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Hashim Ibrahim Saleji and ors. Vs. Secretary of State and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKolkata
Decided On
Reported inAIR1927Cal352,101Ind.Cas.539
AppellantHashim Ibrahim Saleji and ors.
RespondentSecretary of State and ors.
Cases Referred and Promotha Nath Mitter v. Rakhal Das Addy
Excerpt:
- .....that he had on investigation discovered that the property was in fact a wakf estate and that the present opposite party no. 2 was not personally interested in it he represented that he, as official assignee had therefore no interest in the matter and that he desired to withdraw from the proceeding.2. it so happened that this petition was not presented to the collector until the 23rd december 1924. in the meanwhile the present oppoiitj party no. 2 had presented a petition to the collector in which he also stated that the property in question was owned and possessed by two wakf estates, namely, 'ibrahim soloman and company wakf estate' and 'ibrahim saleji wakf estate,' and that he managed the property as one of the matwallis of the two wakf estates, and asked that the official assignee's.....
Judgment:

Panton, J.

1. The question in this Rule is whether the learned Additional District Judge of Howrah should have joined the present petitioners as parties in the proceeding resulting from a reference under Section 18 of the Land Acquisition Act. The case related to the acquisition of a certain land which it is now admitted formed part of a wakf estate. The declaration for its acquisition was made in the year 1918, and the second opposite party Ismail Ibrahim Saleji preferred a claim to the compensation money alleging that it was his 'ancestral purchased niskar land.' He appears to have been an undischarged insolvent, and in consequence of this the Official Assignee was joined with him the proceeding in the Court of the Collector; and on the 24th January 192 the award was made by the Collector ii the joint names of the Opposite Party No. 2 and the Official Assignee. On the 22nd February 1924 the Official Assignee affirmed to a petition to the effect that he had on investigation discovered that the property was in fact a wakf estate and that the present Opposite Party No. 2 was not personally interested in it he represented that he, as Official Assignee had therefore no interest in the matter and that he desired to withdraw from the proceeding.

2. It so happened that this petition was not presented to the Collector until the 23rd December 1924. In the meanwhile the present Oppoiitj Party No. 2 had presented a petition to the Collector in which he also stated that the property in question was owned and possessed by two wakf estates, namely, 'Ibrahim Soloman and Company Wakf Estate' and 'Ibrahim Saleji Wakf Estate,' and that he managed the property as one of the matwallis of the two wakf estates, and asked that the Official Assignee's name should be removed from the list of claimants. In the same petition the Opposite Party No. 2 asked the Collector to make a reference to the civil Court under Section 18 of the Act. that is the reference with which we are at present concerned.

3. On the 27th July 1925 other persons alleging themselves to be other matwallis of the estate made a petition to the Additional District Judge of Hooghly asking that they should be joined as parties to the reference. It was then stated that as the result of limitation on the Original Side of this Court, a scheme had been settled under which this wakf estate was placed under the management of seven matwallis. The present petitioners are four of the persons so appointed. The Opposite Party No. 2 is another. One is said to have retired from his mutwalliship, and the remaining one has appeared at the hearing of this Rule and has stated that he also has resigned his office and that he wishes to be discharged from these proceedings. He is Opposite Party No. 3.

4. On the 10th September 1925 the Opposite Party No. 2 made a petition to the Additional District Judge in which he objected to the addition of these parties to the proceeding and on the 16th December 1926 the learned Judge decided that he had no jurisdiction to make any addition of parties. This is the order against which this Rule is directed.

5. The first opposite party is the Secretary of State. On his behalf the learned senior Government Pleader states that he does not desire to take any part in these proceedings which relate only to the question as to who is to prosecute the claim to additional compensation.

6. The learned Counsel for the petitioners contends that under Section 53 of the Land Acquisition Act read along with Order 1, Rule 10(2), Civil P.C., this Court, and indeed the Court of the District Judge, has jurisdiction to add parties, and he supports his argument by reference to certain cases of this Court, namely, Golap Khan v. Bhola Nath Marick [1910] 12 C.L.J. 545 and Dwarka Nath Sen v. Kishori Lal Gossain [1910] 11 C.L.J. 426. He has referred also to a decision of the Allahabad Court in Kishan Chand v. Jagannath Prasad [1902] 25 All. 133. On behalf of the Opposite Party No. 2 the learned advocate contends that these cases have no application in the present instance because they are all cases in which the proceedings in which parties were added were proceedings in the matter of apportionment and not, as in the present case, in a matter of valuation. He has further relied upon the principle enunciated in Mohammad Safi v. Haran Chandra Mukherjee [1908] 12 C.W.N. 985 and Promotha Nath Mitter v. Rakhal Das Addy [1910] 11 C.L.J. 420. Now, the principle adopted in the last two cases I have mentioned is quite plain, and it is that the Court in hearing a reference under the Land Acquisition Act can only deal with an objection which has been referred to it and it cannot go into any question raised for the first time by a party who had not referred any question or any objection to it under Section 18 of the Act. In the present instance what has been referred to the learned Judge is the question of the market-value of the property acquired. that is all that the learned Judge is called upon to decide and the addition of parties be the proceeding will in no manner enlarge the scope of his enquiry. The addition therefore of parties will not violate the principle to which I have referred. It is true, as the learned advocate for the Opposite Party No. 2 points out, that the decisions relied upon by the learned Counsel for the petitioners are cases in which matters of apportionment were the subject of the reference. But that is not to my mind a material consideration. The cases cited for the petitioners are authority that in references under the Land Acquisition Act the addition of parties is under certain circumstances permissible. It does not seem to matter that the subject of reference should be one of valuation rather then of apportionment. The real point is that the principle of Order 1, Rule 10(2), Civil P.C., has been held to apply, and the question for decision is whether under the present circumstances these persons are necessary or proper parties.

7. It has been urged on behalf of the Opposite Party No. 2 that since these petitioners and himself do not make up the whole body of mutwallis as appointed by the scheme of this Court, the addition of the former will not be effective fully to represent the wakf estate in the Court of the Additional District Judge. that is so, but it must be borne in mind, as I have just now remarked, that the question which will be agitated in the Court of the learned Judge is not the title of these or any other persons to the compensation money, but solely the question of what the market-value of the property is. It seems to me, looking at it in this way, that it is open to any one of the body of trustees to come forward and ask that he should be allowed to appear in the Court of the Judge and be permitted to place before the Court such material as he may have in his power to enable the Court to arrive at a proper decision as to the value of the trust property. that indeed is his clear duty and it is proper that he should be put in a position to perform this duty, In this view of the case these mutwallis although they do not fully represent the wakf estate are proper pessons hr be added as parties.

8. For these reasons I would make this Rule absolute and direct the addition of the names of the petitioners Ahmed Musaji Saleji, Hashim Ibrahim Saleji, Soloman Musaji Saleji and Kashim Ibrahim Saleji in the proceedings before the Additional District Judge of Howrah.

9. The Opposite Parties Nos. 1 and 3 are discharged from the Rule. The Rule so far as it relates to the Petitioner No. 5 Rasul Bibi is discharged.

10. The Opposite Party No. 2 will pay the costs of this Rule to the four petitioners who have succeeded in this Rule. The hearing-fee is assessed at ten gold mohurs.

Mullik, J.

10. I agree.


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