Point of Law: Waqf property – Thika controller - Waqf Tribunal had no authority to usurp the jurisdiction of the Thika Controller and/or sit in judgment over a decision arrived at by the Controller which has already attained finality in the absence of any challenge before the appropriate forum.

JUDGMENT :

Sabyasachi Bhattacharyya, J.

1. The defendants/petitioners have preferred the instant application under Article 227 of the Constitution of India against a judgment and decree dated November 26, 2020 passed by the Waqf Tribunal, West Bengal in Suit No. 4 of 2008, filed by opposite party no. 1.

2. The Tribunal, in the impugned judgment and decree, held that the plaintiffs/opposite party no.1 is entitled to a decree of declaration that the occupation and possession of defendant nos.1 to 6/petitioners in the suit property is illegal, unlawful and unauthorised and that the said defendants have no right to occupy the suit property. The plaintiff was further granted a decree of possession and injunction retraining the defendant nos.1 to 6, their associates, agents, attorneys and any person claiming through them from creating third party interest in any manner whatsoever in the suit property.

3. The counter-claim filed by the defendant nos.1 to 6/petitioners was dismissed on contest.

4. Learned counsel for the petitioners argues that the Tribunal acted without jurisdiction in negating two certificates issued by the Thika Tenancy Controller, declaring the suit property to be a Thika property, by entering into the merits of such decision of the Thika Tenancy Controller.

5. That apart, it is argued that the Tribunal misinterpreted the judgments cited before it and holding that the property was a Waqf property, despite holding that a Waqf property may be declared to be a Thika property, but not automatically, overlooking that the certificates issued by the Thika Controller had attained finality, having not been challenged before the appropriate superior forum.

6. It is further argued that the petitioners had constructed a dwelling house over the suit property, which is the admitted position; however, such fact was never considered by the Tribunal, overlooking the legal effect of Section 60(b) of the Indian Easements Act, 1882. Alternatively, the entry of the petitioners into the suit property having been ratified by the then Mutwalli, the creation of a tenancy was evident from the records, which vitiates the finding of the Tribunal that the petitioner was a trespasser.

7. Even assuming that the petitioners are tenants in respect of the suit property, the Waqf Tribunal assumed jurisdiction not vested in it by law in declaring that the possession of the petitioners was in the capacity of trespassers and directing eviction on such score.

8. It is further argued by the petitioners that, as evident from the records, Chandi Prasad Modi, the father of the defendants/petitioners, erected structures on the suit premises at his own expenses and the petitioners are in possession thereof. Since Late Chandi Prasad Modi was a lessee in respect of the land-in-question but the owner of the structures erected thereon, the suit property was evidently a Thika property and the rights of the original owner/landlord have vested in the State.

9. It is further argued that an amount of Rs.20,000/-was taken by the then Mutwallis, namely Sk. Salauddin Ahmed and Sk. Kabiruddin Ahmed, with a promise to grant further lease of 99 years after taking permission from the Commissioner of Waqf. Yet, they failed to take such permission, for which the defendants are entitled to claim an amount of Rs. 74,65,022/-as per calculations in Exhibit-H of the revisional application, for the period from September 2, 1965 to November 30, 2017.

10. Learned counsel appearing for the plaintiff/opposite party no.1 and the Board of Auqaf contend that the Waqf Deed dated April 4, 1924 executed by Munshi S. Ahmed Buksh, marked as Exhibit-5 and a deed of rectification of Waqf dated April 26, 1928 and further rectification deed regarding rules of succession dated February 3, 1983 were marked as Exhibits 5/1 and 5/2 respectively.

11. No document was submitted, on the other hand, by the defendants showing payment of yearly rent in respect of the land with building after the year 1984. Admittedly, n