KHALID GAJDAR Vs. MOHAMMAD ASFAK AND ORS.

JUDGEMENT

(1.) Petitioner-defendant has laid this writ petition challenging the order dated 20th March, 2009 (Annex.7) passed by the learned Additional Civil Judge (Junior Division) No.7, Jodhpur (for short, 'learned trial Court'), whereby the learned trial Court decided Issue No.6 in favour of respondents/plaintiffs and against the petitionerdefendant. The learned Court below on adjudicating Issue No.6 has found that the suit property is not a wakf property and as such suit of respondent-plaintiffs is not barred by virtue of Section 85 of the Wakf Act, 1995 (for short, 'Act of 1995').

(2.) The bare necessary facts for adjudication of the lis involved in the matter are that the respondent-plaintiffs instituted a civil suit for perpetual injunction against the petitioner and other proforma respondents for not interfering in their peaceful possession of the disputed property situated at Babanadi, Samsan Road, Bhika Piou, outside Siwanchigate. It is, inter alia, pleaded by the respondents that suit property is in possession of the parents of respondent-plaintiffs and respondents since last more than 50 years and Urban Improvement Trust has also issued patta in their names. Against the respondent-UIT, injunction was also sought for restraining it from cancelling the patta issued in the name of respondent-plaintiffs.

(3.) The suit was contested by the petitionerdefendant and a written statement was filed. In the written statement, the petitioner has raised specific objection questioning the jurisdiction of civil court by asserting that suit property is a wakf property, and therefore, on the strength of Section 85 of the Act of 1995, suit is barred by law. Besides the preliminary objection, the suit was also contested on merits by the petitioner. The proforma respondents also contested the suit. On the basis of pleadings of rival parties, learned trial Court framed issues for determination and Issue No.6 was framed in the following terms :-