151 of CPC.
C.R.P.NO. 404/2013
BETWEEN:
M/s G.S.Ramaswamy Chetty & Sons,
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Mr. G.P.Srinivas, partner S/o G.P.Parthasarthy, Aged about 63 years No. 69/8, ground floor,
L.No.3 Street, Meenakshi Koli Street Cross, Bangalore-51. ... Petitioner (By Sri. SZA Khurshi, Advocate)
AND: Jumma Masjid Trust Board No. 11, Jumma Masjid Road, Bangalore-560 051 Represented by its Chairman
Mr.Anwar Shariff ..Respondent (By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu Associates, Advocates)
This petition is filed under Section 18 of Karnataka Small Causes Act, 1964, Against the Order dated 05.07.2013 passed on IA No.III in SC No.15376/2011 on the file of V-Additional Small Causes Judge and XXIV ACMM, Mayo hall unit, Bangalore dismissing IA No.III the filed U/O-VII, Rule-10(1), R/w
Section 151 of CPC. C.R.P.NO. 405/2013
BETWEEN:
Mrs. Shireen Taj, W/o Mohamed Najee Ullah, Aged about 31 years Shop No. 103 & 104, ground floor, Golden Plaza, L.No.3 Street
Meenakshi Koli Street Cross,
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Bangalore-51. ... Petitioner (By Sri. SZA Khurshi, Advocate)
AND: Jumma Masjid Trust Board No. 11, Jumma Masjid Road, Bangalore-560 051 Represented by its Chairman
Mr.Anwar Shariff ..Respondent (By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu Associates, Advocates) This petition is filed under Section 18 of
Karnataka Small Causes Act, 1964, Against the Order
dated 05.07.2013 passed on IA No.III in SC
No.15567/2011 on the file of V-Additional Small Causes
Judge and XXIV ACMM, Mayo hall unit, Bangalore
dismissing IA No.III filed U/O-VII, Rule-10(1), R/w
Section 151 of CPC.
C.R.P.NO. 406/2013
BETWEEN: Mr. T.A. Ameenulla, S/o Azmathulla, Aged about 51 years Shop No. 130, first floor, Golden Plaza,
L.No.3 Street Meenakshi Koli Street Cross, Bangalore-51. ... Petitioner (By Sri. SZA Khurshi, Advocate)
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AND: Jumma Masjid Trust Board
No. 11, Jumma Masjid Road, Bangalore-560 051 Represented by its Chairman Mr.Anwar Shariff ..Respondent (By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu
Associates, Advocates) This petition is filed under Section 18 of Karnataka Small Causes Act, 1964, Against the Order dated 05.07.2013 passed on IA No.III in SC
No.15262/2011 on the file of V-Additional Small Causes Judge and XXIV ACMM, Mayo hall unit, Bangalore dismissing IA No.III filed U/O-VII, Rule-10(1), R/w Section 151 of CPC. C.R.P.NO. 407/2013
BETWEEN: Mr. Mohammed Hafeez, S/o Mohammed Haneef, Aged about 47 years
Shop No. 133, first floor, Golden Plaza, L.No.3 Street Meenakshi Koli Street Cross, Bangalore-51. ... Petitioner
(By Sri. SZA Khurshi, Advocate) AND: Jumma Masjid Trust Board No. 11, Jumma Masjid Road,
Bangalore-560 051
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Represented by its Chairman Mr.Anwar Shariff ..Respondent (By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu
Associates, Advocates) This petition is filed under Section 18 of Karnataka Small Causes Act, 1964, Against the Order dated 05.07.2013 passed on IA No.III in SC
No.15267/2011 on the file of V-Additional Small Causes Judge and XXIV ACMM, Mayo hall unit, Bangalore dismissing IA No.III filed U/O-VII, Rule-10(1), R/w Section 151 of CPC.
C.R.P.NO. 408/2013
BETWEEN: Mr. Fazal Ahmed, S/o Abdul Azeez, Aged about 50 years No. 69/18, first floor, Golden Plaza,
L.No.3 Street Meenakshi Koli Street Cross, Bangalore-51. ... Petitioner (By Sri. SZA Khurshi, Advocate)
AND: Jumma Masjid Trust Board No. 11, Jumma Masjid Road, Bangalore-560 051 Represented by its Chairman
Mr.Anwar Shariff ..Respondent (By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu Associates, Advocates)
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This petition is filed under Section 18 of Karnataka Small Causes Act, 1964, Against the Order dated 05.07.2013 passed on IA No.III in SC
No.15373/2011 on the file of V-Additional Small Causes Judge and XXIV ACMM, Mayo hall unit, Bangalore dismissing IA No.III filed U/O-VII, Rule-10(1), R/w Section 151 of CPC.
C.R.P.NO. 409/2013
BETWEEN: Mrs. Haseena Banu, W/o Hyder Ali Khan, Aged about 45 years No. 121, first floor, Golden Plaza,
L.No.3 Street Meenakshi Koli Street Cross, Bangalore-51. ... Petitioner (By Sri. SZA Khurshi, Advocate)
AND: Jumma Masjid Trust Board No. 11, Jumma Masjid Road, Bangalore-560 051 Represented by its Chairman
Mr.Anwar Shariff ..Respondent (By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu Associates, Advocates)
This petition is filed under Section 18 of Karnataka Small Causes Act, 1964, Against the Order dated 05.07.2013 passed on IA No.III in SC No.15260/2011 on the file of V-Additional Small Causes Judge and XXIV ACMM, Mayo hall unit, Bangalore
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dismissing IA No.III filed U/O-VII, Rule-10(1), R/w Section 151 of CPC.
C.R.P.NO. 410/2013
BETWEEN: Mr. M.Abdul Rahman, S/o M.Fazlur Rahman, Aged about 52 years Shop No. 132, first floor, Golden Plaza,
L.No.3 Street Meenakshi Koli Street Cross, Bangalore-51. ... Petitioner (By Sri. SZA Khurshi, Advocate)
AND: Jumma Masjid Trust Board No. 11, Jumma Masjid Road, Bangalore-560 051 Represented by its Chairman
Mr.Anwar Shariff ..Respondent (By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu Associates, Advocates) This petition is filed under Section 18 of
Karnataka Small Causes Act, 1964, Against the Order
dated 05.07.2013 passed on IA No.III in SC
No.15263/2011 on the file of V-Additional Small Causes
Judge and XXIV ACMM, Mayo hall unit, Bangalore
dismissing IA No.III filed U/O-VII, Rule-10(1), R/w
Section 151 of CPC.
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C.R.P.NO. 411/2013
BETWEEN: Mr. Rafeequlla T.A,
S/o late A.T.Azmathulla, Aged about 48 years No. 69/9, ground floor, L.No.3 Street Meenakshi Koli Street Cross, Bangalore-51. ... Petitioner
(By Sri. SZA Khurshi, Advocate) AND: Jumma Masjid Trust Board
No. 11, Jumma Masjid Road, Bangalore-560 051 Represented by its Chairman Mr.Anwar Shariff ..Respondent (By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu
Associates, Advocates) This petition is filed under Section 18 of Karnataka Small Causes Act, 1964, Against the Order dated 05.07.2013 passed on IA No.II in SC
No.15375/2011 on the file of V-Additional Small Causes Judge and XXIV ACMM, Mayo hall unit, Bangalore dismissing IA No.II filed U/O-VII, Rule-10(1), R/w Section 151 of CPC.
C.R.P.NO. 421/2013
BETWEEN:
Mr. Afroz Pasha,
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S/o Syed Abdul Khaliq, Aged about 38 years Shop No. 138, first floor, Golden Plaza,
L.No.3 Street Meenakshi Koli Street Cross, Bangalore-51. ... Petitioner (By Sri. SZA Khurshi, Advocate)
AND: Jumma Masjid Trust Board No. 11, Jumma Masjid Road, Bangalore-560 051 Represented by its Chairman
Mr.Anwar Shariff ..Respondent (By Sri.Rahul Cariappa, Advocate for Kamal & Bhanu Associates, Advocates)
This petition is filed under Section 18 of Karnataka Small Causes Act, 1964, Against the Order dated 05.07.2013 passed on IA No.III in SC No.15269/2011 on the file of V-Additional Small Causes Judge and XXIV ACMM, Court of Small Causes, Mayo hall unit, Bangalore.
These petitions having been heard and reserved,
coming on for pronouncement of judgment this day, the Court made the following:
O R D E R
These revision petitions are directed against the
orders passed by the Small Causes Judge, Bangalore
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rejecting the applications filed by defendants under
Order VII Rule 10(1) R/W Section 151 CPC.
2. I have heard the arguments of Sriyuths
S.Z.A Khureshi, learned Advocate appearing for revision
petitioners – defendants and Sri Rahul Cariappa,
learned Advocate appearing on behalf of Kamal and
Banu for respondent-plaintiff. Perused the order in
question as also the pleadings, interlocutory application
filed under Order VII Rule 10(1) read with Section 115
CPC and objections filed thereto. Parties are referred to
as per their rank in the trial Court.
3. It is the contention of Mr.Khureshi that
since Jumma Masjid Trust Board is registered as Wakf
under the Wakfs Act and as such the Court of Small
Causes at Bangalore has no jurisdiction in view of bar
under Section 85 of the Wakf Act, 1995. He would also
contend that since the properties belonging to the
plaintiff – Trust has been declared to be the Wakf
property, the provisions of Karnataka Public Premises
(Eviction of unauthorized occupants) Act, 1974
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(hereinafter referred to as ‘Public Premises Act’ for
brevity) would be applicable since suit schedule
property is a public premises as defined under Clause
(e) of sub-clause (v) of Section 2 of the Public Premises
Act. The bar contained in Section 16 of the Public
Premises Act would prohibit the Civil Court exercising
the jurisdiction. Hence, he contends that order of the
trial Court rejecting the application filed by the revision
petitioner – defendant seeking rejection of the suit is
erroneous and the judgment of the Hon’ble Apex Court
relied upon by the trial Court is inapplicable to the facts
on hand. Hence, he prays for allowing the revision
petitions.
In support of his submissions, he relies upon the
following judgments:
(1) SMT. JABEEN TAJ & OTHERS vs MASJID-E-PENSION MOHALLA, A WAKF INSTITUTION reported in ILR 2006 KAR 1146
(2) THE HEAD QUARTERS ASSISTANT, THE DEPUTY COMMISSIONER’S OFFICE, MYSORE & OTHERS reported in 1997 (5) Kar.LJ 493
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4. Per contra, Sri Rahul Cariappa would
support the order passed by the trial Court and
contends that provisions of the Wakf Act, 1995 nor the
provisions of Public Premises Act is attracted to the
facts of the present case inasmuch as, the plaintiff-
institution is being managed and administered by Trust
formed under a scheme framed by the District Court
and there is a marked distinction between Trust
property and the Wakf property and in the instant case,
the suit schedule properties being Trust properties, the
trustees are entitled to deal with the same and as such,
neither the provisions of the Wakf Act, 1995 nor the
provisions of Public Premises Act are applicable to the
facts on hand.
In support of his submission, he has relied
upon the following judgments:
(1) AHMED ADAM SAIT & OTHERS vs
M.E.MAKHRI & OTHERS reported in AIR 1964 SC 107
(2) MAHARASHTRA STATE BOARD OF
WAKFS vs YUSUF BHAI CHAWALA & OTHERS reported in 2012(6) SCC 238
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5. Having heard the learned Advocates
appearing for the parties, I am of the considered view
that following points would arise for my consideration:
(1) Whether the Small Causes Suits
filed by the plaintiff - Jumma
Masjid Trust Board were liable to
be dismissed or rejected on the
ground of bar of jurisdiction
contained in Section 85 of the
Wakfs Act, 1995 and Section 16 of
the Public Premises Act, 1974.
OR
Whether the properties managed
by the plaintiff Trust is to be
construed as a Wakf property or
Trust property?
(2) What order?
6. The plaintiff “Jumma Masjid Trust”
represented by its Chairman has filed suits against
defendants for the relief of evicting them from suit
schedule premises and also for arrears of rent and
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mesne profits. Defendants have appeared and filed an
application to reject the plaint as the Court of Small
Causes, Bangalore has no jurisdiction in view of Section
85 of the Wakf Act, 1995 read with Section 16 of Public
Premises Act. Said application came to be resisted by
the plaintiff and on contest, it came to be dismissed
with costs. Said order is questioned before this Court
by defendants.
RE: POINT NO.(1):
7. Along with statement of objections filed to
the main petition and application for rejection of the
plaint, defendants had filed gazette notification dated
07.06.1965, G.O. dated 20.01.2001, show cause notice
issued by the Karnataka Board of Wakf dated
06.01.2011 and reply submitted by plaintiff - Trust
dated 17.09.2010 contending interalia that suit
properties are declared to be Wakf property and as
such, under Section 85 of Wakf Act, Civil Court has no
jurisdiction. It was further contended that Section 16 of
the Public Premises Act would bar the jurisdiction of
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the Civil Court to entertain any suit or legal proceeding
in respect of eviction of any person and no Court will
have jurisdiction to entertain any such suit or
proceedings in respect of eviction of any person who is
in unauthorized occupation of any “public premises”
or recovery of rent and as such, it was contended that
suit for ejectment filed before Small Causes Court was
not maintainable.
8. In order to examine the contention of learned
Advocate appearing for revision petitioners- defendants,
it would be necessary to extract relevant provisions
pressed into service which reads as under:
I. WAKF ACT, 1995
“85: Bar of jurisdiction of civil
courts:- No suit or other legal
proceeding shall lie in any civil
court in respect of any dispute,
question or other matter relating to
any wakf, wakf property or other
matter which is required by or
under this Act to be determined by
a Tribunal.”
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II. KARNATAKA PUBLIC PREMISES (EVICTION OF UNAUTHORISED OCCUPANTS) ACT, 1974.
“2(e):- “Public Premises” means any premises belonging to or allotted to State Government or taken on lease or requisitioned by or on behalf of the State
Government and includes any premises belonging to or taken on lease by or on behalf of -----
(i) xxx (ii) xxx
(iii) xxx (iv) xxx (v) A Wakf, registered with
the Karnataka State Board of Wakfs.”
5:- Eviction of unauthorized occupants:- (1) If, after considering the cause, if any, shown by any person in pursuance of a notice under Section 4 and any evidence he may produce in
support of the same and after giving him a reasonable opportunity of being heard, the competent officer is satisfied that the public premises are in unauthorized occupation, the
competent officer may on a date to be fixed for the purpose, make an order of eviction, for reasons to be recorded therein, directing that the public premises shall be vacated by all persons who may be in
occupation thereof or any part
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thereof, and cause a copy of the order to be affixed on the outer door or some other conspicuous part of the public premises.
(3) If any person refuses or fails to
comply with the order of eviction within forty-five days from the date of affixture of the order under sub-section (1), the competent officer or
any other officer duly authorised by the competent officer in this behalf may evict that person from and take possession of, the public premises and may, for that purpose, use such force as may be
necessary.” 16. Bar of jurisdiction:- No Court shall have jurisdiction to entertain any suit or proceeding in respect of the eviction of any person who is
in unauthorized occupation of any public premises or the recovery of the arrears of rent payable under sub-section (1) of Section 7 or the damages payable under sub-section (2) of that section or the
costs awarded to the State Government or the Local Authority or the corporate authority under sub-section (5) of Section 10 or any portion of such rent, damages or costs.”
9. A perusal of above provisions would indicate
that under Section 85 of the Wakf Act, Civil Court’s
jurisdiction is taken away in respect of any dispute,
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question or other matters relating to Wakf, Wakf
property or other matter which is required to be
determined by a Tribunal under the said Act. Likewise,
Section 2(e)(v) of Public Premises Act brings within its
sweep a premises belonging to Wakf registered with the
Karnataka State Board of Wakfs within the purview of
Wakf Act and said premises will have to be construed as
public premises under the Public Premises Act. If it is
so construed, eviction proceedings of such occupants to
be treated as unauthorized occupants, proceedings will
have to be initiated under Section 5 of Public Premises
Act. A premises is declared to be “public premises” in
respect of premises belonging to or taken on lease by or
on behalf of Wakf registered under the Karnataka State
Board of Wakfs. If it is so construed, then, there would
be bar for any Court to entertain a suit or proceedings
in respect of eviction of such person who is in
unauthorized occupation of such public premises or
recovery of arrears of rent in view of Section16 ousting
jurisdiction of Civil Court to entertain a claim in that
regard.
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10. In the background of analysis of above
statutory provisions, facts on hand are required to be
examined. It is not in dispute that in respect of the
properties belonging to Jumma Masjid, a scheme suit
had been filed before District Judge, Bangalore in
O.S.No.32/1924 and in the said suit, a scheme had
been framed in the year 1927. Pursuant to the said
scheme, trustees were appointed and they have been
managing the trust properties. Thereafter, an
application came to be filed by certain persons under
Order 1 Rule 10 and Sections 141 and 151 CPC
contending that they should be joined as parties to the
proceedings under the scheme and for other reliefs.
Said application was rejected by the District Judge on
20.07.1945. As such, said applicants filed a suit in
O.S.No.2/1947 praying for a fresh scheme being settled
for the proper administration of Jumma Masjid and its
properties by removing the trustees and praying for a
committee of New Trustees being appointed by
dissolving the old scheme. On contest it resulted in
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dismissal of the suit. Aggrieved by the said judgment
and decree, plaintiff filed an appeal to this Court. This
Court took the view that plea of resjudicata as opined by
the trial Court could not be sustained and agreed with
the trial Court that in law a scheme once settled should
not be lightly disturbed or modified but came to a
conclusion that for framing a new scheme it has to set
aside the judgment and decree passed by the trial Court
and accordingly remanded the matter to the District
Court for framing a new scheme. This judgment of the
High Court was challenged by the defendants therein
before the Hon’ble Apex Court and after considering the
rival contentions, the Hon’ble Apex Court was not
inclined to affirm the order of remand passed by the
High Court and as such reversed the same by modifying
the earlier scheme with modifications to clauses (iv), (v),
(xxiv) and (xxv). It was also made clear in the said
judgment that if in future any occasion were to arise for
changing or altering the terms of the scheme, it would
not be necessary to file a separate suit but the trustees
or any person interested in the trust may apply for
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modification of the scheme to the District Court. Hence,
the order of remand passed by this Court was reversed
and respondent’s claim for modified scheme was
allowed to the extent of incorporating four clauses and
appeal came to be dismissed with the modifications
indicated therein. It was held by the Hon’ble Apex Court
as under:
“23. The next question xxxx of this
case. We have already referred to the fact that the High Court was satisfied that the scheme has worked, on the whole, satisfactorily. We have examined the 25 clauses of the scheme and have heard the learned counsel for both the parties in
regard to the modifications which these clauses may need and we are satisfied that if suitable changes are made in clauses (iv), (v), (xxiv) and (xxv), that would meet the requirements of justice and fair administration of the Mosque, its affairs and
its properties.” 11 The above facts would clearly indicate that
the properties vested in the Trust. As to the distinction
between Muslim Wakf and a Trust created by Muslims
came up for consideration before Hon’ble Apex Court in
the case of MAHARASHTRA STATE BOARD OF WAKFS
27
vs YUSUF BHAI CHAWALA & OTHERS reported in
(2012)6 SCC 328 and it was held that dividing line
between Public Trust and Wakfs may be thin but the
main factor always is that while Wakf properties vests in
God Almighty the Trust properties do not vest in God
and trustees in terms of the deed of Trust would be
entitled to deal with the same for the benefit of the Trust
and its beneficiaries. It has been held by the Hon’ble
Apex Court as under:
“38. There is a vast difference between
Muslim Wakfs and trusts created by Muslims. The basic difference is that Wakf
properties are dedicated to God and the “Wakif” or dedicator does not retain any title over the Wakf properties. As far as trusts are concerned, the properties are not vested in God. Some of the objects of such trusts are for running charitable organisations such as
hospitals, shelter homes, orphanages and charitable dispensaries, which acts, though recognized as pious, do not divest the author of the trust from the title of the properties in the trust, unless he relinquishes such title in favour of the trust or the trustees. At times,
the dividing line between public trusts and wakfs may be thin, but the main factor always is that while wakf properties vest in God Almighty, the trust properties do not vest in God and the trustees in terms of deed of trust are entitled to deal with the same for
the benefit of the trust and its beneficiaries.”
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12. In the light of law laid down by the Hon’ble
Apex Court as noted herein above when the facts on
hand are examined, it would indicate that a scheme suit
had been filed in O.S.NO.32/1924 and a scheme was
drawn by the Court relating to plaintiff-Trust. The said
scheme was sought to be undone by another group by
filing a fresh scheme suit in O.S.No.2/1947 after the
plaintiffs therein sought to get impleaded in
O.S.No.32/1924 was rejected by the District Judge on
20.07.1945. As noticed herein above, judgment and
decree passed by the District Court dismissing the suit
was pursued before this Court and an order of remand
came to be passed by this Court and in the Civil Appeal,
the Hon’ble Apex Court in AHMAD ADAM SAIT &
OTHERS vs M.E.MAKHRI & OTHERS reported in AIR
1964 SC 107 reversed the said order of remand by
concluding that the scheme framed in 1927 should be
left as it is with the modifications as has been indicated
in the judgment. It has been held by the Hon’ble Apex
Court as under:
29
“27. In the result, we reject all the
contentions raised by the appellants and confirm the findings recorded by the High
Court in favour of the respondents. We are, however, not inclined to affirm the order of remand passed by the High Court, because we have held that the scheme framed in 1927 should be left as it is with the modifications which we have indicated in our judgment. Therefore, the order of remand passed by the High Court is reversed and the respondents' claim for a modified scheme allowed. The appeal is dismissed with the above modifications. The appellants will pay the costs of the
contesting respondents throughout.”
(Emphasis supplied by me)
In other words, the scheme made in the year 1927 by
the District Court in OS.No.32/1924 stood affirmed
with modification of incorporating four clauses as
already referred to herein above. It is to be further
noticed that properties of the Trust continued with the
Trust and there was no Wakf created.
13. Even by virtue of notification issued by the
Karnataka State Board of Wakfs it would not take away
the scheme settled by competent Civil Court based on
proceedings initiated under Section 92 of CPC and said
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proceeding would not abate. If the Wakf Board was
aggrieved by the decree passed in the scheme suit, the
Board was empowered to have the decree declared void
within one month of its knowledge regarding the decree.
There is no material on record to show that Wakf Board
was not aware of the decree. As such, it cannot be
accepted that the jurisdiction of the Civil Court is
ousted by virtue of the notification dated 02.06.1975
particularly when the Wakf Board has not taken any
steps in this regard. Though notification has been
issued under the Wakf Act, this Court cannot ignore the
fact that the scheme of management of plaintiff-Trust
approved by the Hon’ble Apex Court subject to
permitting the Trustees or any person interested in the
Trust for modification of the scheme before the District
Court, Bangalore would be a clear pointer to the fact
that the management of the properties belonging to
plaintiff-Trust continues to be vested with the Trust.
Undisputedly, even after issuance of the notification in
the year 1975 under the Wakf Act, the properties are
31
managed and administered by the Trust Board as
settled under the scheme of management.
14. It can also be noticed that in the Gazette
notification which has been produced by learned
Advocate appearing for revision petitioners-defendants
along with revision petition that under the heading
“Name, address and occupation of Mutavalli” it has
been indicated as “JUMMA MOSQUE TRUST BOARD”.
This would also indicate that property settled under the
scheme in favour of the Jumma Masjid Trust has
continued with the said Trust which is being monitored
by the District Court as directed by the Hon’ble Apex
Court and as such, the contention of Mr.Khureshi that
suit schedule premises is belonging to the Karnataka
Board of Wakf or it is a Wakf property and as such it
falls within the definition of “Public premises” as defined
under Section 2(e)(v) of Public Premises Act cannot be
accepted and it stands rejected.
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15. In the light of discussion made herein above,
I am of the considered view that trial Court was fully
justified in dismissing the applications filed by the
defendants seeking rejection of the plaint and the
reasons assigned by the trial Court in its order that the
process of appointment of trustees, supervision and
administration of the Trust is being carried on by the
Additional City Civil Judge, Bangalore as on today
requires to be affirmed.
16. Yet another factor which also requires to be
noticed is that the judgment passed in O.S.32/1924
settling the scheme relating to the plaintiff-trust has not
been questioned or challenged by the Karnataka Board
of Wakfs and it is not even a party to the scheme suit
which is being administered by the competent Civil
Court, at Bangalore. Hence, I am of the considered view
that order passed by trial Court rejecting the application
is just and proper and there is no material irregularity
in the said order calling for exercise of revisional
jurisdiction at the hands of this Court.
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17. Hence, the following order:
(1) Revision petitions are hereby
dismissed.
(2) The orders passed by the trial Court
dismissing the applications filed by the
revision petitioners for rejection of the
plaint are hereby affirmed.
(3) Parties to bear their respective costs.
Sd/- JUDGE *sp