IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.455 of 2007 ---- Md. Islam son of Late Md. Ismail, Resident of Peer Mansoor, P.S. Civil Line, Town and District-Gaya. -- Defendant- Petitioner. Versus 1. Nayeem Shah 2. Muslim Shah 3. Budhan Shah Nos.1 to 3 sons of Ismail Shah 4. Aslam Shah 5. Anwar Shah 6. Shakeel Shah 7. Guddu Shah Nos. 4 to 7 sons of Kanu Shah @ Kalim Shah 8. Jabbar Shah son of Jhanu Shah 9. Nathun Shah son of Suleman Shah 10. Md. Suleman Shah son of Habib Shah, 11. Md. Naushad Shah son of Md. Iliyas Shah All residents of Mohalla Peer Mansoor, P.S. Civil Line, Gaya, Distict-Gaya. -- Plaintiffs-Opposite Parties. ---- For the petitioner : Mr.Abbas Haider, Advocate For the opposite parties : Mr. Raghib Ahshan, Senior Advocate Mr. Anil Kumar Sinha, Advocate ----- 05. 19.08.2009 Heard learned counsel for the petitioner as well as learned counsel for the opposite parties. 2. This civil revision has been filed by the sole defendant- petitioner challenging order dated 17.01.2007 by which learned Execution Munsif, Gaya rejected his petition dated 02.08.2006 for deciding the jurisdiction of the court as a preliminary issue in Eviction Suit No.14 of 2006. 3. The aforesaid suit was filed by plaintiffs-opposite parties for eviction of the defendant-petitioner from the suit property on the - 2 - ground of default in payment of rent. In the said suit, the defendant- petitioner appeared and filed an application for deciding the question of jurisdiction of the court as a preliminary issue. This application has been rejected by the learned court below vide order dated 17.01.2007 which is under challenge in the instant civil revision. 4. The claim of the petitioner was that the suit property is a Wakf property recorded as such in the register of the Bihar State Sunni Wakf Board and hence in view of the prohibition provided under Section 32 of the Bihar Buildings (Lease, Rent & Eviction) Control Act, 1982, the court has no jurisdiction to decide the suit under the aforesaid Act as well as under the provisions of Section 85 of the Wakf Act, 1995. The plaintiffs-opposite parties contested the said application claiming that the suit property was not a wakf property. 5. From the arguments made by learned counsel for the parties and the materials on record, including the impugned order, it is quite apparent that the main issue to be decided in the suit is as to whether the suit property is a wakf property. If it is a wakf property then obviously the suit is not maintainable, but if it is found that the suit property is not a wakf property, then the suit has to be decreed if other claims of the plaintiffs are well proved. 6. The said issue of maintainability of the suit under the Act is clearly a question of fact as to whether the suit property is a wakf property and the said issue cannot be decided at this preliminary stage as it would require elaborate evidence and - 3 - discussion on the said question of fact which would not be possible at this stage. 7. In the aforesaid facts and circumstances, this court does not find any illegality or jurisdictional error in the impugned order of the learned court below. Accordingly, this civil revision is disposed of with a direction to the learned court below to decide the aforesaid question of maintainability of the suit under the Act at the time of final hearing of the suit on all the issues, but the said issue of maintainability shall be considered as the first issue among all the issues in accordance with the specific provisions of law. Sunil (S. N. Hussain, J.)