Nil Kamal Ghosh & Ors vs Kazi Mohammad Israil & Ors
2023 Latest Caselaw 607 Cal

S/L 10
19.01.2023

Court No.652 SD CO 651 of 2020

Nil Kamal Ghosh & Ors.

Vs.

Kazi Mohammad Israil & Ors.

Mr. Syamal Kumar Das Ms. Smita Pal ... for the Petitioners.

Mr. N. Chatterjee Mr. Anjan Banerjee Mr. S. Maity Mr. Soumyajit Maiti ... for the Opposite Parties.

This application has been preferred challenging the

Order No.31 dated 19.8.2019 passed by the learned Wakf

Tribunal in Suit No.16 of 2016.

By the impugned order, learned Wakf Tribunal, while

dealing with the maintainability issue, was pleased to held

that Section 7(5) of Wakf Act, 1995 is not attracted in this

case as subject matter of the present suit is suit for

declaration that the suit property is a wakf property and

defendants herein have been described as encroachers and

as such nature of present suit and earlier suit is different and

accordingly defendant's prayer for dismissal of the suit on

the ground of maintainability was rejected.

The plaintiffs/opposite parties filed a suit being Suit

No.16 of 2016 before the learned Wakf Tribunal for

declaration that the properties mentioned in the Schedule A

to the plaint are wakf property permanently dedicated by

Golam Mohammed Kazi with further declaration that

impugned transfer of the properties mentioned in Schedule

A or any portion thereof is void, nullity and not binding upon

the mosque. Defendant no.1 and 2, i.e., the petitioners

herein appeared in the said suit and filed an objection with

regard to the maintainability of the suit on 11.01.2019.

It is specifically stated in the petition challenging

maintainability that the present suit instituted by some of

the legal heirs of the original plaintiff in Title Suit No.178 of

1980, suppressing the order dated 03.5.2016 passed in the

said Title Suit No.178 of 1980 and also the order passed in

the civil revision being CO 1983 of 2016 by the Hon'ble High

Court in connection with said Title Suit No.178 of 1980.

The parties of the said Title Suit No.178 of 1980

adduced their evidence in the suit and the learned court

below posted the suit for argument but the plaintiffs most

curiously filed a petition on 09.02.2016 before the said civil

court for withdrawal of the suit with liberty to file afresh

before the learned Wakf Tribunal.

The learned court allowed the said prayer and the

defendant nos.1 and 2 challenged the same before the

Hon'ble High Court by filing a civil revision being CO 1983 of

2016 and the Hon'ble High Court was pleased to set aside

the part of the order where liberty was granted by the trial

court to file a fresh suit before the Tribunal. This was

agitated before the learned Wakf Tribunal that Hon'ble

Court while disposing the said revisional application did not

grant any liberty to file fresh suit to the plaintiffs/opposite

parties, but in spite of that by suppressing the material fact

the plaintiffs/opposite parties herein filed the aforesaid suit

being Suit No.16 of 2016 before the Wakf Tribunal which is

not maintainable but learned Tribunal by the impugned

order rejected the defendant's aforesaid contention.

Learned counsel appearing on behalf of the

plaintiff/opposite parties supporting the order impugned

contended that as per annexure the plaintiffs of Title Suit

No.178 of 1980 are different. He further submits that Title

Suit No.178 of 1980 was a suit of representative character

while present suit no.16 of 2016 has been filed by plaintiffs

not under representative character, so the nature of suits are

quite different and as such, order passed in or touching

aforesaid suit is not binding upon others as the parties of two

suits are different. He further submits that the public

character of schedule properties in the wakf, was not in issue

in the previous judgments/orders and as such, those

orders/judgments do not operate as res judicata in respect of

question relating to public character of those properties

raised in this suit and as such the order impugned does not

call for interference by this Court.

On perusal of the plaint of Suit No.16 of 2016 it

appears that the dispute between the plaintiff and the

defendants/petitioners herein is that according to the

petitioners, the property described in the schedule is a

secular property and accordingly, it is transferable and the

petitioners are the owners of suit property by virtue of their

purchase from descendant of waquf and on the contrary, the

plaintiffs prayed for a declaration that the property

described in the Schedule A is a wakf property permanently

dedicated by Golam Mohammed Kazi and that transferring

of any portion thereof is void and non est in the eye of law

and not binding upon the mosque and accordingly, plaintiffs

prayed for injunction restraining the defendants from

entering into the mosque property. So, the main dispute

relates to the present suit is whether the property is a wakf

property or a secular property and whether it is transferable

and if any transfer had taken place whether such transfer is

binding upon the mosque or not.

On perusal of the earlier suit being Title Suit No.179

of 1980 it appears from the prayer portion of the plaint of

said suit, that there was no prayer for declaration that the

property is a wakf property which is the main subject matter

of the present suit. It is also submitted that the plaintiffs and

the defendants in the said two suits are not the same. In the

present suit, as many as 58 defendants have been impleaded

whereas the earlier suit was brought by some other plaintiffs

against five defendants. Accordingly, it appears that the real

dispute between the present parties, as to whether suit

property is a secular property or wakf property and whether

defendants had any right to purchase the same, was never an

issue before any court of law and said issue was never

adjudicated also. Now, if the said issue is kept alive on any

technical ground, that would frustrate the object of filing the

suit. As such, the court below has not erred in observing that

the litigating parties in the two suits are not same and the

previous cases have not finally adjudicated real dispute

between the parties, nor any prayer was made for

determination about nature of property and as such present

suit is not barred by any law and in the interest of effective

and conclusive adjudication of aforesaid real dispute

between the parties, the present suit is maintainable before

the Wakf Tribunal who has got the jurisdiction to decide as

to whether the property in question is a wakf property or not.

In view of the above, CO 651 of 2020 is dismissed.

However, learned Wakf Tribunal is directed to make

every endeavour for the expeditious disposal of the suit and

to conclude the entire proceeding preferably within a period

of ten months from the date of communication of the order.

Be it also mentioned that I have not gone into the

merits of issue in controversy and all other points shall be

kept open to be agitated by the parties before the learned

Tribunal at the time of hearing of the case.

There will be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be given to the parties upon compliance of all

necessary formalities.

(Ajoy Kumar Mukherjee, J.)