Hon’ble Mrs. Poonam Srivastava, J.—Heard Sri M. D. Singh Shekhar, learned Counsel for the petitioners and Sri S.F. A. Naqvi, Advocate for the contesting respondents.

2. The order dated 23.8.2004 (Annexure-6 to the writ petition) passed by the Civil Judge (Junior Division), Mau in Original Suit No. 285 of 2003 allowing the application 14-Ga whereby the plaint has been dismissed for want of jurisdiction and also judgment and order dated 23.9.2005 (Annexure-8 to the writ petition) passed by the District Judge, Mau in Civil Revision No. 79 of 2004 confirming the said order are impugned in this writ petition.

3. The facts giving rise to the dispute is that an Original Suit No. 285 of 2003 was instituted in the representative capacity in respect of Arazi No. 186 (old) new No. 134 having an area 856 Kari, situated in Mauja Baragaon, Tappa Haveli, Pargana and Tehsil Ghosi claiming relief of permanent injunction and to restrain the defendant-respondents from interfering in the right of the plaintiffs in burying dead bodies of the Sunni community. It was pleaded that the disputed property is public graveyard and a Public Waqf. The specific claim of the plaintiffs was that the dead bodies of the plaintiffs were used for burial purpose and name since the time immemorial. The defendants have no right to interfere in the right of burial since the disputed land is recorded as graveyard in the revenue records. The defendants second set filed their written statement on 7.5.2004. Before framing the issues, an application was filed by the defendants second set for dismissal of the suit for lack of jurisdiction. This application was numbered as Application No. 14-C-2. The petitioners filed their objections to the said application taking specific stand that since the relief claimed is for grant of injunction, the suit is not barred by provisions of Section 85 of the Waqf Act, 1995 (hereinafter referred to as the Act). The trial court vide its order dated 23.8.2004 allowed the application holding that the suit is barred by law and, therefore, the application under Order VII, Rule 11 (d), C.P.C. was allowed. The petitioners preferred a revision challenging the order dated 23.8.2004 which was numbered as Civil Revision No. 29 of 2004 and the same was also dismissed on 23.9.2005.

4. The submission on behalf of the petitioners is that the court below allowed the application under Order VII, Rule 11 (d), C.P.C. without framing a preliminary issue and accepting the averments of the application 14-C-2. The suit cannot be dismissed in the manner as it has been done by the court below. A number of arguments have been advanced by Sri M.D. Singh Shekhar and decisions have been cited in support of his contention. It is argued on behalf of the petitioners that the disputed property described at the foot of the plaint has been recorded as Kabrastan and is covered within the definition of ‘Public Waqf. The plaintiffs belong to Sunni sect and the defendants belong to Shia sect. The Kabrastan was used by both the sects for burial purpose but the cause of action arose when the Shia muslims objected the sunnies (plaintiffs) from burying the dead body of a member of Sunni sect on 2.6.2003. The first argument advanced on behalf of the petitioners is that since the dispute relates to public waqf, the provisions of the Act No. 43 of 1995 will not be attracted and the suit will not be barred. While deciding the jurisdiction of the court, it is the allegations of the plaint which alone decides the forum and not the defence taken by the defendants in the written statement. In support of this contention. Sri Shekhar has cited three decisions Abdulla Bin Ali and others v. Galappa and others, AIR 1985 SC, 577; Sakeem Bhai and others v. State of Maharashtra and others, 2003, ACJ, 704 and Umesh Chandra Saxena v. First Additional Civil Judge (Senior Division), Allahabad and others, 2002 ACJ, 1510. In all these three cases, the principle enunciated is