Lav Pal Alias Prabir Pal And Another vs Chief Executive Officer, Board Of Waqfs, West Bengal

Affidavit-of-service filed in Court today be taken on record.

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

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.

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 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 predecessor-in-interest of the petitioners was

recorded in the CS records as a mere occupant (‘Dakhalikar’).

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 defendant-Board, despite having recorded that the Board intentionally failed to produce evidence to prove that the

property is an waqf property.

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 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.

Since the Board failed to dispel the presumption of correctness attached to the registered deed of sale produced by the plaintiffs-petitioners 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.

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.

It is well-settled that entries in records-of-rights 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.

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.

Hence, it is

ORDERED

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.

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

There will be no order as to costs.

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