2005 Supreme(Cal) 1

High Court Of Calcutta
ARUN KUMAR MITRA
SEKH SAJAHAN - Appellant
Versus
GORACHAND SAHEB SEKH ABDUL MOHIT - Respondent
S. A. 163 Of 1998
Decided On : 01/06/2005

Headnote:

SPECIFIC RELIEF ACT - INJUNCTION - PIROTHAN PROPERTY - SHEBAITS - WAKF ACT - MUTAWALLI - SUIT FOR PERMANENT INJUNCTION - POSSESSION - LIMITATION - SUBSTANTIAL QUESTIONS OF LAW - PERVERSE JUDGMENTS - LEGAL DUTY - BREACH OF OBLIGATION - REPRESENTATION - LATENT DEFECT - VENDOR AND PURCHASER - DUTY TO DISCLOSE - INJUNCTION - NOTICE TO WAKF COMMISSIONER - COURT FEES - RECOVERY OF POSSESSION - SECOND APPEAL - SCOPE - CONCURRENT FINDINGS OF FACT - JURISDICTION OF SECOND APPELLATE COURT - INTERFERENCE WITH CONCURRENT FINDINGS - VALIDITY OF SUIT FOR PERMANENT INJUNCTION WITHOUT DECLARATION - POSSESSORY TITLE - PROTECTION AGAINST INVASION OF ENJOYMENT - RIGHTFUL OWNER - EVICTION - DUE PROCESS OF LAW - DEDICATION - DEFINITION OF WAKF - WAKF BY USER - ADMISSIONS OF MUTAWALLI - APPOINTMENT OF MUTAWALLI - MINOR OR UNSOUND MIND - TERM OF OFFICE OF BOARD MEMBER - NOTICE OF SUITS, ETC. , TO BE GIVEN TO THE COMMISSIONER.

Fact of the Case:

The suit property is a 'pirothan' property of Pir Gorachand Saheb and the predecessor of the plaintiffs Ahid was the shebait of the suit property. The plaintiffs have been possessing the suit property since the time of deceased Ahid. The suit plot is homestead land. There are three huts upon 03 decimals of land in the suit plot and Ahid used to live there with his family. The said 03 decimals of land have been recorded in the name of the plaintiffs in present L. R. Khatian. The plaintiffs have been possessing the remaining 12 decimals of land in the suit plot since the time of their predecessor. The suit plot was never possessed by any other persons except Ahid and the present plaintiffs. Besides that the plaintiffs have two dwelling huts, one cow-shed and one kitchen in the suit plot. There are some coconut and baha trees on the suit land and the plaintiffs are enjoying the usufruct of those trees since the time of their predecessor. The defendants are residing in R. S. Plot no. 59, Khatian No. 309 and they have no right and title in the suit plot No. 59. The defendants are trying to trespass into the suit land and trying to cut trees from the suit plot and are also trying to change the nature and character of the suit property.

Finding of the Court:

1. The suit for permanent injunction is maintainable. 2. There is no concept of Shebaits either in Mahomadan Law or in Wakf Act. 3. One cannot ask for permanent injunction unless he establishes his right and title in the suit plot. 4. A suit for permanent injunction is governed by the provisions of Specific Relief Act, 1963. 5. No relief can be claimed by the plaintiffs on the basis of the said prayer without having any legal right and none of the criteria embodied in Section 38 of the Specific relief Act has been fulfilled by the plaintiffs for the purpose of coming within the scope of Section 38 of the said Act. 6. The judgments of both the Courts below suffer from perversity. 7. In absence of any right of any person appointed as Mutawalli in terms of the provisions of 203 of Mohomedan Law no one can claim any right for obtaining injunction. 8. Commissioner of Wakf should have been made party and in absence, the suit is not maintainable and notice should have been given to the learned Wakf Commissioner in terms of the provisions of Wakf Act. 9. The plaintiffs should have deposited court-fees for the purpose of recovery of khas possession inasmuch as the defendants are already there in possession. 10. The plaintiffs are claiming title through hebaluddin but since it was a pirothan property admittedly, no transfer can be made by any person in his individual capacity and as hebaluddin had no title in and over the suit property the plaintiffs can't derive a better title. 11. The suit should be dismissed and the judgments and decrees passed by the Courts below should be set aside.

Issues: 1. Whether the suit for permanent injunction is maintainable in its present form? 2. Whether the plaintiffs are entitled to the injunction as prayed for? 3. Whether the plaintiffs are entitled to get decrees as prayed for? 4. To what other decree if any, are the plaintiffs entitled.

Ratio Decidendi: 1. A suit for permanent injunction is maintainable under Section 38 of Specific Relief Act. 2. There is no concept of Shebait in Mahomedan law. 3. Notice on the Wakf Commissioner is mandatory and the Commissioner of Wakf should have been made party in view of the act that this is a Wakf property. 4. Since the defendant is in possession the suit should have been amended and recovery of possession should have been prayed for and accordingly the Court-fees of higher value i. e. the Court-fees for recovery of possession should have been deposited and in absence the suit is not maintainable.

Final Decision: The second appeal is dismissed. The judgments and decrees passed by the Courts below are upheld.