The Wakf Tribunal has exclusive jurisdiction to decide disputes relating to wakf properties, and the Civil Court is barred from entertaining such suits under Section 85 of the Wakf Act, 1995.

Ashoke Kumar Dasadhikari, J.

1. Since issue involved in the aforementioned five applications are same, all these applications are taken up together for hearing and disposed of by a common order.

2. Petitioners are Joint Mutwalli and Joint Secretary, Baish hazari Wakf Estate, both sons of Syed Aminul Muswi of Village - Hyderpur, P.S. - English Bazar, P.O. & District - Malda. The suit properties are recorded as Baish Hazari Wakf Estate in C.S., R.S. and L.R. Record of Rights. Petitioners claimed the property in question being Wakf Property is a property subject to the provisions under Section 85 of the Wakf Act, 1995 (hereinafter referred to as the said “Act”). In view of the provisions under Section 85 of the said Act, 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 Property or other matter which is required by or under the said Act to be determined by the Tribunal.

3. The plaintiff/opposite party instituted a suit being T.S. No. 79 of 2011 claiming their right, title, interest and possession in respect of the ‘A’ and ‘B’ scheduled properties before the learned Civil Judge (Junior Division), Balurghat, Dakshin Dinajpur. It was claimed by the plaintiff/opposite party that he has been possessing the suit property as a absolute owner for more than 12 years openly, uninterruptedly, continuously and with the knowledge of the other and he has acquired independent, indefeasible right, title, interest and possession in the suit property.

4. The petitioners/Mutwallis in the aforementioned title suit being T.S. No. 79 of 2011 filed an application stating therein that the property in question mentioned in the plaint is a Wakf property exclusively belonging to Baish Hazari Wakf Estate which is a public wakf property. It was claimed that in C.S., R.S. and L.R. Record of Rights property recorded as wakf property which was admitted by the plaintiff/opposite party in his plaint. In that application the point of jurisdiction of the learned Civil Court was raised and as per provisions of Section 85 of the said Act no suit or other legal proceeding would lie in Civil Court in respect of any dispute, question or other matter relating to any wakf, wakf property etc. The petitioners being two Mutwalli specifically claimed that the plaintiff/opposite party is not entitled to get any relief in view of specific bar under the said Act. The application was contested by the plaintiff/opposite party and it was submitted by the plaintiff’s learned advocate that the plaintiff is possessing the suit property for a long period of time.

5. Learned advocate of the plaintiff also submitted that the petition of the defendant/opposite party no. 2 was pre-matured one till the appearance and the submission of the written statement by the defendant no. 2 in the suit, namely, Commissioner of West Bengal Wakf Board. It was further submitted that the jurisdiction of the Civil Court is not barred by the provision of Section 85 of the said Act. It was further submitted that the written statement is very much necessary for consideration of the matter. According to the opposite parties, a trial is also necessary for deciding the issue. It was further submitted that a claim of adverse possession was made, which cannot be decided by the Wakf Board or the Tribunal and the Civil Court is the appropriate forum to decide the issue.

6. After hearing the learned Counsel appearing for both the sides, the learned Court below is of prima facie opinion that possession of the property in question is with the plaintiff/opposite party. Defendant No. 2, Commissioner of Wakf failed to appear even in spite of summons. Learned Court below followed a judgment of this Hon’ble High Court reported in (2011) 2 CLJ Calcutta 60. It was held by the learned Court below that the right of the plaintiff/opposite party was claimed as a beneficiary under the wakf deed. Accordingly, the provisions under Section 85 of