{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO.40 OF 2009 Mohammed Farooq s/o Mohammed Sadeq & Another APPLICANTS VERSUS Mohammed Azam Mohammed Sarwar & Anr RESPONDENTS ....... Mr. G.D.Shaikh, Advocate for applicants Mr. S.A.G.Qureshi, Advocate for respondent No.1 Mr. M.B.W.Khan, Advocate for respondent No.2 ....... [CORAM : A.V.POTDAR, J.] DATE: 31 st March 2010 PER COURT: 1. By this revision application the applicants, who are defendants No.1 and 2 in Wakf Suit No.42/2007, have challenged the order dated 02.04.2009 passed below Application Exhibit-29, which was filed under Order 7 Rule 11 of the Civil Procedure Code for rejection of the plaint and which came to be rejected. 2. Considering the fact that very small issue is involved in this revision application, the revision application is decided finally at the stage of admission itself. 3. Heard learned counsel for the applicants followed by {2} learned counsel for respective respondents. 4, The facts, which gave rise to file present civil revision application, can be summarized as follows: It appears that respondent No.1 has filed Wakf Suit No. 42/2007 before the Wakf Tribunal, Aurangabad for declaration and restoration of possession of the suit property, bearing house No. 4-6-151 (old) new 1-4-166 admeasuring 30 X 30 square feet, situated at Gadipura, Nanded. The suit property is a wakf property owned by respondent No.2. It further appears that though the suit summons was served on the applicants, defendants No.1 and 2 and they appeared in the suit, yet they failed to file written statement within the stipulated time and hence order “suit to proceed without written statement” came to be passed. It further appears that applicants, by application at Exhibit-29, prayed for rejection of the plaint on the ground that the suit is not tenable, under proviso to section 7 (1) (b) of the Wakfs Act. The said application came to be rejected. 5. From the facts pleaded in plaint of suit No.42/2007 it appears that the predecessor in title of the applicants had filed suit No.826/1994 before Civil Judge, Junior Division, Nanded, in respect of declaration of right of ownership of the same property. It appears that the said suit was decreed ex parte. It is alleged by respondents that the predecessor in title, had suppressed the fact {3} that earlier present respondent No.2 had field suit No.229/1989, which was decreed on 24.07.1990 and by suppressing the material fact, the decree was obtained by the predecessor in title of the present applicants and hence the respondents have filed Wakf Suit No.42/2007 for declaration. 6. Order 7 Rule 11 (d) states that the plaint shall be rejected in case the suit appears from the statement in the plaint barred by any law. Thus, it is clear that from the wording of clause (d) of Rule 11 of Order 7 of the Civil Procedure Code that if there is specific bar to entertain the suit in the civil court and the plaint is filed in the civil court, then the plaint to the rejected. 7. It is not disputed that in respect of wakf properties, suit to be filed before the Wakf Tribunal. Section 7 (1) (b) of the Wakfs Act, 1995 reads thus - “7. Power of Tribunal to determine disputes regarding wakfs – (1) If, after the commencement of this Act, any question arises, whether a particular property specified as wakf property in a list of wakfs is wakf property or not, or whether a wakf specified in such list is a Shia wakf or a Sunni wakf, the Board or the mutawalli of the wakf, or any person interested therein, may apply to the Tribunal having jurisdiction in relation to such property, for the decision of the question and the decision of the Tribunal thereon shall be final : Provided that - {4} (a) ....... (b) in case of the list of wakfs relating to any part of the State and published at any time within a period of one year immediately preceding the commencement of this Act, such an application may be entertained by Tribunal within the period of one year from such commencement: 8. On bare reading of clause (b) of sub section (1) of section (7) it is clear that if the question is finally decided by the Civil Court before coming into force the Act of 1995, that question cannot be reopened before the Tribunal and hence there is bar if the question is already decided by the competent civil court in respect of ownership or properties which are listed as wakf properties in the part of the State. 9. It is not disputed that the property in question is a wakf property. The only question, which requires consideration, is whether before coming into force the Act of 1995, the question in respect of ownership of the suit property is finally decided by the competent civil court or not. From the pleadings in the plaint, particularly in para 4 and 5, it is clear that the decree obtained by the predecessor in title of the applicants in Civil Suit No.826/1994, was obtained by suppressing the fact that earlier suit No. 229/19984 was filed against the predecessor in title of the applicants and the same was decreed against the predecessor in title of the applicants. In the premise, it cannot be said that in the decree in RCS No.826/1994 the question in respect of ownership of {5} the suit property is finally decided. Apart from it, present respondent No.1 was not the party to the said suit RCS No. 826/1994. Thus, it is clear that the findings recorded in RCS No. 826/1994 are not the findings to be termed as in-rem, but the same to be termed as in personem i.e. finding in such decrees are binding on the parties to the suit and are not binding on the others who are not party litigants to the said suit. Thus, it is clear that the right of respondent No.1 is not decided in the suit, as contemplated under proviso to section 1 (b) of section 7 of the Wakf Act, 1995. If it is so, then the suit is not hit by the provisions of Order 7 Rule 11 (d) of the Civil Procedure Code. This aspect is correctly considered in the order impugned in this civil revision application. In the premise, no interference is required in the order impugned. 10. In the result, the civil revision application, which is sans merits, stands rejected with no order as to costs. 11. It is, however, clarified that these observations are pertaining to the issue in respect of rejection of plaint and the trial court need not be influenced with the same while deciding the dispute between the parties. [A.V.POTDAR, J.] drp/A10/cra40-09