- (1.) Heard learned counsel for the petitioner who has also filed a supplementary affidavit.
(2.) Respondent no. 1 Brij Bhushan Tyagi has instituted O.S. no.353 of 2010 against the petitioner who is defendant no.1, and respondents no.2 to 4 in this writ who are defendants 2 to 4 in the suit. In the plaint plaintiff has claimed that petitioner defendant no.1 the waqf is landlord of the shop in dispute and he along with proforma defendant no. 2 and 3 is the tenant of the same; that defendant nos. 2 and 3 fraudulently got the name of the petitioner deleted from the tenancy. The relief claimed is that defendants may be directed to demolish wall 'CJS' as shown in the plaint map and construct wall at 'KJHP' and shall not interfere in the right of the plaintiff to do business in the shop in dispute. Petitioner defendant no.1 filed an application under Order VII Rule 11 C.P.C. before the trial court praying that in view of Section 85 of Wakf Act 1995 suit is not maintainable before Civil Court hence it must be dismissed. Trial court/Civil Judge (J.D.) Muzaffarnagar through order dated 9.3.2011 dismissed the said application. Against the said order petitioner filed Civil Revision no. 62 of 2011. A.D.J. Court no.5 Muzaffarnagar dismissed the revision on 17.10.2012 hence this writ petition.
(3.) Learned counsel for petitioner argues that plaintiff respondent has got no concern with the property in dispute which is Waqf property. If in the suit defendant petitioner is able to show that plaintiff respondent has got no concern with the property in dispute then the suit will obviously be dismissed.;