Khanu Bibi vs Md. Kader Khan & Ors
2023 Latest Caselaw 7059 Cal

12.10.2023 Sl. No.10(DL) srm

C.O. No. 173 of 2022

Khanu Bibi

Versus

Md. Kader Khan & Ors.

Mr. Ashim Kumar Routh, Mrs. Anindita Auddy (Das), Ms. Anandya Mondal ...for the Petitioner.

The petitioner has challenged a judgment and decree

dated December 24, 2021 and January 11, 2022 respectively,

passed by the learned Waqf Tribunal, West Bengal, in Suit

No.o8 of 2018.

The matter appeared before a learned coordinate Bench

on November 24, 2022 and on December 5, 2022, when the

petitioner prayed for adjournment.

Mr. Routh, learned Advocate for the petitioner submits

that an urgent interim protection is required in order to permit

the petitioner to function as the sole Mutwalli of the estate. The

petitioner is answerable to the Board of Auqaf.

It appears from the order impugned before this Court

that the defendants in the suit including the petitioner, were

restrained from interfering with the suit properties. Both the

schedule 'A' and schedule 'B' were declared to be auqaf

properties. Sale deed No.1097/1966 was declared to be void ab

anitio. By the order impugned, the learned tribunal held that

the alienation of the property belonging to the auqaf estate was

illegal. Title Suit No.331 of 1968 was decreed in favour of the

father of the plaintiff/opposite party No.1, i.e., in favour of the

auqaf estate and against the defendants, particularly the

defendant No.9. The judgment and decree of the Title Suit

No.339 of 1968, had not been reversed by any other competent

court.

The Tribunal held that PW1 proved Exhibit-6, which

indicated that a portion of the property had been sold to

defendant No.9 Khanu Bibi, although the same was a part of

the auqaf property. It was further held that the defendant No.3

could not have sold the auqaf property. Thus, the suit was

allowed in part and the defendants were restrained from

interfering with the suit property which was declared as auqaf

property. The petitioner was the defendant No. 9 in the suit.

Unless this Court is in a position to ascertain the present

status and as more than one and half years had lapsed since

the judgment has been passed, it is not possible to pass any

order of stay or injunction. Moreover, the orders passed by the

learned tribunal if stayed, would amount to allowing the main

relief in the revisional application, at the ad interim stage.

Under such circumstances, until the Board of Auqaf and

the plaintiff are heard and how the estate is being managed

after the judgment was passed is brought on record, the prayer

for interim stay cannot be allowed.

A copy of the revisional application along with a server

copy of this order be served upon the opposite parties as also

upon the learned Advocate for the opposite parties in the

learned court below.

Affidavit of service to be filed on the next date.

Let this matter appear in the Combined Monthly List of

December, 2023 under the heading "Urgent Motion".

(Shampa Sarkar, J.)