COMMISSIONER OF WAKFS Vs. SYAMAL KUMAR BOSE & ANR.
LAWS(CAL)-1976-8-41
HIGH COURT OF CALCUTTA
Decided on August 27,1976

COMMISSIONER OF WAKFS Appellant
VERSUS
SYAMAL KUMAR BOSE And ANR. Respondents




JUDGEMENT

- (1.)Syamal Kumar Bose, who is the opposite party No. 1 in these two Rules has instituted two suits respectively against Sabitri Bala Ghosh, opposite party No. 2 in Civil Rule No. 3172 of 1975 and Sudhir Kumar Mondal, opposite party Mo. 2 in Civil Rule No. 3473 of 1975 for eviction from the premises described in the plaints of the two suits on the allegation that the respective defendants were monthly tenants under him and that they had committed default in payment of rent for more than two months. The case of the opposite party No. 1 is that he had terminated the tenancies of the respective defendants by service of notices to quit and they are liable to be ejected under Sec. 13 (1) (i) of the West Bengal Premises Tenancy Act, 1956. Said Sabitri Bala Ghosh and Sudhir Kumar Mondal filed written statements in the respective suits contesting the above claim of the plaintiff, Syamal Kumar Bose, interalia, denying the relationship of landlord and tenant between the parties,
(2.)The petitioner in Civil Rule No. 2172 of 1975 has himself stated that the Trial Court by its order dated 29th Sept., 1970 in Title Suit No. 43 of 1970 (now numbered as Title Suit No. 32 of 1974) has already decided the Issue No. 1 in favour of the plaintiff, Syamal Kumar Bose. The learned Munsif has, interalia, held that there was relationship of landlord an tenant between the plaintiff and the defendant of the said Title Suit No. 43 of 1970 and also of another suit which was being analogously heard with the Title Suit No. 32 of 1974. Further, A.K. Sinha, J. discharged the Civil Rules Nos. 515 and 516 of 1971 obtained respectively by Sabitri Bala Ghosh and another against the above order of the Trial Court dated 29th Sept., 1970. The learned Judge was not inclined to interfere under Sec. 115 of the Code of Civil Procedure. A.K. Sinha, J. declined to express any opinion on the point raised by the learned lawyer for the petitioner in those two Rules but the same did not mean that the point regarding relationship was kept open for fresh consideration by the Trial Court. At the highest the said Issue No. 1 was left open for decision by the Appellate Court in a future appeal, if any, from the decree in terms of Sec. 105 of the Code.
(3.)The Commissioner of Wakfs, who is the petitioner in these two Rules filed applications under Sec. 71 of the Bengal Wakf Act, 1934 read with Order 1, rule 10 (2), of the Code of Civil Procedure 1908 for impleading him as a defendant in aforesaid two ejectment suits filed by the opposite party No. 1, Syamal Kumar Bose against Sabitri Bala Ghosh and Sudhir Kumar Mondal. The Commissioner of Waks claimed that the premises in respect of which these two ejectment suits have been brought was dedicated as a wakf by one Achia Khatun by a registered deed dated 27th Sept., 1946. It was further alleged that Achia Khatun and her husband, Syed Ahmed were previously joint Mutwallis of the said wakf estate. After the death of Achia Khatun, Syed Ahmed had become the sole Mutwalli. In the middle of 1363 BS Syed Ahmed left India. He had fraudulently sold the disputed property to one Khagendra Nath Dutta and one Satyendra Nath Dutta by a registered kobala dated 31st July, 1953. Subsequently, there was a partition in respect of the above property between Khagendra Nath Dutta and Satyendra Nath Dutta. On 29th Sept., 1961, Satyendra Nath in whose share the property fell sold the property to Syamal Kumar Bose. The above wakf estate, however, was enrolled under Sec. 44 of the Bengal Wakf Act read with Sec. 46 (A) by an order passed by the Commissioner of Wakfs on 29th May, 1970. The name of Abdul Ajij was recorded as the Mutwalli appointed under Sec. 40 of the Wakf Act. The Commissioner prayed that he may be impleaded as a defendant in the aforesaid suits brought by Syamal Kumar Bose. The learned Munsif, 3rd Court, Basirhat, by the orders complained of rejected the above application of the Commissioner of Wakfs under Sec. 71 of the Bengal Wakf Act read with Order 1, Rule 10 (2), of the Code of Civil Procedure. Thereafter, the Commissioner of Wakfs obtained these Rules.
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