Shivaraj V. Patil, J. - (1.) The first respondent (plaintiff) filed the suit O.S. No. 91/84 for declaration of its title and for recovery of possession of the plaint schedule property. The appellant (defendant No. 2) filed written statement in the suit contending taht the suit was not maintainable; the plaintiff had no title to the plaint schedule land; the agreement dated 13-2-1973 did not confer any title on the plaintiff and the said agreement was signed only by five members of the tarward out of about 100 members and it did not convey legal or valid title over the properties in question on the plaintiff. In addition, the defendant No. 2 resisted the suit on same more grounds. Trial Court, after a full dressed trial, appreciating the evidence placed on record, decreed the suit declaring that the plaintiff-Committee has got title to the property as mutawalli in management of the mosque and common graveyard. The trial Court also granted decree for recovery of possession of plaint schedule property from the defendant No. 2 with a direction that the defendant No. 2 should demolish the alterations made by him during the pendency of the suit and surrender possession of the premises with the structures that existed prior to the institution of the suit. The defendant No. 2 was also restrained by permanent injunction from demolishing or altering the tomb which existed on the property at the time of the institution of the suit. The defendant No. 2 filed appeal A.S. No. 187/87 in the Court of the District Judge. The first appellate Court, on consideration and reappreciation of evidence recorded the findings against the plaintiff. It allowed the appeal and dismissed the suit holding that the plaintiff failed to establish its entitlement to the suit property and that it was not entitled for recovery of possession of the same. The first appellate Court also found against the defendant No. 2 in regard to his claim of title over the suit property. Aggrieved by the judgment and decree of the first appellate Court, the plaintiff filed Second Appeal No. 638/88-A in the High Court. The defendant No. 2 also filed cross-objections in so far as the findings of the District Court were against him. The learned single Judge of the High Court referred the appeal to a Division Bench for consideration and decision on the following question of law."The question to be decided is whether S. 85 will operate in respect of the pending proceedings which has not become final."
(2.) The Division Bench of the High Court allowed the second appeal filed by the plaintiff and dismissed the cross-objections filed by the defendant No. 2. The High Court, by the impugned judgment, held that transfer of mutawalliship in favour of the plaintiff was not valid. It also held that Exbt. A-2, the agreement dated 13-2-1973, was not valid in the eye of law but at the same time the Division Bench held that the plaintiff-Committee was entitled to sue for recovery of possession of the plaint schedule property. The High Court also gave directions to the State Wakf Board to exercise its power under S. 63 of the Act to appoint a mutawalli in place of the plaintiff. Hence defendant No. 2 is in appeal before us calling in question the validity and correctness of the impugned judgment and decree.
(3.) The High Court in the impugned judgment has recorded that the following substantial questions of law arose for consideration :- "1. Whether this Court is competent to decide the question of Wakf in view of S. 88 of the Wakf Act, 1995 2. Whether the right of Mutawalli is transferable 3. Was the Court below correct in holding that the plaintiff was not legally entitled to file the suit - ;