JUDGMENT Bhaskar Bhattacharya, J.: This second appeal is at the instance of a tenant/defendant in a suit for eviction, inter alia, on the ground of reasonable requirement and is directed against the judgement and decree dated February 23, 1995 passed by the learned Assistant District Judge, 10th Court, Alipore in Title Appeal No. 268 of 1994 thereby affirming those dated June 30, 1994 passed by the learned Munsif, 1st Additional Court, Alipore in Title Suit No. 17 of 1986. 2. The respondent No.1 brought against the appellant in the 2nd Court of Munisif, Alipore a suit being Title Suit No. 88 of 1993 for eviction, inter alia, on the ground of reasonable requirement. The said suit was subsequently transferred to the 1st Additional Court of Munsif, Alipore and was renumbered as Tile Suit No. 17 of 1986. 3. It may not be out of place to mention here that the aforesaid suit was filed by the respondent No.1 as Mutwalli to the Wakf Estate of late Sk. Ahiruddin. It was stated that Sk. Ahiruddin by a registered deed of Wakf dated November 10, 1944 created a private Wakf for the maintenance and residence of the Wakif and his descendants and for their benefit. It was admitted in the plaint that the Wakif died without any issue and his wife having predeceased him, his nephew (brother's son) became the sole Mutwalli of the Wakf Estate. Even during the life time of the said Mutwalli, the plaintiffs father, the plaintiff was appointed as sole Mutwalli and such appointment was confirmed by the learned District Judge, 24-Parganas. According to the plaintiff, the defendant was a tenant in respect of a portion of the Wakf Estate at monthly rental of Rs. 90/- according to English calendar month and the plaintiff being a descendant of the Wakif reasonably required the suit premises for his use and occupation and for occupation for the members of his family for whose benefit the plaintiff held the suit property as Mutwalli. The aforesaid suit was contested by the present appellant by filing written statement thereby disputing the allegation made by the plaintiff and also disputing the right of the plaintiff and also disputing the right of the plaintiff to evict the present appellant on the ground of reasonable requirement. The aforesaid suit was contested by the present appellant by filing written statement thereby disputing the allegation made by the plaintiff and also disputing the right of the plaintiff and also disputing the right of the plaintiff to evict the present appellant on the ground of reasonable requirement. Ultimately, the learned Trial Judge by the judgement and decree dated June 30, 1994 decreed the suit only on the ground of reasonable requirement. 4. Being dissatisfied, the appellant preferred an appeal before the learned first appellate court below and by the judgement and decree impugned in this appeal the learned first appellate court below has affirmed those passed by the learned Trial Judge. Being dissatisfied, the defendant has preferred the instant second appeal. 5. At the time of admission of the instant second appeal a Division Bench of this Court admitted the same on ground Nos. I and II which are quoted below:- "I. For that the court of appeal below entirely misconstrued the Wakfnama, Exhibit 1, which did not provide for any benefit for the plaintiff/respondent in the meaning of section 13(1)(ff) of the West Bengal Premises Tenancy Act and accordingly the decree under appeal cannot be sustained in law. II. For that the plaintiff/respondent being admittedly in accommodation of a rented house which is not unsuitable or where there is no threat for eviction, the Court of Appeal below erred in law in passing a decree without even holding that such accommodation was not reasonably suitable for him." 6. Mr. Bhattacharya, the learned counsel appearing on behalf of the appellant has drawn attention of this court to the provisions of the Wakf deed which is Exhibit 1 and has contended that the plaintiff not being a direct descendant of the son or daughter of the Wakif but being son or the brother's son of the Wakif was not entitled to use any portion of the suit properties for his personal benefit and as such is not entitled to get a decree for eviction on the ground of reasonable requirement. In other words, Mr. In other words, Mr. Bhattacharya contends that the suit having been filed as Mutwalli to the Estate and the Wakf deed not having provided any provision for personal use of a Mutwalli who is not the Wakif, his widow or his children or childrens' descendant, there is no scope of evicting a tenant of the Wakf estate for the actual use of the same by the Mutwalli or the members of his family. In such a case, Mr. Bhattacharya contends, only one room can be used as office room of the Wakf Estate as provided in the deed of Wakf. But for personal residence of such a Mutwalli like plaintiff there is no provision in the deed of Wakf. 7. Mr. Roychowdhury, the learned counsel appearing on behalf of the respondent has seriously disputed the aforesaid contention of Mr. Bhattacharya and has contended that the Wakf being a purely private Wakf and the present Mutwalli being an heir of the original Wakif according to Mohammedan Law was entitled under the provision of the deed to use the property for his residential purpose. 8. To appreciate the aforesaid contention raised before this court Clauses 2, 3, 4, 5, 6, 7, 8 and 12 of the deed as it appears from the official translation are quoted below:- "2. From this day I became the Mutwalli of this Wakf property and while remaining in possession as the Mutwalli thereof, during my life time, I will conduct all the necessary management of this Wakf property as I desire. I alone will take and enjoy and receive all the income and usufructs of this Wakf property for my own maintenance and shall be entitled to spend the same according to my misha and for attaining the object of his Wakf I shall be entitled to possess and run at will this Wakf property and according to my necessity shall be entitled to enjoy the right of residence as I desire. I shall not be accountable to anybody for the management and the income and expenditure of this Wakf Estate and even if I maintain any accounts I shall not be liable in any manner for any errors and defects of the same and the vouchers, etc. 3. I shall not be accountable to anybody for the management and the income and expenditure of this Wakf Estate and even if I maintain any accounts I shall not be liable in any manner for any errors and defects of the same and the vouchers, etc. 3. After me i.e. after my death my wife the said Mussammat Asharaf Khatoon shall become the mutwalli and she also during her life time, shall remain the mutwalli vested with all my powers mentioned in the second paragraph above. 4. After my death my said wife shall, according to her desire, receive as her right of residence the same quantum of rooms and space which accommodation and space I will enjoy and possess during my life time till my death and for the same she shall not have to pay any rent or rate or tax. Besides that provisions for income shall be made by letting out all the premises and portions of this Wakf property as far as possible. Upon the death of my said wife and upon it being not possible that the paragraph twelve below be acted upon or be effective by keeping in shapi and khas (possession) a suitable room out of the properties of this Wakf Estate for fulfilling the objects mentioned in this deed the subsequent mutwallis shall make provisions for income through Thika at will or Thika tenant at will regarding all the other portions whatever amount shall be surplus after defraying expenses etc. by way of necessary legal expenses and maintenance and repairs etc. out of the income of this Wakf property out of the same my subsequent mutwallis shall perform and arrange for the following acts for the Aknejat of my late parents and my late daughter and my wife and myself and shall incur the necessary expenses thereof. a) For the Newaz of Hajrat Barapir Saheb shall perform the Newaz by purchasing sweetmeats worth more or less three rupees on the 11th day of each lunar month. a) For the Newaz of Hajrat Barapir Saheb shall perform the Newaz by purchasing sweetmeats worth more or less three rupees on the 11th day of each lunar month. b) On the occasion of the Holy Sabebarat shall have a Khatam of the Holy Koran ready by any Hafiz or any competent Moulabi or Mussulli and get the same gifted away and shall feed more or less 10 fakirs and every year just before the Sabebarat shall get the necessary repairs carried on the tombs my wife, my said daughter and myself and shall arrange for some candles to be lit over the same on the night of Sabebarat. c) On the 10th day of the month of Muharram, i.e. on the day of Muharram shall feed at least 10 fakirs with khechra. d) For the sowab resai and jhatwat Nejat of my late daughter Mussammat Kaarmrunnechhe shall feed one fakir on each Saturday. My said daughter died on 3rd September, 1932 for the reason on the 3rd September of each year a Khatam of the Holy Koran Sharif should be caused to be read and gifted away and five fakirs should be fed. For the Akat Nejat of my late parents shall feed more or less five fakirs on the 25th December of each year and after getting the Holy Koran Sharif to be read by a Hafiz or a competent Moulabi or Musulli and shall have the same dedicated to the Allah Tala. e) Shall make arrangements so that pucca tombs are constructed after purchase of the land of my tomb after my death and the tomb of my said wife by the side thereof. f) Every year on the anniversaries of the deaths of my wife and myself shall have a khatam of the Holy Koran Sharif to be read by Hafiz or a competent Moulabi or Musulli and shall have the same gifted away and shall feed five fakirs on each occasion. f) Every year on the anniversaries of the deaths of my wife and myself shall have a khatam of the Holy Koran Sharif to be read by Hafiz or a competent Moulabi or Musulli and shall have the same gifted away and shall feed five fakirs on each occasion. After defraying these expenses whatever amount shall remain as surplus out of the income of the said Wakf properties out of the same my wife shall receive 10 percent as the remuneration of the Mutwalli and a reserve shall be formed with 10 percent and the balance 80 percent which shall remain as surplus shall be received in its entirely by my wife the said Mussammat Ashraf Khatoon during her life time for her maintenance as allowance and shall be accepted and enjoyed by her and she shall not be accountable in any manner to anybody to furnish accounts regarding these and if there be any omission by my wife to make arrangement in accordance with subparagraphs a, b, c, d, e and f then she shall not be liable in any manner. 5. In the event of both my wife and myself being dead and in the event of there being no son, daughter or offspring of mine being there or in the event of it being not possible to come under the purview of the 12th paragraph mentioned below whosoever shall be the official Mutwalli appointed by the Commissioner of Wakf as envisaged and that the Bengal Wakf Act be or in his absence the Commissioner of Wakf shall consider whosoever to be fit for this Wakf Estate created by me and appoint him as Mutwalli only he shall become Mutwalli and as required for the benefit of the Wakf Estate the Commissioner of Wakf Bengal or in his absence the local Kaji i.e. the District Judge shall be entitled to remove him and appoint someone else as the Mutwalli and whosoever shall be the Mutwalli at a particular time after my wife and myself shall receive by way of remuneration the amount not exceeding 10% of the net amount (not more than 10% of the net income) as will be deemed proper and fixed by the Commissioner of Wakf as his remuneration. After deducting the expenses regarding legal expenses, maintenance repairs etc. After deducting the expenses regarding legal expenses, maintenance repairs etc. out of the income of the said Wakf properties the expenses regarding sub-paras a, b, c, d and e if not done in the meantime that of sub-para (f) of the 4th paragraph shall be defrayed and thereafter whatever amount shall remain as surplus out of the same expenses shall be defrayed in accordance with the directions of paragraph 6 mentioned below and the balance amount shall be spent for the education of the local Muslim students and the same shall continue in accordance with directions of paragraph 7 mentioned below. After my wife and myself whosoever shall be Mutwalli at a particular time he shall maintain the proper and satisfactory account and vouchers etc. of all the receipts and expenses for the said period and he shall remain liable for the same and by opening a separate account of this wakf estate created by me in a safe and good bank approved by the Commissioner of Wakf or appropriate court shall keep the entire amount deposited deducting a small amount for current petty expenses and shall withdraw the amount as required by taking the permission of the Wakf Commissioner. 6. Whatever amount shall remain as surplus after defraying the expenses in accordance with directions of paragraph 5 above with the 10% thereof a reserve fund shall be formed and the money of the said reserve fund shall be amalgamated with the money if any of the reserve fund proposed in the above mentioned paragraph 4 and with the help of the said reserve fund the improvement and preservation of the said Wakf properties shall continue and if possible by the same or by any other means, with the consent or permission of the Wakf Commissioner or in his absence of the local District Judge whosoever shall be the Mutwalli after me at a particular time shall be competent to arrange for acquiring other properties for the development and augmentation of income of this Wakf and whatever shall remain as balance after keeping the aforesaid 10% in the reserve fund the same shall be spent in accordance with the provisions of the 7th paragraph below, for the education of poor Muslim students in the name of the Holy Khodatal for the object of Akrat Nechhajat of my wife and myself. 7. 7. The amount that shall remain surplus after defraying the expenses etc. according to the abovementioned paragraphs 5 and 6 the same shall be divided into 8 paragraphs as far as possible and by the same a total of 8 poor and needy students (male) out of the Muslim students studying in 1st year, 2nd year, 3rd year, 4th year of both the Arts and Science departments of Bhowanipur Ashutosh College shall be paid Scholarships or stipends. The said stipend will be known as Ahiruddin Stipend but if any stipendiary student is unable to pass the annual promotion test or any examination of the Government Board or the University that he shall not be eligible and shall not receive the said stipend for the period subsequent to the declaration of examinations results. If such disqualified stipendiary student passed the subsequent annual promotion test or Government Board or University Examination then his such disqualification shall be removed and the Authorities if possible shall again continue to give him the stipend or shall be entitled to do so. Whosoever shall take the responsibility of granting this stipend at a particular time he shall keep in mind that as far as possible that some good charactered studious Muslim student receives the stipend from the 1st year till the 4th year either in the Arts or Science department of the same college or if any extraordinary meritorious Muslim student takes admission in 3rd year in the said college from elsewhere then he gets the said stipend for his education from 3rd year to 4th year. If in any department or any class there is no such fit Muslim student then the Authority shall be entitled to grant the said stipend as an assistance being equivalent to the said amount of stipend to any poor Muslim student having graduated from the said college with the said stipend trying for further higher education. If in any department or any class there is no such fit Muslim student then the Authority shall be entitled to grant the said stipend as an assistance being equivalent to the said amount of stipend to any poor Muslim student having graduated from the said college with the said stipend trying for further higher education. Be it known if the applicants for the grant of stipend include any male or female descendants (how low soever) of my late father then he or she unless disqualified by the disqualification of failing in the aforesaid examination shall be able to continue education in the said college by receiving the said stipend or in some other college with the permission of the Wakf Commissioner being entitled to any by receiving such stipend and if necessary shall get the preference in comparison with other applicants. If there be none out of such descendants of my late father amongst the applicants in spite of there being such fit applicants all the stipends that will remain will be for the same such good charactered poor and fit Muslim students out of the local Muslim students who after passing the matriculation or equivalent examination from the local schools of the current ward Nos. 22, 23, 24, 25 of Calcutta Municipality are continuing their studies in the said college, if there be no such applicants passing from any school of Ward Nos. 22, 23, 24, 25 then such Muslim students applying for the said stipend passing from any school of District 24 Parganas belonging to the said areas and in absence of that passing from any school in the Presidency and Burdwan Divisions belonging to the said areas. 22, 23, 24, 25 then such Muslim students applying for the said stipend passing from any school of District 24 Parganas belonging to the said areas and in absence of that passing from any school in the Presidency and Burdwan Divisions belonging to the said areas. The responsibility of final selection for the said stipend from the applicants is entrusted to my relative and well wisher Moulabi Mohhammed Amir, M.A. LLB., Advocate R/o Goshipur, P.S. Deganga, District 24 Parganas, during the tenure of a particular Mutwalli when the selection of such stipendiary suitable students will be required, he, after taking the opinion from the Principal of the college or in his absence from the Wakf Commissioner about each applicant shall present the same before my said relative every year or during the year whenever required and according to his selection all the stipends will be distributed and the stipendiaries selected as proposed in this wakf and his selection shall not be changed for any reason without his consent and shall not remain bound to show any cause for the selection made by him. In his absence the Bengal Wakf Commissioner shall make such selections, if it is required to make any amendments, changes or to cancel or revoke or to make any alteration etc. regarding any rule or provision or arrangement or scheme in connection with grant of all such stipends and selection of stipendiaries or if this paragraph 7 is to be cancelled or revoked or changed totally then I during my life time shall do so or shall be entitled to do so and after my death my relative Moulabi Mohammed Amir Saheb shall also have the power to do so. Be it further known that if due to any reason the said Ashutosh College is no longer there or ceases to exist then the provisions of all the stipends shall continue in such college within the said ward numbers 22, 23, 24 and 25 under the limits of Calcutta Municipality and in absence thereof in any college within the limits of Calcutta as instructed by my said relative or in his absence the Wakf Commissioner of Bengal or District Judge 24 Parganas. 8. 8. If any part of the said Wakf properties is acquired for any public purpose or any other reason then the Mutwalli shall duly maintain or increases the corpus of the said wakf estate by acquiring new properties by the amount of compensation and if necessary by taking money from the reserve fund. 12. If by the grace of Khoda in future any son or daughter is born to me then as long as his/her/their descendant shall remain alive the provision of the aforesaid paragraphs 5, 6 and 7 shall not be effective nor be implemented nor operative, in such case if I have a son, the son and if I have a daughter, the daughter, if I have both son and daughter, then both jointly will be the Mutwalli after my wife in her place and shall carryon the work of sub-paras a, b, c, d, e and f in the aforesaid para 4 shall receive, like my wife a total remuneration of 10% as mutwalli and shall keep 10% in the reserve fund and shall receive the remaining 80% as allowance for maintenance, in equal shares if necessary and shall receive by way of their right of residence, accommodation or space similar to my wife and for the same they will not have to pay any rent or tax. Besides, the same arrangements will be made for letting out the remaining portions and realising the rents. Upon both my son and daughter dying and upon there being none of their sons, daughters or descendants the work for fulfilling the object of this deed of Wakf in accordance with the provisions of the aforesaid paragraphs 5, 6, and 7 shall be continuing but in the absence of my son and daughter if my son's son, daughter's son, son's daughter, daughter's daughter be there, the eldest amongst them at the relevant time shall be the Mutwalli and shall carryon the work etc. mentioned in sub-paras (a), (b), (c), (d), (e) and (f) of para 4 in this deed of Wakf and out of the surplus amount that will remain out of the income of this Wakf estate less all the said expenses, the said 10% remuneration of the Mutwalli will be taken and shall maintain the reserve fund by the said 10% and the balance 80% that shall remain as surplus the same shall be divided amongst my own descendants (male or female) duly in accordance with the Faraem of the Muslim law and my descendants shall receive the same accordingly. In this manner the working of this Wakf shall continue down the generations when neither we nor any of the lines of my son or daughter shall be there any more then the provisions of the aforesaid paras 5, 6, 7 shall be effective and work shall continue accordingly. To this import, in sound health, in good faith, without requested by anybody, with the object of being managed in accordance with the aforesaid provisions I on this day having dedicated my properties mentioned in the schedule below to the most merciful Khodatallah create a wakf by this deed and execute and have this deed of Wakf registered, Finish 24th Kartick 1351 B.S. 10.11.44 AD." 9. There is no dispute that Wakif and his wife having died issueless, the father of the plaintiff was the next Mutwalli as the Wakifs brother's son and thereafter the plaintiff has been appointed as Mutwalli and such appointment has been confirmed by the learned District Judge. Thus, according to Clause 5 of the aforesaid deed, the present Mutwalli is entitled to receive by way of remuneration, the amount not exceeding 10% of the net amount as will be deemed proper and fixed by the Commissioner of Wakf, as his remuneration. After deducting the expenses regarding legal expenses, maintenance, repair etc.; the expenses regarding sub-paras a, b, c, d if not done in the meantime and that of sub-para (f) of the 4th paragraph shall be defrayed and thereafter whatever amount shall remain as surplus shall be defrayed in accordance with the direction of paragraph 6 and the balance amount should be spent for education of the local Muslim students and the same shall be continued in accordance with the direction given in the paragraph 7. 10. Mr. 10. Mr. Roychowdhury however vehemently contended that the plaintiff being one of the heirs of the original Wakif being the son of his brother's son is entitled to residential accommodation similar to the one enjoyed by the Wakif and his wife without payment of rent as provided in Clause 12. 11. After going through the aforesaid Clause 12 I find that the said clause can be made applicable only if the Wakif had any son, daughter, son's son, daughter's son, son's daughter or daughter's daughter. But in the absence of those persons, the said Clause No. 12 cannot have any application and the provision contained in Clauses 5, 6 and 7 will be operative. Thus, in the absence of any son and daughter of the Wakif the provisions for residence shall come to an end immediately on the death of Wakif and his wife. Therefore, I do not find any substance in the contention of Mr. Roychowdhury that even the nephew of the Wakif or nephew's son will get benefit of residence as provided in Clause 4 read with Clause 12 of the Deed. 12. I thus find substance in the contention of Mr. Bhattacharya that the present Mutwalli being the son of the nephew of the Wakf is not entitled to any residential accommodation and thus as Mutwalli of the Estate cannot get a decree for reasonable requirement for his own use and occupation or for the occupation of his members of family as the terms of the Wakf deed do not provide for such accommodation. 13. Therefore, the learned courts below erred in law in passing a decree for eviction under section 13(1)(ff) of the West Bengal Premises Tenancy Act although the plaintiff has failed to prove that he is holding the Wakf Estate for the residence of the Mutwalli and his members of the family. 14. As regards ground No.2 on which the appeal has been also admitted I find that if ground No.1 is found in favour of the plaintiff then on the basis of materials on record the learned courts below rightly passed a decree for eviction considering the extent of accommodation but in view of my finding on point No.1 above, there is no scope of passing any such decree as the plaintiff is not entitled to get any such decree being a Mutwalli of the Estate. 15. Mr. 15. Mr. Roychowdhury appearing on behalf of the respondent No. 1 also tried to impress upon this court that the deed Exhibit 1' is not at all a Wakf deed as full benefit was given in favour of the Wakif himself, his wife and his children and as such if the deed is not construed as Wakf deed then as heirs of the original Wakif according to Mohammedan law the plaintiff is entitled to get a decree for eviction on the ground of reasonable requirement being a co-sharer. 16. I am not at all impressed by such submission for the simple reason that the plaintiff having brought the suit as Mutwalli should not be permitted to take a total contrary stand disputing the validity of the deed itself. Such inconsistent plea is not permissible as alternative case. In such a case, it was the duty of the plaintiff to pray for declaration that the Wakf deed was invalid and he was entitled to treat the property as secular estate. No such case having been made out, the aforesaid plea is not available to the respondent No.1 at this second appellate stage. 17. I thus find substance in the first point raised by Mr. Bhattacharya and the suit is thus liable to be dismissed. This second appeal is thus allowed. 18. In the facts and circumstances there will be however no order as to costs. Second appeal allowed.