Point of Law: Waqf Act - Encroachment of waqf property - Claim as private property - Dispute dates back to the coming into force of the Waqf Act, 1995, by virtue of S. 7(5) of the Waqf Act, the Waqf Tribunal has no jurisdiction.

JUDGMENT :

Rule. Rule made returnable forthwith and taken up for final hearing with the consent of learned counsel for the parties.

2. The challenge in this revision application is to the order passed by the Chief Executive Officer (C.E.O.), Maharashtra State Waqf Board, Aurangabad on 21/10/2009 and affirmed by the Waqf Tribunal vide its judgment and order dated 10/5/2018, passed in Waqf Application No.78/2009. The C.E.O., Waqf Board granted the application filed by the respondent No.2 for removal of encroachment made by the applicants herein on the land Survey No.306, situated at village Rahamatpur, Taluka Koregaon, District Satara since the said land has been held to be the property of the Waqf - Chaitanshah Peer Mira Shaha Sayyed Hussaini. The said order has been affirmed by the Waqf Tribunal. The applicants are, therefore, before this Court.

3. Heard Mr. Yunus Basheer Pathan, learned counsel for the applicants, Mr. N.E. Deshmukh, learned counsel for respondent No.1 and Mr. P.V. Mandlik, learned Senior Counsel for respondent No.2.

The learned counsel for the applicants would submit that, the father of the respondent No.2 had filed an application to the Assistant Charity Commissioner (A.C.C.) for registration of the entire land in Survey No.306 as a Waqf property. The learned A.C.C. conducted the enquiry and held that only the land admeasuring 20 gunthas under Kabrastan in the said Survey Number and other piece of land admeasuring 8 x 7 ft. under mound is Waqf property.

Remaining land in Survey No.306 was a private property in possession of the persons including the applicants herein. The A.C.C. personally paid visit to the land before the said order was passed. Although the order of the A.C.C. has been set aside by the Joint Charity Commissioner in Appeal Nos.34/1984 and 37/1984 and Revision Application No.1/1992, the said order of Joint Charity Commissioner has been subject of challenge in Trust Application Nos.291/1996, 292/1996 and 293/1996 before the District Court, Satara. The learned counsel would further submit that, the father of the respondent No.2 had on one hand claimed the entire land in Survey No.306 to be the Waqf property, and on the other sold major portion of the said land claiming it to be his private property. According to the learned counsel, since the dispute dates back to the coming into force of the Waqf Act, 1995, (for short, Waqf Act) by virtue of Section 7(5) of the Waqf Act, the Waqf Tribunal has no jurisdiction to determine the present matter holding it to be Waqf property since the very matter was the subject matter of the proceedings in Trust Application Nos.291/1996, 292/1996 and 293/1996 before the District Court, Satara. In support of his contentions, the learned counsel has placed reliance on the judgment of the Apex Court in case of Sardar Khan & ors. Vs. Syed Najmul Hasan (Seth) & ors. [ 2007 ALL SCR 1759 ] and Md. Moinuddin Vs. Md. Mustafa & ors. [ AIR 2010 PATNA 24 ]. According to learned counsel, there was no shred of evidence to indicate the property in possession of the applicants to be the Waqf property. He took me through the relevant evidence referred to and observations made by the learned A.C.C. in his judgment dated 6/8/1984. The learned counsel would further submit that, the respondent No.2 has challenged the order passed by the High Court, rejecting the Application No.2127/1990 in Second Appeal No.268/1990 on 12/6/1990. The learned counsel would ultimately urge for setting aside the impugned orders.

4. Mr. Deshmukh, learned counsel representing respondent No.1 and Mr. Mandlik, learned Senior Counsel representing respondent No.2 would, on the other hand, submit that, it is a Waqf Tribunal which has jurisdiction under Section 83 of the Waqf Act to decide whether it was a Waqf property. The learned counsel took me through the relevant documentary evidence on record namely very old 7/12 extracts of the land Survey No.306 to ultimately submit that the said land is Waqf property. They wo