Court No. - 5
Case :- MATTERS UNDER ARTICLE 227 No. - 5694 of 2019 Petitioner :- Syed Qiam Hussain Respondent :- Asadullah Khalid And Another Counsel for Petitioner :- Ghan Shyam Maurya,Irfan Raza Khan,N.A. Khan (Sr. Advocate)
Hon'ble Surya Prakash Kesarwani,J.
Heard Sri N.A. Khan, learned Senior Advocate, assisted by Ghan Shyam Maurya, learned counsel for the defendant-petitioner.
This petition under Article 227 of the Constitution of India has been filed praying to set aside the judgment dated 28.11.2013 in SCC Suit No. 101 of 2007 (Asadullah Khalid Vs. Syed Qiam Hussain) passed by the Judge Small Cause Court, Aligarh, decreeing the suit and the judgment dated 22.05.2019, in SCC Revision No.8 of 2014 (Syed Qiam Hussain and another Vs. Asadullah Khalid), passed by the Additional District Judge, Court No.8, Aligarh, whereby the revision of the defendant-petitioner was dismissed.
Briefly stated facts of the present case are that the disputed property is a waqf property. The disputed property belongs to waqf (registration No.177 - U.P. Sunni Central Board, Lucknow). The plaintiff-respondent no.1 had inducted Captain AiIjaz Hussain (father of the defendant-petitioner) as tenant. D.W. - 2 has admitted this fact in his evidence and further stated that rent was being paid to the plaintiff-respondent no.1. Since a sub-tenancy was created by the defendant-petitioner by sub- letting the disputed premises to the respondent no.2 - Maulana Taqui, therefore, the plaintiff-respondent no.1 filed SCC Suit No.101 of 2007 for eviction and recovery of rent. This suit was decreed by judgment dated 28.11.2013, passed by the Additional Judge, Small Cause Court, Aligarh. Aggrieved with that judgment, the defendant-petitioner filed SCC Revision No.08 of 2014, which has been dismissed by the impugned judgment, passed by the Additional District Judge, Court No.8, Aligarh. Aggrieved with these two judgments, the defendant- petitioner has filed the present petition under Article 227 of the Constitution of India.
Learned counsel for the defendant-petitioner submits that the disputed property is a waqf property but the suit was filed without impleading the waqf which was necessary party in view of the provisions of Sections 90 & 92 of the Waqf Act, 1995. Since the necessary party was not impleaded, therefore, the suit could not have been proceeded with. Consequently, both the judgments passed by the court below deserves to be set aside.
No other point has been argued before me by learned counsel for the defendant-petitioner.
I have carefully considered the submissions of learned counsel for the defendant-petitioner.
Perusal of both the impugned judgment shows that the defendant-petitioner has not raised any such objection before both the courts below. His objection regarding non joinder of parties was only to the extent that Smt. Firdaus daughter of original tenant Captain Aijaz Hussain who is the father of the defendant-petitioner, was not impleaded as defendant. Thus, the objection regarding not impleading the waqf as defendant is being raised for the first time in this petition, which is not permissible particularly in view of the fact that undisputedly the eviction of the tenant- petition is wholly lawful inasmuch as he had sub-let the disputed tenanted portion. Apart from the above even on facts of the present case, the submissions raised by learned counsel for the defendant-petitioner has no substance inasmuch as SCC Suit No.101 of 2007 was filed by the plaintiff- respondent no.1 as Mutawalli of the Waqf. The plaintiff's description as mentioned in the plaint is reproduced below:-
"Asadullah Khalid, aged about 26 years, son of late Khalid Bin Makhdumi, R/o Khalid Kada Dodhpur, Civil Lines, Aligarh, in his capacity as appointed mutawalli of waqf in Zakirai Sagheer Waqf Basera (Waqf No.177) under U.P. Sunni Central Board of Waqf appointed letter dated 29.6.2007."
The plaintiff has described him as plaintiff-landlord. The suit was filed by the plaintiff-landlord on behalf of the Waqf as Mutawalli of the Waqf and not in his individual capacity.
Both the courts below have recorded concurrent finding of fact that the defendant-petitioner had sub-let the disputed portion to the defendant-respondent no.2 without any permission or consent of the plaintiff-landlord. This finding of fact has not been even questioned before me during submissions made by learned counsel for the petitioner. In fact no submission has been made before me on merit in this regard.
For all the reasons aforestated, I do not find any merit in this petition. Consequently, the petition fails and is hereby dismissed.
Order Date :- 30.7.2019/vkg