ORDER

Defendant in the suit filed the above civil revision petition under Article 227 of the Constitution of India against order, dated 17.11.2022 passed in I.A.No.18 of 2017 in O.S.No.201 of

2007 on the file of learned Junior Civil Judge, Venkatagiri.

2. Plaintiff filed O.S.No.201 of 2007 against the defendant seeking following reliefs:

i) To remove the wall constructed by the defendant in the way situated on southern side of the plaint schedule property and touching southern wall of the plaint schedule property by means of mandatory injunction ii). Grant costs of the suit etc.

3. In the plaint it was contended that plaint schedule property was purchased by the plaintiff’s father under registered sale deed dated 09.01.1949. After the death plaintiff’s father, the property devolved upon the plaintiff and plaintiff became absolute owner of plaint schedule property. While so, on the Southern side of the plaint schedule property, there is a lane between Peerla Chavidi and the schedule shop leading to Bandaru Khana. Plaintiff, to develop his business, intended to raise a shop room by demolishing the existing wall. Defendant, with an intention to obstruct plaintiff’s work, constructed a wall from East to West in the way on Southern side of the plaint schedule property. Hence the suit was filed.

4. Defendant, by filing written statement, is contesting the suit. Defendant, in the written statement, contended that Court has no jurisdiction to try the suit. The lane way site is left open for the purpose of reaching Bandaru Khana site for Muslim Community people only, but not for others. Plaintiff is in illegal occupation of defendant’s committee site on the southern side having been encroached upon the same. Hence, prayed to dismiss the suit.

5. Basing on the pleadings, trial Court framed eight issues.

Issues 5 & 6 read as follows.

“5. Whether this court has no jurisdiction to try the suit as per Wakf Act?

6. Whether Wakf Act has any role to play in the dispute between the parties?”

6. Pending the suit, the defendant filed I.A.No.18 of 2017 under Order XIV Rule 2(a) and Section 151 of CPC praying the Court to hear issues Nos.5 and 6 as preliminary issues and to decide the same on the point of jurisdiction.

7. Trial Court by order dated 17.11.2022, dismissed I.A.No.18 of 2017 on contest. Aggrieved by the same, the present revision is filed.

8. Heard Sri K. Asad Ahamed, learned counsel for the petitioner.

9. Learned counsel for the petitioner would contend that the suit schedule property is wakf property, Civil Court has no jurisdiction to adjudicate the issue. He would submit that Section 85 of the Wakf Act bars jurisdiction of the Civil Court and hence the suit itself is not maintainable. He would submit that trial Court infact framed issue Nos.5 and 6 and instead of deciding those issues, trial Court is proceeding with trial. He would also submit that when an application is filed to decide the jurisdiction basing on issues 5 & 6 the Court below without considering the relevant factors, dismissed the said application.

Hence, prays to set aside the order of the trial Court.

10. The point to be considered is whether the order of trial Court warrants interference of this Court?

11. There is no dispute that the suit is filed for mandatory injunction against the defendant to direct defendant to remove the wall constructed by the defendant in the way situated on Southern side of the plaint schedule property and touching Southern wall of the plaint schedule property. Pending the suit, I.A.No.296 of 2007 was filed to appoint Advocate Commissioner and the Advocate Commissioner also filed the report.

12. A perusal of the record discloses that previous suit O.S.No.42 of 1974 filed by the plaintiff’s father against R.Muddu Krishna and two others for the relief of declaration and injunction in respect of Southern house of the 1st plaintiff’s shop room, was decreed after full fledged trial.

13. In the present case, petitioner, except pleading that the suit schedule