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Hazi Tahir Hussain v. 8th Addl. D.J. And Others - WRIT - C No. 6632 of 1979 [2006] RD-AH 419 (6 January 2006)


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Court No.32

Civil Misc.Writ Petition No. 6632 of 1979

Haji Tahir Hussain and others .....Petitioners


8th Additional District Judge, Kanpur & others .....Respondents


Hon'ble S.Rafat Alam, J.

By means of this writ petition under Article 226 of the Constitution of India the plaintiffs-petitioners have come up for quashing of the order of the learned VIII Additional District Judge, Kanpur dated 24.5.1979 allowing the appeal of the defendants against the order of the II Civil Judge, Kanpur dated 22nd September, 1978.

Heard Sri Neeraj Agarwal, learned counsel for the petitioner.

It appears that the plaintiffs-petitioners filed original Suit No. 351 of 1978 for the decree of declaration to the effect that no valid Waqf came into existence by virtue of deed dated 20.4.1921 and 22.4.1937 and the property in question are not the Waqf property and thus, the defendants have no right to interfere in the management of the property and also for granting decree of perpetual injunction against defendant nos. 3 to 13 from realizing rent from defendant nos. 14 to 34. The learned trial court vide judgment and order dated 22nd September, 1978 allowed the application and granted interim injunction in favour of the defendants. The aggrieved defendants preferred Civil Misc. Appeal No. 357 of 1978, which was allowed by the order impugned in this petition.

It appears that the suit property was dedicated by waqf deed which was acted upon and the property was registered as waqf property in the year 1942 and, therefore, the learned appellate court has rightly set aside the order of the learned trial court n the ground that the suit in question was not cognizable by the civil court as the jurisdiction of the civil court is barred in view of Section 75 of the Waqf Act. Section 75 of the Act provides that no person shall institute any suit or other proceedings in any civil court with respect to any dispute or question or matter which is required or permitted under this Act to be referred to a Tribunal for adjudication. Thus, Section 75 of the Act clearly bars the jurisdiction of the civil court in respect of dispute of waqf property and it is only the Tribunal created under the Waqf Act can adjudicate such disputes.

The plaintiffs also prima facie failed to establish that the property in question is a private property. On the other hand, admittedly the Waqf Board had appointed a committee under the Act, which is managing the property, and thus the learned trial court fell in error in granting interim injunction. The learned appellate court, therefore, correctly appreciated the law and has rightly set aside the order of the learned trial court.

The impugned order of the learned VIII Additional District Judge, Kanpur does not suffer from any manifest error calling for interference under the writ jurisdiction of this Court.

The writ petition, being devoid of merit, is dismissed.

Dated: 6.1.2006



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