Result: Revision Petition allowed.

This revision petition under Section 83(9) of the Wakf Act, 1995 (for short ‘the Act’) gives rise to an interesting question of law regarding the scope of the jurisdiction of the tribunal, a Tribunal, constituted in terms of Section 83 of the Act and the limits of jurisdiction being in terms of Sections 83(1) and 83(2) of the Act.

2. The revision is by the first defendant in OS No.6 of 2005 before the Wakf Tribunal, Bangalore Division, Bangalore, a suit that had been filed by Aga Ali Askar Wakf, a Wakf registered with the Karnataka State Board of Wakfs under the provisions of the Wakf Act, 1995. The plaintiff had sought for the relief of permanent injunction to restrain the first defendant in the suit, a Church which had owned the suit schedule property, its men and agents from interfering with the right of way of the members of Shia Muslims to reach Asurkhana, the property belonging to the plaintiff which was a wakf property and to reach which property the members of Shia Muslims were to pass through a passage ABCD (as described in the suit schedule) owned by the first defendant.

3. The plaintiff had also sought for further relief of restraint order on the defendants from putting up a gate at the beginning of the passage and for incidental prayers and for temporary injunction.

4. While an ex parte ad interim order of injunction had been granted initially, an application filed by the first defendant to vary this order of temporary injunction through an application under Order XXXIX, Rule 4 of the Code of Civil Procedure came to be dismissed in terms of the impugned order dated 10.6.2005.

5. It is aggrieved by this order, the present revision petition by the first defendant.

6. The first defendant had pleaded, inter alia, that the tribunal lacks jurisdiction to entertain the suit, particularly, as the property in question admittedly belonged to the first defendant; that it was not a wakf property and therefore the subject suit could not have been laid before the tribunal which is a tribunal which had the jurisdiction to exclusively deal with the wakf properties and matters relating to wakf and not with other properties.

7. The preliminary objection was that the subject matter of the suit did not come within the scope of either sub-Sections (1) or (2) of Section 83 of the Act and therefore the tribunal cannot entertain the suit for granting any relief temporary or on regular basis.

8. The tribunal had formulated the question regarding the maintainability as a preliminary point and having answered this in favour of the plaintiff and against the first defendant, had proceeded to examine the feasibility for granting the relief sought for and at that stage confirmed the ad interim order which had been granted ex parte earlier.

9. Civil revision petition had been admitted. The respondents had been put on notice. The plaintiff - wakf and the Karnataka State Board of Wakfs which was the second defendant in the suit are represented by Sri. Prabhuling K. Navadgi, learned Counsel.

10. The matter having been set down for hearing, I have heard Ms. Birdy Aiyappa, learned Counsel for the petitioner and Sri. Prabhuling K. Navadgi, learned Counsel for the respondents.

11. The contention of learned Counsel for the petitioner is that the tribunal lacked jurisdiction to entertain a suit of the present nature; that the property admittedly belonged to the first defendant; that the plaintiff if at all had only a right of easement which is also not disputed; that the defendant was not in any way interested in causing any obstruction or preventing the plaintiff from making use of the pathway as an approach to their property located interior; that while there was no cause of action, assuming a cause of action arose, a dispute of such nature to determine the easementary right of the plaintiff, vis-a-vis the liability of the defendants’ property cannot be made subject matter of a suit before the tribunal in terms of Section 83 of the Act and therefo