JUDGMENT : AJOY KUMAR MUKHERJEE, J. 1. Petitioners herein as plaintiffs filed suit no.1 of 2012 before the Wakf Tribunal for declaration of absolute right title interest and possession over the suit property and also for declaration that the suit property is not the property of ‘Sk. Domen and Others Wakf Estate’ and also for permanent injunction. 2. During pendency of the suit, in terms of order dated 12.12.2012 the original defendant no. 1 was substituted by Md. Iliash and thereafter in terms of order dated 11.07.2016, the name of Md. Iliash was also expunged from the cause title of the plaint. However, before expunging the name of defendant no. 1 from the cause title, the said defendant no. 1 filed one written statement denying material allegations made in the plaint and he also annexed certain documents along with his written statement to show defence contention that suit property is Wakf property. The other defendants neither appeared in the suit nor filed any written statement. 3. The plaintiffs filed examination in chief under Order XVIII Rule 4 of the Code of Civil Procedure and certified copy of lease deed dated 14.03.1956 executed by Zamindar Shri Kumar Jagadish Chandra Singha Bahadur in favour of plaintiff is marked as exhibit-1. Beside plaintiff’s aforesaid lease deed in support of his interest in the suit property, plaintiff also filed and proved tax bill, issued by corporation marked exhibit -2, the property tax receipt marked exhibit-2/1 and 2/2. The witness of the plaintiff was not cross examined during trial. 4. Learned Tribunal below by its impugned judgment dated 18th July, 2019 dismissed the suit on contest against defendant no.1 and ex parte against defendant no. 2 to 4. 5. It is submitted on behalf of plaintiff /petitioner herein that although the name of defendant no. 1 was expunged in terms of order dated 11.07.2016 but in deciding the suit the learned Tribunal below relied upon the written statement filed by said defendant No.1, which was in fact nonest and also relying upon the documents which were part of the written statement but were never proved nor any evidence was ever laid in support of those documents. 6. Mr. 6. Mr. Ray on behalf of the petitioner further submits that the contents of the pleading of the defendant No.1 as well as documents annexed with the said written statement are required to be proved by the defendant and in the present context as the name of defendant no.1 was expunged by the order of the learned Tribunal, the court below has committed gross error in relying upon the said written statement filed by defendant No. 1 and passed the judgment with material irregularity. He further submits that on the basis of the plaintiffs exhibited documents, the Tribunal below ought to have declared plaintiffs absolute interest and possession in the suit property and not the property of “Sk Domen and Others Wakf Estate”. He further argued that the Tribunal acted illegally and with material irregularity in not considering that exhibit-4, certified copy of enrolment application as wakf property, does not contain suit premises. 7. Learned Counsel appearing on behalf of the opposite parties submits that the deed of lease cannot be a valid document for devolution of title. He further submits that the so called lease deed was executed in the year 1956 i.e. after enactment of the Estate Acquisition Act, 1953. Therefore, the leassor of the impugned lease deed being zamindar lost his entire right title interest over property in question and the lessor was not competent to execute and register the lease deed marked exhibit-1, without crossing the mandatory bar available under section 44 of the Estate Acqiusion Act, 1953 and as such the petitioners’ lease deed is void ab initio. Moreover, the alleged physical possession of the property in question is either a production of coercion or by illegal means which cannot confirm the right title or interest of the petitioner. 8. It is further submitted on behalf of the opposite parties that a deed of wakf was executed and registered by Sk Domen, Sk Khandu and Sk. Garibulla on 24th August 1869 measuring more or less 17 bighas 2 cottah 30 chittack of land, registered at the office of the District Registrar at Alipore comprised holding no.61 and 62. The application for enrolling Wakf property was made on 30th April 1935 before the special officer. Garibulla on 24th August 1869 measuring more or less 17 bighas 2 cottah 30 chittack of land, registered at the office of the District Registrar at Alipore comprised holding no.61 and 62. The application for enrolling Wakf property was made on 30th April 1935 before the special officer. Land enquiry report of the Judicial Department dated 20.05.1963 confirmed that Kumar Jagadish Singh Bahadur could not place any document in support of his title and possession over premises no.5/1A/H/7 Cossipore Road and/or 5/1D Cossipore Road and/or in support of the lease deed. 9. Accordingly Mr. Galib learned counsel for the Board submits that the said documents filed by defendant no.1 (Opposite party no.4 herein) though not marked exhibit but proves that the property mentioned in the suit is part and parcel of the aforesaid Wakf Estates. He further submits that plaintiff miscrably failed to prove his lessor’s right title or interest over the suit land by showing any entry in the RS ROR or by showing any rent receipt. Moreover, a lease whatever nature, whether permanent or temporary cannot be accepted as devolution of title from the original owner to the lessee. 10. He further argued that it is settled proposition of law that once wakf is created it continues to retain its character, which cannot be extinguished by any means and in this context he relied upon judgment of Apex Court reported in (2007) 4 SCC 332. He further submits that even if defendant had not contested the instant suit, the plaintiff is not entitled to get decree on the basis of weakness of the defendant, but he has to succeed on the strength of his own case. He further submits that the petitioners are claiming the property to be a secular property on the basis of a lease deed but the suit is hit by section 58 of the Limitation Act and in this context reliance has been placed upon the judgment reported in (2011) 9 SCC 126 . He further submits that the plaintiffs/petitioners are guilty of forum shopping in as much as they approached the learned civil court by filing a suit being suit no. 235 of 2007 over the self same issue but plaintiff could not succeed in that suit on jurisdictional issue. He further submits that the plaintiffs/petitioners are guilty of forum shopping in as much as they approached the learned civil court by filing a suit being suit no. 235 of 2007 over the self same issue but plaintiff could not succeed in that suit on jurisdictional issue. He further submits that Tribunal below has not committed any error in dismissing the suit and as such the judgment impugned does not call for interference by this court, invoking jurisdiction under Article 227 of the Constitution of India, in the absence of any perversity or impropriety in the order impugned. 11. I have considered submissions made by both parties. 12. It is not in dispute that the other defendants except defendant no.1 did not file any written statement and defendant no.1 though filed written statement along with annexure, but the name of said defendant no.1/subsequently expunged from the cause title of the plaint. It is also not in dispute that defendants did not cross examine plaintiffs witness and plaintiff also did not get opportunity to cross examine on the annexed documents filed by defendant no.1 along with written statement. The Tribunal below while passing the impugned judgment has framed seven issues for adjudication out of which issue no.5 was:- “5. Is the deed of lease dated 26.02.1956 is a valid deed and plaintiffs have acquired good title in respect of suit properties by virtue of said deed or not.” 13. While dealt with the said issue the Tribunal noted that the defendant no.1 though filed written statement along with the documents but it is true that the documents filed by defendant no.1 are not exhibited. The tribunal below further held however from the pleading it is crystal clear to the effect that suit properties are wakf property. He further held that the Board of Wakf could have filed written statement and could have adduced evidence both oral and documentary but for the reasons best known to them, they showed indifferent attitude towards Wakf properties. 14. However Tribunal below held that the documents filed by defendant no.1 along with written statement cannot be ignored and furthermore plaintiffs have failed to prove that the suit properties are not Wakf properties as onus of proof is on the plaintiff to prove that the suit properties are not Wakf properties and they are not encroachers. 15. 14. However Tribunal below held that the documents filed by defendant no.1 along with written statement cannot be ignored and furthermore plaintiffs have failed to prove that the suit properties are not Wakf properties as onus of proof is on the plaintiff to prove that the suit properties are not Wakf properties and they are not encroachers. 15. On perusal of the plaint, I nowhere find that plaintiff admitted that the property in question is a wakf property and on the contrary it is plaintiff’s specific case that the suit premises is situated in holding no.61 of which only 4 cottah of land out of more than 3 bighas was made as wakf and the suit premises is not included in said 4 cottahs and they have good title and right in the suit property and they are in kahs possession of the same since 24.02.1956. Plaintiff’s further case in the plaint is the suit property is not Wakf property and they are in khas possession of the same and have good right title interest over the same. The defendant no.2 by an order dated 30.05.2005 declared the suit property as property of Sk Domen and Others Wakf Estate without considering the objection of plaintiff no.1 and the deed of perpetual lease in favour of plaintiff. 16. As I have stated above that only the defendant no.1 filed written statement but his name was subsequently expunged from the cause title of the plaint during pendency of the suit and as such the finding of the Tribunal that from the pleading it is crystal clear that the suit property is wakf property is perverse finding. Moreover, from the aforesaid contention of the parties it is apparent that there is serious dispute among the parties and the parties have allegation and counter allegation and the Tribunal also taken note of the fact that inspite of getting opportunity, the Board of Wakf and other defendants choose not to contest by adducing evidence in support of their documents. Surprisingly though the defendant no.1 was not a party, the Tribunal held that the documents filed by defendant no. 1 along with written statement cannot be ignored, inspite of the fact that they were neither proved nor plaintiff got any opportunity to cross examine on those documents. 17. Surprisingly though the defendant no.1 was not a party, the Tribunal held that the documents filed by defendant no. 1 along with written statement cannot be ignored, inspite of the fact that they were neither proved nor plaintiff got any opportunity to cross examine on those documents. 17. Moreover the Tribunal below shifted the burden upon plaintiff to disprove the document filed as annexure with the written statement of defendant no.1, whose name got expunged. Plaintiff is under no obligation to prove the defence contention. Though section 83(6) of the Wakf Act provides that the Wakf Tribunal shall follow such procedure as may be prescribed, not withstanding anything contained in C.P.C but that does not mean that it gives any arbitrary power to the Tribunal to act violating principles of natural justice. 18. In such view of the matter I find that the order impugned is not sustainable in the eye of law, due to its perversity and it calls for interference by this court. 19. In such view of the matter CO 1346 of 2019 is allowed. The impugned judgment dated 18.07.2019 passed by the Wakf Tribunal in Suit no. 1 of 2012 is hereby set aside. The suit is remanded to the Tribunal below for fresh adjudication after giving opportunity to all the parties intending to contest and after giving all the parties to furnish documents, if any, in support of their contention and also to give opportunity to the parties to adduce further evidence if any, and thereafter to write a judgment afresh, preferably within a period of six months from the date of communication of the order. Urgent Photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities.