A.M.BHATTACHARJEE, J. - (1.) In an earlier suit for partition instituted in 1952 between the defendants inter se, decrees for partition, both preliminary and final, were passed on compromise between the parties on the footing that the properties were secular and not Wakf Properties. Another suit by the defendants instituted in 1955 for a declaration that the alleged Deed of Wakf of 1936 in respect of the suit properties was null and void was, however, dismissed for default in 1968.
(2.) The Commissioner of Wakf, the plaintiff-appellant, has now filed this suit mainly for a declaration that the compromise decree for partition passed in the Suit for partition of 1952 is null and void and the suit-properties which were dedicated by way of Wakf could, not stand mundanised or otherwise affected by the said decree for partition.
(3.) The trial Court decreed the suit holding that the suit properties being wakf could not thus be disvested of their legal character by any partition-suit between interested private parties and declared the said decree to be null and void and of no effect. On appeal by the defendants, the appellate Court also held the suit-properties to be Wakf and thus immune from any onslaught by or under any partition decree on the footing of their being secular properties liable to partition by and between the alleged co-sharers or co-owners. But the appellate Court nevertheless allowed the appeal and dismissed the suit on the finding that the suit was not maintainable at the instance of the plaintiff, i.e. the Commissioner of Wakfs, under the provisions of Section 72 of the Bengal Wakf Act, 1934. Hence this second appeal by the plaintiff Commissioner. Let us, for the facility of discussion, reproduce the provisions of Section 72 of the Bengal Wakf Act, 1934, as it stood then, which is now renumbered as Section 72(1) and reads as hereunder :- "lf there is no mutwali or the mutwali refuses or neglects to act in the matter within a reasonable time, the Commissioner may in his own name institute a suit or proceeding in Court against a stranger to the Wakf or any other person for the recovery of any wakf property wrongfully possessed, alienated or leased, to have any Wakf property discharged. of an encumbrance or obligation wrongfully created or to recover any money belonging to a Wakf". In the instant suit, which has wended to this Court before us in this Second Appeal, there was apparently no prayer for recovery of possession of the suit properties. This led the appellate Court to conclude that the suit not being for recovery of possession was not maintainable under Section 72 at the instance of the Commissioner as the plaintiff and as the earlier decree for partition, however wrongful, could not in law be treated to have created any 'encumbrance' or any 'obligation' within the meaning of Section 72, the suit could not also be sustained under that Section as one "to have any Wakf property discharged of any encumbrance or obligation wrongfully created". With respect, we entirely disagree and we are afraid that the appellate Court resorted to too much literal approach to the provisions of the Section resulting in unwarranted circumscription of the provisions thereof and thus committed a substantial error of law.;