MOSAMMAT PARVEEN SULTANA Vs. MOSAMMAT SAHERA KHATUN

JUDGEMENT

(1.) These two petitions for leave to appeal are directed against the judgment and order dated 23.11.2002 passed by a Single Bench of the High Court Division in Civil Revision Nos. 258 & 259 of 1998 discharging the Rules.

(2.) Short facts are that one Mogol Bibi, an old lady of 90 years, instituted Title Suit No. 38 of 1988 and 39 of 1988 against the present petitioner and others. Both the suits were subsequently renumbered as Title Suit No. 101 of 1991 and 63 of 1992. Her case, in short, is that the suit land originally belonged to Panchanan Ghose who sold the same to one Mendi Mia by kabala deed dated 6th April, 1950. Mendi Mia, while owning and possessing the suit land executed and registered a deed of waqf on 16.02.1953 dedicating the property to the Almighty Allah and Rasul (S.M.) and for the benefit of a Mosque situated at Kader Box Ostagar Lane, Gandaria. The name of the Waqf Estate was Mendi Mia Waqf Estate and Mendi Mia was appointed as first Mutwalli of the said Estate. He transferred 1/3rd share of the land as described in the schedule of the deed of Waqf to his daughter Most. Sahera Khatun on 14th February 1954 and delivered possession. During S.A. operation rest 2/3rd share was recorded as Waqf property. There was stipulation in the Waqf deed that after the death of Waqif Mendi Mia his wife Mogol Bibi would be the Mutwalli of the Estate. Accordingly, after the death of Mogol Bibi, the plaintiff became Mutwalli of the Waqf Estate. She maintained the property and incurred incidental expenditures of the Mosque. Some of the Monthly tenants of the Waqf properties defaulted in payment of rent. So suit was filed for eviction against those tenants from the Waqf property. She handed over the papers of the suit property to one Zahiruddin, her close relation. A few days after, Zahiruddin taking the plaintiff in an office, took her L.T.Is. in stamp papers saying that those signatures were necessary to file cases for eviction of the tenants. In month of Aswin, 1394 B.S. the plaintiff came to know that Mr. Golam Arshad, Advocate, the husband of the defendant No.1 Sultana Parvin had created kabala deeds in respect of Waqf property. She searched in the respective Sub-Registry Office and got particulars of those deeds. One of the deeds is in the name of Sultana Parvin, the defendant of Title Suit No. 38 of 1988 and another is in the name of Sawkat Ali. Those two kabala deeds are forged and fraudulent and without consideration. On the basis of those kabala deeds, the defendants did not take over the possession of the suit land. The plaintiff has been possessing the suit land on payment of rent and other taxes to the Government. She has been performing the functions of Mutwalli of the Waqf Estate. Hence is the suit.

(3.) The defendant No.1 of both the suits contested the suits by filing written statements contending, inter alia, that the suits were not maintainable and were barred by limitation and also barred by the provision of section 42 of the Specific Relief Act as the plaintiff is out of possession. The case of the defendant in both the suits is that the land covering an area of .768 acre of C.S. Plot No. 15 and C.S. Khatian No. 3320 corresponding to S.A. Khatian No. 2862 and S.A. Plot Nos. 5150 and 5550 belonged to the plaintiff and S.A. record was prepared in her name. In October, 1981, she expressed her desire to transfer the suit land through Shawkat Ali. Accordingly on receipt of Tk. 20,000/- through cheque. She executed an agreement on 01.11.1981. At the time of such execution, her close relatives were present. Thereafter, on 09.02.1982 she executed the impugned kabala deeds on receipt of the balance consideration money through cheque and in cash. The defendant purchased the said land in her name by one deed and in the benami of Shawkat Ali by another deed. She took delivery of possession of the entire land, after her purchase. After registration of Waqf deed on 16.02.1953 in respect of the suit land and other lands the same was not enrolled as waqf property, Mendi Mia, the Waqif and first mutwalli of the Estate transferred 1/3rd share of the land to Sahera Khatun, daughter by his divorced wife. After the death of Mendi Mia, Mogol Bibi his second wife became the owner of rest 2/3rd share of the property. The plaintiff filed an application before the Waqf Administrator seeking permission to execute and register fresh deed in favour of defendant No. 1. The Waqf Administrator permitted the plaintiff to transfer the said land after re-fixing the price of the same but the plaintiff without re-fixing the price of the suit land, executed and registered another deed in respect of the suit land in favour of defendant No.1 on 29.05.1984. She also handed over the papers relating to her appointment as Mutwalli to defendant petitioner. The story of taking the signature of the plaintiff fraudulently is false. One Zahiruddin was appointed as caretaker and licensee in respect of some of the premises but he did not perform his duty as per instructions of the defendant petitioner. So, the petitioner instituted a suit for his eviction and got a decree and evicted Zahiruddin through Court on 21.04.1988 and Ansars were deputed to protect her possession. Sahera Khatun and her party men forcibly demolished the boundary wall constructed by the petitioner who filed Criminal Case No. 34(4) 88 which is pending. The plaintiff filed Miscellaneous Case No. 35 of 1988 seeking restoration of possessing of the suit land as per provision of Order 21 Rule 100 of the Code of Civil Procedure and the suit is dismissed. The petitioner instituted Title Suit No. 18 of 1988 against Waqf Administrator and heirs of Shawkat Ali for permanent injunction and got a decree. The petitioner paid gas bill, electricity bill, rent etc. On prayer of Sahera Khatun the name of Mogol Bibi was deleted and Sahera Khatun was added as plaintiff in the suit.