1 SA NO.26/2009. IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD. SECOND APPEAL NO.26 OF 2009. 1. Sou.Indubai W/o Bapurao Shirsath, Age: 52 years, Occ: Household & Agri. 2. Rajkumar S/o Bapurao Shirsat, Age: 27 years, Occ: Agriculture, 3. Suhas S/o Bapurao Shirsat, Age: 25 years, Occ: Agriculture, 4. Amol S/o Bapurao Shirsat, Age: 21 Years, Occ: Agriculture, All R/o. Nalwandi Road, Gajanan Nagar, Beed, Tq. & Dist.Beed. ...Appellants. (Ori.Plaintiffs.) VERSUS 1. The State of Maharashtra, Through: The Collector, Beed, Dist.Beed. 2. The Sub Divisional Officer, Beed, Dist.Beed. 3. The Tahsildar, Beed, Tq.& Dist.Beed. 4. The Revenue Circle Inspector, Beed, Tq. & Dist.Beed. 5. Talathi, Taraf Pingle, Beed, Dist.Beed. 2 SA NO.26/2009. 6. The District Wakf Officer, Beed, Qilla Beed, Tq.& Dist.Beed. 7. Hakim Mohammad Ekbal Khan, S/o Maheboob Khan, Age: 40 years, Occ: Agriculture. 8. Abdul Rashid Khan S/o Mustafa Khan, Age: 50 years, Occ: Agriculture. 9. Yusuf Khan Mustafa Khan, Age: 38 years, Occ: Agriculture. 10. Ismail Khan S/o Maheboob Khan, Age: 35 years, Occ: Agriculture. Respondent Nos. 7-10 are R/o: All R/o: Nalwandi Road, Gajanan Nagar, Beed, Tal. & Dist.Beed. ...Respondents. (Ori.Defendants.) ..... Shri V.D.Salunke, Advocate for the appellants. Shri M.L.Dharashive, AGP for respondent Nos. 1 to 4. Shri M.B.W.Khan,Advocate for respondent No.6. S/Shri Y.M.Khan & Amjad Khan, Advocates for respondent Nos.7 to 10. ..... CORAM: A.V.NIRGUDE,J. Date : 7th August, 2009. ORAL JUDGMENT: 1. This second appeal is filed against a peculiar judgment and order passed by the learned District Judge in Regular Civil Appeal No. 150/2008. The said appeal was filed against a peculiar order dismissing the suit filed by the 3 SA NO.26/2009. appellants (Regular Civil Suit No.184/2008). 2. The appellants filed a suit on following cause of action. . They said they purchased two pieces of land some time in 1995-1996. They said, in 1996, they applied to the Revenue Officer for mutation. They said, although the formalities were followed prior to causing the mutation, the mutation was not effected because the matter was referred to the higher authority for 'sanction'.In 2007, they said, the Revenue Officer recorded a panchanama on 23rd of June and proposed auction of the suit lands for 'yearly cultivation'. The appellants raised objections but in vain. On 29th of June, 2007, the District Wakf Officer, the respondent No.6 published an advertisement/proclamation in local newspaper that the lands would be auctioned for yearly cultivation on 18th September, 2007. The appellants, then submitted an objection to the proposed auction before the Respondent Nos. 2 to 6. However, pending the decisions of their objections on 27th November, 2007, the workers of the respondent Nos.2 to 6 tried to interfere in peaceful possession and user of the appellants. 3. The appellants,thereafter, issued notice under Section 80 of the Code of Civil Procedure, 1908 (hereinafter referred to as, "C.P.C.") and 4 SA NO.26/2009. then filed the suit seeking declaration of ownership and perpetual injunction. The respondent No.6 filed an application under the signature of his Advocate saying that the Court has no jurisdiction to try and entertain the suit in view of Section 85 of the Wakf Act, 1995. 4. Pursuant to the said application, the learned trial Court Judge framed a preliminary issue under Section 9-A of C.P.C. as, "Whether this Court has got jurisdiction to try and entertain this suit in view of Section 85 of the Wakf Act, 1995?", heard the parties and held that the Court had no jurisdiction to entertain and try the suit and instead of returning the plaint to the appellants, dismissed the suit. 5. The said order was challenged before the learned District Judge by way of a Regular Civil Appeal. The learned District Judge rightly mentioned that the trial Court had erred in dismissing the suit instead of passing an order under Rule 10 of Order VII of the Code of Civil Procedure, 1908. But since such order was not passed and since the impugned order was not a decree, the learned District Judge dismissed the appeal, I think, the learned District Judge also erred in dismissing the appeal. He should have treated the proceedings as an appeal from order. He should have treated the impugned order before 5 SA NO.26/2009. him as an order under Rule 10 of Order VII of the C.P.C. and should have returned the plaint. It was clear to him that the learned trial Court Judge had held that the Court had no jurisdiction to entertain and try the suit. Having come to such a conclusion, the learned Trial Court Judge had no other option but to return the plaint. So, the learned District Judge should have considered the proceedings as an appeal from the order, under Order 43 of the C.P.C. 6. The learned District Judge, then in such premise could have decided the main contentious issue between the parties, as to whether the Court had jurisdiction to try and entertain the suit on the basis of the contents of the plaint. Instead of undertaking such meaningful exercise and to decide the issue of jurisdiction, the learned District Judge, erroneously dismissed the appeal. I think, in view of this erroneous Judgment and order of the learned District Judge, I have no option but to remand the case back to the trial Court, where the parties would have a fresh opportunity to make submissions on the question of jurisdiction. 7. I think, the respondent who is interested in questioning the jurisdiction of the Court, should not only be ordered to file the reply to the 6 SA NO.26/2009. interim application, but should also be directed to file an application raising question of jurisdiction as contemplated under Section 9-A of the C.P.C. Such application is required to be submitted along with an affidavit, where the contesting respondent would be able to adduce evidence through such affidavit. Only on filing such pleadings, the trial Court would be able to frame first, the issue of jurisdiction and if required, then decide the interim application. I think, without expressing any opinion on the question of jurisdiction, I should remand back the case to the Lower Court. 8. The appeal is allowed. The impugned Judgment and orders passed by both the Lower Courts are set aside. The matter is remanded back to the Trial Court. 9. The respondents/defendants, if interested in raising the issue of jurisdiction etc. shall file a reply to the interim application, mentioning therein as to why they would raise issue of jurisdiction. The Trial Court, then may frame an issue of jurisdiction as preliminary one and then decide the same on the basis of the contents of the plaint. (A.V.NIRGUDE,J.) lkp