J. Bhattacharya, J. - (1.) This application under Article 227 of the Constitution of India is directed against an order dated 29th May, 2010 passed by the learned Additional District Judge, Eleventh Court at Alipore in Misc. Appeal No. 109 of 2009 modifying the order dated 3rd March, 2010 passed by the learned Civil Judge (Junior Division), Fifth Court at Alipore in Title Suit No. 282 of 2004, at the instance of the plaintiffs/petitioners.
(2.) Heard Mr. Banerjee, learned Advocate, appearing for the petitioners and Mr. Ray Chowdhury, learned Senior Counsel, appearing for the opposite party No. 1. Considered the materials on record including the order impugned.
(3.) Let me now consider as to how far the learned Appeal Court was justified in passing the impugned order in the facts of the instant case. The plaintiffs/petitioners filed a suit in the representative capacity claiming themselves as beneficiaries under the wakf deed executed by Shahzadah Kamar Kadar Mirza Md. Abid Ali Bahadur on 14th June, 1917 for enforcement of their beneficial right to perform their religious congregation and worship in the Mosque and Imambara situated at premises No. 123, Circular Garden Reach Road (presently known as Karl Marx Sanari, Kolkata -73), as members of the Shia Community of Muslims. Since the defendant No. 1 being the Mutwalli of the said wakf estate was taking steps to demolish the Mosque and the Imambara, the plaintiff prayed for a decree for declaration that the defendant No. 1 (Mutwalli) is not entitled to demolish the Mosque and Imambara situated at 123 Karl Marx Salani, Kolkata -23 by disobeying the instruction given by the wakif viz. late Prince Kamar Kadar Mirza Md. Abid Ali Bahadur in the said wakf deed. The plaintiffs have also sought for a decree for permanent injunction for restraining defendant No. 1 from going ahead with any scheme/plan for demolition of development/transfer/alienation of the Maszid/Imambara of the Wakf Estate situated at 123 Karl Marx Sarani, Kolkata -23 or any part thereof on the basis of any purported permission or sanction of the scheme or building plan issued by the defendant Nos. 2 and 3 being the Municipal Authorities. The plaintiffs claimed that the wakif executed the said deed of wakf on 14th June, 1917 with a view to carrying out the directions of his religion and for the maintenance of his children from generation to generation and for perpetually keeping in existence the works of charity. The wakif dedicated his considerable immovable properties mentioned therein for implementation of the objects contained in the said wakf deed.;