JUDGMENT Poonam Srivastava, J.
1. Heard Sri M. D. Singh Shekhar, learned Counsel for the petitioners and Sri S.F.A. Naqvl, advocate for the contesting respondents.
2. The orders 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 namaz 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. 14C-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 14C-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 Ors v. Galappa and Ors. ; Sakeem Bhai and Ors. v. State of Maharashtra and Ors. and Umesh Chandra Saxena v. First Additional Civil Judge (Senior Division), Allahabad and Ors. 2002 ACJ 1510. In all these three cases, the principle enunciated is that the forum and jurisdiction in the suit depends upon the defence taken in the written statement and plea taken in the written statement are altogether irrelevant. Besides, it is held that the provisions of Order VII, Rule 11 (d), C.P.C. can be exercised at any stage. In view of the aforesaid decisions, it has emphatically been argued that the plaint does not disclose any dispute regarding existence of the waqf, which is a graveyard and also specific allegation is that this graveyard is being used by both the sects of the Muslim community. There was no dispute regarding the title of the waqf and, therefore, on the basis of objection raised by the defendants, the Court should not have shut the doors of the civil court without even framing a preliminary issue as to whether the dispute is regarding the question, whether the property is waqf property or not or as to whether it is shia waqf or sunni waqf.
5. It has been argued next that only the allegation of the plaint is to be examined to decide whether the facts would bring the dispute within the ambit of Section 6 of the Act and only then the bar of Section 85 would operate. In the instant case, there is no such dispute and therefore the civil court has jurisdiction under Section 9, Civil Procedure Code. In support of this contention, learned Counsel has cited a decision of this Court, Rose Lock Factory and Anr. v. District Judge, Aligarh and Ors. 2003 SCD 104, paragraphs 19, 20 and 21. In the said case, thi