IN THE HIGH COURT A T CALCUTTA

CIVIL APPELLATE JURISDICTION

APPELLATE SIDE

Present:

The Hon’ble Justice Md. Shabbar Rashidi

C.O. 850 of 2023

Al-Haj Moulana Syed Misbahul Arefin

Vs

Chowdhury Mohammed Abu Jafar Alam @ Halim Chowdhury &

others

For the Petitioner : Mr. S. S. Arefin, Adv.

Mr. S.M. Arefin, Adv.

For the Board of Waqaf : Md. Salahuddin, Adv.

Md. Ahsanuzzaman, Adv.

Md. Raziuddin, Adv.

For the opposite party No. 1: Mr. Mahammudul Hassan , Adv.

Mr. Manas Kumar Das, Adv.

For the State : Mr. Suman Chattopadhyay, Adv.

Heard on : 02.09.2026 & 08.09.2026

Judgment on : 18.09.2026

Md. Shabbar Rashidi, J.:-

1. The instant revision application is in assailment of judgment

and decree dated September 28, 2022 passed by the Wakf Tribunal,

West Bengal in connection with Suit No. 16 of 2007.

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2. By the impugned judgment and decree, the learned Wakf

Tribunal dismissed the suit being Suit No. 16 of 2007.

3. According to the case made out in the suit, one Chowdhury

Mohammed Salim of village Lodna was the owner of various lands and

properties. He constructed a mosque in the village Lodna and

dedicated several lands for religious and charitable purpo ses.

Although, Wakf deed was executed by Chowdhury Mohammed Salim

was not traceable but the Wakif acted himself as Mutawalli till his

death. On his demise, his only son Chowdhury Elahi Box made and

registered a Tauliatnama regarding the use of the properties dedicated

by his father for the purpose of maintenance of mosque and other

religious and charitable purposes as Wakf properties. Such

Tauliatnama was registered on July 4, 1879. In such Tauliatnama,

Chowdhury Elahi Box made a statement that his father dedicated the

properties as Wakf property as mosque and other properties and

appointed himself as Mutawalli of the Wakf Estate.

4. The said Chowdhury Elahi Box acted as second Mutawalli of

the Wakf Estate till his death. He left behind two sons, namely, Ansari

Bari Chowdhury and Afzal Bari Chowdhury who acted as Mutawallis

in respect of the Wakf properties till their death. Ansari Bari

Chowdhury died issueless whereas Afzal Bari Chowdhury had his only

son, i.e. Chowdhury Mohammad. It is further case in the suit that on

the death of Chowdhury Mohammad, his wife Momena Khatun

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enrolled the Wakf Estate before the Board of Wakfs in terms of the

provisions of Bengal Wakf Act, 1934. It was registered under E.C. No.

3974 known as Salim Chowdhury Wakf Estate being enrol led as a

Public Wakf. On such enrolment, Momena Khatun herself became

Mutawalli of the Wakf Estate as the children of her deceased husband

Chowdhury Mohammad were minor. Upon attaining majority, the

eldest son of Chowdhury Mohammad, namely, Chowdhury Kursh id

Alam was appointed as Mutawalli to the Wakf Estate.

5. According to the case made out in the Suit No. 16 of 2007, the

Wakf properties mentioned in the Tauliatnama were duly recorded in

C.S. record of right as Wakf property. It was, accordingly, recorded in

the record of right of the Wakf Board at the time of its enrolment by

the wife of Chowdhury Mohammad, namely, Momena Khatun.

6. According to the case, at the time of revisional settlement, the

then Mutawalli got three plots, namely, Plot No. 2351, 2103 and 2099

recorded in his personal name instead of Wakf property which

included mosque as well. It was contended that Momena Khatun

relinquished her Mutawalliship in respect of Chowdhury Kurshid

Alam, when he attained majority. The daughters of Chowdhury

Mohammad being defendant Nos. 1, 2 and 13 in this suit did not

contest the suit. It was further contended that on the death of

Chowdhury Kurshid Alam, his brothers, namely, Chowdhury Badre

Alam and Chowdhury Nisaruddin Ahmed were recorded as Mutawalli

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and Naib Mutawalli respectively by the then commissioner of Wakf by

an order dated November 26, 1971.

7. It was alleged that during their tenure, Chowdhury Badre

Alam and Chowdhury Nisaruddin Ahmed treated the Wakf properties

as their personal secular properties and mismanaged the properties as

also misappropriated usufructs of Wakf properties. A complaint, in

this regard, was made and upon hearing of such complaint, the

Commissioner of Wakf removed Chowdhury Badre Alam and

Chowdhury Nisaruddin Ahmed from the office of Mutawalli by an

order passed on December 15, 1978 and appointed the mother of

plaintiff No. 1, namely, Ozmatunesa Begum as Mutawalli under the

provisions of Bengal Wakf Act, 1934. The said order passed by the

Commissioner of Wakf was challenged by Chowdhur y Badre Alam and

Chowdhury Nisaruddin Ahmed in a proceeding being CR Case No.

10355(W) of 1978. However, such writ application was dismissed on

December 13, 1985. The term of Mutawalliship of the mother of

plaintiff in Suit No. 16 of 2007 was extended by an order dated March

1, 1986. Subsequently, owing to her medical conditions, the mother of

the plaintiff resigned from Mutawalliship whereupon the

Commissioner of Wakf appointed Chowdhury N isaruddin Ahmed as

Mutawalli and after his demise, defendant No. 13 was appointed

receiver to the said Wakf Estate. Chowdhury Badre Alam and

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Chowdhury Nisaruddin Ahmed expired in the meantime and their

sons were impleaded as defendant Nos. 1 and 2.

8. It was also contended that the Mutawalli appointed under the

Wakf Estate treated the Wakf Estate as their personal properties and

recorded their personal names in the record of right. The matter was

reported to the Board of Wakf but the Board did not take any steps for

correction of records of right. It was further contended that the

receiver appointed to the Wakf property also did not manage the Wakf

properties properly and did not submit any account before the Board.

9. At the time of hearing, learned Advocate for the petitioner

submitted that the learned Tribunal failed to appreciate the materials

placed before it for declaration of the properties as Wakf properties

under the Wakf Act, 1995. Learned Advocate for the petitioner also

submits that the learned Tribunal erred in dismissing the suit. On

perusal of the materials placed before learned Tribunal including the

written statement filed by the defendants, a decree on admission

ought to have been passed declaring the properties to be Wakf

properties. He further submits that the learned Tribunal came to an

erroneous finding that the plaintiff, in this suit, failed to prove that the

defendant had no right and title in respect of the properties involved in

the proceeding.

10. Learned Advocate for the petitioner also submitted that the

learned Tribunal failed to appreciate that the plaintiffs in the suit are

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not given an opportunity to cross-examine the evidence to be adduced

on behalf of the defence.

11. Learned Advocate for the petitioner further submits that,

although, the learned Tribunal held that the properties involved in the

proceeding were Wakf properties and that the defendants in this suit

shall not alienate or dispose of the aforesaid properties nevertheless

the suit was dismissed. In support of his contention to this effect,

learned Advocate for the petitioner relied upon (1998) 2 SCC 642

(Sayyed Ali And Others. vs. A.P. Wakf Board, Hyderabad and

Others).

12. Learned Advocate for the petitioner also contended that ,

although, a specific relief was not sought in the suit with regard to the

correction of record of rights, however, such relief can be granted by

this Hon’ble Court in terms of the provisions of Order VII Rule 7 of the

Civil Procedure Code, 1908. To such proposition, learned Advocate for

the petitioner relied upon 1951 SCC 136 (Srinivas Ram Kumar

Firm vs. Mahabir Prasad And Others) and 1965 SCC OnLine SC

111 (Bhagwati Prasad vs. Chandramaul) .

13. On the other hand, learned Advocate appearing for the

opposite party No. 1 contended that the great grandfather of opposite

party No. 1 executed a registered Deed of Wakf and settled certain

properties for the maintenance of the descendants and for other

religious purpose. He further submits that, although, at the time of

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hearing, learned Advocate for the petitioner has relied upon CS record

of right, however, neither such record of right was produced before the

learned Tribunal nor it was admitted in evidence. Learned Advocate for

the opposite party No. 1 also stated that the suit was filed by the

petitioner with an ulterior motive. According to him, the petitioner

never approached or applied before the authorities for correction of

record of right. Learned Advocate for the petitioner submits that his

predecessors dedicated the properties to Wakf and the present

opposite party No. 1 has been working as a Mutawalli of the said Wakf

Estate.

14. Learned Advocate for the opposite party No. 1 also submitted

that in the registered Deed of Tauliatnama as well as the Deed of

Wakf, Chowdhury Elahi Box made a Rule of Succession regarding

appointment of Mutawallis. As per such Rule of Succession, indicated

in the aforesaid deeds, the office of Mutawalliship was kept reserved

for the male descendants of wakif’s family from generation to

generation.

15. At the time of hearing, it was admitted by learned Advocate

for the opposite party No. 1 that the properties involved in the suit are

Wakf properties and those were duly recorded with the Board of Wakf

with E.C. No. 3974.

16. Although, learned Advocate for the Wakf Board as well as

learned Advocate for the State appeared during the hearing of the

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instant revisional application but no separate pleadings etc. were

submitted on their behalf.

17. Suit No. 16 of 2007 was filed by the petitioners, who claim

themselves to be descendants of wakif, seeking the following reliefs

namely:

(a) “For a decree of declaration that the properties

described in Schedule-A of the plaint is properties of Selim

Choudhury Wakf Estate E.C. No. 3974;

(b) For declaration that defendant nos. 1 to 9 and 13 have

no right, title, interest in the Schedule properties;

(c) For permanent injunction restraining the defendant nos.

1 to 9 and 13 and each of them from transferring by way of

sale, lease, mortgage or otherwise of Schedule properties

treating them as their personal and secular properties;

(d) For Receiver;

(e) For Cost;

(f) Such other or further order be passed as this Hon’ble

Presiding Officer this Tribunal may think fit and proper.”

18. As noted in the impugned judgment and decree, it was the case

of the plaintiff that the suit A Schedule properties belong to

Choudhury Md. Selim Wakf Estate. Chowudhury Md. Selim dedicated

such properties into the wakf estate. Later on, his successor and

Mutawalli, Choudhury Elahi Bux executed a registered Tauliatnama in

this regard. According to the case made out by the plaintiffs, the

predecessors of defendant nos. 1 and 2 sold out certain properties

belonging to such wakf estate. It was also contended that defendant

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nos. 1, 2 and 13 have been trying to transfer wakf properties taking

advantage of erroneous entries in the Record of Rights. On the

contrary, it was the case of the defendant nos. 1, 2 and 13 that

Choudhury Md. Selim never dedicated any proper ty to the mosque.

Consequently, Choudhury Elahi Bux had no right to execute

Tauliatnama as he was not the owner of the properties.

19. Based on the respective cases made out by the plaintiff and

defendant nos. 1, 2 and 13, in their pleadings, the learned Tribunal

framed the following issues for proper adjudication of the disputes.

1. “Is the suit maintainable in its present form and prayer?

2. Have the plaintiffs any cause of action to file this suit?

3. Is the suit barred by limitation?

4. Is the suit bad for non-payment of proper court fee?

5. Whether the plaintiffs are the rightful Mutawalli and

beneficiary in respect of the properties mentioned in the A

schedule of the plaint is the properties of Selim Choudhury Wakf

Estate?

6. Are the plaintiffs entitled to get the decree as prayed for?

7. To what other relief or reliefs the plaintiffs are entitled to?”

20. In order to prove their case, plaintiffs examined one witness. One

Syed Shamsul Arefin was examined as PW1. In his deposition, PW1

stated that the suit A Schedule properties were recorded in the name

of Choudhury Md. Selim Wakf Estate in the CSROR. However, during

the mutawalliship of Choudhury Khurshed Alam, the same properties

came to be recorded in his personal name in the RSROR. On the death

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of Choudhury Khurshed Alam the schedule properties were recorded

in the name of Choudhury Badre Alam and Choudhury Nesaruddin

Ahmed. Subsequently, the said properties were recorded in the

personal name of defendant nos. 1to 9. The said defendants have

divided the schedule properties amongst themselves as secular

properties.

21. In support of his case, the plaintiffs relied on the following

documentary evidence, that’s to say:

Exhibit 1: Certified copy of Khatian No. 4 of Mouza Lodna.

Exhibit 2: Certified copy of latest ROR in respect of several

khatians relating to Plot No. 2103.

Exhibit 2/1: Certified copy of LRROR in respect of Dag No.

2099, J. L. No. 4, showing existence of Masjid in the name of

Choudhury Nesaruddin Ahmed and Choudhury Badre Alam.

Exhibit 2/2: Certified copy of LRROR in respect of Dag No.

2351 in the name of Masuda Begum and others.

Exhibit 3: Original receipt copy of notice U/s 89 of Wakf Act,

1995 dated 14.09.2007 given to Board of Auqaf.

22. Upon trial and considering the evidence adduced by the parties,

the learned Tribunal did not find merit in the suit and consequently,

dismissed Suit No. 16 of 2007. From the pleadings put in by the

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plaintiffs, it transpires that it is their claim that the properties

described in Schedule-A of the plaint are properties of Selim

Choudhury Wakf Estate E.C. No. 3974 and that defendant nos. 1 to 9

and 13 have no right, title, interest in the Schedule properties.

23. According to the case made out Chaudhury Md. Selim dedicated

various properties into wakf for the maintenance of mosque. However,

the deed in respect of such dedication to wakf was not traceable.

Subsequently, on his death, the son of Chaudhury Md. Selim, namely

Choudhury Elahi Bux executed a registered Tauliatnama on July 4,

1879 declaring that his father dedicated properties into wakf for the

maintenance of mosque and other religious purposes and had

executed a deed of wakf in this regard. According to the case made out

by the plaintiffs, the said Tauliatnama also stipulated the terms for

maintenance and management of the wakf properties, the order of

mutawalliship and its appointment etc. it was also contended that

such properties were duly registered as wakf properties with the Board

of Auqaf, West Bengal under EC No. 3974.

24. The learner tribunal, while deciding such issues, held on the

basis of evidence adduced at the trial that the plaintiffs did not

produce any document to establish that the suit properties were

actually dedicated into Waqf by Choudhury Md. Selim. Admittedly, the

deed of Waqf or the deed of Tauliatnama was not proved at the trial.

The defendant Board of Auqaf also did not produce any document to

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establish the A- Schedule properties were registered with them as waqf

properties under EC No. 3974. Though, it has been noted in the

impugned judgment and order that Exhibit 1, i.e. RSROR goes to show

that suit properties belong to Choudhury Md. Selim Wakf Estate.

25. So far as allegations of alleged transfer or attempt to transfer the

wakf properties by the defendants is concerned, PW1, in his cross

examination, failed to give the account of such transfer or the

description of the wakf properties allegedly transferred by the

predecessor of defendant nos. 1 and 2. He also failed to produce any

deed or other document to prove such transfer of wakf properties. PW1

also could not give the details with regard to the allegation of the

plaintiffs that the defendants were trying to sell out the wakf

properties. On such score, the learned tribunal came to a conclusion

that the allegations of alleged transfer or attempted transfer of wakf

properties were baseless and unfounded. Learned tribunal also held

that the tribunal was not the proper forum to agitate the issue of

erroneous recordings in the record-of-rights. The parties are at liberty

to take up such issue regarding correction of record-of-rights with

appropriate authorities.

26. At the time of hearing, learned advocate for the petitioner has

referred to the provisions of Order VII Rule 7 to cont end that

necessary directions for correction of record-of-rights may be issued

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by this Court. In Srinival Ram Kumar Firm (supra), it was held by

the Hon’ble Supreme Court that:-

“12. A plaintiff may rely upon different rights alternatively

and there is nothing in the Civil Procedure Code to prevent a

party from making two or more inconsistent sets of allegations

and claiming relief thereunder in the alternative. The question,

however, arises whether, in the absence of any such

alternative case in the plaint it is open to the court to give him

relief on that basis. The rule undoubtedly is that the court

cannot grant relief to the plaintiff on a case for which there

was no foundation in the pleadings and which the other side

was not called upon or had an opportunity to meet. But when

the alternative case, which the plaintiff could have made, was

not only admitted by the defendant in his written statement

but was expressly put forward as an answer to the claim

which the plaintiff made in the suit, there would be nothing

improper in giving the plaintiff a decree upon the case which

the defendant himself makes. A demand of the plaintiff based

on the defendant's own plea cannot possibly be regarded with

surprise by the latter and no question of adducing evidence on

these facts would arise when they were expressly admitted

by the defendant in his pleadings. In such circumstances,

when no injustice can possibly result to the defendant, it may

not be proper to drive the plaintiff to a separate suit.”

27. Similarly, in Bhagwati Prasad (supra), the Hon’ble Supreme

Court laid down that,

“15. It is hardly necessary to emphasise that in a matter of

this kind, it is undesirable and inexpedient to lay down any

general rule. The importance of the pleadings cannot, of

course, be ignored, because it is the pleadings that lead to the

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framing of issues and a trial in every civil case has inevitably

to be confined to the issues framed in the suit. The whole

object of framing the issues would be defeated if parties are

allowed to travel beyond them and claim or oppose reliefs on

grounds not made in the pleadings and not covered by the

issues. But cases may occur in which though a particular plea

is not specifically included in the issues, parties might know

that in substance, the said plea is being tried and might lead

evidence about it. It is only in such a case where the Court is

satisfied that the ground on which reliance is placed by one or

the other of the parties, was in substance, at issue between

them and that both of them have had opportunity to lead

evidence about it at the trial that the formal requirement of

pleadings can be relaxed. In the present case, having regard

to all the facts, we are unable to hold that the High Court

erred in confirming the decree for ejectment passed by the trial

court on the ground that the defendant was in possession of

the suit premises as a licensee. In this case, the High Court

was obviously impressed by the thought that onc e the

defendant was shown to be in possession of the suit premises

as a licensee, it would be futile to require the plaintiff to file

another suit against the defendant for ejectment on that basis.

We are not prepared to hold that in adopting this approach in

the circumstances of this case, the High Court can be said to

have gone wrong in law.”

28. However, to my opinion, this proceeding before this court is

circumscribed by the provisions of Section 115 of the Civil Procedure

Code, 1908 and/or Article 227 of the Constitution of India. The scope

of the instant proceedings is confined to the exercise of powers by the

learned tribunal in passing the impugned judgment and decree to the

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limited extent of legality, validity and propriety of such judgment and

decree. I am not minded to pass any direction which a court of regular

appeal could have passed sitting in an appellate jurisdiction.

29. The learned tribunal decided issue no.1 partly in favour of the

plaintiff. It was held that as there was no formal defect in form of the

suit, the suit was maintainable. However, it was held that it was not

disclosed in the plaint as in which capacity, the suit was filed by the

plaintiffs. Out of 7 plaintiffs, only one was found to be descendant of

wakif. Learned tribunal held that it was not clear as to the plaintiffs

filed the suit in the capacity of interested person or a beneficiary or

descendant of wakif. The provisions of Order I Rule 8 of the Civil

Procedure Code, 1908 were also not complied, prior to filing of the

suit. It held that the locus of plaintiffs to file the suit is shrouded with

doubts.

30. As I have noted hereinbefore that the plaintiff did not prove the

original wakf deed or the Tauliatnama. In order to decipher the

intention of the wakif behind the dedication of properties is not

brought on record. It is not clear if the wakf was for public charitable

purposes or left interest for some beneficiaries. In absence of

Tauliatnama, the intention of the wakif regarding order of

appointment of Mutawallis cannot be ascertained. If that be so,

plaintiffs cannot claim any right of mutawalliship. Without the

intention of wakif in respect of appointment of mutawallis being

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explicit, the right of the plaintiffs to file Suit No. 16 of 2007 seeking

declaration and injunction is in question. In Sayyed Ali (supra), the

Hon’ble Supreme Court observed as follows:-

“13. Lastly, it was contended by the learned counsel for the

appellant that once patta, under the Inams Act, having been

granted in favour of Mokhasadars, it was not open to the High

Court to hold that the property was a wakf property. In other

words, the argument seems to proceed on the basis that once

patta has been granted under the Inams Act to Mokhasadars,

the land has ceased to be a wakf property. It may be stated

that a wakf is a permanent dedication of property for

purposes recognized by Muslim law as pious, religious or

charitable and the property having been found as wakf would

always retain its character as a wakf. In other words, once a

wakf always a wakf and the grant of patta in favour of

Mokhasadar under the Inams Act does not, in any manner,

nullify the earlier dedication made of the property constituting

the same as wakf. After a wakf has been created, it continues

to be so for all time to come and further continues to be

governed by the provisions of the Wakf Act and a grant of

patta in favour of Mokhasadar does not affect the original

character of the wakf property. We accordingly find no

substance in the last argument of the learned counsel for the

appellant.”

31. Moreover, Section 89 of the Waqf Act, 1995 bars a suit without a

notice disclosing a cause of action and a clear statement of such

service upon the Board of Auqaf, two months prior to filing of the suit.

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Board of Auqaf was a party to the suit and was served with a notice

under Section 90 of the Act of 1995. Section 89 reads as follows:

“89. Notice of suits by parties against Board.—No suit shall be

instituted against the Board in respect of any act purporting to

be done by it in pursuance of this Act or of any rules made

thereunder, until the expiration of two months next after notice

in writing has been delivered to, or left at, the office of the

Board, stating the cause of action, the name, description and

place of residence of the plaintiff and the relief which he

claims; and the plaint shall contain a statement that such

notice has been so delivered or left.”

26. Learned tribunal while deciding issue no. 2 held that Exhibit

3, the notice alleged to be under Section 89 of the Act of 1995 did not

disclose a cause of action. Not only that, it was held by learned

tribunal that the suit was instituted on an allegation that

predecessors of the defendants sold out certain properties belonging

to waqf and that the defendants were in negotiation with several

persons to dispose of the Waqf properties. However, no document

whatsoever was produced and proved at the trial to substantiate such

allegations. In fact no documentary evidence was produced by the

plaintiff to establish that the predecessors of the defendants actually

transferred certain properties belonging to the Wakf estate. In such

view of the facts, Suit No. 16 of 2007 could not have been filed for

non-compliance of the mandatory provisions of Section 89 of Waqf

Act, 1995. The learned tribunal also held that the plaintiffs failed to

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prove that a valid cause of action did exist for filing the suit. On the

basis of materials and evidence on record, I find no reason to interfere

with such finding of the learned tribunal.

27. Issue no. 3 dealing with limitation and issue no.4 with regard

to proper court fee were decided in favour of plaintiffs. The learned

tribunal held therein that the written statement filed on behalf of

defendants although, raised these points but it failed to point out the

precise incident on the basis of which it could be said that the suit

was barred by limitation or payment of proper court fees. The learned

tribunal also, on examination of the plaint, came to a conclusion that

the suit for declaration and permanent injunction filed by the

plaintiffs was not barred by the laws of limitation and that proper

court fee was paid in accordance with extant laws. Nothing has been

brought on record during hearing of the present proceeding to

establish any patent error in the exercise of powers vested in the

tribunal.

28. Issue no. 5 with regard to the rights of the plaintiff to be a

mutawalli and beneficiary in respect of A schedule property, was

decided against the plaintiffs. Deciding this issue, the learned tribunal

noted that,

“There is no pleading that all the plaintiffs are rightful

mutawallis and beneficiaries of the Waqf estate. There is no

stipulation in affidavit in chief that plaintiffs and mutawallis

are beneficiaries. PW1 without any proof deposed that

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plaintiffs are committee mutawallis of Waqf estate. During the

course of oral argument, learned advocate of plaintiffs

submitted that plaintiff no. 1 is the descendant of wakif but

there is no documentary proof to this effect. Neither general

logical table has been produced no any other document have

been filed to show that the plaintiffs are beneficiaries of the

Waqf estate. Unless it is proved that plaintiffs are

descendants of wakif as per deed of Waqf or Tauliatnama,

their claim for mutawaalliship cannot be entertained. On the

other hand, PW1 has admitted that defendant no. 1 & 2 are

descendants of wakif. copy of Tauliatnama has not been

placed on record and proved.

Thus, issue no. 5 is decided against the plaintiffs holding that

the plaintiffs have failed to prove that they are rightful

mutawallis as per Tauliatnama and they have also failed to

prove that they are the beneficiaries of the schedule property”.

29. Similarly, while deciding the issue nos. 6 & 7 with respect to

the reliefs claimed in the suit, the learned tribunal decided these

issues against the plaintiffs. The learned tribunal held that,

“So far as a prayer (a) is concerned, schedule property is not

disputed to be not Waqf property. The schedule properties are

stated to be Waqf property and the same was not denied by

learned advocate during the course of oral argument. Plaintiffs

have not filed certified copy of enrolment application, certified

copy of Waqf register, certified copy of Tauliatnama to prove

their case. However, as per Exhibit – 1, it is clear that suit

property belongs to Chowdhury Md. Selim Waqf Estate having

E. C. No. 3974. Board of Auqaf has not assisted this tribunal

by filing a written statement, by producing DW and by

producing relevant records. It seems that board of Auqaf is not

at all interested in some cases for the protection and

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preservation of the Waqf property. Defendant no. 1 & 2 have

also not come with clean hands to disclose the real facts as to

how much property was dedicated by the wakif and how

much property is remaining with the Waqf estate.. There is

allegation that predecessor of defendant no. 1 & 2 transferred

Waqf property but no document has been produced to

substantiate the allegation. We have already held while

deciding issue no. 2 that plaintiffs have no cause of action to

institute the present suit. We have also held that the notice

U/s 89 of Waqf act, 1995 is totally defective. We have also

held that plaintiffs have not been able to produce sufficient

document such as certified copy of enrolment application,

certified copy of Waqf register, certified copy of Tauliatnama,

sale deeds by which Waqf property was transferred by

predecessor of defendant no. 1 & 2. The onus of proof is on

the plaintiff to prove their case. The plaintiffs cannot take

advantage from the weakness of the defence of defendants.

Defendant no. 1 & 2 is the main contesting defendant in this

case who opted not to give defence evidence probably due to

their contradictory stand taken in a written statement.

Defendant no. 1 & 2 perhaps did not bring DW apprehending

that the illegality committed by their predecessors may be

disclosed during cross-examination. Defendant no. 1 & 2 have

not disclose the real fact as to how much property was

dedicated and how much property was transferred on not and

how much property remains with the Waqf Estate. Learned

advocate kept crying that defendant no. 1 & 2 are

descendants of wakif and they are entitled to be Mutawalli of

the Waqf Estate but did not disclose the real present status of

the Waqf Estate. Defendant no. 1 & 2 are hanker over the post

of mutawallis but are not honest at all to protect and preserve

the Waqf Estate.”

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So far as prayer (b) is concerned, plaintiffs have failed to

prove that as to how defendant no. 1 & 2 and other

defendants have no right, title and interest in the schedule

properties. Plaintiffs have also failed to prove that they have

right, title and interest in the suit property. There is an

admission of PW 1 that defendant no. 1 & 2 are the

descendants of wakif and if they are the desc endants of

wakif, they cannot be restrained by decree of declaration

permanently. Descendants of wakif cannot be injunctive

permanently as prayed in prayer clause (c). It is true that

defendants have no right, to transfer Waqf properties by way

of sale, lease, mortgage or otherwise. Other prayers are also

not entered enable.”

30. Accordingly, on the basis of the evidence produced at the trial

as discussed by the learned tribunal issue -wise, the learned tribunal

dismissed the suit on the ground that sufficient evidence was not

produced in support of the case made out by the plaintiffs. I have also

noted hereinbefore that the learned tribunal was quite justified in

holding that Suit No. 16 of 2007 could not have been instituted for

violation of the provisions under Section 89 of the Act of 1995.

31. I have also noted that for nonproduction of the deed of Waqf

or that of Tauliatnama, the intention of the wakif for the dedication of

the properties to Wakf could not be ascertained. It was claimed at the

trial that the Tauliatnama set forth the order of succession to the

office of Mutawalliship. It was contended that such office was kept

reserved for male descendants of the family of the wakif. However

22

such facts have not been proved by the plaintiff by producing the

Waqf deed or Tauliatnama.

32. The instant proceeding has been filed in terms of the

provisions under Article 227 of the Constitution of India. This is not a

regular appeal from the impugned judgment and order in order to

press the provisions of Order XXXXI into service. The learned Tribunal

decided the issues on the basis of evidence led at the trial. As noted

above, the necessary documents to prove the case of the petitioner

were either not in existence or not placed before the learned Tribunal.

In such view of the facts, I find no reason to interfere with the offence

arrived at by the learned Tribunal on the basis of materials placed

before it. I find no merit in the present application under Article 227 of

the Constitution of India field on behalf of the petitioner.

33. With the aforesaid observations, C.O. 850 of 2023 is,

accordingly, disposed of. Connected application(s), if any, shall also

stand disposed of.

34. Urgent photostat certified copy of this judgment, if applied

for, be supplied to the parties on priority basis upon compliance of all

formalities.

[MD. SHABBAR RASHIDI, J.]