RADHIKA DEVI Vs. STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is directed against the order dated 13.7.2001 passed in CWJC No. 7337 of 2001 by a learned Single Judge of this Court dismissing the writ application filed by the appellants challenging the order dated 1.5.2001 passed by the District Judge, Chapra in Misc. Appeal No. 77 of 2000 (appended as Annexure -6 to the writ application) dismissing the appeal under Section 36 -B (4) of the Wakf Act, 1954 (hereinafter referred to as the Act) against the order of the Collector, Saran, dated 9.6.2000 (annexed as Annexure -5 to the writ application) by which the learned Collector has passed the order for recovery of the wakf property from the possession of the appellants in exercise of power under Section 36 B of the Act.

(2.) THE facts not in dispute, are that Late Gulzar Hussain executed a deed in respect of several properties in the year 1918. Respondent No. 4 is his son. Two sons of late Gulzar Hussain on 22.7.1950 executed a registered usufructuary mortgage in favour of Ram Briksha Sah father - in - law of appellant No. 1 and grand father of appellants no. 2 to 7. The said Ram Briksha Sah died leaving behind his two sons, namely Laxman Prasad, husband of appellant No. 1 and grand father of appellants No. 2 to 7 and Bharat Prasad. On 26.1.1983, the Secretary, Bihar State Sunni Wakf Board filed an application under Sections 36 -A and 42 of the Act for release of the lands on the assertion of the same being in unauthorised occupation of the heirs of mortgagee, namely, Ram Briksha Sah, and to deliver possession to the Mutawalli. In the said case, the Opposite parties were Bharat Prasad and Laxman Prasad. Laxman Prasad died and proceeding continued against Bharat Prasad. The Collector to whom, the matter had been referred by the Board under Section 36 -B of the Act decided the matter on 24.2.1987 and declared the heirs of Ram Briksha Sah to be in unauthorised possession and directed them to deliver possession to the Wakf Board. Bharat Prasad and others filed two Misc. Appeals No. 4 and 7 of 1987 before the District Judge under Section 36 -B(4) of the Act which was ultimately heard by 4th Addl. District Judge who by common order dated 1.9,1990 dismissed the said appeals. Two Civil revisions filed before this Court against the said order were also dismissed on 26.9.1995. The SLP filed against the said order of this Court before the Apex Court was also unsuccessful in the sense that they were also dismissed on 12.8.1996. In the proceeding which was initiated for eviction of the heirs of Ram Briksh Sah, the appellants filed an intervention application before the Collector which was rejected on 4.10.1996 /27.1.1997. They challenged the aforesaid order by filing a writ application before this Court being CWJC No. 6127 of 1997 and this Court by order dated 29.4.1998 quashed the said order and directed the Collector to pass a fresh order after hearing the parties in accordance with law with reference to the materials on record. Thereafter, the Collector heard the parties and dismissed the claim of the appellants by order dated 9.6.2000 against which they preferred an appeal before the District Judge which was also dismissed. The writ application, as stated above was also dismissed upholding the aforesaid order.

(3.) THE authorities under the Act as well as the learned Single Judge have rejected the claim of the appellants solely on the ground that the question raised by them has already been gone into in earlier proceeding which was initiated against some of the heirs of Ram Briksha Sah and as such that question cannot be gone into again at the instance of remaining heirs of Ram Briksha Sah.