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2003 DIGILAW 159 (ALL)

MOHD. SABIR (DECEASED) v. IRSHAD

2003-01-27

S.P.MEHROTRA

body2003
JUDGMENT Hon’ble S.P. Mahrotra, J.—Supplementary affidavit filed today be taken on record. 2. This writ petition has been filed by the petitioner Nos. 1/1 to 1/3 under Article 226 of the Constitution of India, inter alia, praying for quashing the judgment and order dated 18.12.2000 (Annexure 4 to the writ petition) and the judgment and order dated 2.12.2002 (Annexure 5 to the writ petition). 3. The dispute relates to a shop bearing No. 1811 situated in Mohalla Munna Lal, Kasba Mawana, Tehsil Mawana, District Meerut. The said shop has, hereinafter, been referred to as “the disputed shop”. 4. From the allegations made in the writ petition, it appears that Mohd. Umar filed a Suit against Mohd. Sabir, inter alia, for ejectment, arrears of rent and mesne profits etc. The said Suit was filed by the said Mohd. Umar in his capacity as Mutwali Waqf Al-al-Aulad created by Sri Abdul. The said Suit was registered as S.C.C. Suit No. 171 of 1995. 5. It further appears that during the pendency of the said Suit, the said Mohd. Umar expired on 12.7.1997, and Mohd. Irshad (Respondent No. 1 herein) was substituted as Mutwalli of the said Waqf Al-al-Aulad of the said Sri Abdul. Copy of the plaint of the said S.C.C. Suit No. 171 of 1995 has been annexed as Annexure 2 to the writ petition. 6. It was, inter alia. alleged in the said Suit that the defendant Mohd. Sabir was the tenant of the disputed shop at a monthly rent of Rs. 100/-; and that Sri Abdul created Waqf Al-al-Aulad in respect of the disputed shop and other properties and that after the death of Sri Abdul, his eldest son Mohd. Umar became Mutwalli of the said Waqf Al-al-Aulad, and in his capacity as Mutwalli, the said Mohd. Umar was realizing Rs. 100/- per month from the defendant Mohd. Sabir as rent of the disputed shop; and that after the death of the said Mohd. Umar on 12 7.1997, his eldest son Mohd. Irshad became Mutwalli as per clause 2 of the Waqfnama dated 1-10-1934. 7. It was, inter alia, further alleged in the said Suit that the said Mohd. Umar determined the tenancy of the defendant Mohd. Sabir by a notice dated 4.7.1995 under Section 106 of the Transfer of Property Act; and that the said notice was received by the defendant Mohd. Sabir on 9.7.1995. 7. It was, inter alia, further alleged in the said Suit that the said Mohd. Umar determined the tenancy of the defendant Mohd. Sabir by a notice dated 4.7.1995 under Section 106 of the Transfer of Property Act; and that the said notice was received by the defendant Mohd. Sabir on 9.7.1995. and as such, the tenancy of the defendant Mohd. Sabir stood determined after 8.8.1995. It was, inter alia, further alleged in the said Suit that the rent for the period from 1.3.1995 to 8.8.1995 was due from the defendant Mohd. Sabir which was not paid by the said Mohd. Sabir, nor did the said Mohd. Sabir vacate the disputed shop. 8. The said Suit was contested by the said Mohd. Sabir. Written statement was filed on behalf of the said Mohd. Sabir, copy whereof has been filed as Annexure 3 to the writ petition. 9. It was, inter alia, admitted by the defendant Mohd. Sabir in the said written statement that he was tenant of the disputed shop at a monthly rent of Rs. 100. However, the defendant Mohd. Sabir denied that the disputed shop was Waqf property. It was further denied by the defendant Mohd. Sabir that the said Mohd. Umar was the Mutwalli of Waqf. It was, inter alia, further alleged in the written statement that the disputed shop was not the property of the Waqf AI-al-Aulad. 10. Evidence was led by both the sides in the said Suit. 11. The learned Additional Judge, Small Cause Court, Meerut, by the judgment and order dated 18.12.2000, decreed the said Suit. It was, inter alia, held in the said judgment and order dated 18.12.2000 that the Waqfnama of 1934 (paper 24 Ga) was admissible in evidence ; and that in an earlier Suit No. 180 of 1987, the defendant Mohd. Sabir had accepted the disputed property to be Waqf property. It was, inter alia, further held in the said judgment and order dated 18.12.2000 that merely because Waqf was not recorded in the Nagar Mahapalika records, it could not be accepted that the Waqfnama was never acted upon; and that the mutation in Nagar Mahapalika records is only for purposes of realization of taxes, and the same could not be evidence of title. It was, inter alia, concluded in the said judgment and order dated 18.12.2000 that the disputed shop was Waqf property, and as such, the provisions of the U.P. Act No. 13 of 1972 (in short “the Act”) were not applicable in view of the amendment made in the Act by inserting Section 2(1)(bbb) ; and that as the provisions of the Act were not applicable, the defendant Mohd. Sabir could not be given the benefit of Section 20 (4) of the Act. 12. The defendant Mohd. Sabir, thereupon, filed a Revision under Section 25 of the Provincial Small Cause Courts Act which was registered as S.C.C. Revision No. 26 of 2001. 13. It further appears that during the pendency of the said Revision, the said Mohd. Sabir died on 26th Feb. 2002, and, thereupon, the petitioner Nos. 1/1 to 1/3, herein, were substituted as the heirs and legal representatives of the said Mohd. Sabir in the said Revision. 14. By the judgment and order dated 2.12.2002, the learned Additional District Judge, Court No. 15, Meerut dismissed the said S.C.C. Revision No. 26 of 2001. 15. It was, inter alia, held in the said judgment and order dated 2.12.2002 that the Waqfnama (paper 24 Ga) was admissible in evidence ; and that considering the entire facts and circumstances and the material on record, it was established that the disputed shop was Waqf property, and the provisions of the Act were not applicable to the disputed shop. It was, inter alia, concluded in the said judgment and order dated 2.11.2002 that the learned Additional Judge, Small Cause Court, Meerut did not commit any illegality or irregularity in passing the said judgment and order dated 18.12.2000. 16. Thereafter, the petitioner Nos. 1/1 to 1/3 have filed the present writ petition seeking reliefs mentioned above. 17. I have heard learned Counsel for the parties and perused the record. 18. Learned Counsel for the petitioners submits that as the disputed shop was not recorded as Waqf property in the municipal record, it was evident that the said Waqfnama was never acted upon. Therefore, the contention proceeds, the findings recorded by the Courts below that the disputed shop was Waqf property, were illegal. 19. I have considered the submission made by the learned Counsel for the petitioners, and I find myself unable to accept the same. Therefore, the contention proceeds, the findings recorded by the Courts below that the disputed shop was Waqf property, were illegal. 19. I have considered the submission made by the learned Counsel for the petitioners, and I find myself unable to accept the same. It is well established that the mutation in the municipal record is done for the purposes of realization of municipal taxes. The entries in the municipal record cannot determine the title to the property in question. Therefore, even though the Waqf was not recorded in the municipal record, it could not mean that the Waqfnama of 1934 was never acted upon. The conclusion of the Courts below in this regard, therefore, does not require any interference by this Court. 20. A perusal of the judgments and orders of the Courts below shows that the finding that the disputed shop was a property of the Waqf Al-al-Aulad, has been recorded on a detailed consideration of the evidence on record, including the counter-foils of rent receipts as well as the documents relating to an earlier Suit. The said finding recorded on a detailed consideration of the evidence of record, is a finding of fact. No illegality or perversity has been shown in the said finding recorded by the Courts below. No interference is, therefore, called for with the said finding recorded by the Courts below. Section 2(1)(bbb) of the Act provides as follows : “2. Exemptions from operation of Act—(1) Nothing in this Act shall apply to [the following, namely]— [(a)............................ (b)........................ (bb)......................... (bbb) any building belonging to or vested in a waqf including a waqf-alal-aulad ;] (c)...................................................................” 21. The said provision was inserted in Section 2 of the U.P. Act No. 13 of 1972 by amendment by the U.P. Act No. 5 of 1995 with effect from 26.9.1994. 22. The said S.C.C. Suit No. 171 of 1995 was filed on 24.8.1995. Thus, the provisions of Section 2 (bbb) of the Act (i.e. U.P. Act No. 13 of 1972) were applicable to the present case. 23. In view of the finding recorded by the Courts below that the disputed shop was a property of Waqf Al-al-Aulad, the provisions of the Act (i.e. U.P. Act No. 13 of 1972) were evidently not applicable to the disputed shop. 24. The said S.C.C. Suit No. 171 of 1995 was filed after determining the tenancy of the defendant Mohd. Sabir. In view of the finding recorded by the Courts below that the disputed shop was a property of Waqf Al-al-Aulad, the provisions of the Act (i.e. U.P. Act No. 13 of 1972) were evidently not applicable to the disputed shop. 24. The said S.C.C. Suit No. 171 of 1995 was filed after determining the tenancy of the defendant Mohd. Sabir. No illegality has been shown in the notice of determination of tenancy. The findings recorded by the Courts below in this regard, thus, do not suffer from any illegality. 25. In view of the aforesaid discussion, I am of the opinion that this writ petition lacks merit, and the same is liable to be dismissed. The writ petition is accordingly dismissed. 26. Learned Counsel for the petitioners has then submitted that some reasonable time may be granted to the petitioners for vacating the disputed shop. 27. I have heard learned Counsel for the parties on this question also. 28. Having considered the facts and circumstances of the case and the submissions made by the learned Counsel for the parties, it is directed that the petitioner Nos. 1/1 to 1/3 will not be evicted from the disputed shop till 31st July, 2003 provided the petitioner Nos. 1/1 to 1/3 give an undertaking on joint affidavit before the concerned Court within six weeks from today incorporating the following conditions : (1) The petitioner Nos. 1/1 to 1/3 will pay the entire decreetal amount including the rent/damages upto February 2003 within six weeks from today to the respondent No. 1. (2) The petitioner Nos. 1/1 to 1/3 will continue to pay damages at the decreed rate of rent with effect from March, 2003 till the date of vacating the disputed shop. (3) The petitioner Nos. 1/1 to 1/3 will hand-over peaceful, vacant possession of the disputed shop to the respondent No. 1 on or before July 31, 2003. 29. In case, the aforesaid requisite undertaking is not given by the petitioner Nos. 1/1 to 1/3 within the time granted or the petitioner Nos. 1/1 to 1/3 do not comply with any of the aforesaid conditions incorporated in the undertaking, this order granting time to the said petitioners for vacating the disputed shop will stand automatically vacated, and it will become open to the respondent No. 1 to execute the decree forthwith. Petition Dismissed. ———