SANKARASUBBAN, J.

This second appeal has been referred to a Division Bench by Krishnan Unni, J. when contention was raised that as per Section 85 of the Wakf Act (hereinafter referred to as 'the Act') Civil Court is barred from considering any question in respect of any dispute, question or other matter relating to any wakf. The facts of the case are as follows :

The appeal arises out of O.S. No. 91 of 1984 on the file of the Additional Sub Court, Badagara. Plaintiff in this case is Jumayath Palli Dharas Committee. The suit was filed for declaration of title over the plaint schedule property and recovery of possession on the strength of title and for an injunction restraining the second defendant from demolishing the existing building situated there. The Jumath Palli and Khabarsthan belonged to Peedikayilakath tarwad of which first defendant is the present karanavan. It has been dedicated in wakf with karanavan as its mutawalli. Five members of the said tarwad executed a registered agreement on 13-2-1973 whereby they authorised the plaintiff-Committee to manage the wakf property. It appears, the first defendant executed another document, Ext. A3, on 2-5-1984 in favour of the second defendant relating to the property on the basis of which the second defendant's father was holding an oral entrustment from 1948. The plaintiff-Committee has filed the suit for a declaration of title and for recovery of possession of the suit property from the second defendant.

2-3. The first defendant filed a written statement supporting the plaintiff. The second defendant filed a written statement contending that his father was in possession of the property from 1948. He further contended that the plaintiff has no locus standi to file the suit as such. The document, Ext. A2 is invalid. The property covered by Ext. A3 is the wakf property. The trial Court raised seven issues. Issues 1 to 3 were (1) whether the suit was maintainable ? (2) whether the plaintiff-Committee has any right or title over the plaint schedule property ? (3) Whether the allegation of attempted demolition of the building is correct and true? The trial Court held that the suit was maintainable and on the basis of Ext. A2, the plaintiff has got right to file suit. On other issues, it found that the property covered by Ext. A3 includes the plaint schedule property and it forms part of wakf property and that the first defendant had no right to execute document. The case of entrustment was found against. Hence the suit was decreed by the trial Court.

4. Against that an appeal was filed before the District Court. The District Court took the view that so far as the officer of mutawalli is concerned, it cannot be transferred. Hence, it held that under Ext. A2, the mutawalliship cannot be transferred. Further it also took the view that the property cannot be transferred. So far as the question of validity of the document in favour of the second defendant is concerned, it found that it was not valid and had no right over the property. It also found that the property given under Ext. A3 forms part of wakf property. Thus, as a matter of fact, the Appellate Court found that the 1st defendant though was in possession of the plaint schedule property, has no right over the same. But at the same time, did not give any relief to the plaintiff on the ground that the plaintiff has no title over the plaint schedule property. Hence, the District Court disposed of the appeal as follows :

"Hence, this appeal is allowed and the decree and judgment passed by the lower Court are set aside and the suit is dismissed. But, the dismissal of the suit will not affect the right of the de jure mutawalli in respect of the wakf property which takes in the plaint schedule property also to institute appropriate proceedings in appropriate forum regarding the plaint schedule property"

It is against the above judgment and decree that the Second Appeal is filed.

5. A cross objection has been filed by the responde