Court No. - 26
Case :- CIVIL REVISION No. - 179 of 1987 Revisionist :- Smt.Qasida Khatun & Others Opposite Party :- Syed Musaiyab Mehandi Counsel for Revisionist :- Vipin Saxena,Gulrej Khan,J.H.Khan,M.K.Gupta Counsel for Opposite Party :- G.N. Verma,A.N.Verma,Banarsi Das,Haidar Husain,M. Abhaipasi,M.A. Zaidi,Prakash Gupta,Vipin Saxena
Hon'ble Mrs. Sangeeta Chandra,J.
(Oral)
1. In pursuance of the orders passed by this Court on 28.5.2018, Sri Gulrez Khan appears and says that eight names have been shown of counsel appearing for the respondents in the cause list out of which one name Sri Vipin Saxena has been wrongly shown as he was the counsel for the revisionist earlier. Four names are of those counsel who are no more in this world. With regard to Sri Abhai Pasi and Sri M.A. Zaidi, he could not find any detail. It is not clear as to who is appearing for the respondent. No Vakalatnama is on record of Abhai Pasi or of Shri M.A. Zaidi.
2. Since, this Court had already issued notice to respondent nos. 1/1 to 1/9 and the office has reported that notices have not been returned after service and no one has filed Vakalatnama on behalf of any of the above mentioned respondents. Service is deemed sufficient upon the respondents. The matter is old and pending since 1987, the matter is being heard on merits deeming notice on the respondents to be sufficiently served.
3. I have heard learned counsel for revisionists, Shri Gulrej Khan who has pointed out from the order impugned dated 23.10.1986 passed by the VIIIth Additional District Judge, Moradabad in SCC Suit No. 15 of 1981 : Smt. Qasida Khatun Vs. Musaiyab Mehandi, that suit filed for arrears of rent and eviction of tenant had been dismissed by the learned Trial Court. It has held that the property in question could not have been sold off by the descendants of Sibtey Hasan, Sibtey Hussain and Sibtey Ali to the plaintiff landlord as three different waqf deeds were executed by the three brothers on 23.10.1926, 24.12.1929 and 26.09.1928. The learned Trial Court found that being a waqf property the plaintiff could not have derived any title to the said property on the basis of the sale deeds executed by the descendants of three brothers, Sibtey Jamin and others. The learned Trial Court also assumed that no rent receipts could be proved to have been issued by Smt. Qasida Khatun as landlady in favour of Musaiyab Mehandi, the tenant. Even though the plaintiff had amply proved the original counterfoils of these rent receipts bearing signatures of Musaiyab Mehandi.
4. It has been argued by Shri Gulrej Khan that the learned Trial Court wrongly placed reliance upon the judgment and order dated 31.03.1982 passed in O.S. No. 424 of 1980 by the IIIrd Additional Munsif Amroha because in the said suit the learned Munsif had not decided the question whether the disputed property is a waqf property or not. The judgment of O.S. No. 424 of 1980 was irrelevant to determine the title of plaintiff-landlord over the house in question. It has also been submitted that the waqf deed, if any, which was created by Sibtey Hasan, Sibtey Hussain and Sibtey Ali, the three brothers was never acted upon and the property in question was never included in the waqf deed.
5. Shri Gulrej Khan has also referred to an application filed by the revisionist on 08.10.2002 under Order 41 Rule 27 in this revision placing on record additional evidence in support of their case. It has been averred in the said application that The Shia Waqf Board has sent a requisition to the Collector under Section 52 of the Waqf Act, 1995 to the effect that the waqf property had illegally been transferred by Smt. Jarin Khatun in favour of Smt. Qasida Khatun. Possession was directed to be taken by the Collector of the property in question including the house in dispute in the instant revision i.e. old house No. 68, new house No. 37/1 situated in Amroha City. Against the notice sent by the Collector to Smt. Qasida Khatun on 24.02.1998 for delivery of possession, Smt. Qasida Khatun filed an appeal before the Waqf Tribunal/Civil Judge (Senior Division), Moradabad which was registered as waqf appeal No. 168 of 1998. The said appeal has been allowed on 21.03.2002.
6. In the judgment and order dated 21.03.2002 the Civil Judge (Senior Division), Moradabad/ Judge, Waqf Tribunal, Moradabad has held that the house No. 37/1 is not a waqf property. Shri Gulrej Khan has read out the internal page 13 onwards of the said judgment and order dated 21.03.2002 and also the notice issued under Form - II Rule 5 by Waqf Board filed as Annexure - 1 to the application for additional evidence, which shows that the notice was issued by the Collector on 24.02.1998 with respect to old house No. 62 and 32, new numbers 37/1 and 37/2 situated at Mohalla Tripolia, Qasba Amroha, District Moradabad.
7. From a perusal of the judgment and order dated 21.03.2002 it is apparent that the house No. 60 and 66 in which shop No. 61, 62, 63, 64 and 65 are situated, alone were dedicated as waqf property. The house No. 68, new number of which is 37/1 was not dedicated as waqf property. The learned Civil Judge (Senior Division) has also examined the sale deed dated 14.05.1971 by which Smt. Jahin Khatun had sold off the house No. 37/1 to Smt. Qasida Khatun, the revisionist herein.
8. It has been argued by Shri Gulrej Khan on the basis of additional evidence filed along with the application dated 08.10.2002 that now, evidence has been thrashed out on the regular side by the Waqf Tribunal, Moradabad/Civil Judge (Senior Division), Moradabad and it has come out that the property in dispute in the said revision is not a waqf property and therefore, the order passed by the learned Trial Court rejecting the suit on this ground alone on 23.10.1986 ought to be set aside.
9. This Court having gone through the order dated 23.10.1986 finds that the suit for arrears and eviction of tenant had been dismissed only because the Trial Court had found the property in question to be waqf property and the title of Qasida Khatun, the plaintiff, could not be established over it. The order dated 23.10.1986 is set aside. The matter is remanded to the learned Trial Court to decide afresh in accordance with law after issuing notice to the respondents/proposed heirs of original tenant Musaiyab Mehandi.
10. The revision is allowed.
Order Date :- 28.5.2018 LBY