Important points:
The powers conferred on the Tribunal under Section 51 are omitted by Act 27 of 2013 as a consequence of omitting the provision enabling a sale of waqf property.

ORDER :

K.Vinod Chandran, J.

The revision is from the judgment of the Waqf Tribunal dismissing the suit filed by the plaintiffs/revision petitioners. The suit was one for declaration, mandatory injunction and recovery of possession. The plaint schedule properties consisted of two items having an extent of 4½ and 3¾ cents in R.S.No.101/3-4 in Kizhuparamba Village. Admittedly, there is a Mosque and a Madarassa situated in the properties, the management of which is the bone of contention between the parties in the suit. The 1st and 2nd plaintiffs are husband and wife and the 3rd plaintiff is said to be a Trust in management of the Mosque and Madarassa. The defendants are alleged to have taken over the management illegally. The 1st plaintiff claimed that the properties belonged exclusively to him and that the construction was from own funds expended by the 1st plaintiff.

2. The plaintiffs claimed recovery of possession and mandatory(sic)injunction to abstain from the management of the Mosque and the Madrassa, against the defendants. The defendants were alleged to have taken over illegal possession of the properties and its management on 30.10.2008. The defendants contested the matter. The Tribunal found that the plaint schedule properties were purchased by the 1st plaintiff; however, the construction of the Mosque and Madrassa were not from own funds. Having opened both to the public; the Mosque for prayers and the Madrassa for imparting education to the Muslim children of the locality, there is a waqf created and the plaintiffs cannot claim absolute right, title and ownership over the properties. On the basis of the evidence adduced, the mandatory injunction and recovery of possession sought for were rejected.

3. When the revision was argued before us, we raised a preliminary question as to the maintainability of the suit before the Waqf Tribunal, going by the decision of the Hon'ble Supreme Court in Punjab Waqf Board v. Sham Singh Harike [(2019) 4 SCC 698]. Admittedly, the Waqf is not one included in the list of Auqafs published under Section 5 of the Waqf Act, 1995 (hereinafter referred to as 'the Act') or registered under Section 37. The dispute is on management, which is not an issue possible of resolution under the Waqf Act, which makes it incumbent upon the plaintiffs to approach a Civil Court for redressal of their grievances and the reliefs sought for, going by the cited precedent, cannot be agitated before the Tribunal.

4. Sri. Babu Karukapadath, learned Counsel for the petitioners submitted that in fact the suit was filed before the Civil Court and after completion of evidence it was found that the dispute to be resolved is as to whether the plaint schedule properties are waqf properties or not. It is hence the Civil Court declined jurisdiction and referred the matter to the Waqf Tribunal. It is pointed out that the Hon'ble Supreme Court has in W.B.Waqf Board v. Anis Fatima Begum [(2010) 14 SCC 588] held that all matters pertaining to Waqfs should be filed, in the first instance, before the Waqf Tribunal constituted under Section 83 of the Waqf Act, 1995 and should not be entertained by the Civil Court. This was followed in Akkode Jumayath Palli Paripalana Committee v. P.V.Ibrahim Haji [(2014) 16 SCC 65] wherein the Waqf Tribunal was considering a suit for injunction restraining the defendants from interfering with the administration, management and peaceful enjoyment of the Mosque and Madrassa run by it, which is identical to the reliefs prayed for in the present suit. Even if Section 83 is not availed of, Section 85 bars jurisdiction of Civil Court in respect of any dispute, question or other matter relating to any waqf. This is an absolute bar of jurisdiction of the Civil Court, is the contention raised.

5. We have looked at the judgment passed and the same indicates that though the Tribunal found that the plaint schedule properties were purchased by the 1st petitioner with his own funds and in his name, the construction m