THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR Civil Revision Petition No. 1987 of 2007 Order: This CRP is filed by the defendants 3, 4 and 6 before the lower Court, challenging the order dated 22nd March 2007 passed in O.S. No.1091 of 2010 on the file of the I Additional Junior Civil Judge, Eluru, whereby and whereunder the preliminary issue as to whether the Civil Court has jurisdiction to try the suit has been decided in favour of the plaintiffs/respondents herein. The parties hereinafter will be referred to as they are arrayed in the suit for the sake of convenience. The brief facts of the case, as seen from the plaint averments, are as follows. The suit schedule property to an extent of Ac.3-14 cents covered by TS No.201/3, B-Ward in Southern Street, Panangi Road, belongs to one Hazarat Syed Pacha Saheb Darga. The Muzavars of the said Darga had mortgaged the said property to Eluru Cooperative Urban Bank Limited, Eluru. Since the Muzavars did not redeem the mortgage, the President of the Cooperative Urban Bank, Eluru, filed a suit in O.S.No.188 of 1950 against one Mir Gulam Murthuzali and others and the said suit was decreed in favour of the said Bank. Then the suit schedule property was brought to sale in E.P. No.135 of 1952 and the property was sold in Court auction and sale was confirmed on 31.07.1954 and sale certificate was issued in favour of the President, Co-operative Urban Bank, Eluru, on 21.07.1956 and since then the property was in possession of Eluru Co-operative Urban Bank Limited, Eluru. Then, the said Co-operative Urban Bank Limited, as per the resolution No.2, dated 01.11.11981, resolved to sell the property and after obtaining permission from the District Cooperative Officer, the property was sold in public auction. The first defendant had purchased the said property in the public auction on 27.02.1982 and the property was delivered to the first defendant which is a firm. The vacant site and the site which was in possession of the plaintiffs was delivered to the first defendant by attorning them to pay rents to the first defendant and since then the plaintiffs 1 to 38 were paying rents to the first defendant without any objection. However, the first defendant has been demanding the plaintiffs 1 to 38 to vacate the schedule property or to enhance the rent. It is also the case of the plaintiffs that the defendants 2 to 6 who have no right in the schedule property forcibly entered into the schedule property and raised houses in it and creating troubles to them. It is also alleged that the defendants tried to evict the plaintiffs and occupy the property and in the above circumstances they filed the suit. The defendants 1 and 2 filed separate written statements and the defendants 3 to 6 adopted the written statement filed by the second defendant. The first defendant submitted that the plaintiffs 1 to 38 were paying nominal rents and that in spite of his request they did not vacate the premises. The second defendant mainly averred that the suit schedule property belongs to Hazarat Syed Pacha Saheb Darga and that it is a wakf property and that Muzavars were having only hereditary rights and they had no right to alienate the property and that when the first defendant made a paper publication on 03.08.1997 and 04.08.1997 inviting the prospective purchasers for selling the property, then the defendants 2 to 4 and one Mir Zulfikar Ali filed a Caveat Petition No.49 of 1997 on the file of the Subordinate Judge Court, Eluru, denying the right of the first defendant to sell the property. The first defendant issued a legal notice on 10.07.1995 claiming right over the property in which the houses of defendants 2 to 6 and Tank are situated and that the defendants 2 to 4 and Mir Zulfikar Ali got issued a reply notice dated 26.07.1995 repudiating the claim of the first defendant. The first defendant failed to assert his right or title to the schedule property and that he got filed the suit through the plaintiffs who are mere trespassers. It is also their case that the survey report of the Commissioner, Wakf Board, dated 08.11.1955 clearly reveals that the schedule property is Wakf property and it is in the possession and enjoyment of Muzavars of Darga and there is no reference in the said report with regard to mortgage of the property in favour of any Bank. Thus, their specific contention is that the property is a Wakf property and the Civil Court has no jurisdiction to entertain the suit. The defendants filed IA No.2960 of 2003 praying to decide the issue as to whether the plaint schedule property is Wakf property and whether the Civil Court has no jurisdiction to try the suit as a preliminary issue. The lower Court, after referring to certain decisions, came to the conclusion that the dispute between the parties is only with regard to possession and that the plaintiffs are claiming injunction alleging that the defendants are only trying to interfere with the property and that it is a simpliciter suit for permanent injunction, the Civil Court jurisdiction is not barred. Sri Y.C. Krishna Murthy, learned counsel for the petitioners/defendants 3, 4 and 6, submitted that admittedly the property is a Wakf property and the property was mortgaged in favour of the Eluru Co-operative Urban Bank Limited, Eluru, and that the said Bank filed a suit and obtained decree, but, surprisingly the Bank kept quiet from 1957 to 1981 and that the petitioners herein were in possession of the property and that the suit schedule property was never in the actual possession of the Cooperative Bank. It is also his submission that the Court below should have noticed that the suit property is the subject matter of O.S. No.60 of 1949 in item No.C of the schedule and ultimately the said suit was carried up to High Court in SA No.1962 of 1952 and when the matter was pending in the Court it could not have been mortgaged in favour of the Bank in 1950 and such mortgage is hit by the principle of lis pendency under Section 52 of the Transfer of Property Act and a Civil Suit is not maintainable. It is also his contention that the title of the property always remained with the defendants 2 to 6 notwithstanding the fact of the Bank obtaining a decree and since they have been in continuous possession of the property since 1957 onwards and that the claim of the Bank is already barred by limitation. It is also his contention that the Court below ought to have recorded the evidence and ought to have considered that the defendants 2 to 6 have been in possession of the property since more than 60 years. Learned counsel for the respondents/plaintiffs 1 to 38 submitted that the jurisdiction of a suit should be decided basing on the plaint averments only and that the plaintiffs have been in possession of the property raising small houses and they are entitled for permanent injunction. It is also his submission that when the issue is whether the defendants are interfering with their possession or not the same has to be decided by the Civil Court, as the dispute is only between individuals and there is no issue as to whether the property is a Wakf property or not or whether the Wakf has to manage the property or not since the title in respect of the property is not in controversy, the lower Court rightly held that the Civil Court has jurisdiction to entertain the suit. It is further contended that the Bank was in possession of the property and now since the defendants have been trying to interfere with the property civil suit has been filed. Heard both the learned counsel and perused the entire material on record. The only point that arises for consideration is whether it is required to be enquired into as to whether the first defendant has title to the suit schedule property and whether Hazarat Syed Pacha Saheb Darga has lost its title to the property? It is clear that originally the property belongs to Hazarat Syed Pacha Saheb Darga and one of the issue that may arise for consideration in the original suit is whether Muzavars had any right to mortgage the property in favour of the Bank and whether the said transaction has been hit by the principle of lis pendency under Section 52 of the Transfer of Property Act or not. It also appears that though according to plaintiffs 1 to 38 possession of the property was delivered to the President, Eluru Cooperative Urban Bank Limited, Eluru, on 21.07.1956 in EP No.135 of 1952 in O.S. No.188 of 1950 it is not clear as to why the Bank did not sell the property till 27.02.1982 and in whose possession the property was there during that period. The lower Court seems to have not considered that some important questions arise in this case and an enquiry with regard to title of the property has to be gone into. Admittedly the property originally belongs to Hazarat Syed Pacha Saheb Darga and the said Darga or Wakf board are not the parties to the suit. It may become necessary to know the stand of Darga and Wakf board on this issue. The lower Court simply held that the matter appears to be a simpliciter suit for injunction but a reading of the material gives an impression that it is not a simpliciter suit for injunction but several other questions affecting the rights of the parties and ultimately the right of Darga have to be considered. Therefore, it is required to be examined whether the suit as framed by the plaintiffs is maintainable or not and whether they have to amend the same as a comprehensive suit seeking declaration of title of the first defendant or not. Ultimately, justice has to be done to the parties and the rights of the original owner i.e., Hazarat Syed Pacha Saheb Darga cannot be defeated treating it as a simpliciter suit for injunction. It is settled law that where there is a serious dispute with regard to title the suit filed for injunction simpliciter has to be amended seeking a declaration of title. Even in a suit filed for injunction simpliciter the Court may require to enquire into the prima facie title of the parties and rival claims in that regard. In view of the above observations, I am of the considered view that the matter requires re- consideration by the lower Court. Accordingly, the CRP is allowed and the impugned order is set aside. The matter is remanded to the lower Court with a direction to consider all the points raised by the parties in correct perspective and if the Court considers it necessary, direct the parties to add Hazarat Syed Pacha Saheb Darga and also the Wakf Board as parties to the suit, or the lower Court may suo motu add them as parties to the suit in the interest of justice. Meanwhile, both the parties are directed to maintain status quo and shall not interfere in one another’s possession. ______________________ B. CHANDRA KUMAR, J. Date: .02.2011 Nsr