ASLAM AND OTHERS Vs. VIMAL KUMAR AND OTHERS

JUDGEMENT

(1.) Being aggrieved by the order dated 25.7.2017 passed by the Civil Judge, Class-II, Bhanpura, District Mandsaur in Civil Suit No.19-A/2014, rejecting the application under Order 7 Rule 11 (D) of the C.P.C. filed by the defendants, this revision has been preferred.

(2.) It is not in dispute that the plaintiffs filed the suit in respect to Survey No.1644 admeasuring area 0.235 hectare seeking relief of permanent injunction. It is said that they are having right to approach on the said land from the every inch at the main road. Therefore, the defendants be restrained from interference at the use of the said land and they be also restrained to formulate a new Kabristan. The defendants at the first instance,filed an application under Section 7 Rule 11 (D) of C.P.C. read with Section 85 of Wakf Board Act, 1995, alleging that the land of Survey No.1644 admeasuring area 0.002 and 0.004 is of the Masjid and the Wakf property. Therefore, having dispute in respect of said land, it can be determined by the Wakf Tribunal and the jurisdiction of the Civil Court is expressly barred, as per Section 85 of the Act.

(3.) In reply of the said application filed by the plaintiffs, interlia contained that the Survey No.1644, total area of the land 0.235 is in possession of the plaintiffs and the defendants want to interfere in his possession. It is further stated that the land of 0.002 hectare is not a land of Wakf Board, therefore, the Civil Court is having jurisdiction to decide the suit, regarding injunction. The defendants by filing a Notification of the property of the Wakf Act dated 1.9.1989 specifically stated that the property of Survey No.1644 admeasuing area 0.004 hectare is of the Masjid, and the Wakf property. Considering the reply filed by the plaintiffs to the application under Order 7 Rule 11 (D) as well as relief prayed for, in the suit, in my considered opinion, the defendant is make out a case at bar of jurisdiction of the Civil Court because the total land of Survey No.1644 is 0.235 hectare, out of which, 0.004 hectare belonging to Masjid, as per Gazette Notification, and it would be a Wakf land. The fact in this regard has been denied by the plaintiff in their reply showing his possession of the entire land. Therefore, as per Section 85 of the Act "in respect of any dispute, question or other matter relating to any Wakf, Wakf property or other matter, which is required by under this Act to be determined by a Tribunal ". Therefore, in my considered opinion, rejection of the application by the trial Court is in excess to the jurisdiction, and without considering the provisions of Section 85 of the Act. In view of the foregoing, this revision is allowed. The impugned order stands set aside. The application under Order 7 Rule 11 (D) of C.P.C read with Section 85 of the Wakf Act stands allowed. In consequences thereto the trial Court shall dispose of the suit, however, it is open to the plaintiffs to take recourse before the Wakf Tribunal. Certified copy, as per rules.