NAYIMUL HASAN Vs. PEER HAZARAT LASKARI MASTAN SAHED

JUDGEMENT

(1.) IN this revision, petitioners challenge the order dated 31.12.2004 of the Presiding Officer, Wakf Tribunal Orissa, Cuttack passed in Case No. W.T.(O)/OA -06/2004. The plaintiff -opposite party No.1 filed the aforesaid case for a declaration that the suit property is WAKF property, for avoiding the compromise decree in T.S. No.4 of 1997 and for recovery of the property from the contesting defendants.

(2.) THE case of the plaintiff before the Wakf Tribunal is that the suit land situated at Machhua Bazar, Cuttack along with other properties of the Peer Hazrat Lashkari Mastan Saheb have been duly surveyed and notified by the Board of Wakfs, Orissa (defendant No.8) as Wakf property in the Orissa Gazette dated 8.11.1968. Such gazette notification has never been challenged since its publication for which it has reached its finality. The suit property is always managed by a duly constituted managing committee known as Mastan Dargha and Jadu Bangala Managing Committee, which is approved and recognized by defendant No.8. The suit land relating to Hal Plot Nos.529 and 532 measuring Ac.0.06 decimals and Ac.0.18 decimals respectively under Hal Khata No.7 corresponding to Sabik Plot No.28 has been recorded in favour of the Peer in the settlement operation. Defendant No.7 alleging to be the Mutawalli of the suit Peer filed R.P. Case No.121265 of 1995 in the Court of the learned Commissioner of Land Records and Settlement and by act of manipulation and fraud he managed to get his name recorded as a Mutawalli of the plaintiff -Peer and with the strength of such erroneous record attempted to interfere in the management of the institution. Defendant Nos.1 to 6 on some false and frivolous grounds filed T.S. No.4 of 1997 before the Court of the learned Civil Judge (Senior Division), 1st Court, Cuttack for a declaration that they are the Sikim tenants of the present suit property with alternative prayer for declaration of their title over the suit property on the basis of adverse possession. On coming to know of the initiation of T.S. 4 of 1997, the plaintiff filed a petition under Order -1, Rule -10, C.P.C. and got itself impleaded as a party. Defendant Nos.1 to 6 being aggrieved by such order preferred Civil Revision No.406 of 1998 before this Court which was dismissed vide order dated 10.07.2000. That suit was subsequently transferred to the Court of the Civil Judge (Senior Division), 1st Court, Cuttack. Since defendant Nos. 1 to 6 forcibly collected rent from 5 shop rooms situated over the suit land, the plaintiff filed misc.case No.12 of 2002 under Order -40, Rule 1, C.P.C. for appointment of receiver in T.S. No.4 of 1997. Thereafter, defendant Nos. 1 to 6 colluded with defendant No.7 and filed a compromise petition wherein defendant No.7 admitted the right, title, interest and possession of defendant Nos.1 to 6 over the suit land. Then defendant Nos. 1 to 6 withdrew T.S. No.4 of 1997 against the rest of the defendants including the plaintiff, but such compromise is illegal as defendant No.7 has no manner of right, title and interest in relation to the suit property.He has no legal authority to represent the plaintiff -Peer. Since the suit property is a Wakf property, the said compromise is hit under the provisions of Sections 60 and 36 -A of the Wakf Act, 1954. The impugned compromise has been effected behind the back of the present plaintiff. Defendant Nos. 1 to 6 are also attempting to interfere in the management of suit property on the basis of such illegal compromise. Therefore, the plaintiff filed the original application for declaration that defendant Nos.1 to 6 have got no manner of right, title, interest and possession over the suit land and recovery of the property.

(3.) CONSIDERING , the pleadings of the parties, the following issues were framed by the Tribunal : -