ASHOK KUMAR Vs. SONA KHAN

JUDGEMENT

(1.) This order shall dispose of the above-mentioned appeals, as common question of law and facts are involved in these appeals.

(2.) The two suits were filed, one by Smt. Nirmala Devi and the other by Smt. Indira Devi. Both the suits were dismissed by the trial Court on 26.9.2001 by two separate judgments. Aggrieved against the same, Smt. Nirmala Devi and Smt. Indira Devi had filed appeals. Wakf Ismailia, who was Defendant No. 8 in both the suits, also filed appeals against the judgments passed by the trial Court vide which the suits filed by Smt. Nirmala Devi and Smt. Indira Devi were dismissed. The learned Additional District Judge dismissed all the four appeals vide two separate judgments, by consolidating the appeals filed by the Plaintiff and Defendant No. 8 in both the suits separately. Aggrieved against the same, the present four appeals have been filed in this Court, two by the Plaintiffs, namely, Smt. Nirmala Devi and the legal representatives of Smt. Indira Devi and the other two appeals by Defendant No. 8, Wakf Ismailia, in both the suits.

(3.) In both the suits various issues had been framed including Issue No. 4-E, to the effect as to whether the Court had no jurisdiction to try the suits as alleged and the onus of this issue was placed on Defendant No. 8. i.e. Wakf Ismailia. The trial Court while dismissing both the suits had given findings on all the issues except on Issue Nos. 4-E and 4-F (regarding jurisdiction and stay of suit under Section 10 Code of Civil Procedure) since these two issues were treated as preliminary issues and were decided by the trial Court vide orders dated 31.8.2001. When the appeals were decided by the learned Additional District Judge, it was held by the learned Additional District Judge that 1/2 of the suit property was a Wakf property while the remaining 1/2 property was not a Wakf property, and the entire property was still joint. It was further held that since the suit property or atleast a part thereof was a Wakf property, no suit with regard to such a property was main tainable in a civil court, in view of the bar created by Section 85 of the Wakf Act, 1995. The learned Additional District Judge after holding that no suit with regard to Wakf property was maintainable in a civil court, dismissed all the four appeals by two seperate judgments, upholding the findings of the trial Court, except setting aside the findings of the trial Court with regard to ownership of the Wakf to the extent of 1/2 share and that of Defendants No. 4 and 5 to the extent of remaining 1/2 share, being uncalled for. In this manner the learned Additional District Judge dismissed the appeals of the Plaintiffs not only on the ground of the jurisdiction of the civil court but also on merits.