MIHIR KUMAR JHA, J.

1. Heard Mr. Najmul Hoda, learned counsel for the petitioner.

2. This civil revision application is directed against an order dated 2.5.2008 passed by the Addl. District Judge, F.T.C.- VI, Saharsa in Title Appeal No. 65/2006, whereby and whereunder an interlocutory application filed by the defendant-appellant in Title Appeal No. 65/2006 for holding the appeal to be no longer maintainable before the civil court and its being transferred to Wakf Tribunal has been rejected.

3. The undisputed facts are that the plaintiff-respondent-opposite party had filed Title Suit No. 4/1990 on 29.1.1990 for a declaration that the survey entry in the name of the defendant-appellant-petitioner in regard to the suit land was incorrect and hence inoperative and consequently a declaration be made with regard to title of the plaintiff-opposite party followed by a conse- quential relief for recovery of possession. The basis for such relief put forward by the plaintiff-opposite party was that the suit property was not a Wakf property and defendant no.3, the appellant-petitioner, was not its Mutawalli. It is not in dispute that the said Title Suit No. 4/1990 was heard alongwith another Title Suit No. 28/1996 pertaining to the same property and both of thern were disposed of by a common judgment dated 5.5.2000 passed by the Sub-Judge-IV, Saharsa decreeing the suit in favour of the plaintiff-opposite party.

4. The further admitted facts are that against the said judgment and decree of the trial court dated 5.5.2000 the defendant- petitioner had filed an appeal, before this Court on 27.6.2000 being First Appeal No. 249/2000 and another First Appeal No. 247/ 2000 was filed against the aforesaid common judgment and decree passed in Title Suit No. 28/1996. These two first appeals were subsequently transferred by this Court to the District Court in view of enhancement of pecuniary jurisdiction of the District Judge and thereafter the two appeals were numbered as Title Appeal Nos. 64/2006 and 65/2006. The appellant-petitioner thereafter on acquiring knowledge of a letter of this Court dated 24th July, 2007, issued on the administrative side to all the District and Sessions Judge of Bihar, communicating the decision of this Court to transfer cases relating to Wakf property in Wakf Tribunal had filed an interlocutory application on 27.3.2000 that both in terms of Section 85 of the Wakf Act (hereinafter referred to as the Act) as also aforementioned administrative circular of this Court dated 24th July, 2007 should transfer the records to the Wakf Tribunal.

5. The prayer in the interlocutory application for transferring the appeal to the Wakf Tribunal was opposed by the plaintiff- respondent by taking a plea that as the suit was of the year 1990 and the appeal being continuation of the suit, the same could not have been transferred to the Tribunal as it admittedly came to be instituted before enforcement of the Act with effect from 1.1.1996.

6. The court below, after considering the submissions as also the provisions of law, in the impugned order has held that Section 7(5) of the Wakf Act would not apply to the two appeals and as such, the prayer for transfer of the appeal to the Wakf Tribunal was rejected.

7. Mr. Najmul Hoda, learned counsel for the appellant-petitioner, has submitted that the court below by rejecting such prayer has committed a jurisdictional error, inasmuch as he was not only bound to follow the mandate of law laid down under the Act for transferring the pending suit/appeal to the Wakf Tribunal but such order runs contrary to equally binding instruction issued by this Court on 24.7.2007. Expanding his submissions Mr. Hoda has also placed reliance on Section 85A in the Act as amended by Wakf (Bihar Amendment) Act, 2006, which in his opinion would also cover the case of the appellant-petitioner for transfer of the appeal to the Wakf Tribunal.

8. The facts being not in dispute, all that this Court has now to examine i