MOHAMMAD AFAQUE Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner, Chaudhry Mohammad Afaque, has filed this application under Articles 226 and 227 of the Constitution of India, and has prayed for issue of appropriate orders, directions or writs against the opposite party.

(2.) The petitioner is the holder of intermediary interest and also 700 bighas of raiyat kasht lands under different proprietors, including Islampur Waqf Estate, and he has been cultivating the raiyati lands and also some bakasht lands, A short genealogy of the petitioner's family will not be out of place to understand the case: <FRM>JUDGEMENT_283_AIR(PAT)_1956Html1.htm</FRM> This genealogy does not purport to be exhaustive. It appears that Chaudhry Abdul Aziz was possessed of some properties, and, in 1908, he made settlement of about 20 bighas of land in villages Islampur Chopra Jhar. There is ho dispute in this proceeding in regard to this land. On 14-4-1909, Abdul Aziz, had created a waqf-al-aulad' in respect of all his properties. Abdul Aziz died in 1916, and he was succeeded by his son, Mohammad Yusuf, father of the petitioner, as Mutwalli, and the other two brothers of Moham-mad Yusuf became Naib Mutwallis, according to the terms of the Waofnama. On 8-2-1923, the Mutwalli, namely, Mohammad Yusuf, settled lands comprised in khata No. 2, parts of plot No. 5 and plot No. 10, with one Dolo for nine years under a registered deed of settlement, along with other lands, including khata No. 64, plot No. 7 (part) and plot No. 9 (part), and khata No. 63, plot No. 8 (part), totalling an-area of 40 bighas 1 katha 11 dhurs, at a rental of Rs. 40/-. On 14-9-1925, more than two years alter, the said Dolo sold the said 40 bighas 1 katha 11 dhurs to the petitioner, who was then minor, under a registered document for a consideration of Rs. 1,500/-. On 19-3-1938, the Mutwalli settled an area of 113 bighas 14 kathas 6 dhurs with the petitioner, including khata No. 2, plot No. 5 (part) and plot No. 10 (part), and other lands for a rental or Rs. 35/6/-. There was another settlement with the petitioner in the same year by the Mutwalli in respect of 107 acres and odd which included khata No. 2, plot No. 5 (part) and plot-No. 10 (part). There was a third settlement of 10 acres and odd with the petitioner and the rental of these two pieces of land (107 acres and odd and 10 acres and odd) was fixed at Rs. 75/8/-. It is stated that the petitioner has been in possession all along since the dates of purchase and settlements and that he has built on portions of plots Nos. 5, 7, 8, 9 and 10 his residential houses, cut-houses, private mosque, cattle-shed etc.

(3.) Abdul Aziz, the founder of the Waqf, re-mained Mutwalli from 1909, the date of the creation of the Waqf, till sometime in 1916. Mohammad Yusuf was the Mutwalli after the death of Abdul Aziz in 1916 up to 26-4-1955. During his tenure as Mutwalli, one Mohammad Sahib was appointed a Receiver by the Subordinate Judge, Pur-nea, in 1939 in execution case No. 196 of 1933. The receivership terminated sometime in March, 1940, when he was discharged, and Mohammad Yusuf was appointed Receiver for a short-while. Thereafter, for about a year, one Fazlur Rahman was appointed Manager, with the consent of the parties, on 26-7-1940. Mohammad Ayub succeeded to the Mutwalliship on 26-4-1955, on the death of Mohammad Yusuf. According to the petitioner's case, there was ill-feeling between Mohammad Yusuf and Mohammad Ayub, and there were several criminal and civil litigations between them. It is also stated that he has always been in possession of the lands purchased by him and settled with him, as mentioned above, on payment of rent to the Waqf Estate all along, including the time when the Receiver was appointed and a Manager had been put in charge of the Waqf Estate.