JUDGMENT Prakash Krishna, J.
1. This revision is under Section 25 of the Provincial Small Causes Courts Act, at the instance of the plaintiff of O.S. No. 96 of 1970.
2. The plaintiff applicant filed a suit for recovery of arrears of rent and damages for use and occupation and for the ejectment of the defendants from the Bungalow No. 29, Kanpur Road, Allahabad. The plaint was instituted on the allegations that the house No. 29, Kanpur Road, Allahabad is a waqf property known as Waqf Mohd. Husain and plaintiff thereof is mutwalli. The waqf was created by waqf deed dated 9.11.1966 by Smt. Mahmood Jahan Begum widow of late Syed Mohd. Husain, barrister at law. Smt. Mahmood Jahan Begum expired on 29th March, 1968. The said Bungalow No. 29 consists of several parts and number of tenants are living therein. The disputed portion of the accommodation consists of two verandah, two bath rooms and latrine, one big courtyard and platform and six rooms, garage etc. The defendant respondent No. 1 is daughter of plaintiffs step sister. The aforesaid accommodation was never let out and the husband of the defendant respondent No. 1 (hereinafter referred to as the tenant) was member of Indian Civil Services and by abusing his position as such got the disputed accommodation allotted by means of the allotment order dated 2nd of September, 1969. Copy of the allotment order meant for service on the plaintiff landlord was received by the husband of the tenant. The plaintiff who was residing at Delhi came to Allahabad in connection with the management of the waqf. He then came to know about the allotment order. The tenant expressed her desire that she will pay a sum of Rs. 475 per month as rent. The plaintiff who is mutwalli accepted the said offer of the tenant as it was beneficial to the waqf and consequently he did not raise any objection before the Rent. Control and Eviction Officer against the allotment order which was otherwise obtained by playing fraud and was result of the abuse of official position by the husband of the tenant. The plaintiff dsmanded rent in the month of March, 1970 from the tenant but without any success. The tenancy was terminated by means of a notice dated 17th April, 1970 under Section 106 of the Transfer of Property Act read with Section 3(a) of U.P. Act No. 3 of 1947. The said notice was served on the tenant by refusal on 27.4.1970. The suit was filed for recovery of a sum of Rs. 4,212.58 for the period September, 1969 to 26th May, 1970 towards the arrears of rent and Rs. 62.42 towards the use and occupation of the disputed property, total for a sum of Rs. 43,000.
3. The suit was contested by the tenant by denying the title of the plaintiff and the relationship of landlord and tenant in between the parties. It was stated that Smt. Mahmood Jahan Begum expired on 29th March, 1968 issueless, and thus the property has been inherited by her real sister who happens to be the mother of the tenant. The plaintiff is not mutwalli of the waqf and no such waqf was created by Smt. Mahmood Jahan Begum.
4. In para 4 of the written statement it was stated that the tenant expressed her desire to the plaintiff, that she wants to live at Allahabad in connection with the education of children. At that time she was informed by the plaintiff that in pursuance of the terms of the waqf deed, the mother of the tenant is entitled to live in a part of the disputed premises and therefore she may with the consent of her mother live therein. She came in possession of the disputed property on 1st of July, 1969 and the allotment order dated 2.9.1969 was obtained by her under the impression that the property in dispute is waqf property. The allotment order was obtained by her on the suggestion of the plaintiff.
5. The parties led evidence in support of their respective cases. The trial court on the basis of the pleadings of the parties framed the following seven issues :
"(1) Whether the defendant has committed default in payment of rent ?
(2) Whether there is relationship of landlord and tenant in between the parties ?
6. The trial court has decided the issues No. 2 and 7 together. Issue No. 2 was decided in negative and issue No. 7 was decided in affirmative and held that the tenant is not liable to pay any arrears of rent or damages. Under issue No. 1 it was held that there is no relationship of landlord and tenant in between the parties and as such this issue was decided in negative. The issue No. 3 was decided on the finding that the plaintiff has no right to maintain the suit and the suit is barred by Section 68 of U.P. Muslim Waqf Act, 1960. Issues No. 4 and 5 were decided together. It has been held that the notice has not been served on the tenant nor she has ever refused to accept the same. The notice was held to be invalid as according to the trial court it should have been given by the Sunni Central Waqf Board. Under issue No. 6 it was held that the plaintiff is not entitled to get any relief from the Court.
7. Heard the counsel for the parties and perused the record. The first question which falls for determination in this revision is as to whether there was relationship of landlord and tenant in between the parties. The trial court on this issue has found that there was no relationship of landlord and tenant in between the parties. This finding has been arrived at by the trial court under the issue No. 2.
8. It is admitted case of the parties that the respondent No. 1 Smt. Qudesiya Said Ullah never tendered any rent to the plaintiff applicant. The property originally belonged to Mahmood Jahan Begum who died issueless. Under the waqf deed it was provided that Maqsood Jahan Begum, the sister of the executant of the waqf deed could reside in the waqf property. After the death of Smt. Mahmood Jahan Begum, according to the defendant she is residing in the accommodation in question with the permission of her mother namely Smt. Maqsood Jahan Begum. She got the accommodation allotted in her favour as a precautionary measure so that no third person can enter and occupy the disputed accommodation. The allotment order was not opposed by the plaintiff as it was in interest of waqf. An argument was raised before the trial court that the defendant No. 1 has come in occupation of the disputed accommodation in pursuance of the allotment order dated 2nd of September, 1969 and as such there was a relationship of landlord and tenant in between the parties. The trial court has repelled the said argument on the finding that the defendant No. 1 came in occupation of the disputed accommodation on 1st of July, 1969 and as such she did not enter into the occupation of it in pursuance of the allotment order dated 2nd of September, 1969. Therefore, there was no relationship of landlord and tenant in between the parties. Challenging the aforesaid finding it was submitted by the learned counsel for the plaintiff applicant that the finding of the trial court on this point is illegal and contrary to law. On the other hand the learned counsel for the defendant opp. party No. 1 supported the said finding of the trial court.
9. I have given careful consideration to the respective submissions of the learned counsel for the parties on this issue. It is not in dispute that the defendant opp. party No. 1 came into occupation of the disputed accommodation initially as a licensee. The defendant opp. party No. 1 sought leave and licence from the plaintiff to enter into the occupation of the disputed accommodation as a guest. The parties are step uncle and niece. After obtaining the permission from the plaintiff applicant, the defendant opp. party No. 1 came in occupation of the disputed accommodation on 1st of July, 1969. The evidence has come on record that the husband of the opp. party No. 1 who was in the Indian Civil Services filed an application before the District Magistrate, Allahabad vide Paper No. 77C for the allotment of the disputed accommodation. The said letter is admitted to the parties and is quoted below :
"Paper No. 77C Letter Dated : Received on 28.8.69 29, Kanpur Road, Allahabad M. Said Ullah P.C.S.
District Magistrate, Allahabad.
Sir, My family has been residing in a portion of Bungalow No. 29, Kanpur Road known as "Waqf Mohammad Hussain" Wife has come into this portion of the house in pursuance of the waqf created by her aunt Begum Mohammad Husain, who died last year. She used to live in this portion herself all her life and it has never been let out on rent. The mutawalli of this waqf is an uncle of my wife. It is requested that a formal allotment order in favour of my wife Mrs. Qudesiya Said Ullah, may kindly be issued. My family is staying here with a view to the education of my children while I am posted at Unnao at present as A.D.M. (Planning). The accommodation comprised six rooms, two verandah, two bathrooms, courtyard and a garage and lawn.
Yours faithfully Sd.
(M. Said Ullah)."
10. In pursuance of the aforesaid letter the allotment order was issued by the Rent Control and Eviction Officer on 2nd of September, 1969. It is significant to be noticed that the defendant opp. party No. 1 on 2nd of September, 1969 also gave a letter to the Rent Control and Eviction Officer for the allotment of the residential portion in her occupation in Bungalow No. 29, Kanpur Road (known as Waqf Mahmood Hussain). The extent of the accommodation described in the said application is six rooms, two verandah, two bathrooms, courtyard and one garage. The said letter is paper No. 80C which reads as follows :
"Paper No. 80C Application Dated : 2.9.69 29, Kanpur Road, Allahabad 2.9.69 Dear Sir, Please refer to the application made on my behalf by my husband Sri M. Said Ullah regarding allotment of the residential portion in my occupation in Bungalow No. 29, Kanpur Road known as Waqf Mohammad Hussain. It is to request you to please allot the said portion in my name. This portion has never been let out before and my aunt used to live in it until her death. She has created the above waqf. The portion consists of six rooms, two verandah, 2 bath rooms, courtyard and one garage.
Your's faithfully Sd. (Mrs.) Qudesiya Said Ulla (Qudesiya Said Ullah) R.C.E.O.
Allahabad."
11. The allotment order dated 2.9.1969 is paper No. 81C. In the allotment order name of the landlord has been mentioned as waqf. These documents clearly establish one thing that the defendant opp. party No. 1 applied for and was granted allotment of the disputed accommodation by the Rent Control and Eviction Officer as tenant and the plaintiff is the landlord. The court below held that since admittedly the defendant opp. party No. 1 was in prior occupation of the disputed accommodation, the allotment order will not create any relationship of landlord and tenant between the parties.
12. On the facts of the case it is clear that the defendant opp. party No. 1 entered into the occupation of the disputed property initially as a licensee. The said occupation as licensee was got converted into as that of a tenancy in pursuance of the allotment order.
13. This Court in case of Mahendra Pal Singh v. Second Additional District Judge, Dehradun, 1993 ALJ 618 has held that a relationship of landlord and tenant is created between the parties by an allotment order. It is not necessary to execute a formal lease deed by the person in whose favour allotment order has been issued. The allotment order followed by delivery of possession brings into existence visa-vis demise premises. The learned single Judge in the aforesaid ruling has placed reliance upon a judgment of larger Bench consisting of five Judges in Abdul Hamid v. Mohd. Ishaq, 1974 ALJ 667. The trial court has distinguished the aforesaid judgment without there being any distinction. The finding of the trial court that the relationship of landlord and tenant is not created due to the allotment order is illegal and contrary to law, is therefore reversed by this Court.
14. The next question which arises for determination is whether the defendant opp. party No. 1 is estopped to challenge the relationship of landlord and tenant in between the parties in view of the Section 116 of the Evidence Act. Section 116 of the Evidence Act prohibits a licensee or lessee to challenge the title of the landlord. The two applications (paper No. 80C and 77C) filed by the defendant respondent No. 1 herself and her husband clearly show that the respondent No. 1 treated the plaintiff applicant No. 1 as her landlord and the property in question as a waqf property, already quoted above. The defendant opp. party No. 1 has accepted that the plaintiff is the mutawalli of the property in suit which is a waqf property and is landlord. In this connection the written statement filed on behalf of the defendant respondent No. 1 has to be considered. In para 4 of the written statement, she has stated as follows :
"...The answering defendant mentioned to the plaintiff that the difficulty which she was experiencing at that time in connection with the education of her children and expressed a desire to live at Allahabad in that connection. The plaintiff wrongly and deliberately represented to the defendant that a waqf deed has been executed by late Mahmood Jahan Begum in respect of the Bungalow No. 29, Kanpur Road and that the waqf deed gave a right of residence to the answering defendant's mother in that portion of the property which was in the occupation of late Mahmood Jahan Begum at the time of her death. He suggested that the defendant could live in the said portion of the property with the permission of her mother. The defendant informed her mother about the suggestion made by the plaintiff and on receiving her consent she occupied the portion of the property in her possession which commenced from 1st of July, 1979 much before the allotment order was passed...."
15. In para 6 of the written statement she stated that the allotment order was obtained at the suggestion of plaintiff himself. Thus, from the pleadings of the defendant opp. party No. 1 it is clear that she entered into the accommodation of the disputed accommodation in pursuance of the allotment order. She acquired the status of tenant for the first time on account of allotment order passed in her favour. The Supreme Court in Shri Shree Ram Pasricha v. Jagannath, , has held that a tenant is estopped from questioning the title of the landlord. Thus, under law the defendant opp. party No. 1 is estopped to challenge the title of the plaintiff and the finding to the contrary by the court below cannot be sustained.
16. The upshot of the above discussion is that there was a relationship of landlord and tenant in between the parties and the contrary finding arrived at by the trial court cannot be sustained.
17. In the connected First Appeal No. 311 of 1996 which arose out of a suit filed for possession against the present plaintiff and others it has been held by this Court that Mahmood Jahan Begum validly created the waqf deed in respect of the disputed property. In view of these findings the contrary findings recorded by the trial court are hereby reversed and it is held that the waqf was the owner of the property in question and the property was being managed by the plaintiff as mutawalli of the waqf.
18. Now question arises with regard to the default, if any, committed by the defendant opp. party No. 1 in payment of rent. This question does not present any difficulty. It is the admitted case of the parties that the defendant opp. party No. 1 has not paid any rent to the plaintiff applicant. The case of the plaintiff applicant is that when he came to Allahabad only then he learnt about the allotment order which was obtained by the defendant opp. party No. 1 surreptitiously and behind his back. The husband of the defendant No. 1 expressed desire to pay a sum of Rs. 475 per month as rent to which he agreed. The parties are closely related to each other. The plaintiff as a prudent man thought it that the rent of Rs. 475 per month will increase the income of waqf. But the defendant opp. party No. 1 failed to fulfil her promise and she was served with a notice of demand and ejectment thereafter. The case of the defendant opp. party No. 1 is that she was not liable to pay any rent nor she did promise to pay the rent as under the waqf deed her mother was entitled to reside in the accommodation. Her mother asked her not to pay the rent. This plea of the defendant opp. party No. 1 is totally unfounded and cannot be accepted for the reasons more than one. On one hand she has challenged the validity of the waqf deed itself by way of filing Suit No. 55 of 1971 and on the other hand she is taking shelter of the waqf deed. Besides above she admittedly entered into accommodation, the part of the disputed property, with the leave and licence granted by the plaintiff. The allotment order is dated 2nd of September, 1969 and the notice demanding rent is dated 17.4.1970 and was served on 27.5.1970 and the suit was filed thereafter. No rent was tendered by the defendant No. 1 to the plaintiff after the service of the notice dated 17.4.1970. The burden is upon the tenant to prove the payment of rent, if any. Therefore, on the admitted facts of the case, the defendant opp. party No. 1 has defaulted in payment of rent for a period of more than three months and is thus liable for eviction in view of Section 3(i) (a) of U.P. Act No. 1947.
19. The next question is whether the notice under Section 106 of the Transfer of Property Act was validly served on the tenant, defendant No. 1 or not. The said notice was given by a registered post and was served by refusal by the defendant opp. party No. 1 namely the tenant. The notice was given by registered post. It is not the case of the defendant opp. party No. 1 that it was not correctly addressed. She came out with the case that she was at Bombay at the relevant time. This plea has not been rightly accepted by the trial court. It appears that the defendant opp. party No. 1 as an afterthought got amended her written statement and changed the date of her alleged visit to Bombay. She stated in the witness box that she did not refuse the postman to receive the registered cover. The trial court has come to the conclusion that as the postman was not examined and no witness of refusal was produced, therefore, neither the notice was served on the defendant opp. party No. 1 nor she refused to receive it. The said finding of the trial court is illegal and contrary to the decisions of the catena of cases of this Court as well as Supreme Court. It is fairly settled that there is presumption of due service when the registered letter which contains the correct address was returned by the postman with the report that the addressee has refused to accept it. The said presumption is available both under the Evidence Act as well as under the Post Office Act. A Full Bench judgment of this Court in the case of Ganga Ram v. Smt. Phulwati, , has held that it is not incumbent on the plaintiff to prove the endorsement of refusal on the notice sent by registered post by producing postman or other evidence in the case the defendant denies service on him. Therefore, the finding of the trial court that there was no valid service on the defendant opp. party No. 1 cannot be sustained. The service of notice is held sufficient on the defendant opposite party No. 1.
20. The trial court has held that the notice is invalid as it should have been given on behalf of Sunni Central Waqf Board. This finding of the trial court cannot be sustained for more than one reasons. The trial court in the connected Suit No. 55 of 1971 has held that the property in question was not a waqf property as the waqf was not validly created, vide its judgment dated 23.4.1996. The judgment in the present case is signed on 21.4.1996 and was pronounced on 22.4.1996 by the same Presiding Officer namely Shri Ashok Kumar, Special Judge, Allahabad. The trial of both the suits proceeded simultaneously before Shri Ashok Kumar, Special Judge, Allahabad. He has recorded contradictory findings. In the present case without framing an issue as to whether the property belongs to the waqf or not and the waqf deed dated 9.11.1966 is valid or not has held that the notice should have been given by Sunni Central Waqf Board treating it as a waqf property. But in the connected Suit No. 55 of 1971 it has been held by him that the disputed property is not a waqf property by its judgment dated 23.4.1996. Admittedly, the defendant opp. party No. 1 was allowed to enter into the disputed accommodation as the licensee of the plaintiff and in the allotment order the name of plaintiff has been shown as landlord, the notice was rightly given by the plaintiff as mutawalli of waqf. The property is being managed by the plaintiff as mutawalli. The finding of the trial court that only Sunni Central Waqf Board was entitled to institute the suit is without any basis and cannot be sustained. No law has been cited by the trial court which may debar the plaintiff who is landlord of the disputed accommodation to institute suit for arrears of rent and ejectment against the defendant opp. party No. 1.
21. The trial court while deciding the issue Nos. 2 and 7 has made a passing remark that since the property in dispute is registered with the Waqf Board the suit should have been filed by the Waqf Board. The U.P. Muslim Waqf Board Act, 1960 does not provide any such provision which may empower a waqf to institute a suit for ejectment of a tenant and recovery of arrears of rent. The mutawalli is the manager of the waqf property and he is the only person to institute the suit against the tenant for recovery of arrears of rent, damages and possession in the course of management of the waqf property. The learned counsel for the defendant opp. party No. 1 could not show me any provision of law debarring a mutawalli to institute such a suit. Therefore, the finding of the court below on this issue is liable to be set aside.
22. In the result it is held that there was a relationship of landlord and tenant in between the plaintiff and defendant opp. party No. 1 and the tenancy has been validly terminated vide a notice dated 17.4.1970 served on her on 27.5.1970 and she committed default in payment of arrears of rent for a period of more than three months after the receipt of notice. She is liable for eviction under Section 3(i) (a) of the U.P. Act No. 3 of 1947.
23. In the result, the revision is allowed. The judgment and decree of the court below is set aside. The suit for recovery of arrears of rent and damages and ejectment of the defendants as prayed for in the plaint is decreed in toto with costs'" throughout. The defendant opposite party No. 1 shall be liable to pay cost of present revision as well as that of suit of the court below.