The instant petition is directed against the judgement and decree dated 29.1.2014 passed by the Court of Small Causes in SCC Suit No.43 of 2005 and judgement and decree dated 18.9.2018 passed by Additional District Judge, Court No.2/Special Judge SC/ST Act in SSC Revision No.13 of 2014.
The facts in brief relevant for deciding the instant petition are as follows:-
SCC Suit No.43 of 2005 was instituted by the plaintiff-respondent, which is a registered Waqf through its Mutwalli Hazi Abdul Gaffur. During pendency of the suit, he died. After his death, Mahmood Alam Qureshi was substituted in his place and he prosecuted the suit thereafter. The relief claimed in the suit was for recovery of arrears of rent and for eviction of the petitioner (hereinafter referred to as 'the defendant') from a shop bearing No.3 in Building No.77/93 Kuli Bazar, Kanpur Nagar. According to the plaint assertions, the property belonged to registered Waqf No.455 and the rent of the shop was Rs.300/- per month, apart from water tax and house tax payable at the rate of 18%. The defendant was alleged to be in default in payment of rent since 10.5.1998, consequently, his tenancy was terminated by a registered notice dated 7/8.10.2004 served upon him by refusal on 11.10.2004. It was further asserted that the provisions of U.P. Act No.13 of 1972 were not applicable.
The suit was contested by the defendant by filing a written statement claiming that rent of the premises was Rs.300/- per month including all taxes. He also claimed that the shop in dispute, in fact, is owned by Waqf No.185 and further claimed that there was a dispute relating to mutwalliship. Accordingly, he denied the relationship of landlord and tenant between the parties. He also disputed that he refused to receive notice under Section 106 of the Transfer of Property Act, 1882 and claimed that the endorsement of refusal was obtained by the plaintiff by playing fraud.
The trial court decreed the suit by judgement dated 29.1.2014. The revision filed by the defendant was dismissed by impugned judgement dated 18.9.2018.
Counsel for the petitioner submitted that the petitioner took a plea before the revisional court that suit for recovery of arrears of rent and eviction instituted before the Court of Small Causes was not maintainable before it in view of the provisions of Section 85 of the Waqf Act, 1995 (for short 'the Act'). It is urged that the revisional court did not examine the said plea. In support of his contention, he has placed reliance upon the following judgements:-
(1) Waqf Dargah Shah Mohammad and others Vs. U.P. Sunni Central Board of Waqf, 2003 (5) AWC 3469;
(2) Akhtar Vs. District Judge, 2006 (2) AWC 1489; and (3) Haji Abdul Latif and another Vs. Azizuddin and another, 2012 Law Suit (Del) 2852.
Learned counsel for the petitioner submitted that the finding relating to relationship of landlord and tenant recorded by the courts below is also illegal, inasmuch as the suit property belonged to registered Waqf No.185 and not 455 nor Abdul Gaffur, who instituted the suit, was competent to file the same.
On the other hand, learned counsel for the plaintiff-respondent submitted that the plea relating to jurisdiction was not raised by the defendant before the trial court. Even in revision, only a ground was taken in the memo of revision but it was not pressed during course of hearing. He further submitted that the suit property belonged to Waqf No.455 as held by the courts below and the finding relating to existence of relationship of landlord and tenant between the parties is a finding of fact. He placed reliance upon the judgement of the Supreme Court in Ramesh Gobindram (dead) through Lrs Vs. Sugra Humayun Mirza Wakf, 2010 (8) SCC 726 in contending that the Court of Small Causes was competent to try the suit and not the Waqf Tribunal.
The Supreme Court in Ramesh Gobindram (supra) considered a similar plea raised before it in relation to bar of jurisdiction of the civil court to entertain suit for eviction of tenant from Waqf property. After considering the scheme of the Act, the Supreme Court came to the conclusion that Section 85 of the Waqf Act does not exclude the jurisdiction of the civil courts in respect of any or every question or disputes only because the same relates to a waqf or a waqf property. Section 85 in terms provides that the jurisdiction of the civil court shall stand excluded in relation to only such matters as are required by or under the Act to be determined by the Tribunal. The crucial question that shall have to be answered in every case where a plea regarding exclusion of the jurisdiction of the civil court is raised is to find out whether the Tribunal is under the Act or Rules required to deal with the matter sought to be brought before a civil court. If it is found that under the Act, the question is not required to be decided by the Tribunal, the jurisdiction of the civil court would not stand excluded. Thereafter, the Supreme Court held that a suit seeking eviction of the tenant from what is admittedly waqf property could, therefore, be filed before a civil court, as no provision of the Act empowers the Tribunal to try a suit for eviction of a tenant from waqf property consequent to determination of the tenancy. The relevant observations made in this regard in the said judgement are extracted below:-
"21. There is, in our view, nothing in Section 83 to suggest that it pushes the exclusion of the jurisdiction of the Civil Courts extends beyond what has been provided for in Section 6(5), Section 7 and Section 85 of the Act. It simply empowers the Government to constitute a Tribunal or 28Tribunals for determination of any dispute, question of other matter relating to a wakf or wakf property which does not ipso facto mean that the jurisdiction of the Civil Courts stands completely excluded by reasons of such establishment. It is noteworthy that the expression "for the determination of any dispute, question or other matter relating to a wakf or wakf property" appearing in Section 83(1) also appears in Section 85 of the Act. Section 85 does not, however, exclude the jurisdiction of the Civil Courts in respect of any or every question or disputes only because the same relates to a wakf or a wakf property. Section 85 in terms provides that the jurisdiction of the Civil Court shall stand excluded in relation to only such matters as are required by or under this Act to be determined by the Tribunal. The crucial question that shall have to be answered in every case where a plea regarding exclusion of the jurisdiction of the Civil Court is raised is whether the Tribunal is under the Act or the Rules required to deal with the matter sought to be brought before a Civil Court. If it is not, the jurisdiction of the Civil Court is not excluded. But if the Tribunal is required to decide the matter the jurisdiction of the Civil Court would stand excluded.
22. In the cases at hand the Act does not provide for any proceedings before the Tribunal for determination of a dispute concerning the eviction of a tenant in occupation of a wakf property or the rights and obligations of the lessor and the lessees of such property. A suit seeking eviction of the tenants from what is admittedly wakf property could, therefore, be filed only before the Civil Court and not before the Tribunal. The contrary view expressed by the Tribunal and the High Court of Andhra Pradesh is not, therefore, legally sound. So also the view taken by the High Courts of Rajasthan, Madhya Pradesh, Kerala and Punjab and Haryana in the decisions referred to earlier do not declare the law correctly and shall to the extent they run counter to what we have said hereinabove stand overruled. The view taken by the High Courts of Allahabad, Karnataka, Madras and Bombay is, however, affirmed. "
It is noteworthy that while laying down the above law, the Supreme Court in the penultimate paragraph observed that all judgments taking a contrary view would stand overruled.
A learned Single Judge of this Court in Yashpal Vs. Allahatala Malik Waqf Azakhan and others, 2005 (3) ARC 764, while examining the question relating to jurisdiction of the ordinary civil court to try a suit for eviction of lessee after determination of the lease, took the same view by observing thus:-
"A perusal of Section 85 of the Wakf Act, 1995 shows that in case, there is any dispute, question or other matter "relating to any wakf, wakf property or other matter which is required by or under this Act to be determined by a Tribunal" then no suit or other legal proceeding shall lie in any civil court in respect of such dispute, question or matter.
As noted above, the present Suit is a Suit for eviction of the tenant [i.e. petitioner (defendant)] from the disputed shop after determination of the tenancy / lease. Such a Suit is not a Suit "in respect of any dispute, question or other matter relating to" any wakf or wakf property in the context in which the said words have been used in Section 85 of the Wakf Act, 1995.
Further, analysis of various provisions of the Wakf Act, 1995, particularly, Sections 6, 7, 32, 33, 35, 40, 51, 52, 54, 64,67, 69 and 83 thereof, shows that such a Suit for eviction of the tenant [i.e. petitioner (defendant)] after determination of the tenancy/ lease is also not covered within the purview of the words "other matter which is required by or under this Act to be determined by a Tribunal."
In the circumstances, I am of the opinion that the bar created by Section 85 of the Wakf Act, 1995 does not apply in the present case, which pertains to a Suit for eviction of the tenant from the disputed shop after determination of the tenancy / lease. As such, in my opinion, the submissions made by the learned counsel for the petitioner (defendant) in this regard, cannot be accepted."
The judgement cited by learned counsel for the petitioner in the case of Akhtar Vs. District Judge (supra), was in respect of a land in regard whereof permanent injunction was sought restraining the defendant respondents from interfering in the right of the plaintiffs in burying dead bodies of the sunni community, as it was alleged that the disputed property is public graveyard and a waqf. The issue between the parties was whether it was a waqf property or not and whether it was a Shia waqf or Sunni waqf. It is in the aforesaid context that it was held that the dispute in question was regarding waqf property and therefore, the bar contained under Section 85 would apply.
The other judgement in Waqf Dargah Shah Mohammad and others Vs. U.P. Sunni Central Board of Waqf (supra) was rendered in a writ of mandamus wherein the relief sought was not to dispossess the petitioner from control and management of the properties of waqf. The issue raised was with regard to right of the petitioner to manage the waqf and its properties. The relief claimed in the said case was definitely the one which could be claimed before the Tribunal constituted under the Waqf Act, consequently, the Court declined to entertain the writ petition and relegated the parties to seek their remedy before the Tribunal.
One more judgement cited by learned counsel for the petitioner in the case of Haji Abdul Latif and another (supra) by a Single Judge of Delhi High Court was also in a dispute arising out of a suit for permanent injunction, wherein the person claimed to be in possession of a shop belonging to Masjid as a licensee. The property in question was indisputably a waqf property. The plaintiff alleged that he was being subjected to threats by senior members of the Executive of the Masjid to vacate the shop, therefore, he sought permanent injunction. It was not a case between landlord and tenant nor any relief for eviction was sought in the said suit, consequent upon determination of tenancy of the lessee.
In the considered opinion of the Court, all the judgments cited by learned counsel for the petitioner would have no application to the facts of the instant case. This Court in due deference to the law laid down by the Supreme Court repels the contention that the suit in question was barred under Section 85 of the Waqf Act.
Coming to the next submission that Haji Abdul Gaffur, through whom suit was instituted, was not competent to represent the waqf, it is noteworthy that for proving that Abdul Gaffur was mutwalli of plaintiff waqf no.455, the registration certificate of the waqf (Paper No.11 Ga) was brought on record. The trial court has taken note of the fact that in the said certificate, Abdul Gaffur is shown as mutwalli of the plaintiff waqf. Likewise, Paper No.47 Ga issued by U.P. Sunni Central Waqf Board, Lucknow mentioned about appointment of Mahmood Alam Qureshi as mutwalli of waqf no.455 i.e. after the death of the earlier mutwalli Haji Abdul Gaffur. The trial court also took into consideration Paper No.55 Ga filed by the defendant and held that the same had no relevance, as it was in respect of waqf no.1-A and not waqf no.455. The trial court thereafter proceeded to examine the other limb of the argument of the petitioner that the suit property belonged to waqf no.185 and not waqf no.455. It took into consideration Paper No.51 Ga and its Hindi translation (Paper no.52 Ga) and held that therefrom it is clear that the boundaries of the property mentioned therein do not tally with the boundaries of the shop in dispute. The trial court also took into consideration the statement of the petitioner (DW-1) wherein he admitted that the tenancy of the shop was settled in the year 1998 in presence of Advocate Khursheed Ahmad and at that time mutwalli was Haji Abdul Gaffur. Another important document relied upon by the trial court is counterfoil of rent receipts. It contained a receipt no.77 dated 10.4.1998 on which name of the petitioner and rate of rent are duly mentioned. The petitioner denied his signature over the same but he admitted that the back side of the said receipt bears his signature. He also admitted that Abdul Gaffur has been carrying out annual maintenance of the shop by undertaking whitewashing etc. He also admitted that although he claims that the shop in dispute is owned by another waqf no.185, but apart from Mahmood Alam Qureshi, mutwalli of the plaintiff waqf, no one has ever asked him to pay rent. The trial court also took note of the fact that the defendant had not disclosed about any proceeding where dispute relating to mutwalliship of the plaintiff waqf is pending consideration. Having regard to the above facts, the trial court held that the suit property belonged to plaintiff waqf no.455 and that suit instituted through Abdul Gaffur (deceased) and continued by Mahmood Alam Qureshi was perfectly maintainable and that there existed relationship of landlord and tenant between the parties.
Learned counsel for the petitioner is unable to show how these findings are illegal or perverse and consequently, no case is made out to interfere with the concurrent findings of facts recorded by the courts below.
No other submission has been made by learned counsel for the petitioner.
The petition lacks merit and is dismissed.
(Manoj Kumar Gupta, J) Order Date :- 24.1.2019 SL