1
IN THE SUPREME COURT OF BANGLADESH
HIGH COURT DIVISION
(Civil Revisional Jurisdiction)
Present:
Mr. Justice S.M. Masud Hossain Dolon
Civil Revision No. 4256 of 2004
Md. Eusuf Khan being dead his heirs 1(a) Md. Sone Ali Kha and others.
…. petitioner. -Versus-
Alhaj Abdul Karim Talukder being dead his heirs 1(Ka) Md. Sultan Talukder and others.
…. opposite parties.
Mr. Md. Shah Alam Sarker, Advocate
.... for the petitioner. Mrs. Chowdhury Nasima, Advocate
.... for the opposite parties.
Heard on: 07.07.2024 &
Judgment on: 08.07.2024
This Rule has been issued calling upon opposite party No. 1, to show cause as to why judgment and order dated 12.06.2004 passed by the learned Additional District Judge, Patuakhali in Miscellaneous Appeal No. 2 of 2003 dismissing the appeal and affirming the order dated 11.11.2002 passed by the Assistant Wakf Administrator, Bangladesh in E.C. No. 12218 rejecting the application of the petitioner should not be set-aside and/or such other or further order
or orders passed as to this court may seem fit and proper.
Facts for disposal of the Rule are that, the petitioner as applicant has filed an application being E.C. Case No. 12218 before the Bangladesh Wakf Administrator, alleging, inter alia, that the Opposite Party No.1 is neither an heir or a generation of original Wakif, Jale Kha of the Wakf Estate. The Opposite Party No.1 even not having being relation of the wakif and has not at all entitled to be a Mutwalli of the Wakf Estate. The Opposite Party No.1 during his continuation as Mutwalli at the Wakf Estate has misappropriated a lot of money by selling some Properties of the Wakf Estate. If the Opposite Party No.1 is allowed to continue further as a Mutwalli he would cause further huge loss and damage of the Wakf Estate. On the other hand, the petitioner being an heir as well as a generation of the Wakif is entitled to be a Mutwalli of the Wakf Estate who would naturally try to protect the property of the Wakf Estate as well as to make improvement of the same as far as possible and hence the petition has been filed to appoint the petitioner as Mutawalli of the Wakf Estate after removal of the opposite party No. 1 from therein.
The opposite party No. 1 did not file any written objection to contest the case.
The Assistant Wakf Administrator, Bangladesh after scrutinized oral and documentary evidences adduced by the parties in support of their respective claims, dismissed the application had filed by the petitioner vide order dated 11.11.2002 against which petitioner filed Miscellaneous Appeal No. 02 of 2003 before learned District Judge, Patuakhali who transferred the same to learned Additional District Judge, Patuakhali for disposal. After hearing the parties, learned Additional District Judge, Patuakhali dismissed the appeal and affirmed the judgment and order passed by Assistant Wakf Administrator, Bangladesh challenging that order the petitioner has moved the instant revisional application and obtained Rule.
Mr. Md. Shah Alam Sarker, the learned Advocate on behalf of the petitioner submits that the Assistant Wakf Administrator of Bangladesh without hearing the petitioner most illegally passed the Order in sustaining the Opposite party No.1 as the Mutwalli of the Wakf Estate but the Court of Appeal below without considering the said facts committed error of law resulting in an error occasioning failure of justice in dismissing the appeal and affirming the order of the Assistant Wakf Administrator, Bangladesh. He further submits that thought the petitioner is not mentioned in the Wakf deed as a Mutawlli but he is the nephew of the Wakif as such he is entitled to Mutawlli. The Wakf deed is a Wakif Awlad not Lilla therefore the heirs of Wakif entitled to be Mutawlli. Therefore the Jailker Nessa daughter
of Wakif by an Affidavit dated 20.05.2016 stated that no other person
is alive as per deed of the Wakif who can be a Mutawlli and therefore Jailker Nessa stated the present petitioner Yousuf Kha will be the Mutawlli after her death Annexure-A. The said Yousuf Kha died on 10.09.2012 leaving behind Sona Ali Kha, Ali Hossain Kha, Mst. Ambia
Begum and Mst. Hunafa Begum. It also appears that the said Md. Yousuf Kha before died filed an affidavit dated 27.08.2012 Annexure- B that the Mutwalli Awlad Abdul Karim was not a successor of the Wakif and he appointed as Mutawlli without the Wakif deed therefore the Mutawlli ship should be cancel. The elder son of the petitioner Sona Ali Kha filed an application for appointed as a Mutawlli and same is kept with the record. He further submits that Wakf Inspector due to influence of the Opposite Party No.1 without relying upon the relevant papers and oral evidence of the parties submitted an illegal investigation report regarding the Wakf Estate to the Wakf Administrator and the Assistant Wakf Administrator relying upon the same rejected E.C. Case No. 12218 of the petitioner but the Court of Appeal below without considering the aforesaid facts dismissing the appeal and affirming the said order of the Assistant Wakf Administrator of Bangladesh.
Mrs. Chowdhury Nasima, the learned Advocate on behalf of the opposite party submits that both the courts below concurrently found that the petitioner failed to prove his case in consequence of which the case was dismissed and as such, the revisional Court will not interfere with concurrent finding of both the courts below unless the petitioner can show any misreading of evidence. She further submits that Mutawlli Md. Abdul Karim Talukder Wakif administrator was rightly appointed as Mutawlli after considering the investigation report that the Wakif administrator properly run by a qualified person and both the Courts also affirmed the decision of the Wakif administrator. She further submits that Mutawlli Abdul Karim Talukder was died on 21.07.2021 and leaving behind his four sons and four daughters. She submits that all heirs of Wakif were died as per Wakif deed. She also submits that after investigation report it was found that present petitioner fraudulently purchased the Wakif land and finally she submits that Md. Abul Hossain son of Mutwalli after demise of his father Abdul Karim Talukder are also filed an application to be a Mutawlli of the Wakif Estate though the said application be kept with the record but Wakif administrator (in charge) Wakif administration Bangladesh issued a letter on 30.12.2021 to pay the Wakif ‘Chada’ Tk. 2300/- and the son of the deceased Abul Hossain Talukder duly paid the same.
I have heard the learned Advocate for both the sides, perused the lower courts record and all other relevant papers as well as the judgments and orders passed by both the Courts below. It transpires that it is a case regarding appointment of Mutawali in a Waqf Estate. The petitioner filed this revisional application against appointment of the opposite party Abdul Karim Talukdar as Mutawali despite of the fact that he was not a successor of the Wakif Jale Khan. After
meticulous scrutiny of the Wakif deed it appears that Wakif created
this Wakif for Lilah as because in Wakif deed he stated that- “®M¡c¡a¡m¡l e¡j Ju¡Lg L¢lu¡ and j¤pmj¡e£ djÑ¡e¤p¡l E~fL«a qCa f¡l” “B¢j S£¢haL¡m fkÑ¿¹ B¢j ¢eS jau¡õ£ b¡¢Lh Bj¡l jaª ¨Él fl nË£Bhc¤m L¢ljl Ù»£ nË£®S¡ql¡ ¢h¢h Bj¡l LeÉ¡ jauõ£ b¡¢Lu¡ Ju¡Lg L¡kÑ pÇf¡ce L¢lh” and also I have carefully perused the records and found that all the heirs who were mentioned
in the Wakf deed have died. Then in the interest of the local people inspection has been done. Thereafter the Wakf Administrator appointed Motawali to one Abdul Karim Talukdar as Mutawalli on the basis of an inquiry report. The petitioner Md. Yusuf Khan claimed that
he is legally entitled to be appointed as Mutawali as he is the successor of Waqif Jale Khan but his name was not mentioned as Mutawalli in the Waqf deed. During pendency of the Rule the petitioner and the Mutawlli have died and their heirs filed an application for reappoint another Mutawlli. It also admitted fact that
the heirs of Wakf as declared to the deed all are died. Both the learned advocates orally inform the court that the daughter of the Wakif namely Jelkar Nessa has also demised. It also appears that the petitioner and the Mutwalli are leaving in the Wakif Estate. Surprisingly, both the petitioner and the opposite party tried to purchase the property of the Waqf Estate and the petitioner Yusuf Kha somehow sold the Waqif Estate to the opposite party Mutwalli Abdul Karim Talukdar but the failed to take the property due to the land as described the Wakif Estate.
It appears that one Abdul Karim Talukder was appointed as a Mutwalli who is no way heirs of the Wakif and his name was not mentioned as Mutawlli rather he has no connection as a Mutwalli as per law. It also appears that present petitioner Yousuf Ali Kha is a nephew of the Wakif but Wakif clearly mentioned the name who will be appointed as Mutawlli after his death. The petitioner name was not mentioned herein above.
Therefore, I found neither of them has any right to be appointed as a Mutwalli nor their heirs have any right to be appointed as a Mutwalli. Therefore I hereby directed the Wakf Administrator to appoint the Mutwalli as per law for the benefit of the public at large and also directed the Wakf Administrator to out all into the leaving into the Wakif Estate.
Accordingly, the Rule is disposed of however, any order as to costs. The impugned judgment and order passed by the learned Additional District Judge, Patuakhali in Miscellaneous Appeal No. 02 of 2003 dismissed the appeal and affirmed the judgment and order dated 11.11.2002 passed by the Assistant Wakf Administrator, Bangladesh in E.C. No. 12218 be set-aside.
Send down the L.C.R along with a copy of this judgment to the concerned Court at once.
Asad/B.O