Altaf Hossain Middey & Middya @ ... vs Koyal Ajmira Begum & Ors
2023 Latest Caselaw 2501 Cal

12.04.2023
SL No.8
Court No.8
    (gc)


                               SAT 142 of 2015

             Altaf Hossain Middey & Middya @ Mirdha & Ors.
                                  Vs.
                       Koyal Ajmira Begum & Ors.



                     The     appellants   are   not   represented,   nor   any

               accommodation is prayed for on behalf of the appellants.

               The appeal is of the year 2015.          The matter initially

               appeared in the Warning List on 6th March, 2023 and

               thereafter transferred to the Regular List on 21st March,

               2023. Since then the matter is appearing in the list. The

               appellants have due notice about the listing of the matter.

                     It appears from the report of the Stamp Reporter

               dated 07.04.2015 that the appeal was preferred with

               defects. Till date, the defects have not been removed. We

               could have dismissed this second appeal for non-removal

               of defects.   However, we have read the judgment of the

               Trial Court as well as the First Appellate Court and the

               grounds of appeal in order to find out whether the second

               appeal involves any substantial question of law.

                     The second appeal is arising out of the judgment

               and decree dated       12.12.2014 passed        by the First

               Appellate Court affirming the judgment and decree of the

               Trial Court dated 30.05.2011 in a suit for declaration and

               permanent injunction. The suit was decreed on contest

               and the plaintiffs were declared to be the co-owners in
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respect of the A-Scheduled property.        There are other

consequential directions in favour of the plaintiffs. This

judgment was unsuccessfully challenged in a first appeal.

The Appellate Court affirmed the judgment of the Trial

Court. The main challenge to the judgment of the Trial

Court was that the properties involved to the title suit are

Wakf properties as the Commissioner of Wakf, West

Bengal passed an order on 3rd October, 1988 included the

suit property in the register of Wakf.       During trial, it

transpired that plot Nos.5391, 5392 and 5393 and 5396

were struck down from the register of Wakf maintained by

Commissioner     of   Wakf   by   this   Hon'ble   Court   on

20.11.1990 passed in C.O. No.15466W of 1988. The said

judgment was marked as Exhibit-X.          From the sketch

map of the plaint showing the topography of the suit plots

described in scheduled 'A' and the Mollapara Masjid

described in scheduled 'B' of the plaint it appears that

mosque is in plot no.5395 which is contiguous to suit plot

numbers 5392, 5396 and 5393 and there is no material to

prove and establish that there was accretions of suit plots

described in scheduled 'A' of the plaint to Mollapara

Masjid described in schedule 'B' of the plaint so as to be

part of the Masjid.

      It thus appears that defendants/appellants failed to

establish by adducing satisfactory evidence that the suit

properties described in schedule 'A' of the plaint are the

public wakf properties. On the contrary, evidence on the
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side of the plaintiffs/respondents is satisfactory and

sufficient to establish that they have right, title, interest

and possession in suit plot nos.5391, 5392, 5393 and

5396 particularly described in schedule 'A' of the plaint.

These findings are based on cogent evidence and on

proper appreciation of evidence.

On such consideration, we do not find any reason to

admit the second appeal at the admission stage.

The second appeal, accordingly, stands dismissed.

However, there shall be no order as to costs.

(Uday Kumar, J.)                         (Soumen Sen, J.)