JUDGMENT :

SANJAY K. AGRAWAL, J.

1. This second appeal preferred by the defendant/appellant herein was admitted for hearing on 25-4-2013 on the following substantial question of law:

“Whether suit and appeal filed by unregistered Wakf is bar under Section 87 of the Wakf Act, 1995?”

For the sake of convenience, parties hereinafter will be referred as per their status shown and ranking given in the plaint before the trial Court.

2. The plaintiff/respondent herein filed suit for ejectment of the suit accommodation stating inter-alia that the plaintiff has given the suit accommodation to the defendant/appellant herein on rent at the rate of Rs. 100/- per month which was according to the English calendar month. It was further pleaded that the suit house was bestowed on the respondent/plaintiff by grant dated 21-9-1961 given by Masoombi, wife of Mastana Mian. Thereafter, the monthly rent was enhanced to Rs. 150/- per month. The defendant stopped payment of rent from September, 1999 and notices dated 25-9-1999 and 2-7-2000 were served and the suit house was directed to be vacated for the need of the plaintiff Wakf and vacant possession was also directed to be given back to the plaintiff, but it was not handed-over, as such, tenancy was terminated and suit was filed for decree of eviction, ejectment and arrears of rent.

3. Resisting the suit, the defendant filed written statement stating inter-alia that that the suit property is the Wakf property and jurisdiction of civil court is barred and as such, the plaintiff is not entitled for decree for ejectment.

4. The trial Court in order to decide the lis, framed as many as eleven issues and held that the plaintiff is the title holder of the suit land and the same was given on rent to the defendant for residential purpose in the year 1990, the suit accommodation is required for the bona fide need of the plaintiff, the defendant has not paid rent and has also not perfected his title by adverse possession and the suit is not barred by Section 85 of the Waqf Act, 1995. It was further held by the trial Court that from the date of registered Wakf deed dated 21-9-1961 (Ex.P-2), the plaintiff is landlord and owner of the suit accommodation and accordingly, granted decree for eviction.

5. Being aggrieved by the judgment and decree of the trial Court granting decree in favour of the plaintiff, the defendant preferred first appeal before the first appellate Court and the first appellate Court by its impugned judgment & decree affirmed the judgment & decree of the trial Court decreeing the suit against which this second appeal has been preferred by the defendant in which one substantial question of law based on Section 87 of the Waqf Act, 1995 has been formulated which has been set-out in the opening paragraph of this judgment for the sake of completeness.

6. Mr. Kishore Bhaduri, learned counsel appearing for the appellant herein/defendant, would submit that the suit filed by the plaintiff is barred under Section 87 of the Waqf Act, 1995, as it was an unregistered Wakf which is barred by Section 87 of the said Act and therefore suit and appeal filed were not maintainable. Though issue was not framed by the trial Court on this question and both the Courts below have not dealt with the said issue, but in the light of the decisions of the Supreme Court in the matters of Bhagwati Prasad vs. Chandramaul, AIR 1966 SC 735 and Bhanwar Lal vs. T.K.A. Abdul Karim through N.K. Mohd. Mustafa, 1993 Supp (1) SCC 626 the defendant is not barred from raising the question based on Section 87 of the Waqf Act, 1995, as such, the impugned decree deserves to be set aside and the second appeal deserves to be allowed.

7. Mrs. Hamida Siddiqui, learned counsel appearing for the plaintiff/respondent herein, would submit that this plea was never raised by the defendant in the written statement specifically before the trial Court and therefore no issue was struck by the trial Court and it has not been the subject matter of dispute betwee