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2014 DIGILAW 1636 (ALL)

MOHAMMAD MUKHTAR AHMAD v. GHULAM ABDUL QADIR ALVI

2014-05-20

MANOJ MISRA

body2014
JUDGMENT Hon’ble Manoj Misra, J.—This is a defendant’s appeal, under Order 43, Rule 1 (u) C.P.C., against the judgment and order dated 3.12.2011 passed by the Additional District Judge, Bansi, Siddharth Nagar in Civil Appeal No. 30 of 2010 by which the appeal of the plaintiff-respondent against the order dated 29.5.2010 passed by the Additional Civil Judge (Jr. Div.), Court No. 1 Bansi, Siddharth Nagar, in Original Suit No. 474 of 1992, deciding issue Nos. 4 and 10 against the plaintiff, was allowed, the trial Court’s order dated 29.5.2010 was set aside and the matter was remanded back to the trial Court to decide the suit on merits. 2. The relevant facts are that the plaintiff-respondent instituted an Original Suit No. 474 of 1992 for declaration that he is the Sajjada Nashin of Khankha Faizur-Rasool situated in village Baraun Sharif and Nazim-e-Ala (Manager-in-Chief) of Darul-Uloom Faizur-Rasool (Madarsa). It was also prayed that a declaration be made that the Will dated 4.12.1991 allegedly executed by Mohd. Siddique Ahmad in favour of defendant was illegal and it conferred no right on the defendant as Sajjada Nashin and Nazim-e-Ala of the Khankha and Darul-Uloom respectively and that it does not bind the plaintiff or the property of the Khankha. In addition to above, a permanent prohibitory injunction was also sought to restrain the defendant from interfering in the internal and external administration of the Khankha as also to retrain the defendant from interfering in the functioning of the plaintiff as Sajjada Nashin and Nazim-e-Ala of the Khankha and the Darul-Uloom respectively. 3. The plaint case, in short, was that at Mauza Baraon Nankar (Sharif), Tehsil and District Siddharth Nagar, there was a Khankha Faizur-Rasool, which was established for the benefit of the Muslim Community, alongwith a Masjid (Mosque), Darul-Uloom and a residential portion, by Maulvi Mohd. Yar Ali son of late Fazar Ali. It was alleged that Mohd. Yar Ali by a registered deed dated 2.5.1961 created a Wakf of the said property. It was alleged that under the Wakf deed, a procedure was prescribed for selecting the Sajjada Nashin. It was alleged that after the death of appointed Sajjada Nashin i.e. Maulana Mohd. Yar Ali son of late Fazar Ali. It was alleged that Mohd. Yar Ali by a registered deed dated 2.5.1961 created a Wakf of the said property. It was alleged that under the Wakf deed, a procedure was prescribed for selecting the Sajjada Nashin. It was alleged that after the death of appointed Sajjada Nashin i.e. Maulana Mohd. Siddique Ahmad on 24.1.1992, the plaintiff was selected as the Sajjada Nashin in accordance with the terms of the Wakf deed but the defendant, without any legal right or authority, by setting up an illegal Will dated 4.12.1991 of Mohd. Siddique Ahmad, had set up a rival claim. It was pleaded that as a special procedure for selecting the Sajjada Nashin was prescribed by the Wakf deed, the Will was inoperative and did not confer any right on the defendant. However, as the defendant was interfering in the management, the suit was necessitated. 4. The defendant-appellant contested the suit taking various pleas. During pendency of the suit, after the commencement of the Wakf Act, 1995, an additional written statement was filed claiming that the suit was barred by Section 85 of the Wakf Act, 1995. On the aforesaid plea, apart from other issues, issue Nos. 4 and 10 were framed, as follows : (i) Issue No. 4: Whether the suit is barred under Order VII, Rule 11 C.P.C? (ii) Issue No. 10: Whether the suit is barred by Section 85 of the Wakf Act, 1995? 5. The trial Court, by its order dated 29.5.2010, decided both the issues against the plaintiff and held that the suit was barred by Section 85 of the Wakf Act, inasmuch as, the dispute in the suit related to office of a Sajjada Nashin in respect of a Wakf property, which could only be decided by a Wakf Tribunal constituted under the Wakf Act, 1995. 6. Aggrieved by the order of the trial Court, the plaintiff preferred Civil Appeal No. 30 of 2010, which was allowed by order dated 3.12.2011 on ground that the Wakf Act, 1995 came into operation with effect from 1.1.1996 and as the suit was instituted before coming into force of the Wakf Act, 1995, it was not barred by Section 85 of the Wakf Act. While deciding as above, it relied on a decision of the Apex Court in the case of Sardar Khan and others v. Syed Najmul Hasan and another, AIR 2007 SC 1447 , as also on the provisions of Section 7(5) of the Wakf Act, 1995. Assailing this order the present appeal has been filed. 7. I have heard Sri M. Islam for the defendant-appellant and Sri M.A. Qadeer, assisted by Sri Shamim Ahmad for the plaintiff-respondent and have perused the record. 8. The learned counsel for the appellant submitted that in the suit in question adjudication of the rights of a person claiming himself to be Sajjada Nashin in respect of property dedicated for religious purposes was involved, therefore, admittedly, the dispute related to rights in respect to a wakf property. It was submitted that under sub-section (1) of Section 83, the State Government had notified a Wakf Tribunal for determination of any dispute, question or other matter relating to a wakf or wakf property and therefore the plaintiff ought to have approached the Tribunal. It was submitted that by sub-section (2) of Section 83 of the Wakf Act, 1995, any Mutawalli or person interested in a wakf or any other person aggrieved by an order made under the Act, or rules made thereunder, can make an application within the time specified in the Act and where no such time has been specified within such time as may be prescribed, to the Tribunal for determination of any dispute, question or other matter relating to the wakf. It was submitted that by virtue of Section 85 of the Wakf Act no suit or other legal proceeding shall lie before 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 the Act to be determined by a Tribunal. It was submitted that since the dispute could have been agitated before the Tribunal and decided by it, the suit in question was barred and the trial Court was legally justified in holding as such. It was submitted that since the dispute could have been agitated before the Tribunal and decided by it, the suit in question was barred and the trial Court was legally justified in holding as such. It was submitted that the decision of the Apex Court in the case of Sardar Khan’s case (supra) related to an interpretation of Section 7(5) of the Wakf Act which provides that the Tribunal would not have jurisdiction to determine any matter which is the subject-matter of any suit or proceeding instituted or commenced in a Civil Court under sub-section (1) of Section 6, before the commencement of the Act or which is the subject-matter of any appeal from the decree passed before such commencement in any suit or proceeding or of any application for revision or review arising out of such suit, proceeding or the appeal, as the case may be. It was submitted that the nature of the dispute contemplated by sub-section (1) of Section 6 of the Wakf Act is as to whether a property specified in the list of wakfs is a wakf property or not or as to whether a wakf specified in such list, is a Shia Wakf or Sunni Wakf. It was submitted that in the instant suit, admittedly, the wakf in question was an unregistered wakf, therefore, there was no such dispute as contemplated by sub-section (1) of Section 6, accordingly, the provisions of sub-section (5) of Section 7 of the Wakf Act, 1995 were not attracted so as to save a suit instituted prior to the commencement of the Act from the bar of Section 85 of the Wakf Act, 1995. 9. Relying on an Apex Court’s decision in the case of W.B. Wakf Board v. Anis Fatma Begum, (2010) 14 SCC 588 , the learned counsel for the appellant submitted that all matters pertaining to Wakfs are to be agitated before the Wakf Tribunal and not before any other Court. It was, thus, submitted that the order of the appellate Court is liable to be set aside and that of the trial Court is entitled to be restored. 10. In reply to the aforesaid submissions, Sri M.A. Qadeer, the learned senior counsel appearing for the respondent, submitted that Section 85 of the Wakf Act does not have retrospective effect and, therefore, it would not apply to pending suits or other legal proceedings. 10. In reply to the aforesaid submissions, Sri M.A. Qadeer, the learned senior counsel appearing for the respondent, submitted that Section 85 of the Wakf Act does not have retrospective effect and, therefore, it would not apply to pending suits or other legal proceedings. It was submitted that in Sardar Khan’s case (supra), the Apex Court had observed as follows : “On a conjoint reading of sub-section (5) of Section 7 and Section 85, the result would be that the Act will not be applicable to the pending suits or proceedings or appeals or revisions which have commenced prior to 1.1.1996, i.e., coming into force of the Wakf Act, 1995.” 11. Sri M.A. Qadeer further submitted that apart from seeking declaration to the effect that the plaintiff was a Sajjada Nashin of the wakf, a declaration was also sought that the Will set up by the defendant, allegedly executed by Maulana Mohd. Siddique Ahmad on 4.12.1991, in his favour, was illegal and ineffective. It was submitted that such a relief could only be granted by a Civil Court and, therefore, the civil suit cannot be said to be barred by Section 85 read with Section 83 (2) of the Wakf Act. In support of this contention, reliance was placed on Apex Court’s decision in the case of Bhanwar Lal and another v. Rajasthan Board of Muslim Wakf and others, 2013 All CJ 1949. The learned counsel for the respondent further submitted that ouster of Civil Court’s jurisdiction ought not to be readily assumed unless specifically provided for and that no statute operates retrospectively and affect pending proceedings unless it is specifically provided so, in the statute. It was submitted that in Wakf Act, 1995, there is no provision which may go to show that it would affect pending proceeding of a civil suit. It was submitted that there is no provision in the Wakf Act, which may provide for abatement of pending suits or for transfer of pending suit proceedings to a Tribunal created under the Act. Therefore, it could safely be inferred that the provisions of Section 85 do not affect suit proceedings instituted prior to the commencement of the Act. It was submitted that there is no provision in the Wakf Act, which may provide for abatement of pending suits or for transfer of pending suit proceedings to a Tribunal created under the Act. Therefore, it could safely be inferred that the provisions of Section 85 do not affect suit proceedings instituted prior to the commencement of the Act. It was submitted that since the suit in question was instituted in the year 1992 whereas the Wakf Act, 1995 came into force with effect from 1.1.1996, the suit would continue before the Civil Court and would not be barred by Section 85 of the Wakf Act. It was thus submitted that the judgment and order passed by the lower appellate Court needs no interference. 12. On perusal of the record and on consideration of the rival submissions, the points that arise for adjudication in the present appeal are as follows : (i) Whether the suit, as framed, was maintainable before a Civil Court and not barred by Section 85 read with Section 83 (2) of the Wakf Act? If so, its effect? (ii) Whether Section 85 of the Wakf Act, 1995 would apply to a suit or other legal proceeding instituted prior to the commencement of the Wakf Act, 1995? If so, its effect? 13. To decide the aforesaid questions, it would be useful to refer to the relevant provisions of the Wakf Act, 1995. The Wakf Act was enacted as an Act to provide for the better administration of wakfs and for matters connected therewith or incidental thereto. Sub-section (1) of Section 83 of the Wakf Act, 1995 provides that the State Government shall, by notification in the Official Gazette, constitute as many Tribunals as it may think fit, for the determination of any dispute, question or other matter relating to a waqf or waqf property. Sub-section (2) of Section 83 provides that any mutawalli person interested in a wakf or any other person aggrieved by an order made under the Act, or rules made thereunder, may make an application within the time specified in the Act and where no such time has been specified within such time as may be prescribed, to the Tribunal for determination of any dispute, question or other matter relating to the wakf. Section 85 of the Act bars the jurisdiction of a Civil Court in respect of any dispute, question or other matter which is required by or under the Act to be determined by a Tribunal. Section 85 reads as follows : “85. Bar of Jurisdiction of Civil Courts.—No suit or other legal proceeding 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”. 14. A plain reading of Section 85 of the Act would go to show that the Civil Court’s jurisdiction is excluded only in cases where the matter in dispute is required under the Act to be determined by the Tribunal. In the case of Ramesh Gobindram v. Sugra Humayun Mirza Wakf, (2010) 8 SCC 726 , the Apex Court was required to decide as to whether a Wakf Tribunal constituted under Section 83 of the Wakf Act, 1995 was competent to entertain and adjudicate upon disputes regarding eviction of occupants of wakf properties. While deciding the aforesaid question, the Apex Court after noticing the provisions of Section 85 of the Wakf Act observed that a plain reading of the said section would show that the Civil Court’s jurisdiction is excluded only in cases where the matter in dispute is required under the Act to be determined by the Tribunal. The words “which is required by or under this Act to be determined by a Tribunal” holds the key to the question whether or not all disputes concerning the wakf or wakf property stand excluded from the jurisdiction of the Civil Court. It was observed that whenever a question arises whether “any dispute, question or other matter” relating to any “wakf or wakf property or other matter” falls within the jurisdiction of a Civil Court, the answer would depend upon whether any such dispute, question or other matter is required under the Act to be determined by the Tribunal constituted under the Act. If the answer be in the affirmative, the jurisdiction of the Civil Court would be excluded qua such a question, for in that case the Tribunal alone can entertain and determine any such question. If the answer be in the affirmative, the jurisdiction of the Civil Court would be excluded qua such a question, for in that case the Tribunal alone can entertain and determine any such question. While considering the import of Section 83 of the Act, the Apex Court observed that there is nothing in Section 83 to suggest that it pushes the exclusion of the jurisdiction of the Civil Courts beyond what has been provided for in Section 6(5), Section 7 and Section 85 of the Act. It was observed that Section 83 simply empowers the Government to constitute a Tribunal or Tribunals for determination of any dispute, question or other matter relating to a wakf or wakf property. But that does not ipso facto mean that the jurisdiction of the Civil Courts stands completely excluded by reasons of such establishment. It was observed that the expression “for the determination of any dispute, question or other matter relating to a wakf or wakf property” appearing in Section 83(1) also appears in Section 85 of the Act, but Section 85 does not, however, exclude the jurisdiction of the Civil Courts in respect of any or every question or disputes only because the same relates to a wakf or a wakf property. It was observed that Section 85 in terms provides that the jurisdiction of the Civil Court shall stand excluded in relation to only such matters as are required by or under the Act to be determined by the Tribunal. It was observed that the crucial question that has to be answered in a 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. 15. The law laid down by the Apex Court in the case of Ramesh Gobindram (supra), has been followed by the Apex Court in Bhanwar Lal’s case (supra) as also in Akkode Jumayath Palli Paripalana Committee v. P.V. Ibrahim Haji and others, 2013 All CJ 2096. 15. The law laid down by the Apex Court in the case of Ramesh Gobindram (supra), has been followed by the Apex Court in Bhanwar Lal’s case (supra) as also in Akkode Jumayath Palli Paripalana Committee v. P.V. Ibrahim Haji and others, 2013 All CJ 2096. In Bhanwar Lal’s case, the Apex Court had also considered the decision rendered by it in W.B. Wakf Board’s case (supra) and observed as follows : “20. Another aspect of this Act came up for consideration in the case of Board of Wakf, West Bengal and another v. Anis Fatma Begum and another, (2010) 14 SCC 588 . The subject-matter of the dispute in that case related to the demarcation of the wakf property in two distinctive parts, one for wakf-al-al-aulad and the remaining portion for pious and religious purposes. The demarcation was challenged on the ground that it was not in consonance with the provisions of the Wakf Deed. The Court held that it is the Tribunal constituted under Section 83 of the Act which will have exclusive jurisdiction to deal with these questions in as much as these questions pertained to determination of disputes relating to wakf property and the jurisdiction of Civil Court was ousted. 21. As per the ratio in Ramesh Gobindram (Supra) the exclusive jurisdiction lies with the Tribunal to decide only those disputes which are referred to in Section 6 and 7. Further, jurisdiction of Civil Courts is barred only in respect of such matters and the matters which are not covered by Section 6 and 7 of the Act. Moreover, in view of the judgment in Sardar Khan’s case, the suits which are already pending before coming into force the Wakf Act, 1995 will remain in Civil Court which will continue to have jurisdiction. 22. On the basis of the aforesaid principles we proceed to discuss the present case. Interestingly, as per the Respondents themselves there is no dispute that the property in question is a wakf property. It is argued by the learned Counsel for the Respondents that even before the trial Court, the appellant had accepted that the disputed property is wakf property (Though issues framed suggest otherwise). This is so recorded in para 3 of the orders passed by the trial Court while deciding the application of the respondent for returning of the plaint. 23. It is argued by the learned Counsel for the Respondents that even before the trial Court, the appellant had accepted that the disputed property is wakf property (Though issues framed suggest otherwise). This is so recorded in para 3 of the orders passed by the trial Court while deciding the application of the respondent for returning of the plaint. 23. The suit is for cancellation of sale-deed, rent and for possession as well as rendition of accounts and for removal of trustees. However, pleading in the suit are not filed before us and, therefore, exact nature of relief claimed as well as averments made in the plaint or written statements are not known to us. We are making these remarks for the reason that some of the reliefs claimed in the suit appeared to be falling within the exclusive jurisdiction of the Tribunal whereas for other reliefs civil suit would be competent. Going by the ratio of Ramesh Gobind Ram (supra), suit for possession and rent is to be tried by the Civil Court. However, suit pertaining to removal of trustees and rendition of accounts would fall within the domain of the Tribunal. In so far as relief of cancellation of sale-deed is concerned this is to be tried by the Civil Court for the reason that it is not covered by Section 6 or 7 of the Act whereby any jurisdiction is conferred upon the Tribunal to decided such an issue. Moreover, relief of possession, which can be given by the Civil Court, depends upon the question as to whether the sale-deed is valid or not. Thus, the issue of sale-deed and possession are inextricably mixed with each other. We have made these observations to clarify the legal position. In so far as present case is concerned, since the suit was filed much before the Act came into force, going by the dicta laid down in Sardar Khan case, it is the Civil Court where the suit was filed will continue to have the jurisdiction over the issue and Civil Court would be competent to decide the same.” From the law noticed above, what is clear is that the jurisdiction of a Civil Court is ousted only in respect of those matters which the Tribunal is under the Act or the Rules required to deal. Therefore merely because a dispute may be raised before a Tribunal would not bar the jurisdiction of a Civil Court unless it could be shown that such a dispute is required by or under the Wakf Act to be determined by a Tribunal. In the instant case, the learned counsel for the appellant has failed to show any provision of the Wakf Act, 1995 which may go to show that the suit as framed was required to be agitated before the Wakf Tribunal. Accordingly, in the light of the decision of the Apex Court in Ramesh Gobindram’s case (supra), which has been followed in Bhanwar Lal’s case (supra), the point No. 1 is decided against the defendant-appellant. 16. The question whether Section 85 of the Wakf Act would apply to suits pending before the commencement of the Act has already been answered in the negative by the Apex Court in Sardar Khan’s case (supra) as well as Bhanwar Lal’s case (supra), therefore, it requires no further discussion. However, it would be useful to refer to a decision of the Apex Court rendered in the case of R. Rajagopal Reddy and others v. Padmini Chandrasekharan, (1995) 2 SCC 630 , where interpretation of the phrase “no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other person shall lie”, as it occurs in Section 4(1) of Benami Transactions (Prohibition) Act, 1988, came for consideration. In the case of R. Rajagopal Reddy (supra) a question arose before the Apex Court, whether the provisions of Section 4(1) of Benami Transactions (Prohibition) Act, 1988 could be applied to suit, claim or action to enforce any right in property held benami against person in whose name such property is held or any other person, in such proceeding initiated by or on behalf of a person claiming to be real owner thereof, prior to the coming into force of Section 4 (1) of the said Act. While holding that the bar under sub-section (1) of Section 4 would not apply to pending suits, claim or action, the Apex Court, in paragraph 11 of its judgment observed as follows : “11. While holding that the bar under sub-section (1) of Section 4 would not apply to pending suits, claim or action, the Apex Court, in paragraph 11 of its judgment observed as follows : “11. Before we deal with these six considerations which weighed with the Division Bench for taking the view that Section 4 will apply retrospectively in the sense that it will get telescoped into all pending proceedings, howsoever earlier they might have been filed, if they were pending at different stages in the hierarchy of the proceedings even up to this Court, when Section 4 came into operation, it would be apposite to recapitulate the salient feature of the Act. As seen earlier, the preamble of the Act itself states that it is an Act to prohibit benami transactions and the right to recover property held benami, for matters connected therewith or incidental thereto. Thus it was enacted to efface the then existing right of the real owners of properties held by others benami. Such an Act was not given any retrospective effect by the legislature. Even when we come to Section 4, it is easy to visualise that sub-section (1) of Section 4 states that no suit, claim or action to enforce any right in respect of any property held benami against the person in whose name the property is held or against any other shall lie by or on behalf of a person claiming to be the real owner of such property. As per Section 4(1) no such suit shall thenceforth lie to recover the possession of the property held benami by the defendant. Plaintiff’s right to that effect is sought to be taken away and any suit to enforce such a right after coming into operation of Section 4(1) that is 19-5-1988, shall not lie. The legislature in its wisdom has nowhere provided in Section 4(1) that no such suit, claim or action pending on the date when Section 4 came into force shall not be proceeded with and shall stand abated. On the contrary, clear legislative intention is seen from the words “no such claim, suit or action shall lie”, meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any Court for seeking such a relief after coming into force of Section 4(1). On the contrary, clear legislative intention is seen from the words “no such claim, suit or action shall lie”, meaning thereby no such suit, claim or action shall be permitted to be filed or entertained or admitted to the portals of any Court for seeking such a relief after coming into force of Section 4(1). In Collins English Dictionary, 1979 Edition as reprinted subsequently, the word ‘’lie’ has been defined in connection with suits and proceedings. At page 848 of the Dictionary while dealing with Topic No. 9 under the definition of term ‘’lie’ it is stated as under: “For an action, claim appeal etc. to subsist; be maintainable or admissible.” The word ‘’lie’ in connection with the suit, claim or action is not defined by the Act. If we go by the aforesaid dictionary meaning it would mean that such suit, claim or action to get any property declared benami will not be admitted on behalf of such plaintiff or applicant against the defendant concerned in whose name the property is held on and from the date on which this prohibition against entertaining of such suits comes into force. With respect, the view taken that Section 4(1) would apply even to such pending suits which were already filed and entertained prior to the date when the section came into force and which has the effect of destroying the then existing right of plaintiff in connection with the suit property cannot be sustained in the face of the clear language of Section 4(1). It has to be visualised that the legislature in its wisdom has not expressly made Section 4 retrospective. Then to imply by necessary implication that Section 4 would have retrospective effect and would cover pending litigations filed prior to coming into force of the section would amount to taking a view which would run counter to the legislative scheme and intent projected by various provisions of the Act to which we have referred earlier. It is, however, true as held by the Division Bench that on the express language of Section 4(1) any right inhering in the real owner in respect of any property held benami would get effaced once Section 4(1) operated, even if such transaction had been entered into prior to the coming into operation of Section 4(1), and henceafter Section 4(1) applied no suit can lie in respect to such a past benami transaction. To that extent the section may be retroactive. To highlight this aspect we may take an illustration. If a benami transaction has taken place in 1980 and a suit is filed in June 1988 by the plaintiff claiming that he is the real owner of the property and defendant is merely a benamidar and the consideration has flown from him, then such a suit would not lie on account of the provisions of Section 4(1). Bar against filing, entertaining and admission of such suits would have become operative by June 1988 and to that extent Section 4(1) would take in its sweep even past benami transactions which are sought to be litigated upon after coming into force of the prohibitory provision of Section 4(1); but that is the only effect of the retroactivity of Section 4(1) and nothing more than that. From the conclusion that Section 4(1) shall apply even to past benami transactions to the aforesaid extent, the next step taken by the Division Bench that therefore, the then existing rights got destroyed and even though suits by real owners were filed prior to coming into operation of Section 4(1) they would not survive, does not logically follow.” 17. From the decision of the Apex Court, noticed herein above, the phrase “no suit or other legal proceeding shall lie” would mean that no such suit would henceforth lie i.e. it would not lie after the commencement of the Act, 1995. In the case of Sardar Khan’s case (supra), the Apex Court had clearly laid down that the bar of Section 85 will not be applicable to the pending suits or proceedings which have commenced prior to 1.1.1996. It is accordingly held that the instant suit which was instituted prior to the commencement of the Wakf Act, 1995 would not be barred by Section 85 of the Wakf Act. 18. In view of the discussion made above, the decision of the lower appellate Court that the suit of the plaintiff was not barred by Section 85 of the Wakf Act, 1995 and, as such, the plaint was not liable to be rejected under Order 7 Rule 11 C.P.C., is affirmed. The appeal is dismissed. There shall be no order as to costs. —————