SK MAMTAJ ALLI Vs. SK ALLI

JUDGEMENT

(1.) THIS is an appeal by an unsuccessful plaintiff whose suit for declaration of his right, title and interest over the disputed properties and recovery of possession thereof was dismissed by the Additional Subordinate Judge, Balasore. The suit properties originally belonged to Mallik Pancbu and two others, who by a registered deed of gift dated 18-10-43 (Ext. 1) transferred the same in favour of one Sultan Shah Darvesh. Darvesh possessed the properties till 30-1-50 when by a registered document described as a deed of gift (Ext. 2) he transferred the properties in favour of defendants Nos. 1 and 17 and delivered possession thereof to them. Thereafter Mallik Panchu and two others filed a suit (O. S. No. 58/50) in the Court of the Munsif, Bhadrak for setting aside Ext. I The suit was contested by defendants Nos. 1 and 17 and was ultimately dismissed. It was alleged in the plaint that to meet the expenses of litigation in that suit defendants Nos. 1 and 17 had incurred certain loans and with a view to raise funds to discharge the loans, they executed a sale deed (Ext. 4) in respect of the suit properties in favour of the plaintiff-appellant on 21-2-56 and delivered possession of the properties to him. After purchase the plaintiff constructed 3 pucca rooms on a portion of the suit lands and let them out to tenants and raised vegetables on the other portion defendants Nos. 1 and 2 trespassed on the land on 1-11-58 and dispossessed the plaintiff therefrom as a result of which plaintiff suffered considerable loss by being deprived of the rent he was getting from the tenants and loss of crops he had grown over the suit lands. Ha therefore brought the suit for the reliefs mentioned above and for recovery of damages of Rs. 2070 towards loss of rent for two years and 10 months and Rs. 450 towards the price of the crops lost by him. As the muslim public of the locality now claim the suit land as a religious place and had abetted the defendants Nos. 1 and 2 in committing the acts of trespass, the defendants Nos. 3 to 25 have been impleaded as representatives of the Muslim public. Defendant No. 26 is the Wakf Commissioner who has since registered the disputed property as wakf property.

(2.) DEFENDANTS Nos. 1 to 7, 14, 15 and 26 only contested the suit. They averred that Sultan Shah Darvesh was a staunch religious man and was a preacher of islam. He kept himself engaged in different religious activities and was staying at bhadrak. Mallik Panchu and two others out of reverence transferred the suit properties in favour of Sultan Shah Darvesh (Ext. 1) with the intention 'that he would carry on religious activities on the said lands. Darvesh formed a committee called 'sirat Committee for management of the suit properties and defendants nos. 1 and 17 were the Secretary and Joint Secretary respectively of that committee. Darvesh raised some funds from the Muslim public and started construction of some rooms on the lands for utilising them for religious purposes. Being convinced that defendants Nos. 1 and 17 would carry on religious activities on the lands, he executed the document (Ext. 2) in their favour which was described as a deed of gift directing therein that his dead body should be buried on the suit lands and a tomb constructed thereon. He further directed that 'goharkafan', 'chalis fatia' and 'darud' be performed and the koran should be read and candles lighted and incense burnt in that place. It was therefore contended that by ext. 2 a wakf had been created. Regarding O. S. No. 58/50 they contended that the expense for the litigation was met by defendants Nos. 1 and 17 from subscription raised by the Muslim public and it is not true that any loan was incurred for the purpose. In early 1956 when defendant No. 1 was seriously ill, defendant No. 17 who is his cousin proposed to him that a trust deed should be executed in respect of the suit properties and on defendant No. 1's agreeing to the proposal defendant No. 17 taking advantage of the simplicity, ignorance and illness of defendant No. 1 got the sale deed (Ext. 4) executed in favour of his own grandson the plaintiff, who was then only a college student. No consideration was paid under the sale deed and plaintiff had never got possession of the properties. As per directions of Darvesh contained in Ext. 2, the suit properties are being treated as wakf and used for religious purposes and consequently plaintiff is not entitled to the relief claimed by him.

(3.) THE learned Subordinate Judge after a careful examination of the evidence and the law bearing on the subject held that under Ext. 2 a wakf was created; that the sale deed (Ext. 4) was not supported by consideration and was fraudulently got executed by defendant No, 17 in favour of his grandson, the plaintiff and that in any case the alienation of wakf properties was illegal and passed no title to the plaintiff. The learned Judge also found that excepting making vigorous attempt to gain possession of the properties the plaintiff was never in peaceful possession thereof and that it has not been proved that he had ever raised vegetables on the lands or let out the rooms constructed thereon to any tenant. In the result, he passed a decree dismissing the suit.