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2008 DIGILAW 1334 (RAJ)

Janeb v. Rajasthan Board of Muslim Wakf

2008-05-12

VINEET KOTHARI

body2008
Hon'ble Dr. KOTHARI, J.—Heard learned counsels. 2. This appeal is directed against the order dated 14.8.1998 passed by the learned Trial Court rejecting the suit of the plaintiff under Order 7 Rule 11 C.P.C. 3. Learned counsel for the appellant urged that the questions of facts requiring evidence were involved in the matter and the plaint averments clearly show that the land in question was abadi land and, therefore, the learned trial court could not have rejected the suit as not maintainable holding that the said land was agricultural land and, therefore, revenue suit could have been filed in the Revenue Court. 4. Initially the learned counsel for the respondents raised objection that in view of bar of jurisdiction contained in Section 8 of the Wakf Act, 1985 the civil Court was not competent to decide the said civil suit and the matter should have left to be decided by Wakf Tribunal. He relied upon a judgment of this Court in AIR 2001 Rajasthan 19 (Sayed Inamul Haq Shah vs. State of Rajasthan). However, he did not press the submission, confronted with a later Supreme Court decision in Sardar Khan & Ors. vs. Syed Najmul Hasan (Seth) & Ors., AIR 2007 SC 1447 in which the aforesaid Rajasthan High Court decision was held to be no longer to law. However, he submitted that the land in question being agricultural land, the Revenue Court alone could have tried the said suit. 5. Having considered the rival submissions and upon perusal of the plaint averments from the record of the trial court, this Court is satisfied that the learned trial Court has erred in rejecting the suit on application under Order 7 Rule 11 C.P.C. 6. Whether the land in question was abadi land or not was itself a question which was required to be decided, if the objection was raised by the defendants in their written statement, by framing issue in this regard and from the plaint averments, it cannot be said prima facie that the suit was not triable as a civil suit by the learned trial court. Other questions of facts are also apparently involved in the said suit which in the opinion of this Court, deserved to be decided by the learned trial court as a civil suit. Therefore, the order of the learned trial court allowing the application under Order 7 Rule 11 cannot be sustained. 7. Other questions of facts are also apparently involved in the said suit which in the opinion of this Court, deserved to be decided by the learned trial court as a civil suit. Therefore, the order of the learned trial court allowing the application under Order 7 Rule 11 cannot be sustained. 7. Accordingly, this appeal is allowed and the impugned order dated 14.8.1998 is set aside and the suit is restored to the learned trial court for trial in accordance with the law. No order as to costs. The record of the trial Court be sent back forthwith.