1. By this writ petition filed under Articles 226 and 227 of Constitution of India, the petitioners . tenants challenge the judgment and decree dated 27.8.2008 delivered by District Judge Nagpur, in Regular Civil Appeal No. 170 of 2007, dismissing the same. The present respondent . Wakq filed Civil Suit No. 601 of 2004 in December 2004 for recovery of arrears of rent, mesne profit and for possession under Sections 15 and 16(g)(i) of Maharashtra Rent Control Act, 1999, before Second Additional Judge, Small Causes Court, Nagpur, and the same came to be decreed on 27.2.2007.

2. Considering the nature of controversy, I have heard Shri P.A. Markandeywar with Shri P.M. Shrawane, learned counsel for the petitioners . tenants and Shri Athar, learned counsel for the respondent.

3. Shri Markandeywar, learned counsel for the petitioners has urged that the suit ought to have been filed by all Trustees in view of provisions of Sections 46, 47 and 48 of the Indian Trust Act. He further states that in view of provisions of Section 85 of the Wakf Act, 1995, the jurisdiction of any Civil Court including Small Causes Court in respect of any dispute in relation to Wakf property is barred and the suit ought to have been filed before the Tribunal. In support of his contentions, he has relied upon the judgment of the Andhra Pradesh High Court in the case of Mahboob Khan vs. Mohd. Khaja & Ors., reported at 2005 (2) CCC 449 (AP), and some other judgments.

4. Shri Athar, learned counsel in reply has stated that the Trustees had passed a resolution which authorized the Secretary of the Trust to institute the suit and said institution or resolution of authorization was never challenged. He further relies upon the provisions of Section 6 read with Section 7 of the Wakf Act to contend that only disputes of nature specified therein are exempted from cognizance of Civil Court. In the alternative, he argues that as the present matter pertains to dispute between landlord and tenants, provisions of the Maharashtra Rent Control Act, 1999, must be read as special law and hence the suit as filed before the Small Causes Court, must be held to be maintainable. He, therefore, prays for dismissal of suit.

5. The perusal of judgment of appellate Court dated 27.8.2008 clearly reveals that the appellate Court has in para 9 of its judgment while deciding issue No.1 has found that whenever there is authorization in favour of the Secretary to institute suit, all trustees need not be joined. The resolution at Exh. 25 is also looked into and it is noticed that resolution is validly proved and it was never challenged. There was no challenge to authority of Secretary to institute such suit. This finding is not demonstrated to be either erroneous or perverse.

6. The contention about bar of jurisdiction of Civil Court because of application of Wakf Act is considered in para 10 and it has been observed that as litigation is between landlord and tenants, the provisions of Wakf Act are not applicable.

7. Before me, Shri Athar, learned counsel has pointed out that the respondent . Trust came to be registered as Wakf under the provisions of Wakf Act, 1995 on 1.2.2008. He has produced the Certificate having Sr. No. 2141 and MSBW/REG/NGP/2008 dated 16.04.2008 issued by Chief Executive Officer of Maharashtra State Board of Wakfs at Aurangabad, mentioning the same. It also mentions that Wakf was earlier registered under Bombay Public Trust Act, 1950. It is, therefore, obvious that the wakf was not registered when the suit came to be filed.

8. However, the registration of wakf as such is not relevant for considering the question of bar. The provisions of Section 2 of Wakf Act clearly show that the Act applies to all wakfs whether created before, or after the commencement of the Act. In the case of A.P. Wakf Board, Hyderabad vs. S. Syed Ali Mulla, reported at AIR 19