- (1.) THE plaintiff is the appellant against this judgment of reversal. THE plaintiff filed a suit being Title Suit No.162 of 1978 in the Court of learned Munsif, 4th Court, Burdwan alleging inter alia that properties described in schedule A, B and B1 were the properties of the plaintiff Wakf Estate. One Abdul Sovan Sarkar was the Mutwalli of the plaintiff Wakf Estate. Due to his inability the Commissioner of Wakfs appointed one Abdul Aziz Sarkar as co-mutwalli. Abdul Sovan Sarkar died in 1364 B. S. leaving behind proforma defendant 2-5 and widow Azema Bibi (since deceased) as his heirs. After death of Abdul Sovan Sarkar one of his sons namely, Rawswa Ali Sarkar was appointed co-mutwalli by the Commissioner of Wakf with the consent of other mutwalli Abdul Aziz Sarkar. THE suit properties were all along wakf properties and not personal properties of any of the mutwallis. Suit properties appertaining to khatian No.84 and 86 of Mouza Mollasarul and Khatian No.15 of Mouza Simasimi were dedicated to the plaintiff Wakf Estate before C. S. record but due to inadvertence and erroneously those were recorded as personal properties of Abdul Sovan Sarkar. Abdul Sovan Sarkar later executed a deed of disclaimer on 23.05.1944 in respect of those properties wherein he admitted that those were wakf properties all along. C. S. plot No.7908 of khatian No.321 of Mouza Mollasarul was purchased by the plaintiff Wakf Estate from one Fakiran Bibi by a unregistered deed dated 27th of August, 1938 on payment of Rs.11/- and since then it was in the possession of the Wakf Estate. THE properties appertaining to Khatian No.1520 of Mouza Mollasarul as described in the schedule A and B in the plaint were taken in settlement for permanent tenancy by the plaintiff Wakf Estate through its Mutwallis namely Abdul Sovan Sarkar and Abdul Aziz Sarkar in the year 1354 B.S. and 1355 B. S. respectively. Since then the plaintiff Wakf Estate was in possession of those properties more than 12 years openly and has acquired a title thereupon through adverse possession also. THE plaintiff Wakf Estate gifted the properties in Schedule B-1 long ago to the proforma defendant No.6 who was in possession of the same since then for running a school. Revenue Officer, Galsi Settlement Camp started a B. R. Case No.471 (C) V against Abdul Sovan Sarkar treating the suit properties as personal properties of Abdul Sovan Sarkar and without serving any notice and / or giving any opportunity of being heard to the plaintiff Wakf Estate passed an order of vesting of the suit property on 11.04.1972 being excess lands of Abdul Sovan Sarkar.
(2.) THE heirs of Abdul Sovan Sarkar submitted a return in Form-B in respect of their personal properties. THE suit properties were not included in said return as those were properties of the Wakf Estate and not the personal properties of their father. Said order of vesting of Revenue Officer was illegal and void. Though the plaintiff Wakf Estate was never an intermediary or had any lands in excess of ceiling limit, and was under no obligation to submit any return, but to avoid trouble submitted a return through its Mutwallis in Form-B in respect of its properties for retention and sent the same under registered post on 21.08.1972 which was duly received by the authority. But the order of vesting which clouded the title of the plaintiff Wakf Estate over suit properties was not vacated. Hence is this suit after giving notice under Section 80 of the Code of Civil Procedure. The defendant No.7 the Commissioner of Wakf contested the suit by filing written statement. Supporting the claim of the plaintiff Wakf Estate it was asserted that suit properties were properties of the Wakf Estate and not the personal properties of the Mutwallis and that Mutwallis were directed to take proper steps so that suit properties are declared as Wakf properties and not personal properties of the Mutwallis. The defendant State (defendant No.1) filed a written statement denying material allegations of the plaint and contending inter alia that Abdul Sovan Sarkar had excess lands both agricultural and non-agricultural including the suit properties on the date of vesting and that a big raiyat case was accordingly started against him wherein his legal heirs submitted Form-B and as per said Form-B they did not retain the suit properties and hence there was order of vesting of the same. The suit properties were never treated as Wakf properties and rather those were personal properties and it was correctly recorded in both C. S. and R.S. record of rights. The suit was liable to be dismissed.
(3.) LEARNED Trial Court after contested hearing decreed the suit in favour of the plaintiff Wakf Estate. However, learned Lower Appellate Court passed judgment and decree dated 28th April, 1992 in Title Appeal No.4 of 1990 reversing the judgment of learned Trial Court by allowing the appeal. At the time of hearing of this second appeal, parties argued on the following substantial questions of law:- (1) Whether learned Lower Appellate Court substantially erred in law by reversing the judgment and decree of learned Trial Court relying on extraneous matters and disregarding evidence on record. (2) Whether learned Lower Appellate Court substantially erred in law by reversing the judgment of learned Trial Court without applying correct legal tests. Mr. Sahidulllah Munshi, learned counsel for the appellant plaintiff, submits that learned Lower Appellate Court reversed the well reasoned judgement of learned Trial Court on the basis of wrong assumptions as well as by not considering the reliable evidence on record. According to him, learned Lower Appellate Court reversed said judgment of learned Trial Court on the following grounds:- (1) There is no statement within the four corners of the plaint that Sha Abdul Momin Village Mosque Public Wakf Estate is also known as Ramnagar Village Mosque. (2) There is no document to show the creation of Wakf Estate or as to when and by whom the Wakf property was created. (3) The deed of release (Ext.3) was executed by Abdul Sovan Sarkar in favour of Ramnagar Majjid and not in favour of the plaintiff Wakf Estate. (4) Though C. S. came into operation and completed sometime in 1927-28 but there is no evidence as to how and when the plaintiff came to know about erroneous recordings and there is no reason as to why alleged Nadabi was executed after 18 years, though admittedly Nadabi did not create any title. (5) Mere payment of rent does not create any title. 6. In this connection he refers to a judgment reported in 1956 Supreme Court page 713 (Mohammad Shah vs. Fasihuddin Ansari and others) wherein it was held that as a matter of law a Wakf clearly requires expressed dedication but if a land has been used from time immemorial for religious purposes then the land is by user Wakf although there is no evidence of an expressed dedication. According to learned counsel there is sufficient evidence on record to show that plaintiff Wakf Estate was in possession of the lands for quite long time and was using the same for religious purposes. According to him, it is immaterial whether there was specific evidence of expressed dedication of the property to the plaintiff Wakf Estate.;