Hon'ble LOHRA, J.—Petitioner-defendant has laid this writ petition challenging the order dated 20th March, 2009 (Annex.7) passed by the learned Additional Civil Judge (Junior Division) No.7, Jodhpur (for short, 'learned trial Court'), whereby the learned trial Court decided Issue No.6 in favour of respondents/plaintiffs and against the petitioner-defendant. The learned Court below on adjudicating Issue No.6 has found that the suit property is not a wakf property and as such suit of respondent-plaintiffs is not barred by virtue of Section 85 of the Wakf Act, 1995 (for short, 'Act of 1995').

2. The bare necessary facts for adjudication of the lis involved in the matter are that the respondent-plaintiffs instituted a civil suit for perpetual injunction against the petitioner and other proforma respondents for not interfering in their peaceful possession of the disputed property situated at Babanadi, Samsan Road, Bhika Piou, outside Siwanchigate. It is, inter alia, pleaded by the respondents that suit property is in possession of the parents of respondent-plaintiffs and respondents since last more than 50 years and Urban Improvement Trust has also issued patta in their names. Against the respondent-UIT, injunction was also sought for restraining it from cancelling the patta issued in the name of respondent-plaintiffs.

3. The suit was contested by the petitioner-defendant and a written statement was filed. In the written statement, the petitioner has raised specific objection questioning the jurisdiction of civil court by asserting that suit property is a wakf property, and therefore, on the strength of Section 85 of the Act of 1995, suit is barred by law. Besides the preliminary objection, the suit was also contested on merits by the petitioner. The proforma respondents also contested the suit.

4. On the basis of pleadings of rival parties, learned trial Court framed issues for determination and Issue No.6 was framed in the following terms :-

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5. After settling of the issues, respective parties led their evidence and the learned trial Court thereafter proceeded to decide above quoted Issue No.6 as preliminary issue. While deciding Issue No.6, the learned trial Court has considered the evidence of the rival parties and examined the matter in the background of the provisions contained under Section 85 of the Act of 1995 and on overall analysis found that there is no semblance of proof that suit property is a wakf property and consequently decided the said issue against the petitioner and in favour of respondent-plaintiffs.

6. Learned counsel for the petitioner, Mr. Jitendra Chopra has argued that suit property is a wakf property and the learned trial Court has seriously erred in deciding Issue No.6 against the petitioner. Mr. Chopta has strenuously argued that, while deciding Issue No.6, the learned Court below has committed a jurisdictional error, which is apparent on the face of record, therefore, it is a fit case wherein supervisory jurisdiction of this Court under Article 227 of the Constitution of India is to be exercised for upsetting the same. Laying stress on the document i.e. Gazette Notification wherein, according to the learned counsel for the petitioner, the suit property was shown as wakf property. Mr. Chopra has argued that in view of clear recitals in the Gazette Notification, the suit is not maintainable. Elaborating this submission, learned counsel contends that by not properly construing the gazette notification, the learned Court below has committed manifest error of law and fact, which warrants interference in exercise of certiorari jurisdiction of this Court. In support of his contentions, leaned counsel has placed reliance on following legal precedents : (i) Akkode Jumayath Palli Paripalana committee vs. P.V. Ibrahim Haji & Ors. (2013 (2) WLC (SC) Civil 340) and (ii) Haryana Wakf Board vs. Mahesh Kumar (AIR 2014 SC 501

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