The central legal point established in the judgment is that the jurisdiction of the Civil Court to entertain disputes involving property claimed to be waqf property is not ousted unless the property is declared as waqf property in the list prepared under the Waqf Act.

JUDGMENT :

BISWANATH RATH, J.

1. This Civil Miscellaneous Petition involves setting aside of the order dated 15.5.2017 passed by the learned Civil Judge (Junior Division), Bhadrak in Civil Suit No.268 of 2014.

2. Short background involved in the case is that opposite party nos. 1 to 4 as plaintiffs filed a suit bearing Civil Suit No.268 of 2014 in the court of Civil Judge (Junior Division), Bhadrak for permanent injunction against the defendant-petitioners including opposite party no.5 also defendant no.1 in the court below. Plaintiffs claimed that the suit property is their ancestral property. In the major settlement operation, the suit property has been recorded in their names and it is alleged that the defendants having no manner of right, title, interest and possession, are trying to dispossess the plaintiffs from the suit land. Hence the suit for permanent injunction. The defendants on their appearance filed written statement denying the allegations as well as the claims made in the suit. Defendants claimed that the suit property originally belonged to Sayed Jamal Saheb, Bije Nandigaon Mirzapur, marfat Champa Saha, Gufar Saha and others. The defendants claimed to be the legal heirs of Champa Saha, Gufar Saha, Tula Saha, Bhikari Saha, Paran Saha. Sayed Jamal Saheb is the Pirastan located over the suit land, which is treated as deity of Muslim community and is being worshiped by Muslim community. It is claimed by the defendants that in the major settlement operation, the name of the plaintiffs wrongly reflected involving the suit plot, even though the plaintiffs have no right, title and interest over the property. Before commencement of evidence, the defendants filed an application to dismiss the suit on the ground that properties involved in the suit are waqf property and one litigation vide W.T. (OA) No.04 of 2016 is pending before the Waqf Tribunal, Cuttack where both the present plaintiffs and the defendants are also involved. They are fighting litigation involving the suit property herein. The opposite party nos.1 to 4 as plaintiffs filed objection stating that the property involved having not been declared in the list of waqf property, the suit is very much maintainable and the suit is not barred under Section 85 of the Waqf Act. The application at the instance of the defendants indicated hereinabove was disposed of by the trial court with an order of dismissal appearing at Annexure-6.

3. Challenging the impugned order, Sri Nayak, learned counsel appearing for the petitioners contended that the suit property being waqf property, the property comes under sub-section 5 of Section 83 of the Waqf Act ousting jurisdiction of the civil court, the trial court failed in appreciating the provision contained in Section 83 (5) as well as Section 5 of the Waqf Act and thus arrived at the wrong and erroneous impugned order. It is further contended by Sri Nayak that since the Tribunal under Section 83 of the Waqf Act is deemed to be a Civil Court and shall have the same powers as may be exercised by the Civil Court while trying a suit or executing a decree or order, this power also includes grant of permanent injunction. Therefore, the Civil Court has no jurisdiction to decide such matters. It is under the circumstances, Sri Nayak contended that there has been wrong appreciation of the issue by the trial court and therefore, the impugned order should be interfered and set aside.

Referring to a decision rendered in the case of Haryana Wakf Board v. Mahesh Kumar, 2016(I) CLR (SC)-607, Sri Nayak submitted that for the support of the decision to the case at hand, admittedly instituted after the Waqf Act came into existence, the impugned order suffers and is unless is interfered and set aside will set a bad law.

4. Sri P.K.Mohanty, learned counsel appearing for the opposite party nos.1 to 4, the plaintiffs seriously objecting the claim of the learned counsel for the petitioners submitted that the property involved in the suit having not been