IMPORTANT POINTS
(1) Suit for permanent injunction in respect of Waqf property is maintainable before Waqf Tribunal.
(2) Waqf Tribunal shall be deemed to be a Civil Court and shall have same powers as may be exercised by a Civil Court under CPC, while trying a suit or executing a decree or order.

JUDGMENT :

V. RAMASUBRAMANIAN, J.

1. Aggrieved by the Judgment of the High Court of Judicature at Allahabad, Lucknow Bench, holding that a suit for a permanent injunction before a civil court is not barred by Section 85 of the Waqf Act, 1995 (for short “the Act”) the defendant has come up with the above appeal.

2. We have heard Mr. Pradeep Misra, learned counsel for the appellant and Mr. Pradeep Kant, learned senior counsel for the first respondent.

3. The first respondent herein filed a suit in R.S. No. 137 of 2011 against the appellant herein as defendant No. 1 and impleading the respondents 2 to 5 herein as defendants 2 to 5. The suit was for a mandatory injunction directing the defendants to remove the encroachment made by them and for a permanent injunction restraining the defendants from interfering with the plaintiff’s possession of a piece of land situated at Mirzaganj, Pargana and Tehsil Malihabad, Lucknow. The suit was filed in the Court of Civil Judge, Senior Division, Malihabad. The case of the first respondent herein/plaintiff was that the suit property originally belonged to one Mirza Abid Ali Beg; that during his life time he created a Waqf-al-Aulad; that during his life time, Mirza Abid Ali Beg was the mutawalli; that after his life time, his elder daughter became the mutawalli; that thereafter, the younger daughter Smt. Afzal Jahan Begum became the mutawalli; that the said Afzal Jahan Begum was the grandmother of the plaintiff; that the father of the plaintiff led a wayward life, forcing the grandmother to deliver possession of the property to the plaintiff, authorizing him to maintain the properties and utilize the income thereof for the maintenance of the family; that after taking possession, the plaintiff constructed shops on the land and let them out to tenants; that after sometime, the grandmother of the plaintiff appointed the father of the plaintiff as the mutawalli; that there were criminal proceedings between the plaintiff and his father; that on 18.12.2010, the defendants brought building materials and started digging foundation in the land behind the shops, at the instigation of the father of the plaintiff; that though the plaintiff gave a police complaint, they were indifferent, emboldening the defendants to raise a boundary wall in a portion of the land and that, therefore, the plaintiff was constrained to file a suit for mandatory and perpetual injunction.

4. After entering appearance in the suit, the appellant herein who was the first defendant, filed a written statement admitting the existence of the waqf and waqf property. Thereafter, he took out an application under Order VII, Rule 11 CPC for rejection of plaint, on the simple ground that the Civil Court has no jurisdiction to try a suit relating to what is admittedly a waqf property. The said application was allowed by the Civil Judge, Senior Division, Malihabad and the suit was dismissed.

5. Challenging the aforesaid judgment, the first respondent herein/ plaintiff filed a regular appeal under Section 96 CPC, but the first Appellate Court dismissed the appeal.

6. However, the second appeal filed by the first respondent-plaintiff was allowed by the High Court on the short ground that since the dispute does not involve either a question as to the nature of the property or the question whether the suit schedule property is a waqf property or not and also since the suit is only for injunction, the Civil Court was not barred from entertaining the suit, under Section 85 of the Act. It is against the said judgment of the High court that the first defendant in the suit has come up with the above appeal.

7. Therefore, the only question that arises for our consideration in this appeal is as to whether a suit for permanent injunction in respect of a waqf property is maintainable in a civil court or not.

8. The question of jurisdiction of civil courts to ad