KULSUM FATEMA Vs. NOORJAHAN BIBI

JUDGEMENT

(1.) This revisional application is directed against the order dated December 3, 2012 passed in Title Suit No. 156 of 1999 by learned Civil Judge (Junior Division ), 3rd Court, Alipore , South 24 Parganas whereby an application under Order 6 Rule 17 read with 151 CPC filed by the opposite party/plaintiffs was allowed and an application under Section 85 of the Waqf Act 1995 filed by the defendant No. 1(a) /petitioner No 1 was rejected. The predecessor-in-interest of the opposite parties and the father of the petitioners filed Title Suit 156 of 1999 against the predecessor-in-interest of the petitioners. She entered appearance in the suit and contested the same by filing written statement. Petitioners being substituted filed an application under Section 85 of the Waqf Act, 1995 stating that the suit property is a Waqf property and as such the suit is not maintainable as the Court has no jurisdiction to entertain the suit. Thereafter the opposite parties filed an application under Order 6 Rule 17 read with Section 151 CPC praying for amendment. The opposite parties also filed written objection against the application under Section 85 of the Waqf Act, 1995 by treating the said application, an application under Order 7 Rule 11 of the CPC. The petitioners filed written objection against the application under Order 6 Rule 17 read with Section 151 CPC. The applications filed by the parties have been disposed of by the order impugned giving rise to this revisional application.

(2.) Mr. Shenaz Tareq Mina, learned advocate appearing for the petitioners submits in the tune of the revisional application. He took me to the application under Section 85 of the Waqf Act, 1995, Section 85 of the Waqf Act, the plaint of Title Suit No. 156 of 1999 , the affidavit in-chief filed on behalf of the plaintiff and the order impugned.

(3.) He has contended that the plaintiffs categorically admitted in para 1 of the plaint that the suit property belongs to the Waqf Estate , namely , Rafiuddin Waqf Estate and the same has duly enrolled with the Board of Waqfs, West Bengal under E.C. No. 4503A. The opposite party No. 1(a) /plaintiff Noor Zahan has stated in her affidavit in-chief/evidence that the suit property is under Rafiuddin Waqf Estate and the plaintiff has been residing there. Learned Court below had no jurisdiction to take up the matter. The order impugned may be interfered with and set aside. He has relied on a decision reported in 2010 (14) SCC 588 .