Appellate Division (Civil)
Md Abdul Wahhab Miah J
Md Imman Ali J
AHM Shamsuddin Choudhury J
Dabiruddin Ahmed Waqf Estate, represented by Mutwalli
Daneshuddin Ahmed
…………Petitioner
vs
Hafizuddin and others
…………… Respondents*
Judgment
June 1st, 2015.
Waqf Ordinance (1 of 1962)
Section 50
The Waqf Administrator shall decide on whether a property is waqf or not. The suit filed by the plaintiff for declaration that it had the right, title and interest in the suit property was not maintainable in law but this provision of law was not noticed by the Courts below including the High Court Division.
However, if so, advised the plaintiff may approach the Waqf Administrator under Section 50 of the Ordinance to decide whether the suit property is waqf property or not, and if any application is filed before the Waqf Administrator to decide so, he will decide the matter independently and whatever findings have been given by the Courts below (in the suit and in the appeal) and by the High Court Division in the impugned judgment and order shall have no effect in deciding the question. …….. (6 & 7)
Khurshid Alam Khan, Advocate instructed by Md Nurul Islam Chowdhury, Advocate-on – Record – For the Petitioner.
Gias Uddin Ahmed, Advocate-on-Record-For Respondent Nos. 1-2.
Md. Taufique Hossain, Advocate-on-Record Respondent Nos. 21-22.
None Represented – For Respondent Nos. 3-20 & 23-24
Judgment
Md Abdul Wahhab Miah J: This civil petition for leave to appeal has been filed by the plaintiff against the judgment and order dated the 11th day of April, 2010 passed by a Single Bench of the High Court Division in Civil Revision No. 4442 of 1998 discharging the Rule.
2. Facts essential for disposal of this petition, in short, are that the petitioner (Dabiruddin Ahmed Waqf Estate) as plaintiff filed Other Suit No. 69 of 1994 in the Court of Senior Assistant Judge, Sadar, Thakurgaon seeking declaration that it got right, title and interest in suit property (in BangIa it has been written as ÒAÎ ev`xi ¯^Z¡ mvgxZ¡ nK nKzg I AwaKvi (sic) AUzU I Aÿzbœ Av‡Q g‡g© wWµx w`‡ZÓ that is, in fact, the plaintiff sought declaration that the suit property was waqf property. Declaration was also sought that the kabala as described in schedule ‘Ga’ in respect of the suit land was illegal, collusive, fraudulent and not binding upon it and also was of no legal effect.
3. The suit was contested by defendant No. 6 by filing written statement. The suit was decreed by the trial Court; on appeal vide Other Appeal No. 11 of 1998, the appeal was allowed by the learned Additional District Judge, Thakurgaon and the suit was dismissed. Against the appellate decree, the plaintiff preferred Civil Revision No. 4442 of 1998 before the High Court Division. A learned Judge of the Single Bench of the High Court Division by the impugned judgment and order discharged the Rule on the view that since the plaintiff was out of possession, the suit without the prayer for consequential relief for recovery of khas possession was not maintainable in law hence, this petition for leave to appeal.
4. Heard Khurshid Alam Khan, learned Advocate for the petitioner and Md. Taufique Hossain, learned Advocate-on-Record who entered caveat on behalf of defendant-respondent, perused the judgment and decree of the Courts below and the impugned judgment and order of the High Court Division.
5. Section 50 of the Waqf Ordinance 1962 (in short, the Ordinance) reads as follows:
“Any question whether a particular property is waqf property or not shall be decided by the Administrator:
Provided that the mutawalli or any person aggrieved by any decision or order of the Administrator in this behalf may, within three months from the date of such decision or order, submit a petition to the District Judge in accordance with the provision of sub-section (1) of Section 35; and if such a petition is filed, the provision II of Section 35 shall apply.”
6. A plain reading of Section 50 of the Ordinance shows that any question whether a property waqf or not shall be decided by the Waqf Administrator. Therefore, the suit filed by the plaintiff for declaration that it had the right, title and interest in the suit property was not maintainable in law but this provision of law was not noticed by the Courts below including the High Court Division.
7. In view of the provision of Section 50 of the Ordinance the suit was liable to be dismissed as being not maintainable.
Therefore, we are not inclined to interfere with the impugned judgment and order. However, if 50/ advised the plaintiff may approach the Waqf Administrator under Section so of the Ordinance to decide whether the suit property is Waqf property or not, and if any application is filed before the Waqf Administrator to decide so, he will decide the matter independently and whatever findings have been given by the Courts below (in the suit and in the appeal) and by the High Court Division in the impugned judgment and order shall have no effect in deciding the question in accordance with law.
With above observations this leave petition is disposed of.
