Tahira Zameer @ Nasima and Others vs Shahani Rahman @ ors.

Prasenjit Mandal, J.—This application is at the instance of the defendants and is directed against the order dated April 18, 2011 passed by the learned Civil Judge (Senior Division), 8th Court, Alipore in Title Suit No.44 of 2005 thereby rejecting two applications of the defendants.

The short fact is the plaintiffs / opposite parties herein instituted a suit being Title Suit No.70 of 1995 against the defendants / petitioners herein for partition, accounts, injunction and other reliefs in respect of the properties mentioned in the schedule of the plaint before the learned Assistant District Judge, 5th Court, Alipore. The defendants filed a joint written statement controverting the material allegations made in the plaint. They have also contended that the suit properties are Wakf properties and the plaintiffs have no right to claim for partition. They have also contended that the plaintiffs have claimed as thika tenants and so, they filed an application under Sections 21 and 11 of the Thika Tenancy Act, 2001 contending that the learned Court has no jurisdiction to entertain the suit and the Thika Controller is the appropriate authority to decide the same. These two applications have been rejected by the impugned order. Being aggrieved, this application has been preferred.

Now, the question is whether the impugned order should be sustained.

Upon hearing the learned counsel for the parties and on perusal of the materials on record, I find that the plaintiffs / opposite parties herein instituted the said suit for a preliminary decree of partition of the suit properties declaring 49/216 shares of the plaintiff no.1 and 1/3rd share of plaintiff no.2 and thus, their total share is to the extent of 121/216. Accordingly, they have prayed for other reliefs by appointment of a Survey Passed Commissioner if the situation demands, final decree, permanent injunction, etc. The defendants have claimed that the suit properties are of Wakf properties and as such, the said suit for partition is hit by Section 85 of the Wakf Act, 1995 and as such, the said suit is not maintainable. To clarify the position, Section 85 of the said Act is quoted below:-

Bar of jurisdiction of civil courts. - No suit or other legal proceeding shall lie in any civil court in respect of any dispute, question or other matter relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal.

The Wakf Tribunal is authorised to decide matters relating to the Wakf property under certain terms and conditions as provided in the said Wakf Act, 1995.

So far as the provision of the Section 21 of the West Bengal Thika Tenancy (Acquisition and Regulation) Act, 2001 is considered, Section 21 bars the civil Court to decide or deal with any question or to determine any matter which under the Act is required to be or has been or decided or dealt with by the Controller or the Appellate or other Authority under the provisions of the Act.

The defendants / petitioners have contended that the suit properties are thika properties and the dispute shall be divided by the Thika Controller.

As noted earlier the said suit was filed in 1995 and it is at the stage of D.W. in default argument meaning thereby the evidence on behalf of the plaintiffs has been completed. The suit is likely to be disposed of soon. At that stage the two applications have been filed. Without deciding the merits of the two applications, the learned Trial Judge has disposed of the same holding that matters shall be decided at the trial i.e. on taking evidence. Since nothing has been decided by the learned Trial Judge on these matters at the close of the suit, I think it will not be proper to interfere with the impugned order.

Accordingly, I am of the view that the learned Trial Judge has rightly rejected the applications filed by the defendants.

In that view of the matter, the petitioners fail to succeed. The revisional application is, therefore, dismissed.

Considering the circumstances, there will be no order as to costs.

Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.