Allowed

Lav Pal Lalias Prabir Pal and Anr. v. the Chief Executive Officer

Calcutta HC23 Aug 2021CO/638/2021

Case brief

AI extract

What is this about?

This order allowed the revisional petition and set aside the Waqf Tribunal's judgment dismissing the suit for declaration of secular property and possession. The High Court held the Tribunal acted without jurisdiction by drawing adverse inferences against petitioners after the Board of Waqfs failed to produce auqaf registers or evidence proving the land was dedicated as waqf.

What did the court decide?

Set aside the judgment and decree dated 27-01-2021 passed by the Waqf Tribunal. Decree the suit partially in terms of reliefs (a), (b), (c) and (d) claimed.

Lav Pal Lalias Prabir Pal and Anr. Vs the Chief… — Property and Title | Calcutta HC (2021)

¶1

AD. 16. August 23, 2021. MNS.

¶2

C. O. No. 638 of 2021 ( Via video conference )

¶3

Lav Pal alias Prabir Pal and another Vs.

¶4

The Chief Executive Officer, Board of Waqfs, West Bengal

¶5

Mr. Dilip Kumar Chatterjee, Mr. Shehnaz Tareq Mina, Mr. Sagnik Chatterjee

¶6

… for the petitioners.

¶7

Affidavit-of-service filed in Court today be

¶8

taken on record.

¶9

Despite service, none appears on behalf of the opposite party-Board of Auqaf.

¶10

Learned counsel for the petitioners challenge the judgment of the Waqf Tribunal, whereby the petitioners’ suit, inter alia for declaration that the suit property is a secular property and that the plaintiffs have right, title and interest, as well as lawful possession over the suit land and consequential reliefs, was dismissed on frivolous grounds.

¶11

It is contended by learned counsel that, while dealing with issue no. 3, the Tribunal categorically found that the alleged deed of waqf was executed on October 5, 1880, which was

¶12

¶13

prior to the CS operation. As such, no question arises of the Dag number being mentioned in such deed. It was further found that the Board of Auqaf intentionally did not file all the papers during evidence to prove that the suit property is a waqf property. The sale deed produced by the petitioners in their favour was also overlooked by the Tribunal on the ground that the predecessorin-interest of the petitioners was recorded in the CS records as a mere occupant (‘Dakhalikar’).

¶14

Upon perusing the impugned judgment, it is evident that the Tribunal acted patently without jurisdiction in drawing adverse inference against the plaintiffs-petitioners, instead of the defendantBoard, despite having recorded that the Board intentionally failed to produce evidence to prove that the property is an waqf property.

¶15

Since the plaintiffs discharged their initial onus of proving their title by production of a registered sale deed executed in their favour, which carries a presumption of correctness unless rebutted, although rebuttal thereto was placed on record by the Board, nor any evidence pertaining to the suit land being a waqf property being produced by the Board. Thus, in view of the defendant-Board having failed to produce the

¶16

¶17

most relevant evidence in support of their contention that the property is a waqf property, adverse inference, if any, ought to have been drawn against the defendant and not the plaintiffs.

¶18

Since the Board failed to dispel the presumption of correctness attached to the registered deed of sale produced by the plaintiffspetitioners in evidence and as there was no evidence on record whatsoever, including the relevant list of auqaf or auqaf register, if any, to establish that the suit land is a waqf property, the Tribunal acted palpably without jurisdiction in relying on a purported deed of waqf dated October 5, 1880 which, in the absence of specific mention enumerating the suit land as a waqf property, is no evidence in the eye of law at all regarding the property being a waqf estate.

¶19

In such view of the matter and in view of the Board of Auqaf withholding all documents which could have shown that the suit land is a waqf property, the only option left to the Tribunal was to decree the petitioners’ suit in their favour on the basis of the registered sale deed produced by the petitioners.

¶20

¶21

It is well-settled that entries in records-ofrights neither confer nor divest any one from title in respect of a property, the mere mention of the vendor of the petitioners as ‘Dakhalikars’ in the C.S. records, that too much after the execution of the purported Waqf Deed, could not be sufficient justification for drawing an adverse inference against the plaintiffs instead of the defendant and dismissing the suit.

¶22

Hence, the impugned judgment and order dated January 27, 2021 is vitiated by patent irregularity and illegality in the exercise of its jurisdiction by the Waqf Tribunal.

¶23

Hence, it is

¶24

O R D E R E D

¶25

That C. O. No. 638 of 2021 is allowed ex parte , thereby setting aside the judgment and decree dated January 27, 2021 passed by the Waqf Tribunal, West Bengal in Suit No. 13 of 2011 and decreeing the suit partially in terms of reliefs (a), (b), (c) and (d), as claimed in the plaint of the petitioners before the Waqf Tribunal, appearing at pages 17 and 18 of the instant revisional application.

¶26

¶27

The Tribunal shall draw up a decree accordingly, treating the impugned judgment and decree to have merged with this order.

¶28

There will be no order as to costs.

¶29

Urgent photostat certified copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.

¶30

(Sabyasachi Bhattacharyya, J.)

Lav Pal Lalias Prabir Pal and Anr. v. the Chief Executive Officer

Case brief

What is this about?

What did the court decide?

Lav Pal Lalias Prabir Pal and Anr. v. the Chief Executive Officer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sadhana Bose Vs Chandana Roy Nee Mitra and Anr.

Madhusudan Chandra and Ors. Vs Sri Sri Nradha Krishna Jugal Murti

Khokhon Sil Vs Jayanta Indra

Samima Bibi Vs Hira Bibi & Anr.

Nandita Bhunia Bera Vs Sumann Bera

Anandadeep Sen Vs Swarnapa Dutta Gupta