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Synopsis

The Rajasthan High Court’s Jodhpur bench has affirmed that a mosque, being a place used for religious purposes such as offering Namaz, falls under the definition of ‘Waqf’ as per Section 3(r) of the Waqf Act, 1995. Consequently, any disputes concerning a mosque must be adjudicated exclusively by the Waqf Tribunal, as mandated by Section 85 of the Act.

A single-judge bench of Justice Birendra Kumar was addressing a civil revision petition filed by petitioners Shakur Shah and another, challenging an order passed by the Civil Judge, Phalodi, which had rejected their application under Order VII Rule 11 (d) of the Code of Civil Procedure (CPC) to dismiss a plaint filed by the respondents (original plaintiffs).

The dispute involved the Madina Zama Masjid, alleged to have been built with financial support from the local Muslim community, with the mosque being maintained and expanded over time by the villagers. While the petitioners (original defendants) asserted their rightful title over the mosque property, the original plaintiffs sought a permanent injunction from the civil court to prevent the defendants from interfering with the peaceful use of the mosque by the Muslim community for religious practices, including Namaz.

The trial court had ruled that the suit property was not entered in the Waqf register as Auqaf property, hence, it was not a Waqf Property and unless the property was a Waqf Property, the jurisdiction of civil court was not barred.

However, the petitioners argued that the civil court lacked jurisdiction to entertain the suit, as the dispute pertained to waqf property and therefore fell exclusively within the purview of the Waqf Tribunal, as stipulated under Section 85 of the Waqf Act. They contended that the plaint should be rejected under Order VII Rule 11 CPC for want of jurisdiction.

Disagreeing with the civil court's interpretation, the court stated: “It is not disputed that Masjid is a place used for religious purpose for praying Namaz etc., therefore, it comes within the definition of ‘Waqf’ and once the suit property is Waqf, any dispute in respect of the Waqf property is to be adjudicated by the Waqf Tribunal only and not by any other court including civil court in view of the bar under Section 85 of the Waqf Act. Therefore, the plaint was fit to be rejected under Order VII Rule 11 (d) CPC and the trial court has wrongly exercised jurisdiction vested in it.”

The court clarified that the permanent dedication of the property for constructing a mosque for purposes recognized under Muslim law rendered the property a waqf, irrespective of its registration status.

Consequently, the order of the trial court was set aside. The High Court granted liberty to the original plaintiffs to approach the Waqf Tribunal within four weeks.

 

Cause Title: Shakur Shah and another vs. Iliyas and others [SB Civil Revision Petition No. 189/2023]

Appearance: Advocate Roshan Lal for petitioners; Advocate Moti Singh for respondents