IN THE HIGH COURT OF JAMMU AND KASHMIR

AT SRINAGAR

CR No.46/2018

Reserved on: 28.12.2020

Pronounced on: 16 .04.2021

Mohammad Shafi Allayee.

……. Petitioner(s)

Through:

None

Versus

Ali Mohammad Allayee and Ors.

……. Respondent(s)

Through:

Ms. Sheeba Rashid, Advocate

CORAM:

HON’BLE MR. JUSTICE VINOD CHATTERJI KOUL, JUDGE

JUDGEMENT

1. Petitioner seeks setting-aside of order dated 12.10.2018, passed by Munsiff,

Chadoora, (hereinafter referred to as “Trial Court”), on an application under

Order VII Rule 11 of the Code of Civil Procedure.

2. Briefly put, it is stated that petitioner filed a civil suit seeking following relief:

i. A decree of declaration may be passed in favour of the plaintiff against the

defendants whereby the plaintiff be declared entitled to get and receive the

consideration amount of the said land in terms of present market value existing

on spot and deal already done by the plaintiff with the defendants 01 to 04 with

regard to construction of Mosque thereon the suit land be declared void and

alternately the plaintiff be declared the owner, possessor and title holder of the

suit land.

ii. A decree of permanent injunction may be passed in favour of the plaintiff and

against the defendants whereby the defendants be permanently restrained from

using or utilizing the path of frequence created by the defendants 01 to 05

through the suit land until due compensation is paid to the plaintiff.

3. Defendants/contesting respondents filed an application under Order VII Rule

11 CPC, which has been allowed by the Trial Court vide order dated

12.10.2018 and a decree sheet has also been also made, in which it is reflected

that as is established the property in question belongs to the Waqaf/Mosque,

so the dispute between plaintiff/petitioner and defendants/ respondents can

be decided by the Authority created under the Waqaf Act and, as a result

whereof, the Trial Court is having no jurisdiction to decide the matter, and

application filed by defendants under Order VII Rule 11 CPC is allowed and

the suit of plaintiff is dismissed for want of jurisdiction.

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CR no.46/2018

4. I have gone through the record on the file and considered the matter.

5. It is stated in the revision petition on hand that the controversy projected by

petitioner in the suit is virtually a claim, seeking recovery of balance

consideration amount with further prayer of injunction that the respondents/

defendants be restrained from using or utilizing the path created by the

defendants 1 to 5 through the suit land, unless due compensation is paid to

him. It is also contended that the relief prayed for relates to entitlement of

the amount and in the event respondents/defendants will not pay the

consideration amount of the suit land to the petitioner, he be declared its

owner in possession. Petitioner also states that since no title has been created,

therefore, property continues to be in his ownership and if proper documents

are not executed in lieu of consideration, the transfer of title in favour of the

Masjid Sharief will not be created. It is also stated that factual gamut

projected through the suit does not involve any question or any dispute vis-

à-vis the Wakaf Property. Unless the property is transferred, the suit property

will not be called as Waqaf Property. It is averred that the Trial Court has, on

an erroneous assumption of the facts, observed that the question involved in

the suit is triable by the Wakaf Court and erroneously returned a finding,

which is illegal, unlawful and without jurisdiction. Petitioner also submits

that Trial Court has jurisdiction in view of the fact position that the relief

prayed for is with respect to the claim for balance consideration and since no

title has been created, the property continues to be in ownership of petitioner/

plaintiff. The respondents are stated to have played a fraud and deception an