Point of Law : The definition of the word ‘encroachment' under Section 54 of the Wakf Act and in para.7 to 12 defined the word ‘encroacher' and the power of Wakf Board under Section 54 of the Wakf Act.

ORDER :

This Revision Petition has been filed under Section 115 of the Code of Civil Procedure challenging order dated 02.12.2021 in O.S.No.674/1998 on the file of Munsiff Court, Wadakkanchery. The revision petitioner is the 3rd defendant in the above Suit. The respondents herein are the plaintiff and other defendants.

2. Heard the learned counsel for the petitioner. Nobody appeared for the respondents even after service of notice.

3. It is argued by the learned counsel for the petitioner that in view of the latest decision of the Honourable Supreme Court reported in [2021 (6) KLT 482], Rashid Wali Beg v. Farid Pindari & Ors., civil court has no jurisdiction to deal with the Suit. In the above decision, it has been held that the Wakf Tribunal shall be deemed to be a civil court and shall have the same powers as may be exercised by a civil court under the Code of Civil Procedure and as per Section 83(1) of the Wakf Act, the Wakf Tribunal is having jurisdiction to decide any dispute or question or other matter (i) relating to a Waqf and (ii) relating to a Waqf property.

4. As per the order impugned, the learned Munsiff dismissed the petition after giving emphasis to the decision of the Honourable Supreme Court reported in [(2010) 8 SCC 726], Ramesh Gobindram (dead) through Lrs. v. Sugra Humayun Mirza Wakf, holding the view that no Suit or other proceedings except one covered under Sections 6 and 7 of the Act, a civil court is having jurisdiction.

5. In Rashid Wali Beg's case (supra), the Honourable Supreme Court dealt with all 14 decisions earlier rendered by the Apex Court in this regard and finally relying on the 3 Bench decision of the Apex Court in [AIR 2021 SC 1775], Kiran Devi v. Bihar State Sunni Wakf Board, it has been held in para.55, 56, 57 and 58 as under :

“55. It is well settled that the court cannot do violence to the express language of the statute. Section 83 (1) even as it stood before the amendment, provided for the determination by the Tribunal, of any dispute, question or other matter (I) relating to a waqf; and (ii) relating to a waqf property. Therefore to say that the Tribunal will have jurisdiction only if the subject property is disputed to be a waqf property and not if it is admitted to be a waqf property, is indigestible in the teeth of Section 83(1).

56. In fact, Section 83(5) of the Act makes it clear that the Tribunal shall be deemed to be a Civil Court and shall have the same powers as may be exercised by a Civil Court under the Code of Civil Procedure, while trying a suit or executing a decree or order. This is why this Court held in Syed Mohideen and Anr. v. Ramanathapura Peria Mogallam Jamath and Ors. : MANU/SC/0550/2010 : (2020) 13 SCC 62 that the Waqf Tribunal will have power to issue temporary injunctions under Order XXXIX, Rule 1 Code of Civil Procedure.

57. We must also point out at this stage that all the 14 decisions which we have tabulated in paragraph 13 above, except the one at Sl.No.13, namely Kiran Devi v. Bihar State Sunni Waqf Board, are decisions of two member benches. Kiran Devi was a decision of a three member bench of this Court. In Kiran Devi, an objection to the maintainability of the proceeding before the Waqf Tribunal was raised on the basis of the decision in Ramesh Gobindram. But this Court refused to accept it on the ground that once the order of transfer of the suit from the Civil Court to the Waqf Tribunal had attained finality, the question of jurisdiction cannot be raised. If Waqf tribuinal had no jurisdiction at all, this Court could not have held in Kiran Devi that the order of transfer already passed cannot be undone by accepting this plea. The decision of the three member bench in Kiran Devi is significant in the sense that it recognized the fact that Ramesh Gobindram cannot be used as a magic wand to toss the proceedings relating to a waqf property from one forum to another. The dichotomy created in some decisions of this Court, between the properties which are admitted