1. This revision application has been filed by the original defendants No.1 and 2. The respondent No.4 is original defendant No.4. The contesting respondent No.1 Trust is before the Court through managing trustees. The respondent No.1- Plaintiff brought Waqf Suit No.21/2007 before the Maharashtra Waqf Tribunal at Aurangabad, claiming recovery of possession from defendants No.1 to 3, on the basis that these defendants are encroachers on Waqf property and possession should be given to the plaintiffs. The suit has been decreed and thus, the present revision application.

2. Plaintiff is described as Hindustan Momin Banarasi Jaatiche Panch, Yeola i.e. Baherchi Masjid, through its trustees as mentioned in the plaint. Plaintiff claimed to be registered under the Bombay Public Trusts Act. Suit property is Survey No. 11-A of village Yeola, admeasuring 4 Hectors 02 R. The said property belongs to plaintiff Masjid and is meant for religious, pious and charitable purpose. The suit claims that the defendants are in possession of the suit property after demise of their mother Thakubai, against whom Civil Suit – Regular Civil Suit No.26/1999 was filed before Civil Judge, Junior Division, Yeola and came to be withdrawn vide application dated 5.2.2007 on the ground that there is bar under Section 85 of the Waqf Act, 1995 and jurisdiction lies with the Waqf Tribunal. Suit claimed that the defendants No.1 to 3 were in illegal possession pursuant to the lease. Suit claims that, pleadings made in Regular Civil Suit No.26/1999 were contrary to the legal provisions as found in Section 56 of the Waqf Act and no tenancy rights get created or could be alienated. Suit claimed that the defendants were not entitled to continue their possession over the suit land of the mosque. Plaintiff claimed recovery of possession.

3. Defendants No.1 to 3 filed written statements. Defendants claimed that the suit related to claim of possession from tenant of agricultural land and so, the Tribunal had no jurisdiction. There was no dispute arising under Section 6 or 7 of the Waqf Act so as to fall for consideration of the Tribunal. It was claimed that, the Tribunal’s jurisdiction was restricted to the decision of the question as to whether the property is Waqf property or not and that when it is admitted position that the property in question is a Waqf property, then the remedy lies under the General Law and the Tribunal’s jurisdiction would be inapplicable. Defendants claimed that they were in possession as lawful lessees and the possession continued since the time of their forefathers. Bhikaji, father of defendants No.1 took the suit land on lease by registered lease on 20.12.1944 and since then the defendants were in possession as tenants. It was claimed that, embargo of Section 56 of the Waqf Act was not applicable. Defendants claimed that there were other heirs of Bhikaji and they were not joined as party and defendants claimed that the suit was hit by Order II Rule 2 of the Civil Procedure Code, 1908 (hereinafter referred to as “CPC” for short) as the applicability of Section 56 of the Waqf Act could have been raised in the earlier suit – Regular Civil Suit No. 26/1999. For such reasons, the suit was resisted.

4. The Tribunal framed issues. The parties brought on record oral and documentary evidence before the Tribunal. The Tribunal found that the managing committee of the plaintiff Masjid was in existence and managing trust was authorized to file the suit. It was found that the property concerned is service inam land of the Masjid. The Tribunal held that the defendants are encroachers who are in unauthorised possession of suit property and that the suit was maintainable. It was held that the property is Waqf property and the Tribunal has jurisdiction. The claim of defendants that they were lawfully in possession, has been rejected. In view of such findings, the suit came to be decreed.

5. The present revision raises grounds that the Tribunal had no jurisdicti