NAMDAR MOLLA Vs. ABDAN GHRAMI

JUDGEMENT

(1.) THESE two appeals - one by the plaintiff and the other by the defendants -are directed against the decision of the learned Subordinate Judge, 10 th Court, alipore, in Title Appeal No. 1162 of 1970 modifying the decree passed by the learned Munsif, First Court, Diamond Harbour, in Title Suit No. 413 of 1969. The plaintiff Namdar Molla instituted a suit in 1969 against the defendants for a declaration that the suit properties are wakf properties and the defendants have no right, title and| or interest in the said properties. The plaintiff has also asked for a perpetual injunction against the defendants restraining them from causing any obstruction, or from disturbing the possession of the plaintiff in the said properties. The subject matter of the suit is 4. 22 acres of land described in Schedule 'ka' and 2. 91 acres of land described in Schedule 'kha' of the plaint. The case of the plaintiff is that the said lands along with other properties belonged, to one Khas Mohammad Molla. Khas Mohammad set up a mosque in a part of his bastu at Madhusudanpur. To meet the expenses of the mosque, Khas Md. created a Wakf by a registered Deed of wakf on 7th May 1940, corresponding to 24th Baisakh 1347 B. S. , whereby and where under he dedicated certain properties including 12 decimal of land out of 20 decimal of land of plot No. 1542 and 1. 32 acres of land out of 2. 18 acres of land of plot No. 1545 as described in schedule 'ka' in favour of Allah. In terms of the Wakf Deed Khas Mohammad himself became the Mutwalli of the wakf Estate so created by him. On the same date, i. e. 7th May 1940 Khas Mohammad executed another Deed whereby and where under he dedicated the 'kha' Schedule properties in favour of mosque with the limited right to his wife Amiron Bibi to enjoy the usufruct of the properties for her maintenance, during her lifetime. In Magh 1347 B. S. Khas Mohammad orally dedicated the remaining land of Schedule 'ka' in favour of Allah and included such properties within the Wakf Estate already-created. Since the creation of the Wakf and oral dedication made by Khas Mohammad, he had no personal interest in the 'ka' Schedule properties and other wakf' properties. As Mutwalli of the wakf Estate Khas Mohammad used to possess the other properties and applied the income of the said properties f6r the upkeep of the mosque and for other religious charitable purposes in terms of the Deed of Wakf.

(2.) AFTER the death of Khas Mohammad, the plaintiff Namdar Mollah, the appellant in this Court, became the Mutwalli of the wakf Estate according to the terms of the Deed of Wakf and since the has been possessing the Wakf properties including 'ka' Schedule properties' and applying the income thereof for the upkeep of the mosque. Amiron Bibi died in or about 1362 b. S. Upon her death the 'kha'schedule properties came under the Khas possession of the Wakf Estate. The plaintiff as Mutwalli of the Wakf Estate has been in possession of the 'kha' Schedule properties as well and he has been applying income of the 'kha' Schedule properties lor the expenses of the mosque. The defendants, it is alleged, in collusion with the certain successors of of Khas Mohammad obtained a few Kobalas in their favour claiming title to the suit properties and they had been threatening to dispossess the plaintiff from the suit properties. On those allegations the plaintiff as Mutwalli instituted the said suit.

(3.) THE defendants filed one written statement. The defendants admitted that 12 decimal of land of plot No. 1542 and 1. 32 acres of land in plot No: 1545 along with other lands not being the subject matter of the suit properties aggregating to 5. 82 acres are covered by the said deed of Wakf created by Khas Mohammad. Excepting ,those lands 'no other land belonged to the Wakf Estate nor any dedication was made of any of the other suit properties as claimed by the plaintiff. The rest of the suit lands in schedule 'ka' were in Khas land of Khas mohammed, who possessed the same till his death as his personal property. The story of oral Wakf in respect of portion of 'ka' Schedule lands as alleged in the plaint has been denied. Upon the death of Khas Mohammad the said remaining lands of Schedule 'ka' devolved upon "his heirs who while in possession sold the same to the defendant Nos, 1 and 2 by a registered Kobala dated 4th Baisakh-1376 B. S. The defendant Nos. 1 and 2 are in possession of 8 decimal of land on the northern side of plot No. 1542 and 86 decimal of land on the northern side of plot No. 1545 and whole of plot No. 1255 of Schedule 'ka' since their purchase