Decided on May 16,1970

SAGIR KHAN Appellant
Gul Mahammad Respondents


Chittatosh Mookerjee, J. - (1.) The Plaintiff -Respondents as Mutwallis of a Wakf estate, known as Anjuman Imdadul Muslim Wakf Estate, instituted a suit in the Second Court of the Munsif at Chandernagore against the three Defendants including the present Appellants and their predecessor -in -interest, inter alia, for the declaration that the property described in the schedule to the plaint was a Wakf property and that the kobala in question, executed in respect of the said property, was void and not binding upon the Plaintiffs, for recovery of possession of the same and for mesne profits etc. In prayer Ga the Plaintiffs had prayed for removal of the Defendant No. 3 who was an alleged Mutwalli. The case of the Plaintiffs, inter alia, was that the suit property appertained to the aforesaid Wakf estate which was enrolled as a public Wakf with the Commissioner of Wakf, West Bengal. Oh January 15, 1945, the said Wakf estate had purchased the suit property. The Defendant No. 3 was alleged to be the secretary of the said Wakf estate. According to the Plaintiffs on Chaitra 28, 1355 B.S. the Defendant No. 3 by practicing fraud and undue influence had purported to execute a kobala in the name of his brother and his wife who were impleaded as Defendants Nos. 1 and 2. The Plaintiffs alleged that the said kobala was a void document without consideration and not binding upon the Plaintiffs.
(2.) The Defendants Nos. 1, 2 and 3 filed a written statement in the said suit,, inter alia, denying that the impugned kobala was vitiated by fraud and undue influence. They claimed that the said kobala was a bona fide document and for consideration. The Defendants also pleaded that the suit as framed was not maintainable in view of the provisions of Sec. 92 of the Code of Civil Procedure.
(3.) The Plaintiffs had made an application in the Trial Court for amendment of the plaint. The Trial Court by its order No. 32 dated August 19, 1957, allowed the said prayer for amendment of the plaint. The said order of amendment had been made subject to the payments of costs to the Defendants. In my view, the Defendants, having accepted such costs which was a condition precedent to the amendment of the plaint, they were not entitled to challenge the correctness or legality of the aforesaid order of amendment of the plaint.;

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