MD. HAFIZUDDIN Vs. MOZAFFOR MRIDHA

JUDGEMENT

(1.) This appeal is directed against the judgment and order dated 24.04.2008 passed by the High Court Division in Civil Revision No.1266 of 1999 making the Rule absolute reversing the judgment and decree dated 09.03.1999 passed by the then Subordinate Judge-in-charge, Patuakhali in Title Appeal No.14 of 1997 reversing those dated 03.02.1997 passed by the Senior Assistant Judge, Patuakhali Sadar, Patuakhali in Title Suit No.40 of 1993.

(2.) The relevant facts, for the disposal of this appeal, are that the appellant instituted the aforesaid suit for declaration that the sale deeds described in schedule 'Ka' to the plaint are collusive, void, fraudulent, inoperative and those are not binding upon the plaintiff stating, inter alia, that the plaintiff is the Mutwalli of Md. Asaq Waqf Estate. The land described in the schedule 'Kha' to the plaint is the waqf property of the said Waqf Estate and the same was enrolled vide E.C. No.10481. The plaintiff was appointed as Mutwalli of the said Estate on 08.09.1986. He filed an application under Section 64 of the Waqf Ordinance to the Waqf Administrator for eviction of the unauthorized occupants from 'Kha' scheduled land. The Waqf Administrator, by an order dated 04.01.1993, directed the plaintiff to file a suit in the Civil Court for declaration that the kabala deeds as described in the schedule-'Ka' to the plaint are void, inoperative and those are not binding upon the plaintiff. Accordingly, the plaintiff filed instant suit against respondents impugning the kabala deeds, (1) deed No.3360 dated 16.03.1976 executed by Md. Fazlul Karim Howlader in favour of Mozaffar Mridha; (2) deed No.1003 dated 20.04.1962 executed by Abdul Karim Mridha in favour of Abdul Gani and (3) deed No.11889 dated 07.10.1965 executed by Abdul Karim Mridha in favour of Ansaruddin Mollah in respect of the land as described in schedule-Kha to the plaint stating that those 'Kha' scheduled land are waqf property by virtue of waqf deed executed by Md. Asoq Ali and no one was entitled to transfer the same except taking the prior permission of waqf administrator and for the benefit of the waqf estate which was not taken before execution of those deeds.

(3.) The defendant-respondents contested the suit contending that the land measuring an area of 2.48 acres out of 3.03 acres appertaining to C.S. Khatian No.136 and Plot No.2275 and R.S. Khatian No.1 and Plot No.4203 was recorded in the name of Nirmal Kantha Roy who auction purchased the same on 24.03.1941. Md. Fazlul Karim and Abdul Karim took settlement of the said land from Nirmal Kantha Roy in 1348 B.S. They defaulted to pay rent of years 1351 to 1354 B.S. to the landlord. Thus, Nirmal Kantha filed Rent Suit No.398 of 1948 and got decree and, in execution of the said decree, the said land was again sold in auction. Hossain Ali and Keramat Ali auction purchased the same on 21.07.1948. Meanwhile, Fazlul Karim and Abdul Karim paid the auction money. Consequently, their raiyoti interest was not extinguished. They filed Title Suit No.488 of 1956 for permanent injunction against Hossain Ali and others and got decree. These defendants, purchasing the suit land by the impugned kabala deeds, have been possessing the same. The suit should be dismissed.