Waqf claim alone cannot end partition suit at threshold; Calcutta High Court says trial must examine whether property is on auqaf list

The plaintiffs brought a partition suit concerning property of which half was admitted to be wakf property and half secular.

The property had not been partitioned or demarcated by metes and bounds.

The Trial Court, treating maintainability as a preliminary issue under Order XIV Rule 2 of the Code of Civil Procedure (CPC), held that disputes concerning title to wakf property fell within the Wakf Tribunal’s jurisdiction and dismissed the suit.

The plaintiffs appealed, relying on Habib Alladin v. Mohammed Ahmed; the defendants relied on a compromise decree concerning the wakf portion in an earlier suit.

The record did not plead that the disputed property appeared in any list of auqaf.

Whether the civil suit could be dismissed at the preliminary stage as barred by the Wakf Act, 1995, when it was not established on the pleadings that the disputed property appeared in a list of auqaf.

Whether the question of the Civil Court’s jurisdiction should instead be determined at trial, on evidence and alongside the other issues.

Section 9 CPC gives Civil Courts jurisdiction over suits of a civil nature unless jurisdiction is expressly or impliedly barred.

Under Sections 6 and 7 of the Wakf Act, 1995, the Tribunal’s jurisdiction relevant to this dispute concerns questions about property specified as wakf property in a list of auqaf.

Section 85 bars Civil Court jurisdiction only in matters that the Act requires the Tribunal to determine; it does not create an absolute ouster.

Section 83 provides for the constitution of Tribunals but is not, by itself, an expansive grant of jurisdiction.

Under Order XIV Rule 2 CPC, an issue may be decided preliminarily only where it can be determined without further evidence and the legal bar appears from the pleadings.

The Court applied the Supreme Court’s decision in Habib Alladin v. Mohammed Ahmed, 2026 SCC OnLine SC 119, which considered, among other authorities, W.B. Wakf Board v. Anis Fatma Begum, (2010) 14 SCC 588, and Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726, and held that the Tribunal’s jurisdiction and Section 85 bar must be assessed in light of the Act’s specific jurisdictional provisions.

Because the property remained undivided, the wakf estate and the appellants each claimed rights in the property as co-owners.

The pleadings did not establish that the property was included in a list of auqaf, a fact material to the Tribunal’s jurisdiction under Sections 6 and 7.

The Court therefore held that the jurisdictional question could not be conclusively determined on the pleadings alone and might require evidence at trial; it was not suitable for preliminary determination under Order XIV Rule 2 CPC.

The Civil Court’s jurisdiction could not be treated as barred without first determining whether the statutory conditions for Tribunal jurisdiction were met.

The matter was remanded for fresh adjudication on the merits, with the maintainability question to be considered at trial as one of the issues, including whether the suit property or any part of it appears in a list of auqaf under Sections 6 and 7 of the Wakf Act, on any evidence led by the parties.

The High Court expressed no conclusive view on maintainability; the Trial Court must decide it independently and in accordance with law.

The connected application was disposed of, with no order as to costs.