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IN THE HIGH COURT OF JUDICATURE AT CALCUTTA
SABYASACHI BHATTACHARYYA, J.
Rashid Ali Molla & Others - Appellants
Versus
Board of Wakfs & Others - Respondents
C.O. No. 466 of 2018
Decided On : 02-05-2019
Wakf Tribunal - Waqf Property - Waqf Act, 1995, Sections 6, 7, 54, 83 - The court dismissed the suit filed by the petitioners for several declarations, recovery of possession and consequential relief’s. The tribunal held that the wakf deed did not cover the entire enrolled property and there was no paper or document to show that the property enrolled was covered by the wakf deed of 1919. The tribunal concluded that the property was recorded in favor of the successors as secular property during the operation of records of rights. The suit was dismissed on the ground of maintainability and time-bar. The court allowed the revision, set aside the impugned order, and directed the tribunal to re-hear the suit, giving proper evidentiary weight age to the entries in the CS records of rights and permitting the parties to adduce further evidence.
Fact of the Case:
The petitioners filed a suit for declarations, recovery of possession, and other relief’s claiming right of mutawalliship in respect of a wakf property. The tribunal dismissed the suit on the ground that the wakf deed did not cover the entire enrolled property and there was no paper or document to show that the property enrolled was covered by the wakf deed of 1919. The suit was also held to be time-barred and not maintainable.
Finding of the Court:
The court allowed the revision, set aside the impugned order, and directed the tribunal to re-hear the suit, giving proper evidentiary weight age to the entries in the CS records of rights and permitting the parties to adduce further evidence.
Issues: The issues included the maintainability of the suit, the time-bar, and the jurisdiction of the tribunal to decide the suit.
Ratio Decidendi: The tribunal erred in not giving proper evidentiary weight age to the entries in the CS records of rights and in not permitting the parties to adduce further evidence. The suit was not time-barred and fell within the jurisdiction of the tribunal.
Final Decision: The court allowed the revision, set aside the impugned order, and directed the tribunal to re-hear the suit, giving proper evidentiary weight age to the entries in the CS records of rights and permitting the parties to adduce further evidence.
JUDGMENT :
1. The present challenge is directed against a judgment and order dated October 25, 2017 passed by the Waqf Tribunal, West Bengal, dismissing the suit filed by the petitioners for several declarations, recovery of possession and consequential relief’s. The petitioners claimed right of mutawalliship in respect of the suit property by virtue of a registered deed of waqf dated November 11, 1919, whereby one Babujan Mallick, since deceased, allegedly created a wakf by dedicating approximately 7 acres and 95 decimals of land comprised of various plots, partly for the benefit of the settlor's family and his lineal descendants and partly for the purposes recognized by Mohammedan Law as pious, religious and charitable. Thus, according to the petitioners, the said wakf is a private wakf (wakf-alal-aulad).
2. According to the petitioners, the father of the petitioners, namely Motleb Ali Molla, and their grand-father Kalo (Kalu) Molla attempted at various points of time to question the enrolment of the Wakf Estate of Babujan Mallick in the register of the Board of Wakfs, West Bengal under E.C. No. 10339, erroneously as 'Bahadur Molla Wakf Estate'.
3. In 1963, Kalo Molla had lodged a complaint in connection with such recording, but to no effect. After his demise, his son Motleb Ali Molla had been claiming right, title and interest as mutawalli to the said Wakf Estate, by virtue of the wakf deed of 1919, since 1988. During the lifetime of Motleb (since deceased) the private opposite parties lodged a complaint against him alleging encroachment of the wakf estate by Motleb. Pursuant to such complaint, a proceeding under Section 52, read with Section 54, of the Waqf Act, 1995 was drawn up by the Board of Waqf, which was registered as Miscellaneous Case No. 19 of 1981. A show-cause notice was served upon Motleb in connection with such proceeding by the Chief Executive Officer (CEO) of the Board under Office Memo No. 1049(1) dated July 13, 2005.
4. Motleb duly appeared and showed cause in support of his claim. In 2005, an enquiry was held at the behest of the Board, in pursuance of which a report was prepared by the concerned Inspector of the Board on November 9, 2005.
5. During pendency of the aforesaid miscellaneous case, a Memorandum, bearing Memo No. 440V dated April 12, 2006 was issued, directing Motleb to appear before the Mutawalli and Enrolment Committee on April 18, 2006.
6. Motleb appeared pursuant to the notice and submitted several documents, including the registered deed of wakf dated November 11, 1919 and argued in support of his claim. The Committee, upon hearing such submissions, recommended that the CEO should verify the matter regarding the schedule of the property contained in the deed of 1919, executed by Babujan Mallick and take necessary action after verifying the contents of the schedule and the concerned C.S. records and also direct Motleb to submit the C.S. records of the wakf property and thereafter the Committee would take necessary decision. The aforesaid recommendation of the Committee, dated April 18, 2006, was confirmed in its meeting, held on June 6, 2006. No action was taken by the CEO thereafter.
7. The matter was finally heard on March 29, 2007 by the Committee and a resolution was taken, subsequently confirmed by the Board of Wakf in its meeting dated April 18, 2007, rejecting the claim of Motleb.
8. The plaintiffs/petitioners preferred an appeal against the order dated April 18, 2007 before the Waqf Tribunal, which was registered as Appeal No. 6 of 2007 but was dismissed on the ground of maintainability by the tribunal vide Order No. 6 dated January 9, 2008.
9. The petitioners preferred a challenge against the order dated January 9, 2008 under Article 227 of the Constitution of India, giving rise to C.O. No.362 of 2008. A co-ordinate bench of this court dismissed the said revision on the ground of non-maintainability on December 10, 2010.
10. During pendency of the revisional application, in the month of Ju
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