A civil suit for easementary rights can proceed in a civil court even if properties involved are Waqf properties, provided no express statutory bar exists against such claims.

JUDGMENT :

MILIND N. JADHAV, J.

1. Revision Applicant is the original Defendant challenging the order dated 14.02.2024 passed below Exhibit 14 by the Civil Court, Thane (for short “Trial Court”). Respondents are the Plaintiffs Parties are referred to as Plaintiffs and Defendant for convenience. Defendant- Trust filed Application below Exhibit 14 under Order VII, Rule 11 of the Code of Civil Procedure, 1908 (for short “CPC”) for rejection of Plaint.

2. Respondents i.e. original Plaintiffs filed suit for declaration and injunction of easementary right of way through the adjoining land admittedly owned by Defendant-Trust.

3. Defendant- Trust claimed that easementary right available to Plaintiffs is through Suit property bearing Survey Nos. 58 and 60 of village Dawle, Taluka, District Thane, which is admittedly a Waqf property belonging to Defendant-Trust. Defendant-Trust therefore filed Application below Exhibit 14 under Order VII, Rule 11 (d) of CPC for rejection of plaint on the ground that jurisdiction of the Civil Court would stand ousted and Plaintiffs would have to approach the Waqf Tribunal.

4. Trial Court rejected the Application filed by Defendant-Trust and held that Waqf Tribunal will not have jurisdiction to adjudicate the lis between the parties and it is only the Civil Court which will have jurisdiction.

5. Hence, the present Civil Revision Application. Before I advert to the submissions made by the learned Advocates, the following facts are relevant for consideration as they are admitted facts by both parties and they go to the root of the matter.

6. On 06.01.1953, Defendant-Trust came to be registered with the Charity Commissioner under the Maharashtra Public Trusts Act, 1950 as Religious Public Trust bearing PTR No. B-9 (Thane) along with its various immovable properties including land bearing Survey Nos. 58 and 60 of village Dawle, Tq. and District Thane (for short “Waqf properties”) as Waqf properties belonging to Defendant-Trust. Thereafter, on 01.01.1996, the Waqf Act, 1995 (for short “the said Act”) came into force.

7. On 07.03.1988, Plaintiffs by two registered Deed of Conveyance duly registered under Serial Nos. 1723 & 1724 respectively purchased the land bearing Survey Nos. 58 and 60 of village Dawle, Taluka, District Thane, the same is undisputed and taken on record. The ingress and egress to this land purchased by Plaintiffs is admittedly through the Waqf properties viz. Survey No. 58 and 60. Plaintiffs have been using the said easementary right of way openly, continuously and uninterruptedly for the last 32 years.

8. On 04.10.2019, Plaintiffs were informed by the office of the District Superintendent of Land Records, Thane (W) regarding a survey of land bearing Survey Nos. 58 and 60 as requested by the Defendant-Trust. On or about 09.02.2020, Plaintiffs observed some stones, boulders and other material on the said right of way. Plaintiffs therefore apprehended that Defendant-Trust after requesting for a survey of their land, would gradually attempt to encroach/efface upon their said easementary right of way. Hence, on 12.03.2020, Plaintiffs filed Special Civil Suit No. 188 of 2020 in the Court of Civil Judge Senior Division, Thane wherein they sought a declaratory relief to declare and proclaim their easementary right through Defendant-Trust’s property bearing Survey Nos. 58 and 60, which is admittedly a Waqf property.

9. On 20.11.2020, Defendant-Trust filed an Application under Order