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1 IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH DATED THIS THE 28 TH DAY OF JUNE, 2016 BEFORE THE HON’BLE MR.JUSTICE A.S.BOPANNA WRIT PETITION No.66910/2010(GM-WAKF) BETWEEN: ANJUMAN ISLAM SOCIETY, REP BY ITS PRESIDENT NAJEER AHMED MARDANSAB ILEBUDDI, AGE : 57 YEARS, OCC:AGRICULTURE, R/O.KAGINELE, TQ:BYADAGI – 581 116 ... PETITIONER (BY SRI MADANMOHAN M KHANNUR, ADV.) AND : 1. ABDUL MUNAG NANNESAB ILIBUDDI, AGE:47 YEARS, OCC: AGRICULTURE, R/O.HAVERI – 581 115 2. ABDULSATTAR NANNESAB ILIBUDDI, AGE:45 YEARS, OCC:AGRICULTURE, R/O.KAGINELE, TQ :BYADAGI – 581 116 3. PEERMIYA NANNESAB ILIBUDDI, AGE:35 YEARS, OCC:AGRICULTURE, R/O.HAVERI– 581 115 4. CHAMAN SHARIF NANNESAB ILIBUDDI, AGE:31 YEARS, OCC:BUSINESS, R/O.HAVERI– 581 115 2 5. AMANULLA NANNESAB ILIBUDDI, AGE:29 YEARS, OCC:BUSINESS, R/O.KAGINELE, TQ BYADAGI, NOW AT HAVERI– 581 115 6. KHADARSAB NANNESAB BALUR, AGE:52 YEARS, OCC:BUSINESS, R/O.AKKI ALUR, TQ:HANAGAL 581 104 7. NASURULLA S/O.AHMEDSAB SOMASAGAR, AGE :MAJOR, OCC:BUSINESS, R/O.KAGINELE, TQ:BYADAGI – 581 116 8. MOHAMMAD ISAQ S/O.AHMEDSAB SOMASAGAR, AGE:MAJOR, OCC:BUSINESS, R/O.KAGINELE, TQ:BYADAGI – 581 116 9. SADIQ ALI S/O.MOHAMMADSAB SOMASAGAR, AGE : MAJOR, OCC:BUSINESS, R/O.KAGINELE, TQ:BYADAGI – 581 116 10. BASHIR S/O.MOHAMMADASB SOMASAGAR, AGE:MAJOR, OCC:BUSINESS, R/O.KAGINELE, TQ:BYADAGI – 581 116 11. MOHAMMADGOUS BABUSAB HAVERI, AGE:MAJOR, OCC:BUSINESS, R/O.KAGINELE, TQ:BYADAGI – 581 116 3 12. ABDULKHADAR BABAJAN ATTAR, AGE: MAJOR OCC:BUSINESS, R/O.KAGINELE, TQ:BYADAGI – 581 116 13. ABDULRAHIMAN S/O.PEERMOHAMMED MULLA, AGE MAJOR OCC:BUSINESS, R/O.KAGINELE, TQ:BYADAGI – 581 116 14. IMAMSAB PEERSAB BYADAGI @ YALIGR, AGE:MAJOR, OCC:BUSINESS, R/O.KAGINELE, TQ:BYADAGI – 581 116 15. KATUMBI W/O.NANNESAB ILIBUDDI, AGE : 67 YEARS, OCC: HOUSEHOLD WORK, R/O.HOSANAGAR, TQ: HAVERI – 581 115 16. GUDUMABI W/O.NOORAHMED ILIBUDDI, AGE:42 YEARS, OCC:HOUSEHOLD WORK, R/O.SHIVAJI NAGAR, SECOND CROSS, TQ:HAVERI– 581 115 17. MAIMUNNISA W/O.ALLABAX JALLAPUR, AGE:40 YEARS, OCC:HOUSEHOLD WORK, R/O.HOSANAGAR, TQ HAVERI– 581 115 18. MAHIBOOBSAB NANNESAB PASTOONI, AGE:62 YEARS, OCC:AGRICULTURE, R/O.KAGINELE, TQ:BYADAGI – 581 116 4 19. ABDUL RAHIMAN ADMSAB MALLOORU, AGE:57 YEARS, OCC:AGRICULTURE, R/O.KAGINELE, TQ:BYADAGI – 581 116 20. ABDUL RAHIMAN HUSAINSAB NAYAK, AGE:52 YEARS, OCC:AGRICULTURE, R/O.KAGINELE, TQ:BYADAGI – 581 116 ... RESPONDENTS (BY SRI UMESH C AINAPUR, ADV. FOR R1 & R6) THIS PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO; QUASH THE JUDGMENT AND DECREE DATED: 06/07/2010 IN NO. KWT HVR. O.S.NO.1/2003 (OLD NO.71/1997), PASSED BY THE COURT OF PRESIDING OFFICER, KARNATAKA WAKF TRIBUNAL, BELGAUM DIVISION, AT:BELGAUM VIDE ANNEXURE-C AND DECREE THE SUIT AS PRAYED. THIS PETITION COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING: ORDER The petitioner is before this Court assailing the judgment and decree dated 06.07.2010 in O.S.No.1/2003 (Old No.71/1997) passed by the Court of the Presiding Officer, Karnataka Wakf Tribunal, Belagavi Division, Belagavi. 5 2. The petitioner is a Wakf institution. The suit was originally filed before the Court of Civil Judge, Byadagi seeking specific performance of the agreement referred to in the suit. When the suit was pending before the Civil Court, the same was transferred to the Wakf Tribunal, since the plaintiff in the suit claimed to be a Wakf institution. On transfer, it was registered as KWT/HVR/O.S.No.1/2003 before the Wakf Tribunal. The Wakf Tribunal ultimately on taking note of the relief that had been claimed in the suit was of the opinion that the Wakf Tribunal will not have jurisdiction to proceed with the suit keeping in view the provision contained in Section 83 of the Karnataka Wakf Act, 1995, and as such, returned the plaint to the plaintiffs to re-present the same before the Court having jurisdiction to entertain the suit. The petitioner- institution claiming to be aggrieved is before this Court. 6 3. The petitioners in order to establish that they are a Wakf institution have sought to rely on the order dated 30.04.1986 as at Annexure-A, whereunder the Managing Committee for the petitioner-Wakf institution has been constituted by the Karnataka Board of Wakfs. The issue however is not with regard to the status of the petitioner as a Wakf institution. What requires consideration is with regard to the subject matter of the suit as to whether the property involved in the suit is a wakf property since Section 83(3) of the Karnataka Wakf Act, 1995, provides that the Tribunal would have the jurisdiction in respect of the matter which relates to the wakf property which falls within the territorial jurisdiction. 4. In that light, a perusal of the plaint which had been originally filed before the Civil Court and was also available before the Wakf Tribunal in para 3 thereof would disclose that with regard to the status of the 7 property which has been referred therein relating to which the petitioner is stated to have entered into an agreement, it is clearly indicated that the property was owned by Sri Nannesab as Malki property and he was selling it as he was in need of the funds. The said averment made in the plaint will disclose that the suit schedule property is a private property which was proposed to be purchased by the petitioner for the establishment of a Urdu School and the property in question is not a wakf property. 5. Therefore until the property in question is purchased by the petitioner-Wakf institution, the said property which is a private property cannot be considered as a wakf property and it is only after the agreement is proved in accordance with law and if a decree is granted in favour of the petitioner, the property in question would become a wakf property. 8 6. Therefore the Wakf Tribunal in the instant case no doubt was justified in arriving at its conclusion that it does not have jurisdiction to proceed further with the suit. Though such conclusion has been reached, the Wakf Tribunal was not justified in returning the plaint to the petitioner through a judgment and order. Since at the first instance, the petitioner had rightly filed the suit before the Civil Court and since at that point, the Wakf Tribunal had arrived at the conclusion that it does not have jurisdiction to proceed with the matter, appropriate course for the Wakf Tribunal is to retransfer the records to the Civil Court so as to enable it to entertain the suit which in fact was instituted before it, as otherwise with the procedure as adopted by the Wakf Tribunal, the parties would suffer because the limitation provided under law may also come into play. 7. For the said purpose, the judgment and order would have to be set aside. The matter will have 9 to be remitted to the Wakf Tribunal with a direction to retransfer the case to the Civil Court before whom the petitioner originally had filed the suit. 8. In that view, the judgment and order dated 06.07.2010 passed in KWT/HVR O.S.No.1/2003 is set aside. The matter is remitted to Karnataka Wakf Tribunal, Belagavi, which shall restore the suit and thereafter pass appropriate orders to retransfer the suit to the Court of the Civil Judge, Byadagi, which on receipt of the records shall register the same, issue fresh suit summons to all the parties and thereafter proceed further in accordance with law. In terms of the above, the petition stands disposed of. Sd/- JUDGE hrp.

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