Calcutta High Court (Appellete Side)
Mir Arshed Ali And Another vs Aslam Khan And Others on 1 May, 2024
Author: Shampa Sarkar
Bench: Shampa Sarkar
May 1, 2024
Sl. No.17
Court No.19
s.biswas
CO 1172 of 2024
Mir Arshed Ali and another
vs.
Aslam Khan and others
Mr. Ganesh Shrivastava
Mr. Sukanta Das
... for the petitioners
Mr. Rabindranath Mahato
Mr. Aritra Shankar Ray
... for the opposite parties
1.The revisional application arises out of order dated February 28, 2024 passed by the learned Civil Judge (Junior Division), 2nd Court, Paschim Medinipur in Title Suit No.278 of 2021.
2. By the order impugned, the learned court directed that the records of the title suit be transmitted to the Waqf Board, West Bengal. The ad interim order of injunction was accordingly vacated. The said order was passed on the basis of the application filed by the defendant nos.1 and 2, challenging the maintainability of the suit. The plaintiffs prayed for declaration of title and injunction with regard to the property mentioned in the schedule, which is quoted below:
" 'A' Schedule Property Dist- Paschim Medinipur, P.s. - Midnapur, Mouza- Mirzabazar, J.L. No.179, L.R. Khatian No.4322, 4323, R.S. Plot No. L.R. Plot No. Classification Area 123 468 Udbastu Out of 0.0990 and out of .0483 acre ........116 Sq.ft. (0.0027 Acre) Butted and Bounded By:
North : Defendants South : Plaintiffs East : Municipal Road 2 West : Plaintiffs Also depicted red wash portion in the Hand Sketch Map."
3. The written statement was filed by the defendants, inter alia, stating that Schedule A was a waqf property on the basis of the Osiyatnama. The plaintiffs did not acquire any right, title and interest in respect of the suit property and the L.R. records were also incorrect.
4. By the Osiyatnama dated 04.07.1966, Rasul Box dedicated the property, including the entire A schedule property and created a waqf. He became the first mutwalli and directed that he will perform all function of mutwalli till his death and after him, his sister's son Ahmed Hossain and thereafter his grandson shall act as mutwalli. The plaintiffs had claimed the property to be secular property, which they had purchased from their vendor. The learned court allowed the said application upon importing the provision of Section 85 of the Waqf Act. The said order was based on the deed of 1966.
5. Mr. Srivastava, learned advocate for the petitioners/plaintiffs submits that the application was allowed without framing a preliminary issue as to the maintainability of the suit. On a photocopy of the alleged deed of 3 1966, the order was passed. The issue should have been framed on the basis of the plaint case and the written statement and decided, upon allowing the parties to lead evidence only on the documents.
6. Mr. Mahato, learned advocate appearing on behalf of the defendants/opposite parties submits that Section 85 of the Act is a bar to institution of a civil suit. Mr. Mahato further contends that even the question whether a property is a waqf property or not, should be decided by the learned tribunal. All disputes relating to waqf and arising out of a waqf property should be decided by the tribunal. In the decision of Punjab Wakf Board vs. Sham Singh Harike reported in 2019 (4) SCC 698, the Hon'ble Apex Court held that even the plea of the defendants that the property was not a waqf property, should be decided by the Waqf Tribunal. Under such circumstances, Mr. Mahato's submits that the order impugned does not suffer from any irregularity.
7. Having heard the learned advocates for the respective parties, this court finds that the plaint case does not disclose anything about the property being a waqf property. The plaintiffs claim right, title and interest on the basis of their 4 deed of sale. In the written statement, a defence has been raised with regard to the property being a waqf property. An application was filed challenging the maintainability. In my view, a preliminary issue ought to have been framed by the court and parties should have been allowed to adduce documentary evidence on such issue, before the order impugned could be passed.
8. This court holds that elaborate evidence with regard to a fact finding enquiry would not be required to decide the short point of maintainability, as parties are armed with their respective documents which they will rely upon in accordance law. The learned court shall frame the issue of maintainability and decide the same on the basis of the deeds to be produced by the parties as their documentary evidence. If a question emerges as to whether the property is a wakf property or not, the proper course of action for the court would be to return the plaint to be presented before the tribunal.
9. The court has decided the application on the basis of the photocopy of the Osiyatnama, without discussing the plaint case and without framing any issue. No other document apart from the copy of the alleged Osiayatnama, has been looked into. Moreover, the further 5 irregularity in the order is that the learned court had directed that the records should be transmitted to the Waqf Board whereas under
the Waqf Act, a Tribunal has been constituted to decide such suits.
10. This court has no quarrel with the proposition put forward by Mr. Mahato. The decision of Hon'ble Apex Court, relied upon by Mr. Mahato, was also with regard to the order by which the plaint was returned by the learned court under Order 7 Rule 10 of the Code of Civil Procedure. In this case, neither an application for framing a preliminary issue on the maintainability point nor any application either for return of the plaint or for rejection of the plaint had been filed. Such question with regard to the maintainability could not be decided without a preliminary issue.
11. The revisional application stands disposed of accordingly.
12. Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Shampa Sarkar, J.)