Calcutta High Court (Appellete Side)
Khanu Bibi vs Md. Kader Khan & Ors on 4 September, 2024
1
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
APPELLATE SIDE
C.O. 173 of 2022
Khanu Bibi
Vs.
Md. Kader Khan & Ors
For the petitioner :Mr. Ashim Kumar Routh, Adv.
Ms. Ananya Mondal, Adv.
Mr. Subhayan Barik, Adv.
Heard On :06.08.2024, 20.08.2024
Judgment On :04.09.2024
Bibhas Ranjan De, J. :
1. Challenge in this revision application is the judgment and
decree dated 24.12.21 and 11.01.2022 respectively passed by
the Ld. Waqf Tribunal, West Bengal in connection with Suit No.
8 of 2018.
2. The case of the petitioner, in brief, is to the effect that the
subject property being Waqf property were managed by four
mutwallis namely Yusuf Ali Khan, Hurunnessa Bibi, Khanu
Bibi (petitioner herein) & Muharram Ali. The Learned Waqf
Tribunal, West Bengal in Suit No.8 of 2018 allowed the suit in
part on contest but against the defendant Nos.1 and 3 to 8 and
9 therein and ex-parte against the defendant Nos. 10, 11 and
12 therein by granting relief to the plaintiff therein, claimed in
Clauses (a), (b), (d) and (e) in the copy of the plaint declaring
that the Waqf Estate is hereby entitled for decree of declaration
that the suit properties including Schedule A and Schedule B
properties are Waqf properties, Waqf Estate is hereby entitled
to decree of declaration that Sale Deed No.1097/1966 having
Volume No.I, Book No. 14, Pages 125 to 127 confers no right,
title and interest in respect of Schedule B property in favour of
defendant Nos.1 and 3 to 8, Waqf Estate is hereby entitled to
decree of declaration that the Sale Deed No.1097/1966 having
Volume No.I, Book No.14, Pages from 125 to 127 is void ab
initio, Waqf Estate is hereby entitled to decree of permanent
injunction restraining the defendants Nos.1 to 9 and their men,
agents, servants, staffs, employees or any person claiming
through them from interfering into the suit properties (both
Schedule A and B properties) in any manner whatsoever and
the plaintiff is not entitled to relief claim in Clauses (c) and (g)
of the prayers clause and the decree be drawn accordingly.
Being aggrieved by and dissatisfied with the said order of the
Ld. Waqf Tribunal the petitioner herein has preferred the
present application under Article 227 of the Constitution of
India for setting aside of the same.
3. Ld. Counsel, Mr. Ashim Kumar Routh, appearing on behalf of
the petitioner by delineating in brief the whole sequence of
action which gave rise to the instant revision application has
submitted that the impugned Judgment dated 24.12.2021
passed by the Learned Wakf Tribunal, West Bengal in
connection with the suit filed by the Opposite party No.1 is not
sustainable in the eye of law as the opposite party no.1 has no
locus standi to file the said suit because his Mutawaliship has
already been declined by the said Tribunal.
4. It is further submitted that at the instance of the Opposite
party No.1, no such suit is maintainable in as much as the suit
properties have already been declared as Wakf properties and
the Petitioner herein being the sole Mutawali, is under
obligation to maintain the suit properties according to the
directions of the Wakf Board, West Bengal and in case of any
deviation thereof, the petitioner herein is under obligation and
is duty bound to answer all questions to the Wakf Board, West
Bengal. The Petitioner is under possession and occupation of
suit properties but the opposite party no. 1 by taking
advantage of the impugned judgment is trying to disturb the
same and in the garb of the said Judgment, the Opposite party
No.1 is trying to take the possession of the said Wakf
properties.
5. Before parting with, Mr. Routh has contended that the suit
being No. 8 of 2018 filed by the opposite party no. 1 is also
violating the provisions of the Waqf Act, 1995 as he is not
entitled to get any relief under Section 83 of the said Act of
1995.
Analysis:-
6. Before delving into the merit, I propose to reproduce the
observation of the Ld. Tribunal under caption "Appreciation of
evidence" along with Issue no- 1 to 6, which stand as follows:-
" Appreciation of evidence:
Plaintiff, Md. Kader Khan has examined
himself as P.W.1 deposing that he is
"present Mutawalli" in para-1 of his
affidavit-chief. In his pleading in para-1 he
has also stated that he is "present
Mutawalli" of the Waqf Estate. In prayer (c)
he has prayed for decree of declaration
that he is entitled to be appointed as
Mutawalli of the Waqf Estate. P.W.1 has
produced Exhibit-4 i.e. Resolution dated
01.04.2010 by which he was recorded as
Mutawalli of the Waqf Estate under Section
3(i) of the Waqf Act, 1995 in terms of Waqf
Deed in place of his father, Abul Hossain.
He has also produced Exhibit-5 to show
that he was appointed as Mutawalli vide
Resolution dated 01.04.2010 duly
confirmed on 22.04.2010. But Plaintiff
knowingly suppressed the fact of setting-
aside the said resolution in Judgment
dated 28.06.2012 passed in O.A. No.
15/2010. Judgment dated 28.06.2012
passed in O.A. No. 15/2010 is Exhibit-C
produced by D.W.1.
It is very much necessary to reproduce the
relevant portion of the Judgment dated
28.06.2012.
"There was also no Wakfnama as the
original dedicator was Raja Krishna
Chandra Roy who was also termed as the
Wakif. The said property was being treated
as public Wakf by user. It has been further
mentioned in the said Wakf Register that
the Rule of Succession is not available as
there is no Wakf Deed. It has been
submitted by the Ld. Advocate on behalf of
the applicant that all these persons
mentioned above were recorded
permanently as joint Mutawallis of the said
Wakf Estate and they were never removed
from the Office of the Mutawallis by any
authority of law whatsoever. He also
pointed out by showing the resolution
passed by the Chief Executive Officer dated
01.04.2010 which is under challenged
where the Chief Executive Officer observed
that the name of Md. Kader Khan son of
late Abdul Hossain brought on record as
Mutawalli u/s 3(i) of the Wakf Act, 1995 in
terms of Wakf Deed in place of his father
Jb. Abdul Hossain since deceased. It is
curious to note that when there is no Wakf
Deed, how the Ld. Chief Executive Officer
formed the opinion in the said order? The
said order is totally baseless and has no
basis and foundation. Accordingly the
same is liable to be set-aside. He further
pointed out that this resolution was passed
by the Ld. Chief Executive Officer who
passed this order on the basis of a copy of
an order of the Commissioner of Wakf,
West Bengal where the father of Abdul
Kader Khan was appointed as a sole
Mutawalli in terms of order of Title Appeal
no. 608 of 1976 in the 5th Court of
Additional District Judge, Alipore, 24
Parganas. So long he was the sole
Mutawalli till 1981. That interpretation of
the Ld. Chief Executive Officer is also
baseless as there is no such order passed
by the Ld. Court in Title Appeal No.608 of
1976 that the father of Respondent No.1
has been declared as sole Mutawalli in
respect of the suit properties.
I carefully gone through the copy of Title
Suit No. 331 of 1968 where the father of
Respondent No.1 filed the title suit against
the applicant and others that the suit was
decreed ex-parte against this respondent
where the Ld. Additional Court of Munsif in
that suit decreed the suit and it was
declared that suit property was Wakf
property and defendants are permanently
restrained from dealing in any way from
the suit property and R.S.R.O.R of the suit
property is wrong. Accordingly, decree be
drawn up on the basis of judgment passed
by the Munsif, Additional 3rd Court, Alipore
in Title Suit No.331 of 1968. It is
unfortunate to state that the is no such
declaration that the Plaintiff is the
Mutawalli of the Wakf property in the order
in Title suit no.331 of 1968 and there was
no such issue to that effect in Title suit
No.331 of 1968 of Munsif, Additional 3"
Court Alipore. It is true decree be drawn up
on the basis of the judgment, specially the
order passed by the Ld. Munsif. But here
no such order was passed by the Ld.
Munsif in Title Suit No.331 of 1968 that the
Plaintiff id. father of the Respondent no.1 is
the Mutwalli of that Wakf property. But
how the Id. Court drawn up the decree to
that effect? Accrdingly, I find the smell of
fraud for drawing up the said decree in
Title suit No.331 of 1968.
This record further discloses that the
petitioner filed an application before the Ld.
Munsif for setting aside the ex-parte decree
CPC and that was dismissed on contest.
This applicant and others also filed the
Title suit No.347 of 1970 before the Ld.
Munsif, 6th Court at Alipore. That suit was
also dismissed on contest.
Being aggrieved by and dissatisfied with
the judgment and decree the title Appeal
no.608 of 1976 was preferred. That appeal
was also dismissed on contest but without
any cost. It is unfortunate to state that the
Ld. Chief Executive Office mentioned in the
resolution under challenged that he father
of the Respondent No.1 was appointed a
sole Mutawalli in terms of order under title
Appeal No.608 of 1976 n the 5th Court of
Additional District Judge, Alipore. 24
Parganas. But I have carefully gone
through the copy of the judgment of Title
appeal no.608 of 1976 in the 5h Court of
Additional District Judge, Alipore, 24
Parganas for there is no whisper either in
the body of the judgment or in the body of
the order as the father of the Respondent
no.1 was appointed as sole Mutawalli in
respect of the Wogf Estate. It is, therefore,
unfortunate to state that the title Appeal
No.608 of 1976 was preferred against the
dismissal judgment in Title suit no.347 of
1970. That title Appeal was also dismissed
when there is no counter claim of the
Respondent no.1 or Defendant i.e. father of
the present respondent no.1 either in the
title suit or in the appeal for declaring him
as he sole Mutawalli in respect of the Wakf
Estate, that declaration cannot be passed
by the Court of Law in any manner. So the
plea taken by the Respondent no.1 either
before the Board of Wakf or before the
Tribunal is totally misconceived and did not
inspire my confidence. It further appears
from the case in opposition of Respondent
No.1 that the applicant also sold out the
Wakf property without taking permission
from the Broad of Wakf by Registered Deed
of Sale dated 01.02.1966 which has been
substantiated by the report of the Enquiry
Officer of the Wakf Board.
Against this judgment, Plaintiff, Md. Kader
Khan moved Hon'ble High Court at Calcutta
under C.O. No. 3027/2012 titled as Md.
Kader Khan Vs Khanu Bibi and Ors and
same was dismissed for default on
18.01.2019. The order of Hon'ble High
Court dated 18.01.2019 passed in C.O. No.
3072/2012 is marked as Exhibit- D.
Plaintiff by suppressing Exhibits C & D
projected himself as "present Mutawalli" of
the Waqf Estate and also sought
declaration at the same time that he is
entitled to be appointed as Mutawalli on
the ground that his father was Mutawalli of
the Waqf Estate knowingly that C.O. No.
3072/2012 was dismissed and Exhibit-C
has attained finality. Plaintiff has also
wrongly stated that his father was sole
Mutawalli of the Waqf Estate, whereas his
father (Abul Hossain Khan) was
substituted as Mutawalli in place of his
father, Yusuf Ali Khan and his father was
Mutawalli alongwith Mst. Khanu Bibi, Mst.
Hurnnessa Bibi and Sk. Moharram Ali.
Plaintiff also suppressed this fact that Mst.
Khanu Bibi, Mst. Hurunnessa Bibi and Sk.
Moharram Ali were never removed from
their post as Mutawalli. Plaintiff also
misled this Tribunal by making statement
that Judgment dated 07.08.1969 passed in
T.S. No.331/1968 Defendants were
restrained from dealing with suit property.
Judgment dated 28.06.2012 passed in
O.A. No.15/2010 categorically show the
illegality committed by Broad of Auqaf in its
Resolution dated 01.04.2010 duly
confirmed on 22.04.2010 stipulating
appointment of Md. Kader Khan on the
basis of Deed of Waqf whereas there is no
existence of Deed of Waqf in this Waqf
Estate. It is interesting to note that after
setting aside of Resolution dated
01.04.2010, Board of Auqaf has not moved
before Hon'ble High Court and the C.O. No.
3072/2012 filed by Plaintiff has been
dismissed and admittedly Plaintiff has not
moved Hon'ble High Court for restoration of
the C.O. or to move before Hon'ble Apex
Court. Judgment dated 28.06.2012 passed
in O.A. No. 15/2010 has attained finality
and same operates a resjudicata against
the present suit, so far as Mutawalliship of
Plaintiff is concerned. So far as transfer of
Waqf property by Exhibit-6 is concerned,
transfer is bad in law as suit property is
admittedly Waqf property. Defendant No.9
was Mutawalli of the Waqf Estate and she
admits that suit property is Waqf property
and hence transfer of Waqf property by
virtue of Exhibit-6 is void ab-initio.
Defendant No.9 has miserably failed to
show that the sold property to Defendant
Nos. 1 to 8 was her personal property. In
one hand, she admits that suit property is
Waqf property and on the other hand, she
has deposed that she has right to transfer
Waqf property. The transfer of Waqf
property by virtue of Exhibit-6 was made
without permission of Board of Auqat and
hence same is void ab-initio. For guilty of
transferring Waqf property (Exhibit-6),
Defendant No.9, Khanu Bibi, is disqualified
from becoming Mutawali in future unless
and until she restores Waqf property sold
to Wagf Estate. But Exhibit-C (Judgment
dated 28.06.2012 passed in O.A.
No.15/2010) has attained finality and
same is against the Plaintiff and his
entitlement for the post of Mutawalli has
been eclipsed. Exhibit-B is equivalent to
Exhibit-4 which is no more in existence by
virtue of Exhibit-C and D. Mark-X for
identification goes against Defendant No.9
as because the sold property by her in the
name of Defendant Nos. 1 to 8 has
admittedly Waqf property. Mark-Z for
identification is not helping Defendant No.9
as because she has not approached this
Tribunal well within time for direction to
dispose of her representation dated
07.12.2007. She has also not approached
this Tribunal after passing of Judgment
dated 28.06.2012 in O.A. No. 15/2010
giving direction to the Board of Auqaf to
allow her to continue as Mutawalli or
reappoint as Mutawalli. In absence of
counter-claim or there was suit or O.A, this
Tribunal cannot pass any order in favour of
Defendant No.9, Khanu Bibi. Defendant
No.9, Khanu Bibi, is guilty of transferring
Waqf property in favour of Defendant Nos.
1 to 8 by Exhibit-6. Other exhibits produced
by parties are not so relevant to be
discussed at length.
Let us scan and evaluate the evidence of
P.W.1 and D.W.1 issue-wise.
Issue Nos. 1 & 2:
This case has been filed by previous
Mutawalli Md. Kader Khan seeking
permanent injunction and declaration
against Defendant Nos. 1 and 3 to 8 and
declaring Sale Deed No.1097 as null and
void. The suit is filed by previous Mutawalli
Md. Kader Khan and same is verified. Md.
Kader Khan has filed the affidavit in
support of his suit. Paragraph-2 of the
affidavit is duly verified as per provision of
CPC. The prayer made in the plaint is
lawful. Even previous Mutawalli of Waqf
Estate has every right to file a suit and
protect the Wagh property. Mutawalli or
person interested need not to be dependent
on the Board of Auqaf for filing suit before
this Tribunal. In paragraph-13 of the suit,
cause of action has been shown. Defendant
Nos. 1 to 8 have appeared in this case.
Defendant Nos. 1 and 3 to 8 filed written
statement but rest Defendants, save and
except Defendant No.9, did not file written
statement against the present suit.
Defendant Nos. 1 and 3 to 8 despite
knowing the fact that Plaintiff has sought
decree of declaration declaring their Sale
Deed null and void, they stopped appearing
after filing their written statement. This
means that they have no defence at all
against the prayer made by the Plaintiff.
Plaintiff has proved necessary documents
and same are exhibited from Exhibit-1 to
Exhibit- 6. If entire facts of the plaint are
perused, it clearly makes out a good cause
of action to file the present suit.
Thus, Issue No.1 is decided in favour of
Plaintiff and against the Defendants
holding that the suit is maintainable in its
present form and prayer partially.
Issue No.2 is also decided in favour of
Plaintiff and against the Defendants
holding that Plaintiff has cause of action to
institute the present suit.
Issue Nos. 3 & 4:
which clearly show that the Waqf property
is enrolled with Board of Auqaf under E.C.
No.13909 vide enrolment application dated
23.08.1965 made by Yusuf Ali Khan.
Exhibit-1 shows the details of properties of
Waqf which was donated by Raja Krishna
Chandra Roy in favour of "Bibi Fatema and
Imam Saheb Pirottar Waqf Estate". Exhibit-
2 also shows details of Waqf properties.
There is no reason to disbelieve Exhibit
Nos. 1 and 2. Exhibit-3 is the certified copy
of Judgment and Decree dated 07.08.1969
passed by 3rd Addl. Court of Munsif,
Alipore in T.S. No.331/1968. In this suit,
Ld. Civil Judge has declared the suit
property as Waqf property and restrained
Defendants including Defendant No.9 from
dealing in any way with the suit property.
In spite of this, Khanu Bibi transferred
some portion of suit property in favour of
Sk. Muslim and Abu Taleb. Schedule of the
property has been given in the plaint which
clearly shows that Schedule-B property is
the part of Schedule-A property. Defendant
Nos. 1 to 8 who are stated to be purchasers
of suit property, have not come forward to
disprove the case of the Plaint. The Plaintiff
has proved his case within the principle of
preponderance of probability. The evidence
of P.W.1 has not been rebutted and
controverter. There is no reason to
disbelieve the evidence produced by P.W.1.
P.W.1 is previous Mutawalli as reflected in
Exhibit-C.
Hence, Issue No.3 is decided in favour of
Plaintiff/Waqf Estate and against the
Defendants holding that suit properties are
Waqf properties.
Issue No.4 is decided in favour of
Plaintiff/Waqf Estate and against the
Defendants holding that Schedule-B
property is part of Schedule-A property
belonging to "Bibi Fatema and Imam Saheb
Pirottar Waqf Estate" under E.C. No.13909.
Issue No.5:
Exhibit-3 is the certified copy of judgment
and decree passed by 3rd Addl. Munsiff,
Alipore in T.S. No.331/1968. The suit was
decreed in favour of father of Plaintiff i.e.,
in favour of Waqf Estate and against the
Defendants particolarly Defendant No.9 in
the suit and Defendant No.3 in Suit
No.331/1968. Exhibit-4 shows that Khanu
Bibi filed T.5. No.347/1970 against Abul
Hossain Khan and she lost the case on
merit and her Appeal No.608/1976 against
the judgment of T.S. No.347/1970 also
resulted into failure. Civil Court was the
competent court to adjudicate the dispute in
T.S. No.331/1968 and his judgment and
decree has attained finality. Till today, the
judgment and decree of T.S. No.331/1968
has not been reversed by Hon'ble High
and 3 to 8 have not disputed the finality of
Judgment and Decree dated 07.08.1969.
The Judgment and Decree dated
07.08.1969 is final and binding on the
parties to that suit.
Thus, Issue No.5 is decided in favour of
Plaintiff and against the Defendants
holding that Judgment and Decree dated
07.08.1969 in T.S. No.331/1968 passed by
3d Addl. Munsiff, Alipore is final and
binding.
Issue No. 6:
Exhibit-6 is the certified copy of Sale Deed
being No.1097/1966 executed by Khanu
Bibi in favour of Abu Taleb and Sk. Muslim.
Khanu Bibi was not owner of portion of suit
property which she sold to Sk. Abu Taleb
and Sk. Muslim. The sold property is the
part of Waqf property and Waqf property
cannot be sold by any person without the
permission of Board of Auqaf. Both in West
Bengal Waqf Act, 1934 and Waqf Act,
1995, the sale of Waqf property is held
illegal and void ab initio.
Before coming to any conclusion, let us see
the relevant provisions of old Act as well as
new Act to see whether Waqf property can
be sold or not.
The West Bengal Waqf Act, 1934:
53. Bar to transfer immovable property
of Waqf.- (1) Except as provided in sub-
section (2), no transfer or agreement for
transfer of any immovable property of a
Waqf by way of sale, gift, mortgage or
exchange or by way of lease or tenancy of
any kind shall be made without the
previous sanction of the Board and any
such transfer or agreement for such
transfer, it effected without the prior
sanction of the Board, shall be void and the
Board shall, while according such sanction,
satisfy itself that such transfer or
agreement for transfer is for legal
necessity.
(2) Where such transfer or agreement for
transfer is made under an express power
conferred by the Waqf deed, the previous
sanction of the Board shall not be
necessary, but a notice of the proposed
transfer in such form and containing such
particulars as may be prescribed by the
Board shall be sent by the Mutawalli to the
Commissioner one month before the
transfer is made.
(3) If a Mutawalli or a member of a
committee constituted for the
administration of Waqf or a person
interested in a Waqf or any other person
contravenes the provisions of sub-section
(1) either as a transferor or as a transferee
or as a party to an agreement for transfer,
he shall be punishable with imprisonment
for a term which may extend to six months,
or with fine which may extend to five
thousand rupees, or with both.
(4) Notwithstanding anything contained in
the Code of Criminal Procedure 1973 (2 of
1974), the fine imposed under sub-section
(3), when realized shall be credited to the
Waqf Fund.
The Waqf Act, 1954:
36-A. Alienation of Waqf property
without sanction of Board to be void. -
(1) Notwithstanding anything contained in
the Wagf deed, any gift, sale, exchange or
hypothecation of any immoveable property
which is Wagf property, shall be void
unless such gift, sale, exchange or
hypothecation is effected with the prior
sanction of the Board.
(2) The Board may, after publishing in the
Official Gazette, the particulars relating to
the transaction referred to in sub-section (1)
and inviting any objections and
suggestions with respect thereto and
considering all objections and suggestions,
if any, that may be received by it from the
concerned mutawalli or any other person
interested in the Waqf, accord sanction to
such transaction if it is of opinion that such
transaction is-
(i) necessary or beneficial to the Waqf;
(ii) consistent with the objects of the Waqf;
(iii) the consideration thereof is reasonable
and adequate;
Provided that the sale of any property
sanctioned by the Board shall be affected
by public auction and shall be subject to
confirmation by the Board within such time
as may be prescribed:
Provided further that the Tribunal may, on
the application of the aggrieved mutawall8i
or other person, for reasons to be recorded
by it in writing, permit such sale to be
made otherwise than by public auction, if it
is of opinion that it is necessary so to do in
the interest of the Waqf.
(3) The utilization or investment of the
amount realized by the sale, exchange or
hypothecation of any property shall be
made by the Mutawalli subject to the
approval of the Board, and where any
amount has been raised by mortgage, of
any such property, the Mutawalli or other
person shall make repayment of the
mortgage-debt and obtain a discharge of
the mortgage-debt from the mortgagee
within such reasonable time as the Board
may specify.
(4) Every approval given by the Board
under sub-section (3) shall be
communicated to the mutawalli and shall
also be published in the prescribed
manner.
(5) The mutawalli or any other person
having an interest in the Waqf who is
aggrieved by the decision given under sub-
section (3), may, within ninety days from
the date of communication to him of such
decision or the publication of the decision,
as the case may be, prefer an appeal to the
tribunal against such decision, and,
thereupon, the Tribunal may, after giving
the appellant and the Board of the Waqf
Commissioner, as the case may be, a
reasonable opportunity of being heard,
confirm, modify or set aside such decision.
The Waqf Act, 1995:
Section 51. Alienation of Waqf
property without sanction of Board to
be void. -(1) Notwithstanding anything
contained in the Wanf deed, any lease of
any immovable property which is Waqf
property, shall be void unless such lease is
effected with the prior sanction of the
Board:
Provided that no mosque, dargah,
khanqah, graveyard, or imambara shall be
leased except any unused graveyards in
the States of Punjab, Haryana and
Himachal Pradesh where such graveyard
has been leased out before the date of
commencement of the Waqf (Amendment)
Act, 2013.
(1A) Any sale, gift, exchange, mortgage or
transfer of Waqf property shall be void ab
initio:
Provided that in case the Board is satisfied
that any Waqf property may be developed
for the purposes of the Act, it may, after
recording reasons in writing, take up the
development of such property through such
agency and in such manner as the Board
may determine and move a resolution
containing recommendation of development
of such Waqf property, which shall be
passed by a majority of two-thirds of the
total membership of the Board:
Provided further that nothing contained in
this sub-section shall affect any acquisition
of Waqf properties for a public purpose
under the Land Acquisition Act, 1894 (1 of
1894) or any other law relating to
acquisition of land if such acquisition is
made in consultation with the Board:
Provided also that -
(a) the acquisition shall not be in
contravention of the Places of Worship
(Special Provisions) Act, 1991 (42 of 1991);
(b) the purpose for which the land is being
acquired shall be undisputedly for a public
purpose;
(c) no alternative land is available which
shall be considered as more or less suitable
for that purpose; and
(d) to safeguard adequately the interest
and objective of the Waqf, the
compensation shall be at the prevailing
market value or a suitable land with
reasonable solatium in lieu of the acquired
property.
Thus, Section 51 of the Waqf Act, 1995
amplifies the powers of the Board under
section 32(2)(j) in respect of transfer of
immovable property of Waqf by way of
sale, gift, mortgage or exchange Lease of
immovable property is dealt with
separately under section 56 of this Act.
There is a clear and categorical prohibition
in Muslim Law of alienation by way of sale,
gift, exchange or mortgage of other Waqf
properties, unless the deed of thorizes the
Mutawalli to do so for any specific purpose
or unless the permission of the Kazi is
obtained.
Under the Muslim Law, the Mutawalli may
alienate or encumber the Wag! property
wholly or in part under special
circumstances with the previous sanction of
the kazi. Any such act done without the
prior sanction of the kazi is wholly void and
inoperative. The functions of the kazi are
taken over by the courts in this country and
Indian Courts in earlier cases have
invariably given effect to the rule that the
sanction of the Court is a condition
precedent. In Nimi Chand Adya v Gulam
Hossain (1909) 37 Cal 179 the High Court
of Calcutta took a discordant view and
granted retrospective sanction for the
creation of a mortgage without the sanction
of the court, in the suit brought by the
mortgagee to enforce the mortgage.
Commenting strongly against this decision,
Hon'ble Justice Ameer All has pointed out
that "ex Post facto" sanction was never
contemplated by the Mussalman Jurists
and the prior permission of the Judge was
made an absolute condition to see not only
that the loan was necessary but also
whether it was proper, that the terms were
not onerous and there was no other mode
of meeting the necessity.
Section 36A of the Waqf Act 1954 inserted
by the Amendment Act 34 of 1964 and
substituted by the Amendment Act 69 of
1984 and the corresponding section 51 of
this act have categorically laid down that
any alienation of Waqf property by way of
sale, gift, exchange or mortgage shall be
void unless the same is effected with the
prior sanction of the Board. The rule of the
original Muslim Law has thus happily been
restored. The rule is clear that any
alienation of Waqf property by way of sale,
gift, exchange or mortgage in order to be
valid must be (1) with the sanction of the
Board and not the court, and (2) the
sanction must be anterior to the transaction
and both these conditions must be
concurrently satisfied. There is no longer
any room for ex post facto sanction.
The Board before according sanction for
alienation has also to take into
consideration the objects of the Waqf and
the reasonableness ad adequacy of the
consideration. It is specifically laid down
that the alienation sanctioned by the Board
has to be effected by public auction and is
subject to confirmation by the Board. It is
open to the Board to refuse confirmation if
adequate price is not fetched. The second
proviso empowers the Tribunal on
application by the aggrieved Mutawalli or
other person to permit such sale to be made
otherwise than by public auction if it is
necessary to do so in the interest of the
Waqf.
The procedure for alienating Waqf
properties came up for consideration before
the Supreme Court in D.M. Khasim Sab v
Court Mohala Mosque Committee reported
in (2004) 13 SCC 367. The property in
question which originally belonged to the
grandfather of the appellant was declared
as Waqf property on the basis of the deed
of gift executed by the grandfather of the
applicant. Subsequently, the Waqf Board
adopted a resolution to part with a portion
of the property measuring one Acre in
favour of the appellant. The said action of
Waqf Board was challenged to the Court
Mohala Mosque Committee as violative of
section 51 of the Karnataka Waqf Act,
1991. Hon'ble Single Judge of the High
Court of Karnataka held that there was
non-compliance with the requirements of
section 51 of the Act and it was affirmed on
appeal. The matter came up before the
Supreme Court and Their Lordships pointed
out that the publication in the Official
Gazette as mandated by sub-section (1).
Their Lordships proceeded to observe that
even if it is accepted that the requirement
of sub-section (1) was complied with, in the
absence of compliance with the requirement
of sub-section (2), there was no valid
sanction by the Board.
In the case of Mohammedia Co-operative
Building Society Ltd. vs. Lakshmi S. Co-
operative Building Society Ltd. reported in
AIR 2009 SC (suppl) 590, wherein Hon'ble
Supreme Court has held that for sale of
Wakf property, sanction of Board of
mandatory.
In the case of Rajasthan Waqf Board vs.
Devki Nandan Pathak reported in AIR
2017 SC 2155, wherein Hon'ble Supreme
Court has held that question whether the
suit land is a Waqf property or not can be
decided only by Tribunal and not by the
Civil Court. Once a property is declared to
be a Waqf property, a fortiori, where sale of
such property is made by a person not
connected with the affairs of Waqf or by a
person dealing with the affairs of the Waqf,
the same become void by virtue of Section
51 of the Wagf Act unless it is proved that it
was made after obtaining prior permission
of Board as provided under the Act. One
cannot dispute that the matter under filing
U/s 51 & 52 of the Act are also required to
be decided by Tribunal and hence
jurisdiction of the Civil Court to decide such
matters is also barred by virtue of
provisions content in Section 85 of the Act.
P.W. 1 has proved Exhibit-6 and the portion
of the property sold by Defendant No.9,
Khanu Bibi is part of Waqf property.
Defendant Nos. 1 and 3 to 8 have not
produced any evidence either oral or
documentary to prove their lawful
ownership over the suit property. They
appeared, filed written statement and
disappeared. They did not cross-examine
P.W.1 knowingly. Evidence of P.W.1
remained unchallenged and there is no
reason to disbelieve the same.
Thus, Issue No.6 is decided in favour of
and 3 to 8 holding that Sale Deed being
No.1097/1966 confers no title, right and
interest in favour of Defendant Nos. 1 and
3 to 8."
7. It is an admitted fact that the subject property belonged to Raja
Krishna Chandra Ray who dedicated the same in the name of
an unknown Pir in the year 1783 by virtue of a Sanad. The
said dedication and the future usage converted the said
property into a Waqf by user and the same was treated as a
public Waqf and there was no Waqfnama. The said property
registered under Misc. EC NO. 18 of 1965, which was enrolled
as "Pirattar Bibi Fatema and Pirattar Imam Saheb Waqf
Estate".
8. Subsequently, four (4) persons were appointed as joint
Mutwallis including Yousuf Ali Khan and Khanu Bibi
(petitioner herein).
9. Case of the petitioner herein is that after demise of Yousuf Ali
Khan, his son Abul Hossain became joint Mutwalli. Said Abul
Hossain died and Abul Kader Khan was appointed as
Mutawalli on his application dated 17.05.2006 suppressing the
names of other sons and daughters of Abul Hossain since
deceased.
10. It appears from the record that after execlusion of her
name, Khanu Bibi, (petitioner herein) made an application
before Executive Officer, Board of Waqf on 07.12.2007 for
recording her name. But Executive Officer recommended Abul
Kader Khan, opposite party no. 1 herein which was confirmed
by Board resolution dated 22.04.2010.
11. Khanu Bibi challenged the said recommendation of
Executive Officer and resolution of Board dated 22.04.2010 in
a suit being no. O.A. 15/2010 before the Waqf Tribunal. In that
suit the Board resolution dated 22.04.2010 was set aside.
Being aggrieved said Abul Kader Khan preferred revision being
no. C.O. 3072/2012 before this High Court. The C.O. 3072 of
2012 was dismissed for default and no step was ever taken at
the instance of Abul kader Khan, opposite party no. 1, herein
thereby, Mutwalliship of Abul Kader Khan was doused.
12. In the Suit No. 8 of 2018, challenged in this revision
application, Abul kader Khan, opposite party no. 1, herein,
muzzled entire fact of dismissal of the Suit being no. O.A. No.
15/2010 as well as dismissal of revision application being no.
C.O. 3072 of 2012, for obtaining decree from the Waqf
Tribunal, in his favour.
13. It is also apposite to note that Khanu Bibi, petitioner of
this revision application transferred Waqf property to the
opposite party no. 2 to 8 by a deed (exihibit 6 of suit no. 08 of
2018) in violation of provision of Section 53 of the West Bengal
Waqf Act, 1934 (for short Act of 1934). Thereby, petitioner of
this revision application was disqualified to be a Mutawalli. As
a result of which the aforesaid deed executed by the petitioner
herein was void ab initio in terms of provision of Section 36A
and 51 of the Act of 1934.
14. Provision of Section 53 of the Act of 1934 clearly bars
transfer of immovable property save and except the conditions
envisaged in sub Section 1 & 2 of Section 53 of the Act of 1934.
The same provision also prescribes punishment for transfer of
Waqf property in violation of conditions imposed by the
provision of sub Section 1 & 2 of the Section 53 of the Act of
1934.
15. However, plaintiff of the Suit no. 08 of 2018, deliberately
concealed material fact of dismissal of Suit no. O.A. 15/2010
as well as dismissal of C.O. 3072 of 2012 with a view to protect
himself as a Mutwalli of the subject property/ Waqf property.
16. It is settled that the Court should not become a source of
abuse of the process of law by the disgruntled litigant. Careful
exercise is necessary to ensure that the litigation is genuine,
not motivated by extraneous consideration and imposes an
obligation upon the litigant to disclose the true facts and
approach the Court was clean hands. No litigant can play hide
and seek with the Courts or adopt pick and choose. True facts
ought to be disclosed as the Court knows law, but not facts.
17. It is also settled that no litigant has a right to unlimited
drought on the Court time and public money in order to get his
affairs settled in the manner he wishes. However, access to
justice should not be misused as a license to file misconceived
and frivolous petitions. A litigant should approach the Court
not only with clean hands but also with clean mind, clean
heart and clean objective. Wheels of justice can move only on
true facts and truth cannot be trampled by an act of fraud.
18. Plaintiff of the Suit being no. 8 of 2018 was bound to
state all facts which were relevant to the litigation. He
deliberately withheld the material facts in order of gain
advantage over other side. Therefore, in my opinion, plaintiff
was guilty of playing fraud with the Waqf Tribunal.
19. In the suit being no. 08 of 2018 plaintiff/opposite party
no. 1 herein did not disclose the dismissal of O.A No. 15 of
2010 filed by him as well as dismissal of revision application
being no. C.O. 307/2012 by the High Court, the plaintiff had to
be non-suited on the suppression of material facts. The
plaintiff had not come to the Tribunal with clean hand and he
also abused the process of law. Therefore, plaintiff was not
entitled to any equitable and discretionary relief in his favour
from Tribunal.
20. Aforesaid, discussion clearly boils down to the position
that in the Suit No. 8 of 2018 neither plaintiff nor Proforma
defendant no. 9 are Mutwalli in respect of subject Waqf
property and defendant nos.1 to 8 did not acquire any right
over the subject property by any deed alleged to have been
executed by the defendant no. 9 in violation of provision of the
Act of 1934.
21. It is also abundantly clear that the plaintiff being guilty of
suppressing material fact are not entitled to any decree as
prayed for in the Suit No. 8 of 2028. Ld. Tribunal, in my
humble view, ought to have dismissed the said Suit.
22. As a sequel, the judgment and order passed in Suit no.
08 of 2018 was stands set aside.
23. Accordingly, the revision application being no. C.O. 173
of 2022 stands disposed of.
24. Connected applications, if there be, also stands disposed
of accordingly.
25. All parties to this revisional application shall act on the
server copy of this order downloaded from the official website of
this Court.
26. Urgent Photostat certified copy of this order, if applied
for, be supplied to the parties upon compliance with all
requisite formalities.
[BIBHAS RANJAN DE, J.]
