LUTHFUR RAHMAN BARBHUYAN Vs. KACHARI MASZID

JUDGEMENT

(1.) This Second Appeal has been preferred by the plaintiff, namely, Md. Luthfur Rehman Barbhuiya, against judgment and decree dated 14.05.2002 passed by the learned District Judge, Hailakandi in Title Appeal No. 8 of 2000 affirming the judgment and decree dated 30.06.2000 passed by the learend Civil Judge (Senior Division), Hailakandi in Title Suit No. 25 of 1989, whereby his suit was dismissed. The plaintiff filed the suit praying for declaration that he is a non-evictable tenant under Cachari Masjid and also for injunction restraining the defendants and their agents from interfering with his peaceful possession. It is the case of the plaintiff that the suit land described in schedule to the plaint originally belonged to one Gulai Mia Laskar who donated the land to one Gulam Raja Choudhury by a registered gift deed dated 23.03.1907 who constructed the present Masjid on the land and thereafter, created one Wakf Estate by his land measuring 39 Bigha 12 Katta 9 Chattaks of land on 15.08.1928 for the benefit of this Masjid. The Masjid was managed by a Mutawalli of the Wakf Estate establishment. It is pleaded in the plaint that one Munsi Ali Mazumder obtained settlement of the suit land from Mutawalli in 1952 and on taking settlement constructed a pucca permanent structure thereon within 5 years of his settlement and continued partnership business in that house with his brother Tobarak Ali. Subsequently, both the brothers got separated and the suit land fell in the share of Tobarak Ali who on turn obtained direct settlement from Mutawalli on 08.11.1960 by executing a kabuliyat. Tobarak Ali sold the suit land and structure to Abul Hussain Mazumdar on 08.08.1979 by a registered sale deed, who on turn transferred the whole property to the present plaintiff on 06.07.1983 by a registered sale deed. It is the case of the plaintiff that Tobarak Ali having made the permanent structure over the land in question and the same having been transferred to the petitioner the right of occupancy of tenancy given to Tobarak Ali naturally came down to the plaintiff through Abul Hussain Mazumdar. The plaintiff, therefore, is also a non-evictable tenant under Assam Non-Agricultural Urban Areas Tenancy Act, 1955 and is, therefore, entitled to protection against eviction. But, the Masjid committee sought to interfere with his possession for which petitioner's right, title and interest as a non-evictable tenant became clouded. Under such circumstances, filing of the suit became necessary. The plaintiff suit was numbered as Title Suit No. 25 of 1989 in the Court of the learned Civil Judge (Senior Division), Hailakandi.

(2.) On being summoned the defendants appeared and submitted a written statement. In the written statement the specific allegation of the Masjid committee was that the plaintiff or his predecessor did not make construction of permanent structure on the land in question within 5 years of tenancy and that the Assam Non-Agricultural Urban Areas Tenancy Act, 1955, did not apply to the case in question. Hence, the plaintiff has not acquired the right of non- evictable tenant under the Masjid Committee.

(3.) On the basis of the aforesaid rival contentions of the parties, as many as 8 issues were framed by the learned Trial Court and the same are quoted below: