JUDGMENT :

AJOY KUMAR MUKHERJEE, J.

1. Petitioners herein as plaintiffs filed suit no.1 of 2012 before the Wakf Tribunal for declaration of absolute right title interest and possession over the suit property and also for declaration that the suit property is not the property of ‘Sk. Domen and Others Wakf Estate’ and also for permanent injunction.

2. During pendency of the suit, in terms of order dated 12.12.2012 the original defendant no. 1 was substituted by Md. Iliash and thereafter in terms of order dated 11.07.2016, the name of Md. Iliash was also expunged from the cause title of the plaint. However, before expunging the name of defendant no. 1 from the cause title, the said defendant no. 1 filed one written statement denying material allegations made in the plaint and he also annexed certain documents along with his written statement to show defence contention that suit property is Wakf property. The other defendants neither appeared in the suit nor filed any written statement.

3. The plaintiffs filed examination in chief under Order XVIII Rule 4 of the Code of Civil Procedure and certified copy of lease deed dated 14.03.1956 executed by Zamindar Shri Kumar Jagadish Chandra Singha Bahadur in favour of plaintiff is marked as exhibit-1. Beside plaintiff’s aforesaid lease deed in support of his interest in the suit property, plaintiff also filed and proved tax bill, issued by corporation marked exhibit -2, the property tax receipt marked exhibit-2/1 and 2/2. The witness of the plaintiff was not cross examined during trial.

4. Learned Tribunal below by its impugned judgment dated 18th July, 2019 dismissed the suit on contest against defendant no.1 and ex parte against defendant no. 2 to 4.

5. It is submitted on behalf of plaintiff /petitioner herein that although the name of defendant no. 1 was expunged in terms of order dated 11.07.2016 but in deciding the suit the learned Tribunal below relied upon the written statement filed by said defendant No.1, which was in fact nonest and also relying upon the documents which were part of the written statement but were never proved nor any evidence was ever laid in support of those documents.

6. Mr. Ray on behalf of the petitioner further submits that the contents of the pleading of the defendant No.1 as well as documents annexed with the said written statement are required to be proved by the defendant and in the present context as the name of defendant no.1 was expunged by the order of the learned Tribunal, the court below has committed gross error in relying upon the said written statement filed by defendant No. 1 and passed the judgment with material irregularity. He further submits that on the basis of the plaintiffs exhibited documents, the Tribunal below ought to have declared plaintiffs absolute interest and possession in the suit property and not the property of “Sk Domen and Others Wakf Estate”. He further argued that the Tribunal acted illegally and with material irregularity in not considering that exhibit-4, certified copy of enrolment application as wakf property, does not contain suit premises.

7. Learned Counsel appearing on behalf of the opposite parties submits that the deed of lease cannot be a valid document for devolution of title. He further submits that the so called lease deed was executed in the year 1956 i.e. after enactment of the Estate Acquisition Act, 1953. Therefore, the leassor of the impugned lease deed being zamindar lost his entire right title interest over property in question and the lessor was not competent to execute and register the lease deed marked exhibit-1, without crossing the mandatory bar available under section 44 of the Estate Acqiusion Act, 1953 and as such the petitioners’ lease deed is void ab initio. Moreover, the alleged physical possession of the property in question is either a production of coercion or by illegal means which cannot confirm the right title or interest of the petitioner.

8. It is further submitted on behalf of the opposite