Hon’ble Manoj Misra, J.—This is a defendant’s appeal, under Order 43, Rule 1 (u) C.P.C., against the judgment and order dated 3.12.2011 passed by the Additional District Judge, Bansi, Siddharth Nagar in Civil Appeal No. 30 of 2010 by which the appeal of the plaintiff-respondent against the order dated 29.5.2010 passed by the Additional Civil Judge (Jr. Div.), Court No. 1 Bansi, Siddharth Nagar, in Original Suit No. 474 of 1992, deciding issue Nos. 4 and 10 against the plaintiff, was allowed, the trial Court’s order dated 29.5.2010 was set aside and the matter was remanded back to the trial Court to decide the suit on merits.

2. The relevant facts are that the plaintiff-respondent instituted an Original Suit No. 474 of 1992 for declaration that he is the Sajjada Nashin of Khankha Faizur-Rasool situated in village Baraun Sharif and Nazim-e-Ala (Manager-in-Chief) of Darul-Uloom Faizur-Rasool (Madarsa). It was also prayed that a declaration be made that the Will dated 4.12.1991 allegedly executed by Mohd. Siddique Ahmad in favour of defendant was illegal and it conferred no right on the defendant as Sajjada Nashin and Nazim-e-Ala of the Khankha and Darul-Uloom respectively and that it does not bind the plaintiff or the property of the Khankha. In addition to above, a permanent prohibitory injunction was also sought to restrain the defendant from interfering in the internal and external administration of the Khankha as also to retrain the defendant from interfering in the functioning of the plaintiff as Sajjada Nashin and Nazim-e-Ala of the Khankha and the Darul-Uloom respectively.

3. The plaint case, in short, was that at Mauza Baraon Nankar (Sharif), Tehsil and District Siddharth Nagar, there was a Khankha Faizur-Rasool, which was established for the benefit of the Muslim Community, alongwith a Masjid (Mosque), Darul-Uloom and a residential portion, by Maulvi Mohd. Yar Ali son of late Fazar Ali. It was alleged that Mohd. Yar Ali by a registered deed dated 2.5.1961 created a Wakf of the said property. It was alleged that under the Wakf deed, a procedure was prescribed for selecting the Sajjada Nashin. It was alleged that after the death of appointed Sajjada Nashin i.e. Maulana Mohd. Siddique Ahmad on 24.1.1992, the plaintiff was selected as the Sajjada Nashin in accordance with the terms of the Wakf deed but the defendant, without any legal right or authority, by setting up an illegal Will dated 4.12.1991 of Mohd. Siddique Ahmad, had set up a rival claim. It was pleaded that as a special procedure for selecting the Sajjada Nashin was prescribed by the Wakf deed, the Will was inoperative and did not confer any right on the defendant. However, as the defendant was interfering in the management, the suit was necessitated.

4. The defendant-appellant contested the suit taking various pleas. During pendency of the suit, after the commencement of the Wakf Act, 1995, an additional written statement was filed claiming that the suit was barred by Section 85 of the Wakf Act, 1995. On the aforesaid plea, apart from other issues, issue Nos. 4 and 10 were framed, as follows :

(i) Issue No. 4: Whether the suit is barred under Order VII, Rule 11 C.P.C?

(ii) Issue No. 10: Whether the suit is barred by Section 85 of the Wakf Act, 1995?

5. The trial Court, by its order dated 29.5.2010, decided both the issues against the plaintiff and held that the suit was barred by Section 85 of the Wakf Act, inasmuch as, the dispute in the suit related to office of a Sajjada Nashin in respect of a Wakf property, which could only be decided by a Wakf Tribunal constituted under the Wakf Act, 1995.

6. Aggrieved by the order of the trial Court, the plaintiff preferred Civil Appeal No. 30 of 2010, which was allowed by order dated 3.12.2011 on ground that the Wakf Act, 1995 came into operation with effect from 1.1.1996 and as the suit was instituted before coming into force of the Wakf Act, 1995, it was not barred by Section 85 of the Wakf Act. While deciding a