Md. Enam Hossain Vs. Kayesh Miah and others, VII (ADC) (2010) 184

Case No: Civil Petition for Leave to Appeal No. 92 of 2009

Judge: Md. Abdul Matin,

Court: Appellate Division ,,

Advocate: Mr. A. F. M. Mesbahuddin,Mr. Md. Abdus Salam Mondal,,

Citation: VII (ADC) (2010) 184

Case Year: 2010

Appellant: Md. Enam Hossain

Respondent: Kayesh Miah and others

Subject: Wakf,

Delivery Date: 2009-11-15

 
Supreme Court
Appellate Division
(Civil)
 
Present:
Md. Joynul Abedin J
Md. Abdul Matin J
Shah Abu Nayeem Mominur Rahman J
ABM Khairul Haque J
 
Md. Enam Hossain
………………Petitioner
Vs.
Kayesh Miah and others
…………………Respondents
 
Judgment
November 15, 2009
 
Respondent No. 1 who has been appointed as joint mutawalli of the Wakf Estate along with the petitioner is functioning as joint mutawalli as such the question of handling over charge as provided under Section 32(2) of the Wakf Ordinace does not arise and the appeal preferred by the petitioner was maintainable in law. But the High Court Division failed to consider the same which resulted in anerror in the decision and is liable to be set aside…….…. (8)
 
Lawyers Involved:
A. F. M. Mesbahauddin, Senior Advocate instructed by Md. Nawab Ali, Advocate-on-Record-For the Petitioner.
Abdus Salam Mondal, Advocate instructed by Md. Altab Hossain, Advocate-on-Record-For Respondent No.1.
Not represented-Respondent Nos. 2-3.
 
Civil Petition for Leave to Appeal No.92 of 2009
(From the judgment and order dated 30.10.2008 passed by the High Court Division in Civil Revision No.3265 of 2007.)
 
JUDGMENT
 
Md. Abdul Matin J.
 
This petition for leave to appeal is directed against the judgment and order dated 30.10.2008 passed by the High Court Division in Civil Revision No.3265 of 2007 making the Rule absolute.
 
2. The facts, in short, are that predecessor of petitioner Md. Enam Hossain obtained E.G. No. 13097 in respect of Md. Haider Waqf Estate wherein quantum of land was 64.63 acres, and that the property in question is situated under Police Station-Guainghat of Sylhet town and that the petitioner Md. Enam Hossain was lawfully appointed as mutwalli on 31.01.2000 of the said Waqf Estate and he is performing his function efficiently and honestly. The respondent No.1, Kayesh Miah brought some false and baseless allegations by filing an application against the petitioner before the Deputy Administrator of Waqfs. Consequently, the local Inspector of Waqf held an inquiry into the matter and subsequently submitted his report wherein it was stated that the allega­tions brought against the petitioner Md. Enam Hossain are false. Although no alle­gation was proved against the petitioner, the Deputy Administrator of Waqfs appointed respondent No.1 Kayesh Miah as mutwalli of the said Waqf Estate on 31.10.2006.
 
3. Being aggrieved by the aforesaid order dated 31.10.2006 passed by the Deputy Administrator of Waqfs, petitioner preferred Miscellaneous Appeal being No.90 of 2006 before the learned District and Sessions Judge, Chora Challan Nirodh Tribunal, Sylhet. The Judge upon hearing the same and on consideration of the facts, circumstances and the evidence on record set aside the order dated 31.10.2006 passed by the Deputy Administrator of Waqfs.
 
4. Being aggrieved by the aforesaid judg­ment  and  order passed  by  the  learned Additional  District  and  Sessions  Judge, Chora Challan Nirodh Tribunal, Sylhet the respondent No.1, Kayesh Miah, preferred revisional application under Section 115(1) of The Code Of Civil Procedure before the High Court Division and obtained Rule in Civil Revision No.3265 of 2007
 
5. Subsequently the High Court Division made the Rule absolute on 30.10.2008.
 
6. As against the judgment and order of the High Court Division the petitioner has filed this petition for leave to appeal.
 
7. Heard A. F. M. Mesbahauddin, learned Counsel appearing for the petitioner and Abdus  Salam Mondal, learned Advocate appearing for the respondent No.1 and perused the petition and the impugned judgment and order of the High Court Division and other papers on record.
 
8. The learned advocate submits that in view of the fact that the respondent No.1 who has been appointed as joint mutwalli of the Waqf Estate along with the petitioner is functioning as joint mutwalli as such the question of handing over charge as provided under Section 32(2) of the Waqf Ordinance does not arise and the appeal preferred by the petitioner was maintainable in law. But the High Court Division failed to consider the same which resulted in an error in the decision and is liable to be set aside.
 
9. He further submits that immediately after passing the order by the Deputy Administrator of Waqf Estate appointing respondent No.1 as joint mutwalli along with petitioner who thereafter started func­tioning as such the question of handing over charge of office of mutwalli by the petition­er does not arise hence the appeal before District Judge was very much maintainable which was not considered by the High Court Division which resulted in an error in the decision and therefore is liable to be set aside.
 
10. He lastly submits that the substantive allegation brought against the petitioner having been found not correct on investiga­tion the appointment of respondent No.1 as joint mutwalli is illegal and not tenable in law and is liable to be set aside.
 
The above submissions made on behalf of the petitioner merit consideration.
 
Leave is granted to consider the same.
 
Security of Tk. 1,000/- is to be deposited within 1 (one) month.
 
The petitioner is permitted to prepare the paper book out of Court in accordance with Rules.
 
The petitioner is permitted to add addi­tional grounds.
 
Ed.