Nagina Masjid Committee, Wardha, ... vs Samsher Khan S/O. Yakub Khan ...
2017 Latest Caselaw 5386 Bom

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                                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                                            NAGPUR BENCH, NAGPUR


                                         CIVIL REVISION APPLICATION No.76 OF 2017


                         Nagina Masjid Committee, Wardha,
                         through its Secretary,
                         Shri Altaf Idris Chini,
                         aged 43 years,
                         resident of c/o. Seema Medical Stores,
                         Itwara Chowk, Wardha, 
                         Tahsil and District Wardha.                                                  :      APPLICANT

                                            ...VERSUS...

                         Samsher Khan s/o  Yakub Khan 
                         (since deceased) through Legal heirs :
                         (1)   Rehmatbi wd/o. Samsher Khan,
                                 Aged about 50 years,
                         (2)   Ku. Shaista d/o. Samsher Khan,
                                 Aged about 30 years,
                         (3)   Ku. Shahin d/o. Samsher Khan,
                                 Aged about 28 years,
                         (4)   Firoz s/o. Samsher Khan,
                                 Aged about 25 years,
                         (5)   Ku. Zinat d/o. Samsher Khan,
                                 Aged about 23 years,
                         (6)   Ku. Rubina d/o. Samsher Khan,
                                 Aged about 21 years.

                                 All residents of c/o. Pohane, 
                                 Near Pawade Chowk,
                                 Wardha, Tahsila and District Wardha.

Amendment as                     All r/o. Near Hotel Mejwani,
per Court's order 
                                 Dattapur, Old Quarters, Nagpur Road,
dt.21.3.2017.
                                 Wardha, Tah. & Distt. Wardha.                                         :      RESPONDENTS

                         =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-
                         Shri Masood Shareef, Advocate for the Applicant.
                         Shri D.R. Bhoyar, Advocate for the Respondent Nos.1 to 6.
                         =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-




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                                                       CORAM  :   S.B. SHUKRE, J.

st DATE : 1 AUGUST, 2017.

ORAL JUDGMENT :

1. Heard.

2. Rule. Rule made returnable forthwith. Heard finally by

consent.

3. The order of the learned Ad-hoc District Judge passed in

appeal being Misc. Civil Appeal No.6/2015, dated 29 th August, 2015 has

been challenged for its legality and correctness in this revision

application. By this order, the learned Ad-hoc District Judge set aside the

order dated 1.9.2014 passed by the trial Court directing return of the

plaint for being presented to the appropriate authority/Tribunal and

further directed that the original civil suit be restored to its original file

on the ground that for exercising jurisdiction under Order VII Rule 10 or

for that matter under Order VII Rule 11, it is only the plaint pleadings

which are required to be gone into and that the defence of the defendant

taken in the written statement should not be considered.

4. Shri Masood Shareef, learned counsel for the applicant

submits that at least a direction for framing of an issue on the point of

non-availability of the jurisdiction of the Civil Court in view of the

provisions of Section 85 of the Wakf Act, 1995 be issued. Learned

J-cra76.17.odt 3/3

counsel for the respondents has no objection to the same.

5. Having considered the reasons stated in the impugned order,

I do not think that there is any illegality or perversity committed by the

learned Ad-hoc District Judge in directing restoration of the suit to the

original file. However, as it is the specific defence taken by the applicant

that the suit property is a Wakf property and, therefore, there is a bar of

jurisdiction of the Civil Court under Section 85 of the Wakf Act, 1995, I

feel that the issue on this aspect of the case is required to be framed and

adjudicated upon by following the procedure under Order XIV of the

Code of Civil Procedure.

6. In this view of the matter, this revision application deserves

to be dismissed and it is dismissed accordingly.

7. However, it is directed that the trial Court shall frame issues

on such lines as -

"Whether the defendant proves that the suit property is a

Wakf property and whether the defendant proves that the jurisdiction of

the Civil Court is ousted under Section 85 of the Wakf Act 1995 ?", and

decide the same in terms of the provisions of Order XIV C.P.C.

7. The parties to bear their own costs.

8. Rule is discharged in the above terms.

JUDGE wadode.