Judgment :- 1. This appeal is directed against the judgment and decree passed by the first appellate court made in A.S.No.49 of 2004 dated 16.09.2004 in confirming the judgment and decree passed by the trial court in dismissing the suit filed in O.S.No.276 of 2001 dated 30.01.2004. 2. The appellant is the plaintiff and the respondent is the defendant. 3. The case of the plaintiff in brief before the trial court would be as follows: The Plaintiff trust, namely, Nagore Andavar Sambiranichatty Dhoopam Family Trust, is in existence from the period of plaintiff's ancestors. The vehicle used for the trust is kept in 'A' schedule of the suit property. The suit property was purchased by the plaintiff's grandfather, namely, Abdul Rahman Sirang through two sale deeds dated 17.03.1935 and 29.04.1935. After the demise of the said Abdul Rahman Sirang, his son Abdul Razack and after him, his wife Baseera and after her, the plaintiff is running the trust. The suit property is in possession and enjoyment of the plaintiff. The house, adjacent to the northern side of the suit property, is in enjoyment of the defendant. In the month of June, the defendant trespassed into the suit property and constructed a water tank and lavatory. Hence, the plaintiff sent a legal notice dated 09.04.2001 to the defendant, to which, the defendant sent a reply notice dated 16.04.2001 with false averments. Therefore, the plaintiff has filed the present suit. 4. The contentions of the defendant raised before the trial court in the written statement would be as follows:- The defendant denied all the averments made in the plaint. The plaintiff has to prove the case of the plaintiff. The plaintiff has no right to file the suit. The suit is not maintainable under law and facts. The suit property is in possession and enjoyment of the defendant over a period of 20 years and the ancestors of the defendant also enjoyed the suit property. Suit property does not belong to the plaintiff trust. The plaintiff has no right to file the suit. The suit is not maintainable under law and facts. The suit property is in possession and enjoyment of the defendant over a period of 20 years and the ancestors of the defendant also enjoyed the suit property. Suit property does not belong to the plaintiff trust. If it is assumed that the suit property was belonging to the plaintiff trust, the ownership of the plaintiff on the suit property does not arise as the suit property was purchased by one Haji M. Habibulla Sahib through a sale deed dated 05.09.1934 and a Wakf was created by him and the defendant's father namely Yusuf Sahib was appointed as hereditary trustee and the suit property was handed over to him and after his father, the defendant is enjoying the suit property. The defendant claims right over the suit property through adverse possession. Hence, the suit is not maintainable without a prayer for declaration of title. As the right of plaintiff's trust is denied, the suit is not maintainable before this Court under the Wakf Act. The suit is bad for non-joinder of necessary parties, viz., Habibulla Trust, the owner of the suit property and the Wakf Board. There is no cause of action for the suit. Hence, the suit is liable to be dismissed with costs. 5. The trial court had framed necessary issues and entered trial. It had also framed an additional issue regarding the jurisdiction of the civil court to try the suit. After appraising the evidence adduced on either side, the trial court had come to the conclusion of dismissing the suit since, it decided all the issues against the plaintiff's claim and also come to the conclusion that the civil court has no jurisdiction. 6. Aggrieved against the said judgment and decree passed by the trial court, the plaintiff preferred an appeal before the first appellate court in A.S.No.49 of 2004 and the first appellate court had framed point as to, 'whether the appeal was allowable and the judgment and decree passed by the trial court are liable to the confirmed. 6. Aggrieved against the said judgment and decree passed by the trial court, the plaintiff preferred an appeal before the first appellate court in A.S.No.49 of 2004 and the first appellate court had framed point as to, 'whether the appeal was allowable and the judgment and decree passed by the trial court are liable to the confirmed. After hearing the arguments on either side, the first appellate court has come to the conclusion that the civil court has no jurisdiction to entertain the suit and thus, dismissed the appeal without giving any finding over other issues decided by the trial court but gave permission to the plaintiff to file necessary proceedings before the Wakf Tribunal. Aggrieved upon the said judgment and decree passed by the first appellate court, the plaintiff has preferred the present Second Appeal. 7. On admission, this court had framed the following questions of law for consideration in the Second Appeal :- (i) Whether bar of suit provided under Section 87 of the Wakf Act, applies to Wakf Allal Aulad? (ii) Assuming without admitting that the Appellate Court was correct in holding that the suit is not maintainable whether it is not the court's duty to vacate the trial court's findings on merits, so that the parties can approach Wakf Tribunal appropriately? 8. Heard Mr.Srinath Sridevan learned counsel for the appellant and Mrs.M.Nalini Shree, learned counsel for the respondent. 9. The learned counsel for the appellant would submit in his argument that the first appellate court had failed in its duty to give findings in all the issues, where the trial court had given finding or to vacate those findings reached by the trial court while referring the dispute to Wakf Tribunal, but it had simply decided the jurisdictional point alone and had directed the plaintiff to go before the Wakf Tribunal and if the dispute is taken to Wakf Tribunal as directed by the first appellate court, the findings of the trial court would come as 'res-judicata' against the plaintiff and those findings are not in accordance with the facts and circumstances of the case and the first appellate court had failed in its duty to vacate those findings, while confirming the finding of the trial court that the civil court has no jurisdiction. He would further submit in his arguments that the first appellate court has also taken a view that Section 87 of the Wakf Act is a bar for unregistered Wakfs, which is not applicable to the plaintiff. He would further submit that Section 87 of the Act only applies to the suits enforcing a right on behalf of Wakf and a right, which is sought to be enforced in a suit de hors the religious characters of the plaintiff would not fall within the provisions of Section 87 of the Act. He would further submit that the Wakf Allal-Aulad is a Wakf only to the extent to which the property was dedicated as recognised under the Muslim Law as fias religious and charitable. He would further submit that the property dedicated to Wakf is being used for the support of the family of wakif, and therefore, it is a family trust, which is not required to be registered under the Wakf Act. The suit family Wakf is created for spending the balance income after the requirement and needs of the family have been fulfilled for the charity and therefore, it could not be a Wakf, out and out as per the meaning of the Act. He would further submit in his arguments that the property in dispute is belonging to the Wakf and the defendant / respondent is not at all connected with the property and he is only a trespasser. He would further submit that the defendant was not in possession and enjoyment of the suit property and the claim for adverse possession is not available to him. He would further submit in his arguments that the trial court had wrongly appraised the evidence and had come to the conclusion that the plaintiff has no right in the property and the defendant was having right in the said property which could not be sustained, in view of the decision reached that the suit was not maintainable before the civil court. He would further submit that the trial court having come to the conclusion that the suit is not maintainable for want of jurisdiction, ought not to have decided the other issues but would have ordered return of the plaint for being presented before the Wakf Tribunal. But the trial court had gone to decide all the issues, according to which the civil court has no jurisdiction. But the trial court had gone to decide all the issues, according to which the civil court has no jurisdiction. He would also submit in his arguments that the first appellate court ought to have vacated the findings reached in other issues, even if the first appellate court want to hold the point of jurisdiction as decided by the trial court as correct and in the said circumstance, it ought to have confirmed the said issue alone and to pass directions. He would further submit that both the courts had erred in coming to the conclusion that the civil court has no jurisdiction, whereas the jurisdiction of the civil court under section 9 of CPC is vast and expandable, except when such suits are barred under express or implied prohibition in the special enactment. He would further submit in his arguments that the jurisdiction regarding the civil courts have been settled in the recent judgment of the Hon'ble Apex Court reported in " 2010 (8) SCC 726 (Ramesh Gobindram (dead) through LRs. ..vs.. Sugra Humayun Mirza Wakf)" for the principle that civil court's jurisdiction is excluded under Section 85 of the Act, only in cases where the matter in dispute is required to be determined under the Act by the Tribunal. He would further submit that the property is belonging to the plaintiff Wakf and therefore, the said provisions would not be attracted in respect of other matters to be decided in between parties and therefore, Section 85 is not applicable to the present case and thus, the suit is maintainable before the Civil Court. He would also submit in his arguments that since Section 87 is not applicable to the family trust, which is a Wakf Allal Aulad and the finding of the first appellate court has to be set aside and in view of the fact that the first appellate court has not considered other issues, the said issues ought to have been decided by the first appellate court and for that purpose, the case may be remanded back to the first appellate court for giving necessary findings in respect of other issues. He would also submit that in the event that this court has come to a conclusion that the civil court jurisdiction is not available, the finding of the trial court reached in other issues may either be directed to have vacated or this court may vacate the conclusions reached by the trial court and suitable orders may be passed accordingly. 10. The learned counsel for the respondent would submit in her argument that the plaintiff has not established his title and hence not entitled to any relief as sought for by him. She would further submit that the findings reached by the trial court were based upon the evidence adduced before the said court and the trial court is entitled to pronounce judgments on all issues already framed and therefore, the findings need not be vacated in the event the judgment of the first appellate court is confirmed. She would further submit in her argument that the civil court has no jurisdiction for entertaining a dispute, which has to be decided according to the Wakf Act under Section 85 of the said Act. She would further submit that the claim of the plaintiff against the defendant was that the defendant was a trespasser and he is unlawfully in possession and enjoyment of the Wakf property and therefore, suit was filed for ejectment or recovery of possession of the suit property from him. She would further submit that the defendant had questioned the title of the plaintiff and he would claim that there was yet another trust created by the defendant's family and the said property is belonging to the said trust and the defendant was in possession and enjoyment of the suit property for over a statutory period and therefore, the plaintiff was not entitled to the suit property. She would also submit that when the defendant has questioned the proprietary right of the plaintiff over the suit property, the right and title of the suit property in favour of Wakf have to be decided under Wakf Act and therefore, it is clearly attracted under Section 85 of the Wakf Act. She would also submit that when the defendant has questioned the proprietary right of the plaintiff over the suit property, the right and title of the suit property in favour of Wakf have to be decided under Wakf Act and therefore, it is clearly attracted under Section 85 of the Wakf Act. She would also submit in her argument that even otherwise the plaintiff is an unregistered one and it is not clear that the Wakf Allal Aulad and the plaintiff Wakf ought to have been registered under the Wakf Act and till then, it cannot enforce its right, even if the plaintiff Wakf has any right over the suit property. She would further submit in her argument that the Hon'ble Supreme Court in its judgment reported in 2010 (8) SCC 726 cited supra in paragraph 22 had categorically laid down that the suit by the Wakf was maintainable and in that case since the property was admittedly belonging to the Wakf as the defendant was a tenant. As far as this case is concerned, the defendant is claiming hostile title over the suit property and the proprietary of the Wakf over the suit property has to be decided in the suit and therefore, a civil suit is not maintainable and the judgment of the Hon'ble Apex Court reported in 2010 (8) SCC 726 cited has no application. She would also submit that the trial Court had correctly gone into the questions of deciding the issues and also the issue of jurisdiction and the said conclusion was correctly confirmed by the first appellate court the judgment and decree passed by the trial court are in order and therefore, the Second Appeal preferred by the plaintiff is liable to be dismissed. She would further submit that there is no question of any necessity of remanding the matter to the first appellate court, since the first appellate court has gone into all the issues decided by the trial court and in view of the bar under section 85 of the said Act, the appeal need not be remitted back or the findings of the trial court need not be vacated. Therefore, she would request the court to dismiss the Second Appeal. 11. I have given anxious thoughts to the arguments advanced on either side. 12. Therefore, she would request the court to dismiss the Second Appeal. 11. I have given anxious thoughts to the arguments advanced on either side. 12. The plaintiff sought for the following reliefs before the trial court:- "1) directing the defendant to hand over the suit 'B' schedule property to the plaintiff after demolishing the superstructure made therein ; 2) directing the defendant to pay the costs of the suit to the plaintiff ; 3) directing the defendant to pay future mense profits to the plaintiff till the handing over of possession ; and 4) for other reliefs. 13. The defence raised by the defendant would be that the plaintiff Wakf is not entitled to the suit property and the defendant is in continuous and long possession of the suit property and he is entitled to the suit property by prescriptive title and even otherwise, the defendant Wakf is entitled to the suit property. Therefore, I could see that there was a rival claim made by the defendant over the property. Admittedly, the plaintiff is a Wakf, who claimed the suit property from the possession and enjoyment of the defendant. The judgment of the Hon'ble Apex Court reported in 2010 (8) SCC 726 cited supra, it has been categorically laid down as follows:- "18. ....... Suffice it to say that there are a host of questions and matters that have to be determined by the Tribunal under the Act, in relation to the wakf or wakf property or other matters. Section 85 of the Act clearly bars jurisdiction of the Civil Courts to entertain any suit or proceedings in relation to orders passed by or proceedings that may be commenced before the Tribunal. It follows that although Section 85 is wider than what is contained in Sections 6 and 7 of the Act, the exclusion of jurisdiction of Civil Courts even under Section 85 is not absolute. It is limited only to matters that are required by the Act to be determined by a Tribunal. So long as the dispute or question raised before the Civil Court does not fall within four corners of the powers vested in the Tribunal, the jurisdiction of the former to entertain a suit or proceedings in relation to any such question cannot be said to be barred." "21. ..... So long as the dispute or question raised before the Civil Court does not fall within four corners of the powers vested in the Tribunal, the jurisdiction of the former to entertain a suit or proceedings in relation to any such question cannot be said to be barred." "21. ..... The crucial question that shall have to be answered in every case where a plea regarding exclusion of the jurisdiction of the Civil Court is raised is whether the Tribunal is under the Act or the Rules required to deal with the matter sought to be brought before a Civil Court. If it is not, the jurisdiction of the Civil Court is not excluded. But if the Tribunal is required to decide the matter the jurisdiction of the Civil Court would stand excluded." Therefore, the point to be decided in this case would be whether the Wakf Tribunal has got the jurisdiction to decide the matter or not. 14. The contentions of the learned counsel for the respondent / defendant would be that the property as discussed in the judgment of Hon'ble Apex Court reported in 2010 (8) SCC 726 cited supra, was to the effect that it was admittedly belonging to the Wakf since the suit was filed seeking for eviction of the tenant. The further contention would be that the Hon'ble Apex Court had found that such suit against the tenant regarding the eviction are found maintainable since the property dealt with in the said judgment, was admittedly belong to the Wakf. She has also pointed out that the property in this suit is a disputed property and its proprietary right has to be decided in this suit and therefore, Section 85 is squarely applicable. For better considering the rival submissions, Section 85 has to be extracted. "85. Bar of jurisdiction of Civil Courts:- No suit or other legal proceedings shall lie in any Civil Court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal." 15. According to the provisions of said section, any dispute relating to Wakf property to be determined by a Tribunal. As far as this case is concerned, whether the suit property is belonging to plaintiff Wakf or to the defendant, has to be decided in this suit. According to the provisions of said section, any dispute relating to Wakf property to be determined by a Tribunal. As far as this case is concerned, whether the suit property is belonging to plaintiff Wakf or to the defendant, has to be decided in this suit. The trial court had elaborately discussed and found that the property does not belong to the plaintiff, but it is belonging to the defendant. Such rival claim over the suit property has to be decided in the present suit and therefore, Section 85 is squarely applicable as rightly contended by the learned counsel for the respondent. It is also to be borne in mind the guidelines given by the Hon'ble Apex Court as laid down in paragraph 21 of the aforesaid judgment. The invocation of Section 87 to enforce any right of the Wakf is also a dispute regarding the property and the applicability of Section 87 has to be decided only under the Act i.e., also under the domain of the Tribunal. Therefore the judgment and decree passed by the first appellate court that the civil court has no jurisdiction to entertain the suit is quite lawful. 16. However, it has been contended that the trial court had also found that the civil court has no jurisdiction and the Tribunal alone has got the jurisdiction, but the trial court had gone to the extent of discussing all the issues and had given findings. The trial Court did not also direct the return of plaint for being presented before the Wakf Tribunal. The said errors committed by the trial court were not corrected by the first appellate court, but it had simply dismissed the appeal with a direction to go to Wakf Tribunal by giving permission to the plaintiff. It was strenuously argued by the learned counsel for the appellant that the first appellate court ought to have corrected the errors committed by the trial court by vacating the findings reached in other issues, but it was not done so and it was notquite correct on the part of trial court to decide any of the issues. It was strenuously argued by the learned counsel for the appellant that the first appellate court ought to have corrected the errors committed by the trial court by vacating the findings reached in other issues, but it was not done so and it was notquite correct on the part of trial court to decide any of the issues. On the submissions made by the learned counsel for the appellant, I could see that the trial court ought to have desisted from rendering findings in respect of the proprietary right over the property when it had come to the conclusion that the civil court has no jurisdiction under Section 85 of the Act. Such error committed by the trial court ought to have been corrected by the first appellate court. As rightly pointed out by the learned counsel for the appellant that once the civil court has no jurisdiction, no finding can be given in respect of the subject matter of the dispute which are to be decided only by the Wakf Tribunal. In such circumstances, the trial court has to order transfer of plaint by granting permission to file appropriate proceedings before the Wakf Tribunal. The trial court had not ordered so. The appellate court did not correct it by vacating the findings. On the failure on the part of the first appellate court in not vacating the findings given by the trial court in issues Nos.1 to 9, it has become necessary for this court to set aside the findings reached by the trial court in all other issues except the additional issue. When it was found that the civil court has no jurisdiction, the courts below ought not to have ventured into the findings regarding the subject matter which have to be decided by the Wakf Tribunal. Therefore, the first appellate court was not correct in confirming the judgment and decree passed by the trial court in toto without going into the discussions with regard to the issues, the trial court had decided. The judgment and decree passed by the first appellate court in confirming the entire judgment and decree of the trial court is not correct and it ought to have upheld the additional issue framed subsequently on the question of jurisdiction of civil court and at the same time to vacate or set aside the findings reached in other issues. The judgment and decree passed by the first appellate court in confirming the entire judgment and decree of the trial court is not correct and it ought to have upheld the additional issue framed subsequently on the question of jurisdiction of civil court and at the same time to vacate or set aside the findings reached in other issues. Therefore, I am of the considered view that the judgment and decree passed by the first appellate court is liable to be set aside in part and to be confirmed in respect of the jurisdictional point only. Accordingly, the confirmation of the judgment and decree of the trial court is set aside in respect of other issues, except the additional issue regarding the jurisdiction and thus, the judgment and decree of the first appellate court is confirmed only in respect of the jurisdictional point alone. 17. With the aforesaid observation, Second Appeal is partly allowed as indicated above and accordingly, the suit filed by the plaintiff before the trial court is liable to be dismissed on the ground of jurisdiction and the other findings of the trial court are hereby vacated and set aside. As rightly pointed out by the first appellate court, the plaintiff is at his liberty to approach the Wakf Tribunal to file appropriate proceedings against the defendant for the same reliefs sought for by him in the suit. Since the findings of the trial court are vacated the Wakf Tribunal is directed to come to an independent conclusion based on the evidence to be adduced before it in the proceedings likely to be taken by the plaintiff. Time for taking appropriate proceedings before the Wakf Tribunal is 60 days from the date of receipt of a copy of this judgment. No costs.