ABUL KALAM MALLICK Vs. ABDUL AZIZ MALLICK

JUDGEMENT

(1.) The present hearing arises out of an applications Under Article 227 of the Constitution of India and the same is directed against judgment and order dated 6th August, 2002 passed by the Additional District Judge, 3rd Court, Howrah in Misc. Appeal No. 180 of 2000 reversing the order dated 11th July 2000 passed by the Civil Judge (Junior Division), 7th Court, Howrah in T.S. No. 64 of 2000.

(2.) Briefly stated the case of the petitioners is that as plaintiffs brought a suit being T.S. No. 64 of 2000 in the Court of Civil Judge, (Jr. Division), 7th Court, Howrah against the defendant/ O.R for a decree of declaration that the defendants/O.P.s had no right title and interest in the property comprised in Dag No. 672, 924 and 926 of Khatian Nos. 281 and 283 of Mouza Telehati, P.S. Jagatballavpur, District-Howrah measuring about 16 bighas 2 cottah and the said suit property consisted of a tank known as "Mahato Tank" and its bank and land described in the Schedule of the plaint and also for permanent injunction and other reliefs. In the said suit, the plaintiffs/petitioners claimed absolute title over the suit properties by purchase and that the predecessor- in-interest (Md. Ismail Mallick) of the plaintiffs/petitioners obtained permanent lease on 11th March, 1938 from Atiar Rahaman Mallick and others pursuant to a permission granted by the then Commissioner of Wakf in 25th February, 1938 to the administrative committee of Bargachia Railallia Wakf Estate upon payment of selami to pay rent of Rs. 20/- per annum. On the death of the said Predecessor-in-interest Md. Ismail Mallick his interest devolved upon his only son Md. Sultan Mallick. Subsequently, the plaintiffs/petitioners acquire the interest by purchase. It was alleged on 28th April, 2000 some persons came at the said property and threatened the plaintiff/petitioners with forcible dispossession. The plaintiff/petitioners, in this background were constrained to file the suit as such action on the part of the defendants clouded the title of the plaintiffs. It is further alleged that immediately after filing of the suit, the plaintiffs made an application for injunction and the trial Court below by its order dated 23rd May, 2000 granted an ad interim order of injunction directing the parties to maintain status quo in respect of the suit properties. The defendants/O.Ps after service of notice contested the application by filing a written objection. The defendant/O.Ps. filed an application under Section 90 of the Wakf Act 1995 and plaintiffs/appellants filed a written objection against such petition contending, inter alia, that the petition under Section 90 of the Wakf Act was not maintainable as such provision had no manner of application in the facts and circumstances of the present case. By Order No. 9 dated 10th July, 2000 and Order No. 10 dated 11th July 2000, the trial Court (Civil Judge, Junior Division, 7th Court, Howrah) dismissed the application under Section 90 and allowed the injunction application. The defendants/O.P.s preferred an appeal against such order being Misc. Appeal No. 188/2000. Learned Appellate Court below, allowed the appeal holding, inter alia, that the property in suit appeared to be Wakf property and the same belonged to Mutwalli of Md. Abdul Aziz Mallick Wakf Estate and having regard to the provisions of Section 85 of the Wakf Act, 1995, the Civil Court had no jurisdiction to entertain a suit relating to such suit property and on the basis of such findings set aside the order passed by the Trial Court. In this background, the present application has been filed before this Court with a prayer for setting aside the order passed in the appeal.

(3.) O.P. No. 1 contested the proceeding by filing affidavit-in-opposition alleging that the suit properties belonged to Ramjan Ali Mallick Wakf Estate which was registered with the Board of Wakfs, West Bengal. The suit properties, which are commonly known as "Mahata Tank", comprised an area measuring about 16 bighas of land. There was another Wakf Estate which was enrolled under E.C. No. 228 and the said Wakf Estate (E.C. 228) moved the Commissioners of Wakfs for leasing out Wakf properties and the said Administrative Committee managed the Wakf Estate got the permission from the Commissioner of Wakf to lease out the Wakf property although the Commissioner was not vested with such authority to grant sanction for transfer of Wakf properties. Besides these through the affidavit-in-opposition the O.P. also denied all the material allegations.