ASRAF ALI KHAN Vs. MASTAN DARGHA

JUDGEMENT

(1.) THIS is an application Under Section 83(9) of the Wakf Act, 1995. The Defendant No. 3 in W.T. (O)/O.A. No. 05/2005 of the State Wakf Tribunal, Orissa has filed this revision application challenging the Judgment of the Tribunal dated 25.01.2007, wherein the Tribunal decreed suit of the Plaintiff, i.e., Respondent No. 1 & declared that the suit schedule property is wakf property & the registered sale deed executed by one Wahab Manawar & his wife Najimun Nissa Bibi in favour of the Defendants 1 to 3 to be null & void. The Tribunal also passed the order of recovery of the possession of the suit property.

(2.) THE case of the Plaintiff in brief is that the suit schedule property recorded in Unit No. 17, Hal Malik Khata No. 7, Sikimi Khata No. 1, Hal Plot No. 534 measuring Ac.0.92 decimals corresponding to C.S. Khata No. 37, Plot No. 26 belonged to the Plaintiff institution. The schedule property was originally recorded in the name of deity Mastan Saheb situated at Buxi Bazar, Cuttack. The property was duly surveyed, registered and notified as Wakf property in the Official Gazette vide Orissa Gazette notification No. 1248/OBW, dated 08.11.1968. The Wakf Board, Orissa (that is Defendant No. 4) is looking after the management of suit property through a Managing Committee, namely, "Mastan Dargha and Jadu Bangala Managing Committee" duly approved and recognized by it. One Wahab Manawar was appointed as mutawalli with respect to the suit property. He and his wife Nazimun Nissa Bibi having no manner right or interest on the property illegally executed a sale deed in favour of Defendants 1 to 3, in respect of suit property vide R.S.D. No. 1564,dated 06.03.1960. Being emboldened with such fraudulent and illegal sale deed Defendants 1 to 3 managed to record their names in the Hal R.O.R as sikkim tenants. During November, 2004 Defendants 1 to 3 in order to sale away the suit property made negotiations with the prospective purchasers and when this fact came to the knowledge of the Secretary of the Plaintiff institution he objected to it and on enquiry he ascertained that Defendants 1 to 3 have purchased the suit property from Wahab Manawar under a registered deed of sale. The Secretary of the Plaintiff institution immediately applied for a certified copy of the alleged sale deed and after obtaining the same on 18.12.2004 filed the suit for declaration that the suit property is wakf property, sale deed No. 1564 dated 06.03.1960 executed by Wahab Manawar and his wife in favour of Defendants 1 to 3 is null and void, and permanent injunction/recovery of possession.

(3.) DEFENDANT No. 4 has filed written statement supporting the case of the Plaintiff. The Wakf Board has pleaded that the Plaintiff institution is a Muslim religious -public institution all along managed by a Managing Committee represented through its Members/Secretary. The suit property was recorded in the name of the Plaintiff institution in Sabik, R.O.R published in 1932 in "Sthitiban" status and the property was surveyed and notified as Wakf property vide the Gazette notification in the year 1968. The Plaintiff institution being a minor the property was in khas possession of Wahab Manawar, who was a mutawalli. It is further pleaded under the Mohammedan law a mutawalli is merely a Manager of the institution and he cannot alienate the wakf property without prior sanction of the Kazi or the District Judge or the Wakf Board,' as the case may be. Since Wahab Manawar alienated property without prior sanction from competent authority, sale deed in question is void, illegal and inoperative in law. The Defendant No. 4, therefore, prayed that the suit of the Plaintiff be decreed.