Biswajit Basu, J. - (1.) By consent of the parties the appeal is taken up for hearing. The service of notice of appeal upon the non-appearing respondents are dispensed with at the risk of the appellants, therefore the appeal is ready as regards service. The defendant nos. 3 and 4 being aggrieved by and dissatisfied with the judgement and decree dated September 4, 2017 passed by the learned Judge, IXth Bench, City Civil Court at Calcutta in Title Suit No. 614 of 2015 (Ariff Rahman Vs. Fahimuddin Khan & Ors.) have preferred the instant appeal.
(2.) The appellants have canvassed before us the issue of maintainability of the suit before the learned Trial Judge on the ground that the suit is hit by Section 85 of the Wakf Act, 1995 (hereinafter referred to as the said Act in short), as the learned Trial Judge being a civil court has no jurisdiction to entertain a suit. The moot question raised is with regard to the nature of the suit premises that is whether the suit premises is a wakf property or not. It is necessary to reproduce some relevant averments of the plaint of the suit to deal with and to determine the said issue appropriately. The plaintiff/respondent claimed him as Mutawalli of 'AA Sayeed Wakf Estate' and asserted his such right in paragraph no. 1 of the plaint which is set out below for ready reference :- "1. That 'KHAN BAHADUR ABDULLA ABU SAYEED' being the Owner of the premises No 13, Sarang Lane Ps - Taltolla Kolkata 700014, transferred the said Premises by an Indenture dated 4-6- 1929 and created Wakf Estate known as 'AA Sayeed Wakf Estate' in respect of the said Premises. The said Property is known as 'AA Sayed Wakf Estate' under the Board of Auqaf, West Bengal. That the Plaintiff presently is the Mutawalli of the said Wakf Estate. The Tax Bill standing in the name of 'Maulavi Abdulla - Abu - Sayeed."
(3.) The averments made in paragraphs 3 and 4 of the plaint are also relevant for the purpose of determination of the issue before us, so the said two paragraphs are reproduced below :- (3) That the Defendants through their Lawyer vide Lawyers letter dated 4-5-2015 addressed to the Proforma Defendant no. 7 (Joshna Clifford) intimated the said Proforma Defendant that the structure on the said Premises being Premises No 13 Sarang Lane, Ps Taltolla, Kolkata 700014 has been purchased by the Predecessor of the Defendant in the year 1944 and accordingly the said Premises is not a Wakf Estate but a Thika Tenancy Property and accordingly the Defendants demeaned payment of rent in respect of Tenancy held by the Proforma Defendant no 6 to 12. A Xerox copy of the letter of the Advocate of the Defendants dated 4.5.2015 is annexed herewith and marked with the Letter "C" and made part of the Petition. The Plaintiff craves leave of this Learned Court to refer to the same at the time of hearing of the Petition. (4) That the Plaintiff states the Premises No 13, Sarang Lane, Ps Taltola Kolkata 700014 is the Wakf Estate under the supervision of the said Board of Wakf, West Bengal.;