GOURISANKAR SUKUL Vs. COMMISSIONER OF WAKFS, OBJECTOR

JUDGEMENT

(1.) The petitioners in these rules are three persons to wit Gouri Sankar Sukul, Goonganarayan Sukul and Joynarayan Sukul who are the proprietors of a certain estate in the district of Tippera, under which there was a sikmi taluk governed by Regulation 8 of 1819. In 1918 the petitioners brought a rent suit in the Court of the third Subordinate Judge at Comilla against the then patnidars for recovery of arrears of rent due in respect of the sikmi taluk and in execution of the decree which they obtained in that suit, the tenure was put up to sale and was purchased by opposite parties 2 and 3. The purchasers took delivery of possession of the tenure after their purchase and continued to be in possession since then paying rents to the petitioners. In 1935, the petitioners filed a rent suit against opposite parties 2 and 3 in the Court of the first Munsif at Chandpur for recovery of rent of the tenure for the years 1338 to 1341 B.S. and obtained a decree. In execution of this decree, the tenure was sold and purchased by the petitioners themselves on n January, 1937. Delivery of possession was taken on 15 July following. On 16 December 1940 the Commissioner of Wakfs who is opposite party 1 in these rules filed an application before the Munsif, first Court, Chandpur, under Section 70(5), Bengal Wakf Act, for a declaration that the sale was void by reason of the fact that the property was wakf property, and no notice was served on the Com. missioner as laid down in Section 70(2) of the Act. The Munsif granted the application and set aside the sale. Against this order the petitioners took an appeal to the Court of the District Judge of Tippera. The Subordinate Judge who heard the appeal dismissed it as incompetent being of opinion that the order complained of did not come within Section 47, Civil P.C. Against this order of the dismissal of appeal by the Subordinate Judge, Comilla, Rule No. 1395 of 1941 was obtained from this Court, while the other rule namely Rule No. 1396 of 1941 is directed against the original order of the Munsif setting aside the sale under Section 70(5), Bengal Wakf Act.

(2.) So far as Civil Rule No. 1395 of 1941 is concerned, it is conceded on behalf of the petitioners that the order of the Munsif could not have been challenged by way of an appeal. That being the position, the Subordinate Judge was right in dismissing the appeal as incompetent. This rule, accordingly, fails and is discharged. No order as to costs. Coming now to civil Rule No. 1396 of 1941 the point for our determination is whether the sale in this case could be declared void on the application of the Commissioner of Wakfs under Section 70(5), Bengal Wakf Act, To determine this point it is necessary to look closely to the provisions of Section 70, Bengal. Wakf Act. That section runs as follows: 70.(1) In every suit or proceeding in respect of any wakf property or of a mutwalli as such except a suit or proceeding for the recovery of rent by or on behalf of the mutwalli the Court shall issue notice to the Commissioner at the cost of the party instituting such suit or proceeding. (2) Before any wakf property is notified for sale in execution of a decree, notice shall be given by the Court to the Commissioner. (3) Before any wakf property is notified for sale for the recovery of any revenue, cess, rates or, taxes due to the Government or to local authority notice shall be given to the Commissioner by the Court, Collector or other person under whose order the sale is notified. (4) In the absence of a notice under Sub-section (1) any decree or order passed in the suit or proceeding shall be declared void, if the Commissioner, within one month of his coming to know of such suit or proceeding, applies to the Court in this behalf. (5) In the absence of a notice under Sub-section (2) or Sub-section (3) the sale shall be declared void, if the Commissioner within one month of his coming to know of the sale, applies in this behalf to the Court, or other authority under whose order the sale was held.

(3.) It is not disputed that in the present case no notice was given under Sub-section (2) of Section 70 of the Wakf Act and the Commissioner did apply for avoiding the sale within one month from the date of his knowledge of the sale. The controversy, therefore, centres round the point as to whether a notice under Sub-section (2) of Section 70 was necessary in this case. Dr. Basak appearing on behalf of the petitioners argues that a notice under Sub-section (2) of Section 70 was not necessary in this case as at the time when the sale was notified the wakf was not enrolled at the office of the Commissioner of Wakfs under Section 44, Bengal Wakf Act. His contention is that the Commissioner of Wakfs has no powers to exercise or duties to perform unless a wakf is enrolled in his office and consequently a notice to him prior to the date of enrolment is not contemplated by the Legislature. We are not at all impressed by this argument. "Wakf" is defined in Section 6, Clause 10, Bengal Wakf Act, meaning the permanent dedication by a person professing Islam of any moveable or immovable property for any purpose recognised by the Islamic law as pious, religious or charitable and includes a wakf by user.