JUDGMENT :

1. The original defendants Nos. 6 and 10 have preferred this Second Appeal against the Judgment and decree of the learned Civil Judge, Senior Division, Nilanga, passed in Regular Civil Suit No.3 of 1998 (new) [Regular Civil Suit No. 177 of 1988 (old)], dated 26.09.2002 and Regular Civil Appeal No.55 of 2002 of the learned District Judge, Nilanga, dated 06.09.2007.

2. The appellants would be referred to as the defendants Nos. 6 and 10, respondent No.1 would be referred to as the plaintiff, which was the Marathwada Wakf Board duly constituted under the Wakf Act, 1954, and the remaining respondents would be referred to as the defendants.

3. The issues and the suit property involved in the second appeal and the Civil Revision application were the same. Hence, both matters have been taken up for hearing and decision together.

4. The brief facts of the case were that a plot in dispute was an open plot in the village. The defendants Nos. 6,10, 8 and 9 were claiming possession over the suit plot. The parties to the suit were the Hindus and the Muslims. Their quarrel over the suit plot went to the police. The police reported the matter to the Sub-Divisional Magistrate (“S.D.M.”, for short). The S.D.M. registered a proceeding under Section 145 of the Code of Criminal Procedure (“Cr.P.C.”, for short). He inquired and held that, soon before the quarrel, the suit plot was in possession of the defendants nos. 6 and 10. He passed prohibitory orders against the original defendant nos. 8 and 9 on 24.5.1979. In the Government Gazette dated 24.4.1980, the suit plot was listed as the Wakf Property. In 1988, The Marathwada Wakf Board filed a suit, through the District Wakf Officer, against the defendants in the Civil Court for declaration and possession of the suit plot. The plaintiff had filed a suit for declaration that the order of the S.D.M., Nilanga passed in file No. 1974-SDM-16 under Section 145 of the Code of Criminal Procedure dated 24.5.1979 was not binding and possession. They had a case that on the suit plot, there was a Mosque since time immemorial, and it was in use by the Muslims. However, in 1948, during the Marathwada Mukti Sangram, the goons demolished it and made it an open plot.

5. The defendants Nos. 8 and 9 supported the plaintiff's claim. They admitted the dispute about the suit plot and the orders of the Sub-Divisional Magistrate, Udgir.

6. The defendants Nos.6 and 10 contested the suit. They had a defence that the suit plot was in possession of the Arya Samaj for many years. The Muslim people in the village tried to grab the suit plot under the garb that it was a Mosque and Dargah. The plot where the plaintiff says there was a Mosque and Dargah was different. They also impugned the legality and validity of the Government Gazette dated 24. 04.1980.

7. The Court of First Instance believed the plaintiff and decreed the suit. He also held that the Civil Court had no jurisdiction to deal with the Government Gazette dated 24.4.1980, inserting the suit plot as a Wakf property. The first appeal against the said decree was also dismissed. However, while the appeal was pending, the defendants had filed a suit bearing no. 7/2003 before the Wakf Tribunal impugning the legality and validity of the Government Gazette dated 24.4.1980. The plaintiff raised the objection that when the suit about Waqf's property was pending in the Civil Court, the Tribunal had no jurisdiction. The Tribunal did not accept the objection and decreed the suit, holding that the said Government Gazette is void ab initio.

8. Against the Judgment and decree of the Tribunal, the Wakf Board has preferred the Civil Revision Application No. 1 of 2005.

9. On hearing the respective counsels, this Court, by order dated January 3, 2023, framed the following substantial questions of law:-

(i) Whether the Regular Civil Suit No. 177/1988, renumbered as Regular Civil Suit No.03/1998 filed by respondent No.1 is maintainable, as there is no specific prayer made for declaration