K.C.Das Gupta, J. - (1.) This appeal is by the Commissioner of Wakfs, West Bengal, against the decision of the District Judge of Birbhum dismissing his suit in respect of a wakf property which was sold for arrears of revenue; and raises the question whether non-compliance with the provisions of Section 70(3), Bengal Wakf Act, makes the sale void.
(2.) The Subject-matter of the suit is 8 annas share of Touzi No. 928 of the Birbhum Collectorate for which there was a separate account. It belonged originally to one Mahammad Hossain who made a wakf of the properties by a wakfnama, dated 26-6-1912. The property was sold at a revenue sale, for arrears of revenue, by the Collector of Birbhum, for default in payment of revenue for the September kist 1936 and was purchased by the respondent Shyamsundar Debansi.
(3.) Before the property was notified for sale, the notice as required by Section 70(3), Bengal Wakf Act, was not given to the Commissioner of Wakfs. The Commissioner of Wakfs, however, applied to the Collector of Birbhum for vacating the sale - on this ground -- hut the application was rejected. An appeal to the Commissioner of the Division was also rejected. In the present suit, the Wakf Commissioner has asked for a declaration that the sale was a nullity and for recovery of possession of the disputed property through the Mutwalli of the wakf property.;